HCSB LlBKMft DIGEST OF THE LAWYERS REPORTS ANNOTATED ISTEW SERIES VOLS. 1-52 CITED "L.R.A.(N.S.)' VOL. I THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY ROCHESTER, N. Y. 1915 T833KI (13TATOM StSe2 to,K THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY. '0"> yM.TH.aiJH .)' aVITAi .Y .'/. .HHT^Iil 6 1 ACCORD AND SATISFACTION. ACCOMPLICE. Immunity to, in exchange for testimony, see APPEAL AND ERROR, 47; CRIMINAL LAW, 152. Conviction on contradictory evidence of, see APPEAL AND ERROR, 923. Prejudicial error in admonition by judge to accomplice taking witness stand, see APPEAL AND ERROR, 1467. Corroboration of testimony of, see APPEAL AND ERROR, 924-926; EVIDENCE, 2366- 2368; WITNESSES, 194. Liability of, see CRIMINAL LAW, I. e. Who are, see EVIDENCE, 2369-2372. Proof of acts or declarations of, see EVI- DENCE, X. g. Weight of testimony of, see EVIDENCE, 2364-2372. Sufficiency of evidence by, to sustain con viction, see EVIDENCE, 2364-2372. Question for jury as to, see TRIAL, 266, 267. Instructions assuming witness was accom- plice, see TRIAL, 1066. ACCORD AND SATISFACTION. As to compromise and settlement, see COM- PROMISE AND SETTLEMENT. Evidence to show, see EVIDENCE, 807. Distinction between accord and novation, see NOVATION, 3. What constitutes plea of, see PLEADING, 165. Necessity of pleading, see PLEADING, 452. Sufficiency of release to sustain plea of, see RELEASE, 12. 1. To constitute an accord and satisfac- tion there must have been in fact and in reality a meeting of the minds in accord and in satisfaction. Wolfe v. Humboldt County, 45: 762, 131 Pac. 964, 36 Nev. 26. 2. The fact that receipt for payment of an account for work and labor, without in- terest on the same, may have been given under protest by the creditor, does not change the legal effect of his act so as to enable him to maintain a subsequent sep- arate suit to recover the interest. Bennett v. Federal Coal & Coke Co. 40: 588, 74 S. E. 418, 70 W. Va. 456. 3. Where one to whom is owing a sum of money for work and labor accepts cer- tain notes and a check in settlement of the account, giving his receipt therefor, without including interest on the account previous to the date of the settlement, there being no express contract on the part of the debtor to pay interest, a separate action to collect such interest cannot be maintained. Bennett v. Federal Coal & Coke Co. 40: 588, 74 S. E. 418, 70 W. Va. 456. (Annotated) By part payment generally. 4. A plea of payment of a less amount than is acknowledged to be due, which was borrowed for the purpose, and a satisfac- tion and release of all claims and demands, Digest 1-52 L.R.A.(N.S.) I is not sufficient as one of accord and satis- faction. Schlessinger v. Schlessinger, 8: 863, 88 Pac. 970, 39 Colo. 44. 5. The common-law rule that payment by a debtor, and receipt by the creditor, of a less sum than is due upon an undis- puted, liquidated demand, is not satisfac- tion of the debt although the creditor agrees to accept it as such, is inapplicable to a balance claimed for interest on the im- plied contract of the debtor to pay interest on an account for work and labor, after the creditor has accepted certain notes and a check in payment of the account, without including interest. Bennett v. Federal Coal & Coke Co. 40: 588, 74 S. E. 418, 70 W. Va. 456. 6. Where unliquidated claims against a county are duly presented to its board of county commissioners for allowance, and the claims are considered together and al- lowed at a lump sum less than the amount claimed, and a warrant is drawn for the amount so allowed, which warrant is ac- cepted by the claimant, such acceptance is presumed to be in full payment of the claims presented, and claimant cannot ac- cept said warrant and credit the amount thereof upon the total of the claims pre- sented, and then sue for the balance. Paul- son v. Ward County, 42: in, 137 N. W. 486, 23 N. D. 601. (Annotated) 7. Acceptance of the portion of a claim against a county for statutory fees of a constable which is allowed by the commis- sioners does not, since the demand is a liquidated one, per se bar a recovery of the residue on the principle of accord and sat- isfaction, under a statute requiring presen- tation of demands for allowance, and au- thorizing suit if the board refuses to allow the same or any part thereof. Wolfe v. Humboldt County, 45: 762, 131 Pac. 964, 36 Nev. 26. 8. Receipt by an injured employee of all the benefits to which he is entitled by the rules of a relief department established by his employer will, if he acts voluntarily and without undue influence, bar an action to hold the employer liable for negligence, but a receipt of only part of them will not do so, in the absence of an express stipula- tion to that effect. King v. Atlantic C. L. R. Co. 48: 450, 72 S. E. 801, 157 N. C. 44. 9. That one having claim under a written contract cancels the contract upon receiving part of the amount due does not preclude a recovery of the remainder. Schlessinger v. Schlessinger, 8: 863, 88 Pac. 970, 39 Colo. 44. Retaining check or warrant tendered as in full payment. 10. One receiving a check for less than the amount in dispute on an unliquidated claim, which is tendered upon express con- dition that it shall be in full satisfaction, must return it or be bound by the condi- tion, unless it is .waived. Seeds Grain & Hay Co. v. Conger, 32: 380, 93 N. E. 892, 83 Ohio St. 169. 11. Failure of one who has tendered a check for less than is claimed on an un- 10 ACCORD AND SATISFACTION. liquidated disputed demand, upon express condition that it shall be received in full satisfaction, to reply upon receiving notice that the check has been placed to his cred- it but does not close the account, does not amount to a waiver or withdrawal of the condition. Seeds Grain & Hay Co. v. Con- ger, 32: 380, 93 N. E. 892, 83 "Ohio St. 160. 12. One who accepts and appropriates to his own use a check tendered in full satis- faction of an unliquidated account cannot avoid its effect as an accord and satisfac- tion by notifying the drawer that it is ac- cepted only as part payment, and that pay- ment of the balance will be required. Bar- liam v. Bank of Delight, 27: 439, 126 S. W. 394, 94 Ark. 158. (Annotated) 13. Procuring the certification of a check sent in full payment of a claim for a larger amount constitutes an acceptance which will amount to satisfaction of the claim, although the creditor holds the check without collecting the money on it, and notifies the maker that he cannot use it except as part payment. Scheffenacker v. Hoopes, 29: 205, 77 Atl. 130, 113 Md. 111. (Annotated) 14. One who accepts in payment of over- due accounts upon which interest is due, which is not provided in the contract, checks containing a statement of the account, with- out interest, and bearing the announce- ment "in full payment of above account," waives his right subsequently to claim the interest, although he understands that the question of right to interest was left open, and as to the portion of the interest claimed so notified the one making the payment. Bassick Gold Mine Co. v. Beardsley, 33: 852, 112 Pac. 770, 49 Colo. 275. 15. Acceptance by a creditor of a check mailed him by his debtor for a sum less than the amount due, but which the debtor believes in good faith to be all that is due or claimed by the creditor, does not consti- tute a payment made in settlement of a dis- puted claim, and is not an accord and satis- faction, although the debtor marks upon the margin of the check, "in full to date," and describes it in the account which he renders, as "check to balance in full." Cana- dian Fish Co. v. McShane, 14: 443, 114 N. W. 594, 80 Neb. 551. (Annotated) 16. Cashing a check sent in payment of the portion of an account which is admitted to be due does not prevent enforcement of the balance, although the tender is on con- dition that it shall be received in full pay- ment. Whittaker Chain Tread Co. v. Standard Auto Supply Co. 51: 315, 103 N. E. 695, 216 Mass. 204. 17. Incorporation in a check given in partial payment on a compromise agree- ment, of language releasing the payor from all claims and damages, will not release him from compliance with the agreement, un- less it clearly appears that it was the in- tention of both parties that the check should be in full payment of all claims and de- mands whatsoever. Heath v. Potlatch Lum- Digest 1-52 L.R.A.(N.S.) ber Co. 27: 707, 108 Pac. 343, 18 Idaho, 42. 18. Retention by an employee of a clieck given by the employer, and reciting that it is the return in full of a cash bond, less a sum of money wrongfully appropriated by the employee, does not constitute an accord and satisfaction, since the employer yielded no part of his claim, and suffered no detri- ment by paying only what he admitted was due and payable. Demeules v. Jewel Tea Co. 14: 954, 114 N. W. 733, 103 Minn. 150. 19. A bank which holds a warrant is- sued to it by a municipal corporation under an agreement between the bank and a con- tractor, whereby the bank was to furnish the contractor money for the construction of a bridge for the city, as security for which all warrants and payment therefor were to be issued to the bank, has no authority, by- reason of such agreement, to compromise a dispute between the contractor and the city as to the amount due the former, by accepting the warrant against the express direction of the contractor, where it pur- ports to be in full payment and is for a less amount than that claimed by the creditor to to be due him, so as to work an accord and satisfaction between the contractor and the city. Matheney v. Eldorado, 28:980, 109 Pac. 166, 82 Kan. 720. 20. The drawing of money on a warrant given in full payment for the construction of a bridge for a city, by a bank with whom it had been deposited under an agreement between it and the builder, whereby the bank was to furnish money for the construction, and all warrants therefor were to be made payable to it, without the consent or knowl- edge of the builder and after it had been notified that the warrant must not be ac- cepted in full payment because a dispute had arisen as to the amount due, and a larger sum was claimed than that for which the warrant was drawn, does not operate as an accord and satisfaction of the amount claimed by the builder, so as to preclude his recovering that amount from the city. Matheney v. Eldorado, 28: 980, 109 Pac. 166, 82 Kan. 720. Agreement to accept less than full amount. 21. The satisfaction of a debt on receipt of 30 per cent of its amount is supported by a sufficient consideration, where the debtor contemplated bankruptcy, and the creditor dissuaded him therefrom and ac- cepted his offer of 30 per cent in satisfaction of the debt, received the amount, and closed the account. Melroy v. Kemmerer, n: 1018, 67 Atl. 699, 218 Pa. 381. (Annotated) 22. An accrued claim growing out of a contract for support upon separation of husband and wife would not be affected by a discharge in bankruptcy; and an agree- ment not to resort to voluntary bankrupt- cy is therefore not a consideration for an acceptance of a portion of the claim in satisfaction of the whole. Schlessinger v. Schlessinger, 8: 863, 88 Pac. 970, 39 Colo. 44. ACCOUNTANTS ACCOUNTING. 11 ACCOUNTANTS. Nature of action to recover damages for negligence of accountant, see ACTION OB SUIT, 80. Splitting of cause of action for negligence, see ACTION OR SUIT, 88. Proximate consequences of failure of ac- countant to make proper audit, see PROXIMATE CAUSE, 27. 1. One who holds himself out as an expert accountant, and accepts employment as such, impliedly represents that he pos- sesses the ability and skill of the average person engaged in that branch of skilled labor. East Grand Forks v. Steele, 45: 205, 141 N. W. 181, 121 Minn. 296. (Annotated) 2. Compensation paid an expert ac- countant in reliance upon his report that he has made a complete and correct audit may be recovered back on proof that, through his negligence, the audit is in sub- stance false. East Grand Forks v. Steele, 45: 205, 141 N. W. 181, 121 Minn. 296. ACCOUNT BOOKS. As evidence, see EVIDENCE, IV. j. Admissibility in evidence, see EVIDENCE, 725-727. Condition in insurance policy as to keep- ing, and place of keeping, see INSUR- ANCE, III. e, 1, d. ACCOUNTING. Conditions precedent to action for account- ing, see ACTION OR SUIT, 26. Including in bill for accounting claim for damages recoverable at law, see AC- TION OR Sun, 123. Multifariousness of bill for, see ACTION OR SUIT, 128. By loan association, see BUILDING AND LOAN ASSOCIATIONS, 7. Between insolvent building and loan asso- ciation and borrowing member, see BUILDING AND LOAN ASSOCIATIONS, 30. For proceeds of insurance on cargo for ac- count of whom it may concern, see CARRIERS, 767 Prescribing uniform system of accounting and bookkeeping for carriers, see CON- STITUTIONAL LAW, 114, 442; INTER- STATE COMMERCE COMMISSION, 6-10. Eight of minority stockholders to account- ing by lessee of property, see CORPO- RATIONS, 273. As between co tenants, see COTENANCY, 2, 7. Right of creditors of insolvent corporation which has transferred assets to succes- sor to accounting, see CORPORATIONS, 25. Estoppel to use other remedy by bringing action for, see ELECTION OF REMEDIES, 30. When equity will take jurisdiction on grounds of, see EQUITY, 9. For profits, on grant of injunction to re- strain use of tradename, see EQUITY, 129. Digest 1-52 L.R.A.(N.S.) By heir for money received from father's executor; burden of showing amount received, see EVIDENCE, 655. By personal representatives, see EXECUTORS AND ADMINISTRATORS, IV. c. By creditor of insolvent, receiving prop- erty materially greater in value than his debt, see FRAUDULENT CONVEY- ANCES, 40. Necessity for, as justifying injunction to restrain actions on insurance policies, see INJUNCTION, 265. Suit for, by holder of tontine policy, see PARTIES, 169; PLEADING, 156. Between partners, see PARTNERSHIP, 59" 64; WRIT AND PROCESS, 28. Right of creditor receiving payment out of net profits of business to maintain suit for accounting as proof of partnership, see PARTNERSHIP, 7. Pleading in action by stockholders for, see PLEADING, 198. By agent, see PRINCIPAL AND AGENT, 19, 98. By trustee, see TRUSTS, 80. Competency of witness in action for, see WITNESSES, 60. See also ACCOUNTS. 1. The grantee of a mortgagor may maintain a bill in equity for an accounting from the mortgagee after foreclosure, for the fair value of the equity of redemption, which was hurt by a cloud cast on the title by an earlier illegal sale under the mortgage. Manville Covering Co. v. Babcock, 14: 900, 68 Atl. 421, 28 R. I. 496. (Annotated) 2. An accounting may be had as inci- dent to the relief granted in a suit in equity by several riparian owners to compel the abatement of a dam maintained lower down the stream to the injury of their lands. Cloyes v. Middlebury Electric Co. 11:693, 66 Atl. 1039, 80 Vt. 109. 3. Where restoration of property the sale of which is sought by bill in equity to be set aside has become impracticable, the court may state an account between the parties, and decree the payment of the value of the property received, although such re- lief is not asked by the bill. Swan v. Tal- bot, 17: 1066, 94 Pac. 238, 152 Cal. 142. 4. Upon trial of a suit to cancel a deed made in drunkenness, equity may also com- pel an accounting as to a cash payment which the vendor had returned to the purchaser. Miller v. Sterringer, 25: 596, 66 S. E. 228, 66 W. Va. 169. 5. Where the primary right of which the complainant is seeking the enforcement in a suit in equity is strictly legal, the mere fact that the bill prays for a dis- covery presents no ground for extending the jurisdiction of equity to compel the defend- ant to account. Franklin Twp. v. Crane, (N. J. Err. & App.) 43: 604, 85 Atl. 408, 80 N. J. Eq. 509. 6. A court of equity will not entertain jurisdiction of a suit brought by a town- ship against a tax collector of such town- ship for an accounting by him and the col- lection of tax moneys unlawfully appropri- 12 ACCOUNTS. ated or wasted by him, for the reason that adequate remedies against such collector to enforce such accounting and collection are available at law. Franklin Twp. v. Crane (N. J. Err. & App.) 43:604, 85 Atl. 408, 80 N. J. Eq. 509. 7. The unlawful production and sale by a publishing company, of volumes of court reports, by the use of uncopyrighted manuscripts and stereotyped plates in- trusted to it by the state to enable it to perform its contract to manufacture vol- umes of the reports for the state, do not give the latter title to the books so unlaw- fully produced, so as to entitle it to an ac- counting of the proceeds of sales made. State v. State Journal Co. 9: 174, 106 N. W. 434, 75 Neb. 275, 110 N. W. 763, 77 Neb. 752. 8. A son who was physically weak and vacillating by nature, who lived with his mother, a mentally strong and alert woman, and who managed her property, will not be required to render an account after her death, where she required him to keep no books, and never expressed dissatisfaction with the manner in which he applied the proceeds of the property. Barnett v. Kemp, 52: 1185, 167 S. W. 546, 258 Mo. 139. 9. The holder of a tontine life insur- ance policy is entitled, upon its maturity, to an accounting by the insurer of the amount due upon it. Equitable L. Assur. Soc. v. Winn, 28: 558, 126 S. W. 153, 137 Ky. 641. (Annotated) ACCOUNTS. Eight to split into different demands, see ACTION OB SUIT, 92. Disbarment of attorney for failing to keep accounts of clients, see ATTORNEYS, 20. Effect of failure to keep, on right to dis- charge in bankruptcy, see BANK- RUPTCY, 152. Prescribing uniform system of accounting and bookkeeping for carriers, see CON- STITUTIONAL LAW, 114, 442; INTER- STATE COMMERCE COMMISSION, 6-10. Estoppel to set up incorrectness of account stated, see ESTOPPEL, 130. Sufficiency of stated account resting in parol to toll statute of limitations, see CONTRACTS, 198. Agreement to assume "outstanding and open account," see CONTRACTS, 373; EVIDENCE, 966. Best and secondary evidence of, see EVI- DENCE, 725-727. As evidence, see EVIDENCE, IV. j. Of partnership, right to inspect through agent, see PARTNERSHIP, 57, 58. Application of payments on, see PAYMENT, IV. Pledge of, see PLEDGE AND COLLATERAL SE- CURITY, 1. Refusal by agent to permit inspection of, as ground for discharge, see PRINCI- PAL AND AGENT, 17. What is an account which can be referred, see REFERENCE, 12. Digest 1-52 L.R.A.(N.S.) Compulsory reference of long accounts, see REFERENCE, 14. Inspection of, as unlawful search, see SEARCH AND SEIZURE, 3. Taxation of outstanding accounts, see TAXES, 68. Patentability of system of checking ac- counts of waiters, see PATENTS, 2. See also ACCOUNTING. 1. The expression, "outstanding and open account," has a well-defined meaning in legal and commercial transactions, and does not include bills of exchange, promis- sory notes, or other written evidences of in- debtedness. Kramer v. Gardner, 22: 492, 116 N. W. 925, 104 Minn. 370. 2. To give an account rendered the force of an account stated, because of silence on the part of the party sought to be charged, it must appear that the ac- count was rendered to that person. Unit- ed Hardware-Furniture Co. v. Blue, 35: 1038, 52 So. 364, 59 Fla. 419. 3. Mere retention of an account ren- dered is not sufficient to constitute it an account stated. Shaw v. Lobe, 29: 333, 108 Pac. 450, 58 Wash. 219. (Annotated) 4. A promise to settle an unliquidated claim for tort at a stipulated sum will not sustain an action of assumpsit as upon an account stated. Pudas v. Mattola, 45: 534, 138 N. W. 1052, 173 Mich. 189. (Annotated) 5. The calculation of the interest due on a promissory note, and a statement to the maker of the amount found, and his acquiescence therein, do not constitute an account stated upon which the holder can maintain an action, and ignore the note. Jasper Trust Co. v. Larnkin, 24: 1237, 50 So. 337, 162 Ala. 388. 6. The statement of the amount of principal and interest due on a promissory note, and of an additional sum in hand paid, which is necessary to equal the amount of a judgment transferred in con- sideration of such amount, does not consti- tute an account stated which will sustain an action in case the transfer of the judg- ment proves to be ineffectual. Jasper Trust Co. v. Lamkin, 24: 1237, 50 So. 337, 162 Ala. 388. (Annotated) 7. Failure to question a statement of account for personal services under an ex- press contract to pay a specified sum for specified service does not render it an ac- count stated. Thomasma v. Carpenter, 45: 543, 141 N. W. 559, 175 Mich. 428. 8. A charge for services by an attor- ney, which is accepted by the client, be- comes an account stated, and cannot be re- opened except for fraud or mistake, al- though the account of collections in which it is embodied is disputed, so that it be- comes a matter of litigation. Lane & B. Co. v. Taylor, 7: 924, 97 S. W. 441, 80 Ark. 469. (Annotated) 9. One to whom an account is rendered which contains an excessive interest charge on moneys advanced by the other party ACCOUNTS STATED ACKNOWLEDGMENT, III. a. 13 thereto, together with a tender of the cash balance, cannot avoid the effect of delay in repudiating the account by placing it in the hands of an attorney for adjustment, if the latter docs not proceed in due time. Ripley v. Sage Land & Improv. Co. 23: 787, 119 N. W. 108, 138 Wis. 304. (Annotated) 10. That an account has been stated, and the debtor has promised to pay it, does not deprive him of the defense in an action at law upon the account, that it is based on a wagering transaction. Murphey v. Springs & Co. 45: 539, 200 Fed. 372, 118 C. C. A. 524. (Annotated) 11. Breach of a contract may be set up in defense of an action upon an account stated for money earned under it. Gutshall v. Cooper, 6: 820, 86 Pac. 125, 37 Colo. 212. (Annotated) ACCOUNTS STATED. See ACCOUNTS. ACCRETIONS. Effect of adverse possession of shore land to vest title to, see ADVERSE POSSES- SION, 75. Right to compensation on extending street across, see EMINENT DOMAIN, 245. Partition of, see PABTITION, 3. In general, see WATERS, 112, 113, 116, 152- 159, 180. ACCUSED. Cross-examination of, see WITNESSES, 111- 121. ACID. Keeping of, on premises as nuisance, see NUISANCES, 10. ACKNOWLEDGMENT. I. Who may make or take, 13. II. Nature of act of taking. III. Sufficiency; necessity; effect, 4 13. a. In general, 41O. ft. By married woman, 1113. IV. Correcting or curing defects, 14 16. Of illegitimate child, see DESCENT AND DISTRIBUTION, 15; PARENT AND CHILD, II. Evidence in prosecution for false certifi- cation to acknowledgment, see EVI- DENCE, 1905. Digest 1-52 L,.R.A.(N.S.) I Forgery of certificate of, by notary, see FORGERY, 11. Liability of notary taking acknowledgment to fraudulent instrument, see NOTARY, 1. Of injunction bond by sureties, see IN- JUNCTION, 430. To interrupt statute of limitations, see LIMITATION OF ACTIONS, 339-353. I. Who may make or take. (See also same heeding in Digest L.R.A* 1-10.) Priority of attachment over instrument acknowledged before person not en- titled to take acknowledgment, see ATTACHMENT, 21, 22. 1. It is improper for a lawyer to act in the double capacity of a notary to take acknowledgments to affidavits, to be used in the trial of a case in which he is the attorney -for one of the parties. Crawford v. Ferguson, 45: 519, 115 Pac. 278, 5 Okla. Grim. Rep. 377. 2. A stockholder of a corporation bears such financial relation to it that he is disqualified, on account of interest, from attesting as a notary a bill of sale to which the corporation is a party. Southern Iron & E. Co. v. Voyles, 41:375, 75 S. E. 248, 138 Ga. 258. . (Annotated) 3. A deed of trust executed by a cor- poration is sufficiently acknowledged to en- title it to registration, although it was ac- knowledged before a notary public who was at the time a director and the treasurer of the corporation and who was also indebted for unpaid subscriptions to its stock, where these faets were known to the grantor, and where there is nothing on the face of the deed or the acknowledgment to indicate such relation. Ardmore Nat. Bank v. Briggs Machinery & S. Co. 23: 1074, 94 Pac. 533, 20 Okla. 427. (Annotated) II. Nature of act of taking. (See same heading in Digest L.RA. 1-70.) III. Sufficiency; necessity; effect. a. In general. (See also same heading in Digest L.R.A. 1-10.) Deed defectively acknowledged as color of title, see ADVERSE POSSESSION, 91. Upholding defectively acknowledged deed as parol dedication, see DEDICATION, 8. By grantor signing by mark, s^e DE:<:DS, 5. Impeachment of, by testimony of parties to certificate, see EVIDENCE, 912. Weight and sufficiency of evidence to im- peach, see EVIDENCE, 2254, 2255. Effect of absence of acknowledgment of mortgage on validity of assignment, see EVIDENCE, 2103. 14 ACKNOWLEDGMENT, III. b, IV. Effect of invalid acknowledgment of assign- ment of mortgage on validity of fore- closure, see MORTGAGE, 110. To entitle deed to record, see RECORDS AND RECORDING LAWS, III. a. As condition of right to specific perform- ance, see SPECIFIC PERFORMANCE, 72. Of tax deed, see TAXES, 229. 4. An unacknowledged assignment of a mortgage is valid between the parties; the acknowledgment thereof being essential only to entitle it to record. Wellendorf v. Wellendorf, 43: 1144, 139 N. W. 812, 120 Minn. 435. 5. Failure of a notary public to file his autograph signature in the office of the county register, as required by statute, will not invalidate the acknowledgment of sig- natures taken by him. Re Townsend, 22: 194, 88 N. E. 41, 195 N. Y. 214. 6. An acknowledgment which recites that the principal personally appeared be- fore a notary and acknowledged the exe- cution of a deed to be his voluntary act is invalid if his attorney in fact alone ap- peared before the notary, although the at- torney had properly signed the name of the principal alone to the deed, under a power of attorney. Tiger v. Button Land Co. 41:805, 135 N. W. 368, 136 N. W. 46, 91 Neb. 63, 433. 7. A certificate of acknowledgment to a deed stating that two persons whose names are subscribed to the instrument appeared and acknowledged "that he executed the same" is not so defective as to prevent the recording of the instrument, since the word "each" will be supplied by construction. Hughes v. Wright, u: 643, 101 S. W. 789, 100 Tex. 511. (Annotated) 8. Separate certificates of acknowledg- ment by husband and wife immediately fol- lowing one another, both dated the same day, the wife's being in full compliance witli the statute and showing the official character of the officers making it; the husband's though purporting to be made by persons of the exact names of those making the other certificate, yet deficient in not de- scribing them as officers authorized in the premises, may be read together as one, or the certificate of the wife's acknowledg- ment may be resorted to for aid in supply- ing the omission of official character in the other. Blake v. Hollandsworth, 43: 714, 76 S. E. 814, 71 W. Va. 387. Reacknowledgment. Necessity of reacknowledgment of mortgage after filing of blanks, see MORTGAGE, 19. 9. A deed complete and fully executed, save that a blank space for the name of the grantee is not filled out, and delivered to the grantee in this condition, is a nullity until the name of the grantee is inserted ; but if the grantee, under implied authority from the grantor, inserts his own name in the blank space, the deed becomes operative as a conveyance, without being re-executed or reacknowledged. Board of Digest 1-52 L.R.A.(N.S.) Education v. Hughes, 41: 637, 136 N. W. 1095, 118 Minn. 404. 10. An acknowledged deed for land which, with the consent of the grantors, has been altered after delivery, so as to make it describe a larger boundary, to be effective as a deed of the larger tract must be reacknowledged. Waldron v. Waller, 32: 284, 64 S. E. 964, 65 W. Va. 605. b. By married woman. (See also same heading in Digest L.R.A. 1-10.) See also infra, 15, 16; DOWER, 17. 11. The privy examination of a married woman necessary to validate her convey- ance of real estate under a statute pre- scribing its form cannot be taken by tele- phone. Wester v. Hurt, 30: 358, 130 S. W. 842, 123 Tenn. 508. (Annotated) 12. If, after a wife has been privily ex- amined as to her signature to a deed, which has not been signed by her husband, and before the certificate of examination has been indorsed on the instrument, she obtains possession of it and erases her signature, the authority to attach the certificate is terminated, and the deed will be void if the husband subsequently affixes her signature and his own to the instrument, and causes the certificate of acknowledgment to be at- tached thereto. Eldridge v. Hunter, 40:628, 143 S. W. 892, 125 Tenn. 309. 13. A stranger cannot, under a statute providing that any certificate showing that the requisites of the law with respect to a conveyance by a married woman have been complied with shall be as valid as the form prescribed, attack a conveyance by a woman who lived near the land with- out objection for more than fifty years, because the certificate omitted the pre- scribed clause that she wished not to re- tract, where it stated that, being examined apart from her husband and the deed being explained to her, she says that she signed the deed of her own free will and accord without fear or restraint on the part of her husband. Spivy v. March, 45: 1109, 151 S. W. 1037, 105 Tex. 473. (Annotated) IV. Correcting or curing defects. (See also same heading in Digest L.R.A. 1-70.) Constitutionality of act curing defective acknowledgment, see CONSTITUTIONAL LAW, 48-48b, 54, 388, 389. 14. A constitutional prohibition of the enactment of retroactive laws is not vio- lated by a statute curing defectively ac- knowledged deeds which have been on rec- ord for more than ten years, so far as it affects the rights of one who, fifty years after the execution of the deed, purchases the property from the grantor's heirs, with full knowledge of the facts. Downs v. ACQUIESCENCE ACTION OR SUIT. 15 Blount, 31: 1076, 170 Fed. 15, 95 C. C. A. 289. 15. The mere fact that the deed of a married woman is not acknowledged and certified as required by statute does not render it void to such a degree that it can- not be cured by the legislature. Downs v. Blount, 31: 1076, 170 Fed. 15, 95 C. C. A. 289. 16. An officer cannot, at an indefinite time after witnessing the signature to an instrument, and its delivery to the grantee, make and attach thereto a certificate of the acknowledgment of its execution on privy examination by a married woman who was a party thereto, without having again had her before him for that purpose. Alford v. Doe ex dem. First Nat. Bank, 22: 216, 47 So. 230, 156 Ala. 438. (Annotated) ACQUIESCENCE. Estoppel by, see ESTOPPEL, III. g. Presumption of, see EVIDENCE, II. e, 4. ACQUITTAL. As bar to prosecution, see CRIMINAL LAW, ACROBATIC PERFORMANCE. In highway, see HIGHWAYS, 217. ACTION ON THE CASE, See CASE, 291. ACTION OR SUIT. /. Nature and right, 154. a. In general; what actionable, 1-6. b. Premature; conditions pre- cedent, 731. 1. In general, 724. 2. Restoration of benefits re- ceived, 25-27. 3. Demand; notice, 2831. c. Defenses, 3254. II. Union, choice, or form of reme- dies, 55131. a. Kind; name, 5585. b. Consolidation, 86, 87. c. Splitting; successive suits, 88 1O6. d. Joinder, 1O7-123. e. Multifariousness, 124 13O. f. Identity, 131. Dieest 1-52 L.R.A.(N.S.) III. Commencement and termination, 132. Abatement of, see ABATEMENT AND RE- VIVAL. Appearance in, see APPEARANCE. Compromise of, see COMPROMISE AND SET- TLEMENT. Continuance of, see CONTINUANCE AND ADJOURNMENT. Dismissal and discontinuance, see DISMIS- SAL OR DISCONTINUANCE. What constitutes due process in, see CON- STITUTIONAL LAW, II. b, 7. Costs and fees, see COSTS AND FEES. Parties to action, see PARTIES. Removal of, see REMOVAL OF CAUSES. Venue of action, see VENUE. Transfers between law and equity, see EQUITY, II. Comity in general, see CONFLICT OP LAWS. Limitation of time for bringing, see LIMI- TATION OF ACTIONS. Contractual limitation of time for com- mencing suit, see CARRIERS, 955; IN- SURANCE, VI. h, 3. Effect of, on running of limitations, see LIMITATIONS OF ACTIONS, IV. b. Effect of starting, to revoke submission to arbitration, see ARBITRATION, 4. Cause of, as assets in bankruptcy, see BANKRUPTCY, 44-52. Right of, as assets justifying appointment of administrator, see EXECUTORS AND ADMINISTRATORS, 2, 3, 5. Duty of stranger to, to defend, see BANKS, 232. Consideration for promise to refrain from suit, see CONTRACTS, 59. Forbearance to sue as consideration for promise, see CONTRACTS, 60, 121. Postponing suit on promise of debtor to pay, as raising new obligation for bene- fit of estate of payee, see CONTRACTS, 60. Threat to bring as duress, see DURESS, 4, 5. Jurisdiction of equity to reinstate, see EQUITY, 26, 27. In true name by one in whose favor a draft is drawn in a fictitious name, see NAME, 2. Use of full name in' bringing, see NAME. 2, 3. Notice to agent of pendency of, as notice to principal, see NOTICE, 30. Actions for injuries from defects in bridges, highways, and streets, see BRIDGES, II.; HIGHWAYS, IV. Remedy of abutting owner for improper use or obstruction of highway, see HIGH- WAYS, II. Civil damage suit, see INTOXICATING LI- QUORS, IV. b. To set aside judgment, see JUDGMENT, VII. Between partners, see PARTNERSHIP, VII. Rights and remedies of surety, see PRINCI- PAL AND SURETY, II. Causes of action relating to ships and ship- ping generally, see SHIPPING. Summary proceedings, see SUMMARY PRO- CEEDINGS. Suits as to taxes, see TAXES, III. e. 16 ACTION OR SUIT, I. a, b, 1. Privilege from, see WRIT AND PROCESS, II. d. Jurisdiction of courts, see ADMIRALTY; AP- PEAL AND ERROR; CLOUD ON TITLE; COURTS; CREDITORS' BILL; EQUITY; INJUNCTION ; MANDAMUS ; PROHIBI- TION; Quo WARRANTO; SPECIFIC PER- FORMANCE. On various instruments and obligations, see BILLS AND NOTES, VI.; BONDS; CON- TRACTS; INSURANCE, VI. h;' JUDGMENT, VI.; MORTGAGE, VI.; PATENTS; SALE; SHIPPING. Particular causes of action for wrongs, see ABUSE OF PROCESS; ASSAULT AND BAT- TERY; BREACH OF PROMISE; CASE; CONSPIRACY; DEATH; FALSE IMPRIS- ONMENT; FRAUD AND DECEIT; FRAUDU- LENT CONVEYANCES; LIBEL AND SLAN- DER; MALICIOUS PROSECUTION; NEGLI- GENCE; NUISANCES; PATENTS; SEDUC- TION. Various matters of procedure, see ATTACH- MENT; CONTINUANCE AND ADJOURN- MENT; DEPOSITIONS; EVIDENCE; EXE- CUTION; JUDGMENT; JURY; LEVY AND SEIZURE; TRIAL; WITNESSES; WRIT AND PROCESS. Matters peculiar to particular kinds of ac- tions and proceedings, see ADMIRALTY; ASSUMPSIT ; ATTACHMENT ; CASE ; COVENANTS AND CONDITIONS; CREDIT- ORS' BILL; DISCOVERY AND INSPEC- TION; EJECTMENT; EMINENT DOMAIN; EQUITY ; GARNISHMENT ; INJUNCTION ; MANDAMUS; PARTITION; PROHIBITION; Quo WARRANTO; REPLEVIN; SPECIFIC PERFORMANCE; TRESPASS; TROVER. I. Nature and right, a. In general; what actionable. (See also same heading in Digest L.-.B.A. 1-10.) Right of action by or against particular classes of persons, see ALIENS, 5; AS- SIGNMENT FOB CREDITORS; ASSOCIA- TIONS, 2; BANKRUPTCY; CARRIERS; CHARITIES ; CORPORATIONS ; COUNTIES ; EXECUTORS AND ADMINISTRATORS, III.; GUARDIAN AND WARD; HUSBAND AND WIFE, III.; INCOMPETENT PERSONS, V.; INFANTS, III.; INSOLVENCY; IN- SURANCE; LABOR ORGANIZATIONS, 7- 12; LANDLORD AND TENANT; MASTER AND SERVANT; MUNICIPAL CORPORA- TIONS; NONRESIDENTS; OFFICERS; PAR- ENT AND CHILD; PARTNERSHIP; PRIN- CIPAL AND AGENT; PRINCIPAL AND SURETY; RAILROADS; RECEIVERS, IV.; SALE; SCHOOLS; SHERIFF; STATE; STREET RAILWAYS; TELEGRAPHS; TELE- PHONES; TRUSTS; VENDOR AND PUB- CHASER; WATERS, III. By stockholder of corporation, see Corpo- rations, V. e, 2. By or against foreign corporations, see COR- PORATIONS, VII. c. For mental suffering, see DAMAGES, in. o. Digest 1-52 KR.A.(N.S.) Assignment of right of action, see ASSIGN- MENT, 1-3; CONTRACTS, 449. Due process as to right of action, see CON- STITUTIONAL LAW, II. b, 7, b. Nature of prosecution for violation of city ordinance, see EVIDENCE, 2053. Lack of controversy as ground for dismiss- ing appeal, see APPEAL AND ERROR, 392-394. 1. The owner of a threshing machine who fails to file the bond required by a statute making it unlawful to use such ma- chine without executing and filing a bond cannot maintain an action to recover com- pensation for threshing grain, even for one having knowledge of such failure. Johnson v. Berry, i: 1159, 104 N. W. 1114, 20 S. D. 133. (Annotated) 2. In an action at law, the right to judgment depends upon the facts as they existed at the time of the commencement of the action, and not at the time of the trial. Fults v. Munro, 37: 600, 95 N. E. 23, 202 N. Y. 34. 3. The right of an employer to hold one in his employ liable for negligently causing the death of an employee, for which the em- ployer is compelled to make indemnity, is not founded on the death, but upon the loss caused by the recovery against the em- ployer, and an action therefor is therefore not defeated by the fact that the employer is not within the statutory provision as to who may maintain an action for wrongful death. Travelers' Ins. Go. v. Great Lakes Engineering Works Co. 36: 60, 184 Fed. 426, 107 C. C. A. 20. (Annotated) 4. An attorney cannot maintain an in- dependent suit to prevent the fraudulent dismissal of an action in which he Las been retained to deprive him of his fees, but should proceed with the former suit not- withstanding the dismissal. Jackson v. Stearns, 5: 390, 84 Pac. 798, 48 Or. 25. (Annotated) 5. No action can be maintained which arises out of the moral turpitude of the plaintiff, or out of his violation of a general law enacted to effectuate the public policy of a state. Levy v. Kansas City, 22: 862, 168 Fed. 524, 93 C. C. A. 523. Novelty. 6. The absence of reported judgments and decisions sustaining an alleged liability under a given state of facts raises a strong presumption that no such liability exists. Western U. Teleg. Co. v. Schriver, 4: 678, 141 Fed. 538, 72 C. C. A. 596. : b. Premature; conditions precedent. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Raising objection of prematurity of action for first time on appeal, see APPEAL AND ERROR, 728, 729. ACTION OR SUIT, I. b, 1. 17 Prematurity of action against administra- tors, see EXECUTORS AND ADMINISTRA- TORS, 94. When action accrues so as to start running of limitations, see LIMITATION OF AC- TIONS, II. Prematurity of injunction suit to restrain execution of public contract, see PAR- TIES, 133. To right of action against maker of checks, see CHECKS, 18. To rescission of contract, see CONTRACTS, V. c, 2. To actions by stockholders, see CORPORA- TIONS, 279-284. To enforce stockholder's liability, see COR- PORATIONS, 365-369. To suit against county, see COUNTIES, 19. To maintenance of action to compel convey- ance by executor, see EXECUTORS AND ADMINISTRATORS, 95. To maintenance of action against munici- pality for injury on highway, see HIGHWAYS, IV. d, 2. To suit on insurance policy, see INSURANCE, VI. a. In action for damages for breach of con- tract to issue insurance policy, see IN- SURANCE, 138. To action for malicious prosecution, see MALICIOUS PROSECUTION, III. In suit against city, see MUNICIPAL COR- PORATIONS, II. g, 5. To action on contractor's bond, see PRINCI- PAL AND SURETY, 7-11. To action for replevin, see REPLEVIN, 3, 9. 7. A proceeding in equity to set aside the decision of an engineer, which, by the contract, is to be final and conclusive be- tween the parties, is not a condition prece- dent to an action at law to recover the money due under the contract, where the work has been satisfactorily completed by the one party and accepted by the other. Edwards v. Hartshorn, i: 1050, 82 Pac. 520, 72 Kan. 19. 8. An action lies for instalments accru- ing under the terms of an entire building contract as they become due; and the con- tractor need not wait until the building is completed before bringing the suit. Milske v. Steiner Mantel Co. 5: 1105, 63 Atl. 471, 103 Md. 235. 9. A suit by materialmen on the bond of a building contractor need not be post- poned until the owner of the building has suffered pecuniary injury by reason of the contractor's default, where it is conditioned that the contractor shall pay for all ma- terials supplied for the building. Orinoco Supply Co. v. Illinois Suretv Co. 42: 707, 76 S. E. 273, 160 N. C. 428. 10. A right of action for the refusal of a trust company to fulfil its agreement to loan money arises upon its repudiation of the contract, although the money was to have been advanced when a certain build- ing, which has not been erected, was com- pleted. Holt v. United Security L. Ins. & Trust Co. (N. J. Err. & App.) n: 100, 67 Atl. 118, 74 N. J. L. 795. Digest 1-52 L.R.A.(N.S.) 11. No action can be brought for the price of goods sold and delivered until the expiration of the stipulated period of credit, notwithstanding the purchaser refuses to accept the goods and repudiates the con- tract. Tatum v. Ackerman, 3: 908, 83 Pac. 151, 148 Cal. 357. (Annotated) 12. Suit to enforce specific performance of a contract by a devisee to share real es- tate with an heir is not prematurely brought, although there has been no final settlement of the testator's estate, where all the debts of the estate have been paid, and the personal estate is ample to pay the bequests under the will and all the necessary expense of administration. Grochowski v. Grochowski, 13: 484, 109 N. W. 742, 77 Neb. 506. 13. In case of a trust for the heirs of a certain person who shall be living at the death of another, no action can be main- tained prior to the latter's death, to estab- lish the trust against an assignee of the trustee, or to impound the rents and profits. Allen v. White, 7: 999, 85 Pac. 695, 36 Colo. 39. (Annotated) 14. An objection that an action by a devisee under a will to set aside a deed of the testator, which was alleged to hav*>. been procured while he was of unsound mind, was premature, because brought before the will was probated, becomes immaterial upon the trial upon an amended and supplement- al petition filed after the probate of the will. Bethany Hospital Co. v. Philippi, 30: 194, 107 Pac. 530, 82 Kan. 64. 15. A formal disaffirmance by an in- sane person, or by someone acting in his behalf, of a void deed which had been executed by him to one who had knowledge of the insanity, and who gave no sub- stantial consideration, is not a condition precedent to the bringing of an action by a devisee under the prior valid will of the grantor, to set aside such deed as a cloud on title, which was alleged to have passed under the will, although there was ample time for such action between the execution of the deed and the grantor's death. Bethany Hospital Co. v. Philippi, 30: 194, 107 Pac. 530, 82 Kan. 64. 16. An action for procuring by fraud a deed to timber which has been conveyed to a stranger may be brour'it before any entry has been made to remove the timber from the land. Griffin v. Roanoke R. & Lum- ber Co. 6: 463, 53 S. E. 307, 140 N. C. 514. 17. The cause of action for negligently constructing and maintaining the wall of a reservoir so that it gives way and injures adjoining property arises when the injury is done. Mast v. Sapp, 5: 379, 53 S. E. 350, 140 N. C. 533. (Annotated) 18. A suit to enjoin an express company from charging rates in excess of those per- mitted by Neb. Laws, 1907, chap. 91, which were limited to 75 per cent of the rates in force on the first day of that year, is not premature when brought on the day the statute took effect, although thirty days 18 ACTION OR SUIT, I. b, 2, 3. thereafter are allowed by 2 for filing a schedule of the rates which were in force on the 1st of the preceding January. State v. Pacific Exp. Co. 18: 664, 115 N. W. G1U, 80 Neb. 823. 19. A covenant of title contained in a deed, if untrue, is broken when made; and the grantee's right of action thereon ac- crues at once. Webb v. Wheeler, 17: 1178, 114 N. W. 636, 80 Neb. 438. (Annotated) 20. One who, because of the unlawful suspension of his child from a public school, becomes liable for board and tuition in an- other district, cannot maintain an action for damages against those responsible for the suspension, as soon as he has arranged for accommodation in such district and be fore he has paid his money. Douglas v. Campbell, 20: 205, 116 S. W. 211, 89 Ark. 254. 21. The right of action against a title abstracter under a statute providing that persons engaged in the making of abstracts shall give bond conditioned for the pay- ment of all damages that may accrue to any person by reason of any incomplete- ness, imperfections, or error in any ab stract furnished by them, accrues at the time the abstract is delivered, and not when the error is discovered and the dam- ages resulting therefrom have been paid Walker v. Bowman, 30: 642, 111 Pac. 319, 27 Okla. 172. 22. Dissolution of an injunction on mo- tion does not mature a right of action on the injunction bond if the suit is still pend- ing, although the statute provides that, in case of dissolution of an injunction, the complaint shall be dismissed of course un- less sufficient cause be shown against its dis- missal at the next succeeding term of court. Vicksburg Waterworks Co. v. Vicksburg, 33: 844, 54 So. 852, 99 Miss. 132. 23. One is not bound to make a tender of any amount as a condition of instituting a suit to set aside an assessment for a pub- lic improvement, which is invalid in toto. Denver v. State Invest. Co. 33: 395, 112 Pac. 789,x 49 Colo. 244. 24. Tender of a portion of an assessment for a public improvement is not a prerequi- site to the institution of a suit to set it aside for illegality, if no part of the assess- ment is due and payable when the suit is instituted. Denver v. State Invest. Co. 33: 395, 112 Pac. 789, 49 Colo. 244. 2. Restoration of benefits received. (See also same heading in Digest L.R.A. 1-70.) Necessity of returning money paid for re- lease before bringing action for injury, .see RELEASE, 2-4. Necessity of refunding purchase price on discovering shortage in grain pur- chased, see SALE, 137. 25. Tender of the amount received is not a condition precedent to the recovery by a stockholder of a corporation, from a Digest 1-52 L.R.A.(N.S.) director who fraudulently procures the stock for less than it is worth, of the bal- ance of its true value. Black v. Simpson, 46: 137, 77 S. E. 1023, 94 S. C. 312. 26. Stockholders of a corporation are not, in order to maintain an action for an accounting against the corporation and strangers to whom corporate stock is al- leged to have been fraudulently issued in exchange for securities belonging to such persons, bound to offer to return the secu- rities so received. Continental Securities Co. v. Belmont, 51: 112, 99 N. E. 138, 206 N. Y. 7. 27. Where a defendant, by the use of fraudulent representations, induces a pro- posed entryman of government land to be- lieve that the land he desires has been en- tered, but that the defendant will secure a relinquishment of that entry if paid a sum of money, and the money is paid in good faith, upon the strength of those repre- sentations, the entryman, upon discovering the truth, may maintain a suit in the na- ture of an action for money had and re- ceived, and will not be required to abandon the land as a condition precedent to main- taining the action. Martin v. Hutton, 36: 602, 132 N. W. 727, 90 Neb. 34. 3. Demand; notice. (See also same heading in Digest L.R.A. 1-10.) Demand. As condition precedent to action by stock- holder, see CORPORATIONS, 280, 281. In mandamus suit, see MANDAMUS, 100. In suit against city, see MUNICIPAL COR- PORATIONS, II. g, 5. In replevin suit, see REPLEVIN, I. c. In trover, see TROVER, I. c. 28. Where a surety on a fidelity bond undertakes to respond upon condition that demand be first made upon the principal, such demand is a part of the contract, and must be alleged and proved. Feder Silber- berg Co. v. McNeil, 49: 458, 133 Pac. 975, 18 N. M. 44. 29. No demand is necessary before insti- tution of a suit to recover money collected by defendant for plaintiff. Young v. Kim- ber, 28: 626, 98 Pac. 1132, 44 Colo. 448. (Annotated) 30. Demand and refusal to pay are not necessary to perfect a cause of action against an attorney who, having made a collection for a client, fails to remit the proceeds to the client within a reasonable time after receiving payment, or to notify the latter of hia readiness to pay. Ott v. Hood, 44: 524. 139 N. W. 762, 152 Wis. 97. Notice. Notice of injuries by defective street, see HIGHWAYS, IV. d, 2. To master as condition to action by in- jured servant, see MASTER AND SERV- ANT, 186-191; NOTICE, 62. In suit against city, see MUNICIPAL COR- PORATIONS, II. g, 5. ACTION OR SUIT, 1. c. 19 31. Notice need not be alleged to sustain an action for actual damages against the publisher of a libel, where the statute pro- vides that, before the action for libel shall be brought,, the aggrieved party shall serve notice on the publisher specifying the false statements; and if, on the trial, it shall ap- pear that the publication was by mistake, or was retracted, the recovery shall be of actual damages only. Comer v. Age-Herald Pub. Co. 13:525, 44 So. 673, 151 Ala. 613. (Annotated) c. Defenses. (See also same heading in Digest L.R.A. 1-70.J In action on account stated, see ACCOUNTS, 11. In admiralty, see ADMIRALTY, 6. In action for assault, see ASSAULT AND BATTERY, II.; CARRIERS, 139, 140. In disbarment proceedings, see ATTORNEYS, 26-29. In action to hold collecting bank liable for money paid on check, see BANKS, 154. In action on negotiable paper, see BILLS AND NOTES, VI. c. In action on bond, see BONDS, III. b, 8. In action for breach of promise, see BREACH OF PROMISE, II. In action against county for injury by de- fects in bridge, see BRIDGES, 18, 20- 23. In action to recover penalty for delay in transportation, see CARRIERS, 893. In action against drawer of check, see CHECKS, 45. Ill action to quiet title, see CLOUD ON TITLE, II. In proceeding for contempt, see CONTEMPT, 16. In suit by corporation to compel repayment by promoters of illegal profits, see COR- PORATIONS, 195, 197. In action by unauthorized -foreign corpora- tion to enforce contract, see CORPORA- TIONS, 430-442. In action for breach of covenant, see COVE- NANTS AND CONDITIONS, 37. In action for causing death, see DEATH, IV. In suit for divorce, see DIVORCE AND SEPA- RATION, IV. In ejectment, see EJECTMENT, II. b. In condemnation proceedings, see EMINENT DOMAIN, 136-148. In action on executor's bond, see EXECU- TORS AND ADMINISTRATORS, 79. In action for false imprisonment, see FALSE IMPRISONMENT, III. In action for fraud, see FRAUD AND DE- CEIT, 72. In suit for abandonment of wife, see HUS- BAND AND WIFE, 208, 209. In action on insurance policy, see INSUR- ANCE, VI. e. In action on premium note, see INSURANCE, 424. In action for slander, see LIBEL AND SLAN- DER, III. c. Digest 1-52 L.R.A.CN.S.) In mandamus case, see MANDAMUS, II. d. In action for rent under v oil and gas lease, see MINES, 70. In foreclosure suit, see MORTGAGE, VI. d. In proceeding to abate nuisance, see NUI- SANCES, II. d. In replevin suit, see REPLEVIN, II. b. In action by vendee for shortage in qual- ity of goods delivered, see SALE, 137, 138. In action for specific performance, see SPECIFIC PERFORMANCE. In action for infringement of trademarks, see TRADEMARKS, V. In action for trespass, see TRESPASS, I. c. In trover, see TROVER, 44-49. To liability on contract, generally, see CON- TRACTS, VI. b. To liability of stockholder, see CORPORA- TIONS, 348-353, 355, 364. To local improvement assessments, see COR- PORATIONS, 435, 436; PUBLIC IMPROVE- MENTS, 74, 75. To liability for interfering with extinguish- ment of fires, see FIRES, 24. To liability for obstruction of sidewalk, see HIGHWAYS, 80. To enforcement of bid at judicial sale, see JUDICIAL SALE, 12-14. To collection of taxes, see TAXES, 152. To liability of township trustees for failure to provide for collection of tax to pay contractor, see TOWNS, 13, 14. Discharge in bankruptcy as, see BANK- RUPTCY, V. Maintenance as, see CHAMPERTY AND MAIN- TENANCE. Illegality of contract as, see CONTRACTS, III. g. Equitable estoppel as, see ESTOPPEL, III. Laches as, see ESTOPPEL, III. g; LIMITA- TION OF ACTIONS, I. b. Materialman's failure to give notice of claim to surety on building contract- or's bond as, see EVIDENCE, 543. Infancy as, see INFANTS, I. d. Fraudulent use of trademark as, see IN- JUNCTION, 401. Fact that plaintiff is member of illegal combination as defense to suit, see MO- NOPOLY AND COMBINATIONS, 52. Contributory negligence as, see NEGLI- GENCE, II. Legislative authority as, see NUISANCES, 189-203; RAILROADS, 25, 126. Violation of Sunday law as, see SUNDAY, V. Usury as, sec USURY, II. Pendency of other action as defense to ac- tion to vacate judgment see JUDGMENT, ' 330. Effect of account stated on, see ACCOUNTS, 10. Review on appeal of refusal to permit amendment to set up, see APPEAL AND ERROR, 598. Raising defense for first time on appeal, see APPEAL AND ERROR, VII. j. Error in entertaining motion to strike out separate defense, see APPEAL AND ER- ROR, 1085. Presumption and burden of proof as to, see EVIDENCE, II. c. 20 ACTION OR SUIT, I. c. Negation of defense in pleading, see PLEAD- ING, II. e. Necessity of plea'ding defense, see PLEAD- ING, III. b. Sufficiency of plea to raise defense, see PLEADING, III. d. Pleading inconsistent defenses, see PLEAD- ING, 27, 28, 143. Striking out immaterial defense, see PLEAD- ING, 156. Sufficiency of affidavit of defense, see PLEADING, 480, 506. Vested right to, see CONSTITUTIONAL LAW, 65. Due process as to, see CONSTITUTIONAL LAW, II. b, 7, b, (2.) Liability for damages caused by unjustified defense, see TOKTS, 9. 32. One in actual possession of personal property, holding the right to that posses- sion and an interest in the property by subrogation to the rights of a su- perior lienor, may prove, in an action at law in the Federal courts in defense of his possession and interest, against a claim of an inferior lienor, the facts which estab- lish the subrogation. Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & L. Co. 45: 1137, 202 Fed. 692, 121 C. C. A. 102. 33. The fact that a ditch used in lower- ing a lake situated on the land of the de- fendant, and a dam located at the junction of the river into which it flows for the pur- pose of preventing a back flow of water, are situated upon lands owned by other persons, is no defense to an action for the negligent maintenance of the dam, where it is shown that the defendant freely exer- cised the use, control, operation, and management thereof in the prosecution of his own private business. Christensen v. Omaha Ice & Cold Storage Co. 41: 1221, 138 N. W. 141, 92 Neb. 245. 34. It is no defense to an action by mort- gagees against a stranger for causing the loss of their lien upon some of the mort- gaged property that it still covers an amount sufficient to secure the payment of the mortgage debt. Bank of Havelock v. Western U. Teleg. Co. 4: 181, 141 Fed. 522, 72 C. C. A. 580. Wlio may set up generally. Right of defendant in attachment proceed- ing to deny ownership of property at- tached, see ATTACHMENT, 48. Who may set up defense of champerty, see CHAMPERTY AND MAINTENANCE, 5. .Right of party to illegal contract to set up illegality as defense, see CONTRACTS, 564. Right to set up ultra vires act of corpora- tion as, see CORPORATIONS, IV. d, 2. Who may attack existence of corporation, see EMINENT DOMAIN, 137, 139. 35. A purchaser of land may rely upon the statute of frauds to invalidate a parol contract for its conveyance made between his vendor and one claiming adversely un- der such parol contract. Collins v. Lackey, 40: 883, 123 Pac. 1118, 31 Okla. 776. (Annotated) Digest 1-52 L,.R.A.(N.S.) 35a. One socking to set aside for fraud a contract by which he transferred corporate stock to his attorney, in consideration of the latter's securing money to relieve the business from financial difficulties, cannot set up usury in a transaction by which the attorney transferred a portion of the stock to persons who lent the money which he undertook to secure. Winsor v. Common- wealth Coal Co. 33: 63, 114 Pac. 908, 6S Wash. 62. Worthlessness of judgment. 36. The fact that a prospective judg- ment against a defendant in an action at law will be worthless is no defense to the action. Fleming v. Fairmont &, M. R. Co. 49: 155, 79 S. E. 826, 72 W. Va. 835. Nuisance. 37. One coasting in a public street who is injured by another's negligence is not prevented from recovering for the injury because his own act constituted a public nuisance. Lynch v. Public Service R. Co. (N. J. Err. & App.) 42: 865, 83 Atl. 382, 82 N. J. L. 712. (Annotated) Violation of law by plaintiff. 38. A statute making the operation of an unregistered motor vehicle upon the public highways of the state a criminal of- fense, but which does not provide expressly or by implication that no recovery shall be had for a negligent injury to such an un- licensed vehicle, does not modify the statu- tory provisions relative to the liability of railroad companies for negligent injur r to- others, so as to prevent recovery for the destruction of such an unlicensed vehicle. Atlantic Coast Line R. Co. v. Wier, 41 : 307, 58 So. 641, 63 Fla. 69. (Annotated) 39. That money had been wagered in violation of law upon a race during which one of the participants was injured because of the presence of a dog upon the race track will not relieve the owner of the dog and the parties conducting the race from liability for wrongfully and negligently permitting the dog to trespass upon the race track. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. Act or fault of plaintiff. 40. That a passenger on a street car rode on the platform when he might have ridden inside the car will not preclude his hold- ing the company liable for an injury in- flicted upon him while he was attempting to alight from the car at his destination. Elliott v. Seattle, R. & S. R. Co. 89: 608, 122 Pac. 614, 68 Wash. 129. Right of other person generally. 41. The omission of a telephone com- pany to obtain a franchise from a town- ship as required by law for the use of its highways is no defense to an action against a subscriber for rental. Union Teleph. Co. v. Ingersoll, 52: 713, 144 N. W. 500, 178 Mich. 187 (Annotated) 42. A foreien railroad company having a traffic contract with a local company can- not defeat an attachment of its cars within the state, because of the rights of the local company under the contract, where the lat- ter is not made a party to the proceeding. ACTION OR SUIT, I. c. 21 De Rochemont v. New York C. & H. R. R. Co. 29: 529, 71 Atl. 868, 75 N. H. 158. 43. The question of the falsity of an- swers in the application for insurance can- not be raised in a contest over the right to the proceeds which have been paid by the insurer. Bendet v. Ellis, 18: 114, 111 S. W. 795, 120 Tenn. 277. 44. The foreclosure of a chattel mort- gage on an undivided interest in personal property, which is acquiesced in by the mortgagor, cannot be attacked by one hold- ing merely a cotenancy interest therein, so as to enable him to set up lack of title as a defense to a suit by the mortgagee, who purchased upon the foreclosure sale, to par- tition such personal property. Julian v. Yeoman, 27: 618, 106 Pac. 956, 25 Okla. 448. 45. In the absence of fraud, a surety who signs a note as comaker cannot raise the defense that his comaker did not be- come bound on the note, if the objection is not raised by the latter. Young v. Perry, 52: 1146, 65 So. 817, Ala. . Unconstitutioiiality of statute or ord- inance as to other person. Right to attack constitutionality of statute in mandamus proceedings, see MANDA- MUS, 128-134. Plaintiff's right to attack unconstitutional- ity of statute, see STATUTES, 28-34. 46. One not shown to be a nonresident cannot raise the question whether or not a municipal ordinance discriminates against citizens of other states. Schmidt v. In- dianapolis, 14: 787, 80 N. E. 632, 168 Ind. 31. 47. An insurance company has no right to raise, so as to invoke the aid of a court whose jurisdiction depends upon the pres- ence of a constitutional question in the case, the question of the constitutionality of a provision in a statute depriving it of the defense of suicide in an action on the policy, in favor of a citizen of the state, on the theory that an unconstitutional dis- crimination is thereby made against per- sons not citizens. Ordelheide v. Modern Brotherhood of A. 32: 965, 125 S. W. 1105, 226 Mo. 203. 48. A common carrier cannot complain, in an action brought to recover a statutory penalty for failure promptly to transport certain live stock, that the statute fixing the penalty contravenes the constitutional provi- sion that "the liability of a railroad corpora- tion as common carrier shall never be limit- ed," in that the shipper might thereby be prevented from recovering his actual dam- ages, at least in the absence of proof that plaintiff's recovery would be more than his actual damage, for which defendant would be liable at common law, since the constitu- tionality of statutes cannot be tested at the suit of one who is not shown to have been injured thereby. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 3045, 85 Neb. 586. 49. A common carrier cannot complain that a statute prescribing a minimum rate Digest 152 L.R.A.(N.S.) of speed at which live stock may be trans- ported between intrastate points, and pro- viding a penalty for violation thereof, does not contain any exemptions, or state what, if any, defenses may or may not be avail- able in an action brought thereon, where it has not presented and maintained, or offered to maintain, a legitimate defense, and been denied that right. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. 50. Children of a decedent, who, because of their relationship, are assessed at the lowest rate fixed by N. Y. Laws 1896, chap. 908, imposing a tax when property is trans- ferred by deed intended to take effect at the death of the grantor, cannot urge that such statute operates to deny the equal pro- tection of the laws, because transfers to collaterals and strangers in blood are taxed a higher rate. Keeney v. Comptroller, 38: 1139, 32 Sup. Ct. Rep. 105, 222 U. S. 525, 56 L. ed. 299. 51. A savings bank, so far, at least, as its rights are involved in those of its depos- itors, may raise the objection that property is taken without due process of law by Mass. Laws 1907, chap. 340, providing that deposits which have remained inactive and unclaimed for thirty years, where the claim- ant is unknown or the depositor cannot be found, shall be paid to the treasurer and receiver general, to be held by him as trus- tee for the true owner or his legal repre- sentatives. Provident Inst. for Sav. v. Ma- lone, 34: 1129, 31 Sup. Ct. Rep. 661, 221 U. S. 660, 55 L. ed. 899. 52. Only hotel keepers having less than twenty-five bedrooms are in a position to assail the validity of a discrimination made in favor of larger hotels by a municipal ordinance forbidding the keeping of billiard or pool tables for hire or public use, but permitting hotel keepers having twenty- five or more bedrooms to maintain a billiard or pool room in which their regular and registered guests may play. Murphy v. People, 41: 153, 32 Sup. Ct. Rep. 697, 225 U. S. 623, 56 L. ed. 1229. 53. One charged as the operator of a mill in the town in which he resides, located upon a stream, with violating a statute forbidding the casting of mill refuse into the stream, cannot take advantage of the fact that the statute might be construed as applicable to the owner of a mill remote from the stream, who cast refuse into it in no way connected with his mill, and there- by be unconstitutional, as discriminating against him in favor of others not mill own- ers, who performed a similar act. State v. Haskell, 34: 286, 79 Atl. 852, 84 Vt. 429. 54. A corporation cannot avoid a statute requiring it to pay its employees weekly, on the theory that it deprives the employees of their constitutional right to contract. Lawrence v. Rutland R. Co. 15: 350, 67 Atl. 1091, 80 Vt. 370. (Annotated)' 22 ACTION OR SUIT, II. a. II. Union, choice, or form of remedies, a. Kind; name. (See also same heading in Digest L.R.A. 1-10.) Objecting for first time on appeal to form of action, see APPEAL AND ERROR, 756. Nature of creditor's suit, see BANKRUPTCY, 145. Converting action at law into equitable pro- ceeding by amendment, see PLEADING, 92. As to election of remedies, see ELECTION OF REMEDIES. 55. A suit by a resident taxpayer of a city, in behalf of himself and all others similarly situated, to restrain the carrying into effect of an invalid contract for street improvements, is in the nature of a public proceeding to test the validity of the cor- porate acts involved. El Reno v. Cleveland- Trinidad Paving Co. 27: 650, 107 Pac. 163, 25 Okla. 648. 56. The statutory adaptation of the criminal procedure of circuit courts to a mayor's court is applicable only to criminal proceedings, and does not change the na- ture or character of any case that may be brought before such court. Fortune v. Wilburton, 4: 782, 73 C. C. A. 338, 142 Fed. 114. 57. A suit to ascertain, determine, and decree the extent and priority of a water right and appropriation partakes of the na- ture of an action to quiet title to real es- tate. Taylor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. 58. A suit to prevent a property owner who had granted the second story with covenants requiring the respective parties to keep their portions of the property in repair, and giving each an option in case of rebuilding, from interfering with the right of the grantee to rebuild the second story after the first one has been replaced, is not one for specific performance. Weaver v. Osborne, 38: 706, 134 N. W. 103, 154 Iowa, 10. Civil or criminal. Proceeding for violation of ordinance, see APPEAL AND ERROR, 46, 50. Action for penalty, see APPEAL AND ERROR, 46; TRIAL, 160. Question whether appeal should be taken to civil or criminal court, see APPEAL AND ERROR, 75. Action for disbarment of attorney, see AT- TORNEYS, 5. Contempt proceedings, see CONTEMPT, 13. Suit for abatement of taxes in civil case, see DEPOSITIONS, 3. See also TRIAL, 778, 779. 59. A proceeding to recover a penalty under a statute providing as the punish- ment of one who uses or permits his premises to be used for violating a prohibi- tion law both fine and imprisonment and a penalty, is one for the punishment of an offense. Stout v. State ex rel. Caldwell, 45: 884, 130 Pac. 553, 36 Okla. 744. Digest 152 L.R.A.(N.S.) 60. An action for the disbarment of an attornev at law is a civil proceeding. Re Biggers*, 25: 622, 104 Pac. 1083, 24 Okla. 842. 61. A proceeding to recover a penalty under a statute providing as the punish- ment of one who uses or permits his prem- ises to be used for violating the prohibition law, both fine and imprisonment and a penalty, is in the nature of a civil action, and is governed by the rules of procedure applicable to civil, instead of criminal, cases. Stout v. State ex rcl. Caldwell, 45: 884, 130 Pac. 553, 36 Okla. 744. 62. Prosecutions for violation of a mu- nicipal ordinance regulating the sale of in- toxicating liquors are i-n their nature crim- inal, and the rules for criminal prosecu- tions for misdemeanors are applicable there- to, where the power conferred upon the municipality with respect to the punish- ment of such offense is treated by the stat- ute the same as is the punishment ior statutory misdemeanors generally, and the sole punishment may be imprisonment. Salt Lake City v. Robinson, 35: 610, 116 Pac. 442, 39 Utah, 260. 63. The penalty incurred under the act of March 3, 1903, 4, 5, for inducing an alien to migrate to the United States for the purpose of performing labor there, may be recovered by a civil action of debt, brought by the United States. Hepner v. United States, 27: 739, 29 Sup. Ct. Rep. 474, 53 L. ed. 720, 213 U. S. 103. (Annotated) 64. Although the constitutional remedy by impeachment does not prevent an in- dictment and conviction thereafter, and does not extend beyond a removal from office and a disqualification to hold office during the term for which the officer was elected or appointed, it is in its nature highly penal, and is governed by rules of law applicable to criminal prosecutions. State ex rel. Brickell v. Hasty, 50: 553, 63 So. 559, 184 Ala. 121. 65. An action to compel the father of a bastard to contribute to its support is civil, and not governed by the statute of limita- tions limiting the time for bringing pro- ceedings of a quasi criminal or penal na- ture. State ex rel. Patterson v. Pickering, 40: 144, 136 N. W. 105, 29 S. D. 207. (Annotated) 66. Jurisdiction to compel restoration of stolen property is not conferred ex- clusively on the criminal courts so as to prevent a civil court from entertaining an action to recover its value, by a statute pro- viding that every person convicted of larceny shall restore the thing taken or shall pay the full value thereof, and shall be punished in a specified manner. Downs v. Baltimore, 41 : 255, 76 Atl. 861, 111 Md. 674. 67. A conviction for disobeying an in- junctional order to punish for acts in con- tempt of the power and dignity of the court is reviewable as a criminal proceeding. Gar- rigan v. United States, 23: 1295, 163 Fed. 16, 89 C. C. A. 494. 68. An action to compel the destruc- ACTION OR SUIT, II. a. tion of pictures taken by police authorities of one accused, but not convicted, of crime, and intended for the rogues' gallery, is not instituted to punish an infraction of the criminal laws. Schulman v. Whitaker, 7: 274, 42 So. 227, 117 La. 704. 69. A proceeding by a part" to a suit to punish the opposing party for contempt in violating an order of court to the injury of petitioner's rights and remedies is civil. Vil- ter Mfg. Co. v. Humphrey, 13: 591, 132 Wis. 587, 112 N. W. 1095. (Annotated) At law or in equity. Statute abolishing distinction between ac- tions at law and in equity, see CONSTI- TUTIONAL LAW, 57. Right to follow remedy at law where stat- ute provides equitable remedy, see ELECTION OF REMEDIES, 12. Proceeding to assess succession tax as one in equity, see TAXES, 350. 70. In the Federal courts the general rule is that the difference between causes of action at law and in equity is sedulous- ly preserved; that a legal cause of action cannot be maintained in equity, nor can equitable causes of action or defenses avail in actions at law; and this although they are permissible in the state courts of the district, and the distinction between the forms of actions at law and suits in equity has been there abolished. Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & L. Co. 45: 1137, 202 Fed. 692, 121 C. C. A- 102. 71. Under a statute making stock- holders individually liable for labor per- formed for the corporation, with a right on the part of any stockholder paying the debt to contribution from the others, a stock- holder who has performed labor for the corporation cannot sue his costockholders at law for compensation, but must bring his suit in equity. Shurlow v. Lewis, 41: 975, 136 N. W. 484, 170 Mich. 493. (Annotated) 72. An action by the receiver of a bank to hold a solvent stockholder thereof lia- ble, for the benefit of creditors of the bank, for the amount of a credit allowed him by the bank while insolvent upon his indebted- ness to the bank, in consideration of a sale by him to the bank of his shares of its own stock, in which the prayer is that the credit be canceled, that the defendant be decreed to hold the amount thereof in trust, and for such other relief as is equitable, is an equi- table proceeding. McGregor v. Fitzpatrick, 25: 50, 65 S. E. 859, 133 Ga. 332. Contract or tort. Federal court following state decision as to right to waive tort and sue on con- tract, see COURTS, 322. Changing action on contract to action in tort by amendment, see PLEADING, 103. Sustaining complaint in action on contract as one for action in tort, see PLEADING, 389. 73. Where the relation between the par- ties to an action has been established by contract, express or implied, if the law im- poses certain duties because of the existence Digest 1-52 L.R.A.(N.S.) of the relationship created, a violation of the contract obligations may be waived and an action in tort maintained for any viola- tion of such imposed duties. Hobbs v. Smith, 34: 697, 115 Pac. 347, 27 Okla. 830. 74. The character of an action as to whether it is in tort or ex contractu must be determined by the nature of the griev- ance, rather than the form of the petition ; and in a suit against a common carrier for a breach of duty in failing to put a pas- senger off at the proper station, the courts are inclined to consider the action as founded in tort, unless a special contract very clearly appears to be made the grava- men of the complaint. Ft. Smith & W. R. Co. v. Ford, 41: 745, 126 Pac. 745, 34 Okla. 575. 75. As a general rule, where a passen- ger is entitled to damages for a breach of the carrier's duty, the remedy is in tort; the wrong done the passenger and the violation of the public duty being the gravamen of the action. Ft. Smith & W. R. Co. v. Ford, 41: 745, 126 Pac. 745, 34 Okla. 575. 76. When the action against a carrier for damages, brought by a passenger, sounds in tort, the allegation of the con- tract of carriage is regarded as a mere in- ducement to the action to show the right to sue as a passenger. Ft. Smith & W. R. Co. v. Ford, 41: 745, 126 Pac. 745, 34 Okla. 575. 77. A petition stating a contract of carriage and charging an injury consequent upon a violation of a duty owing plaintiff, in an action against a common carrier, states a cause of action sounding in tort rather than contract, although it alleges an express contract as an inducement; the gist of the action being defendant's breach of public duty. Ft. Smith & W. R. Co. v. Ford, 41 : 745, 126 Pac. 745, 34 Okla. 575. 78. One for whose use a steamship ticket has been purchased, to be forwarded to him at the place of embarkation, may maintain an action in tort against the carrier for neglect promptly to forward the ticket, so that he is compelled to remain in a strange place without money or friends for several months until it arrives. Zabron v. Cunard S. S. Co. 34: 751, 131 N. W. 18, 151 Iowa, 345. 79. An action against a telegraph com- pany by the undisclosed principal of the addressee of a telegram, to recover damages resulting from the delivery of a false tele- gram, is an action of tort for a false repre- sentation in the nature of a false warranty, caused by the breach of the duty to exer- cise reasonable care to receive and transmit authorized messages only, and not an ac- tion on a contract. Western U. Teleg. Co. v. Schriver, 4: 678, 141 Fed. 538, 72 C. C. A. 596. 80. An action to recover damages aris- ing from the negligence of an expert em- ployed to audit certain accounts is founded on breach of contract, and not in tort. East Grand Forks v. Steele, 45: 205, 141 N. W. 181, 121 Minn. 296. 24 ACTION OR SUIT, II. b, c. 81. One who undertakes to erect a wind- mill on another's building comes into such a relation to him that he may be held lia- ble in tort in case he does his work so negli- gently that the mill falls and injures the building. Flint & VV. Mfg. Co. v. Beckett, 12: 924, 79 N. E. 503, 167 Ind. 491. 82. Where a tenant loses a stock of merchandise stored in the leased premises, and there was no covenant in the lease whereby the landlord was obligated to re- pair the premises or keep them in repair, and the tenant seeks to recover from the landlord the value of the goods destroyed I by lire occurring in the building, en the ground that the fire was caused by defects in the heating plant or flue, or the negli- gent operation and management of the furnace and heating plant, the recovery, if any shall be had, must be founded upon the law of negligence, and cannot rest upon the theory of an implied contract. Russell v. Little, 42: 363, 126 Pac. 529, 22 Idaho, 429. (Annotated) 83. The right to waive the tort, and sue in contract for conversion of property, does not fail because the property is consumed rather than converted into money. Rey- nolds v. New York Trust Co. 39: 391, 188 Fed. 611, 110 C. C. A. 409. 84. An action to recover money which a corporation was compelled to pay as a tax to replace a payment which had been em- bezzled by the tax collector does not sound in tort so as not to come within a statute giving a court jurisdiction to hear and de- termine claims on contract against the state, although it is alleged that in com- pelling payment of the substituted amount the taxing officers acted illegally and wrongfully. State v. Mutual L. Ins. Co. 42: 256, 93 N. E. 213, 175 Ind. 59. ( Annotated ) 85. A customer injured by a vicious horse let by a liveryman may sue for his damages either for breach of the owner's implied warranty to furnish a safe animal, or in tort for his negligent failure to do so. Conn v. Hunsberger, 25: 372, 73 Atl. 324, 224 Pa. 154. b. Consolidation. (See also same heading in Digest L.R.A. 1-70.) Prejudicial error in, see APPEAL AND ERROR, 1053. 86. Several torts arising from separate levies upon and detention of the same prop- erty may be sued for in a single action brought against the officer making the wrongful levy. Smith v. White, 14: 530, 60 S. E. 404, 63* W. Va. 472. 87. The court has power, in its discre- tion, to consolidate for trial an action to recover for wrongful death caused by the negligence of a railroad company with simi- lar actions for deaths of other persons at the same time, caused in the same way, un- der a statute permitting the court to con- Digest 1-52 I,.R.A.(N.S.) solidate causes of like nature, or relative to the same question, when it appears rea- sonable to do so. Diggs v. Louisville & N. R. Co. 14: 1029, 156 Fed. 564, 84 C. C. A. 330. c. Splitting; successive suits. (See also same heading in Digest L.R.A. 1-70.) 88. The different items of damages re- sulting from a breach of an accountant's contract properly to audit certain accounts do not constitute separate causes of action. East Grand Forks v. Steele, 45: 205, 141 N. W. 181, 121 Minn. 296. 89. Each holding over at the expiration of the term and of yearly periods there- after, by a tenant under a lease for a defi- nite term of years, constitutes a new term, separate and distinct from those that pre- ceded it, so that a recovery for the rent due for one term after that for several has be- come due will not bar an action for the rent which accrued for the other terms. Kennedy v. New York, 25: 847, 89 N. E. 360, 196 N. Y. 19. (Annotated) 90. The damages to be recovered for breach by the landlord of his implied cov- enant to put the lessee in possession at the beginning of the term must be recovered in a single action. Sloan v. Hart, 21: 239, 63 S. E. 1037, 150 N. C. 269. , 91. Upon refusal, by the seller, after par- tial performance, longer to comply with his contract to sell and deliver a quantity of articles in instalments, the buyer cannot keep the contract in force and maintain ac- tions for breaches as they occur, but must recover all his damages in one suit. Pakas v. Hollingshead, 3: 1042, 77 N. E. 40, 184 N. Y. 211. (Annotated) 92. That several items entered in one ac- count were furnished at different times and upon different orders does not avoid the rule that an account cannot be split into differ- ent demands, but that, in case there is an attempt to do so, a judgment upon one por- tion of it will bar further actions; and the fact that the sales were on a credit of thirty days is immaterial if the accounts have all become due and payable when the first ac- tion is brought. Williams-Abbott Electric Co. v. Model Electric Co. 13: 529, 112 N. W. 181, 134 Iowa, 665. (Annotated) 93. Successive actions may be main- tained from time to time as Hamages and loss occur, by a mill owner for injuries to his water power by deposits of sand caused by a boom erected in the stream ; and he is not compelled to sue for present and pro- spective damages in one suit. Pickens v. Coal River Boom & T. Co. 24: 354, 65 S. E. 865, 66 W. Va. 10. 94. Under the rule of decision in the Indian territory prior to statehood, where structures and appurtenances contributing to an injury to land were of a permanent nature, and their injurious use continued for a. long number of years, without effort to abate, all damages for injury to adjacent lands, both present and prospective, were ACTION OR SUIT, II. d. recoverable in a single action. Choctaw, 0. & G. R. Co. v. Drew, 44: 38, 130 Pac. 1149, 37 Okla. 396. 95. There is no splitting of the cause of action against a railroad company for causing loss of a building by fire, for which it pays the owner the amount over and above what is covered by insurance, al- though the insurance company brings the action to compel the railroad company to pay it merely the portion of the loss which it had been, compelled to pay under its contract. British American Assur. Co. v. Colorado & S. R. Co. 41: 1202, 125 Pac. 508, 1135, 52 Colo. 589. 96. Where a complainant presents in a state court a part of the existing and known facts which it claims entitles it to an order restraining the prosecution of suits upon the same causes of action in two different courts, and fails to secure it, and subsequently presents by another bill in the Federal court the other part of those facts, thereby splitting its cause of action, it exhibits a lack of diligence fatal to the second application. Guard- ian Trust Co. v. Kansas City S. R. Co. 28: 620, 171 Fed. 43, 96 C. C. A. 285. By servant wrongfully dismissed. 97. A wrongfully discharged employee cannot maintain successive actions for wages accruing during the remaining term of the contract, but one recovery will bar further action. Carmean v. North Ameri- can Transp. & Trading Co. 8: 595, 88 Pac. 834, 45 Wash. 446. 98. But one action lies in case of the wrongful discharge of an employee before expiration of the period for which he was employed, and all damages must be recov- ered in it. Doherty v. Schipper & Block, 34: 557, 95 N. E. 74, 250 111. 128. 99. Recovery of judgment for a week's wages, followed by its satisfaction, by a person wrongfully discharged from service before expiration of the term, is a bar to any further recovery for the remainder of the period for which he was employed. Doherty v. Schipper & Block, 34: 557, 95 N. E. 74, 250 111. 128. 100. A judgment in an action for monthly wages bars subsequent recovery for all peri- ods which had been completed when the ac- tion was commenced. Smith v. Cashie & C. R. & Lumber Co. 5: 439, 54 S. E. 788, 142 N. C. 26. 101. A servant employed for an entire term at wages payable in instalments at stated intervals may, upon being wrong- fully discharged, treat the contract as exist- ing, and sue at each period of payment for the salary then due. Smith v. Cashie & C. R. & Lumber Co. 5: 439, 54 S. E. 788, 142 N. C. 26. Against stockholder. 102. The contract of a stockholder to pay the debts of the corporation is the basis of a double liability imposed upon him by statute to pay the corporate debts in the event of the dissolution of the cor- poration, or to pay them in the case of an unsatisfied judgment against it; and the Digest 1-52 L.R.A.(N.S.) cause of action to enforce it is indivisible, whether it is brought upon one or several of the shares of stock owned by the stock- holder. Harrison v. Remington Paper Co. 3:954, 140 Fed. 385, 72 C. C. A. 405. For injuries by seepage. 103. Seepage to the injury of neighboring property from an irrigation ditch con- structed under authority of law, in the ordinary and usual manner, cannot be re- garded as making the ditch a nuisance, for which successive actions can be brought un- til it is abated. Middlekamp v. Bessemer Irrig. Ditch Co. 23: 795, 103 Pac. 280, 46 Colo. 102. Injuries to person and to property. Action for injury to land by wrongful con- struction of railway thereon, see TRIAL, 996. 104. Where one suffers injuries to his per- son, and also to his property, from the same negligent act of the defendant, two distinct causes of action exist, and a recovery for the injury to the property is not a bar to a subsequent action for the injury to the per- son. Ochs v. Public Service R. Co. (N. J. Err. & App.) 36: 240, 80 Atl. 495, .81 N. J. L. 661. (Annotated) 105. Settlement of an action for loss of baggage by a carrier will preclude the main- tenance of another action for mental an- guish caused by delay in its delivery. Eller v. Carolina & W. R. Co. 3: 225, 52 S. E. 305, 140 N. C. 140. 106. An insurer of an automobile who had, in accordance with a provision of the policy, become subrogated to the claim of the owner for damages thereto against a street railway company before the institu- tion by such owner of a suit for personal injuries growing out of the same accident, in which a judgment has been recovered, is not precluded thereby from maintaining an action. Underwriters at Lloyd's Ins. Co. v. Vicksburg Traction Co. 51: 319, 63 So. 455 4 Miss. . (Annotated) $. Joinder. (See also same heading and Pleading, I. it, in Digest L.R.A. 1-~0.) Sufficiency of objection to reach misjoimlei of actions, see APPEAL AND ERROR, 316, Raising question of misjoinder for first time on appeal, see APPEAL AND ERROR, 760. Error in failing to dismiss suit for mis- joinder, see APPEAL AND ERROR, 1050. Joinder of, to prevent multiplicity of suits, see EQUITY, I. g. Joinder of parties, see PARTIES, I. b; II. b. Demurrer to declaration for misjoinder, see PLEADING, 592. 107. A cause of action for the loss of goods intrusted to a warehouseman may be set up in two counts, one upon an express agreement as to the character of the ware- house and the care to be exercised, the other upon the implied undertaking of the ware- houseman to exercise reasonable care in 26 ACTION OR SUIT, II. d. providing an adequate and uafe place for the storage of the goods. Locke v. Wiley, 24: 1117, 105 Pac. 11, 81 Kan. 143. 108. Under a statutory provision that several causes of action may be united in the same petition where they arise out of the same .transaction or transactions con- nected with the same subject of action, a petition in an action against a bailee for loss of a piano, which alleges that the loss was caused by the defendant's negligence in failing to insure the piano as agreed, and also that the loss was caused by his negli- gence in causing the fire in which the piano was destroyed, but which asks only for a single judgment equal to the value of the piano, contains no improper joinder, as only a single cause of action is stated. Stone v. Case, 43: 1168, 124 Pac. 960, 34 Okla. 5. 109. The physical presence of the injured person is not necessary to effect a trans- action within the meaning of a statute permitting the joinder of causes of action arising out of the same transaction, or transactions connected with the same sub- ject of action. Me Arthur v. Moffett, 33: 264, 128 N. W. 445, 143 Wis. 564. 110. In possessory and proprietary ac- tions, whether involving real or personal property, the subject of action, causes aris- ing out of transactions concerning which may, by statute, be joined in a single ac- tion, is composed of the plaintiff's primary right, together with the specific property it- self. McArthur v. Moffett, 33: 264, 128 N. W. 445, 143 Wis. 564. 111. Causes of action in tort may be joined, in separate counts, in the same peti- tion, with causes of action in contract, when they all arise out of the same transaction, or transactions connected with the same subject of action, and affect all the parties to the action. Aylesbury Mercantile Co. v. Fitch, 23: 573, 99 Pac. 1089, 22 Okla. 475. 132. A single right of action arising from several concurrent acts of negligence may be united in the same complaint, under Minn. Rev. Laws 1905, 4154, which permits sev- eral causes of action to.be joined in the same pleading when they arise out of the same transaction or transactions. Mayberry v. Northern P. R. Co. 12: 675, 110 N. W. 356, 100 Minn. 79. 113. A cause of action for refusal to pay instalments due on a building contract can- not be united in the same count with a cause for refusal to permit the contractor to comply with his contract and finish the work after the completed portion has been destroyed by act of God. Milske v. Steiner Mantel Co. 5: 1105, 63 Atl. 471, 103 Md. 235. 114. A cause of action against two jointly for obstructing a stream cannot be joined with other causes against such persons and others severally for acts contributing to such obstruction. William Tackaberry Co. v. Sioux City Service Co. 40: 102, 132 N. W. 945, 134 N. W. 1064, 154 Iowa, 358. ] 15. Actions to recover damages for the suffering which one undergoes before death because of another's negligence, and for the Digest 1-52 I*R.A.(N.S.) death itself, cannot be joined. Hendricks v. American Express Co. 32: 867, 128 S. W. 10*), 138 Ky. 704. (Annotated) 116. Claims for the benefit of the widow and next of kin of one killed by another's wrongful act, and for the benefit of his estate, may be joined in one action to hold the one responsible for the wrong liable for the damages. Tillar v. Reynolds, 30: 1043, 131 S. W. 969, 96 Ark. 358. 117. A municipal corporation and the owner of a lot abutting upon a street are improperly joined in an action to recover for injuries resulting to a traveler on the street from falling over a retaining wall, on the lot, where the allegation against the lot owner is that he negligently maintained upon his premises a dangerous pit, which encroached upon a sidewalk, without any barrier or other protection to warn persons using the sidewalk or to prevent them from falling into the pit, and the allegation against the municipality is that it wrongful- ly permitted the sidewalk to be in a danger- ous condition without any such barrier, and that at the time of plaintiff's injury it neg- ligently allowed an electric light near the place of the accident to be unlighted, since an entirely different cause of action is al- leged against each defendant. Mineral City v. Gilbow, 25: 627, 90 N. E. 800, 81 Ohio St. 263. 118. A joint action may be maintained against the owner of a railway track upon which its passenger was injured by colli- sion of the car in which he was riding with the car of another carrying company admitted to joint use of its tracks, and such other company, in order that the liability for compensation to the injured passenger may be fixed in one action upon the company whose negligence occasioned the injury. Maumee Valley R. & L. Co. v. Montgomery, 26: 987, 91 N. E. 181, 81 Ohio St. 426. 119. Although a claim for expenses in at- tending school, expenses pending suit, and for delay in being prepared for business cannot be joined with a claim for the return of money paid on an agreement to teach the plaintiff in certain lines of instruction until he is proficient therein on the ground that such contract has been rescinded, the entire suit should not be dismissed, but such formal claims for damages should be strick- en out, and the case left to stand on the suit for the return of the money so paid out. Timmerman v. Stanley, i: 379, 51 S. E. 760, 123 Ga. 850. 120. Where a landlord has sued out a wrongful attachment against his tenant, and levied the same upon the goods of the ten- ant situated in the leased premises, which were used as a hotel, and also closed the building, the damages arising from the loss of profits of the business and those arising by reason of the taking of the property constitute a single cause of action which may be stat d in one count where the acts complained of took place as part of a sin- gle transaction. Wellington v. Spencer, 46: 469, 132 Pac. 675, 37 Okla. 461. 121. Allegations of injury to health may be inserted in a complaint for injuries to ACTION OR SUIT, II. e, III. 27 real estate by the maintenance of a nui- sance, as specifications of damage done to the property as a place of residence. Louis- ville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. Legal and equitable actions. 122. A statutory action to quiet title and a common-law action to recover damages for trespass upon the property involved may be joined under a statute permitting the joinder of causes which arise out of trans- actions connected with the same subject of action. McArthur v. Moffett. 33: 264, 128 N. W. 445, 143 Wis. 564. 123. A claim for damages for injury to business, reputation, and credit of the grantee of a mortgagor, by reason of an il- legal sale under the mortgage, cannot be in- cluded in a bill against the mortgagee for an accounting after a subsequent foreclo- sure ; and the court will not take cognizance of it, although it grants the accounting. Manville Covering Co. v. Babcock, 14: 900, 68 Atl. 421, 28 R. I. 496. (Annotated) e. Multifarious-ness. (See also same heading and Pleading, I. u, in Digest L.R.A. 1-10.) 124. A bill for divorce is not rendered multifarious by joining therein a prayer for a conveyance by the husband to the wife of lands paid for with her funds the title to which was taken in his name. Singer v. Singer, 29: 819, 51 So. 755, 165 Ala. 144. (Annotated) 125. A bill by a stockholder of a corpora- tion is multifarious which seeks to recover on behalf of the corporation against its directors for fraudulent management of its affairs, against another corporation to re- cover profits made by it on business which should have come to the former, and by such stockholder individually against the di- rectors of the two corporations to recover for depreciation in the value of the stock of the former. Kelly v. Thomas, 51: 122, 83 Atl. 307, 234 Pa. 419. 126. A bill seeking to hold several direct- ors of a bank liable for losses caused by unlawful loans and dividends extending over a series of years, during some of which a portion of the defendants were not mem- bers of the board of directors, and were in no way responsible for the losses, is multi- farious. Emerson v. Gaither, 8: 738, 64 Atl. 26, 103 Md. 564. 127. A bill to enjoin the omission from a publication which purports to give, for the benefit of customers, a complete list of all reputable persons engaged in a certain line of business in a certain city, of the name of a reputable person so engaged, is not multifarious in joining as defendants the publisher and the business men who induce the omission, by threats and false state- ments, for the advantage of their own busi- ness. Davis v. New England R. Pub. Co. 25:1024, 89 N. E. 565, 203 Mass. 470. Digest 1-52 L.R.A.(N.S.) 128. A bill in equity to cancel deeds to clear cloud from title, and to obtain an ac- counting for timber taken from the lands, is not bad for multifariousness because two tracts are involved, where the demand as to each is founded upon the same title, and the primary relief sought as to each is the same, and all the defendants are alike in- terested in the vital questions presented, title, appropriateness of the remedy, and sufficiency of the bill, and the only differ- ences relate to the parties defendant and the subsidiary matter of accounting. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 129. A defendant in a bill charging sev- eral acts of wrongdoing, in all of which he was concerned, cannot object because others are made defendants who had no part in a portion of the illegal transactions. Emer- son v. Gaither, 8: 738, 64 Atl. 26, 103 Md. 564. 130. An objection that a bill to enjoin the maintenance of obstructions in a passage- way and the discharge into it of foul air is multifarious on the ground that it charges both a trespass and a nuisance is waived by going to trial on the merits. Vaughan v. Bridgha*m, 9: 695, 79 N. E. 739, 193 Mass. 392. /. Identity. Of cause of action to enforce stockholders' liability, see CORPORATIONS, 359. 131. The test of the identity of causes of action is the identity of the facts essential to their maintenance. Harrison v. Reming- ton Paper Co. 3: 954, 140 Fed. 385, 72 C. C. A. 405. III. Commencement and termination. Serving notice of action on city as com- mencement of, see EVIDENCE, 1347. When action is commenced so as to sus- pend running of statute of limitations, see LIMITATION OF ACTIONS, 285-289. 132. Where, by statute, a right of action for personal injuries survives the death of the person injured, and the right of action for death is not an independent one in fa- vor of survivors, but is a survival of a right belonging to the deceased, an amend- ment by an administrator after the death of the person injured, of an action brought by him before his death, claiming addi- tional damages for the death, does not con- stitute an abandonment of the original cause of action for one not originating un- til after the action was begun, so as to pre- clude a recovery in such action. Kling v. Torello, 46: 930, 87 Atl. 987, 87 Conn. 301. 28 ACTIVE TRUST ADDITIONAL SERVITUDE. ACTIVE TRUST. Right to vote stock of corporation as, see CORPORATIONS, 379. ACT OF BANKRUPTCY. What is, see BANKRUPTCY, 5. ACT OF GOD. Snow storm and wind as, see CARRIERS, 209. Destruction of building by gradual decay as, see LANDLORD AND TENANT, 22. Razing of building by public authorities, as, see LANDLORD AND TENANT, 23. Injury to passengers by, see CARRIERS, 209, 235, 216. Carrier's liability for loss of, or injury to, goods by, see CARRIERS, 814, 866-869, 894. As ground of nonperformance of contract, see CONTRACTS, IV. b, 2. As excuse for breach of contract, see CON- TRACTS, 635-637. Burden of proof as to, see EVIDENCE, 100, 381. Covenant of landlord to rebuild in case of destruction of building by, see LAND- LORD AND TENANT, 22, 23. Effect of application of statute limiting hours of labor, see MASTER AND SERV- ANT, 90. As proximate cause, see PROXIMATE CAUSE, II. Liability of railroad company for flood caused by, see RAILROADS, 302. Question for jury as to, see TRIAL, 594. 1. The insanity of a railroad engineer who, to secure water for the engine, causes it to be uncoupled from the train and run forward to the water tank, the conductor and fireman accompanying him, and who, on the return trip, runs the engine at ex- cessive speed and collides with the train, causing the death of a horse being trans- ported, cannot be considered as an act of God, under the common-law rule that no excuse avails a common carrier in case of loss unless occasioned by the act of God or the public enemies of the state. Central R. Co. v. Hall, 4: 898, 52 S. E. 679, 124 Ga. 322. (Annotated) 2. Where a cover is put over growing plants and fruit to protect them from ordi- nary and usual cold and frost, and the cover is burned by the negligence of another, in- jury to the growing plants and fruit by ordinary and usual cold and frost that should have been expected at the time and place of the negligence is not such an act of God as will relieve from liability the party who negligently burned the cover. Benedict Pineapple Co. v. Atlantic C. L. R. Co. 20: 92, 46 So. 732, 55 Fla. 514. 3. A rainfall or cloud-burst which has irregularly and infrequently occurred a Digest 1-52 L.R.A.(N.S.) number of times within the memory of man in a particular locality, and has caused heavy freshets in a particular stream, is a thing that can reasonably be expected to oc- cur again, and is therefore not classed as vis major or the "act of God" for which the law of negligence and damages does not hold any human agency responsible. Will- son v. Boise City, 36: 1158, 117 Pac. 115, 20 Idaho, 133. 4. A heavy rainfall or cloud-burst and consequent floods unprecedented and so ex- traordinary as to have been beyond reason- able anticipation, and such as had not been known to occur in the locality for a long series of years, is classed in law as the "act of God," and no liability attaches to any- one for the damages done thereby. Willson v. Boise City, 36: 1158, 117 Pac. 115, 20 Idaho, 133. 5. An ordinary flood is one the repeti- tion of which, though at uncertain inter- vals, might, by the exercise of ordinary diligence in investigating the character and habits of the stream, have been antic- ipated. Chicago, R. I. & P. R. Co. v. Mc- Kone, 42: 709, 127 Pa. 488, 36 Okla. 41. 6. An extraordinary flood is one of those unexpected visitations whose com- ing is not foreseen by the natural course of nature, and whose magnitude and destruc- tiveness could not have been anticipated and prevented by the exercise of ordinary foresight. Chicago, R. I. & P. R. Co. v. McKone, 42:709, 127 Pac. 488, 36 Okla. 41. ACTOR. Liability for injury by fellow actor during frolic, see MASTER AND SERVANT, 858. ACTRESS. Assumption of risk by, see MASTER AND SERVANT, 622. Contributory negligence of, see MASTER AND SERVANT, 643. ACTS OF PARLIAMENT. Adoption of, see COMMON LAW, 5. ADDITIONAL INSURANCE. Condition in insurance policy as to, see Iw- SURANCE, III. e, 1, e. ADDITIONAL SERVITUDE. See EMINENT DOMAIN, IV. ADDRESS. ADDRESS ADMIRALTY, I. ADJUSTMENT. 29 Presumption as to correctness of address on letter, see EVIDENCE, 512. ADEMPTION. Presumption and burden of proof as to, see EVIDENCE, 234. Sufficiency of proof of, see EVIDENCE, 2290. Power of servitor of incompetent to adeem legacies, see INCOMPETENT PERSONS, 32. Of legacy generally, see WILLS, III. 1. ADJOINING OWNERS. Boundaries between, see BOUNDARIES, II. Oral agreement of, to maintain fences, see CONTRACTS, 248. Right of adjoining owner to enforce restric- tive covenant in deed, see COVENANTS AND CONDITIONS, 96, 97. Rights as to trees on boundary line, see HIGHWAYS, 105. Compelling removal of wall by injunction, see INJUNCTION, 22. Right to lateral support, see LATERAL SUP- PORT. Erection on property of pole by means of which access is obtained by burglar to house of neighbor, see NEGLIGENCE, 95. Remedy of, to prevent maintenance of nui- sance, see NUISANCES, II. a. Right to interfere with construction of un- licensed wharf on neighboring premis- es, see NUISANCES, 74. Right to enjoin erection and use of hunting blind on adjoining premises, see NUI- SANCES, 75. Rights in party wall, see PARTY WALL. 1. Upon termination of a lease of land adjoining a parcel owned by a coal miner, upon both of which he has established a culm pile, the miner is not, in case he abandons the culm upon the leased prop- erty, and permits its reclamation by the lessor, bound to retain that upon his side of the division line, under penalty of losing title to it if he permits it to drift over onto the former leasehold. Preston Goal & Improv. Co. v. Raven Run Coal Co. 43: 460, 200 Fed. 405, 118 C. C. A. 491. (Annotated) ADJOURNMENT. Of legislature, see TIME, 4. In general, see CONTINUANCE AND ADJOURN- MENT. ADJUSTER. Waiver or estoppel by acts of, see INSUR- ANCE, V. b, 5, h. Digest 1-52 KR.A.(N.S.) Of claim on insurance policy, see INSUR- ANCE, V. b, 5, h. ADMINISTRATION. Of decedent's estate, see EXECUTORS AND ADMINISTRATORS. ADMIRALTY. I. Jurisdiction, 15. II. Practice; pleading and procedure, 6. Matters as to salvage, see SALVAGE. I. Jurisdiction. (See also same heading vn Digest L.R.A. 1-70.) Jurisdiction of subject-matter gener- ally. 1. Admiralty has jurisdiction of a claim upon a marine insurance policy containing a sue and labor clause, to recover the ex- pense of removing the insured cargo from the vessel to avoid a peril covered by the policy, although it is moved overland. St. Paul F. & M. Ins. Co. v. Pacific Cold Stor- age Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. 2. A collision between a vessel and a supporting pier of a bridge over a navigable water way of the United States, caused by the negligent management of the vessel, and resulting in the collapse of a span of the bridge, and its fall into the stream, is a nonmaritime tort, and a cause of action arising thereon is therefore not within the exclusive admiralty jurisdiction of the Fed- eral courts, but the owner of the bridge may pursue the remedy afforded by a state statute, even though that law gives a lien on the vessel. Martin v. West, 36: 592, 32 Sup. Ct. Rep. 42, 222 U. S. 191, 56 L. ed. 159. 3. The fact that the principal injury to a bridge, through collision of a vessel with it, was caused by the water after it fell, does not take it out of the rule that admiral- ty has no jurisdiction over the matter if the bridge was so connected with the shore that it immediately concerned commerce on land. West v. Martin, 21: 324, 97 Pac. 1102, 51 Wash. 85. (Annotated) Personal injury. 4. The admiralty jurisdiction of a Fed- eral district court extends to a cause of action against a stevedore company arising out of an injury to one of its employees, caused by its negligent failure to secure the hatch covers on a vessel lying in navi- gable waters, whereby such employee was injured while engaged in loading and stow- ing the ship's cargo, since even if it be assumed that the requirement as to locality 30 in tort cases, while indispensable, is not necessarily exclusive, still the wrong which was the subject of the suit was of a maritime nature. Atlantic Transport Co. v. Imbrovek, 51: 1157, 34 Sup. Ct. Rep. 733, 234 U. S. 52, 58 L. ed. 1208. (Annotated) 5. Admiralty has jurisdiction of a suit by a man to. recover damages for loss to him because of the injury to his wife by a collision between two vessels upon one of which she was a passenger. New York & Long Branch S. B. Co. v. Johnson, 42: 640, 195 Fed. 740, 115 C. C. A. 540. //. Practice; pleading and procedure. (See also same heading in Digest L.R.A. 1-70.) Computation of interest to be allowed by ad- miralty court for tort arising within state, see CONFLICT OF LAWS, 134. Review of findings, see APPEAL AND ERROR, VII. 1, 3. 6. In the application in a court of ad- miralty of a state statute giving a right of action for wrongful death, any defense is open which would be open in such state courts. Quinette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. ADMIRALTY, II. ADULTERATION ADOPTED NAME. ADMISSION. To school, see SCHOOLS, I. b. ADMISSIONS. By objecting that claim on which evidence was offered was not denied by plead- ings, see APPEAL AND ERROR, 538. Of attorneys, see ATTORNEYS, I. a. On application for continuance, effect of, see CONTINUANCE AND ADJOURNMENT, IV. Estoppel by, see ESTOPPEL, III. e. By bank officer, see EVIDENCE, 182. As evidence, see EVIDENCE, IX. Failure to attempt to disprove charges in divorce suit as admission of their truth, see JUDGMENT, 179. By pleading or failure to plead, see PLEAD- ING, I. m. By dcmurrpr. see PLEADING, VII. e. By hostile witnesses, see TRIAL, 620. By motion for nonsuit, see TRIAL, 686. See also STIPULATION. 1. The admission of a building con- tractor that he is liable for liquidated dam- ages because of delay in finishing the work is not binding on one whose breach of con- tract to furnish needed material is alleged to have caused the delay, and to have ren- dered the latter liable to make good the loss. Iowa Mfg. Co. v. Sturtevant Mfg. Co. 18: 575, 162 Fed. 460, 89 C. C. A. 346. Digest 1-52 L.R.A.(N.S.) Taking out insurance policy in, see INSUB- ANCE, 85, 86. ADOPTED STATUTE. Construction of, see STATUTES, II. c. ADOPTION. Of common law, see COMMON LAW, 4, 5. Of constitution, see CONSTITUTIONAL LAW, I. a, 1. Of name, see NAME, 5-7. Of statute, see STATUTES, II. c. Of child generally, see PARENT AND CHILD, III. Conflict of laws as to rights of adopted child, see CONFLICT OF LAWS, 122-125. Inheritance by or through adopted children, see DESCENT AND DISTRIBUTION, 16- 23. Evidence to show propriety of permitting adoption of child, see EVIDENCE, 2026. Sufficiency of evidence of undue influence in securing, see EVIDENCE, 2104. Right of adopted child to take under will, see WILLS, 170. AD QUOD DAMNUM PROCEEDINGS. See EMINENT DOMAIN. ADULTERATION. Regulations as to adulteration of food and drugs as interference with commerce, see COMMERCE, 105-110. Conflict of laws as to, see CONFLICT or LAWS, 101. Police power as to, see CONSTITUTIONAL LAW, 728. Place of sale of adulterated confectionery, see SALE, 25, 26. Of linseed oil, see CONSTITUTIONAL LAW, 728. Of milk by servant, master's liability, see DAMAGES, 306. Of food, see FOOD. Of cotton seed meal, see STATUTES, 44. Of kerosene oil, see STATUTES, 251; TRIAL, 228. 1. Labeling a compound as 40 per cent thinner and 60 per cent linseed does not take it out of the operation of the statute forbidding the sale of linseed oil which does not answer the test of purity recognized by the United States Pharmacopoeia. Ameri- can Linseed Oil Co. v. Wheaton, 41: 149, 125 N. VV. 127, 25 S. D. 60. ADULTERY ADVANCEMENTS. 31 ADULTERY. Assault to prevent adultery with wife, see ASSAULT AND BATTERY, 47. Simultaneous trial for abduction and adul- tery, see CRIMINAL LAW, 69. Evidence in prosecution for, see EVIDENCE, 1641. Sufficiency 'of proof of crime, see EVIDENCE, 2401. Effect of acquittal of one jointly charged with another to discharge the other, see JUDGMENT, 223. False charge of, as ground for divorce, see DIVORCE AND SEPARATION, 27-30, 33. Defense to action for divorce on ground of, see DIVORCE AND SEPARATION, 65, 66. Change of alimony because of wife's adul- tery, see DIVORCE AND SEPARATION, 126. Admissibility of confession of, in action for divorce, see EVIDENCE, 1230. Wife's testimony as to confessions of adul- tery by husbard, see EVIDENCE, 1313. Admissibility in wife's suit for divorce of husband's statements as to her adul- tery, see EVIDENCE, 1311. Evidence of other acts of, in action for di- vorce, see EVIDENCE, 1845. Sufficiency of evidence of, in action for di- vorce, see EVIDENCE, 2205, 2206, 2209. Effect of wife's adultery on gift to her by husband, see GIFT, 4. Homicide of wife committing, see HOMICIDE, 62, 69, 72. Effect of husband's adultery on right to re- ly on wife's adultery as defense to ac- tion for support, see HUSBAND AND WIFE, 208, 209. Act forbidding remarriage of person guilty of, see MARRIAGE, 17, 18. Slander in charging, see PLEADING, 363. 1. A man and woman married to other persons, who come into a community where the facts are unknown and live quietly as husband and wife, with nothing to excite suspicion that their intercourse is adulter- ous, cannot be convicted of living in a state of open and notorious adultery. People v. Salmon, 2: 1186, 83 Pac. 42, 148 Cal. 303. (Annotated) 2. Absence of intention to violate a statute fixing a penalty for adultery is no defense to a prosecution for such violation. State v. Westmoreland, 8: 842, 56 S. E. 673, 76 S. C. 145. 3. One who in good faith marries a young woman upon her representation that she is unmarried is not guilty of adultery, although she in fact has a husband living, and he made no inquiries regarding her history except from herself. State v. Au- dette, 18: 527, 70 Atl. 833, 81 Vt. 400. (Annotated) 4. The sexual intercourse of a mar- ried man with a woman other than his wife, whether married or single, is adultery, with- in the meaning of a statute making adultery a misdemeanor. Bashford v. Wells, 18:580, 96 Pac. 663, 78 Kan. 295. (Annotated) 5. The spouse of either of the guilty Digest 1-52 L.R.A.(N.S.) parties is empowered to make complaint against either or both of them under a statute defining adultery as the voluntary sexual intercourse by a married person with a person other than the offender's husband or wife, and providing that no prosecution shall be commenced except on the complaint of the husband or wife. State v. Wesie, 19: 786, 118 N. W. 20, 17 N. D. 567. (Annotated) ADULTS. Adoption of, see PARENT AND CHILD, 32. AD VALOREM TAX. Taxability of privilege of selling intoxicat- ing liquors, see TAXES, 47. ADVANCEMENTS. What property passes under deed convey- ing land from parent to child as ad- vancement, see DEEDS, 61. Presumption of, see EVIDENCE, 567. Parol evidence to show intent, see EVI- DENCE, 974. Evidence of, generally, see EVIDENCE, 1812. Voluntary advancements by devisee, see EXECUTORS AND ADMINISTRATORS, 99. Advancement of funeral expenses, see EX- ECUTORS AND ADMINISTRATORS, 113. 1. The maintenance by a parent of an adult child of unsound mind is not with any view to a portion or settlement in life with- in the meaning of a statute making gifts from parent to child with such view ad- vancements. Grain v. Mallone, 22 11165, H3 S. W. 67, 130 Ky. 125. 2. Money which a parent expends in the care of an adult child of unsound mind can- not be charged against him as an advance- ment in the settlement of the parent's es- tate. Grain v. Mallone, 22: 1165, 113 S. W. 67, 130 Ky. 125. (Annotated) 3. A deed of gift by a father-in-law to his son-in-law, accepted by the latter, which contains a provision clearly indicating that it was the grantor's intention that the prop- erty was to be an advancement to his daugh- ter, the wife of the grantee, is an advance- ment to her, under a statute defining an ad- vancement as any provision by a parent, made to and accepted by a child, out of his estate, during his lifetime, over and above his obligation to maintain and educate, not- withstanding she may have been ignorant not only of the fact that the deed contained such a provision, but even of the existence of the deed altogether. Ireland v. Dyer, 26: 1050, 67 S. E. 195, 133 Ga. 851. (Annotated) 4. A grandchild who comes to the in- heritance of his grandfather jointly with ADVANCES ADVERSE POSSESSION, I. a. other grandchildren, and, by representation, with the brothers and sisters of his father, is bound to collate what has been advanced to his father, unless it appear that the ad- vances were intended as an extra portion. Re Desforges, 52: 689, 64 So. 978, 135 La. 49. 5. In applying the analogy of the stat- ute of distributions to the case of a partial intestacy of the beneficial interest in undis- posed-of residue, the rule of equity is that advances made by the testator in his life- time need not be brought into hotchpot. Re Roby, 4 B. R. C. 256, [1908] 3 Ch. 71. Also Reported in 77 L. J. Ch. N. S. 169, 97 L. T. N. S. 773. (Annotated) 6. Qucere, as to whether the statute providing that an executor shall be a trus- tee for the person or persons who would be entitled to the estate under the statute of distributions in respect of any residue not expressly disposed of, unless it shall ap- pear by the will that he is to take bene- ficially, requires advancements to be brought into hotchpot in distributing such residue. Re Roby, 4 B. R. C. 256, [1908] 1 Ch. 71. Also Reported in 77 L. J. Ch. N. S. 169, 97 L- T. N. S. 773. ADVANCES. By factors, see FACTORS, 3. Interest on, see INTEREST, I. b. Lien for money advanced to pay freight on material, see MECHANICS' LIENS, 49. Right to subrogation of one making, see SUBROGATION. Right of one advancing money to redeem from tax sale, see TAXES, 253, 254. Right of one advancing money to pay tax, see TAXES, 262. Return of advance payments by vendee up- on rescission of contract, see VENDOR AND PURCHASER, 17. ADVERSE CLAIMANTS. Who are, in proceedings to re-establish lost record titles to land, see NOTICE, 16. ADVERSE POSSESSION. I. What constitutes, 178. a. In general, 112. b. On boundary, 1317. c. Vendor and purchaser, 18 2O. d. Landlord and tenant, 21. e. As to dower, mortgage, or trust, 2226. f. As to tenants in common and by entirety, 2731. , g. As to remaindermen or rever- sioners, 3238. h. As to public; higJiway, canal, or tide lands, 3955. Digest 1-52 IR.A.(N.S.) /. continued. i. Color of title, 56-66. j. Claim; hostility, 6771. fc. Extent and kind of possession, 72-78. II. Effect, time required, 79 OO. III. Who may hold adversely, 91. Loss, by abandonment, of title to land ac- quired by, see ABANDONMENT, 1. Error in instructions in action to recover possession, see APPEAL AND ERROR, 1320. Conveyance by rightful owner not in pos- session of land as against adverse hold- er, see CHAMPERTY AND MAINTENANCE, 9. Right to enforce restrictive covenant against one holding adversely to covenantors, see COVENANTS AND CONDITIONS, ] lf>. Equitable jurisdiction of suit to establish title of plaintiff to land held adversely by defendants, see EQUITY, 70, 97. Recognition in equity of title acquired by, see EQUITY, 13?. Estoppel of tenant to set up title by, see ESTOPPEL, 243-250. As to easements by prescription, see EASE- MENTS, II. b; JUDGMENT, 29. Prescriptive right to fish, see FISHERIES, 16, 17. Right to compensation for improvements on land held adversely, see IMPROVE- MENTS. Suit by guardian of insane person to quiet title vesting in ward by adverse pos- session, see INCOMPETENT PERSONS, 2!). Injunction against adverse user, see IN- JUNCTION, 181. As to limitation of action, see LIMITATION OF ACTIONS. Of mining claim, see MINES, 4, 7. Notice of rights from possession of land generally, see NOTICE, II. b. Acquiring right to maintain nuisance by prescription, see NUISANCES, 182, 383. Parties in suit by one claiming adversely, see PARTIES, 189. Statute as to conveyance of land held ad- versely, see STATUTES, 336; VENDOR AND PURCHASER, 88. Question for jury as to whether possession was adverse, see TRIAL, 617. Title acquired by, as defective or unmarket- able, see VENDOR AND PURCHASER, 51. Of water, see WATERS, II. k. I. What constitutes, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. No possession can be deemed adverse to a party who has not at the time the right of entry and possession. Webster v. Pittsburg, C. & T. R. Co. 15: 1154, 84 N. E. 592, 78 Ohio St. 87. 2. The statute of limitations does not, for want of adverse actual possession, ap- ADVERSE POSSESSION, I. b, c. 33 ply in favor of one claiming coal in a state of nature, in place, and not developed. Newman v. Newman, 7: 370, 55 S. E. 377, 60 W. Va. 371. 3. The mere use by the public of a strip of lake shore for picnics, strolling, pleasure driving, and hauling sand, will not, no mat- ter how long continued, vest in it the right to continue such use, where the use was not confined to a well-defined line of travel. Poole v. Lake Forest, 23: 809, 87 N. E. 320, 238 111. 305. 4. Possession under a tax-sale certifi- cate is not adverse until the expiration of the redemption period. Salt Lake Invest. Co. \. Fox, 13: 627, 90 Pac. 564, 32 Utah, 301. (Annotated) 5. One who, having conve7ed his home- stead to his daughter to escape payment of a note, secures what he thinks to be a con- veyance, but which is in fact a life lease, takes possession, makes improvements, and treats the land as his own, the daughter ac- knowledging his ownership, may be found to have been in adverse possession. Free- man v. Funk, 46: 487, 117 Pac. 1024, 85 Kan. 473. 6. Defects in the record title of one in possession of real estate in good faith un- der color of title will not prevent his ob- taining a title by adverse possession. Waterman Hall v. Waterman, 4: 776, 77 N. E. 142, 220 111. 569. 7. Ignorance on the part of the true owner of title to real estate does not pre- vent the acquisition of a title adverse to it. Waterman Hall v. Waterman, 4: 776, 77 N. E. 142, 220 111. 569. 8. No title, right, or privilege other than those acquired by the ad quod dam- num proceedings can be secured by the in- stitution of such proceedings to acquire a right to flow land for a millpond followed by possession and use alone, no matter how long continued. Gross v. Jones, 32: 47, 122 N. W. 681, 85 Neb. 77. 9. An upper room in a building may be tin subject of adverse possession. Iredale T. Loudon, 3 B. R. C. 688, 40 Can. S. C. 313. 10. Title to the surface of land verti- cally over a railway tunnel may be acquired by possession, continued for tue requisite length of time, adverse to the railway com- pany, although during such time the rail- way company has been continuously occu- pying and using the tvinnel. Midland R. o. v. Wright, 4 B. R. C. 230, [1901] 1 Ch. 738. Also Reported in 70 L. J. Ch. N. S. 411, 49 Week. Rep. 474, 84 L. T. N. S. 225, 17 Times L. R. 261. Effect of coverture or infancy. 11. Title by adverse possession cannot be acquired against a married woman pend- ing coverture. McCreary v. Coggeshall, 7: 433, 53 S. E. 978, 74 S. C. 42. 12. The statute of limitations is, during the minority of the trustees, prevented from running upon possession being taken under a deed of a married woman for whose use property was conveyed to a trustee with power to sell by joining her in the deed, if at the time of the conveyance the trustee is Digest 1-52 I*R.A.(N.S.) dead and the title has descended to his in- fant heirs. Cameron v. Hicks, 7: 407, 53 S. E. 728, 141 N. C. 21. ft. On boundary. (See also same heading in Digest L.R.A. 1-70.) As to boundaries, generally, see BOUN- DARIES. Sufficiency of evidence to show adverse nature of possession, see EVIDENCE, 2191, 2192. Adverse possession by servant, see LAND- LORD AND TENANT, 6. See also Infra, 22, 23, 51. , 13. The intention determines the ques- tion whether or not the possession of one holding to a fence placed on a mistaken boundary is adverse to the true owner. Ed- wards v. Fleming, 33: 923, 112 Pac. 836, 83 Kan. 653. (Annotated) 14. The encroachment of one, in the erection of his building, on neighboring property through mistake, is not such pos- session as will ripen into title by lapse of time. Davis v. Owen, 13: 728, 58 S. E. 581, 107 Va. 283. 15. One who takes and holds possession of land as far as a division fence, under the mistaken belief that it is his, gains title by adverse possession, if he intends to hold to the fence, claiming the land as his own, with no concession that there may be a mistake as to the location of the true line, nor intention to surrender any land that may not prove to be his. Turner v. Mor- gan, 52: 106, 165 S. W. 684, 158 Ky. 511. 16. The possession beyond his true line, of the grantee of a particular lot, who oc- cupies up to fences set over on his neighbor's property, claiming the ground as part of his lot and basing his possession on no other claim of right, is not adverse to the true owner. Chicago, M. & St. P. R. Co. v. Han- ken, 19: 216, 118 N. W. 527, 140 Iowa, 372. 17. A religious society which is permit- ted by public-school trustees to make use, for religious purposes, of property to which they hold title, cannot, upon such license, base a claim of title by adverse possession to a strip lying between the school property and its owner's fence. Davis v. Owen, 13: 728, 58 S. E. 581. 107 Va. 283. c. Vendor and ptirchaser. (See also same heading in Digest L.R.A, 1-70.) See also Infra, 29-31. 18. A grantor of real property who re- mains in possession of the premises con- veyed cannot set up title as against the grantee or his heirs, by adverse possession, if, by his deed, he has warranted generally the title to the land. Blake v. O'Neal, 16: 1147, 61 S. E. 410, 63 W. Va. 483. 34 ADVERSE POSSESSION, I. d. g. 19. A grantor by warranty deed may ac- quire title against his grantee by adverse possession under color of title, and the rule estopping a grantor from setting up after- acquired title does not apply. Chatham v. Lonsford, 25: 129, 63 S. E. 81, 149 N. C. 303. (Annotated) 20. Title by adverse possession does not begin to run in favor of one who enters upon land under an executory contract for the purchase thereof, until he distinctly and unequivocally repudiates the title of his vendor. De Bergere v. Chaves, 51 : 50, 93 Pac. 762, 14 N. M. 352. d. Landlord and tenant. (See also same heading in Digest L.R.A. 1-70.) 21. Adverse title to property held under a lease may be secured by possession for the requisite period, under a decree in partition which treated the title as a fee. Townsend v. Boyd, 12: 1148, 66 Atl. 1099, 217 Pa. 386. (Annotated) e. As to dower, mortgage, or trust. (See also same heading in Digest L.R.A. 1-10.) Mortgage. Adverse possession by mortgagee, see MOET- GAGE, 165. 22. Where a mortgage is a mere se- curity, the lien of which expires if not en- forced or renewed in six years, failure to en- force the lien against the grantee, from the mortgagor, of land adjoining the mortgaged tract, who took adverse possession of a strip of the mortgaged property along the boundary between the two tracts, until the lien of the mortgage expires as to it, places the grantee in the same situation as though no mortgage had existed, and his possession is adverse from the time it be- gins, and not from the maturity of the mortgage. Thornely v. Andrews, i: 1036, 82 Pac. 899, 40 Wash. 580. (Annotated) 23. Where a mortgage is a mere security, a grantee, from a mortgagor, of land ad- joining the mortgaged premises, who takes possession of a strip beyond the true bound- ary line, cannot be regarded as in adverse possession against the mortgagee until the mortgage becomes due. Thornely v. An- drews, i: 1036, 82 Pac. 899, 40 Wash. 580. (Annotated) Trnat. 24. An adverse title to real estate may be secured against a trust where the pos- session is taken under a conveyance from one claiming adversely to the creator of the trust. Waterman Hall v. Waterman, 4: 776, 77 N. E. 142, 220 111. 569. 25. An executor to whom is devised a life estate in real estate, with directions that after his death the land be sold and the proceeds devoted to charity, does not, by qualifying as executors, undertake to dis- Digest 1-52 L.R.A.(N.S.) charge the duties of the trust so as to pre- clude his securing an adverse title to the property. Com. v. Clark, 9: 750, 83 S. W. 100, 119 Ky. 85. 26. The barring by the statute of limita- tions of a legal estate conveyed to trustees for a term of years by possession held ad- versely to the trust will apply to the whole estate, so as to prevent a recovery by those entitled to possession at the termination of the trust period. Waterman Hall v. Water- man, 4: 776, 77 N. E. 142, 220 111. 569. /. As to tenants in common and by entirety. (See also same heading in Digest L.RA. 1-10.) Possession by grantee of co-life-tenant, see infra, 81. When action to recover rents and profits from cotenants is barred, see LIMI- TATION OF ACTIONS, 256. See also COTENANCY, 7. 27. One tenant by entireties cannot ac- quire title against his cotenant by adverse possession. Alles v. Lyon, 10: 463, 66 Atl. 81, 216 Pa. 604. 28. The possession of one tenant in com- mon does not become adverse to the rights of his cotenant until he publicly and no- toriously, or with the knowledge of the cotenant, asserts hostile title to the prop- erty. Baker v. Clowser, 43: 1056, 138 N. \Y. 837, 158 Iowa, 156. By grantee of cotenant. See also infra, 81. 29. Adverse and exclusive possession by a tenant in common and his grantee of the common property for the statutory period will bar the rights of his cotenant. St. Peter's Church v. Bragaw, 10:633, 56 S. E. 688, 144 N. C. 126. 30. If one cotenant make an executory contract for sale to a stranger, of the en- tire tract, not merely his interest, and the purchaser enter into actual possession, this is an ouster of the other cotenant, and such possession for the period of the stat- ute of limitations will bar his rights, with- out other notice of adverse claim. Lloyd v. Mills, 32: 702, 69 S. E. 1094, 68 W. Va. 241." (Annotated) 31. One entering into possession of real estate under a will and deed from testator's executors purporting to convey the entire tract may secure title by adverse posses- sion against cotenants of the testator. Waterman Hall v. Waterman, 4: 776, 77 N. E. 142, 220 111. 569. g. As to remaindermen or reversioners. (See also same heading in Digest L.R.A.. 1-10.) 32. Where one of several joint contin- gent remaindermen and her husband, who occupy the land as tenants of the holder of the limited fee, purchase the property from ADVERSE POSSESSION, I. h. 35 such holder of the limited fee and take a conveyance therefor, believing that they are receiving a fee-simple title, such deed constitutes color of title, and open, exclu- sive, and notorious possession thereunder for a period in excess of that of the stat- ute for the adverse possession of real estate bars a recovery by the coremainderman in expectancy. Wilson v. Linder, 42: 242, 123 Pac. 487, 21 Idaho, 576. 33. An intermediate remainder will not be cut out by the acquisition by the ulti- mate remainderman of the life estate un- der adverse possession claimed against the life tenant alone, with the admission that the intermediate remainder is unclaimed and unall'ected. McCreary v. Coggeshall, 7: 433, 53 S. E. 978, 74 S. C. 42. By life tenant. See also supra, 25. 34. Possession taken under a deed by a married woman of property which was con- veyed to a trustee for her life and to pre- serve remainders, with power to convey by joining the life tenant, sets the statute of limitations in operation against not only the trustee, but the life tenant and the re- maindermen. Cameron v. Hicks, 7: 407, 63 S. E. 728, 141 N. C. 21. 35. Mere continued possession by the grantor of the granted premises, in which he had retained a life estate, and improve- ments thereon, do not, alone, establish ad- verse possession, or a trust for the benefit of a wife married after the conveyance. Beechley v. Beechley, 9: 955, 108 N. W. 762, 134 Iowa, 75. 36. Where one to whom has been devised a life estate in real estate held by testator under bond for title, with remainder in trust to the state for charitable purposes, secures, although by mistake, after the death of the testator, a judgment directing conveyance to him under the bond of the fee as sole heir of the testator, his possession under the title so acquired is adverse to the remainderman, so that the latter's right may be barred by lapse of time. Com. v. Clark, 9: 750, 83 S. W. 100, 119 Ky. 85. (Annotated) 37. An adverse possession continued by parties to whom the one originating it granted a life estate, and their grantees, inures to the benefit of the remainderman, and cannot operate to destroy the remain- der. Charles v. Pickens, 24: 1054, 112 S. W. 551, 214 Mo. 212. (Annotated) By third persons. See also supra, 26. 38. Possession, under a tax deed, of the interest of a life tenant, does not become adverse to the remainderman until the death of the life tenant. Smith v. Proctor, 2: 172, 51 S. E. 889, 139 N. C. 314. h. As to public; Highway, canal, or tide lands. (See also same heading in Digest L.R.A. 1-70.) Of tide water in front of property, see FISHERIES, 17. Digest 1-52 IL.R.A.CN.S.) 39. Land granted by an individual to the state for the purpose of a state univer- sity, upon certain conditions as to its sale, is held in trust and subject to the pro- visions of Constitution and statutes relat- ing to the disposition of school lands, and the provision of the statute making the statute of limitations run against the state does not apply to it, and therefore the state's title cannot be lost by adverse pos- session. State v. Seattle, 27: 1188, 107 Pac. 827, 57 Wash. 602. 40. A tender of dedication of land as a public park may be defeated by uninter- rupted, open, and adverse possession of the property by inclosures for the statutory pe- riod before any attempt is made to accept the dedication. Canton Co. v. Baltimore, ii : 129, 66 Atl. 679, 106 Md. 69. 41. In the absence of a constitutional or statutory provision to the contrary, the statute of limitations will run in favor of one who takes possession of a part of a parcel of land purchased by a county for jail purposes, which was not needed for such use, and was deeded to him by a void con- veyance by the county authorities. Warren County v. Lamkin, 22: 920, 46 So. 497, 93 Miss. 123. (Annotated) 42. Title may be acquired by possession, by a stranger, to land of a railway com- pany, even though such land is not super- fluous to its undertaking and therefore land which the railway company could not sell or dispose of. Midland R. Co. v. Wright, 4 B. R. C. 230, [1901] 1 Ch. 738. Also- Reported in 70 L. J. Ch. N. S. 411, 49 Week. Rep. 474, 84 L. T. N. S. 225, 17 Times L. R. 261. Railroad right of way. 43. Private individuals cannot acquire title by adverse possession to any portion of the right of way granted by act of Con- gress of July 26, 1866, to the predecessor of the Missouri, Kansas & Texas Railway Com- pany. Missouri, K. & T. R. Co. v. Watson, 14: 592, 87 Pac. 687, 74 Kan. 494. 44. The use for agricultural purposes, such as grazing and cultivation, by adjoin- ing landowners, of otherwise unused and unfenced parts of the right of way of a railroad company, is not inconsistent with or adverse to the enjoyment of the ease- ment. Roberts v. Sioux City & P. R. Co. 2: 272, 102 N. W. 60, 73 Neb. 8. " (Annotated) 1 45. The erection and maintenance of elevators, granaries, coal sheds, and similar structures by an individual on a railroad right of way without express agreement therefor will, in the absence of notice of an< adverse claim, or conduct constituting such notice as matter of law, be regarded as being with the permission, consent, or license of the company, and subject to its right to resume possession of the ground whenever necessity requires its use for railroad pur- poses. Roberts v. Sioux City & P. R. Co. 2: 272, 102 N. W. 60, 73 Neb. 8. 46. Occupancy, by an individual, of parts of the right of way of a railroad company obtained by condemnation proceedings, with- 36 ADVERSE POSSESSION, 1. i. elevators, granaries, coal sheds, and similar structures, used in carrying on his business, and by the company, as a common carrier, for convenience in handling his shipments, will not be treated as adverse or under claim of title, unless actual notice of such claim is brought home to the company, or his conduct is such as will, as a matter of law, constitute such notice. Roberts v. Sioux City & P. R. Co. 2: 272, 102 N. W. 60, 73 Neb. 8. 47. Adverse possession of an uninclosed strip of railroad land is not made out by showing that the company permitted the claimant to unload and pile lumber upon it, or that he was allowed to cut grass on the land, and sometimes to tie his horse up- on it, when these privileges were open to anybody, and the claimant never notified the company that he asserted title to the land. Illinois C. R. Co. v. Hasenwinkle, 15: 129, 83 N. E. 815, 232 111. 224. Depot grounds. 48. Merely noting on a plat a dedication of land for depot purposes does not endow the entire tract set apart with the incidents of public use, so as to prevent the acquisi- tion of title to it by adverse possession. Chicago, M. & St. P. R. Co. v. Hanken, 19: 216, 118 N. W. 527, 140 Iowa, 372. Highways; alleys. Establishment of highway by prescription or user, see HIGHWAYS, 7, 8. 49. A prescriptive right may be secured to maintain steps upon a sidewalk which are necessary to furnish access to abutting buildings. Pickrell v. Carlisle, 24: 193, 121 S. W. 1029, 135 Ky. 126. 50. Notwithstanding an alley shown on a plat has never been used by the public, and has been occupied by an individual for more than 15 years, the title remains i,n the public, and vests in the owners of the abutting lots upon the passage of an or- dinance vacating it. Wallace v. Cable, 42: 587, 127 Pac. 5, 87 Kan. 835. Beds and shores. 51. Adverse title to a portion of an al- ley cannot be secured by an abutting prop- erty owner by merely piling lumber over the line for his own convenience, without giving notice of any adverse claim or title. Weber v. Detroit, 36: 1056, 123 N. W. 540, 159 Mich. 14. (Annotated) 52. 'The mere continued enjoyment by a riparian owner of rights of access between his upland and navigable water will not ripen by laches or limitation into title to the soil, as against a municipality holding the bed and shores of the water in trust for the public. Mobile Transp. Co. v. Mobile, 13: 352, 44 So. 976, 153 Ala. 409. By public. Presumption of acquisition of title by pub- lic, see EVIDENCE, 630. Sufficiency of evidence of title of public, see EVIDENCE, 2193. See also infra, 57. 53. The commonwealth may obtain title to a pond by the assertion and maintenance of adverse possession for the statutory pe- Digest 1-52 L.R.A.(N.S.) riocl. Malone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1120, 84 N. E. 430, 198 Mass. 91. (Annotated) 54. Failure to record a lease, by the com- monwealth, of a pond the title to which is in private ownership, under which the les- sees take and maintain possession, will not prevent the acquisition of an adverse title by the public. Malone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1120, 84 N. E. 430, 198 Mass. 91. 55. Want of notice by the true owner of a pond of possession by lessees of the commonwealth will not prevent the acqui- sition of an adverse title thereto. Malone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1 120, 84 N. E. 430, 198 Mass. 91. i. Color of title. (See also same heading in Digest L.R.A. 1-70.) Admissibility in evidence of deed as, see EVIDENCE, 788. Deed between trustees as, see TRUSTS, 117. 56. For color of title to be the basis of prescription, the instrument under which it is asserted must purport to describe the land in controversy. Napier v. Little, 38: 91, 73 S. E. 3, 137 Ga. 242. 57. That the public authorities have no statutory right to lease ponds which are in private ownership will not prevent a lease by them from forming the basis of a pre- scriptive title in the public. Malone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1120, 84 N. E. 430, 198 Mass. 91. 58. A mere naked color of title, derived through a void foreclosure, does not draw to it even the constructive possession of the property, and therefore does not operate to vest any estate or interest in the property, and cannot confer any such estate or inter- est by mere lapse of time. Bull v. Beiseker, 14: 514, 113 N. W. 870, 16 N. D. 290. 59. In an action to recover possession of land, wherein the defendant relied upon the prescriptive title acquired by adverse pos- session, by himself and those under whom he claimed, for seven years under color < title, and introduced in evidence a deed whereby title to the land was conveyed to a partnership, and a writing from one mem- ber thereof, conveying or mortgaging the land to another to secure the payment of money borrowed by the grantor, and to in- demnify the grantee against loss by his indorsement of notes, in which writing it was provided that, if the grantor failed to pay such debts within a specified time, the grantee should have the right to sell and from the proceeds pay the debts, and there- after the other member of the partnership conveyed to the same grantee under whom defendant claimed, even if the grantee was estopped from claiming such land under the last-named deed against the member of the partnership executing the mortgage or se- curity deed, such estoppel would not pre- vent the grantee from acquiring, under the ADVERSE POSSESSION, I. j, k. 37 other conveyance to him, as against the plaintiff, who did not hold under sucli part nership, or any member thereof, a gooc prescriptive title by seven years' adverse possession. Tarver v. Deppen, 24: 1161 65 S. E. 177, 132 Ga. 798. 60. Heirs of one having a deed to rea estate which constituted color of title, un- der which neither the ancestor nor anyone on his behalf took possession, cannot, aft- er the lapse of a number of years after the ancestor's death, and the granting of the property to a stranger, enter and gain title by adverse possession, relying on the color of title of the ancestor where, by statute color of title is necessary to secure title by adverse possession. Barrett v. Brewer, 42: 403, 69 S. E. 614, 153 N. C. 547. (Annotated) Quitclaim deed. See also supra, 32; infra, 69. 61. A quitclaim deed for land is good color of title on which to base adversary possession under the statute of limitations. Lloyd v. Mills, 32: 702, 69 S. E. 1094, 68 W. Va. 241. 62. A quitclaim deed which purports to convey the entire interest in a parcel of land is good color of title upon which to found a title by adverse possession. Water- man Hall v. Waterman, 4: 776, 77 N. E. 142. 220 111. 569. (Annotated) Void or unauthorized conveyance. 63. A deed by a married woman, her husband not joining therein, which is there- fore void, purporting to convey her sole and separate estate in land, is nevertheless color of title, by which, together with ad- verse possession thereunder for ten years and payment of taxes, the grantee may ac- quire absolute title, working a disseisin of her estate in the land. Calvert v. Murphy, 52:534, 81 S. E. 403, 73 W. Va. 731. Tax sale and deed. See also infra, 84. 64. One obtaining a conveyance from the state under an unconstitutional statute pro- viding for the disposal of land upon which the taxes are delinquent by a so-called re- demption has sufficient color of title to per- fect a title by adverse possession under the statute of limitations. Bradbury v. Dumond, n: 772, 96 S. W. 390, 80 Ark. 82. (Annotated) 65. The failure to record a sheriff's re- ceipt for the amount bid for land sold for taxes, as required by statute, goes to in- validate the tax deed, but does not affect the question of color of title. Greenleaf v. Bartlett, 14: 660, 60 S. E. 419, 146 N. C. 495. 66. A sheriff's deed of land sold for taxes constitutes color of title upon which to base adverse possession barring claimants under the former owner, although the deed is in- valid because of the violation of the statu- tory duty of the sheriff to bid it in for the county, no person being willing to pay the tax for some portion less than the entire tract. Greenleaf v. Bartlett, 14: 660, 60 S. E. 419, 146 N. C. 495. Digest 1-52 L.R.A.(N.S.) j. Claim; hostility. (See also same heading in Digest L.R.A. 1-10.) See also supra, 45, 46. 67. One who enters into possession of his father's land by permission of the latter cannot claim title by adverse possession or presumption of grant, unless he has given the owner unequivocal notice that he holds adversely. McCutchen v. McCutchen, 12: 1140, 57 S. E. 678, 77 S. C. 129. (Annotated) 68. When one is shown to have taken possession of land as agent of another, his subsequent holding will be regarded as per- missive in the absence of proof to the con- trary. McCreary v. Coggeshall, 7: 433, 53 S. E. 978, 74 S. C. 42. 69. Mere possession under a deed which includes a strip belonging to a stranger for a right of way, but which the grantor had a right to fence in, is not sufficient to ripen into an adverse title, since it is consistent with the title of the true owner. Pritch- ard v. Lewis, i: 565, 104 N. W. 989, 125 Wis. 604. (Annotated) 70. No title can be secured against the true owner by merely squatting on real es- tate without notice to the true owner, al- though the squatter makes pretense of hold- ing adversely. Jasperson v. Scharnikow, 15: 1178, 150 Fed. 571, 80 C. C. A. 373. (Annotated) 71. One who steals personal property and conceals his possession of it cannot, while the concealment continues, acquire title by lapse of time. Lightfoot v. Davis, 29: 119, 91 N. E. 582, 198 N. Y. 261. Tc. Extent and Icind of possession. (See also same heading in Digest L.R.A* 1-70.) 72. Title by adverse possession is not established where the proof does not show actual, exclusive, and continuous posses- sion under claim of ownership for the full statutory period. Butler v. Smith, 28: 436, 120 N. W. 1106, 84 Neb. 78. 73. Actual possession in drilling and producing oil and gas by a lessee of land mder the usual lease for production of oil and gas is actual possession of the land by ;he lessor for adversary possession. Lloyd v. Mills, 32: 702, 69 S. E. 1094, 68 W. Va. 241. 74. The right to use property devoted to jurial purposes is not barred by the stat- ute of limitations so long as the lot is kept nclosed, or the monuments remain and the grounds are cared for. Hines v. State, 42: 1138, 149 S. W. 1058, 126 Tenn. 1. (Annotated) 75. An adverse holding of land on the shore of a river does not attach to itself ;he accretion as it forms on the river bot- om, so as to take precedence of a grant by the state of the newly formed land. 38 ADVERSE POSSESSION,.!!. Carson v. Turk, 42'. 384, 143 S. W. 303, 146 Ky. 733. 7(i. \Vhcre title is founded on adverse possession, the title will be limited to that area of which actual possession has been enjoyed, and, as a general rule, constructive possession of a wider area will only be in- ferred from actual possession of the limited area, if the inference of such wider posses- sion is necessary to give effect to contract- ual obligations, or to preserve the good faith and honesty of a bargain. Glyn v. Howell, 3 B. R. C. 405, [1909] 1 Ch. 666. Also reported in 78 L. J. Ch. N. S. 391, 100 L. T. N. S. 324, 53 Sol. Jo. 269. 77. The working out of coal from a limited area, and the retention of posses- sion of the worked-out cavity, is not a con- structive possession of the whole area of the mine horizontally and vertically com- prised in the tract of which the worked out area forms a part, upon which a claim of adverse possession of the whole mine may be based. Glyn v. Howell, 3 B. R. C. 405, [1909] 1 Ch. 666. Also Reported in 78 L. J. Ch. N. S. 391, 100 L. T. N. S. 324, 53 Sol. Jo. 269. (Annotated) Of surface. 78. A disseisor in possession of the surface of land may acquire a title by ad- verse possession, not to the surface only, but also usque ad ccelum. Midland R. Co. v. Wright, 4 B. R. C. 230, [1901] 1 Ch. 738. Also Reported in 70 L. J. Ch. N. S. 411, 49 Week. Rep. 474, 84 L. T. N. S. 225, 17 Times L. R. 261. (Annotated) II. Effect; time required. (See also same heading in Digest L.R.A. 1-70.J Curtesy in land of which wife was disseised by adverse possession, see CURTESY, 5. 79. Adverse possession and the operation of the statute of limitations will create a title which can be used offensively or de- fensively. Freeman v. Funk, 46: 487, 117 Pac. 1024, 85 Kan. 473. .(Annotated) 80. Exclusive possession by the owner of the record title for three years after the execution of a tax deed for the property ex- tinguishes the tax title. Kathan v. Corn- stock, 28: 201, 122 N. W. 1044, 140 Wis. 427. 81. That a co-life-tenant receives in partition an undue portion of a parcel of land omitted from the title deed does not render the partition unequal so as not to be binding on an unborn remainderman, if the grantees had established title to the property by adverse ; possession. Acord v. Beaty, 41 : 400, 148 S. W. 901, 244 Mo. 126. 82. Title acquired up to a division fence by adverse possession and acquiescence for the statutory period is not disturbed by a survey fixing the true boundary elsewhere, which was made under a statute providing that the boundary established by the survey shall be considered as permanently estab- lished and shall not thereafter be changed, since a statutory survey cannot change title Digest 1-52 L.R.A.(N.S.) to land. Edwards v. Fleming, 33: 923, 112 Pac. 836, 83 Kan. 653. 83. Condemnation proceedings, followed by unquestioned possession for more than fifty years with improvements for railroad purposes, are binding on the owner of the land taken, and those claiming under him. Illinois C. R. Co. v. Hasenwinkle, 15: 129. 83 N. E. 815, 232 111. 224. 84. Actual possession of land for a period of four years under a tax deed regular on its face, although based upon a void assess- ment, will bar a suit in ejectment for the possession thereof, under Florida Gen. Stat. 1906, 591, providing that no action for the recovery of land sold under a tax sale can be brought by the former owner or those claiming under or through him, unless com- menced within four years after the pur- chaser goes into possession of the land so bought. Florida Finance Co. v. Sheffield, 23: 1 102, 48 So. 42, 56 Fla. 285. (Annotated) 85. One whose possession, for the statu- tory period, of an upper story in a build- ing, reached by an inclosed stairway hav- ing a landing at the foot large enough to swing a street door, of which he had the only key, and which he locked at night, has ripened into a possessory title, acquires title to the room, the stairway, and the landing, but without any right to support from the subjacent part of the building; and cannot therefore prevent the owner from demolishing those parts of the build- ings which do not rest upon soil to which he has acquired a possessory title. Iredale v. London, 3 B. R. C. 688, 40 Can. S. C. 313. 86. Adverse possession of the surface of land vertically over a railway tunnel will give a complete title to the property, sub- ject to the right of the railway company to the tunnel and to so much of the underly- ing and superincumbent strata as is neces- sary for its due and proper enjoyment as and for a tunnel. Midland R. Co. v. Wright, 4 B. R. C. 230, [1901] 1 Ch. 738. Also Reported in 70 L. J. Ch. N. S. 411, 49 Week. Rep. 474, 84 L. T. N. S. 225, 17 Times L. R. 261. Continuity and interruptions. 87. Mere failure to have a tenant on land for one year will not break the con- tinuity of a possession held adversely to the true owner. Bradbury v. Dumond, n: 772, 96 S. W. 390, 80 Ark. 82. 88. The continuity of an adverse pos- session of real estate is not broken by a deed to a third party not the owner, exe- cuted by the person in possession, who con- tinues to remain in possession after the execution of his deed. Crawford v. Viking Refrigerator & Mfg. Co. 35: 498, 114 Pac. 240, 84 Kan. 203. Tacking. See also supra, 60. 89. To warrant the tacking of different possessions of real estate to make out a title by adverse possession, they need not have been transferred from one possessor to another by writing. Crawford v. Viking ADVERSE POSSESSION, III. AFFECTIONS. 39 Refrigerator & Mfg. Co. 35: 498, 114 Pac. 240, 84 Kan. 203. (Annotated) 90. After the statute of limitations be- gins to run in favor of one who has secured personal property by theft, eacli subsequent purchaser of it may tack on the adverse holdings of persons claiming under a title so secured. Shelby v. Shaner, 34: 621, 115 Pac. 785, 28 Okla. 605. III. Who may Jiold adversely. (See also same heading in Digest L.R.A. 1-10.) 91. The trustees of a religious society in possession of land under a deed as color of title, acquire, as against the original gran- tors, by adverse possession for the statutory period, such title as the deed purports to convey, though it be that of a married wom- an, and void for want of privy examination. Deep water R. Co. v. Honaker, 27: 388, 66 S. E. 104, 66 W. Va. 136. (Annotated) ADVERTISING. For divorce business as ground of dis- barment, see ATTORNEYS, 22, 26. Grant of exclusive right of advertising on box cars of railroad company, see CAR- RIERS, 1015; CONFLICT OF LAWS, 11; CONTRACTS, 429; CORPORATIONS, 53. Contract to furnish proprietors of news- papers transportation in payment for advertising, see CARRIERS, 1066. Power of state to forbid publication of ad- vertisements of liquors kept for sale in other states, see COMMERCE, 11; STATUTES, 92. Application to liquors out of state of im- position of penalty upon publisher of newspaper containing advertisement of liquors, see INTOXICATING LIQUORS, 11. Requiring employers advertising for help during strike to mention existence of strike, see CONSTITUTIONAL LAW, 124, 298, 416; STATUTES, 26. Power of municipality to grant use of high- way for purpose of, see CONSTITU- TIONAL LAW, 253. Forbidding advertisement by physician to cure disease of sexual organs, see CON- STITUTIONAL LAW, 279, 432. Ordinance regulating medical advertise- ments, see MUNICIPAL CORPORATIONS, 217. Obscenity of medical advertisements, see OBSCENITY. Statute regulating erection of structure for, see CONSTITUTIONAL LAW, 320. Publication of photograph for purpose of, see CONSTITUTIONAL LAW, 354, 387, 784; EVIDENCE, 2013; LIBEL AND SLANDER, 17; PRIVACY, 2-5. Use of national flag for, see CONSTITU- TIONAL LAW, 251, 252, 523, 524, 675. Limiting height of advertising sijn, see CONSTITUTIONAL LAW, 659. Digest 1-52 I*R.A.(N.S.) For letting public contract, see CONTP.ACTS, VII. b. Right to maintain advertisements on ex- terior of stages or carriages, see COR- PORATIONS, 34. Power of corporate agent to contract for, see CORPORATIONS, 134. Damages for revocation of contract to per- mit advertisement to be run in period- ical, see DAMAGES, 109. Lease by tenant of roof for purpose of, see ESTOPPEL, 50. Presumption of knowledge from advertise- ment in newspaper, see EVIDENCE, 193. Unauthorized use of name for advertising purposes, see EVIDENCE, 1731-1733. Injunction against placing advertisements in street cars, see INJUNCTION, 13. Right of lessee to use walls of building for, see LANDLORD AND TENANT, 100, 101. Right of tenant to lease wall of building for, see LANDLORD AND TENANT, 95, 96. Right of lessee to lease space on roof to strangers for purpose of, see LANDLORD AND TENANT, 99. Forbidding use of advertising wagons on streets, see MUNICIPAL CORPORATIONS, 48, 106. Authority of traveling salesman to make advertising contract, see PRINCIPAL AND AGENT, 41. Of prize contest, see PRIZE CONTEST, 2. Recovery for publication of advertisements in Sunday paper, see SUNDAY, 18. Publication of signature in connection with testimonial, see TRIAL, 335. As to bill boards, see BILL BOARDS. ADVICE OF COUNSEL. Right of one acting under, to rescind con- tract for mistake, see CONTRACTS, 750. Effect on liability for voting when disquali- fied, see ELECTIONS, 60. Effect of, on liability for malicious prose- cution, see MALICIOUS PROSECUTION, 10-12. Actionability of advice by attorney to client, see LIBEL AND SLANDER, 104. AERATED WATER. Question for jury as to negligence of bottler of, see TRIAL, 541. AFFECTIONS. Alienation of, see HUSBAND AND WIFE, 158- 163, 181, 185-194; WITNESSES, 88. 40 AFFIANCED AGE. AFFIANCED. Nondelivery of telegram in time to enable sendee to attend funeral of, see DAM- AGES, 659. Insurable interest of, see INSURANCE, 67, 80. Interest of, in benefit certificate, see IN- SURANCE, 849. Larceny from, see LARCENY, 37. Seduction of, see SEDUCTION, 3. AFFIDAVIT. Acknowledgment to, see ACKNOWLEDGMENT, 1. Necessity of incorporating, in bill of excep- tions, see APPEAL AND ERROR, 239. On appeal, see APPEAL AND ERROR, IV. e. In attachment suit, see APPEAL AND ERROR, 693 ; ATTACHMENT, 24. Questioning on appeal rule as to necessity of affidavit of defense, see APPEAL AND ERROR, 811. Sufficiency of affidavit of defense, see PLEADING, 480, 506. Amendment of affidavit charging violation of order of state corporation commis- sion, see APPEAL AND ERROR, 1034. Sufficiency of affidavit of consideration an- nexed to chattel mortgage, see CHATTEL MORTGAGE, 5, 6. Renewal of affidavit for chattel mortgage, see CHATTEL MORTGAGE, 49. Filing of, on foreclosure of chattel mort- gage, see CHATTEL MORTGAGE, 58. Contempt by statements in affidavit for change of judges, see CONTEMPT, 21. In contempt proceeding, see CONTEMPT, 77. For continuance, see CONTINUANCE AND AD- JOURNMENT, III. From voter at primary election that ballot called for represents party with which he is affiliated, see ELECTIONS, 20. Admissibility in evidence, see EVIDENCE, 781-784. Necessity of, to make evidence admissible, see EVIDENCE, 2452. Sufficiency of affidavit to support prosecu- tion, see INDICTMENT, ETC., 3, 34. In injunction suit, see INJUNCTION, 429. Of absence of collusion, fear, or restraint in divorce proceedings; effect of lack of, see JUDGMENT, 144. For publication, see JUDGMENT, 332; WHIT AND PROCESS, 66-72. Of merits, see JUDGMENT, 385-389. Affidavit of ownership where property of third person is levied on, while in pos- session of execution debtor, see LEVY AND SEIZURE, 26, 27. Of juror to impeach verdict, see NEW TRIAL, V. d. On motion for new trial, see NEW TRIAL, V. c, d. Assigning perjury or subornation of per- jury upon affidavit to secure change of judge for prejudice, see PERJURY, 13. Digest 1-52 L.R.A.(N.S-) Verification of pleading, see PLEADING, I. b. Trial of collateral issue on, see TRIAL, 2. For change of venue, see VENUE, 29. Of service of process, see WRIT AND PROCESS, III. 1. An amendment to an affidavit charging a railroad company with having violated certain orders of the state corpo- ration commission, so as to make the original affidavit charge the violation of a different order, must be verified. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. AFFINITY. Disqualification of judge because of, see JUDGES, 10-12. AFFRAY. Taking life in self-defense in case of, see HOMICIDE, III. b. AFTER-ACQUIRED PROPERTY. Mortgage on, see CHATTEL MORTGAGE, 11- 17; MORTGAGE, 17, 20. Estoppel to claim, see ESTOPPEL, 36, 37. Garnishment of future earnings, see GARNISHMENT, 25, 26. Enforcement of contract to convey, see SPE- CIFIC PERFORMANCE, 95. Passing under will, see WILLS, 198. AFTER-BORN CHILDREN. Rights under will, see CONFLICT OF LAWS, 130; PERPETUITIES, 13, 14; WILLS, 154, 155, 183, 249. Power of legislature to cut off rights of, bee CONSTITUTIONAL LAW, 61. Jurisdiction of, see COURTS, 197. Evidence of testator's statements to show intent to disinherit, see EVIDENCE, 1441. Effect of judgment on, see JUDGMENT, 219- 222. Unborn child, as a life in being within rule against perpetuity, see PERPETUITIES, 14. Right to take under grant for support of wife and children, see TRUSTS, 130. Appointment of trustee for, see TRUSTS, 74: AGE. Of consent, see AGE OF CONSENT. Evidence on question of, see APPEAL AND ERROR, 1166; EVIDENCE, 1379, 1581. AGENCY AGRICULTURAL SOCIETIES. 41 Determination of age by inspection in court see EVIDENCE, 880. Sufficiency of evidence as to, see EVIDENCE, 2236, 2237. Estoppel by representations as to, see ES- TOPPEL, 173-178. Fraudulent representation by infant as to, see INFANTS, 92, 93. Misrepresentation as to age of infant em- ployee, see MASTER AKI> SERVANT, 154- 156, 173-176. Misstatement of age in insurance applica- tion, see INSURANCE, 151, 322-324, 371, 372, 546; TBIAL, 648. Waiver of by-law of benefit society as to, see INSURANCE, 536. Illegal sale of liquor to minor in ignorance of his age, see INTOXICATING LIQUORS, 155. AGENCY. See PRINCIPAL AND AGENT. AGE OF CONSENT. Marriage of infant under, see MARRIAGE, 14-16, 29, 43-45. Rape of infant under, see RAPE, 5-7. AGGRAVATION. Of damages, see EVIDENCE, XI. w. Of injury, see NEGLIGENCE, 214. AGISTERS. Priority as between lien of agister and lien of prior chattel mortgage, see CHATTEL MORTGAGE, 46. 1. Under a statute giving every per- son who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, a special lien, dependent on possession, for his compensa- tion due from the owner for such service, and expressly giving persons pasturing live stock of any kind a lien for their compensa- tion in caring for, boarding, feeding, or pasturing such live stock, a herder em- ployed by the month and working under the direction and control of an owner in taking care of sheep being grazed on the public domain is not entitled to a lien on the sheep for his wages. Mendilie v. Snell, 42: 731, 127 Pac. 550, 22 Idaho, 663. (Annotated) 2. A bailee of cattle to be cared for for hire must, in order to absolve himself from liability in case an excessive number die in his possession, show that the loss was Digest 1-52 L.R.A.(N.S.) not due to his negligence. Nutt v. David- son, 44: 1170, 131 Pac. 390, 54 Colo. 586. 3. A bailee of cattle for hire, which, by the owner's direction, are placed in a cer- tain pasture upon the bailee's representa- tion that the place is suitable, must exer- cise ordinary care to prevent their injury by changing conditions rendering the place improper, or to inform the owner of the change. Nutt v. Davidson, 44:1170, 131 Pac. 390, 54 Colo. 586. AGREED CASE. 1. An agreement of facts made for the purpose of one trial will not preclude fur- ther or different proofs upon another trial. Illinois C. R. Co. v. Hart, 52: 1117, 176 Fed. 245, 100 C. C. A. 49. 2. A submission of the question whether or not a municipal corporation has the pow- er to enforce its ordinances in respect to the construction of buildings by a school district organized within its territory, to the same extent that the ordinances would be enforceable against, and in respect to, any other building being built by an in- dividual, gives the court no authority to determine the applicability of a provision of the ordinances respecting fire escapes. Pasadena City School Dist. v. Pasadena, 47: 892, 134 Pac. 985, 166 Cal. 7. AGREEMENTS. Agreements, generally, see CONTRACTS. AGRICULTURAL COLLEGE. See STATE INSTITUTIONS, 4, 7. AGRICULTURAL SOCIETIES. 1. The directors of an agricultural soci- ety may authorize a baseball game upon the grounds during a fair, where the statute provides that any society filing affidavits showing what sum it has paid out for pre- miums during a year, not including money paid to secure games, shall receive a sum from the state treasury. Williams v. Dean, ii : 410, 111 N. W. 931, 134 Iowa, 216. 2. The officers and directors of an agri- cultural association are not liable, merely because of their office, for injuries to a patron of a fair, injured through absence of a screen to shield spectators in a grand stand from foul balls from a baseball game allowed to be played on the grounds. Wil- liams v. Dean, n: 410, 111 N. W. 931, 134 Iowa, 216. 42 AGRICULTURE ALIENS, I. AGRICULTURE. Constitutionality of statute granting pow- ers to board of, see CONSTITUTIONAL LAW, 727. Lien on crops for wages of farm laborers, see LIENS, 10. Agricultural education, see AGRICULTURAL COLLEGE; SCHOOLS, la. AID BONDS. See BONDS, 78, 80-83, 103, 104. AIDERS AND ABETTORS. See CRIMINAL LAW, I. e; HOMICIDE, 47-49. AIR. Easement of, see EASEMENTS, 44-47; PLEADING, 148. Condemnation of riparian owner's right to, see EMINENT DOMAIN, 29. Compensation for interference with, see EMINENT DOMAIN, 192. AIR BRAKE. Patent of, see PATENTS, 7. ALCOHOL. Negligence of druggist in sale of wood alcohol, see APPEAL AND EBROB, 1096; DRUGS AND DRUGGISTS, 8; EVIDENCE, 1343. Forbidding manufacture of, see CONSTITU- TIONAL LAW, 192, 398. Injury to child by explosion of, see NEGLI- GENCE, 145. See also INTOXICATING LIQUORS. ALCOHOLISM. See DRUNKENNESS. ALIBI. Prejudicial error in refusal of instruction as to, see APPEAL AND ERROR, 1420. Evidence to overthrow, see EVIDENCE, 1888. Sufficiency of proof of, see EVIDENCE, 2376. Digest 1-52 L.R.A.(N.S.) ALIENATION. Of homestead, statute taking away right of, see CONSTITUTIONAL LAW, 644. Restraints upon, see COVENANTS AND CON- DITIONS, 31-34. Suspension of power of, see PERPETUITIES. ALIENATION OF AFFECTIONS. Of wife, see HUSBAND AND WIFE, 158-163. Of husband, see HUSBAND AND WIFE. 181, 185-194. Of affianced wife, see SEDUCTION, 3. ALIENIST. Error in excluding from court room, see APPEAL AND ERROR, 1484. ALIENS. I. In general; immigration; deporta- tion. II. Naturalisation, 1, 2. III. Disabilities and capacities; prop- erty rights, 35. Violation of alien contract labor law, see ACTION OB SUIT, 63; EVIDENCE, 1401, 2354; TRIAL, 779. As to who are citizens, see CITIZENSHIP. Court's assistance in impounding assets of, see CONFLICT OF LAWS, 135. Prohibiting alien from engaging in liquor business, see CONSTITUTIONAL LAW, 202a. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 2, b. Foreign consul's right to administer estate of, see EXECUTORS AND ADMINISTRATORS, 16. Conclusiveness of default judgment against, see JUDGMENT, 99. Discrimination in inheritance tax on prop- erty devised to, see TAXES, 293. Succession tax on property going to, see TAXES, 358. Effect of treatv on status of, see TREATIES, 4. 7. In general; immigration; deporta- tion. (See also same heading in Digest L.R.A. 1-10.) Right to bail pending execution of order of deportation, see BAIL AND RECOGNIZ- ANCE, 11, 12. Reference of case under Chinese Exclusion Act, see REFERENCE, 11. ALIENS, II. ALLEYS. 43 //. Naturalisation. (See also same heading in Digest L.R.A. 1-10.) Discrimination by primary election law against naturalized citizen, see ELEC- TIONS, 68, 71. Eight of officer to retain naturalization fees, see OFFICERS, 86. 1. An alien wife of an alien, both of whom are residing in this country, is not entitled to naturalization. United States v. Cohen, 29: 829, 179 Fed. 834, 103 C. C. A. 28. (Annotated) 2. An alien person of good moral char- acter, and who has lived an honest and in- dustrious life, and is otherwise entitled to citizenship, should not be denied the right because he is totally ignorant of our form of government, our Constitution, and the import of the oath of allegiance. State ex rel. United States v. District Court, 22: 1041, 120 N. W. 898, 107 Minn. 444. (Annotated) ///. Disabilities and capacities; prop- erty rights. (See also same heading in Digest L.R.A. 1-70.) Right to take estate by curtesy, see CURTESY, 9, 10. Right to maintain action for death of rela- tive, see DEATH, 12-19. Inheritance from alien cousin, see DESCENT AND DISTRIBUTION, 11. Escheat of property of, see ESCHEAT, 3. Estoppel to recover property deeded to, see ESTOPPEL, 152. Disqualification to act as executor, see EXECUTORS AND ADMINISTRATORS, 9. Homestead rights in land, see HOMESTEAD, Purchase by or from. 3. One deeding land to an alien retains no right, title, or interest therein, although the Constitution provides that conveyances to an alien shall be void. Abrams v. State, 9: 186, 88 Pac. 327, 45 Wash. 327. 4. Land containing deposits of lime- stone, silica, silicated rock, and clay, which are valuable for the manufacture of cement, is within the constitutional provision per- mitting aliens to purchase lands containing valuable deposits of minerals, metals, iron, coal, and fire clay. State ex rel. Atkinson v. Evans, 10: 1163, 89 Pac. 565, 46 Wash. 219. Suits by or against. 5. The right of an alien to resort to the courts of a country to redress a wrong aris- ing at his domicil is not affected by the provisions of a treaty between the countries giving the citizens of each the right to so- journ in the other with the same security and protection as natives, and binding each country to protect and defend the effects belonging to subjects of the other which shall be within its jurisdiction. Disconto Digest 1-52 L.R.A.(N.S.) Gesellschaft v. Terlinden, 15: 1045, 106 N. W. 821, 127 Wis. 651. ALIMONY. See DIVORCE AND SEPARATION, V. ALLEYS. Adverse possession of, see ADVERSE POSSES- SION, 50, 51. As boundary, see BOUNDARIES, 13, 14. Review by court of question of necessity of closing, see COURTS, 107. Inquiry by courts into motives of municipal authority in closing, see COURTS, 142. Damages for closing of, see DAMAGES, 565, 576. Dedication of, see DEDICATION, 1. Describing property sold as bounded by al- ley, as warranty that alley exists, see COVENANTS AND CONDITIONS, 17. Presumption that reference in deed to alley is to public alley, see DEEDS, 27. Right of municipal corporation to construct sewers in, see DRAINS AND SEWERS, 6. Reservation of, in deed, see EASEMENTS, 43. Right to obstruct, see EASEMENTS, 76. Rope across entrance to, as obstruction, see HIGHWAYS, 214. Injury through obstruction of surface water caused by construction of, see EMINENT DOMAIN, 217; EVIDENCE, 2010. Evidence of wantonness in leaving bomb in, see EVIDENCE, 1527. Estoppel of owner of fee to remove tele- phone pole from, see ESTOPPEL, 94. Abandonment of, see HIGHWAYS, 412. Meaning of word "alleyway" in pleading, see PLEADING, 276. Right of grantee of maker of plat to close alley, see VENDOR AND PURCHASER, 83. 1. The title to an alley in a city which was erroneously thought not to exist is not affected by the fact that one of the abutting owners had signed a petition asking that the alley be "opened," and that an ordinance had been passed providing for the condem- nation of land for that purpose. Wallace v. Cable, 42: 587, 127 Pac. 5, 87 Kan. 835. 2. The owner of a leasehold renewable forever, which extends to the center of a private alley, may cut down and remove a telephone pole placed on his half thereof without permission, in such a manner as to interfere with his reasonable use of the alley, after giving notice to its owner to remove it, which is not acted upon within a reasonable time ; and its owner cannot complain of incidental injury to the pole and fixtures through its fall to the ground. Maryland Teleph. & Teleg. Co. v. Ruth, 14: 427, 68 Atl. 358, 106 Md. 644. 3. The construction and maintenance of a cellarway in an alley, with a cover projecting above the surface, will not be 44 ALLOTMENT ALTERATION OF INSTRUMENTS, I. enjoined at the suit of an adjoining owner in the absence of evidence that it interferes with the safe and convenient use of the alley. Reynolds v. Union Sav. Bank, 49: 194, 136 N. W. 529, 155 Iowa, 519. ALLOTMENT. Of homestead, see HOMESTER, V. ALLOWANCE. To widow, see EXECUTORS AND ADMINIS- TRATORS, 116, 117. ALLUVION. See WATERS, 160-163. ALTERATION. Of highway, see HIGHWAYS, V. b. Revocation of will by, see WILLS, 46-52. ALTERATION OF INSTRUMENTS. I. In general, 18. tl. Bills and notes, 922. a. In general, 913. b. What alterations are material, 14-22. Necessity of reacknowledgment of deed after alteration, see ACKNOWLEDGMENT, 9, 10. Bank's liability on altered checks, see BANKS, IV. a, 3, b, 2. Alteration of certified check, see CHECKS, 34-36. Effect of, on jurisdiction of equity, see EQUITY, 89. Presumption and burden of proof as to, see EVIDENCE, 169, 601-607. Evidence as to time when alteration was made, see EVIDENCE, 1801, 2285, 2286. Sufficiency of answer to raise question of, see PLEADING, 455. Reformation of altered deed, see REFORMA- TION OF INSTRUMENTS, 10. Question whether alteration was made as one for jury, see TRIAL, 620. Instructions as to, see TRIAL, 942. As to forgery, generally, see FORGERY. 7. In general. (See also same heading in Digest L.R.A.. 1-70.) 1. A "material alteration" of a written instrument is an intentional act done upon it, after it has been fully executed, by one Digest 1-52 L.R.A.(N.S.) of the parties thereto, without the consent of the other, which changes the legal effect of the instrument in any respect. O. N. Bull Remedy Co. v. Clark, 32: 519, 124 N. W. 20, 109 Minn. 396. 2. The cross marking of a material provision in a written instrument, after its execution, by one of the parties thereto, without the consent of the other, with the intention of canceling or erasing it, con- stitutes a material alteration of the instru- ment. 0. N. Bull Remedy Co. v. Clark, 32:519, 124 N. W. 20, 109 Minn. 396. (Annotated) 3. An heir of one to whom runs an agree- ment for the payment of money, to whom it is assigned after the death of the ob- ligee, and after it is overdue, takes sub- ject to the defense that, without knowl- edge of the obligors, the name of a witness to the signatures was added to the agree- ment after its execution and delivery. Shiffer v. Mosier, 24: 1155, 74 Atl. 426, 225 Pa. 552. 4. Assent by an obligor to the addition of the name of a witness to the signatures to an obligation for payment of money, after the instrument has been rendered void by such alteration, will not restore the validity of the contract, at least as to co-obligors, where the alleged ratification was by one of the parties bound, of whose acts they had no knowledge. Sniffer v. Mosier, 24: 1155, 74 Atl. 426, 225 Pa. 552. (Annotated) 5. A deed is not invalidated by its al- teration, by consent of the parties so as to convey less than it originally called for, and will pass title to the less amount, if it is redelivered. Eadie v. Chambers, 24: 879, 172 Fed. 73, 96 C. C. A. 561. 6. A contract for the sale of personal- ty is not vitiated by the erasure of the former corporate name of the promisee, which inadvertently had been used, and the insertion of the correct corporate name by the promisee upon discovering the mistake, although without the knowledge of the promisor, since a change in a contract that does not vary its meaning in any essential particular nor affect the liability of the party to be charged thereon is an imma- terial alteration. Blenkiron Bros. v. Rog- ers, 31: 127, 127 N. W. 1062, 87 Neb. 716. (Annotated) Filling blanks. Presumption of authority to fill blanks, see EVIDENCE, 169. 7. The authorized filling of blanks in a written instrument will not avoid it un- der the doctrine of alteration of instru- ment. Montgomery v. Dresher, 38: 423, 134 N. W. 251, 90 Neb. 632. Mortgages. 8. W T here a mortgage was executed with the blanks for the name of the mortgagee unfilled, and the mortgage delivered to the i person to whom the indebtedness secured by the mortgage ran, the filling in of his own name by such person would not in- validate the mortgage. Montgomery v. Dresher, 38: 423, 134 N. W. 251, 90 Neb. 632. (Annotated^ ALTERATION OF INSTRUMENTS, II. a, b. //. Bills and notes. a. In general. (See also same heading in Digest L.R.A. 1-10. ) Binding effect on bank of alteration of note by bank agent, see BANKS, 18. By filling blanks in note, see BILLS AND NOTES, 118. Who is a holder in due course not affected by alteration of note, see BILLS AND NOTES, 179. Presumption and burden of proof as to, see EVIDENCE, ]11, 604. Of note given for insurance premium, see EVIDENCE, 833. 9. That the maker of a note understood that it was to carry certain interest does not authorize the insertion in the instru- ment after its execution, without his knowl- edge, of a clause expressing that fact. Mer- ritt v. Dewey, 2: 217, 75 N. E. 1066, 218 111. 699. (Annotated) 10. Crossing out the date of a note and writing another above it cannot be regard- ed as mere memorandum of the time from which interest is to be figured, rather than an alteration of the instrument. Barton Sav. Bank & T. Co. v. Stephenson, 51: 346, 89 Atl. 639, 87 Vt, 433. (Annotated) Effect. What alterations are material, see infra, II. b. 11. Alteration of the date of a note by one of several makers to whom it has been intrusted for delivery, before deliver- ing it, and without the consent of the co- makers, avoids the instrument. Barton Sav. Bank & T. Co. v. Stephenson, 51: 346, 89 Atl. 639, 87 Vt. 433. 12. A mortgage given to secure a note altered without fraudulent intent, to make the rate of interest conform to the contract, is not vitiated by the alteration of the note, and may be enforced for the original con- sideration if otherwise valid. Edington v. McLeod, 41: 230, 124 Pac. 163, 87 Kan. 426. ( Annotated ) Ratification. Necessity of new consideration to validate ratification of alteration, see BILLS AND NOTES, 37. 13. A material alteration in a promis- sory note may be ratified by any person affected by it so as to bind him as fully as though he had authorized it in the first in- stance. Holyfield v. Harrington, 39: 131, 115 Pac. 546, 84 Kan. 760. ft. What alterations are material. (See also same heading in Digest L.R.A. 1-10.) Question for jury as to, see TRIAL, 285, 315. 14. A memorandum written on the back of a promissory note at the time of its exe- cution, which limits its consideration, af- Digest 1-52 L.R.A.(N.S.) fects its operation, and is intended to be a part of the contract, must be regarded as a substantive part of the note; and a material alteration of it after the execu- tion of the instrument will defeat a recov- ery thereon. Kurth v. Farmers' & M. State Bank, 15: 612, 94 Pac. 798, 77 Kan. 475. (Annotated) 15. Indorsing upon a note before nego- tiation of a fictitious payment, for the pur- pose of reducing its amount, is within the provision of the negotiable instruments act,, which avoids a note in favor of nonassent- ing parties in case of a material alteration, which is defined to be inter alia a change in the sum payable. Washington Finance Corp. v. Glass, 46: 1043, 134 Pac. 480, 74 Wash. 653. (Annotated) Altering date. 16. At common law, the alteration of the date of a promissory note is a material alteration; and when made by one not a stranger to the obligation will avoid it as to all parties not consenting thereto. Bo- dine v. Berg (N. J. Err. & App.) 40: 65, 82 Atl. 901, 82 N. J. L. 662. 17. An alteration of the printed figures forming part of the date of a note written on a printed blank, so as to make them cor- respond with the figures written in ink in the body of the note, is not so material as to avoid the note. Lombardo v. Lombar- dini, 32: 515, 106 Pac. 907, 57 Wash. 352. (Annotated) 18. Change of date of a note by one of several comakers to whom the instrument has been intrusted for delivery cannot be regarded as immaterial because it was in- tended to give the instrument the date to which interest had been paid on a prior note which it was intended to renew; at least, as to persons not parties to the old note. Barton Sav. Bank & T. Co. v. Stephen- son, 51: 346, 89 Atl. 639, 87 Vt. 433. Charging rate of interest. 19. A promissory note altered by the payee by increasing the rate of interest, without fraudulent intent, to make it con- form to the contract in pursuance of which it was given, is avoided. Edington v. Mc- Leod, 41: 230, 124 Pac. 163, 87 Kan. 426. 20. A promissory note may be vitiated by an unauthorized alteration made by in- serting a lower rate of interest than that carried by the instrument as originally ex- ecuted. New York L. Ins. Co. v. Martin- dale, 21 : 1045, 88 Pac. 559, 75 Kan. 142. Inserting payee's name. 21. A bank which takes a note with an unfilled blank for the payee's name in pay- men' of a mortgage debt, and fills the blank with its own name, when the note had been executed and intrusted to the holder to pay for a meat market, with instructions to fill the name of the seller in the blank, gets no title, where the statute provides that to render enforceable a note executed with an unfilled blank, the blank must be filled 'up strictly in accordance with the authority given. Hartington Nat. Bank v. Wiebelhaus, 31: 130, 128 N. W. 659, 88 Neb. 47. 46 ALTERNATIVE ALLEGATIONS AM1CUS CURI^E. Inserting place of payment. 22. Filing a blank left in a promissory note for the place of payment, by insert- ing such place, does not avoid the note under the negotiable instruments law, mak- ing a material alteration one which changes the place of payment, or adds the place of payment where no such place was specified, but which authorizes a holder to fill blanks, and it is immaterial that the place insert- ed is located in another state. Diamond Distilleries Co. v. Gott, 31:643, 126 S. W. 131, 137 Ky. 585. (Annotated) ALTERNATIVE ALLEGATIONS. in pleadings, see PLEADING, 2. ALTERNATIVE DEVISE. See WILLS, 335. ALTERNATIVE JUDGMENT. In replevin, see REPLEVIN, 36. ALTERNATIVE SENTENCE. '.See CRIMINAL LAW, 227. ALTERNATIVE "WRIT. Of mandamus, see APPEAL AND ERROR, 406; MANDAMUS, 115-117. AMBIGUITY. In contracts, see CONTRACTS, II. In ordinance, see MUNICIPAL CORPORATIONS, 85, 86. In complaint, waiver of, see PLEADING, 42. In statute, see STATUTES, 35-44. In summons, see WRIT AND PROCESS, 2. Parol evidence to explain, see EVIDENCE, VI. e. AMBULANCE. Negligence in driving of, see MASTER AND SERVANT, 35; NEGLIGENCE, 181, 199. AMENDMENT. On appeal, see APPEAL AND ERROR, IV. d. Of affidavit, see AFFIDAVITS; APPEAL AND ERROR, 693, 1034. Digest 1-52 L.R.A.(N.S.) Of undertaking on appeal, see APPEAL AND ERROR, 144, 148. Of bill of exceptions nunc pro tune, see AP- PEAL AND ERROR, 227, 228. Of defective exception to auditor's report, see APPEAL AND EUROR, 338. Of remittitur on appeal, see APPEAL AND ERROR, 1591. Of constitution of base ball league, see ASSOCIATIONS, 10. Of articles of incorporation of loan associa- tion, see BUILDING AND LOAN ASSOCIA- TIONS, 7, 14, 15. Of constitution, see CONSTITUTIONAL LAW, I. a, 2. Of corporate charter, see CORPORATION, 35- 47. Of indictment, see CRIMINAL LAW, 141, 174 ; INDICTMENT, ETC., II. f. Of judgment in criminal cases, see CRIM- INAL LAW, 231, 300. Of city charter, see ELECTION, 38, 39. Of by-laws of insurance company, see IN- SURANCE, 100. Of judgment, see JUDGMENT, I. g. Of alternative writ of mandamus, see MANDAMUS, 116, 117. Of lien claim or statement, see MECHANICS' LIENS, 99. Of order, see MOTIONS AND ORDERS, 8. Of charter, see MUNICIPAL CORPORATIONS, 13-18. Of pleading, see PLEADING, I. n. Of records, see RECORDS, 10, 11. Of statute, see STATUTES, I. e, 3, III. Of findings of court, see TRIAL, 1112, 1113. Of verdict, see TRIAL, V. d. Of nuncupative will, see WILLS, 106. Of return to writ, see WRIT AND PROCESS, 95. Suggested amendment as necessary part of record on appeal, see APPEAL AND ERBOR, 165. Right to continuance on allowing, see CON- TINUANCE AND ADJOURNMENT, 1-3. As affecting limitation of action, see LIMI- TATION OF ACTIONS, 289-305. Effect of, on right to withdraw money paid into court, see MONEY IN COURT, 1. AMERCEMENT. Who may maintain suit for, see PARTIES. 98. Of sheriff, see SHERIFF, 2-5. Strict construction of statute providing for, see STATUTES, 69. AMICUS CURLS:. Power of court to appoint to except to exec- utors' account, see EXECUTORS AND AD- MINISTRATORS, 129. 1. .fter an attorney for a party to a pending action has been discharged by his client, and after the latter has stipulated AMNESTY AMUSEMENTS. 47 with his adversary for a decree disregard- ing the rights of minors who are not par- ties to the suit, the attorney, as a friend of the court, may properly suggest facts necessary to the protection of the minors. Jones v. Hudson, 44: 1182, 141 N. W. 141, 93 Neb. 5G1. AMNESTY. See CRIMINAL LAW, IV. h. AMOUNT IN CONTROVERSY. For purposes of jurisdiction, see APPEAL AND ERROR, II. c, 4; COURTS, II. a, 3, III. e. AMUSEMENTS. Duty of carrier to furnish special trains to amusement park, see CARRIERS, 41-43. Exclusion of negroes from, see CIVIL RIGHTS, 2; COSTS AND FEES, 20. Forbidding resale at increased price of ticket to place of, see CONSTITUTIONAL LAW, 505, 507, 745, 746. Condition on theater ticket against resale, see CONTRACTS, 445. Police power as to dance halls, see CONSTI- TUTIONAL LAW, 695, 696. Validity of ordinance regulating dance hails, see MUNICIPAL CORPORATIONS, 219. Forbidding presence of infants in dance hall, see STATUTES, 249. Excluding officer of United States Navy from dance hall, see DAMAGES, 628. Action against police officers for excluding guest from public dance, see EVIDENCE, 1755; POLICE, 2. Failure of carrier promptly to transport show properties, see DAMAGES, 286. False imprisonment by restraint upon per- son refusing to pay entrance fee, see FALSE IMPRISONMENT, 13. Prohibiting employment of children in plac- es of, where intoxicating liquors are sold, see INFANTS, 6-8. Contract by amusement association to give certain person ice cream privilege, see INJUNCTION, 53. Eviction of lessor of building leased as place of, see LANDLORD AND TENANT, 64. On Sunday, see SUNDAY, II. See also BASEBALL; BATHING RESORTS; EX- HIBITIONS; HORSE RACE; THEATERS. 1. A ticket of admission to a race- track inclosure is only a revocable license, and the holder's only remedy, where he has been forcibly prevented from entering, or has been forcibly ejected just after he had dropped his ticket into the box, is by an action for damages for the breach of the Digest 1-52 L,.R.A.(N.S.) contract. Ke cannot maintain an action of trespass. Marrone v. Washington Jock- ey Club, 43: 961, 33 Sup. Ct. Rep. 401, 227 U. S. 633, 57 L. ed. 679. (annotated) Liability for injury to patron. Duty of operator of scenic railway toward passengers, see CARRIERS, 178. Injury to spectator at ball game, see DAM- AGES, 363; PLEADING, 280. Presumption of negligence from injury to patron at amusement park, see EVI- DENCE, 457. Evidence in action for injury to patron at place of amusement, see EVIDENCE, 1762. Injury by fireworks at pleasure resort, see FIREWORKS; MASTER AND SERVANT, 1009. Liability of owner of amusement park for negligence of independent contractor, see MASTER AND SERVANT, 994. Negligence in maintaining step at exit of darkened room where moving pictures are shown, see NEGLIGENCE, 86, 87. Proximate cause of injury to patron at place of, see PROXIMATE CAUSE, 35, 36. Question for jury as to negligence of person running place of amusement, see TRIAL, 560-562. 2. Reasonable care is the measure of duty under which the owner of a place of amusement rests with respect to the safety of places provided for patrons. Williams v. Mineral City Park Asso. i: 427, 102 N. W. 783, 128 Iowa, 32. (Annotated) 3. Ordinary care measures the duty of the owner ef a place of amusement to pa- trons with respect to the safety of a stand containing seats which they are invited to occupy. Phillips v. Butte Jockey Club & Fair Asso. 42: 1076, 127 Pac. 1011, 46 Mont. 338. 4. Liability of the owner of seats in a place of amusement for injury to a patron is not shown by an allegation that the patron was tripped by a projecting nail on a stairway, and fell to his injury upon a broken board on the landing, of which defects the owner had knowledge, without stating facts showing defendant's knowl- edge, actual or implied, of the defects. Phil- lips v. Butte Jockey Club & Fair Asso. 42: 1076, 127 Pac. 1011, 46 Mont. 338. 5. Failure to provide around a band stand erected above the seats provided for patrons, by an amusement association, a barrier which will prevent articles falling therefrom, is not negligence as matter of law. Williams v. Mineral City Park Asso. i: 427, 102 N. W. 783, 128 Iowa, 32. 6. The owner of a place of amusement is not liable for injury to a patron by a bottle carelessly dropped by a musician from a band stand erected over seats provided for patrons. Williams v. Mineral City Park Asso. i : 427, 102 N. W. 783, 128 Iowa, 32. 7. The owner of a pleasure resort, who permits the playing of ball away from the portion of the grounds devoted to such sport and near to that devoted to dancing, with- out notifying those interested in the dancing 48 ANESTHETIC ANCIENT INSTRUMENTS. or taking precautions to protect them from injury, may be liable for an injury inflicted by a ball thrown upon a spectator of the dancing. Blakeley v. White Star Line, 19: 772, 118 N. W. 482, 154 Mich. 635. ( Annotated ) 8. One who maintains grounds to which the public is invited to witness games of baseball is not an insurer against the dan- gers incident to witnessing the game, nor is it his duty to guard against improbable dangers, so as to render him liable for in- juries to a spectator caused by being struck with the ball, where such spectator is seated behind a screen furnished for the protection of spectators, and it is claimed that the ball curved around the end of the screen. Wells v. Minneapolis Baseball & A. Asso. 46: 606, 142 N. W. 706, 122 Minn. 327. 9. Spectators at a game of baseball who know and appreciate the danger from thrown or batted balls assume the risk, and cannot claim that the management is guilty of negligence, when a choke is given between a seat in the open and one behind a screen of reasonable extent, and they select a seat in the open. Wells v. Minnea- polis Baseball & A. Asso. 46: 606, 142 N. W. 706, 122 Minn. 327. 10. That a transportation company main- taining a pleasure resort at the termination of its line as an inducement to persons to patronize the line charges no fee for admis- sion to it, depending for its profit on the passengers carried, does not exempt it from the rule requiring the owners of pleasure resorts to protect invited guests from un- usual occurrences which may result in seri- ous danger to them. Blakeley v. White Star Line, 19: 772, 118 N. W. 482, 154 Mich. 635. 11. An association conducting a fair is liable for injury to a patron through defect in apparatus employed by a concessionary for the amusement of patrons, where it re- ceives a portion of the sums paid for the use of the apparatus, has general charge of the grounds, and takes an active part in advertising the amusements. Hollis v. Kan- sas City, Missouri, R. M. Asso. 14: 284, M)3 S. W. 32, 205 Mo. 508. (Annotated) 12. The owner of an amusement park who receives a percentage of the receipts of concessioners as compensation for the con- cessions assumes an obligation that the de- vices and attractions operated by them are reasonably safe for the purposes for which the public is invited to use them. Stickel v. Riverview Sharpshooters' Park Co. 34: 659, 95 N. E. 445, 250 111. 452. 13. One who, for the purpose of giving an exhibition for pay, rents a new state armory which has been erected under the supervision of a competent architect, is not answerable for latent defects in the balcony railing which appears to be suffi- cient; nor is he bound to have the railing inspected by competent experts, so as to be liable, in the absence of such inspection, for injury to a patron who is injured by its giving way at a time when the balcony is not overcrowded, but patrons are leaning against the railing to get a better view of Digest 1-52 L.R.A.(N.S.) [ the performance. Greene v. Seattle Ath- ! letic Chib, 32:713, 111 Pac. 157, 60 Wash. 300. (Annotated) 14. The proprietor of an attraction in an amusement park, in connection with which a mallet is used, cannot escape liability for injury to a patron by the end of the han- dle striking his knee when the head flies off, on the theory that such injury could not reasonably have been anticipated. Wod- nik v. Luna Park Amusement Co. 42: 1070, 125 Pac. 941, 69 Wash. 638. 15. A patron of an attractio* 1 in an amusement park is not negligent in grasping a mallet near the head, rather than at the other end, when attempting to use it for the purpose for which it was intended, so as to prevent his holding the owner liable in case the head flies off to his injury. Wodnik v. Luna Park Amusement Co. 42: 1070, 125 Pac. 941, 69 Wash. 638. Injury to participant in race. 16. A fair association which knowingly permits a dog to be brought upon its grounds by a patron, in violation of its rule not to allow dogs thereon and especial- ly upon its race track, is liable for the acts of such patron in permitting it to run upon the track, to the injury of a participant in a race. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1G15, 17 Idaho, 63. ---- ANAESTHETIC. See ANAESTHETIC. ANALYSIS. Judicial notice as to, see EVIDENCE, 25. ANARCHY. Right to display red flag in procession, see BREACH OF PEACE, 2; EVIDENCE, 1970. See also MOBS AND RIOTS, 2. ANATOMY. Exhibition of human anatomy, see CONSTI- TUTIONAL LAW, 417 ; COURTS, 158 ; MU- NICIPAL CORPORATIONS, 145. ANCIENT INSTRUMENTS. Admissibility in evidence, see EVIDENCE, 741, 743-746. ANCIENT LIGHTS ANIMALS. ANCIENT LIGHTS. Extinguishment of easement of, see EASE- MENTS, 91. ANCILLARY ADMINISTRATION. See EXECUTORS AND ADMINISTRATORS, VI. ANCILLARY JURISDICTION. In Federal court, see COURTS, III. g. ANCILLARY PETITION. In aid of levy; jurisdiction of, see COURTS, 18. ANCILLARY PROBATE. At testator's domicil after probate in other jurisdiction, see WILLS, 112. ANCILLARY RECEIVERS. See RECEIVERS, VI. ANCILLARY SUIT. In Federal court, see COURTS, III. s. * 7 O ANESTHETIC. Right of dependent to compensation where injured workman dies under, see MAS- TER AND SERVANT, 138. Failure of master to provide physician to administer to injured employee, see MASTER AND SERVANT, 178. Death from administration of, as proximate result of accident, see PROXIMATE CAUSE, 17. ANIMALS. I. Rights and liabilities concerning, 1-4:0. a. In general; rights of owners generally, 17. b. Liability for killing or injur- ing dogs, 811. c. Liability for injuries by, 12 37. 1. In general; stock,, 1228. 2. Dogs, 2937. d. Running at large, 38. Digest 1-52 L.R.A.(N.S.) /. continued. e. Animals with infectious dis- eases. f. Tax on dogs, 39, 4O. II. Cruelty to ; criminal liability for in- jury tO, 4:14:5. As to agistment, see AGISTERS. Fright of, see AUTOMOBILES, 38-51; BLAST- ING, 3; BRIDGES, 8; EVIDENCE, 490, 1145, 1772, 1863, 1864; HIGHWAYS, 174, 199-202, 205, 277-284, 338, 353; INTER- URBAN RAILWAY, 4; MUNICIPAL COR- PORATIONS, 333, 334, 347, 359; NEGLI- GENCE, 19, 20, 194, 213, 238, 293; PLEADING, 400; PROXIMATE CAUSE, 163, 164; RAILROADS, II. d, 5, 233-235, 240- 242; STREET RAILWAYS, 47, 54, 69, 101; TRIAL, 413, 417, 425, 439, 806, 1128. Negligence of rider or driver of horse ap- proaching automobile, see AUTOMO- BILES, 67-70. Liability for injury to, or loss of, in hands of bailee, see BAILMENT, 2, 13-17; EVI- DENCE, 449; PLEADING, 240. Injury to horse on bridge, see BRIDGES, 11; HIGHWAYS, 329; TRIAL, 413. Arrest of passenger refusing to put dog in baggage car and to pay fare for it, see CARRIERS, 155. Transportation of, see CARRIERS, III. f; COMMERCE, 76-78. Injury to caretaker of stock during trans- portation, see CARRIERS, 324-328, 341, 642, 643, 670, 911-914. Injury to person on depot platform struck by animal thrown from track by en- gine, see CARRIERS, 614; TRIAL, 374, 1054. Burial of, in cemetery, see CEMETERIES, 3; INJUNCTION, 41. Mortgage on, see CHATTEL MORTGAGE, 8, 19-21, 43. Imposing grazing fee on all sheep entering state, see COMMERCE, 12, 16. Right of state to forbid importation and use of docked-tailed horses, see COM- MERCE, 38. Ordinance providing for disposal of car- cases of dead animals, see CONSTITU- TIONAL LAW, 195, 525. Constitutionality of statute requiring use of, in road work, see CONSTITUTIONAL LAW, 224. Giving humane society officer lien for caring for, see CONSTITUTIONAL LAW, Oil. Police power as to, see CONSTITUTIONAL LAW, 653-655. Damages for injury to, see DAMAGES, 292- 295. Breach of warranty on sale of horse, see DAMAGES, 188, 189; NEW TRIAL, 62, 64; SALE, 3, 89, 98, 123, 175-179, 200. Judicial notice as to conditions created by keeping of hogs, see EVIDENCE, 44. Burden of proving express company's lia- bility for death of, see EVIDENCE, 389. Presumption of negligence of owner from running away of horse, see EVIDENCE, 459-461. 50 ANIMALS. I. a. Presumption as to ownership of runaway horse, see EVIDENCE, 612. Presumption of negligence of driver of horse frightened by street car, see EVI- DENCE, 490. Increase of, burden of proving right to, see EVIDENCE, 569. Admissibility of cattle brands in evidence, see EVIDENCE, 716, 1992. Opinion evidence as to cattle brand, see EVIDENCE, 1181. Trailing of criminal with blood hound, see EVIDENCE, 1984-1988, 2356-2357 ; TRIAL, 941. Killing of horse by electric shock from street car rail, see EVIDENCE, 2166. Sufficiency of evidence to show that team was beyond control of driver, see EVI- DENCE, 2313. Variance between pleading and proof in action for injury to, see EVIDENCE, 2486. Exemption of horses from levy, see EXEMP- TIONS, 15. As game, see GAME AND GAME LAWS. Hitching horses in streets, see HIGHWAYS, 15; MUNICIPAL CORPORATIONS, 107- 110. Right to maintain cattle pass under high- way, see HIGHWAYS, 21-23. Liability for injury to, during runaway, see HIGHWAYS, 272. Liability for injury to, on defective high- way, see HIGHWAYS, 265. Right to recover for injuries caused by runaway horse coming in collision with obstruction in highway, see HIGHWAYS, 338. Negligence in leaving horse unhitched in highway, see HIGHWAYS, 338 ; STREET RAILWAYS, 101. Sale of, by Indians, see INDIANS, 4, 5. Right to enjoin erection of fence against, see INJUNCTION, 102. Injunction against trespass of fowls, see INJUNCTION, 196, 197. Insurance on, see INSURANCE, 181, 680. Horse stealing, see LARCENY, 4. Stable for horses, see LIVERY STABLE; STA- BLES. Owner's liability for servant's act in permit- ting boy to ride, see MASTER AND SERV- ANT, 909. As dangerous agency, see MASTER AND SERV- ANT, 987. Lien on logs for services of horses, see ME- CHANICS' LIENS, 37. Illegal combination for marketing of live- stock, see MONOPOLY AND COMBINA- TIONS, 41. Liability of municipality or its officers for impounding, see MUNICIPAL CORPORA- TIONS, 327. Regulating keeping of hogs within limits of municipality, see MUNICIPAL CORPORA- TIONS, 159-161. Forbidding cattle yards in residence district of city, see MUNICIPAL CORPORATIONS, 155. Forbidding exhibition of stallion on street, see MUNICIPAL CORPORATIONS, 146. Digest 1-52 L.R.A.(N.S.) Liability of retailer of mill feed for injury to cattle caused thereby, see NEGLI- GENCE, 58. Contributory negligence in driving vicious horse, see NEGLIGENCE, 240. Howling and barking of dogs as nuisance, Bee NUISANCES, 27. Stables for, as nuisance, see NUISANCES, 43- 47. Injury to, by barbed wire, see NUISANCES, 120, 127. Negligence in entrusting minor son with un- ruly horse, see PARENT AND CHILD, 21. Authority of agent to trade horse, see PRIN- CIPAL AND AGENT, 34. Sale of, by agent in excess of authority, see PRINCIPAL AND AGENT, 34-36. Proximate cause of injury to, see PROXI- MATE CAUSE, 38, 39, 100, 117. Proximate cause of injury resulting from fright of horse, see PROXIMATE CAUSE, 163, 164. Proximate cause of injury to driver of frightened horse, see PROXIMATE CAUSE, 114. Injury to, by railroad train, see RAILROADS, II. d, 6, e, 4. Purchase of stolen animals, see RECEIVING STOLEN PROPERTY, 4. Liability of merchant selling petroleum for dipping cattle for injuries resulting from use, see SALE, 90. Repudiation of purchase of, because of fraud, see SALE, 112. Conditional sale of, who must bear loss caused by death of, see SALE, 146. Pollution of water by burying carcass of, near spring, see TRIAL, 642; WATERS, 209. Injury at railroad crossing in attempting to stop runaway horse, see TRIAL, 1044. Free water supply for drinking fountains, see WATERS, 360-362. /. Rights and liabilities concerning. a. In general; rights of owners gen- erally. (See also same heading in Digest L.R.A. 1-10.) 1. It is within the legitimate field of governmental action to foster and promote the breeding of thoroughbred horses. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. 2. One who has wounded a wild animal and pursued it so that escape is impossible has a property therein -vhich he may pro- tect against one who kills and takes pos- session of it. Liesner v. Wanie. 50: 703, 145 N. W. 374, 156 Wis. 16. (Annotated) 3. The loss of its collar without the owner's knowledge, by a dog, while absent from home, does not subject the owner to fine, under a statute imposing a fine for "keeping" a dog which does not wear a collar. State v. Kelley, 42: 437, 84 Atl. 861. 85 Vt. 237. (Annotated) 4. A railroad company which permits a leaky oil car to stand near where cattle ANIMALS, I. b, c, 1. 51 are rightly accustomed to graze along a highway and its unfenced track, so that the oil forms pools, the drinking of which will be injurious to the cattle, is bound to guard the pools, or drive away cattle which it sees drinking the oil. St. Louis, I. M. & S. R. Co. v. Newman, 28: 83, 127 S. W. 735, 94 Ark. 458. (Annotated) Right to recover for injury to tres- passing animals. 5. A miner or prospector is not bound to protect a shaft or pit constructed in the course of his operations, to prevent injury to stock which has a right to run at large, and may, if the openings are not protected, fall into them. Strong v. Brown, 52: 140, 240 Pac. 773, 26 Idaho, 1. 6. One in possession of unfenced land is not liable for injury to cattle straying thereon from a public range, because he maintained a ditch or spillway on it in an unguarded condition, into which the cattle fell, although the cattle were rightfully per- mitted to roam on the range. Gillespie v. Wheatland Industrial Co. 52: 133, 140 Pac. 832, Wyo. . (Annotated) 7. A fence act (2 N. J. Ccmp. Stat. 1910, p. 2299) which provides a complete scheme for the enforcement of the mutual obligation to build and keep up partition fences, and defines various rights and pro- vides various remedies, but which is silent as to any liability for accidental injury to trespassing animals, imposes no liability on an owner who is in default, for acci- dental injury to animals of an adjoining owner which stray upon his land by reason of a defect in a fence which he failed .to repair. Van Nest v. Dealaman (N. J. Err. & App.) 52: 99, 90 Atl. 308, 85 N. J. L. 650. ft. Liability for killing or injuring dogs. (See also same heading in Digest L.R.A. 1-10.) Evidence as to value of dog killed, see EVI- DENCE, 1691. Evidence of pedigree of dog killed, see EVI- DENCE, 1275. Duty of motorman towards dogs on track, see STKEET RAILWAYS, 52. 8. The owner of a dog may maintain an action against one who wantonly and maliciously kills or injures his dog. Co- lumbus R. Co. v. Wooliolk, 10: 1136, 58 S. E. 152, 128 Ga. 631. 9. That a dog has a habit of killing fowls, and has in fact on former occasions killed some belonging to a particular per- son, does not, either at common law or un- der a statute making it criminal wilfully or carelessly to keep any such animal, en- title him to kill it, when it is merely near where the fowls are, if they are protected by a substantial barrier and the danger of its reaching them is not so imminent or im- mediately threatening that a prudent and reasonable man would be held to believe Digest 1-52 L.R.A.(N.S.) that his property was in jeopardy. State v. Smith, 36: 910, 72 S. E. 321, 156 N. C. 628. Trespassing dogs. Opinion evidence as to habits of dogs, see EVIDENCE, 1201. Criminal liability for killing dog, see MA- LICIOUS MISCHIEF, 4. 10. The owner of premises is justified in using such force in ejecting dogs which are chasing and worrying his live stock to its apparent danger, as a reasonably^ prudent man would use under like circumstances in defense and protection of his property. State v. Churchill, 19: 835, 98 Pac. 853, 15 Idaho, 645. 11. An owner of premises is justified in using such force as is necessary to eject therefrom dogs which are harassing and worrying gravid animals in such a manner as will likely cause pecuniary loss, even though he has knowledge of the traits and habits of that particular breed of dogs, and that they would not in fact kill or maim a domestic animal. State v. Churchill, 19: 835, 98 Pac. 853, 15 Idaho, 645. c. Liability for injuries fti/. 1. In general; stock,. (See also same heading in Digest L.R.A. 1-10.) Liability for communication of infectious disease, see infra, I. e. Nature of action for injury to horse let by liveryman, see ACTION OR SUIT, 85. Liability of carrier for injury by wild ani- mal, see CARRIERS, 764, 765. Evidence of viciousness of, see EVIDENCE, 1267, 1415, 1771, 2314. Opinion evidence as to tendency to become vicious after certain age, see EVIDENCE, 1202. Insurance against liability for injuries done by horses, see INSURANCE, 638. Judgment in action for damages caused by vicious conduct of horse, see JUDG- MENT, 47. Liability of master for injury by horse in hands of servant, see MASTER AND SERVANT, 906-909, 911, 912, 919, 982, 987. Master's liability for injury by horse owned by servant, see MASTER AND SERVANT, 906. Injury to servant by vicious animal, see MASTER AND SERVANT, 142, 236, 237, 642, 862. Liability of city for injury to employee by vicious horse, see MUNICIPAL CORPORA- TIONS, 408. Injury by runaway horse, see NEGLIGENCE, 188-194, 237, 241. Liability for breaking of window by chick- en, see NEGLIGENCE, 28. Proximate cause of injury by, see PROXI- MATE CAUSE, VII. 12. One in possession and control of a ferocious wolf on a public highway is lia- ble, whether he is the owner or not, for 52 ANIMALS, I. c, 1. injuries inflicted by it on another person. Iliiys v. Miller, n: 748, 43 So. 818, 150 Ala. 021. (Annotated) 13. The owner of a monkey which es- capes from the cage in which it is con- fined and attacks and injures a person while at liberty is answerable in damages for the injury so inflicted. Phillips v. Garner, 52: 377, 64 So. 735, Miss. . (Annotated) Stock. 14. The owner of a cow, who, knowing it to be vicious towards strangers, employs a stranger to milk it, assuring him that it is gentle, is liable for injuries inflicted upon him by it when he makes the attempt to do so. Thornton v. Layle, 17: 1233, 111 S. W. 279, 33 Ky. L. Rep. 382. Stock trespassing or running at large. Liability of railroad company which has cut gap in fence, for injury to crops by trespassing cattle, see CRIMINAL LAW, 2; MASTER AND SERVANT, 1013. As to effect of character of possession of plaintiff on right to maintain action for trespass by, see TRESPASS, 20. As to duties and liabilities as to fences, see FENCES. 15. No personal liability is imposed upon the owner of animals allowed to run at large for the injury done by them, by a statute making it unlawful to permit ani- mals te run at large in certain municipali- ties, and requiring them to adopt ordinances to prevent it. Jones v. Hines, 22: 1098, 47 So. 739, 157 Ala. 624. 16. No personal liability is imposed upon the owner of stock for injuries done while it is running at large, by a municipal ordi- nance which merely prohibits its doing so, and provides for impounding it in case of violation of the ordinance. Jones v. Hines, 22: 1098, 47 So. 739, 157 Ala. 624. 17. A municipal corporation cannot im- pose personal liability on a nonresident for injuries done within its limits by his stock which wandered there. Jones v. Hines, 22: 1098, 47 So. 739, 157 Ala. 624. (Annotated) 18. To hold the owner of a steer permit- ted to stray onto the highway liable for in- juries done to a traveler there, the animal must be shown to have been vicious, and the owner must be shown to have known that fact. Harris v. Carstev.s Packing Co. 6: 1164, 86 Pac. 1125, 43 Wash. 647. 19. One who knows, or should know, that his steer is vicious, is liable for injuries in- flicted by the animal on travelers, if it strays unattended on^o the highway, al- though the owner is guilty of no negligence, and has taken extraordinary precautions to prevent the animal from doing harm. Har- ris v. Carstens Packing Co. 6: 1164, 86 Pac. 1125, 43 Wash. 647. (Annotated) 20. The owner of a vicious steer is not absolved from liability for injuries inflicted by him upon a traveler on the highway by the fact that, while being driven along the highway, he jumped a cattle guard onto the right of way of an electric railway com- pany, came in contact with an electric cur- rent, and was left fo: dead, if he subse- quently revived and wandered back onto the Digest 1-52 L.R.A.(N.S-) highway and injured a passer-by. Harris v. Carstens Packing Co. 6: 1164, 86 Pac. 1125, 43 Wash. G47. 21. The owner of a cow which was at large in a public highway is not liable in damages to a person injured by being thrown from her vehicle when her horse took fright at the cow, which was lying in the traveled way, and started to get up when she attempted to drive around it. Marsh v. Koons, 16: 647, 84 N. E. 599. 78 Ohio St. 68. (Annotated) 22. The provisions of Ohio Rev. Stat. 4202, 4206, making it unlawful for the owner of animals to suffer them to run at large in the public highway, and making him liable for all damages done by them on the premises of another, are designed to prevent trespasses instead of securing the safety of travelers on the highway, and do not render the owner of an anijnal liable in damages to a person injured when her horse took fright at the animal, which was at large in the highway, contrary to the stat- ute. Marsh v. Koons, 16: 647, 84 N. E. 599, 78 Ohio St. 68. 23. An owner of part of a drover of cattle which, while being driven along the high- way, trespassed upon another's land, is lia- ble for such part of the damage done by all the cattle as the number of cattle owned by him bears to the whole number of cattle trespassing upon the land, where the evi- dence justifies the finding that they did equal damage to it. Wood v. Snider, 12: 912, 79 N. E. 858, 187 N. Y. 28. (Annotated) . 24. An owner of bulls over one year old which escape from the land of the owner to that of a neighbor, by reason of the fail- ure of the latter to keep up a portion of the division fence, in accordance with a con- tract between such owners, is not liable for the resulting damages, under a statute for- bidding the owners of bulls over one year old to permit them to run at large, since they are not deemed to be running at large within the meaning of the statute as to one whose own fault causes their freedom from restraint. Walker v. McAfee, 27: 226, 107 Pac. 637, 82 Kan. 182. 25. The owner of a boar hog is not lia- ble for a personal injury inflicted by it while straying upon the uninclosed land of the injured person, in the absence of proof that the owner had previous knowl- edge of his vicious propensities, where, by the law of the jurisdiction, the owner of animals not known to be vicious is not bound to confine them, at his peril, on his own land. Johnston v. Mack Mfg. Co. 24: 1189, 64 S. E. 841, 65 W. Va. 544. 26. A railroad company which, in the construction of its roadbed, removes the fences crossed, is liable for injury to ad- joining land by cattle which come upon its right of way from the highway through a gap in the fence, and wander off onto the land injured. Hubert v. Connell Northern R. Co. 43: 447, 129 Pac. 105, 71 Wash. 567. (Annotated) 27. One having a stubble field in a com- ANIMALS, I. c, 2, d. 53 mon inclosure with another's crops sub- ject to the statutory liability imposed for turning cattle into an inclosure where crops are growing, in case he permits a stranger to turn cattle into the inclosure to the in- jury of the crops. Shannon v. McNabb, 38: 244, 120 Pac. 268, 29 Okla. 829. 28. One owning a growing crop in an inclosure in which another has land which he desires to pasture is not, in order to minimize damages, bound to construct a fence to keep cattle off his crop, in case the latter rents the pasturage right and cattle are turned into the inclosure, con- trary to the provisions of a statute mak- ing it a misdemeanor to turn cattle into an inclosure where crops are growing. Shannon v. McNabb, 38: 244, 120 P.ac. 268. 29 Okla. 829. 2. Dogs. (8ee also same heading in Digest L.R.A. 1-10.) Injury to participant in race by presence of dog on track, see AMUSEMENTS, 16; APPEAL AND EBROB, 1241; PLEADING, 149-153, 279. Liability for injury to passenger by dog, see CARRIERS, 202. Measure of damages for injuries by bite of dog, see DAMAGES, 362. Presumption that dog will not display vi- cious propensities toward keeper, see EVIDENCE, 648. Evidence in action for injury by dog while trespassing, see EVIDENCE, 1344. Municipal liability for, see HIGHWAYS, 203; MUNICIPAL CORPORATIONS, 388. Permitting dog to run at large without muz- zle as proximate cause of injury, see PROXIMATE CAUSE, 153. Sufficiency of evidence to overcome presump- tion that domesticated animals are not vicious, see TRIAL, 161. Master's liability for act of servant in set- ting dog on person, see TRIAL, 250. 29. A turkey is an animal within the meaning of a statute rendering the owner of a dog liable for injury inflicted by it, upon any sheep, swine, cattle, or other domestic aniinal. Holcomb v. VanZylen, 44: 607, 140 N. W. 521, 174 Mich. 274. ( Annotated ) 30. A person in control of a dog at and near a race track who permits it to run on the track, to the injury of a participant in the race, is guilty of negligence rendering him liable for the damages thereby sus- tained. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. Liability of person harboring. Relevancy of evidence in action for value of sheep killed by dog, see EVIDENCE, 1809. 31. A dog which is harbored and kept about the family residence of a person and is by him permitted to follow him to a fair ground and be with or about him at the race track and under his control both before Digest 1-52 r,.R.A.(N.S.) and after a race, during which the dog ran on the track, to the injury of a participant in the race, will be regarded as in the con- trol of such person so as to render him lia- ble for the injuries done by such animal. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 32. Under a statute making the owner or keeper of a dog liable for the value of sheep killed by it, one is liable for sheep killed by a dog owned by his daughter, where she lives with and keeps house for him, and keeps the dog with his knowledge and con- sent. Holmes v. Murray, 17: 431, 105 S. W. 1085, 207 Mo. 413. (Annotated) Knowledge of vicious disposition. Sufficiency of evidence of notice of vicious character of dog, see EVIDENCE, 2109. As question for jury, see TRIAL, 161. 33. To maintain an action against the owner of a dog for injuries inflicted by the dog, it is not necessary that the same in- jury should have been committed by the dog to the kno '"ledge of its owner, but knowledge that the disposition of the dog is such that it is likely to commit a similar injury to that complained of is sufficient. Emmons v. Stevane (N. J. Err. & App. ) 24: 458, 73 Atl. 544, 77 N. J. L. 570. (Annotated) 34. The owner of a dog having vicious propensities which are directly dangerous, is bound to disclose them, if known to him, to a bailee. Emmons v. Stevane (N. J. Err. & App.) 24: 458, 73 Atl. 544, 77 N. J. L. 570. 35. A representation made to the bailee by the bailor of a vicious dog, that it is of gentle disposition, when the bailor knows to the contrary, will render such bailor liable in an action against him by the bailee for injuries inflicted upon the latter by the dog, at least in the absence of proof that the bailee was chargeable with knowledge of its true disposition. Em- mons v. Stevane (N. J. Err. & App.) 24: 458, 73 Atl. 544, 77 N. J. L. 570. 36. The owner of a dog is not liable to a person who is bitten by the dog, unless he knew that his dog was accustomed to bite persons, nor then if the injury was carelessly brought about or contributed to by the plaintiff. Warrick v. Farley, 51 : 45, 145 N. W. 1020, 95 Neb. 565. (Annotated) Contributory negligence. See also supra, 36. 37. One who voluntarily exposes himself to danger by attempting to separate two fighting dogs engaged in a combat cannot re- cover damages from the owner of the dog by which he is bitten, because he has him- self helped to create the condition and the danger. Warrick v. Farley, 51: 45, 145 N. W. 1020, 95 Neb. 565. d. Running at larffe. (See also same heading in Digest L.R.A. 1-70.J Liability for injury by stock running at large, see supra, 15-28. 54 ANIMALS, I. e ANIMUS. Election to determine whether stock shall be permitted to run at large, see ELEC- TIONS, 85; STATUTES, 359. Permitting summary killing of hogs running at large, see CONSTITUTIONAL LAW, 526. Jurisdiction of action against nonresident for permitting animal to run at large, see COURTS, 27. 38. The personal liability of a nonresi- dent owner of a cow for permitting it to run at large within the limits of a munici- pal corporation, contrary to the provisions of its ordinances, is not defeated by the fact that the ordinances also provide for proceed- ing against the animal in rem for collection of the penalty. Tutt v. Greenville, 33: 331, 134 S. W. 890, 142 Ky. 536. e. Animals with infectious diseases. (See also same heading in Digest L.R.A. 1-70.) Regulation of infected animals as affecting commerce, see COMMERCE, 16-20. Police power as to, see CONSTITUTIONAL LAW, 653, 654, 736. Subjecting cows to tuberculine test, see CONSTITUTIONAL LAW, 736. Power to require destruction of diseased cows, see CONSTITUTIONAL LAW, 653; MUNICIPAL CORPORATIONS, 162. Damages for erroneously indicating that cattle are from infected district, see DAMAGES, 25. Sale of diseased animals, see DAMAGES, 50; NEW TRIAL, 64; PLEADING, 84; SALE, 131, 132. Judicial notice as to quarantine district of southern cattle, see EVIDENCE, 35. Liability of lessee placing diseased horse in barn, see LANDLORD AND TENANT, 104. Sufficiency of allegation as to, see PLEAD- ING, 282. Bringing to state, in violation of statute, horse afflicted with glanders, as cause of damage to purchaser, see PROXIMATE CAUSE, 24. f. Tax on dogs. (See also same heading in Digest L.R.4- 1-70.) Discrimination in, see CONSTITUTIONAL LAW, 232. Due process in, see CONSTITUTIONAL LAW, 536. Police power as to, see CONSTITUTIONAL LAW, 655. Constitutionality of statute levying per capita tax on dogs, see CONSTITUTIONAL LAW, 655. Tax on dogs to indemnify owners of sheep killed thereby, see' STATUTES, 148; TAXES, 42. Compensation of collector of tax on dogs, see TAXES, 192. ment of a sum which shall go to indemnify the owners of sheep which may be injured by dogs. McGlone v. Womack, 17: 855, 111 S. W. 688, 129 Ky. 274. (Annotated) 40. A dog tax need not be uniform ac- cording to the value, when assessed by a mu- nicipality under charter authority to regu- late dogs and impose a tax on them, since it it not a property tax, but is assessed under the police power for purposes of regulation. Paxton v. Fitzsimmons, 39: 155, 97 N. E. 675, 253 111. 355. (Annotated) //. Cruelty to; criminal liability for injury to. (See also same heading in Digest L.R.A. 1-70.) Charitable gift to aid in prevention of cruel- ty to, see CHARITIES, 14. 41. A constable killing, in obedience to a valid municipal ordinance, a dog running at large without a muzzle, is not subject to punishment under a statute providing a penalty for wilfully killing dogs. State v. Clifton, 28: 673, 67 S. E. 751, 152 N. C. 800. (Annotated) 42. Dogs are within the meaning of a statute providing that larceny shall embrace every theft which unlawfully deprives an- other of his personal property, and there- fore within the meaning of a statute mak- ing one liable to punishment who shall wil- fully kill any animal of another which it is made larceny to steal. State v. Soward, ii : 1117, 103 S. W. 741, 83 Ark. 264. 43. Malice is the gist of the action in a statutory prosecution for maliciously kill- ing, maiming, or wounding a dog, and must be established beyond a reasonable doubt in order to justify a conviction. State v. Churchill, 19: 835, 98 Pac. 853, 15 Idaho, 645. (Annotated) 44. In a prosecution for maliciously kill- ing, wounding, or maiming dogs, the state must either show that the defendant enter- tained malice against the owner of the dogs, or that the killing, wounding, or maiming was characterized by such wanton and reck- less disregard of the rights of property in others as to raise the presumption of malice from the manner of the commission of the act. State v. Churchill, 19: 835, 98 Pac. 853, 15 Idaho, 645. 45. Malice toward the owner is not an ingredient of the offense created by a stat- ute providing for the punishment of every person who shall wilfully and maliciously maim a horse of another, but it is sufficient that the maiming is wilfully done to make the animal work. People v. Tessmer, 41 : 433, 137 N. W. 214, 171 Mich. 522. (Annotated) AXIMTJS. 39. The legislature may require as a con- | Evidence to show animus between murder dition of the right to keep a dog the pay- and his victim, see EVIDENCE, 1914. Digest 1-52 L.R.A. (N.S.) ANNEXATION ANTI-TRUST LAW. ANNEXATION. To county, see COUNTIES, 22, 23. To city, see MUNICIPAL CORPORATIONS, I. b. ANNUITIES. Annuity insurance, see BANKRUPTCY, 67 ; INSURANCE, 90. Presumption as to, see EVIDENCE, 558. Apportionment of income upon death of life beneficiary between distribution peri- ods, see EXECUTORS AND ADMINISTRA- TORS, 81. Interest on fund bequeathed for purchase of annuity, see INTEREST, 49. Interest on arrearages of, see INTEREST, I. e. Time for action on implied promise of dev- isee to pay, see LIMITATION OF AC- TIONS, 244. Limitation period for enforcement of lien for, on property devised, see LIMITA- TION OF ACTIONS, 269. Parties to proceeding to determine whether legatee is entitled to principal sum devised for purchase of, see PARTIES, 175. Effect on rights of remainderman, of direc- tion to trustee to whom a term of years is devised, to pay certain annuities, see PERPETUITIES, 20. Validity of perpetual annuity to charity, see PERPETUITIES, 38. Annexing condition of payment of, to devise, see WILLS, 381. Effect of death of proposed annuitant before purchase of annuity, see WILLS, 395. 1. The beneficiary is entitled to receive the principal of a fund in due course of administration, where the will directs the laying out by trustees of a certain sum in the purchase of an annuity for him. Par- ker v. Cobe, 33: 978, 94 N. E. 476, 208 Mass. 260. (Annotated) 2. In the absence of words defining the date of its commencement, a testamentary annuity ought in all cases to commence from testator's death. Ee Robbing, 2 B. R. C. 903, [1907] 2 Ch. 8. Also reported in 76 L. J. Ch. N. S. 531, 96 L. T. N. S. 755. 3. An annuity provided by a father for the widow of his son to be paid quarter- ly, which is not expressly stated to be for support and maintenance, is not apportion- able, and therefore her administrators can- not require payment to them of the ac- crued amount in case she dies between two quarterly periods. Brown v. Keach, 29: 775, 76 Atl. 846, 112 Md. 398. (Annotated) 4. Under a trust to ascertain and di- vide the net income of an estate at yearly intervals, the estate of one dying before a division period is not entitled to an allot- ment when the period arrives. Green v. Bissell, 8: ion, 65 Atl. 1056, 79 Conn. 547. 5. The amount to which personal repre- sentatives of one for whom a testator has directed an annuity of a certain sum to be Digest 1-52 L.R.A.(N.S.) purchased, but who died before such pur- chase was made, are entitled is such a sum as at the date of the death of the testator would have purchased the annuity, and not such a sum as would have purchased it at the time when the legacies became payable. Re Robbins, 2 B. R. C. 903, [1907] 2 Ch. 8. Also reported in 76 L. J. Ch. N. S. 531, 96 L. T. N. S. 755. ANNUITY INSURANCE. Right of trustee in bankruptcy to set aside annuity insurance, see BANKRUPTCY, 67. Validity of annuity insurance contract, see INSURANCE, 90. ANNULMENT. Of marriage, see MARRIAGE, IV. Of attempted extinguishment of mortgage, see MORTGAGE, 82. ANSWER. See PLEADING, III. ANTENUPTIAL CONTRACT. See HUSBAND AND WIFE, II. i. ANTICIPATED INJURY. Injunction to prevent, see INJUNCTION, 15- 18. ANTICIPATORY BREACH. Of building contract, see CONTRACTS, 728a. ANTI-TETANUS SERUM. Death by administration of, as accident, see INSURANCE, 744. ANTI-TRUST LAW. Combinations in violation of, generally, see MONOPOLY AND COMBINATIONS, II. Right of state to appeal in prosecution un- der, see APPEAL AND ERROR, 48, 49. Scope of review on appeal to Federal Su- preme Court in prosecution under, see APPEAL AND ERROR, 58. 56 APARTMENT HOUSE APPEAL AND ERROR. Delegation of power by, see CONSTITUTIONAL LAW, 86. Due process in investigating violations of, see CONSTITUTIONAL LAW, 571. Subpoenaing witnesses to testify to knowl- edge of violation of, see CONSTITUTION- AL LAW, 571. Jurisdiction of suit to restrain violation of, see COURTS, 264. Who entitled to action for violation of, see PABTIES, 3. Effect of partial invalidity, see STATUTES, 75. Repeal of, see STATUTES, 139, 331. Error in directing verdict for defendant charged with violation of, see TKIAL, 777. Privilege of witness subpoenaed to testify as to violations of, see WITNESSES, 132, 133. APARTMENT HOUSE. Erection of, as breach of restrictions in deed, see COVENANTS AND CONDITIONS, 74. Landlord's duty to keep heating apparatus in repair, see LANDLORD AND TENANT, 164, 165. APOLOGY. As defense to action for battery, see AS- SAULT AND BATTERY, 34. APPEAL AND ERROR. 7. Appellate jurisdiction generally, 1-55. a. In general, 119. b. Finality of decision, 2045. c. Criminal cases, 4649. d. Modes of review, 5O55. II. Jurisdiction of particular courts, 56-79. a. Of Supreme Court of United States, 5667. 1. In general, 5659. 2. Over state courts, GO 67. "b. Of circuit courts of appeals, 68. c. Of state courts, 6979. 1. Generally, 6975. 2. Over constitutional ques- tions; validity of stat- utes, 7678. 3. Over questions of title. 4. Amount necessary for jurisdiction, 79. III. Transfer of cause; parties, 8O 149. a. Right to transfer, SO 98. b. Effect; subsequent proceed- ings in court beloiv, 99 111. Digest 1-52 L.R.A.(N.S.) ///. continued. c. Parties, 112-115. d. Mode; conditions; regula- tions, 116126. e. Citation; notice; appearance, 127-132. f. Time, 133-14O. g. Security, 141149. IV. Record and case in appellate court, 15O292. a. In general, ISO 156. b. What should be shown by, 157-17O. c. Contradictions in, 171. d. Amending; perfecting, 172 181. e. Affidavits. f. Evidence, 182194. g. Stenographer's notes. h. Instructions, 195, 196. i. Findings, 197 2OO. j. Opinions, 2O1. 7c. Motions and orders, 2O2, 2O3. 1. Certificates, 2O42O7. m. Abstracts, 2O8213. n. Case made; statements, 214-221. o. Bill of exceptions, 222257. 1. In general, 222228. 2. Sufficiency; what should be presented by, 229 250. 3. Signing; settling; prac- tice; authentication, 251-253. 4. Time for, 254257. p. Assignments of error; join- der in error, 257a286. 1. In general; necessity of, 257a264. 2. Sufficiency; definiteness, 265-281. 3. Cross errors, 282286. q. Waiver of assignments of error. r. Briefs, 287292. V. Objections and exceptions; rais- ing questions in lower court, 293386. a. Definiteness; sufficiency, 293-337. 1. In general, 293 3O7. 2. To evidence, 3O8318. a. Admission of, 3O8- 318. b. Exclusion. 3. To instructions, 319 337. b. Necessity for exceptions, 338-358. c. Time for exceptions, 359 364. d. Raising questions by motion or other mode, 365386. VI. Preliminary motions; dismissal; abatement; abandonment, 387-4O2. a. In general, 387389. b. Grounds for dismissal, 39O 4O2. APPEAL AND ERROR. VII. Hearing and determination, 4O3-1561. a. In general; rules of de- cision, 4O3415. b. Who may complain, 416 423. c. Evidence; amendments; trial de novo, 424431. d. Presumptions, 432479. e. What reviewable generally, 48O-516. f. Decisions in favor of party, or not affecting him, 517 526. g. Objections as to which parti/ is estopped, 527547. 1. In general, 527534. 2. By requesting or obtain- ing ruling or decision, 535-547. h. Interlocutory matters; or- ders, etc., not appealed from, 548556. i. Discretionary matters, 557 686. 1. In general; costs; con- tempt, 557-576. 2. Continuance or adjourn- ment, 577-583. 3. As to pleadings; indict- ment, 584598. 4. As to evidence; wit- nesses; physical exam- ination, 599628. 5. Injunction; receivers, 629-638. 6. Conduct of trial; jury, 639662. 7. Vacation or ^suspension of judgment or verdict ; new trial, 663686. j. Questions not raised beloiv, 687-806. 1. In general, 687 7 O5. 2. Jurisdiction, 7O671O. 3. Causes of action or de- fenses ; new theories, 711-749. 4:. As to pleadings; indict- ments, etc., 75O768. 5. As to evidence; witness- es; variance, 769789. 6. As to jury. 7. As to instructions ; ques- tions submitted to jury, 790-799. 8. As to judgment, verdict, etc., 8OO8O6. Tc. Errors waived or cured be- low, 807-873. 1. In general, 8O7817. 2. As to pleadings, 818 827. 3. As to evidence, 828844. 4. As to instructions, 845 864. 5. Talcing case from jury, 865872. 6. Refusal to change ven- ue, S73. I. Review of facts, 8741O2O. 1. In general, 874 88O. Digest 1-52 L.R.A.(N.S.) VII. I continued. 2. Of verdict, 881-949. a. In general, 881 932. b. As to damages and values, 933949. 3. Of findings of court, 95O-1OO5. a. In general, 95O 996. b. In equity, 997 1OO4. c. Where jury has been waived, 1OO5. 4. Of findings by referee, commission, etc., 1OO6- 1018. 5. On appeal from appel- late court, 1O19, 1O2O. m. What errors warrant re- versal, 1O211561. 1. In general, 1O211O53. 2. As to pleadings, 1O54 1O88. 3. As to evidence, 1OS9 1274. a. In general; errone- ous admis- sions, 1 O89 1199. (1) In general ; va- rious particu- lar matters, 1089-1130. (2) Immate rial ; admitted or uncontrovert- ed facts, 1131-1155. (3) Facts otherwise proved, 1156-1177. (4) Witnesses and their exami- nation, 1178-1183. (5) Error cured by instruct ion, verdict, etc., 1184-1199. b. Erroneous exclusion, 12OO-1268. c. Refusal to strike out, 1269, 127O. d. Variance, 1271. e. In cases tried ivith- otit jury, 1272 1274. 4=. As to instructions, 1275 1439. a. Instructions given, 1275-1395. (1) Generally ; miscellaneous matters, 1275-1337. (2) As to negli- gence, 1338 1354. (3) As to damages, 13551371. 53 APPEAL AND ERROR. VII. m, 4, a continued. (4) As to witness- es, 1372- 1377. (5) Upon facts and evidence, 1378-1395. b. Failure or refusal to instruct, 1396 1438. c. Modification of in- struction, 1439. 5. Argument, remarks or conduct of counsel, 144O-146O. 6. Remarks or conduct of judge, 1461-1472. 7. As to jury; conduct of trial, 1473-1528. a. In general, 1473 149O. b. Summoning and se- lection of jury, 1491-1502. C. Conduct of, or inter- ference ivith jury, 1503-1508. d. Submission of is- sues; directing ver- dict, 1509-1528. 8. As to findings, verdict, or judgment, 1529 1561. n. Effect of matters occurring after decision below. VIII. Judgment, 15621668. a. In general, 15621578. b. Rendering modified judg- ment, 1579 16O3. c. Remanding; granting new trial, 16041632. d. Costs; interest; damages for delay, 1633-1641. e. Effect of decision; subse- quent proceedings, 1 642 1667. f. Correction, 1668. IX. Rehearing, 1669, 167O. X. Liability on appeal bond, 1671, 1672. Effect of death pending, to abate proceed- ing, see ABATEMENT AND REVIVAL, 22. From conviction for contempt, see ACTION OE SUIT, 67; CONTEMPT, 79. Sequestering books pending appeal from con- tempt order for refusing to produce them, see CONSTITUTIONAL LAW, 364. Waiver of defect in, by appearance, see AP- PEARANCE, 12. Effect of death pending, of one of several attorneys who have agreed to share con- tingent fee, see ATTORNEYS, 63. For certified question, see CASES CERTIFIED. Existence of right to appeal as bar to cer- tiorari, see CERTIORARI, 10-12. Attempt to confer upon courts by means of appeal jurisdiction over questions of governmental or administrative policy, see CONSTITUTIONAL LAW, 125. Due process as to, see CONSTITUTIONAL LAW, 544-547. Digest 1-52 !L.R.A.(N.S.) Statute as to burden of proof on appeal from orders of railway commission, see CONSTITUTIONAL LAW, 619. Right of appellate court to prescribe rules for government of trial court, see COURTS, 9. Delay after expiration of period allowed for perfecting of, in compelling convict to begin term of service, see CRIMINAL LAW, 257. Validity of contract executed by convict pending appeal from conviction, see DEEDS, 21. In eminent domain proceedings, see EMI- NENT DOMAIN, II. d. Effect of right to have judgment reviewed on appeal on right to relief in equity, see EQUITY, 56; INJUNCTION, 289. Judicial notice of, see EVIDENCE, 12, 13. Presumption that judgment has not been reversed, see EVIDENCE, 95. Sufficiency of evidence to show unreason- ableness of order of railway commission on appeal therefrom, see EVIDENCE, 23, 39. Effect of failure to pursue remedy by, on right to habeas corpus, see HABEAS CORPUS, 40, 74. Substituting writ of habeas corpus for, see HABEAS CORPUS, 7. In habeas corpus proceeding generally, see HABEAS CORPUS, 72. Appeal to gas commissioners where alder- men fail to act on petition for location of pipe line, see HIGHWAYS, 47. From commitment of person to hospital for insane, see INCOMPETENT PERSONS, 19. Injunction to restrain enforcement of judg- ment wjiere law court refuses stay pending appeal, see INJUNCTION, 277. By beneficiary of insurance from conclusion of medical director, see INSURANCE, 613. Costs on appeal as covered by employers' liability insurance, see INSURANCE, 921, 922. Liability of indemnity insurance company conducting litigation for expenses of, see INSURANCE, 922. Effect of failure to appeal from order over- ruling motion to set aside nonsuit, see JUDGMENT, 113. Parent's right to appeal from order ad- judging child to be a delinquent, see JUDGMENT, 242. Original suit in equity to impeach judg- ment where right to appeal therefrom has been lost, see JUDGMENT, 390. From justice's judgment, see JUSTICE OF THE PEACE, IV. Running of limitations against unappealed judgment, see LIMITATION OF ACTIONS, 219. Lease of property from successful litigant pending appeal, see Lis PENDENS, 10. Sufficiency in appellate court of pleading in justice's court, see PLEADING, 22. As adequate remedy which will prevent is- suance of writ of prohibition, see PRO- HIBITION, 3, 6. APPEAL AND ERROR, I. a. 59 Effect of removal to Federal court after ap- peal to state court, see REMOVAL OF CAUSES, 32. As to bill of review, see REVIEW. Statute denying appeal in proceeding to con- test local option election, see STATUTES, 181. Retrospective construction of statute ex- tending right of, see STATUTES, 295. From tax assessment, see TAXES, 198-201. Effect of dissolution of corporation on writ of error sued out against, see CORPO- EATIONS, 392. I. Appellate jurisdiction generally, a. In general. (See also Division I. in Digest L.R.A. 1-10.) 1. A grant of appellate jurisdiction im- plies that there is included in it the power necessary to its effective exercise and to make all orders that will preserve the sub- ject of the action and give effect to the final determination of the appeal. Kjel- lander v. Kjellander, 45: 943, 132 Pac. 1170, 90 Kan. 102. 2. A petition in error to review a judg- ment or final order of an inferior court is a separate and independent proceeding. Lever- ing v. National Bank, 43:611, 100 N. E. 322, 87 Ohio St. 117. 3. The legislature may make the juris- diction of the trial court final when once established in proceedings for contesting local option elections, notwithstanding the Constitution provides that the supreme court is vested with power to issue writs of review to the complete exercise of its appellate and revisory jurisdiction, since the determination of election contests is one of legislative, rather than of judicial, power. State ex rel. McCallum v. Superior Ct. 44: 1209, 129 Pac. 900, 72 Wash. 144. (Annotated) 4. An order allowing an amendment of the complaint after judgment, to show ju- risdiction, although void, is appealable. Holton v. Holton, 48: 779, 129 Pac. 532, 64 Or. 290. 5. A writ of error does not lie from an order striking out a demurrer as frivolous, and not upon the ground that it is irregular or defective. King v. Morris (N. J. Err. & App.) 14: 439, 68 Atl. 162, 74 N. J. L. 810. 6. The installation by a gas company of a single meter in an apartment house, and the connection of the building with its mains, after the dismissal of a petition for mandamus to compel it to install a meter in each apartment, is not a termination of the controversy, which will destroy the jurisdiction of the appellate court. State ex rel. Hallett v. Seattle Lighting Co. 30: 492, 110 Pac. 799, 60 Wash. 81. 7. No appeal lies from a judgment re- fusing to establish a mortgage lien and a lien for advances made and taxes paid, where the statute allows appeals only in case a money judgment is entered or the judgment relates to a franchise or freehold. Hallett v. Digest 1-52 L.R.A.(N.S.) Alexander, 34: 328, 114 Pac. 490, 50 Colo. 37. 8. A statutory provision allowing an appeal from any special order made after a final judgment applies to an order over- ruling a motion to vacate the judgment and render one consistent with answers re- turned by the jury, notwithstanding the statute allowing such motions provides only that an order "granting" such motion may be reviewed on appeal. Bond v. United Railroads, 48: 687, 113 Pac. 366, 159 Cal. 270. 9. No absolute right of appeal from an order or judgment of a probate court is granted by article 5 of the Idaho Constitu- tion, either by 13 thereof, prohibiting the legislature from depriving the judicial de- partment of any power or jurisdiction right- fully pertaining thereto, and requiring that the legislature provide a proper system of appeals, or by 20 thereof, providing that the district court shall have original juris- diction in all cases, both at law and in equi- ty, and such appellate jurisdiction as is conferred by law; but on the contrary, the discretion is granted thereby to the legis- lature either to confer or withhold the right of appeal in any or all matters coming be- fore the probate court. Re Sharp, 18: 886, 96 Pac. 563, 15 Idaho, 120. 10. A statute permitting an appeal to the circuit court by a railroad company in a condemnation proceeding upon paying into court the damages and costs assessed, pend- ing which it may take possession of the land, will permit an appeal to the court of ap- peals upon the same terms, so that the pay- ment of damages and taking possession of the property will not be regarded as an abandonment of the later appeal. Madison- ville, H. & E. R. Co. v. Ross, 13: 420, 103 S. W. 330, 126 Ky. 138. 11. An order for an inspection and copy of documents, under a statute permitting the granting of such an order, is reviewable aft- er judgment, as an intermediate order in- volving the merits. Atchison, T. & S. F. R. Co. v. Burks, 18: 231, 96 Pac. 950, 78 Kan. 515. 12. An order sustaining a demurrer to a petition to contest a local-option election is a determination of the merits, from which no appeal can be taken, under a statute pro- viding that the trial court shall have final jurisdiction to hear and determine the merits of such cases. Saylor v. Duel, 19: 377, 86 N. E. 119, 236 111. 429. 13. A provision in a local-option law that the county court shall have final jurisdic- tion to hear and determine the matter of contested elections under the statute makes inapplicable a general statute providing for appeals in contested-election cases, and pre- vents an appeal in such cases. Saylor v. Duel, 19: 377, 86 N, E. 119, 236 111. 429. 14. The appellate court cannot dispose of the merits of a case upon appeal of an equi- ty cause, of the merits of which the nisi prius court had no jurisdiction. Kelly v. Conner, 25: 201, 123 S. W. 622, 122 Tenn. 339. GO APPEAL AND ERKOR, I. b. 15. An appeal from an order dismissing a bill seeking an injunction against the sale under execution of property alleged to be exempt, and directing the sheriff to pro- ceed with the sale, after refusing to en- large the preliminary injunction so as to extend the time of its operation, is not prevented by a statute denying an appeal from a refusal of the court to enlarge an injunction. Neblett v. Shackleton, 32: 577, 69 S. E. 946, 111 Va. 707. 16. A plaintiff who actively acquiesces in an appeal by defendant from an order of the trial court allowing an amendment waives any estoppel against such appeal which may have existed by reason of the ac- ceptance and retention by defendant of money paid pursuant to such order. Todd v. Bettingen, 18: 263, 113 N. W. 906, 102 Minn. 260. Habeas corpus. 17. An appeal does not lie from an order in habeas corpus, discharging a party held for a criminal offense. Wisener v. Burrell, 34: 755, 28 Okla. 546. (Annotated) 18. No practical purpose can be sub- served by the prosecution by the state of an appeal from an order discharging a pris- oner from custody under a writ of habeas corpus. Ex parte Williams, 22: 238, 63 S. E. 108. 149 N. C. 436. 19. An appellate court may treat a habeas corpus proceeding to secure the re- lease of one in custody under a body ex- ecution as a motion to recall the execution and discharge the defendant, a decision upon which would be appealable. Ledford v. Em- erson, 10 : 362, 55 S. E. 969, 143 N. C. 527. b. Finality of decision. (See also same heading in Digest L.R.A. 1-10.) 20. An order denying a motion for judg- ment notwithstanding the verdict is non- appealable. Houston v. Minneapolis St. P. & S. Ste. M. R. Co. 46: 589, 141 N. W. 9C4, 25 N. D. 469. 21. An order granting a nonsuit is ap- pealable. Segusky v. Williams, 36: 230, 71 S. E. 971, 89 S. C. 414. 22. An order refusing to set aside a ver- dict upon an issue directed by the chancery court to be tried at law in an action to quiet title to real estate is appealable under a statute giving a right to the issue, and mak- ing the verdict a final determination of the question submitted so long as it is permitted to stand. Brady v. Cartaret Realty Co. (N. J. Err. & App.) 8: 866, 64 Atl. 1078, 70 N. J. Eq. 748. 23. An order in a proceeding to compel the officers of a corporation, defendant in an action, to produce books and papers for inspection before trial, made upon petition and answer in the nature of a demurrer thereto, directing such production, is final, so as to be subject to review by writ of error, where the penalty for noncompliance is not a proceeding for contempt, but the entry of a default judgment against def end- Digest 1-52 L.R.A.(N.S.) I ant in the principal action. Cassatt T. 1 Mitchell Coal & Coke Co. 10: 99, 150 Fed. 32, 81 C. C. A. 80. 24. The judge of the trial court may take jurisdiction of an appeal from the action of the clerk in taking jurisdiction of a supplementary proceeding while the ap- peal is pending in a simitar proceeding be- tween the same parties. Ledford v. Emer- son, 10: 362, 55 S. E. 969, 143 N. C. 527. 25. A decree awarding suit money and alimony against the guardian of defendant in a divorce suit, who appears to defend on behalf of his ward, is within the provision of a statute authori/ing appeal from a final decision. Sturgis v. Sturgis, 15: 1034, 93 Pac. 696, 51 Or. 10. 26. An order denying a motion to set aside service of process made after entry of a default judgment is within a statute allowing an appeal from a final order af- fecting a substantial right, made upon a summary application in an action after judgment. Rix v. Sprague Canning Mach. Co. 52: 583, 147 N. W. 1001, 157 \Vis. 572. 27. No appeal lies from an order refus- ing to dismiss an action brought by the state to determine which of two sets of trus- tees is entitled to administer a sectarian school, but the entry of appeal may be treat- ed as an exception upon appeal from the final judgment. State ex rel. Kerr v. Hicks, 33: 529, 70 S. E. 468, 154 N. C. 265. 28. In proceedings to register a land title, under Minnesota Rev. Laws 1905, chap. 65 ( 3370-3451), commonly known as the Torrens law, no appeal lies from a denial of a defendant's application for a jury trial, nor from an order denying a de- fendant's motion to dismiss the appli- cation. Peters v. Duluth, 41: 1044, 137 N. W. 390, 119 Minn. 96. As to pleadings. 29. A judgment on demurrer is a final judgment, reviewable on error. Toralinson v. Armour & Co. (N. J. Err. & App.) 19: 923, 70 Atl. 314, 75 N. J. L. 748. 30. Appeal lies from an order overruling a demurrer to a bill in equity. Darcey v. Bayne, 10: 863, 66 Atl. 434, 105 Md. 365. 31. Permitting defendants in default to file pleadings after a reversal of a judg- ment on demurrer of part of the defend- ants, because the petition fails to state a cause of action, before any amendment of the petition, is not a final judgment from which a writ of error will lie. Tate v. Goode, 33: 310, 70 S. E. 571, 135 Ga. 738. 32. An order, after judgment, attempt- ing to amend the complaint to show juris- diction, is within a statute providing that, for the purpose of review, a final order at- fecting a substantial right, and made after judgment, shall be deemed a judgment. Holton v. Holton, 48: 779, 129 Pac. 532, 64 Or. 290. As to new trial; affecting judgment. 33. The granting or denying of a motion for a new trial is not a final order from which an appeal lies. First Nat. Bank r. McCullough, 17: 1105, 93 Pac. 366, 50 Or. 508. APPEAL AND ERROR, I. c, d. 61 34. An order vacating a judgment and granting a new trial is not within the pro- vision of a statute allowing an appeal from a final judgment or order. Nelson v. Mee- han, 12: 374, 155 Fed. 1, 83 C. C. A. 597. 35. An appellate court has jurisdiction of an appeal from an order setting aside a judgment and granting a new trial, when the trial court, in so doing, acted in excess of its authority. Nelson v. Meehan, 12: 374, 155 Fed. 1, 83 C. C. A. 597. As to costs. 36. A decree for such costs as are dis- cretionary is not appealable; but a decree for costs not in the discretion of the court is appealable under W. Va. Const, art. 8, 3, if they amount to more than $100. Nutter v. Brown, i: 1083, 52 S. E. 88, 58 W. Va. 237. 37. Although an appeal will not ordina- rily lie from a decree for costs only in a chancery suit, there are exceptions to the rula, depending on the question of the dis- cretionary power of the trial court as to costs. Nutter v. Brown, i : 1083, 52 S. E. 88, 58 W. Va. 237. (Annotated) 38. Extraordinary costs, sudi as allow- ances of expenses and compensation of re- ceivers, either as between the receiver and the fund in court and parties, or as between party and party, are not discretionary, and a decree respecting such costs is appealable. Nutter v. Brown, i: 1083, 52 S. E. 88, 58 W. Va. 237. 39. A decree alllowing expenses and com- pensation of a receiver out of the fund, with a provision that it shall ultimately be paid to the party entitled to the fund by his adversary, is appealable. Nutter v. Brown, i: 1083, 52 S. E. 88, 58 W. Va. 237. As to injunction. 40. The judgment of a court, refusing to grant immediate relief by way of mandatory injunction to compel the restoration of the status of immovable property, is so far final as to entitle the applicant to an ap- peal. Vicksburg, S. & P. R. Co. v. Web- ster Sand, G. & Constr. Co. 47: 1155, 62 So. 140, 132 La. 1051. 41. An appeal lies from an order of court denying the application of the plain- tiff for a mandatory injunction to compel the defendant to restore the status of immovable property which he, in violation of an injunction, has disturbed. Vicks- burg, S. & P. R. Co. v. Webster San-i, G. & Constr. Co. 47: 1155, 62 So. 140, 132 La. 1051. As to receivers. 42. A bill of exceptions to a refusal of a state court to direct its receiver to turn over the property in his possession to a re- ceiver appointed by a Federal court is with- in a statute classifying as "fast writs" all those taken from judgments granting or refusing applications for extraordinary remedies. Young v. Hamilton, 31 : 1057, 69 S. E. 593, 135 Ga. 339. 43. Appeals from decrees directing mem- bers of a social club to pay assessments, disallowing the claim of receivers for special assessments against them, and al- Digest 1-52 L.R.A.(N.S.) lowing claims against the assets of the club, will lie without waiting for a final decree distributing its assets. Rogers v. Boston Club, 28: 743, 91 N. E. 321, 205 Mass. 261. Contempt. 44. An order of the circuit court affirm- ing an order of a court commissioner ad- judging a witness to be in contempt for refusing to answer questions as directed by a ruling affirmed by the circuit court, and fixing his punishment therefor, is a final order in a special proceeding, within the meaning of a statute making such an order appealable. Karel v. Conlan, 49: 826, 144 N. W. 266, 155 Wis. 221. Probate decrees. 45. An order of the probate court grant- ing or refusing an allowance to a widow for her support out of the estate of her deceased husband is a final order, and is appealable. Rieger v. Schaible, 17: 866, 115 N. W. 560, 116 N. W. 953, 81 Neb. 33. c. Criminal cases. (See also same heading in Digest L.R.A. 1-10.) 46. A city may sue out a writ of error to review a judgment discharging one ac- cused of violating an ordinance subjecting him to a penalty. St. Louis v. Bender, 44: 1072, 154 S. W/88, 248 Mo. 113. 47. A judgment is not properly entered on a plea of guilty, when the court did not satisfy itself of the voluntary character of the plea, or that the accused understood by his pleading that he was waiving immunity to which he was entitled for giving testi- mony in another case, or intended to effect such waiver, so as to come within the rule that no appeal can be taken from a judg- ment so entered. Lowe v. State, 24: 439, 73 Atl. 637, 111 Md. 1. Right of state to appeal. 48. A judgment of a Federal circuit court sustaining a demurrer to certain counts in an indictment charging violations of the anti-trust act of July 2, 1890, upon the ground that the acts charged are not within the condemnation of that statute, is based upon a construction of such stat- ute within the meaning of the act of March 2, 1907, governing the right of the govern- ment to a review in a criminal case. Unit- ed States v. Patten, 44: 325, 33 Sup. Ct. Rep. 141, 226 U. S. 525, 57 L. ed. 333. 49. In a proceeding by the state against an incorporated board of trade and its of- ficers, charging them with violation of the anti-trust statute, the state may appeal from a judgment in favor of the defendant. State v. Duluth Bd. of Trade, 23: 1260, 121 N. W. 395, 107 Minn. 506. d. Modes of review. (See also same heading in Digest L.R.A.. 1-70.) 50. A proceeding for violation of a mu- nicipal police ordinance which is not a pub- 62 APPEAL AND ERROR, IT. a, 1, 2. lie offense under the statutes is, for the purpose of determining the method of re- view, a civil, and not a criminal, proceeding, although a fine to be enforced by im prison- merit is provided for the violation. Fortune v. Wilburton, 4: 782, 142 Fed. 114, 73 C. C. A. 338. (Annotated) I 51. A prayer for appeal from a decision in bankruptcy, which proves to be an er- roneous method of procedure, cannot be treated as a prayer for revision of the de- cree. Dickas v. liarnes, 5: 654, 140 Fed. 849, 72 C. C. A. 261. 52. Petition to review, and not appeal, is the proper method to bring into review the action of a bankruptcy court in taking actu- al possession of assets of members of an insolvent partnership who are not them- selves adjudged bankrupt. Dickas v. Barnes, 5: 654, 140 Fed. 849, 72 C. C. A. 261. 53. Appeal, and not petition to review, is the proper method of reviewing proceed- ings in a bankruptcy court which involve a controversy such as a demand by the trus tee that proceeds of a sale made by a re- ceiver be paid to him, rather than a mere proceeding in bankruptcy. Mason v. Wolko- wich, 10: 765, 150 Fed. 699, 80 C. C. A. 435. (Annotated) 54. A petition for review is the proper method of taking to th? circuit court of ap- peals the question of the correctness of an order committing a bankrupt for failure to turn over property, in the exercise of the authority conferred upon the bankruptcy court by the act of 1898. Re Cole, 23: 255, 163 Fed. 180, 90 C. C. A. 50. 55. Appeal is the proper remedy to re- view a decree of a bankruptcy court disal- lowing at the suit of a trustee of a bankrupt corporation the claim of the wife of one of its members to dower in lands held in his individual name, but alleged to belong to the corporation. Thomas v. Woods, 26: 1180, 173 Fed. 585, 97 C. C. A. 535. 77. Jurisdiction of particular courts. a. Of Supreme Court of United States. 1. In general. (See also same heading in Digest L.R.A. 1-70.) See also infra, 68. 56. The right to a direct appeal to the Supreme Court under the statute distrib- uting appellate jurisdiction between that court and the circuit court of appeals is not established by a mere assertion of the right under some claimed construction or application of the Constitution, nor by a claim that a pertinent act of Congress is violative of the Constitution, but the claim must be real and substantial, and not mere- ly colorable, or without reasonable founda- tion. Harris v. Rosenberger, 13: 762, 145 Fed. 449, 76 C. C. A. 225. 57. A question of the construction or application of the Constitution, or of the Digest 1-52 L.R.A.(N.S.) constitutional validity of an act of Con- gress, which h..s been directly determined by the Supreme Court of the United States, no longer constitutes a ground for a direct appeal to that court, under the statute dis- tributing the appellate jurisdiction between it and the circuit court of appeals. Harris v. Rosenberger, 13: 762, 145 Fed. 449, 76 C. C. A. 225. Over district and circuit courts. See also infra, 207. 58. The Federal Supreme Court, when reviewing, under the criminal appeals act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564), the judgment of a Federal circuit court whose ruling sustaining a demurrer to certain counts in an indictment charging violatins of the anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 647), was based upon the construction of that stat- ute, must accept the circuit court's con- struction of the counts of the indictment, and can consider only whether the decision that the acts charged are not condemned as criminal by the statute is based upon an erroneous construction of that statute. United States v. Patten, 44: 325, 33 Sup. Ct. Rep. 141, 226 U. S. 525, 57 L. ed. 333. 59. The jurisdiction of a Federal circuit court as a Federal court is so involved as to sustain a direct writ of error from the Federal Supreme Court under the act of March 3, 1891, 5, in a judgment dismiss- ing the suit on the ground of the invalidity of the attachment and garnishment of the property of the nonresident defendant, and upon the lack of a general appearance by such defendant. Davis v. Cleveland, C. C. & St. L. R. Co. 27: 823, 30 Sup. Ct. Rep. 463, 217 U. S. 157, 54 L. ed. 708. 2. Over state courts. (See also same heading in Digest L.R.A. 1-70.) 60. The exercise by a state court of its independent judgment in interpreting the statute of another state upon which the cause of action is based can present no question under the full faith and credit clause of the Federal Constitution for re- view in the Federal Supreme Court by writ or error to a state court, where there is no local statute controlling the construc- tion of statutes of other states, and no settled construction of the statute by the courts of the state enacting it is pleaded or proved. Louisville & N. R. Co. v. Melton, 47: 84, 30 Sup. Ct. Rep. 676, 218 U. S. 36, 54 L. ed. 921. 61. The Federal Supreme Court, on writ of error to a state court, will accept that court's construction of a state statute giv- ing a lien on vessels for injuries committed by them to persons or property, as including injuries to a bridge, caused by a foreign vessel engaged in interstate commerce. Martin v. West, 36: 592, 32 Sup. Ct. Rep. 42, 222 U. S. 191, 56 L. ed. 159. 62. The nature and character of the rights of the surviving wife in the com- APPEAL AND ERROR, II. b, c, 1. 63 munity property are peculiarly local ques- tions, not open to review by the Federal Supreme Court when determining, on a writ of error to a state court, whether the imposition of an inheritance tax under the state laws denies to the wife the equal pro- tection of the laws. Moflitt v. Kelly, 30: 1179, 31 Sup. Ct. Rep. 79, 218 U. S. 400, 54 L. ed. 1086. 63. Whether or nol the rights of a sur- viving wife in the community property as they existed when the marriage was cele- brated were correctly subjected to a state inheritance tax law subsequently enacted cannot be reviewed by the Federal Supreme Court when determining, on writ of error to a state court, the validity of such stat- ute under the contract clause of the Fed- eral Constitution. Moffitt v. Kelly, 30: 1179, 31 Sup. Ct. Rep. 79, 218 U. S. 400, 54 L. ed. 1080. Federal questions presented. 64. A writ of error to review a judg- ment of the highest court of a state will not be dismissed on the ground that the Federal question relied upon to confer juris- diction has been so conclusively foreclosed by prior decisions of the Federal Supreme Court as to cause it to be frivolous, where analysis and exposition are necessary in order to make clear the decisive elfect of such prior decisions upon the issue present- ed, and there is some conflict in the opin- ions of the various state courts of last re- sort upon the question, and a division of opinion in the court below. Louisville & N. R. Co. v. Melton, 47: 84, 30 Sup. Ct. Rep. 676, 218 U. S. 36, 54 L. ed. 921. 65. The ruling of a state court that the power to penalize a railway company for failure to furnish cars on demand arose from a state statute instead of from a rule adopted by the railroad commission, which was challenged as repugnant to the Federal Constitution, does not eliminate the Federal questions from the case, so as to require the dismissal of a writ of error from the Federal Supreme Court, where the constitutional defenses asserted by the pleadings and embraced in the instructions asked and refused were not confined to the mere order as such, but plainly challenged the power of the state to inflict the penalty for the failure ID furnish the cars under the circumstances disclosed by the pleadings. St. Louis S. W. R. Co. v. State, 29: 802, 30 Sup. Ct. Rep. 476, 217 U. S. 136, 54 L. ed. 698. Time and mode of raising Federal question. 66. The full faith and credit clause of the Federal Constitution must be pleaded, or the attention of the court below direct- ed to the fact that, in connection with the proper construction of a statute of another state, reliance was placed upon that clause, in order to present a Federal question for review in the Federal Supreme Court by writ of error to a state court. Louisville & N. R. Co. v. Melton, 47: 84, 30 Sup. Ct. Rep. 676, 218 U. S. 36, 54 L. ed. 921. 67. Federal questions first raised by ex- Digest 1-52 L.R.A.(N.S.) ceptions to the report of a special commis- sioner to whom an original proceeding in the highest state court had been referred to take evidence and report his conclusions will support a writ of error from the Fed- eral Supreme Court although the highest state court did not refer to the Federal questions in its opinion, and although that court has laid down the rule that constitu- tional questions must be raised at the first opportunity. International Harvester Co. v. Missouri ex rel. Atty. Gen. 52:525, 34 Sup. Ct. Rep. 859, 234 U. S. 199, 58 L. ed. 1276. ft. Of circuit courts of appeals. (See also same heading in Digest L.R.A. 1-70.) 68. A suit, although not one of diversity of citizenship, which, according to the com- plainant's bill depends not only upon the construction and application of the Consti- tution of the United States and the consti- tutional validity of an act of Congress, but also upon the proper construction of the act of Congress, is one in respect of which the appellate jurisdiction of the Supreme Court is not exclusive, and an appeal from the final decree may be taken to the circuit court of appeals. Harris v. Rosenberger, 13: 762, 145 Fed. 449, 76 C. C. A. 225. c. Of state courts. 1. Generally. (See also same heading in Digest L.R.A. 1-10.) Original jurisdiction of appellate court, superintending control, see COURTS, II. a, 2. 69. The supreme court has jurisdiction on appeal to review an order of the district court, awarding the custody of a minor child to one of the parties in a habeas corpus proceeding, brought for the purpose of determining who has the right to the custody and control of such minor. Jami- son v. Gilbert, 47: 1133, 135 Pac. 342, 38 Okla. 751. 70. The refusal of bank officials to pro- duce certain books of the bank, which are in charge of a state bank commissioner, in obedience to an order of court, made for that purpose, is criminal contempt, and a conviction therefor is reviewable by the Oklahoma criminal court of appeals. Bur- nett v. State ex rel. West, 47: 1175, 129 Pac. 1110, 8 Okla. Grim. Rep. 639. 71. Jurisdiction of appeals from a rail- road commission, which is a mere admin- istrative agency not clothed with judicial power, cannot be conferred upon a court which under the Constitution has such ju- risdiction as pertains to a court of appeals. Illinois C. R. Co. v. Dodd, 49: 565, 61 So. 743, 305 Miss. 23. (Annotated) 72. The appellate court may grant a 64 APPEAL AND ERROR, II. c, 2 III. a. certificate of importance to the supreme court in a case of the fourth class, arising in a municipal court, which, by the munici- pal court act, can be reviewed only by writ of error from the appellate court, where, wnder the practice act, passed the same day on which the former act was passed, that court may grant a certificate of importance in any case in which an appeal or writ of error is not allowed by the act. Rockhill v. Congress Hotel Co. 22: 576, 86 N. E. 740, 237 111. 98. 73. An order of the county court re- quiring an administratrix to inventory cer- tain stock as the property of the estate be- ing administered by her is of such a nature that an appeal lies therefrom to the district court, under a constitutional provision that appeals may bfi taken from the judgment of the county court in all cases arising under its probate jurisdiction, in the same manner as was provided by the laws of the territory of Oklahoma at the time of its admission as a state for appeals from the probate to the district court, when such laws, which were by another constitutional provision expressly continued in force, pro- vided for appeals from judgments, orders, and decrees. Apache State Bank v. Daniels, 40: 901, 121 Pac. 237, 32 Okla. 121. 74. A decision by a county court which, by statute, has jurisdiction of an applica- tion for correction of a decision of a board of tax reviewers, may be revised by the supreme court if the amount requisite to give that work jurisdiction is involved, since the county court in making the re- view acts judicially. Copp v. State, 35: 669, 71 S. E. 580, 69 W. Va. 439. 75. The appeal from an order enjoining the further prosecution of a criminal pro- ceeding after accused has been released un- der a writ of habeas corpus because of the inapplicability of the statute under which the prosecution was instituted should be taken to the court having jurisdiction of civil appeals, and not to that entertaining criminal appeals. Denton v. McDonald, 34: 453, 135 S. W. 1148, 104 Tex. 206. 2. Over constitutional questions; va- lidity of statutes. -(See also same heading in Digest L.R.A. 1-10. ) 76. Exception to instructions stating the law to be as established by a statute raises the question of the constitutionality of the statute, at least, if the instructions are ex- pressly challenged on that ground on the motion for new trial, so as to bring the appeal within the jurisdiction of the court taking cognizance of appeals involving con- stitutional questions. Christy v. Elliott, i: 215, 74 N. E. 1035, 216 111. 31. 77. The Louisiana supreme court has jurisdiction of an appeal in an action where the constitutionality of a tax is in ques- tion. Monongahela River Consol. Coal '& Coke Co. v. Board of Assessors, 2: 637, 39 So. 601, 115 La. 564. Digest 1-52 KR.A.(N.S.) 78. Overruling a motion to reverse a judgment on the ground that it was ob- tained by publication only, without service of process, necessarily requires a considera- tion of the constitutionality of the statute authorizing such publication, subject to re- view by the supreme court, although the question of constitutionality is not raised in express terms. Ward Lumber Co. v. Hen- derson-White Mfg. Co. 17: 324, 59 S. E. 476, 107 Va. 626. 3. Over questions of title. (See same heading in Digest L.R.A. 1-70) 4. Amount necessary for jurisdiction. (See also same heading in Digest L.R.A. 1-10.) 79. Upon an inquiry as to whether the amount involved in a pecuniary controversy is sufficient to confer appellate jurisdiction, the amount of the claim asserted on the one side and denied on the other, not the validity thereof, is the criterion, unless the claim is obviously pretentious, and made merely to confer jurisdiction. Brown v. Brown, 47: 995, 78 S. E. 1040, 72 W. Va. 648. ///. Transfer of cause; parties, a. Right to transfer. (See also same heading in Digest L.R.A. 1-70.) Right of insolvent bank to appeal from order appointing receiver after repeal of statute authorizing, see STATUTES, 360. 80. That a licensee, upon conviction of a violation of a statute making it un- lawful for a licensed saloon keeper to traffic in intoxicating liquors after and before certain hours, is subjected to a fine and forfeiture of his license whether he appealed from the conviction or not, does not invalidate the statute as denying the right of appeal. Dinuzzo v. State, 29: 417, 123 N. W. 309, 85 Neb. 351. (Annotated) "Who entitled to. Who may appeal in administration proceed- ings, see JUDGMENT, 119. Who may maintain bill of review, see RE- VIEW, 1. See also infra, 695. 81. Under statutory authority to appeal from a final order in a special proceeding, the state superintendent of banks, having authority to collect and distribute the : s- sets of an insolvent bank, and present ob- jections to claims to the court for determi- nation, may appeal from an order giving the state priority over other claimants up- on the assets of an insolvent bank which he is administering. Re Carnegit Trust Co. 46: 260, 99 N. E. 1096, 206 N. Y. 390. 82. A corporation engaged in furnish- ing electricity for light, heat, and power APPEAL AND ERROR, III. a. 65 in a municipality will be aggrieved by an order of the public service commission per- mitting another corporation to issue bonds to finance another enterprise for the same purpose in the municipality, within the meaning of a statute permitting persons so aggrieved to become parties to the pro- ceeding, and to appeal from the determina- tion authorizing such action. People ex rel. New York Edison Co. v. Willcox, 45: 29, 100 N. E. 705, 207 N. Y. 86. 83. The president of a board of trade has a right to appeal from a decree in a suit in which he was a party, which is adverse to the validity of a rule of the board. Pacaud v. Waite, 2: 672, 75 N E 779, 218 111. 138. 84. Upon the construction of the will against his contention, an executor is an aggrieved party within the meaning of Rev. Stat. 1898, 4031, giving such party a right of appeal. Re Paulson, 5: 804, 107 N. W. 484, 127 Wis. 612. 85. The heirs apparent or presumptive, or those dependent upon an alleged incom- petent person for support, may appeal from an order of the county court dismissing their petition for the appointment of a guardian for such incompetent. Tierney v. Tierney, 15: 436, 115 N. W. 764, 81 Neb. 193. (Annotated) 86. The bankruptcy court may allow a creditor to appeal from an order allowing claims against the estate, where the trustee refuses to do so, although it would be preferable to order the trustee to do so, or to allow the creditor to appeal in hia name. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 605. 87. The duties of a guardian ad litem, duly appointed by a court to defend the interests of an insane ward, do not neces- sarily terminate with the decision of the case in which he was appointed, but he has authority, in a proper case, to appeal the cause to the court of last resort. Buchan- an v. Hunter, 29: 147, 127 N. W. 160, 87 Neb. 277. 88. A nonresident sister of an alleged incompetent person whose petition for the appointment of a guardian is denied, is not a person aggrieved within the meaning of a statute regulating the right to appeal, since none of her legal rights are infringed, she having no right to control the custody or conduct of the alleged incompetent, nor right to support from, or duty to care for or support, him, and no legal rights in or to his property. Re Carpenter, 25: 155, 123 N. W. 144, 140 Wis. 572. (Annotated) 89. The right of a plaintiff in summary process to recover possession of property from a tenant, to a writ of error to the justices' judgment under a general statute, ia not affected by another statute giving defendant a right to such writ, which al- lows him a certain time to procure the writ during which the execution shall be stayed. Brodner v. Swirsky, 42: 654, 84 Atl. 104, 86 Conn. 32. Diirest 1-52 L.R.A.(N.S.) How lost or waived. Waiver of right to appeal from award of railroad commission, see EMINENT DO- MAIN, 174. 90. The right to appeal from a ruling on a demurrer is not waived by proceeding to trial, where the demurrer did not reach all the matters presented for hearing and deter- mination of the court. Sullivan v. Sullivan, 22: 691, 117 N. W. 1086, 139 Iowa, 679. 91. In a suit brought upon a cause of action on which a judgment had been re- covered in a former action, the defendant, by pleading the former proceedings and the judgment in bar to the maintenance of the second suit, and thereby recognizing the ex- istence of the judgment, does not surrender his right to a review of the former pro- ceedings and judgment. Missouri, K. & T. R. Co. v. Bagley, 3: 259, 69 Pac. 189, 65 Kan. 188. 92. The order of a trial court in setting aside a verdict and granting a new trial may be ignored by the petitioners for new trial, and an appeal taken from the judgment entered on the verdict afterwards set aside, although the new trial has been had and a second judgment reached, if the appeal is perfected within the time allowed by law after the first judgment is entered. Broad- way Coal Min. Co. v. Smith, 26:565, 125 S. W. 757, 136 Ky. 725. 93. A convict by effecting his escape and remaining at large as a fugitive from jus- tice thereby waives his right to appeal from the judgment convicting him, as it is essen- tial to such an appeal that the defendant be where he can be made to respond to any judgment or order which may be made in the case. Tyler v. State, 26: 921, 104 Pac. 919, 3 Okla. Crim. Rep. 179. (Annotated) 94. A party who accepts the benefit of a decree waives his right to appeal from that decree, unless he is so absolutely en- titled to the benefit received that a refusal will not affect his right to it. McKain v. Mullen, 29: i, 64 S. E. 829, 65 W. Va. 558. 95. One cannot avail himself of that part of a decree which is favorable to him, accept its benefit, and then prosecute an appeal to reverse such portion of the same decree as militates against him, when the acceptance of the benefit from the one part is totally inconsistent with the appeal from the other. McKain v. Mullen, 29: i, 64 S. E. 829, 65 W. Va. 558. (Annotated) 96. The defendant in a suit by which his tax deed is set aside cannot unreserved- ly accept the taxes, interest, and charges tendered by the bill and ordered by the decree to be paid him, and then appeal from the decree, since his -acceptance is a pos- itively implied waiver of his right of ap- peal, nor will an offer to return the money, made long after its acceptance, avail to prevent dismissal of an appeal in such case. McKain v. Mullen, 29:1, 64 S. E. 829, 65 W. Va. 558. 97. Compelling surrender of the parcel awarded plaintiff in an action of ejectment and payment of taxed costs, by threat of executing the writ of restitution which had APPEAL AND ERROR, III. b. been issued, prevents him from attempt- ing to reverse the judgment d$l appeal, al- though he was denied relief as to a large parcel of land upon which he claimed that defendant had wrongfully encroached. Clairview Park Improv. Co. v. Detroit & Lake St. C. R. Co. 33: 250, 129 N. W. 353, 164 Mich. 74. Certifying question reviewable. 98. The certification of questions by the appellate division is not necessary to a re- view of the court of appeals, in an action for compensation for services rendered, where the appeal is authorized under 191, subd. 2, Code Civ. Proc. Frank L. Fisher Co. v. Woods, 12: 707, 79 N. E. 836, 187 N. Y. 90. b. Effect; subsequent proceedings in court below. (See also same heading in Digest L.R.A. 1-10.) Effect of granting appeal generally, see COURTS, 292. Effect of appeal as an appearance, see AP- PEARANCE, 5. Effect of, on right to admit to bail China- man ordered to be deported, see BAIL AND RECOGNIZANCE, 11, 12. Effect, on trial court's jurisdiction to punish violation of injunction, see CONTEMPT, 49. Effect of pending appeal from conviction to prevent it from being bar to other pros- ecution for same offense, see CRIMINAL LAW, 181. Effect of, on right to injunction, see IN- JUNCTION, 3. Effect of, on right to review of decree, see JUDGMENT, 405, 406. Effect of, to suspend running of statute of limitations, see LIMITATION OF AC- TIONS, 278; MALICIOUS PROSECUTION, 31. Effect of appeal from order substituting one receiver for another, see RECEIVERS, 21. From judgment convicting official of felony; effect on right to declare office vacant, see OFFICERS, 26. 99. A pending appeal by one of the par- ties to a supplementary proceeding bars the right to institute another proceeding be- tween the same parties for the same pur- pose. Ledford v. Emerson, 10: 362, 55 S. E. 969, 143 N. C. 527. 100. A trial court may, upon proper no- tice and showing, correct its record which shows a ruling striking an amendment to the answer, so as to show that, as matter of fact, the amendment was not stricken. Kvamme v. Barthell, 31: 207, 118 N. W. 766, 144 Iowa, 418. (Annotated) 101. An appeal by one upon whom de- fective service was made in a justice's court and who appeared solely for the purpose of challenging the service, from an adverse judgment, to the county court, where a trial de noro is had of both law and fact, Digest 1-52 L.R.A.(N.S.) waives the defective service. Gulf Pipe Line Co. v. Vanderberg, 34: 661, 115 Pac. 782, 28 Okla. 637. (Annotated) 102. An appeal and the giving of a super- sedeas bond in a proceeding in a state court appointing a receiver, which has the effect of suspending the order, but not of dischar- ging the receiver, does not take the property out of the jurisdiction of the state court, so as to enable a Federal court to appoint a receiver over it. State v. Palmer, 22: 316, 158 Fed. 705, 85 C. C. A. 603. (Annotated) 103. The pendency of an apeal from an order committing officers of a corporation for contempt in disobeying an order direct- ing them to turn over the corporate books to a receiver Avill not prevent the nisi prius court from sequestering the corporate prop- erty. Manning v. Mercantile Securities Co. 30: 725, 90 N. E. 238, 242 111. 584. 104. Under a statute providing that the court in term or the judge in vacation may, at any time pending a suit for divorce, award suit money and maintenance, the trial court retains jurisdiction to award suit money and maintenance necessitated by the pendency of an appeal from a decree dis- missing a suit for divorce. Maxwell v. Max, well, 27: 712, 67 S. E. 379, 67 W. Va. 119. (Annotated) 105. The pendency of an appeal does not deprive the trial court of power to award alimony in a divorce suit, where the statute empowers the judge, either in term time or vacation, to award maintenance to the wife during the pendency of the suit, until a final decree shall have been made in the cause. Ex parte Lohmuller, 29: 303, 129 S. W. 834, 103 Tex. 474. Siipersedeas; stay. Supersedeas bond, see infra, v X. 106. The filing of a supersedeas bond upon appealing from an order refusing to proceed with a case as an equitable action does not deprive the court of jurisdiction to proceed with the trial as one at law. First Nat. Bank v. Dutcher, i: 142, 104 N. W. 497, 128 Iowa, 413. 107. The right to supersedeas pending ap- peal does not extend to an appeal from an order enjoining continued operation of a shooting gallery and mechanical musical in- struments. State ex rel. Gibson v. Superior Court, i: 554, 80 Pac. 1108, 39 Wash. 115. (Annotated) 108. An order of a judge indorsed on a petition, allowing an appeal from, and super- sedeas to, an order refusing to dissolve an injunction, as prayed for, does not purport to be an order staying the injunction, but merely grants the appeal and supersedeas, where the prayer of the petition is "that an appeal and supersedeas may be allowed, staying said injunction." State ex rel. Pow- hatan Coal & C. Co. v. Ritz, 9: 1225, 56 S. E. 257, 60 W. Va. 395. 109. The perfecting of an appeal from an order refusing to dissolve an injunction, to- gether with the supersedeas, does not stay the operation of the injunction, nor deprive the court below of power to punish a party for his contempt in refusing to obey it. APPEAL AND ERROR, III. c, d. State ex rel. Powhatan Coal & C. Co. v. Ritz, 9: 1225, 56 S. E. 257, 60 W. Va. 395. 110. An injunction to restrain the opera- tion of a cement factory, which was run in such a manner as to injure neighboring property, will not be suspended by the ap- pellate court pending the appeal, although its continuance will result in such loss that reversal would be almost fruitless, while complainant's injury might be fully com- pensated in damages. Hulbert v. California Portland Cement Co. 38: 436, 118 Pac. 928, 161 Cal. 239. (Annotated) 111. The right to the custody of a child in accordance with a judgment in a habeas cor- pus proceeding is not affected by an appeal, although the statute provides that the ap- peal shall stay all further proceedings on the judgment, since the judgment is self- executing. Willis v. Willis, 2: 244, 75 N. E. 655, 165 Ind. 332. c. Parties. (See also same heading in Digest L.R.A. 1-10.) Who entitled to appeal, see supra, 81-89. Death of party below. Effect of death of party before appeal on authority of attorney, see ATTORNEYS, 37. 112. Where a party to an action dies be- fore an appeal is taken, the attorney who represented such party lias no power or au- thority to prosecute an appeal until a sub- stitution of a legal representative is had, and an appeal prosecuted in the name of such deceased party without substitution will be dismissed for want of jurisdiction in the appellate court to consider the same. McCornick v. Shauglmessy, 34: 1188, 114 Pac. 22, 19 Idaho, 465. (Annotated) Intervention. 113. A trustee in bankruptcy who fails to intervene in the trial court in a proceeding brought by the banKrupt before the pro- ceedings were taken against him has no right to take such a proceeding for the first time on appeal. Weaver Mercantile Co. v. Thurmond, 33: 1061, 70 S. E. 126, 68 W. Va. 530. Who are necessary parties. 114. Although one holding a mortgage on property sought to be subjected to an im- provement lien defaulted at the trial, which resulted in defeating the lien, he is a nec- essary party to an appeal from the judg- ment, since a reversal of the judgment would re-establish the lien, to his detriment. Trippeer v. Clifton, 39: 522, 97 N. E. 791, 178 Ind. 198. 115. It is not necessary to join as ap- pellees all landowners affected by a pro- posed public drain, on an appeal from a judgment sustaining a remonstrance to which they were not parties. Lantz v. Caraway, 50: 32, 103 N. E. 335, 180 Ind. 484. Digest 1-52 L.R.A.(N.S.) d. Mode; conditions; regulations. (See also same heading in Digest L.R.A* 1-10.) Writ of prohibition for purpose of proceed- ing in error, see PROHIBITION, 3. 116. A motion to dismiss a writ of error on the ground that the bill of exceptions and transcript should have been transmit- ted by the cleric of the superior court of the county in which the suit was brought is properly overruled where, after recovery of judgment, and while a motion for a new trial was pending, a new county was. created, to the court of which the action was transferred, and from which the record was sent up. Atlantic & B. R. Co. v. John- son, ii : 1119, 56 S. E. 482, 127 Ga. 392. 117. An appeal may be taken from a judgment which is void because of the un- constitutionality of the statute creating the court in which it was rendered, and a re- versal had, where the case is preserved and presented by a case-made, that being one of the prescribed methods for the taking of an appeal. Fleeman v. Chicago, R. I. & P. R. Co. 33: 733, 109 Pac. 287, 82 Kan. 574. ( Annotated ) 118. Section 4, chap. 131, North Dakota Laws 1913, requiring, upon an appeal, a concise statement of errors of law com- plained of, and a specification of insuffi- cient evidence in case of a claim that the evidence is insufficient to support the ver- dict, to be served with the notice of appeal, does not prescribe u jurisdictional prere- quisite to such appeal. Wilson v. Kryger, 51: 760, 143 N. W. 764, 26 N. D. 77. Writ of error. 119. A writ of error from the circuit court of appeals to the district court must be at- tested by the chief justice of the Supreme Court and either the clerk of the Supreme Court or the clerk of the circuit court. Long v. Farmers' State Bank, 9: 585, 147 Fed. 360, 77 C. C. A. 538. 120. A defect in the attestation of a writ of error from a circuit court of appeals to the district court of the United States is amendable. Long v. Farmers' State Bank, 9: 585, 147 Fed. 360, 77 C. C. A. 538. 121. A motion to dismiss a writ of error for defect of attestation comes too late if not made until after defendant in error has filed a brief taking issue on the assignment of errors, and within two days of the time the cause is set down for hearing. Long v. Farmers' State Bank, 9: 585, 147 Fed. 360, 77 C. C. A. 538. 122. A writ of error is the only method of reviewing the action of a court having jurisdiction of the parties upon pleading* seeking to prohibit the officers of the gov- ernment from removing their offices from one city to another, and which alleges that they will by so doing unlawfully dis- burse public funds. State ex rel. West v. Huston, 34: 380, 113 Pac. 190, 27 Okla, 606. 68 APPEAL AND ERROR, III. e, f. Joint or separate appeals. 123. In case two actions for refusal of a railroad company to stop a train for passen- gers are tried together for convenience, with- out becoming, by order of court, one action, separate appeals must be taken. Williams v. Carolina & N. W. R. Co. 12: 191, 57 S. E. 216, 144 N. C. 498. Necessity of motion for new trial in lower court. 124. A motion for a new trial need not be filed in the court below, to secure a re- view of an equity case in the supreme court. Ogden v. Garrison, 17: 1135, 117 N. W. 714, 82 Neb. 302. 125. An order sustaining a motion for judgment on the pleadings may be re- viewed without a motion for new trial. Burdett v. Burdett, 35: 964, 109 Pac. 922, 26 Okla. 416. 126. A motion for new trial and assign- ments of error are not necessary to sup- port an appeal from an order granting a temporary injunction, under a statute pro- viding that the cause may be heard on the bill and answer, and such affidavits and evidence as may have been admitted. Ft. Worth Improv. Dist. No. 1 v. Ft. Worth, 48: 994, 158 S. W. 164, Tex. . e. Citation; notice; appearance. (See also same heading in Digest L.R.A. 1-10.) See also supra, 118; infra, 137. 127. A notice of appeal is not insufficient for failure to designate the court to which the appeal is taken, and identify the decree, if these facts appear in the appeal bond. Holton v. Holton, 48: 779, 129 Pac. 532, 64 Or. 290. 128. Failure to serve notice of an appeal by plaintiff upon defendants, who cannot be injuriously affected by the process of the appeal, is not fatal to the jurisdiction of the appellate court. Sullivan v. Sullivan, 22: 91, 117 N. W. 1086, 139 Iowa, 679. 129. A party defendant as to whom a non- suit is rendered need not be served with no- tice of appeal from a judgment rendered against the other defendants in the same ac- tion where no appeal is taken from that part of the judgment nonsuiting him, as he is not an adverse party to the judgment as appealed from, since he could in no way be prejudicially affected by a reversal thereof. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 130. It is not necessary to serve a pro- posed bill of exceptions upon one who pur- chases the subject-matter of the litigation while the action is pending, and continues the litigation in the name of the assignor. Wells v. Cochran, 35: 142, 129 N. W. 533, 88 Neb. 367. 131. That a notice of appeal in a criminal case is not given to the prosecuting attor- ney until after the transcript and briefs have been filed in the appellate court will not destroy the jurisdiction of that court, Digest 1-52 L.R.A.(N.S.) although it is not strictly in the order re- quired by statute, if it is given within the time allowed for perfecting the appeal. .Mn rill v. State, 44: 439, 93 N. E. 857, 175 Ind. 139. Appearance. 132. The appearance of plaintiffs who are made defendants in a writ of error sued out by a coplaintiff, and their declination to as- sign cross errors or unite in the prosecution of the writ, operate to create a severance, and justify the prosecution of the writ by the coplaintiff alono. Wormley v. Wormley, 3: 481, 69 N. E. 865, 207 111. 411. /. Time. (See also same heading in Digest L.R.A. 1-10.) Retrospective effect of statute shortening time for appeal, see STATUTES, 294. See also infra, 387, 401. 133. The filing of the necessary papers to make or complete a record on appeal during the months of July and August is not prevented by a statutory provision that all proceedings to make or complete the record on appeal shall be suspended during those months. Young v. Lemieux, 20: 160, 65 Atl. 436, 79 Conn. 434. 134. That an appellant does not embrace in his reasons of appeal the finding of the court which he has requested in order to bring certain questions before the appellate court, does not deprive him of the benefit of the extension of time for perfecting his ap- peal effected by the request. Sparrow v. Bromage, 27: 209, 74 Atl. 1070, 83 Conn. 27. 135. An appeal to the Federal Supreme Court from a decree of a circuit court of appeals on a bill in equity brought by a trustee in bankruptcy to set aside a trans- fer made by the bankrupt in fraud of cred- itors need not be taken within the thirty days prescribed by general orders in bank- ruptcy No. 36, for appeals under the bank- rupt act, but the appellate jurisdiction be- ing under, or the same as that under, the circuit courts of appeals act of March 3, 1891 (26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549), 6, the appeal is in time if taken within a year. Thomas v. Sugarman, 29: 250, 30 Sup. Ct. Rep. 650, 218 U. S. 129, 54 L. ed. 967. 136. A statute providing that the failure of a bonding company to pay a judgment rendered against it, from which no appeal is taken within sixty days, shall operate to forfeit its right to do business under the enabling act, does not preclude the taking of an appeal after the prescribed time. United States Fidelity & G. Co. v. State, 26: 865, 106 Pac. 1040, 81 Kan. 660. 137. Where, by statute, an appeal is tak- en by service of notice thereof, such service is sufficient to entitle one to perfect the ap- peal, if made within the time limited by statute within which the appeal must be taken, although notice and undertaking are not filed with the clerk until after the (,8.?T).A.H...I SC i'*' APPEAL AND ERROR, III. g, IV. a. G9 expiration of that time. Liosner v. Wanie, 50: 703, 145 N. W. 374, 156 Wis. 16. 138. An appeal from an order continuing until the hearing an injunction to prevent the levying of a tax to organize a school district, because the petition for the elec- tion was not signed by the requisite number of freeholders, is not premature nor frag- mentary, although the validity of the elec- tion was also questioned and has not been settled. Gill v. Board of Comrs. 43:293, 76 S. E. 203, 160 N. C. 176. Computation of. 139. The time within which an appeal must be perfected is reckoned from the dis- position of a petition for rehearing, where it was filed before the expiration of the time for appealing. Mills v. Fisher, 16: 656, 159 Fed. 897, 87 C. C. A. 77. 140. Where after the entry of a judgment and the denial of a motion for new trial, the successful party causes a new judgment to be entered, its date is that from which to reckon the time allowed for appeal. Jemo v. Tourist Hotel Co. 30: 026, 104 Pac. 820, 55 Wash. 595. g. Security. (See also same heading in Digest L.R.A. 1-10.) Liability on bond, see infra, X. Effect of failure to give supersedeas bond on rights of one leasing property from successful litigant pending appeal, see Lis PENDENS, 10. Release of surety on appeal bond, see PRIN- CIPAL AND SURETY, 29. See also infra, 399. Necessity. 141. Under act No. 173 of 1902, all mu- nicipal boards or commissioners exercising public functions or performing adminis- trative acts are exempt from furnishing a bond for appeal, and, as the board of fire commissioners for the city of New Orleans is a public functionary, it need not furnish such a bond. Martin v. Board of Fire Comrs. 44: 68, 61 So. 197, 132 La. 188. Sufficiency; amendment. Validity of appeal bond within statute of frauds, see CONTRACTS, 283. 142. Where a litigant in a justice court, in anticipation of defeat, together with sureties, executes an appeal bond some days before the trial of his case, and takes it with him for use in case it is needed, and the sureties understand that it will be so used, upon the filing and approval of same by the justice of the peace, it is a binding obligation, and will support the appeal. Harper v. Pierce, 44: 1144, 132 Pac. 667, 37 Okla. 457. (Annotated) 143. The omission of the condition "to prosecute the appeal to effect and without unnecessary delay" from an appeal bond in a justice court is a mere irregularity, and does not render the bond void. Harper v. Pierce, 44: 1144, 132 Pac. 667, 37 Okla. 457. 144. On motion in the county court to Digest 1-52 L.R.A.(N.S.) dismiss an appeal on account of the omis- sion of the condition "to prosecute the ap- peal to effect and without unnecessary de- lay" from the appeal bond, the court, on motion of appellant, should permit an amended or substituted bond to be filed. Harper v. Pierce, 44: 1144, 132 Pac. 667, 37 Okla. 457. 145. Where in an action in which the findings have been made and judgment di- rected to be entered in favor of the plain- tiff, and after the time allowed for a stay has expired, and upon the plaintiff's threat- ening to enter judgment, the defendant agrees that if plaintiff will refrain from entering judgment in an intended appeal he will give a satisfactory bond to pay all judgments and costs that may be entered in the action, an agreement that is kept by the plaintiff, and pursuant thereto such a bond is executed, the bond is a valid common-law obligation, and binding in all its terms. First Nat. Bank v. C. E. Stev- ens Land Co. 43: 1040, 137 N. W. 1101, 110 Minn. 209. ,,, , 146. The supreme court has jurisdiction, after an appeal to it has been perfected, to direct the appellant to give a new superse- deas bond, and in case of his default, to va- cate the stay whenever it is made to appear that the original bond is clearly insufficient. Bock v. Sauk Center Grocery Co. 9: 1054, 110 N. W. 257, 100 Minn. 71. (Annotated) 147. An appeal will not be dismissed on the ground that appellant's attorneys exe- cuted the appeal bond in their own names, and not in the names of the clients for whom they acted. Landry v. American Creosote Works, 11:387, 43 So. 1016, 119 La. 231. 148. Although an appeal is defective by reason of the fact that the justification upon the appeal bond fails to state the worth of the surety, as required by statute, the appellant may, after the time for tak- ing an appeal has expired, and where the court has reasonable grounds to believe that the appeal has been taken in good faith, be allowed to amend the undertaking so as to remedy the defects. W. T. Raw- leigh Medical Co. v. Laursen, 48: 198, 141 N. W. 64, 25 N. D. 63. Time for giving. 149. An appeal will not be dismissed be- cause of neglect to give a bond for costs at the time of taking the same, if it is filed within a reasonable time thereafter, and the appellee is in no way prejudiced by the delay. Corcoran v. Kostrometinoff, 21 : 399, 164 Fed. 685, 91 C. C. A. 619. IV. Record and case in appellate court, a. In general. (See also same heading in Digest L.R.A, 1-10.) Time for completing record, see supra, 133, 139. 70 APPEAL AXD ERROR, IV. b. Presumption arising from condition of rec- ord, see infra, VII. d. See also infra, 384, 1624, 1654. 150. All questions presented on an ap- peal must be tried and determined by the record as certified to the appellate tribunal. Terrell v. State, 2: 251, 75 N. E. 884, 165 Ind. 443. 151. A docket entry which contains all the essential elements of a judgment is suf- ficient to support an appeal, although the en- try is informal. Kuhlman v. Wieben, 2: 666, 105 N. W. 445, 129 Iowa, 188. 152. A court rule requiring an index to form the first page of the transcript is not violated by running it over to the succeed- ing pages. Sexauer v. Star Milling Co. 26: 609, 90 N. E. 474, 173 Ind. 342. 153. Compliance with a statute directing the pracipe for a transcript of record to be copied in the transcript is sufficient to pre- sent the record to the reviewing court, al- though a former statute requires the prseci- pe to be appended to the transcript. Pere Marquette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 1GO. 154. The existence of a church of a par- ticular name at the time of the execution of a deed to it is shown by the record, in an action to recover possession of the prop- erty conveyed, where the parties stipulated that the tract ceased to be used for a church as provided in the deed to the trustees of the church of that name. North v. Graham, 18: 624, 85 N. E. 267, 235 111. 178. 155. An objection, upon the review of an order of the state corporation commission by the supreme court, that no certified copy of the order of the commission was served on the railway company as required by stat- ute, will be disregarded, where the record shows that a "true copy" was delivered to the railway company. Seward v. Denver & R. G. R. Co. 46; 242, 131 Pac. 980, 17 N. M. 557. Appellee's duty as to. 156. When an appellant brings up enough of the record to show prejudicial error appellee must, if the error can be overcome by consideration of another part of the record, take the proper steps to en- able the court to examine the entire record. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N". E. 641, 181 Ind. 454. b. What should T>e shown by. (See also same headirig in Digest L.R.A. 1-10.) See also infra, 1217. 157. That a verdict and judgment are violative of the Federal Constitution pre- sents no reviewable question in a Federal appellate court, where the issues of fact which condition the constitutionality of the verdict and judgment are not reviewable by the court, and no ruling of the court below on a question of law involving that issue Digest 1-52 L.R.A. (N.S.) is presented by the record for the con- sideration of the appellate court. Thomp- kins v. Missouri, K. & T. R. Co. 52: 791, 211 Fed. 391, 128 C. C. A. 1. 159. An appellant who alleges error in a ruling must show affirmatively from the record that prejudicial error was com- mitted. Leonard v. Hartzler, 50: 383, 133 Pac. 570, 90 Kan. 386. 160. The court of appeals will not con- sider an objection based an a rule of the nisi prius court unless a copy of the rule ap- pears in the record. Bennett v. Bennett, 19: 121, 66 All. 706, 106 Md. 122. 161. A judgment invalid for absence of service of process cannot be corrected on appeal, where the defect does not appear on the record. State ex rel. Happel v. District Court, 35: 1098, 99 Pac. 291, 38 Mont. 166. 162. A mistake in description of a parcel of land in a will must appear on the record to receive consideration on appeal. Andrews v. Applegate, 12: 661, 79 N. E. 176, 223 111. 535. 163. A plea, although not made a part of the record by the order of the court reject- ing it, may be considered on appeal, when the order numbers the paper and calls it a plea. Smith v. White, 14: 530, 60 S. E. 404, 63 W. Va. 472. 164. Rulings on pleadings cannot be pre- sented to the appellate court by bill of ex- ceptions, if the pleadings appear only in such bill. Diener v. Star-Chronicle Pub. Co. 33: 216, 132 S. W. 1143, 230 Mo. 613. 165. A suggested amendment to a plead- ing not made part of the record by order of court or bill of exceptions cannot be con- sidered on appeal. Lewis v. Bowling Green R. Co. 39: 929, 144 S. W. 377, 147 Ky. 460. 166. The appellate court cannot consider the original petition in aid of a contention of abandonment of a particular theory of the case, where there was no motion to strike out an amended petition on the ground of departure, and the original petition was not preserved in the record. Missouri P. R. Co. v. Continental Nat. Bank, 17: 994, 111 S. W. 574, 212 Mo. 505. 167. Error in sustaining an objection to a question which showed on its face the relevancy and materiality of the evidence called for is not available on appeal, where the record fails to show what the answer would have been, or what was proposed to be proved; the test being whether the error complained of was prejudicial, and not whether the evidence was material. Sayre v. Woodyard, 28: 388, 66 S. E. 320, 66 VV. Va. 288. 168. If there is no evidence in the record of venue, a conviction of homicide will be reversed. Litch field v. State, 45: 153, 126 Pac. 707, 8 Okla. Grim. Rep. 164. 169. A judgment of conviction of homi- cide will not be reversed because the record does not affirmatively show that argument was made and that accused was present during said argument. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Grim. Rep. 369. <.a.v:;.A..'.r ? -- APPEAL AND ERROR, IV. c f. 71 170. Absence from the record in a crim- inal case of an affirmative showing that ac- cused was given an opportunity to plead is conclusive on appeal that he was not given such opportunity. State v. Walton, 13: 811, 91 Pac. 490, 50 Or. 142. o. Contradictions in. (See also same heading in Digest L.R.A. 1-10.) 171. An allegation of the petition as to the character in which a person signed A promissory note will control a mere recital of the record as to the exhibit purporting to set out the note. Pease v. Globe Realty Co. 42: 6, 119 N. W. 975, 141 Iowa, 482. d. Amending; perfecting. (See also same heading in Digest L.R.A. 1-10.) 172. The appellate court will not permit a party to alter the record which he made in the lower court, for the purpose of mak- ing contentions before it which are opposed to the record as made. Grigsby v. Wops- chall, 37: 206, 127 N. W. 605, 25 S. D. 564. 173. A respondent in the appellate court who serves an additional abstract for the purpose of bringing matters to the atten- tion of the court, from which he intention- ally omits certain matters which might have been included, will not, after argument, be permitted to file an amendment to such ad- ditional abstract, for the purpose of raising new questions which he then thinks neces sary to his success. Grigsby v. Wopschall, 37: 206, 127 N. W. 605, 25 S. D. 564. 174. The record may be made to show an exception to the overruling of a motion for new trial by mine pro tune entry. Mitchell v. Young, 7: 221, 97 S. W. 454, 80 Ark. 441. 175. An amendment of an appeal may be allowed by the supreme court so as to com- ply with the statutory requirements which are not jurisdictional, under a statute which authorizes such amendment in fur- therance of justice, especially where a sec- tion of the act to comply with which the amendment is sought provides for the amendment. Wilson v. Kryger, 51: 760, 143 N. W. 764, 26 N. D. 77. 176. The omission from the record in a criminal prosecution of any plea and joinder of issue may be cured after a writ of error has been allowed, by certification to the ap- pellate court of a nunc pro tune order pla- cing upon the record, by way of amendment, the fact that plea had been made before the jury was impaneled and sworn and issue joined. State v. Gibson, 28: 965, 68 S. E. 295, 67 W. Va. 548. 177. A motion to strike an amended ab- stract of record will be overruled where it presents matters material to the disposi- tion of the case, which are not disclosed by the abstract. Collins v. Collins, 18: 1176, 117 N. W. 1089, 139 Iowa, 703. 178. An amendment to an abstract of rec- J>igest 1-52 L.R.A.(N.S.) ord will not be stricken out because not filed strictly within the time required by the rule of court, if the delay is slight, and a sufficient excuse therefor is shown. Col- lins v. Collins, 18: 1176, 117 N. W. 1089, 139 Iowa, 703. 179. The common joinder in error is an admission by the defendant in error that what is returned as the record of the judg- ment below is true; and after such joinder neither party can of right allege diminution or have a certiorari. Tomlinson v. Armour & Co. (N. J. Err. & App.) 19: 923, 70 Atl. 314, 75 N. J. L. 748. 180. The technical phrase, ideo considera- tum est, is not necessary to constitute such a judgment as will support a writ of error, as the want thereof, being merely a defect of form, can be amended in the court of re- view. Tomlinson v. Armour & Co. (N. J. Err. & App.) 19: 923, 70 Atl. 314, 75 N. J. L. 748. 181. A record which sets forth simply that the court below, having heard argument up- on a demurrer to the petition, and having duly considered same, did order that the de- murrer 'be sustained with costs, recites a judgment sufficient in substance for pur- poses of review, although there was no form- al judgment or any award of a specific sum for costs, and joinder in error and argument of the cause upon the merits having been made, the record should be treated as if amended in the court of review with respect to matters of form. Tomlinson v. Armour & Co. (N. J. Err. & App.) 19: 923, 70 Atl. 314, 75 N. J. L. 748. 0. Affidavits. (See also same heading in Digest L.R.A.. 1-10.) See infra, 391. f. Evidence. (See also same heading in Digest L.R.A. 1-10.) Dismissal for imperfect stenographic re- port of testimony, see infra, 398. See also infra, 196, 448, 1008. 182. An appellate court will not consider evidence no statement of which appears in the record, and which there is no attempt to supply by writ of diminution. Canton Co. v. Baltimore, n: 129, 66 Atl. 679, 106 Md. 69. 183. To secure consideration on appeal of a ruling rejecting evidence, the record must show what the offered evidence was. War- ren v. State, 34: 1121, 115 Pac. 812, 6 Okla. Grim. Rep. 1. 184. Absence of evidence from the record will not prevent consideration of an excep- tion to its exclusion, where the court did not permit the witness to answer. Mount Vernon Brewing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. 185. A reversal for error in the allowance of damages cannot be prevented by the fact 72 APPEAL AND ERROR, IV. g i. that evidence was omitted from the tran- script, if the omitted evidence was of a char- , acter which could have no bearing upon the question of the damages allowed. St. Louis, 1. M. & S. R. Co. v. Townes, 26: 572, 124 S. W. 1036, 93 Ark. 430. 186. To enable the appellate court to con- sider the evidence on which a chancellor's findings are based, it must be attached to and submitted by the chancellor's report. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. 187. When evidence is certified by the trial judge, and a separate bill of exceptions is used to make it a part of the record, a reference in the bill to the certificate of evi- dence, stating that it is made a part of the record and a part of the bill of exceptions, is sufficient to make the evidence a part of the record. State v. Legg, 3: 1152, 53 S. E. 545, 59 W. Va. 315. 188. The rule that instructions will not be reviewed on appeal in the absence of the evidence does not apply to instructions which must be held erroneous because im- proper under any evidence admissible under the issues. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. 189. Where a vacation order of a judge certifies the presentation to him of bills of exception and a transcript of all the evi- dence, and certifies that, for identification, the bills were numbered and that the cer- tificate of evidence was marked "certificate of evidence," and certifies that the bills were signed and that the certificate of evidence was also signed and ordered to be made a part of the record, the certificate of evi- dence which is found so marked in the rec- ord and referred to as such in the bill of exceptions, about which there is no question, is a part of the record and properly brings the evidence before the court. Gross v. Gross, 39: 261, 73 S. E. 901, 70 W. Va. 317. 190. Under a statute making it a suffi- cient pleading of the ordinances of a vil- lage to refer to the section and number or chapter thereof, giving them the effect of general laws, and providing that they need not be given in evidence upon the trial of a civil or criminal action, the supreme court may consider an appeal from a conviction of violation of a village ordinance where the only record before it is the complaint, finding, and judgment, there being no settled case and no evidence in that court. Minneota v. Martin, 51: 40, 145 N. W. 383, 124 Minn. 498. 191. The action of the court below in con- victing defendant of the violation of a mu- nicipal ordinance cannot be reviewed on the evidence adduced on the trial and reduced to writing, where it appears only in the transcript, and is not annexed to any bill of exceptions. New Orleans v. Smythe, 6: 722, 41 So. 33, 116 La. 685. 102. The supreme court, in reviewing a habeas corpus proceeding which seeks the release of one under arrest in an extradi- tion proceeding, cannot consider whether or Digest 1-52 L.R.A.(N.S.) not evidence offered and excluded should have been received, and considered by the nisi prius court, since it is no part of the record, and the fact that an exception was noted and a bill sealed is immaterial. Com. ex rel. Flower v. Superintendent of Prison, 21 : 939, 69 Atl. 916, 220 Pa. 401. Documentary evidence; exhibits. 193. A statement in a proposed statement of facts for appeal that certain depositions or exhibits were offered in evidence is suf- ficient to permit their attachment to the statement as finally settled, under a stat- ute which provides that written evidence on file shall be appropriately referred to in the proposed statement, and "when it is cer- tified, the same or copies thereof, if the judge so directs," shall be attached to the statement and become a part thereof. Thornely v. Andrews, i: 1036, 82 Pac. 899, 40 Wash. 580. 194. A municipal ordinance which does not appear in the record cannot be considered on appeal. Hasting v. Southern R. Co. 5: 775, 143 Fed. 260, 74 C. C. A. 398. g. Stenographer's notes. (See also same heading in Digest L.I'. A. 1-10.) Dismissal of appeal because of imperfect stenographic report of testimony, see infra, 398. 1i. Insttmctions. (See also same heading in Digest L.R.A. 1-10.) 195. The charge of the court is conclusive as to what issues were submitted to the jury. Garbutt v. Mayo, 13: 58, 57 S. E. 495, 128 Ga. 269. 196. Instructions based on evidence not in the record cannot be considered on ap- peal. National Annuity Asso. v. McCall, 48: 418, 146 S. W. 125, 103 Ark. 201. i. Findings. (See also same heading in Digest L.R.A. 1-10.) 197. A memorandum of decision contain- ing findings of fact, voluntarily filed by the justice who hears the evidence, has the same effect as one filed by request, which, under Rev. Laws, chap. 159, 23, is a part of the record, and will not be set aside un- less plainly wrong. Cohen v. Nagle, 2: 964, 76 N. E. 276, 190 Mass. 4. 198. An error in the classification of find- ings by a trial court does not prevent the appellate court from classifying them in accordance with their actual character. Buffalo v. DelaAvare, L. & W. R. Co. 16: 506, 82 N. E. 513, 190 N. Y. 84. Sufficiency. 199. Upon an appeal on the judgment roll alone, findings as to the use of a way prior to the conveyance of land to which it APPEAL AND ERROR, IV. j n. 73 is alleged to be appurtenant cannot affect a finding that the way was appurtenant to the land conveyed, if not inconsistent there- with. Corea v. Higuera, 17: 1018, 95 Pac. 882, 153 Cal. 451. 200. A plaintiff against whom a verdict was directed, who, after the evidence has been summarized by the trial court for the purpose of an appeal, takes proceedings as allowed by statute to correct such state- ment, as a result of which all the evidence and rulings at the trial are certified to the appellate court, cannot assign as error the refusal of the court to make additional find- ings of fact. Powers v. Connecticut Co. 26: 405, 74 Atl. 931, 82 Conn. 665. j. Opinions. (See also same heading in Digest L.R.A. 1-10.) 201. The exercise by the trial judge of his discretion in refusing to grant a new trial will not be revised, although he advances an untenable reason for his ruling, if his opinion is not part of the record, so that it is not shown that such reason is the only one for his action. Abbott v. Walker, 26: 814, 90 N. E. 405, 204 Mass. 71. fc. Motions and orders. (See also same heading in Digest L.R.A. 1-70.) 202. The alleged erroneous refusal of a trial court to sustain a motion to re-refer a case to a master for further findings will not be considered upon appeal, where the record does not affirmatively show that the motion was ever acted upon by the court and exceptions taken thereto by the com- plaining party. Ecker v. Ecker, 20: 421, 98 Pac. 918, 22 Okla. 873. How brought up. 203. A motion for new trial is a part of the record without a bill of exceptions, and is covered by a prsecipe for a complete trans- cript of record. Pere Marquette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. I. Certificates. (See also same heading in Digest L.R.A. 1-70.) See also supra, 187. 204. One convicted of contempt cannot, on appeal, question the sufficiency of the re- citals on which the orders are based because not supported by the record, in the absence of a certificate by the clerk showing that the complete record is before the court. Frank- lin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. 205. A certificate of the clerk as to the form of 'the order-book entry of the verdict received in a case cannot be contradicted by the bill of exceptions containing a motion for venire de novo and affidavits in support Digest 1-52 L.R.A. CN.S.) thereof. Broadstreet v. Hall, 10: 933, 80 N. E. 145, 168 Ind. 192. 206. A constitutional provision that, on appeal to the supreme court from the state corporation commission, all the facts upon which the action appealed from was based, and which may be essential for the proper decision of the appeal, shall be certified, means the facts as found by the commis- sion, and does not include the evidence in- troduced at the hearing. Chicago, R. I. & P. R. Co. v. State, 24: 393, 103 Pac. 617, 24 Okla. 317. 207. Formal defects in the certificate as to jurisdiction filed by a Federal circuit court under the act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), 5, for the purpose of sustain- ing a writ of error from the Federal Su- preme Court, are not material, where the record clearly shows that the only matter tried and decided in the circuit was one of jurisdiction. Davis v. Cleveland, C. C. & St. L. R. Co. 27: 823, 30 Sup. Ct. Rep. 463, 217 U. S. 157, 54 L. ed. 708. m. Abstracts. (See also same heading in Digest L.R.A. 1-70.) See also infra, 395, 396. 208. An abstract of the declaration is in- cluded in a rule of court requiring an ap- pellant to furnish the court with a complete abstract of the record. Christy v. Elliott, i: 215, 74 N. E. 1035, 216 111. 31. 209. The appellate court cannot consider an alleged error in the rejection of testi- mony when the abstract does not show that it was offered and excluded. Priddy v. Boice, 9: 718, 99 S. W. 1055, 201 Mo. 309. 210. Errors in giving instructions must be affirmatively shown by the abstract, and the court will not explore the record to substan- tiate assignments of error. Kelly v. Pierce, 12: 180, 112 N. W. 995, 16 N. D. 234. 211. Exceptions to instructions are waived by failure to set them out in the abstract. Emerson v. McNeil, 15: 715, 106 S. W. 479, 84 Ark. 552. 212. The act of the trial court ia overrul- ing motions for a directed verdict cannot be considered on appeal, if the evidence on which they are based is not in the abstract. Edson v. Poppe, 26: 534, 124 N. W. 441, 24 S. D. 466. 213. Assignments of error cannot be con- sidered which are based on evidence or ob- jections to evidence not shown by the ab- stract. Edson v. Poppe, 26: 534, 124 N. W. 441, 24 S. D. 466. n. Case made; statements. (See also same heading in Digest L.R.A. 1-70.) Conclusiveness of certificate of trial judge that case made was served in due time, see infra, 412. See also supra, 117, 190; infra, 397, 401. 74 APPEAL AND ERROR, IV. o, 1. 214. The adverse party to a cause, upon whom a copy of the proposed statement of facts is served, is not entitled to notice of its filing and service under a statutory pro- vision that it shall be filed and a copy served on the adverse party, and also that notice of the filing of it shall be served on all other parties who have appeared in the action. Bennett v. Supreme Tent, K. of M. 2: 389, 82 Pac. 744, 40 Wash. 431. 215. An order striking a proposed state- ment from the files, and refusing to settle it, is properly made on the ground that it was not presented in time, and that the court has lost jurisdiction to settle or allow it, where the time limited by order for its preparation expired before a second order extending the time was made. Bank of Commerce v. Bowers, 17: 676, 93 Pac. 504, 14 Idaho, 75. 216. A record constituting a purported case-made, although filed in the appellate court in two parts, and marked respectively "Part 1" and "Part 2," will be considered as one record, where each part bears the title of the case, and both were filed on the same day, under the same number, and Part 1, to which is attached the petition in error, and the certificate of the trial judge signing it, unmistakably refers to Part 2. Board v. Dill, 29:1170, 110 Pac. 1107, 26 Okla. 104. 217. The rule that alleged errors which require an examination of all the facts can- not be reviewed unless the case-made avers that it contains all the evidence intro- duced at the trial is complied with by a statement in a case-made, preceding the evidence, to the effect that "the following evidence was introduced, same being all the evidence introduced by both parties at the trial." American Steel & W. Co. v. Coover, 30: 787, 111 Pac. 217, 27 Okla. 131. 218. On a motion to dismiss for the rea- son that the case-made was not served with- in the time prescribed by the order of the court, where it appears from an examina- tion of the record that the only date re- ferred to in the journal entry is not the date on which the motion for new trial was overruled and the time given, the words "from this date" in the journal entry will be construed as applying to the date on which it is filed, and not the date on which the trial was commenced. Western U. Teleg. Co. v. Sights, 42: 419, 126 Pac. 234, 34 Okla. 461. 219. Where no time has been fixed, for set- tling a case either by order of court or by notice given by the parties within the time for serving a case and suggesting amend- ments thereto, the authority or term of a judge pro tempore ceases upon the expira- tion of the time fixed for suggesting amend- ments, and a case-made settled by him after that time is a nullity. Shawnee v. State Pub. Co. 42: 616, 125 Pac. 462, 33 Okla. 363. ( Annotated ) 220. It is the duty of counsel for an ap- pellant in preparing a case-made or trans- cript of the record to attach to it an index to all material portions of such case-made Pigest 1-52 L.R.A.(N.S.) or transcript of the record. Ellis v. State, 43:811, 128 Pac. 1095, 8 Okla. Crim. Rep. 522. 221. Where the testimony is very brief and consists of but a few printed pages, a motion in the supreme court to strike the statements from the abstract for failure to conform strictly to rule 7 of the court, re- quiring the testimony to be reduced to the narrative form, will be denied. Houston v. Minneapolis, St. P. & S. Ste. M. R. Co. 46: 589, 141 N. W. 994, 25 N. D. 469. o. Bill of exceptions. 1. In general. (See also same heading in Digest L.R.A. 1-10.) As to exceptions generally, see infra, V. See also supra, 130, 164, 187, 205 ^ infra, 367, 472. Necessity for. See also supra, 203. 222. If the exclusion or admission of evi- dence is one of the grounds for a new trial, it ought to be made certain by bill of ex- ceptions or specification in the motion for a new trial, or at least in the brief of coun- sel. Smith v. White, 14: 530, 60 S. E. 404, 63 W. Va. 472. 223. A motion to dismiss a case before a reviewing court, on the ground that the evi- dence heard on an application for a tem- porary injunction in the trial court was not made a part of the record by a bill of ex- ceptions, should be overruled when such evi- dence appears to be only cumulative evi- dence of facts alleged in the verified peti- tion, since its exclusion would not necessi- tate a dismissal, as it would not then ap- pear that plaintiff's demand was entirely unsupported by evidence. Cooper v. Good- land, 23: 410, 102 Pac. 244, 80 Kan. 121. 224. Error in giving and refusing instruc- tions cannot be considered on appeal, if those given and refused are not brought into the record by bill of exceptions, as re- quired by law. Carr v. State, 32: 1190, 93 JT. E. 1071, 175 Ind. 241. 225. Denial of a change of venue cannot be considered on appeal in the absence of a bill of exceptions. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. 226. An appeal from an order granting a motion to quash a summons brings up the record for review, and a bill of exceptions is not necessary if the record discloses the question decided. Long v. Hawken, 42: noi, 79 Atl. 190, 114 Md. 234. Amendments. 227. The trial court may amend a bill of exceptions nunc pro tune after the expira- tion of the term, so as to include matters inadvertently omitted, where the original bill as filed purports to contain the matters included in the bill as amended. McGregor v. Oregon R. & Nav. Co. 14: 668, 93 Pac. 465, 50 Or. 527. 228. That the attorney was responsible <.'-.7"> A..R..1 : " APPEAL AND ERROR, IV. o, 2. 75 for the omission of matter from a bill of exceptions will not prevent its amendment nunc pro tune, where, by virtue of a stat- ute, it is presumed that the court prepares the bill of exceptions and must be deemed to have made the error. McGregor v. Ore- gon R. & Nav. Co. 14: 668, 93 Pac. 405, 50 Or. 527. 2. Sufficiency; what should be pre- sented by. (See also same heading in Digest L.R.A. 1-10.) See also infra, 448. 229. A transcript of the reporter's short- hand notes of a trial can be regarded as a bill of exceptions only to the ruling on a motion for nonsuit or a directed verdict. Gobbi v. Dileo, 34: 951, 111 Pac. 49, 113 Pac. 57, 58 Or. 14. 230. The certificate of a trial judge that the bill of exceptions contains all the evi- dence pertaining or material to the questions raised by a motion for a directed verdict must be accepted as correct, if there is nothing properly in the record to impeach it. Lesch v. Great Northern R. Co. 7: 93, 106 N. W. 955, 97 Minn. 503. 231. A bill of exceptions which shows in- ferentially and by natural implication, from the language used, that it contains all the evidence, is sufficient. Mitchell v. Young, 7: 221, 97 S. W. 454, 80 Ark. 441. 232. That evidence upon a certain ques- tion was presented at the trial is sufficiently shown by a bill of exceptions which states that no question was made but that there was evidence for the jury upon all the is- sues submitted to them, where the instruc- tions show that the issue upon which the evidence is claimed to be wanting was sub- mitted to them. Com. v. Tucker, 7: 1056, 7-6 N. E. 127, 189 Mass. 457. 233. The acceptance by court and counsel of the testimony certified by the stenogra- pher and copied into the bill of exceptions is sufficient to identify it, although the order of the court with reference thereto is that the testimony reported and filed by the sten- ographer is to be copied "by the clerk," and made part of the bill of exceptions. Cottrell y. Smokeless Fuel Co. 9: 1187, 148 Fed. 594, 78 C. C. A. 366. 234. Evidence, although not physically incorporated in the bill of exceptions, is a part of it in a legal sense, where the clerk certifies the skeleton bill, and, along with it, the stenographer's certificate, in which the oral testimony is set out, accompanied by the exhibits, means for identifying which are found in the description given by the witnesses and the marks found on the pa- pers themselves, corresponding to the "ear- marks" given in the skeleton bill. Acme Food Co. v. Older, 17: 807, 61 S. E. 235, 64 W. Va. 255. 235. The impressions made on the minds of jurors in a condemnation proceeding, by a view of the premises, are not of them- Digest 1-52 L.B.A.(N.S.) selves evidence in the cause; and the fact that they cannot be included in the bill of exceptions does not deprive a reviewing court of the right to reverse the judgment rendered in the trial court as against the weight of evidence, where the bill of excep- tions contains all the evidence given at the trial, and the record is otherwise complete. Zanesville, M. & P. R. Co. v. Bolen, n: 1107, 81 N. E. 681, 76 Ohio St. 376. 236. The appellate court is not precluded from considering exceptions which have been made a matter of record by the signature and seal of the trial judge because the record proper has been blended with the bill of ex- ceptions and the whole treated as a bill of exceptions. Davidson v. Fraser, 4: 1126, 84 Pac. 695, 36 Colo. 1. 237. A bill of exceptions reciting that a motion was submitted to the court upon certain specified matters set forth in it sufficiently declares that the motion was submitted upon such matters, and not upon others not included in the bill. Bond v. United Railroads, 48: 687, 113 Pac. 366, 159 Cal. 270. What should be presented by. See also supra, 191. 238. Rules of the district court cannot be judicially noticed by the supreme court of Nebraska; and where any right is claimed under such rules they must be called to its attention by being embodied in the bill of exceptions. J. I. Case Threshing Mach. Co. v. Meyers, 9: 970, 111 N. W. 602, 78 Neb. 685. 239. Affidavits, or other evidence used in support of a motion objecting to the juris- diction of the district court, cannot be con- sidered on appeal, unless made a part of the bill of exceptions. Burrowes v. Chicago, B. & Q. R. Co. 34: 220, 123 N. W. 1028, 85 Neb. 497, 126 N. W. 1084, 87 Neb. 142. 240. Conduct by counsel in argument, not shown by the bill of exceptions, cannot be considered on appeal. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 241. The supreme court cannot review the trial court's action in proceeding to judgment "notwithstanding a party's offer to introduce further testimony, where the bill of exceptions does not set out the prof- fered testimony. United Hardware-Furni- ture Co. v. Blue, 35: 1038, 52 So. 364, 59 Fla. 419. 242. The omission from a transcript of the reporter's notes of the trial of an ex- hibit consisting of a volume of public stat- utes will not preclude the court from con- sidering auch notes as a bill of exceptions, for the purpose of determining the correct- ness of a ruling on motion for nonsuit, where the court has access to copies of the omitted volume. Gobbi v. Dileo, 34: 951, 111 Pac. 49, 113 Pac. 57, 58 Or. 14. 243. A bill of exceptions is unavailing to raise the objection that a witness was re- quired to be cross-examined as to matter not testified to in chief, which does not pur- port to contain all his testimony on direct examination. First Nat. Bank v. McCul- lough, 17: 1105, 93 Pac. 366, 50 Or. 508. 244. Written proofs of death and death 76 APPEAL AND ERROR, IV. o, 3 p, 1. claim, and the rulings excluding same from evidence, cannot be considered on appeal in an action to recover on a mutual benefit certificate, if they were not copied or di- rected to be copied into the bill of excep- tions or identified by the trial judge. Na- tional Annuity Asso. v. McCall, 48: 418, 146 S. W. 125, 103 Ark. 201. 245. To warrant consideration on appeal of the admission of irrelevant evidence, the bill of exceptions must show the irrelevancy. Spearman v. State, 44: 243, 152 S. W. 915, Tex. Grim. Rep. . 246. The question of the sufficiency of the evidence to support a conviction cannot be reviewed on appeal if neither the motion for new trial, nor any exception to the rul- ing thereon, is preserved in the bill of ex- ceptions. People v. Jennings, 43: 1206, 96 N. E. 1077, 252 111. 534. 247. A bill of exceptions relating to the prayer for instructions need not set out evidence on which the prayer depends to war- rant consideration of such evidence in con- nection with the prayer, if the evidence is set out in a prior bill of exceptions, and the bill dealing with the prayer commences with the statement, "the testimony being closed" thereby sufficiently referring to what had preceded to warrant a resort to^the first bill to ascertain from the evidence the cor- rectness of the prayer. Di Giorgio Import- ing & S. S. Co. v. Pennsylvania R. Co. 8: 108, 65 Atl. 425, 104 Md. 693. 248. A ruling on a motion to strike a re- joinder cannot be considered on appeal where the replication does not appear in the bill of exceptions. ./Etna L. Ins. Co. v. Las- seter, 15: 252, 45 So. 166, 153 Ala. 630, over- ruled in St. Louis & S. F. R. Co. v. Phillips, 51 So. 639, 165 Ala. 504. 249. Rulings on motions to strike plead- ings which are not shown in the bill of exceptions cannot be considered an appeal. Shahan v. Brown, 43: 792, 60 So. 891, 179 Ala. 425. 250. The action of the trial court in pass- ing upon a motion to make a complaint more definite and certain cannot be reviewed upon appeal, unless the motion is preserved in the bill of exceptions. Masoner v. Bell, 18: 166, 95 Pac. 239, 20 Okla. 618. 3. Signing; settling; practice; authen- tication. (See also same heading in Digest L.R.A. 1-70.) See also infra, 254, 692. 251. The limitation of a bill of exceptions, the exceptions in which were amplified and changed by counsel, by the trial court upon signing it to the matters and things ob- jected to at the time the court finished the charge, and to the manner and form in which the matters and things objected to were then presented, is proper. Ingram v. Kansas City S. & G. R. Co. 50: 688, 64 So. 146, 134 La. 377. 252. The judge appointed to preside for Digest 1-52 L.R.A. (N.S.) the remainder of the term upon the regular judge becoming incapacitated has jurisdic- tion to deny a motion to set aside the ver- dict because it was contrary to the law and the evidence, enter judgment thereon, and sign a bill of exceptions to permit a re- view of the judgment, although the report by a private stenographer of the evidence is only substantially correct, containing omis- sions, he did not hear or see the witnesses, and the statute provides that the judge shall sign the tendered bill of exceptions which shall become part of the record in the case, since the judge referred to is not neces- sarily limited to the one who heard the tes- timony in the case, even in matters depend- ing on the weight of the evidence. Southall v. Evans, 43: 468, 76 S. E. 929, 114 Va. 461. 253. The supreme court of Nebraska will, on its own motion, refuse to consider a document appearing in the record and pur- porting to be a bill of exceptions, when not authenticated as such by the certificate of the clerk of the trial court. State Bank v. Bradstreet, 38: 747, 130 N. W. 1038, 89 Neb. 186. 4. Time for. (See also same heading in Digest L.R.A. 1-70.) 254. The legislature may empower a judge to .settle a bill of exceptions after the con- stitutional termination of his term of oflice. Larkin v. Saltair Beach Co. 3: 982, 83 Pac. 686, 30 Utah, 86. 255. A bill of exceptions not filed within the time fixed by the trial court when the judgment was rendered cannot be consid- ered on appeal. Nashville R. & Light Co. v. Trawick, 10: 191, 99 S. W. 695, 118 Tenn. 273. . 256. A bill of exceptions will be stricken from the records where it is filed in ac- cordance with an order of the trial court made at a term subsequent to that at which the judgment was rendered, extending the time within which it is to be tendered. Thomas v. Bell, 31:664, 111 Pac. 76, 49 Colo. 76. Excluding holiday. 257. That the first day of a term of court falls on a legal holiday does not extend the time for filing a bill of exceptions for the filing of which appellant had been allowed until the first day of such term. Cart- wright v. Liberty Teleph. Co. 12: 1125, 103 S. W. 982, 205 Mo. 126. p. Assignments of error; joinder in error. 1. In general; necessity of. (See also same heading in Digest L.R.A. 1-70.) See also supra, 213. APPEAL AND ERROR, IV. p, 2. 257a. The copying, through oversight, of the correspondingly numbered findings of fact instead of the numbered conclusions of law to which assignments of error refer will not preclude such assignments from being considered. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. 258. Error cannot be assigned for the first time in a reply brief, where the statute provides that the petition for appeal or writ of error shall assign errors, although the petition states that there are other ob- jections to the rulings of the trial court than those specified. American Locomotive Co. v. Hoffman, 6: 252, 54 S. E. 25, 105 Va. 343. 259. Assignments of error attached to the transcript of record with paper fasteners subject to easy detachment and removal will not be considered by the court. Hunter v. Louisville & N. R. Co. 9: 848, 43 So. 802., 150 Ala. 594. Necessity. See also supra, 126; infra, 760. 260. Questions not presented to the court below in the proper way, nor to the su- preme court by assignment of error, are not reviewable bv it. Chavez v. Myer, 6: 793, 85 Pac. 233, 13 N. M. 368. 261. The appellate court will consider only such errors as are assigned, unless the matter goes to the jurisdiction of the court. Teakle v. San Pedro, L. A. & S. L. R. Co. 10 : 486, 90 Pac. 402, 32 Utah, 276. 2G2. The circuit court of appeals will not, in a cause arising in Alaska, reverse a judg- ment upon an error not assigned which ap- pears upon the record, where the one whom the error benefited made no appearance, and the judgment was right as to all parties except one defendant and as to him was right in part, and cannot be changed except by reversing the whole judgment and send- ing the case back for new trial. Kelley. v. McNamee, 22: 851, 164 Fed. 369, 90 C. C. A. 357. 263. In an action by creditors of a cor- poration to recover of stockholders thereof unpaid stock subscriptions, the point that a judgment obtained by one of the plain- tiffs against the corporation was rendered without jurisdiction of the corporation is not available in the appellate court, where there is no assignment of error challenging the finding of the trial court that such judg- ment was duly recovered. Randall Print- ing Co. v. Sanitas Mineral Water Co. 43: 706, 139 N. W. 606, 120 Minn. 268. Joint assignments. 264. An assignment of error is not merely joint as to both appellants, but is separate as to each, where the introductory part is to the effect that appellants (naming them) "both jointly say, and each of them, sever- ing from the other, separately and severally says, that there is manifest error in the judgment and proceedings in this cause, and in the making and entering of the record of the interlocutory order by the court, in this," followed by a number of specifica- tions of error. Southern Indiana R. Co. v. Digest 1-52 L.R.A.(N.S.) Indianapolis & L. R. Co. 13: 197, 81 N. E~ 65, 168 Ind. 360. 2. Sufficiency; definitencss. (See also same heading in Digest L.R.A. 1-70.J On motion for new trial, see NEW TRIAL, 82. See also supra, 210. 265. An assignment that the findings of fact "do not support the findings and con- clusion of law" will be treated as alleging that the facts found do not support the judgment rendered, where the only conclu- sion of law reached by the trial court was that the plaintiff was entitled, under the facts found, to a judgment. Union Teleph. Co. v. Ingersoll, 52: 713, 144 N. W. 560> 178 Mich. 187. 266. The form of the assignment of error is unimportant in case of a fundamental error apparent from the record. Holt v. Guerguin, 50: 1136, 1C3 S. W. 10, Tex. . 267. An assignment in the supreme court of error in an intermediate appellate court in affirming a judgment is sufficient to pre- sent for review in the supreme court every error assigned in the intermediate court. Van Cleef v. Chicago, 23: 636, 88 N. E. 815, 240 111. 318. 268. Upon appeal from the superior court the assignments must allege error on the part of that court, and not merely upon the part of the trial court. Gibson v. Bessemer & L. E. R. Co. 27: 689, 75 Atl. 194, 226 Pa. 198. 269. The fact that it is not specifically stated in a petition for a writ of error that a ruling of the court upon this point or that is assigned as error does not show that there is no proper assignment thereof, where the instructions asked for by the par- ties are covered by the bill of exceptions, and the points upon which reliance is had to secure a reversal are clearly stated and can leave no doubt as to the questions pre- sented. Norfolk & W. R. Co. v. Bondurant, 15: 443, 59 S. E. 1091, 107 Va. 515. 270. In the Federal courts an assign- ment as error of the rejection of an offer to prove certain facts without propounding any questions to a witness properly raises the issue of the admissibility of competent proof of those facts, which will be deter- mined by the appellate courts on its merits, and on the presumption that the offer was made in good faith. Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & L. Co. 45: 1137, 202 Fed. 692, 121 C. C. A. 102. 271. Whether or not there was error in not sustaining any of the demurrers to a aleading will not be considered on appeal where the ruling of the court is presented as a whole and one of the demurrers was properly overruled. ^Etna L. Ins. Co. v. Lasseter, 15: 252, 45 So. 166, 153 Ala. 630. 272. Upon appeal from a judgment ren- dered on affidavits for possession and de- fense in a proceeding by a landlord to re- 78 APPEAL AND ERROR, IV. p, 3. cover possession of the leasehold, assign- ments of error, questioning the sufficiency of the affidavits sufficiently comply with a rule requiring an assignment of errors re- lied upon separately and specifically stated. Nicolopole v. Love," 47: 949, 39 App. D. C. 343. Sufficiency of evidence. 273. An assignment that the judgment is not supported by sufficient evidence is suffi- cient to raise the question as to its suffi- ciency to support the finding in a case tried by the court without a jury, under a statute designating as a ground for new trial that "the verdict, report, or decision is not sus- tained by sufficient evidence." Schiller v. Blyth & Fargo Co. 8: 1167, 88 Pac. 648, 15 Wyo. 304. 274. Upon appeal from a decree refusing specific performance of a contract to exe- cute a lease in accordance with the agree- ment of an agent, on the ground of his lack of authority to bind his principal, a specifi- cation of insufficiency of evidence to sus- tain the decree is sufficient which states that it is insufficient and sets out what it shows, under a statute providing that when exception is to a decision upon the grounds of insufficiency of evidence the ob- jection must specify the particulars in which it is alleged to be insufficient. Spong- berg v. First Nat. Bank, 31: 736, 110 Pac. 716, 18 Idaho, 524. 275. A specification of error to the effect that the evidence does not support the find- ings is sufficient to bring to the reviewing court the question of the correctness of the conclusions of law. Mentone Irrigation Co. v. Redlands Electric Light & P. Co. 22: 382, 100 Pac. 1082, 155 Cal. 323. 276. An objection that the interlocutory order appointing appraisers to assess dam- ages in condemnation proceedings does not show an effort to agree as to the compensa- tion for the taking of land described in the amended complaint, there having been a slight change in the description of the real estate in the latter pleading, is not avail- able under a general assignment that the interlocutory order is not sustained by suffi- cient evidence. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. Pleadings. 277. The supreme court will not pass up- on assignments of error based upon the ac- tion of the court below in sustaining a de- murrer to a pleading, where the party com- plaining fails to comply with that part of court rule No. 25 which requires him to set forth the material parts of the pleading up- on which he relies, together with such other statements from the record as are necessary to a full understanding of the questions pre- sented to this court for decision, so that no examination of the record itself need be made in this court. Eberle v. Drennan, 51: 68, 136 Pac. 162, 40 Okla. 59. Instructions. 278. An assignment of error that the court failed to charge the jury upon all material issues, without specifying upon Digest 1-52 L.R.A.CN.S.) what issues the court failed to charge, is too general to permit of consideration. Tar- ver v. Deppen, 24: 1161, 65 S. E. 177, 132 Ga. 798. 279. An assignment of error that the charge of the court was not applicable to the facts, and was misleading, is too gener- al, and cannot be considered, because it does not appear wherein the charge was in- applicable or misleading. Tarver v. Dep- pen, 24: 1161, 65 S. E. 177, 132 Ga. 798. 280. A recital in the defendant's brief on appeal that "the court erred in overruling the motion of the defendant made at the close of the evidence, that the jury be di- rected to return a verdict for defendant," sufficiently assigns error as to the over- ruling of a motion to instruct the jury to find in defendant's favor, under the Neb. Acts 1907, chap. 162. Waxham v. Fink, 28: 367, 125 N. W. 145, 86 Neb. 180. New trial. 281. The granting of a motion for new trial will not be upheld upon a ground other than that specified by the court, if counsel points out no other prejudicial error in the record but leaves the court to find one if it exists. Harrington v. Butte Miner Co. 51: 369, 139 Pac. 451, 48 Mont. 550. 3. Cross errors. (See also same heading in Digest L.R.A. 1-70.} See also infra, 389, 549. 282. Cross assignments of error will not be considered where appellees ask an af- firmance of the judgment, which can be done without considering them. Baldwin v. Moroney, 30: 761, 91 N. E. 3, 173 Ind. 574. 283. The appellate court has no juris- diction to entertain a cross petition in er- ror which is not filed within the time pre- scribed by statute for filing petitions for writs of error. Wails v. Farrington, 35: 1174, 116 Pac. 428, 27 Okla. 754. 284. One who takes no appeal or writ of error cannot, by assigning cross errors, con- fer jurisdiction on a Federal court to con- sider or decide rulings either for or against him in the court below. O'Neil v. Wolcott Mining Co. 27: 200, 174 Fed. 527, 98 C. C. A. 309. 285. An answer to an appeal, asking for an amendment of the judgment, must be filed within three days after the case has been set for hearing in this court, and, un- less it is timely filed, it will be dismissed. Martin v. Board of Fire Comrs. 44: 68, 61 So. 197, 132 La. 188. 286. Where the case against one of two codefendants has been dismissed, this co- defendant is without right to answer an appeal taken by the other codefendant, and to ask for the amendment of the judgment rendered in favor of the plaintiff. Martin v. Board of Fire Comrs. 44: 68, 61 So. 197, 132 La. 188. APPEAL AND ERROR, IV. q V. a, 1. 79 q. Waiver of assignments of error. (See also same heading in Digest L.R.A. 1-10.) Exceptions in mandamus proceedings, see MANDAMUS, 119. r. Briefs. (See also same heading in Digest L.R.A. 1-10.) See also supra, 258; infra, 364, 481. 287. In preparing a brief, it is the duty of counsel for an appellant to cite the page of the transcript of the record upon which they rely to support an assignment of er- ror. Ellis v. State, 43: 811, 128 Pac. 1095, 8 Okla. Grim. Rep. 522. 288. When typewritten briefs are filed in this court, they should be so prepared that they may be read and understood by the court. Cline v. State, 45: 108, 130 Pac. 510, 9 Okla. Grim. Rep. 40. 289. Although in ordinary cases the briefs of counsel which do not comply with a rule of court requiring citations of Okla- homa cases to be by volume and page of Oklahoma reports will not be considered, yet in a capital case in which the extreme penalty of the law has been assessed by the jury, the rule may be relaxed and the briefs treated as though in strict compli- ance to the rules of court. Henry v. State, 52:113, 136 Pac. 982, 10 Okla. Grim. Rep. 369. 290. All points relied upon for reversal on appeal must be properly made in the brief or they will be deemed waived; and it is not sufficient to assert in general terms that a ruling of the trial court is wrong, but a fair effort must be made to prove that it is wrong, or the point will not be considered as having been made. Alli- son v. Bryan, 30: 146, 109 Pac. 934, 26 Okla. 520. 291. Exceptions not discussed in, the brief cannot be brought to the attention of the ap- pellate court after the time for filing the brief has expired. Chicago, B. & Q. R. Co. v. Lampman, 25: 217, 104 Pac. 533, 18 Wyo. 106. 292. A judgment enjoining the comple- tion of a levee to protect real estate from flood water of a river is temporary, and not final, within the meaning of a statute governing the practice as to filing briefs upon appeal from temporary injunction, if it also contains a provision as to pro- tection of complainant's property, the in- tent apparently being that the levee may be completed if complainant's property is protected. Ft. Worth Improv. Dist. No. 1 v. Ft. Worth, 48: 994, 158 S. W. 164, Tex. . ?ouliw, Digest T-52 L.R.A.(N.S.) V. Objections and exceptions; raising questions in lower court. a. Deflniteness; sufficiency. 1. In general. (See also same heading in Digest L.R.A. 1-10.) As to bill of exceptions, see .supra, IV. o. Matters as to trial, see TRIAL, I. f. See also supra, 291. 293. Exceptions to a charge of the court must point out some definite or specific de- fect. Russell v. Olson, 37: 1217, 133 N. W. 1030, 22 N. D. 410. 294. An exception of a general charac- ter does not cover specific objections which, in fairness of the court, ought to have been called to its attention in order that, if necessary, it could correct or modify them. Ingram v. Kansas City S. & G. R. CQ. 50: 688, 64 So. 146, 134 La. 377. 295. Error in the acceptance of jurors can- not be preserved by the mere objection, "challenged for cause." State v. Forsha, 4: 576, 88 S. W. 746, 190 Mo. 296. 296. A general exception to a refusal to submit to the jury a number of special in- terrogatories is insufficient if any one of them be improper. Arkansas Valley & W. R. Co. v. Witt, 13: 237, 91 Pac. 897, 19 Okla. 262. 297. The response of the judge to a ques- tion whether he would hold court on a holi- day, that he knew of no. law to prevent it, the case proceeding on that day without further objection, is not an objection and adjudication in the particular case, so as to be available on appeal. State v. Cook, 15: 1013, 59 S. E. 862, 78 S. C. 253. 298. An objection the day after a judg- ment was rendered, to the entering of any judgment upon the verdict rendered, is not sufficient to question the sufficiency of the form of the verdict. Walter v. Louisville R. Co. 43: 126, 150 S. W. 824, 150 Ky. 652. 299. An objection that a decree of adop- tion entered by a probate court cannot be set aside on the facts entitles one appeal- ing from a subsequent decree attempting to set it aside, to raise the question whether or not petitioner is entitled on all the facts to any relief, and to raise objections not specified as objections to the decree, where under such an appeal the case is heard de novo in the appellate court. Phillips v. Chase, 30: 159, 89 N. E. 1049, 203 Mass. 556. 300. The question of ratification of a de- cree of adoption procured by fraud, or of laches and the statute of limitations, can- not be raised on appeal from a subsequent decree of the probate court setting aside the former one, where no objections to the decree on those grounds were filed on ap- peal, although upon such an appeal the case is heard de novo in the appellate court. Phillips v. Chase, 30: 159, 89 N. E. 1049, 203 Mass. 556. 80 APPEAL AND ERROR, V. a, 2. To overruling of demurrer. 301. A several exception to rulings on de- murrers to several paragraphs of complaint is shown by a recital of record that the de- murrers to the complaint and to each para- graph thereof are overruled, to which rul- ing defendant, at the time, severally ex- cepts, so as to permit a review of the rul- ings on appeal. Bedford Quarries Co. v. Bough, 14: 418, 80 N. E. 529, 168 Tnd. 671. 302. Overruling demurrers to the several paragraphs of the complaint is brought to the attention of the appellate court by an exception to the overruling of the several demurrers to the "complaint," where all paragraphs relate to the same injury, and the record shows that the only complaint ever on file appears in it. Chicago, I. & L. R. Co. v. Barker, 17: 542, 83 N. E. 369, 169 Ind. 670. To argument of counsel. 303. An exception to remarks of counsel in opening his case to the jury raises no question for the consideration of the ap- pellate court. Ickcs v. Ickes, 44: 1118, 85 Atl. 885, 237 Pa. 582. To findings or conclusions of court. 304. A general exception to findings of fact and conclusions of law is not sufficient to permit the appellate court to review the evidence. Sallaske v. Fletcher, 47: 320, 132 Pac. 648, 73 Wash. 593. 305. A general exception to a conclusion of law that plaintiff is entitled to judgment raises a question of law with respect to the right to maintain the action. Falk v. Amer- ican West Indies Trading Co. i : 704, 73 N. E. 239, 180 N. Y ; 445. 306. Error in allowing interest on a note at a greater amount than is authorized by statute is sufficiently questioned under 5055, 2 Ballinger's Anno. Codes & Statutes, by an exception "that the evidence is insuffi- cient to support the finding, and that the same is contrary to the evidence." Bank v. Doherty, 4: 1191, 84 Pac. 872, 42 Wash. 317. 307. An exception to findings of fact made by the trial court must specify the particular finding or findings objected to, where more than one finding is made, and a general objection is insufficient to present any question for review, unless all the find- ings are incorrect, and an objection to a finding, where no requested finding on the proposition is asked, which points out coun- sel's theory or contention, should clearly indicate the claimed error. Southard v. Latham, 50: 871, 138 Pac. 205, 18 N. M. 503. 2. To evidence. a. Admission of. (See also same heading in Digest L.R.A. 1-10.) See also EVIDENCE, 1G43. 308. Objections to testimony, made in the lower court, will only be considered on ap- peal where the precise error complained of is clearly pointed out in the brief of counsel, Digest 1-52 L.R.A.(N.S.) with a statement of the testimony objected to, so as to enable the court to understand the questions presented. Wood v. State, 45:673, 112 Pac. 11, 4 Okla. Crim. Rep. 436. 309. An objection to the introduction of any evidence, upon the ground that the com- plaint does not state facts sufficient to con- stitute a cause of action, must specially point out wherein the complaint irj defective. Sleeper v. Baker, 39:864, 134 N. W. 716, 22 N. D. 386. 310. General objections to evidence pro- posed, without stating the precise grounds of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. 311. Failure to state the ground for objec- tion to the admission of evidence is not fatal to consideration of the question on appeal if the only possible ground is obvi- ous. Johnson v. United States, 18: 1194, 163 Fed, 30, 89 C. C. A. 508. 312. The appellate court will not regard an exception to the taking of a deposition, made while it is in progress, and noted in the deposition, unless it is brought to the notice of the court below, before hearing on the merits begins, by motion to suppress. Whitehouse v. Jones, 12: 49, 55 S. E. 730, 60 W. Va. 680. 313. Evidence offered in support of an ele- ment of damage alleged in the declaration, and allowed over a general objection, will not be held error if it be legally pertinent or relevant on any aspect of the case. Western U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, 50 Fla. 474. 314. One relying upon a general exception to evidence in a Federal court must show that the defects in the evidence admitted could not have been cured by the party of- fering it if his attention had been called to those relied upon. Wellington v. Pelletier, 26: 719, 173 Fed. 908, 97 C. C. A. 458. 315. Reversal for admission of testimony of persons who stated that they were in- habitants of a town to which a telegram was sent, and knew the addressee, and could have given information as to how he might have been reached, in an action to recover damages for failure to deliver the message, will not follow because the witnesses were not shown to have been in the place at the time the message was received, if such ground was not stated in the objection. Western U. Teleg. Co. v. Alford, 50: 94, 161 S. W. 1027, 110 Ark. 379. What questions raised. 316. An objection to the admission of any evidence which is based upon and calls at- tention to substantial defects in a count of a complaint merely, will not reach a mis- joinder of actions or formal defects in plead- ing. Sleeper v. Baker, 39: 864, 134 X. W. 716. 22 N. D. 386. 317. The question of the qualification of witnesses is not raised by an objection that APPEAL AND ERROR, V. a, 3. 81 the evidence is immaterial, incompetent, and irrelevant. People v. Burman, 25: 251, 117 N. W. 589, 154 Mich. 150. 318. An objection that testimony as to the intoxication of accused is incompetent, immaterial, inadmissible, and not proper re- buttal is not sufficient to raise the question of its admissibility without requiring a pre- liminary statement by the witnesses of the facts on which their opinions are based. Com. v. Eyler, n: 639, 6G Atl. 740, 217 Pa. 512. b. Exclusion. (See also same heading in Digest L.R.A. 1-10J See supra, 76. 3. To instructions. (See also same heading in Digest L.R.A. 1-10.) 319. Exceptions reserved to the instruc- tions of the trial court will not be con- sidered on appeal, unless the brief clearly points out the alleged defect in said in- structions, or unless said instructions are fundamentally wrong. Wood v. State, 45: 673, 112 Pac. 11, 4 Okla. Crim. Rep. 436. 320. An exception that a charge is con- trary to law is too general to be of avail on appeal. W. T. Walker Furniture Co. v. Dyson, 19: 606, 32 App. D. C. 90. 321. An exception to each and every one of the instructions is too general to be avail- able on appeal. State v. Counort, 41 : 95, 124 Pac. 910, 69 Wash. 361. 322. No question for the consideration of the appellate court is raised by an excep- tion: "To the giving of each and all of the said instructions, . . . defendant, by his counsel, then and there excepted." Fitz- simmons v. United States, 13: 1095, 156 Fed. 477, 84 C. C. A. 287. 323. An objection to oral instructions, that the "defendant excepts, to the giving of each instruction," is sufficient to preserve for review errors therein. Baumle v. Verde, 41: 840, 124 Pac. 1083, 33 Okla. 243. 324. A general exception to a 424. Inadmissible evidence which is ad- mitted without objection cannot be dis- regarded on appeal. Frye v. St. Louis, I. M. & S. R. Co. 8: 1069, 98 S. W. 566, 200 Mo. 377. 425. Upon appeal from a judgment for plaintiff in an action to recover for personal injuries, where the only errors assigned are the refusal to direct a verdict or to grant a judgment for defendant^ the evidence will be examined only for the purpose of ascer- taining if there is any credible evidence which, taken in its most favorable aspect to the plaintiff, might directly or by proper inference sustain the judgment in his favor; countervailing evidence on the part of the defendant cannot be considered. Karr v. Milwaukee Heat, Light, & Traction Co. 13: 283*, 113 N. W. 62, 132 Wis. 662. 426. Evidence admitted for a particular purpose only cannot properly be considered on appeal for any other purpose, either in support of the judgment or as a ground for reversal. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. 427. The appellate court, in reviewing a refusal to direct a verdict for defendant in an action to recover damages for personal injuries, cannot disregard evidence merely because it is improbable. O'Callaghan v. APPEAL AND ERROR, VII. d. Delhvood Park Co. 26: 1054, 89 N. E. 1005, 242 111. 336. 428. On a motion for a new trial, based upon the minutes of the court, alleged er- rors not properly specified in the notice of intention to move tor a new trial cannot be considered on appeal. State use of Hart- Parr Co. v. Robb-Lawrence Co. 16: 227, 115 N. W. 846, 17 N. D. 257. 429. In mandamus proceedings to compel the directors of a. medical college to issue a diploma, the supreme court will not allow the respondent corporation to open up the case to appoint a referee and take addi- tional evidence in support of the defense interposed in the court below, since to al- low new issues to be framed and additional evidence introduced in cases brought up for review would destroy the strictly appellate character of the supreme court. State ex rel. Nelson v. Lincoln Medical College, 17: 930, 116 N. W. 294, 118 N. W. 122, 81 Neb. 533. Amendments. 430. Amendments in matters of form that do not affect the fair trial and determina- tion of the real question in controversy may be allowed in the court of review, under N. J. P. L. 1903, p. 572, 126. Holt v. United Security L. Ins. & T. Co. (N. J. Err. & App.) 21:691, 72 Atl. 301, 76 N. J. L. 585. Trial de novo. In eminent domain proceedings, see EMI- NENT DOMAIN, 175, 176. See also infra, 961, 1513, 1573. 431. Upon an appeal to the district court from a judgment of a justice court rendered upon the refusal of the defendant to plead further after his plea to the jurisdiction of the justice was overruled, appellee is not entitled to the judgment of the district court affirming the judgment of the justice, upon appellant conceding the jurisdiction of the justice, where under the statute the case is triable in the district court de novo upon the merits. Rogers v. Kemp Lumber Co. 51:594, 137 Pac. 586, 18 N. M. 300. d. Presumptions. (See also same heading in Digest L.R.A. 1-70.-) See also infra, 964. 432. The legal presumption, in the ab- sence of a showing in the record that the trial court committed an error of law, is that the rulings of such court were right, and the burden is on him who asserts tnat one of them was erroneous to make that fact appear by the record he presents to the appellate court. Thompkins v. Mis- souri, K. & T. R. Co. 52:791, 211 Fed. 391, 128 C. C. A. 1. 433. Upon appeal on the judgment roll from a judgment supported by the findings made, in the absence of a showing to the contrary on the record, it must be presumed that there was no evidence which would have sustained a finding in favor of an is- Digest 1-52 L.R.A. (N.S.) sue set up in the pleadings Coats v. Coats, 36: 844, 118 Pac. 441, 160 Cal. 671. 434. The appellate court will entertain no presumption that the trial court, upon the hearing on a bill of review, looked to the evidence for facts which the pleadings dis- closed, and on such presumption reverse the decree. Peters v. Case, 13: 408, 57 S. E. 733, 62 W. Va. 33. 435. In the absence of a finding upon the point or an issue framed to invoke such finding, an appellate court will presume in favor of a judgment denying priority to matured stock in an insolvent building and loan association, notice of withdrawal of which had been given, that the notice was not given until after the insolvency had occurred. Pacific Coast Sav. Soc. v. Stur- devant, 49: 1142, 133 Pac. 485, 165 Cal. 687. 436. Where a judgment has been entered by default, and a timely application is made to set aside the default and permit an answer to the merits to be filed, and such answer discloses upon its face a good and meritorious defense, as a general rule, if there be any reasonable doubt on the mat- ter, it wil be resolved in favor of granting the application and allowing a trial upon the merits of the case; and on an appeal from an order granting such an application every reasonable presumption will be in- dulged in support of the order opening de- fault and allowing a trial on the merits of the case. Humphreys v. Idaho Gold Mines Development Co. 40: 817, 120 Pac. 823, 21 Idaho, 126. 437. In the absence of anything in the record to the contrary, an appellate court will presume that a pardon introduced to qualify a person as a witness who had been convicted of offenses in the court in which he was to testify, which contained the date of conviction and named the court, was shown to relate to the particular offenses for which he was convicted, or that the court took judicial notice of that fact. Thompson v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. 438. The appellate court will, when the record recites that the parties came and submitted the cause to the court for trial, without the intervention of a jury, pre- sume that a jury trial was expressly waived. Indianapolis Northern Traction Co. v. Brennan, 30: 85, 87 N. E. 215, 90 N. E. 65, 174 Ind. 1. 439. No presumption that a woman will perform her invalid contract to give her attorney a share of the allowance secured in a divorce proceeding as alimony will pre- vent the appellate court from affirming a special allowance for counsel fees made by the trial court. McConnell v. McConnell, 33: 1074, 136 S. W. 931, 98 Ark. 193. 440. In the absence of evidence to the con- trary, it will be presumed on appeal that a peddler of small wares charged with vio- lating a municipal ordinance by remaining in one place while not actually engaged in making sale of an article attempted to stand longer in such place than the terms of the APPEAL AND ERROR, VII. d. 89 ordinance permitted. Shreveport v. Dantes, 8: 304, 42 So. 716, 118 La. 113. 441. It will be presumed that the infor- mation acquired by a juror who, without knowledge of the parties or the court, vis- ited the switch where an engine was de- railed resulting in the injuries complained of, was prejudicial. Floody v. Great North- ern R. Co. 13: 1196, 112 N. W. 875, 102 Minn. 81. 442. The appellate court cannot presume that the trial court inferred bodily harm from the facts found by it in a divorce case, where it states that it decided the case on the facts found, which do not include a finding of bodily harm. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. 443. A granted motion to set down for hearing on petition and answer a petition to quash a proceeding to compel specific per- formance of a contract to sell real estate will be assumed, on appeal, to have been filed by petitioner, in the absence of any- thing in the record to the contrary, so that the truth of the answer denying the resi- dence of defendant, which wo*uld invalidate the service of process, must be taken as ad- mitted and the service upheld. Hollander v. Central Metal & S. Co. 23: 1135, 71 Atl. 442, 109 Md. 131. 444. In the absence of a request for rul- ing, and exception, the court cannot assume that the master made a certain ruling from language which contains an intimation that he made it, if other language indicates that he may not have intended to do so. Long v. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. As to pleadings. 445. In an action on an insurance policy, a petition alleging specific acts as a waiv- er of proof of loss, in proof of which un- contradicted evidence was introduced with- out objection, sufficient to show a waiver thereof upon other grounds, will be con- sidered as amended so as to conform to the facts proved, and a waiver ' so proved is fairly in issue. St. Paul F. & M. Ins. Co. v. Mittendorf, 28: 651, 104 Pac. 354, 24 Okla. 651. 446. Since a general demurrer to a bill in equity challenges its sufficiency in all re- spects, a decree sustaining such a demurrer is presumed on appeal to rest upon any sufficient ground disclosed by the bill, even though it was not assigned in writing as a ground of demurrer, while others, not well taken, were. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 447. It will be presumed that the chan- cellor, in sustaining a demurrer to a bill filed to set aside a deed, the sole considera- tion of which was the promise of the grantee not to prosecute the husband of the grantor for the crime of embezzlement, did so on the ground that the parties to the deed were in pari dclicto, and that neither was in a position to obtain relief either against or under the deed, where the order does not state upon what ground the de- murrer was sustained. Burton v. McMillan, ii : 159, 42 So. 879, 52 Fla. 228. Digest 1-52 L.R.A.(N.S-) As to evidence admitted. See also supra, 332. 448. No error will be presumed in the ad- mission of evidence not contained in the bill of exceptions. Thompson v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. As to evidence excluded. 449. The appellate court will not, to save error in refusing to admit opinion evidence, assume facts which would go merely to its weight, and might have been developed on cross-examination. Adler v. Pruitt, 32: 889, 53 So. 315, 169 Ala. 213. As to sufficiency of evidence. 450. Absence of a certificate that the printed case contains all the evidence in an attempt to review exceptions taken at the trial does not entitle the appellate court to assume that there was evidence at the trial sufficient to sustain the verdict, when the record does not disclose it, since such cer- tificate is not necessary to raise such ques- tion. Dupont v. Port Chester, 39: 1167, 97 N. E. 735, 204 N. Y. 351. As to findings or verdict. Review of, see infra, VII. 1. See also supra, 411; infra, 1014. 451. The common evidentiary presump- tion in favor of judicially found facts does not exist where such findings are the result of misconception of law. Boardman v. Lor- entzen, 52: 476, 145 N. W. 750, 155 Wis. 566. 452. A statutory provision that facts necessary to support a judgment founded on a special verdict shall be deemed to have been determined in conformity with the judgment, although omitted from the ver- dict, does not apply where there was a spe- cial request to submit the question to the jury. Habhegger v. King, 39: 88 1, 135 N. W. 166, 149 Wis. 1. 453. The court of appeals will not pre- sume that any fact was found not embraced within the scope of the pleadings, the find- ings, as they appear in the record, and the proofs upon which the decision was made, for the purpose of upholding a judgment, although it was a short decision, unani- mously affirmed. Falk v. American West Indies Trading Co. i: 704, 73 N. E. 239, 180 N. Y. 445. 454. When the finding of the trial court upon a question of fact is challenged upon appeal, all reasonable presumptions are to be indulged in, in favor thereof; and it cannot be disturbed unless, in the light of such rule, it is so clearly contrary to the preponder- ance of the evidence as to produce convic- tion in the minds of the reviewers, to a rea- sonable certainty, that it is wrong. Chase v. Hinkley, 2: 738, 105 N. W. 230,. 126 Wis. 75. 455. No fact not specified found can be added by the court to a special verdict, nor can its existence be presumed. State v. Colonial Club, 31:387, 69 S. E. 771, 154 N. C. 177. 456. In a case tried by the court, where the court submits questions of fact to the 90 APPEAL AND ERROR, VII. d. jury in an advisory capacity, and adopts their findings, it will be assumed that the court gave proper weight to all the compe- tent evidence. People's Gas Co. v. Fletcher, 41: 1161, 105 Pac. 34, 81 Kan. 76. 457. A verdict cannot be disturbed by a reviewing court on the theory that the jury must have been impressed with the truth of the opinions of a witness upon which hypothetical questions to experts were founded, by the reiteration of such questions containing assumptions founded upon such opinions. Kearner v. Charles S. Tanner Co. 29: 537, 76 Atl. 833, 31 R. I. 203, 458. An appellate court will, when neces- sary to support a decree enjoining an at- tempted use of a right of way claimed as an easement because of sixty years' use, assume that the trial court inferred from the facts found that the use had been per- missive, and not hostile. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. 459. Whatever facts are not included in the findings of fact by the trial court must be presumed to have been found against the party having the burden of proof. Mc- Adams v. Bailey, 13: 1003, 82 N. E. 1057, 169 Ind. 518. 460. Where the trial court has not found enough of the ultimate facts to make out the case of fraud alleged by appellant the appellate court will assume that they were not proved, and that appellees were suc- cessful in rebutting all adverse inferences which might have been drawn as matters of fact from that which is contained in the special findings. McAdams v. Bailey, 13: 1003, 82 N. E. 1057, 169 Ind. 518. 461. A finding that a housi on homestead property was, because of its age and con- dition, not a fit dwelling for the claimant of the homestead and his family, will not support an inference that a new house erected on an adjoining lot comprised in the homestead was built with the intention of using it as a home, in the absence of a finding that the claimant thought the old house unfit, and in the face of findings that the claimant was engaged in the business of building houses for sale, and tried to sell the new house while under construction, and that his family continued to live in the old house until they moved into the new house and rented the old house for others to live in. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. 462. A finding by a single justice that the law of a foreign state is the same as the local law, which is founded entirely upon decisions of the courts of such state, creates no presumption in its favor when it is renewed by the law court. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 N. E. 193, 203 Mass. 159. 463. Findings of fact by the corporation commission, based upon any competent evi- dence supporting same, are presumed prima facie to be correct; but when any finding is not supported by any evidence, and there is strong evidence to the contrary, this presumption does not prevail. Pioneer Digest 1-52 L.R.A.(N.S.) Teleph. & Teleg. Co. v. Westenhaver, 38: 1209, 118 Pac. 354, 29 Okla. 429. 464. The facts as found by the state cor- poration commission are presumed to be correct until overcome or rebutted by the facts in the record, as weighed and found by the supreme court on review thereof. Chicago, R. I. & P. R. Co. v. State, 24: 393, 103 Pac. 617, 24 Okla. 317. 465. The finding by a corporation commis- sion that the installation and maintenance of a telephone in a certain railroad station is a necessary facility and convenience with- in the purview of the constitutional provi- sion that such commission shall require pub- lic-service corporations to establish and maintain all such public-service facilities and conveniences as may be reasonable and just, raises a presumption, which can be overcome on appeal only by manifest error appearing in the record, that the order based thereon is prima facie just, reasonable, and correct. Atchison, T. & S. F. R. Co. v. State, 21: 908, 100 Pac. 11, 23 Okla. 310. As to instructions. 466. Where'the evidence is in conflict and the record shows that the trial court in- structed the jury, but omits entirely to in- clude such instructions, it will be presumed on appeal that such instructions were cor- rect, and properly presented the law and the issues to the jury. Galehouse v. Min- neapolis, St. P. & S. Ste. M. R. Co. 47: 965, 135 N. W. 189, 22 N. D. 615. 467. A judgment will not be reversed be- cause the record states merely that the court gave the "general charge" without setting out the language used, on the theory that possibly the court may have charged upon the effect of the testimony, or have failed to follow the language of the request, contrary to the provisions of the statute. Parker v. Wilson, 43: 87, 60 So. 150, 179 Ala. 361. 468. That accused was found guilty of involuntary manslaughter does not show that ah instruction was harmless which per- mitted a conviction on an indictment for striking, wounding, and throwing the vic- tim into a well, although the evidence shows the frightening of him into insanity so that he jumped into the well. Gipe v. State, i: 419, 75 N. E. 881, 165 Ind. 433. As to regularity of proceedings below. In criminal case, see infra, 473, 474. Presumption as to time when order to set aside decree was made, see JUDGMENT, 362. 469. The appellate court will not, in the absence of a finding to that effect, assume that a visit by the trial judge to the scene of the controversy was without the consent of counsel. Bitello v. Lipson, 16: 193, 69 Atl. 21, 80 Conn. 497. 470. Where a record is silent upon the question of a referee having taken an oath as required by law, the presumption will be indulged that such oath was taken; and, even though omitted it will be held an ir- regularity only, and waived by a party who proceeds to trial without objection on this APPEAL AND ERBOR, VII. 6. 91 point. Logan v. Brown, 20: 298, 95 Pac. 441, 20 Okla. 334. 471. On appeal in a civil action, where the record shows that the jury were sworn, it will be presumed that they were fairly sworn, if the form of oath administered does not appear. First Nat. Bank v. Lowther- Kaufman Oil & C. Co. 28: 511, 66 S. E. 713, 66 W. Va. 505. 472. The bill of exceptions should not be stricken on appeal, on the ground tbat the prevailing party did not have the statutory period allowed, after notice that a bill of exceptions had been filed, in which to file his objections and amendments thereto, where it does not appear that such right was not waived, as the presumption is that notice was given and that opportunity to inspect and object was had, although the record is silent as to that fact. Kroll v. Close, 28: 571, 92 N. E. 29, 82 Ohio St. 190. In criminal cases. 473. Where the record is silent as to whether the defendant had been arraigned, but affirmatively shows that the defendant was accorded all the rights and privileges which the statute secures him by arraign- ment, the appellate court will presume that the defendant was either arraigned or that he waived arraignment. Wood v. State, 45: 673, 112 Pac. 11, 4 Okla. Grim. Rep. 436. 474. Where the record is silent as to the presence of the defendant upon one day of his trial, but shows affirmatively that he was present and announced ready for trial when the trial began, and also that he was present when the verdict of the jury was returned, the entire record may be considered, and may be sufficient to justify the presumption that the defendant was present on the day on which the record was silent as to his presence. Wood v. State, 45: 673, 112 Pac. 11, 4 Okla. Grim. Rep. 436. 475. Objection that the record does not show that the prisoner was in court when the verdict was rendered cannot be raised on appeal, where there is no evidence that he was not in court at such time, and the record affirmatively sho\^s his presence in court when the jury was impaneled and after the verdict was rendered, since from such facts a presumption of his presence during the intervening period arises. State v. Gibson, 28: 965, 68 S. E. 295, 67 W. Va. 548. 476. It will not be presumed upon an ap- peal from a conviction of a criminal charge that the trial judge, the county attorney, and the jury entered into a conspiracy un- lawfully to deprive the accused of his liber- ty, or that either of them has not faith- fully performed his respective duties, but, on the contrary, every presumption will be indulged in favor of the rulings of the trial court, the regularity of the proceedings, and the correctness of the verdict of the jury. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. 477. Where a record is silent upon the subject of the argument of counsel upon the trial of one accused of homicide, the Digest 1-52 L.R.A.(N.S.) presumption of law, in the appellate court, is either that argument was waived or that it was omitted from the record through the carelessness of the clerk. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. 478. A mere statement in a motion for ne^ trial of a prosecution for forgery, that there was a variance between the instru- ment set out in the indictment and that produced at the trial, is not sufficient to warrant a presumption by the appellate court that such variance existed, if there is nothing in the evidence or findings to show that it did exist. Forcy v. State, 32: 327, 131 S. W. 585, 60 Tex. Crim. Rep. 206. 479. The presumption of innocence no longer prevails upon appeal from a convic- tion in a criminal prosecution, but the coun- ter presumption prevails that the accused is guilty. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. e. What reviewable generally. (See also same heading in Digest L.R.A. 1-70.) Condition of record as affecting review- ability, see supra, IV. Scope of review on writ of error from Fed- eral supreme court to state court, see supra, 61-63. See also supra, 125, 204, 260, 423. 480. Errors assigned in the brief, but not argued, will be deemed abandoned. Kelly v. Pierce, 12: 180, 112 N. W. 995, 16 N. D. 234. 481. Objections against the transcript, not stated in appellee's brief, but urged for the first time on the argument before the appellate court, will not be considered. Bal- timore & 0. S. W. R. Co. v. Evans, 14: 368, 82 N. E. 773, 169 Ind. 410. 482. The mere presence in a case of a constitutional question does not confer jurisdiction of the whole case upon the ap- pellate court charged with the determi- nation of such questions. Richey v. Cleve- land, C. C. & St. L. R. Co. 47: 121, 96 N. E. 694, 176 Ind. 542. 483. A constitutional question is waived by appealing to the appellate court rather than to the supreme court. R. Haas Elec- tric & Mfg. Co. v. Springfield Amusement Park Co. 23: 620, 86 N. E. 248, 236 111. 452. 484. The supreme court of Georgia will not examine the record to determine whether the decision of a constitutional question is necessary to the proper determination of the case, in an action in which the court of ap- peals has certified a constitutional question to the supreme court for decision, and de- clared that a decision of such question is necessary, since that is a matter to be de- cided by the court of appeals, and its judg- ment on any matter within its jurisdiction! is not reviewable by the supreme court. 1 Harvey v. Thompson, 9: 765, 57 S. E. 104,j 128 Ga. 147. 92 APPEAL AND ERROR, VII. e. 485. The actual offer of evidence upon an issue is not necessary to preserve a ques- tion for the appellate court if the trial court rules that no proof upon that issue will be received, to which an exception is reserved. Palmer v. La Rault, 21:354, 99 Pac. 1036, 51 Wash. 664. 486. The question whether a judgment which followed a verdict in favor of the plaintiff in an action in which but one de- fendant was served with process, and who alone appeared and defended the suit, should have been entered against this de- fendant by name, cannot be considered on appeal, since a complaint that the judg- ment is erroneous or def . ctive is the proper subject-matter of direct exception, and is no ground for a new trial. Thomas v. Clarkson, 6: 658, 54 S. E. 77, 125 Ga. 72. 487. In order to determine the prejudicial effect of errors properly assigned, the whole record may be examined; and if, in the light thereof, the findings appear indefinite and uncertain on a vital issue, the judgment should not be allowed to stand. First Nat. Bank v. C. E. Stevens Land Co. 43: 1040, 137 N. W. 1101, 119 Minn. 209. 488. Where the question presented goes only to the jurisdiction of the trial court to enter the judgment sought to be vacated under a special appearance, the appellate court will consider only the jurisdictional question raised, and, on determining that the trial court had jurisdiction to enter the judgment, the decision of the trial court re- fusing to vacate the same is affirmed. Gold- stein v. Peter Fox Sons Co. 40: 566, 135 N. W. 180, 22 N. D. 636. 489. Upon a petition in error to reverse a judgment by default, such defects in the petition as could have been taken advantage of under general demurrer may be brought under review; and, if the allegation of the petition is insufficient to sustain the judg- ment, the same will be reversed. Grissom v. Beidleman, 44: 411, 129 Pac. 853, 35 Okla. 343. 490. Upon refusal of a request to direct a verdict, if the grounds for the request are not pointed out, the defeated party may raise in the appellate court any question of law actually involved in the request and re- fusal, even though it was not thought of at the trial. Parrot v. Mexican C. R. Co. 34: 261, 93 N. E. 590, 207 Mass. 184. 491. That a prisoner was not brought to trial within two terms after his arrest can- not be considered on appeal from a convic- tion, where the question is, under the stat- ute, to be raised by a habeas corpus pro- ceeding. Com. v. Fisher, 26: 1009, 75 Atl. 204, 226 Pa. 189. 492. That portion of a decree in a di- vorce proceeding which is not appealed from cannot be reviewed on appeal. Ton- cray v. Toncray, 34: 1106, 131 S. W. 977, 123 Tenn. 476. 493. Appealing from a conviction for con- tempt in violating an injunction, instead of seeking a review by writ of certiorari or ha- beas corpus, will not operate to enlarge the field of inquiry of the appellate court. En- Digest 1-52 L.R.A.(N.S.) terprise Foundry Co. v. Iron Moulders' Union, 13: 598, 112 N. W. 685, 149 Mich. 31. 494. Although the statute requires a pro- ceeding for review by the supreme court to be called an appeal, yet an appeal in a habeas corpus proceeding has only the effect of a certiorari, and the review is confined to a determination of the regularity of the proceedings of the nisi prius court. Com. ex rel. Flower v. Superintendent of Prison, 21 : 939, 09 Atl. 916, 220 Pa. 401. 495. A motion to qirash the writ in habeas corpus amounts to a demurrer, and, if denied and excepted to, any error in the ruling may be urged on appeal, although issues were joined and trial had, provided the proceeding is one which is appealable. Bleakley v. Barclay, 10: 230, 89 Pac. 906, 75 Kan. 462. 496. Upon a petition to revise an order in bankruptcy under the act of 1898, the court may search the opinion filed by the district court, not to eke out insufficient findings of fact, but for the purpose of ascertaining the issues which that court considered. Re Cole, 23: 255, 163 Fed. 180, 90 C. C. A. 50. 497. When an appeal is taken from an order which grants a new trial on a single ground that may be insufficient, the appel- late court is not limited to a review of the ruling as to that ground, but will consider any and all questions presented by the rec- ord which it deems necessary for the proper decision of the case. Smart v. Kansas City, 14: 565, 105 S. W. 709, 208 Mo. 162. 498. Failure to waive a jury trial by written stipulation will not prevent a re- view on writ of error of the decision of the court as a whole upon an agreed state- ment of facts if there was no question of fact to be decided. Talcott v. Friend, 43: 649, 179 Fed. 676, 103 C. C. A. 80. 499. Where, in an action involving no constitutional question, for the recovery of money only, in an amount too small to confer appellate jurisdiction upon a court of last resort in the absence of a con- stitutional question, judgment was ren- dered by default against a defendant while he was detained jn custody, and a motion to open the judgment and vacate the same for lack of jurisdiction to render it was overruled, the assignment of error upon the ground that he was denied due process of law does not confer jurisdiction upon the court of last resort to hear and de- termine any but the constitutional ques- tion raised. Griggs v. Hanson, 52: 1161, 121 Pac. 1094, 86^Kan. 632. Errors of law. 500. Failure of a jury to accept the theory of one of the parties as to the cause of an accident, to recover for injuries from which the action is brought, is not error of law. Hennessey v. Taylor, 3: 345, 76 N. E. 224, 189 Mass. 583. 501. Upon a request to direct a verdict for defendant on the ground that it is not the proper party to the suit, a question of law arises, which may be reviewed by th appellate court if the ruling is not supported: APPEAL AND ERROR, VII. f. 93 by the evidence. Chicago, B. & Q. R. Co. v. Weber, 4: 272, 76 N. E. 489, 219 111. 372. 502. The allowance or denial of a motion for a new trial, filed after a general verdict in a lower court, is largely a matter of ju- dicial discretion as to the finding of facts and the weight of evidence involved in the verdict, but alleged errors of law occurring upon the trial are not matters of discretion, and are fully subject to review upon appeal. Manker v. Tough, 19: 675, 98 Pac. 792, 79 Kan. 46. 503. A contention that the conclusions of law embraced in the findings are erroneous is not available upon appeal from an order denying a new trial. Mentone Irrigation Co. v. Redlands Electric Light & P. Co. 22: 382, 100 Pac. 1082, 155 Cal. 323. 504. Upon a petition to review an order of the bankruptcy court committing a bank- rupt for failure to comply with an order to its authority under the act of 1898, the court may revise any question of law as to which it may justly infer the district court reached a conclusion, whether formally ex- pressed or not, and whether or not formally presented. Re Cole, 23: 255, 163 Fed. 180, 90 C. C. A. 50. Pleadings. See also supra, 163. 505. The striking out of frivolous and sham pleas is not subject to review on ap- peal unless provision therefor is made by statute. Blessing v. McLinden (N. J. Err. & App.) 35: 312, 79 Atl. 347, 81 N. J. L. 379. 506. That a judgment is not supported by the complaint or findings may be re- viewed upon appeal from the judgment. Van Buskirk v. Kuhns, 44: 710, 129 Pac. 587, 164 Cal. 472. 507. An order denying a motion to amend the petition, not made until after judgment, is not reviewable upon appeal from the judgment. State ex rel. Dresser v. Board of School Dist. No. 1, 16: 730, 116 N. W. 232, 135 Wis. 619. 508. The appellate court will not pass upon the merits of a plea of fraud, which was offered by way of amendment after the striking of a general allegation of fraud be- cause not sufficiently specific, which was wrongfully stricken, as res judicata, as the ruling strik'ng the amendment was not upon the merits. Dolvin v. American Harrow Co. 28: 785, 54 S. E. 706, 125 Ga. 699. 509. A writ of error awarded a defend- ant in a case in which recovery is sought upon two counts, ih which the demurrer of the defendant is sustained as to the second count, does not bring up the action of the trial court in sustaining the demurrer to such count, and the supreme court cannot look to such count to support the verdict and judgment for the plaintiff on the first. Jenkins v. Chesapeake & O. R. Co. 49: 1166, 57 S. E. 48, 61 W. Va. 597. Evidence. 510. Alleged errors in the exclusion of evidence cannot be considered when it does not appear what it was expected to prove by answers to the questions propounded. Smith Digest 1-52 L.R.A.(N.S.) v. White, 14: 530, 60 S. E. 404, 63 W. Va. 472. 511. The appellate court will not, under a statute requiring it to weigh the evidence in equity cases, do so where the tfttNiimony is oral, and there is a substantiar"conflict in it. Indianapolis Northern Traction Co. v. Brennan, 30: 85, 87 N. E. 215, 90 N. E. 65, 174 Ind. 1. 512. A reviewing court will not examine and analyze the testimony in a case, to de- termine whether or not hypothetical ques- tions to an expert witness were based on opinions of other witnesses, but to make such question objectionable in form because of that fact it must be determinable upon the mere inspection of the question. Kear- ner v. Charles S. Tanner Co. 29: 537, 76 Atl. 833, 31 R. I. 203. 513. Defendant's testimony, as well as that of plaintiff, is subject to the considera- tion of the reviewing court upon an assign- ment of error in failing to grant a nonsuit, if defendant does not stand upon his mo- tion, but enters upon his defense. Dignam v. Shaff, 22: 996, 98 Pac. 1113, 51 Wash. 412. 514. In considering a demurrer to the evidence, a trial court may disregard in- competent testimony admitted over proper objections, and, on appeal from a ruling sustaining a demurrer to the evidence, in- competent evidence admitted over objection will not be considered for the purpose of reversing such ruling. Nance v. Oklahoma F. Ins. Co. 38: 426, 120 Pac. 948, 31 Okla. 208. 515. The evidence in the record on a writ of error bringing up for review a judgment of a state court in an action against a carrier for the death of an employee in the railway mail service, who was not at the time on duty, in which the carrier claimed the benefit of the prohibitions of the Hep- burn act of June 29, 1906, against free transportation, will be examined by the Federal Supreme Court to the extent neces- sary to determine whether there is support for the finding that the decedent was ac- cepted by the carrier as a gratuitous pas- senger, upon which the state court rested its conclusion that he was entitled to the protection of the local law, irrespective of any Federal question. Southern P. Co. v. Schuyler, 43: 901, 33 Sup. Ct. Rep. 277, 227 U. S. 601, 57 L. ed. 662. 516. The exclusion, in an action against a property owner for injuries to a pedestrian falling on a sidewalk because of the alleged freezing of water turned from his roof onto the walk, of a photograph of the direction taken by water coming from the roof during a severe rainstorm, is not so plainly wrong that it will be interfered with by the re- viewing court. Field v. Gowdy, 19: 236, 85 N. E. 884, 199 Mass. 568. /. Decisions in favor of party, or not affecting him. (See also same heading in Digest L.R.A. 1-10.) APPEAL AND ERROR, VII. g, 1. In party's favor. 517. A party against whom a vcrdiet has been rendered cannot complain that it is for a less amount than the evidence demands. Pullmaj^Co. v. Schaffner, 9: 407, 55 S. E. 933, 12 is right so far as it goes, of elements which he deems material, unless he calls the court's atten^ tion thereto. Williams v. Mineral City Park Asso. i: 427, 102 N. W. 783, 128 Iowa, 32. 792. An instruction cannot be held erro- neous on appeal for a cause not brought to the attention of the trial court. Chicago G. W. R. Co. v. McCormick, 47: 18, 200 Fed. 375, 118 C. C. A. 527. 793. Error cannot be predicated pn instructions which are in the main correct, on the ground that they should have been more specific, by a party who did not re- quest the giving of more specific instruc- tions. Curtis & Gartside Cov v. Pribvl, 49: 471, 134 Pac. 71, 38 Okla. 511. 794. One cannot complain of want of full- ness in the instructions If he made no at- tempt to have them made more specific. Saunders v. Gilbert, 38: 404, 72 S. E. 610, 156 N. C. 463. 795. Failure of the court to submit a question to the jury cannot be complained of when no request for the submission of the question was made. Coe v. Northern P. R. Co. ii : 228, 111 N. W. 651, 101 Minn. 12. 796. A party cannot complain of an in- struction upon the subject of damages be- cause it is not specific enough, if he fails to request one which supplies the defect. Burnside v. Peterson, 17: 76, 96 Pac. 256. 43 Colo. 382. 797. Joint defendants in an action for pollution of a stream will not be heard, for the first time on appeal, to question an instruction permitting a joint judgment against them for the whole damages, al- though each is responsible for only a part of the injury. Arminius Chemical Co. v. Landrum, 38: 272, 73 S. E. 459, 113 Va. 7. APPEAL AND ERROR, VII. j, 8, k, 1. Ill 798. One cannot complain for the first time on appeal of an erroneous definition of the crime for which he is on trial. Com. v. Althause, 31:999, 93 N. E. 202, 207 Mass. 32. 799. Alleged errors in the court's charge to the jury in a criminal prosecution will not be considered on appeal, where they were not called to the attention of the trial court by motion for a new trial. Territory v. Harwood, 29: 504, 110 Pac. 556, 15 N. M. 424. S. As to judgment, verdict, etc. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of exception to findings, see supra, 304-307. See also supra, 726. 800. That an injunction against the maintenance of a nuisance is too bread cannot be suggested for the first time on appeal. Grantham v. Gibson, 3: 447, 83 Pac. 14, 41 Wash. 125. 801. A party cannot question on appeal the action of the court in vacating a judg- ment to permit an amendment to show jurisdiction of the court and subsequently re-entering judgment, if the record shows no objection thereto. Holloway v. White- Dunham Shoe Co. 10 : 704, 151 Fed. 216, 80 C. C. A. 568. 802. One enjoined from interfering with the natural plan by which artesian wells are supplied on plaintiff's property cannot complain because the court did not devise an artificial plan by which such result could be effected, without granting the injunction, where such relief was not sought at the trial. Miller v. Bay Cities Water Co. 27: 772, 107 Pac. 115, 157 Cal. 256. 803. A decree following the wording of a statute cannot be attacked on appeal, be- cause it did not limit the meaning of a word used therein, if the point was not raised and passed upon in the trial court. White v. Manter, 42: 332, 84 Atl. 890, 109 Me. 408. Amount. Necessity for exception, see supra, 358. 804. An award of damages, although erroneous according to the evidence, will not be disturbed on appeal if not complained of by the parties. Harrington v. Demaris, i: 756, 77 Pac. 603, 46 Or. 111. 805. Exception to allowance of damages not claimed in the bill is available on ap- peal. Blackman v. Mauldin, 27: 670, 51 So. 23, 164 Ala. 337. 806. Where, on demurrer to the evidence, the court below has not ruled on the ques- tion of excessiveness of the conditional ver- dict of the jury, the appellate court will consider only the question whether the evi- dence sustains plaintiff's right to damages. West Virginia Architects & Builders v. Stewart, 36: 899, 70 S. E. 113, 68 W. Va. 506. Digest 1-52 L.R.A. (N.S.) 7c. Errors waived or cured below. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Waiver of assignment of error, see supra, IV. q. Curing errors in argument or remarks of counsel, see infra, 1458-1460. By failure to raise question below, see supra, VII. j. Irregularity in proceedings before public service commission, see APPEARANCE, 15. Waiver of defects in pleading, see PLEADING, I- g- See also supra, 377, 381, 470. 807. An error in refusing to rule upon objections to jurisdiction and the admission of evidence is cured by reopening the case, and entering the rulings upon the objec- tions, and giving the objector an opportuni- ty to offer evidence in defense. Haaren v. Mould, 24:404, 122 N. W. 921, 144 Iowa, 296. 808. Claiming, on motion for new trial, that a deed was executed by an alleged grantor without consideration, waives a con- tention made at the trial that he did not execute it. Herron v. Allen, 47: 1048, 143 N. W. 283, 32 S. D. 301. 809. Participating in the taking of testi- mony by a referee out of the jurisdiction of the court without a special order author- izing it waives the error. Sharkev v. Candi- ani, 7: 791, 85 Pac. 219, 48 Or. "112. 810. Failure of the court to withdraw the jury in a criminal case during the time evi- dence is being heard upon the competency of an alleged confession, if erroneous, is cured where proof of the admissions and statements made by the defendant is there- after properly admitted in rebuttal of testimony given by him in his own behalf. Harrold v. Territory, 10: 604, 89 Pac. 202, 18 Okla. 395. 811. A ruling as to the necessity of an affidavit of defense cannot be questioned on appeal, where it was filed after trial was had, and the appeal is from the judgment entered on the verdict. Salberg v. Pennsyl- vania R. Co. 31: 1178, 77 Atl. 1007, 228 Pa. 641. 812. The omission to assert in the plead- ings the invalidity of a contract because contrary to the Sunday law does not pre- clude the raising of the objection at a later time in an action to enforce it. Jacobson v. Bentzler, 4: 1151, ""07 N. W. 7, 127 Wis. 566. Right to public trial. 813. The constitutional right to a public trial of one who has been indicted for a felony, and who has pleaded not guilty, can- not be waived by silence, but its denial may be urged on appeal, although no specific ob- jection is made or exception entered at the time. State v. Hensley, 9: 277, 79 N. E 462, 75 Ohio St. 255. 112 APPEAL AND ERROR, VII. k, 2. Selection of jury. Right to waive disqualification of juror, see JUBY, 74. 814. Error in impaneling a jury partly of bystanders, to try a case, while the regular drawn jury is out considering another case, is cured by the court's offering, upon the return by the latter jury of its verdict, to substitute that jury for the one errone- ously drawn, so that in case the offer is not accepted the losing party cannot com- plain of it. Weil v. Kreutzer, 24: 557, 121 S. W. 471, 134 Ky. 563. Remarks of counsel. 815. Replying to comments by counsel on evidence admitted for the consideration of the court alone in determining the compe- tency of a witness waives th. error of such comments. Sprinkle v. Wellborn, 3: 174, 52 S. E. 666, 140 N. C. 163. By remittitnr. 816. A judgment for damages should not be reversed for error in an instruction as to the measure of damages, if the amount which the verdict was increased by the error is easily ascertained, and a remittitur is filed for that amount. Fuhnnan v. Interior Warehouse Co. 37: 89, 116 Pac. 666, 64 Wash. 159. Parties. 817. The right to object to a misjoinder of parties defendant, or to require the plain- tiff to elect against which of the defendants he will proceed, is not waived by answer or demurrer, where the fact of the misjoinder does not affirmatively appear on the face or from the allegations of the plaintiff's peti- tion, but is for the first time disclosed by the evidence which is introduced on behalf of the plaintiff. French v. Central Constr. Co. 12: 669, 81 N. E. 751, 76 Ohio St. 509. 2. As to pleadings. (See also same heading in Digest L.R.A. 1-10.) By failure to raise objection below, see supra, VII. j, 4. See also supra, 527. 818. Error in striking mitigating circum- stances from the pleadings in a libel suit is not cured by permitting evidence of them to be given at the trial, if the record does not show that defendant had prepared him- self upon and fully covered the matters so alleged. Rocky Mountain News Printing Co. v. Fridborn, 24: 891, 104 Pac. 956, 46 Colo. 440. Complaint, declaration, or petition. 819. A finding of the law and facts by the trial court, to which the case is sub- mitted without the intervention of a jury, is equivalent to a verdict for the purpose of curing defects in the petition. Chesapeake & O. R. Co. v. Williams, 49: 347, 160 S. W. 769, 156 Ky. 114. Digest 1-52 L.R.A.(N.S.) 820. Where, in an action in the nature of a creditors' bill brought by certain creditors of a corporation to recover of the share- holders the unpaid portion of their sub- scription, no objection is taken by answer or demurrer to a failure of the complaint to allege that it is brought on behalf of the plaintiff and all other creditors, sucli de- fect is waived, and the action may be main- tained by the creditors who are named. Randall Printing Co. v. Sanitas Mineral Water Co. 43: 706, 169 N. W. 006, 120 Minn. 268. 821. The objection that a declaration upon a draft was in general assumpsit rather than special in form is waived if not made at the trial. Valiquette v. Clark Bros. Coal Min. Co. 34: 440, 77 Atl. SCO, 83 Vt. 538. 822. Failure to allege that insured prop- erty at the time of a fire was occupied as a dwelling house, as required by the policy, is fatal to an action thereon, and is not cured by failure of the insurer to raise such defense, or by verdict and judgment in fa- vor of the insured. Arnold v. American Ins. Co. 25: 6, 84 Pac. 182, 148 Cal. 660. 823. Failure to allege in a complaint on several insurance policies that the property was occupied as a dwelling house, as re- quired by the policy, is not cured by an im- plication in the answer to the claim on the policy on the furniture that it was in a dwelling. Arnold v. American Ins. Co. 25: 6, 84 Pac. 182, 148 Cal. 660. Demurrer. See also PLEADING, 50. 824. A party who files a new pleading aft- er a demurrer interposed by him is erro- neously stricken out as frivolous thereby waives the error. King v. Morris (N. J. Err. & App.) 14: 439, 68 Atl. 162, 74 N. J. L.'SIO. 825. Answering to the merits waives error in overruling a demurrer for want of ca- pacity of plaintiffs to maintain the action. Canon City v. Manning, 17: 272, 95 Pac. 537, 43 Colo. 144. Indictment or information. 826. Error in refusing to permit an ac- cused to withdraw his plea of not guilty, in order to attack the indictment for du- plicity, is cured by the election of the gov- ernment to dismiss all but one charge. Waller v. United States, 31: 113, 179 Fed. 810, 103 C. C. A. 302. 827. The arraignment, trial, and convic- tion of a person for mixing poison with food will cure an error in the indictment charging the mixing of poison with food and giving it to a person with intent to kill,, which might be construed to charge the mingling of poison with food and ad- ministering poison, which are distinct of- fenses with different penalties under the statute, where the statement was sufficient to inform accused of the offense for which he was to be tried. Randle v. State, 49: 453t 82 So. 428, 105 Miss. 561. (Annotated) APPEAL AXD ERROR, VII. k, 3, 4. 113 3. As to evidence. (See also same heading in Digest L.R.A. 1-10.) By failure to raise objection below, see supra, VII. j, 5. See also supra, 809. Admission. Waiver by nature of objections or excep- tions, see supra, V. a, 2, a. By failure to raise objection below, see supra, 775-781. Errors cured by instruction, verdict, etc., see infra, VII. m, 3, a, 5. See also supra, 807 ; infra, 1194. 828. Instructing the jury to ignore evi- dence which has been stricken out will cure an error in its admission. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. 829. Error in admitting evidence offered by the prosecution may be cured by striking it out and instructing the jury to disregard it at the request of the prosecuting at- torney. People v. Friedman, 45: 3$, 98 N. E. 471, 205 N. Y. 161. 830. The erroneous admission of evidence is cured by its subsequent withdrawal be- fore the trial closes, and by an instruction to the jury to disregard it, except where the evidence thus admitted is so impressive that its effect is not thereby removed. Ar- mour & Co. v. Kollmeyer, 16: 1110, 161 Fed. 78, 88 C. C. A. 242. 831. The admission of incompetent evi- dence is not reversible error if the objecting party elicited on cross-examination evidence to the same effect. Stewart & Co. v. Har- man, 20: 228, 70 Atl. 333, 108 Md. 446. 832. Objection to evidence of transactions with a person since deceased is waived by eliciting on cross-examination new matter as to such transactions, not pertaining to anything elicited on direct examination. Mollison v. Rittgers, 29:1179, 118 N. VV. 512, 140 Iowa, 365. 833. The admission of incompetent evi- dence is waived by stating, after objecting to it: "All right; go ahead," without mov- ing to exclude it after the answer is given, although an exception is noted. Burnaman v. State, 46: 1001, 159 S. W. 244, 70 Tex. Crim. Rep. 361. 834. Objections to incompetent evidence are waived by permitting the witness sub- sequently to testify without objection to the facts sought to be elicited by it. Wicker v. Jones, 40: 69, 74 S. E. 801, 159 N. C. 102. 835. Error in admitting incompetent evi- dence is waived by subsequently admitting the fact which it is offered to establish. Wicker v. Jones, 40: 69, 74 S. E. 801, 159 N. C. 102. 836. Failure to request the exclusion of evidence which has become immaterial be- cause not connected with the point in issue will waive the error of its admission, al- though objection was made to it at the time it was offered, which was overruled up- on the promise to connect it with the issue. Digest 1-52 L.B.A.(N.S.) 8 Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. 837. Error in admitting evidence that one accused of crime has a reputation for violence and turbulence is not cured by his offering evidence in rebuttal thereof. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. 838. An insurance company does not, by using as its witness the agent who secured a policy, as to the negotiations which led to the contract, waive its right to insist on error in admitting evidence of state- ments by the agent that the policy included risks which, by its terms, it excluded. Kel- sey v. Continental Casualty Co. 8: 1014, 108 N. W. 221, 131 Iowa, 207. 839. The introduction in evidence of let- ters avoids any injury which may have been done by the admission of parol evi- dence of their contents. Mount Vernon Brewing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. 840. Error in the admission in evidence of a foreign statute requiring notice of ma- turity of premiums on insurance policies is eliminated by a subsequent ruling that the statute has no application to policies issued within the state, as was the one before the court. Matthews v. Metropolitan L. Ins. Co. 18: 1219, 61 S. E. 192, 147 N. C. 339. 841. Error in admitting in evidence ad- missions of attorneys made to prevent a con- tinuance of a preliminary hearing, to en- able the state to secure certain evidence, when the state has its evidence present at the trial, is not cured by leaving to the jury the determination of the extent and purpose of the admission. State v. Butler, 25: 169, 65 S. E. 993, 151 N. C. 672. Exclusion. Waiver by nature of objections or excep- tions, see supra, V. a, 2, b. By failure to raise objection below, see supra, VII. j, 7. 842. Error in sustaining an objection to a proper question is cured by admitting an answer to another question covering the same subject-matter. State v. Gibson, 28: 965, 68 S. E. 295, 67 W. Va. 548. 843. The exclusion of evidence as to the receipt of a letter is without prejudice where the party leceiving it was afterward allowed to testify to the fact. Lindahl v. Supreme Court I. 0. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. 844. No objection can be made to a ruling excluding a question uniting two in one, if, after securing leave to separate them, no further attempt is made to ask the portion of the question which was proper. State v. C'ounort, 41: 95, 124 Pac. 910, v,J Wash. 301. 4. As to instructions. (See also same heading in Digest L.R.A. 1-10.) By failure to raise objection below, see supra, VII. j, 7. See also supra, 211. 114 APPEAL AND ERROR, VII. k, 4. 845. A party cannot complain that the jury were not fully instructed as to any particular matter, when he neither excepted to the charge as given, nor requested more specific directions upon the subject. Coe v. Northern P. R. Co. u: 228, 111 N. W. 651, 101 Minn. 12. 846. Error in failing fully to instruct the jury upon a particular issue is waived by failure to request additional instructions thereon. Quinn v. Chicago, M. & St. P. R. Co. 22: 789, 120 N. W. 884, 23 S. D. 126. 847. The charge of a trial court to the jury is not reviewable in a Federal appel- late court where, in answer to an inquiry of the court at the close of the charge, the party seeking to review it states that he has no exception and takes none. Thomp- kins v. Missouri, K. & T. R. Co. 52: 791, 211 Fed. 391, 128 C. C. A. 1. 848. Error in instructing the jury in a prosecution for seduction that prosecutrix is presumed to have been chaste until the contrary is shown is not corrected by the fact that there was evidence sufficient to have supported a finding of chastity by the jury. State v. Holter, 46: 376, 142 N. W. 657, 32 S. D. 43. By other instruction. 849. An erroneous instruction is not cured or rendered harmless by reason of the fact that a correct instruction upon the same point was also given. State v. Erie R. Co. (N. J. Err. & App.) 46: 117, 87 Atl. 141, 84 N. J. L. 661. 850. The vice of a wrong rule in a charge is not extracted by the fact that the right rule is also given, because it is impossible to tell by which rule the jury were gov- erned. Armour & Co. v. Russell, 6: 602, 144 Fed. 614, 75 C. C. A. 416. 851. That the court gave the jury a re- quested instruction which consisted of a mere abstract proposition of law is not er- ror, if the fault is cured by the balance of the charge. State v. Dickerson, 13: 341, 82 N. E. 969, 77 Ohio St. 34. 852. The giving of an erroneous preju- dicial instruction is not cured by a con- flicting one which announces the correct rule, if the former is allowed to stand. St. Louis, I. M. & S. R. Co. v. Woods, 33: 855, 131 S. W. 869, 96 Ark. 311. 853. Error in an instruction on a vital issue in a case is not cured by .another in- struction which correctly states the law which should be applied to that issue, but which is, in fact, applied to another con- tention in the case. Wagner v. Atlantic Coast Line R. Co. 19: 1028, 61 S. E. 171, 147 N. C. 315. 854. A correct final instruction in an action for expenses caused by an injury, covering the whole field for which recovery is sought, corrects any instruction to the contrary which has preceded it. Hunt v. Boston 'Terminal Co. 48: 116, 98 N. E. 786, 212 Mass. 99. 855. An instruction authorizing a recovery against a master for injury to a servant iff he did not provide a sufficient number of men to do the work safely is not cured by Digest 1-52 KR.A.(N.S.) a further instruction that the way to de- termine whether or not he was negligent was to determine whether or not he acted as an ordinarily prudent man would have acted under the same circumstances. Rosin v. Danaher Lumber Co. 40: 913, 115 Pac. 833, 63 Wash. 430. 856. An instruction that a servant does not assume risks due to the master's own negligence is not cured by others present- ing the correct rule, since it is impossible to say which the jury followed. East St. Louis & Suburban R. Co. v. Kath, 15: 1109, 83 N. E. 533, 232 111. 126. 857. Error in refusing a request to charge that one seeking damages for a personal in- jury could not recover, unless he established by a preponderance of evidence the specific act of negligence relied on in th? complaint, is not corrected by a subsequent charge that there is no alleged negligence upon which a recovery can be based, except an act de- scribed in the instruction, which is the one relied on in the complaint and referred to in the instruction refused, where the court again expressly refuses to give the first instruction asked; since the conflicting rul- ings would tend to confuse the jury. Damb- mann v. Metropolitan Street R. Co. 2: 309, 73 N. E. 59, 180 N. Y. 384. (Annotated) 858. Instructing the jury in a criminal case that they are to determine, from all the facts and circumstances, whether the defense of the defendant is probably true, does not prejudicially cast the burden of proof upon him, or invite a verdict based upon a mere probability, where in the same instruction they are also told that the de- fendant is not required to prove his inno- cence, and that if, after the consideration of all the evidence in the case, including the defendant's explanation, there exists a reasonable doubt of his guilt, he must be acquitted. State v. Wolfley, n: 87, 89 Pac. 1046, 75 Kan. 406. 859. An instruction that defendant must be found guilty beyond a reasonable doubt before he can be convicted is not the equiva- lent of a requested instruction that he is presumed innocent of the crime, and that this presumption remains until it is over- come by the proof, so that it will correct an error in refusing a request for the latter instruction. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. By verdict. 860. The error, if any, in giving an in- struction which may tend to mislead the jury is cured by a special finding which clearly shows that the instruction has been properly understood. St. Louis & S. F. R. Co. v. Beets, 10: 571, 89 Pac. 683, 75 Kan. 295. 861. A judgment will be affirmed, al- though erroneous instructions were given, where it is clear that they were disregarded by the jury, who rendered substantial jus- tice by their verdict, which was based upon sufficient evidence, and was not affected by the other errors complained of. Whitney v. Brown, n: 468, 90 Pac. 277, 75 Kan. 678. 862. Errors in the giving and refusal of APPEAL AND ERROR, VII. k, 51, 1. 115 instructions in a case in which the verdict is the only one that could have been given under the evidence, owing to its conclusive- ness, are not prejudicial, and may be dis- regarded as being harmless. Reilly v. Nicoll, 47: 1199, 77 S. E. 897, 72 W. Va. 189. 863. Error in instructing the jury that in- toxication is generally no excuse for the commission of homicide, "but rather an ag- gravation of the offense," will not require reversal where it is apparent that it did no injury to the accused, because the jury in- flicted the lowest punishment prescribed by statute for the offense. Atkins v. State, 13: 1031, 105 S. W. 353, 119 Tenn. 458. 864. Failure to take from the jury the question of murder in the first degree on a trial for homicide, is not subject to review in favor of the accused, if the verdict is murder in the second degree. State v. Meyers, 33: 143, 110 Pac. 407, 57 Or. 50. 5. Taking case from jury. (See also same heading in Digest L.R.A. 1-10.) 865. Going on with the case without again raising the question waives the benefit of an exception to a refusal to take the case from the jury at the close of plaintiff's evi- dence. Bernheimer v. Becker, 3: 221, 62 Atl. 526, 102 Md. 250. 866. An exception to a ruling^ denying judgment at the close of plaintiff's evidence is waived by the introduction of evidence by defendant. Hilton Lumber Co. v. At- lantic Coast Line R. Co. 6: 225, 53 S. E. 823, 141 N. C. 171. 867. Proceeding with the trial after re- fusal of the court to take the case from the jury waives the exception taken to such re- fusal. Jarrell v. Young, Smyth, Field Co. 23: 367, 66 Atl. 50, 105 Md. 280. Nonsuit. 868. The refusal of a nonsuit for failure of proofs is not ground for reversal if said proofs are afterwards supplied by either party in the progress of the trial. Dennery v. Great Atlantic & Pacific Tea Co. (N. J. Err. & App.) 39: 574, 81 Atl. 861, 82 N. J. L. 517. 869. Error in denying motion for nonsuit at the close of plaintiff's evidence is cured by the introduction of evidence by defend- ant which supplies defects in plaintiff's proof. Lyon v. United Moderns, 4: 247, 83 Pac. 804, 148 Cal. 470. 870. If, at the time of the denial of a mo- tion for nonsuit, the proofs are insufficient to sustain a verdict for plaintiff, defendant by proceeding with his evidence waives his motion only to the extent of allowing plain- tiff the benefit of the evidence he may intro- duce, and a nonsuit may be granted even on appeal if the entire evidence does not support the cause of action. Dimuria v. Seattle Transfer Co. 22:471, 97 Pac. 657, 50 Wash. 633. Directing verdict. 871. A motion by defendant for directed verdict is waived by introduction of evi-' Digest 1-52 L.R.A. (N.S.) dence. Fred W. Wolf Co. T. Monarch Re- frigerating Co. 50: 808, 96 N. E. 1063, 252 111. 491. 872. The erroneous denial of defendant's motion for a directed verdict, made at the close of plaintiff's case in chief, is waived where defendant subsequently introduces ev- idence, and does not renew his motion at the close of all the evidence. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 6. Refusal to change venue. 873. Error in refusal to award a change of venue in a criminal trial is not cured by summoning a jury from another county, where the jury is permitted to ascertain the bitterly hostile feeling existing against ac- cused in the county where the trial takes place. Shipp v. Com. 10: 335, 99 S. W. 945, 124 Ky. 643. I. Review of facts. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of exception to finding of fact, see supra, 304. 874. A judgment will not be disturbed on appeal, where the record contains some evi- dence to support the finding of the trial court. Anderson v. Shawnee Compress Co. 15: 846, 87 Pac. 315, 17 Okla. 231. 875. No question of fact is open for con- sideration on appeal on the judgment roll alone. Coats v. Coats, 36: 844, 118 Pac. 441, 160 Cal. 671. 876. The New York court of appeals can- not find a fact which the trial court failed to find. International Text-Book Co. v. Connelly, 42: 1115, 99 N. E. 722 ? 206 N. Y. 188. 877. On appeal, a special finding of fact by a jury will not be disturbed unless clearly wrong. Ryan v. Continental Casu- alty Co. 48:524, 142 N. W. 288, 94 Neb. 35. 878. Where the evidence of an issue of fact is conflicting, the court will not exam- ine the same to determine where the weight lies. Sands v. David Bradley & Co. 45: 396, 129 Pac. 732, 36 Okla. 649. 879. The supreme court cannot consider the fact that testimony of plaintiff in an ac- tion for personal injuries is materially dif- ferent on the second trial from what it was on the first one. Walsh v. Cullen, 18: 911, 85 N. E. 223, 235 111. 91. 880. The court of appeals cannot consider the question of the reasonableness of a municipal ordinance as one of fact after a finding in its favor has been affirmed by the appellate division. Rochester v. Ma- cauley-Fien Milling Co. 32: 554, 92 N. E. 641, 199 N. Y. 207. 116 APPEAL AND ERROR, VII. 1, 2. 2. Of verdict. a. In general. (See also same heading in Digest L.R.A. 1-10.) Presumption as to, see supra, 451-465. See also supra, 672. 881. Upon appeal from denial of a motion for new trial because the verdict is against the weight of the evidence, the Michigan supreme court must exercise its judgment as to the weight of the evidence. Bernard v. Grand Rapids Paper Box Co. 42: 930, 13<3 N. W. 374, 170 Mich. 238. 882. The supreme court on review will not disturb the verdict of the jury where there is any substantial evidence reasonably tending to sustain the same. Curtis & Gartside Co. v. Pribyl, 49:471, 134 Pac. 71, 38 Okla. 511. 883. The verdict of a jury will not be re- versed on appeal if there is any credible evidence to support it. Corbett v. Physi- cians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. 884. The appellate court cannot set aside a verdict where there is evidence tending to support it. Kelly v. Lum, 49: 1151, 134 Pac. 819, 75 Wash. 135. 885. Where the evidence submitted reasonably tends to support the verdict of the jury, a judgment rendered on such verdict is not reviewable in the su- preme court. Sands v. David Bradley & Co. 45: 396, 129 Pac. 732, 36 Okla. 649. 886. A verdict sustained by sufficient com- petent evidence will not be disturbed on appeal, although the evidence was mate- rially conflicting. Shepard v. Minneapolis Threshing Mach. Co. 18: 239, 97 Pac. 57, 50 Wash. 242. 887. A verdict will not be disturbed unless there has been a plain deviation from right and justice, nor, in a doubtful case, merely because the court, if on the jury, would have rendered a different verdict. Peters v. Nolan Coal Co. 9: 989, 50 S. E. 735, 61 W. Va. 392. 888. The appellate court will not set aside a verdict because it differs from the jury as to the relative weight or effect of conflicting evidence. Southern P. Co. v. Hogan, 29: 813, 108 Pac. 240, 13 Ariz. 34. 889. That a verdict is against the weight of the evidence is not ground for reversal if there is any credible evidence to support it. Estey Organ Co. v. Lehman, n: 254, 111 N. W. 1097, 132 Wis. 144. 890. Where there is a conflict in the tes- timony introduced on the trial of an ac- tion, the supreme court will not reverse the judgment of the trial court, if the evi- dence of the successful party, when con- sidered by itself, is sufficient to sustain the verdict. Hobbs v. Smith, 34: 697, 115 Pae. 347, 27 Okla. 830. 891. An appellate court cannot set aside a judgment because the verdict is not sup- ported by sufficient evidence, if there is sub- stantial evidence to support it. San Pedro, Digest 1-52 L.R.A.(N.S.) L. A. & S. L. R. Co. v. Salt Lake City Bd. of Edu. ii : 645, 90 Pac. 565, 32 Utah, 305. 892. A verdict founded upon conflicting oral testimony cannot be set aside by the court. Lanham v. Meadows, 47: 592, 78 S. E. 750, 72 W. Va. 610. 893. That a verdict is against the weight of the evidence is no ground for reversal. Bennett v. Louisville II. "Co. 4: 558, 90 S. W. 1052, 122 Ky. 5!). 894. The appellate court will not review a denial of new trial on the ground that the verdict is against the weight of evi- dence. Lopes v. Connolly, 38: 986, 97 N. E. 80, 210 Mass. 487. 895. The verdict of a jury will not bo in- terfered with on an appeal because it is against the evidence, if it is not flagrantly so. Paducah Traction Co. v. Baker, 18: 1185, 113 S. W. 449, 130 Ky. 360. 896. A judgment only slightly supported by the evidence, or manifestly against its weight, or not supported by clear and con- vincing testimony, which the prevailing par- ty has the burden of producing, cannot be permitted to stand on appeal. Geier v. Howells, 27: 786, 107 Pac. 255, 47 Colo. 345. 897. In determining whether or not the evidence supports the verdict, the supreme court will not consider the facts specially found by the jury. Chicago, I. & L. R. Co. v. Pritchard, 9: 857, 79 N. E. 508, 168 Ind. 398. 898. A verdict for defendant will not be disturbed on appeal where the allegations of his answer state a good defense and are supported by evidence reasonably tending to sustain them. Mt. Hope Nurseries v. Jackson. 45: 243, 128 Pac. 250, 36 Okla. 273. 899. The court on appeal cannot inquire whether or not a finding by the jury which is permitted to remain a part of the ver- dict is supported by the evidence. Green v. Miller, 44: 231, 76 S. E. 505, 161 N. C. 24. 900. A new trial will not be granted be- cause the appellate court believes that the jury erroneously decided a question of fact on conflicting evidence. Earle v. Berry, i: 867, 61 Atl. 671, 27 R. I. 221. 901. An appellate court will not interfere with a finding by the jury, supported by substantial evidence, to the effect that serv- ices rendered by an adult child to its par- ent were not to be gratuitous. Mathias v. Tingey, 38: 749, 118 Pac. 781, 39 Utah, 561. 902. Where evidence reasonably tends to connect one, as an aider and abetter, with a battery, the court will not disturb a ver- dict against him for damages for injuries sustained thereby. Perrine v. Hanacek, 51: 718, 138 Pac. 148, 40 Okla. 359. 903. An assignment of error in refusing to grant a peremptory instruction for de- fendant raises the question whether or not there is in the record any evidence which, together with the inferences reasonably to be drawn therefrom, is sufficient to support a verdict for plaintiff. Sherwin v. Aurora, 43: 1116, 100 N. E. 938, 257 111. 458. 904. The appellate court will not interfere with a verdict rendered under proper in- APPEAL AND ERROR, VII. 1, 2. 117 structions that a tender of an amount due under a chattel mortgage was made before sale by mortgagee, and the rights of the parties making it were disclosed to the mortgagee or the officer conducting the sale. Thomas v. Seattle Brewing & Malting Co. 15: 1164, 94 Pac. 116, 48 Wash. 560. 905. A decree in an action to foreclose a mortgage, that a defendant grantee "as- sumed and agreed to pay the complainant's mortgage indebtedness," will not be reversed on the ground that it is not sustained by the evidence, where there is corroborated testi- mony to the effect that defendant assumed the mortgage debt as a part of the consid- eration for the conveyance to him. Herrin v. Abbe, 18: 907, 46 So. 183, 55 Fla. 769. 906. A jury finding in accordance with plaintiff's evidence, that two skylights, each 6 feet long and 3 feet wide, together with an opening in the wall 7 feet by 4 feet, and two windows, all located in that part of a room 16 feet by 32 feet, with an "L" 16 feet square, in which was located a hot water vat level with the floor, into which plaintiff, a servant, while working in such room, stepped, to his injury, did not admit sufficient light to enable him to see the vat, is not so contrary to the physical facts as to require a reversal, where neither the location in the room nor the dimensions of a brine tank, which it is claimed obstructed the light, appears, and there is evidence tending to show that the skylights were obscured by dirt and smoke, that there was a pile of lumber which also cut off some of the light, and that a slight vapor was rising from the hot water vat, although the accident oc- curred shortly after noon on a January day, the record not showing as to whether the day was bright and clear or dark and gloomy. Wichita Ice & C. S. Co. v. Shep- pard, 28: 648, 108 Pac. 819, 82 Kan. 509. 907. A verdict against increase of hazard by change of business on insured premises is conclusive on appeal. McClure v. Mutual F. Ins. Co. 48: 1 22 1, 88 Atl. 921, 242 Pa. 59. 908. A finding by the jury that the death of an insured was accidental within the meaning of a policy void in case of self de- struction of insured will not be disturbed on appeal, where, although some evidence points to self destruction, other items clearly nega- tive that theory. O'Connor v. Modern Wood- men of America, 25: 1244, 124 N. W. 454, 110 Minn. 18. 909. Where the charter of a fraternal benefit association does not require that a "dependent" must be a member of the family, heir or blood relation of the mem- ber, evidence that one who took out a bene- fit certificate in such an association, naming therein as beneficiary his affianced wife, contributed regularly toward her support as his affianced wife, and, she, being un- able to earn a living, relied upon such sup- port, is sufficient to justify a verdict find- ing that such affianced wife is a dependent, and this being a proper question for the jury, such a verdict will not be disturbed. Digest 1-52 L.R.A.(N.S.) Sovereign Camp W. of W. v. Noel, 41: 648, 126 Pac. 787, 34 Okla. 596. Proximate cause. 910. In determining a question of proxi- mate cause, the appellate court cannot re- ject testimony of a witness that, at the time of the accident, a machine which caused the injury ran faster than ever before, as unworthy of belief. Tuckett v. American Steam & Hand Laundry, 4: 990, 84 Pac. 500, 30 Utah, 273. 911. Where, in an action by the bene- ficiary against a fraternal accident associa- tion, there is evidence tending to show that the proximate cause of 1?he death of the assured was a rupture of the left auricle of the heart occasioned by his accidentally falling and striking his body on a large stone, although there is other and conflict- ing evidence as to the condition of the as- sured's health and the probable cause of his death, a verdict against the association will be sustained. Moon v. Order of United Commercial Travelers, 52: 1203, 146 N. W. 1037, 96 Neb. 65. Finding contrary to scientific facts or natural laws. 912. A finding by the jury of a double automatic stroke by a steam hammer will be set aside on appeal where the hammer, weighing 1,250 pounds, was operated by a piston arm working in a cylinder and driven by a pressure of 70 to 90 pounds of steam to the square inch, which was controllable only by a hand lever, and no defect is shown in the mechanism; since there could be no rebound or double stroke to a hammer of that character without the operation of the controlling lever. Chybowski v. Bucyrus Co. ?: 357, 106 N. W. 833, -127 Wis. 332. ( Annotated ) 913. To justify an appellate court in overturning a verdict, tending to support which there is some evidence, on the ground that it is contradicted by the natural laws or by some established principle of mathe- matics, mechanics, physics, or the like, the indisputable physical facts must demon- strate beyond any reasonable doubt that the evidence is false and that the verdict is without support in fact or law. Wich- ita Ice & C. S. Co. v. Sheppard, 28: 648, 108 Pac. 819, 82 Kan. 509. Negligence. 914. The appellate court will not permit a jury to give damages to one person and withhold them from another upon the same evidence in an action for damages for per- sonal injuries upon their conclusion as to his intelligence from his personal appear- ance, on the theory that, the jury having the witness before them, their finding is binding upon the appellate court. Rabies v. J. Thompson & Sons Mfg. Co. 23: 296, 118 N. W. 350, 119 N. W. 289, 137 Wis. 506. 915. In an action against a railroad com- pany and its engineer for negligently kill- ing a person on the track, where the negli- gence of the company in running the train at excessive speed is clearly established, a verdict against it and in favor of the engi- 118 APPEAL AND ERROR, VII. 1, 2. neer will not be disturbed on appeal, where i the jury may have found that the engineer j acted as a prudent man in attempting to avoid the accident after the peril was dis- covered. Illinois C. R. Co. v. Murphy, n: 352, 97 S. W. 729, 123 Ky. 787. 916. Where the verdict of the jury shows that it accepted the evidence given on be- half of the plaintiff that two whistle blasts were given by the motorman, indicating that he was going to stop at a crossing, and there 'wjas evidence that on account of the brilliancy of the headlight it was impos- sible to judge of the rate of speed of the car or its distance from the crossing, it cannot be said as a matter of law that a person struck and killed at night while crossing the track in front of an approach- ing car for the purpose of boarding it was guilty of contributory negligence. Sim- oneau v. Pacific Electric R. Co. 49: 737, 136 Pac. 544, 166 Cal. 264. 917. On appeal it cannot be said that an intending passenger was negligent, as mat- ter of law, in attempting to board a mov- ing train immediately after the call "All aboard" was given, where the jury have resolved all the issues, -including that of contributory negligence, in favor of such passenger. Irvin v. Missouri P. R. Co. 26: 739, 106 Pac. 1063, 81 Kan. 649. 918. Where the evidence in an action for injuries resulting from an automobile, in which the plaintiff was riding, being driven over an embankment, shows that the acci- dent happened in broad daylight on a good road, wide enough for two vehicles, and where there was no obstruction and no other vehicle on the road, and when the car was in good condition; and further shows that the driver had at times before been driv- ing carelessly and too near the edge of the road; and the only explanation of the driv- er is that it was a hot day and he was taken with a period of dizziness, which came on suddenly and lasted but for a mo- ment, a finding by the jury that the driver was guilty of negligence will not be dis- turbed on appeal. Meyers v. Tri-State Auto- mobile Co. 44: 113, 140 N. W. 184, 121 Minn. 68. Criminal cases. 919. A conviction on conflicting evidence will not be reversed because the appellate court may think it is against the weight of evidence. Williams v. State, 2:248, 75 N. E. 875, 165 Ind. 472. 920. In a criminal prosecution, where there is sufficient competent evidence to sus- tain a conviction, the appellate court cannot interfere on the ground that such conviction is unsupported by the evidence. Pumphrey v. State, 23: 1023, 122 N. W. 19, 84 Neb. 636. 921. The appellate court will not disturb a conviction where the question of credibil- ity of witnesses and the weight to be given to the testimony is for the jury, if there is any unimpeached evidence to sustain the verdict. Andrews v. State, 42: 747, 141 S. W. 220, 64 Tex. Grim. Rep. 2. 922. The appellate court will set aside a conviction approved by the trial judge, for Digest 1-52 L.R.A.(N.S.) insufficiency of evidence, if it is convinced that the evidence is not sufficient to war- rant a conviction. State v. Pienick, u: 987, 90 Pac. 645, 46 Wash. 522. 923. A conviction depending mainly on tes- timony of an accomplice cannot be sus- tained if the accomplice also swore that his testimony was false. Hill v. State, 21: 878, 117 S. W. 134, 55 Tex. Crim. Rep. 407. (Annotated) 924. A verdict of guilty upon the uncor- roborative testimony of an accomplice is contrary to the law and to the testimony, and as such will be set aside. Head v. State, 44: 871, 131 Pac. 937, 9 Okla. C'rim. Rep. 356. 925. An appellate court must consider whether or not a witness was an accom- plice of accused, when an appeal from a con- viction is upon the ground that the con- viction was based upon the uncorroborated testimony of an accomplice. People v. Cof- fey, 39:704, 119 Pac. 901, 161 Cal. 433. 926. If there is evidence to support a finding by the jury that accused is the one who offered a stolen horse for sale, the ap- pellate court will not interfere with the finding, although there is evidence tending to establish an alibi. Snodgrass v. State, 41: 1144, 150 S. W. 162, Tex. Crim. Rep. 927. The production by one found in pos- session of property recently stolen, of a signed and witnessed bill of sale of the prop- erty from a stranger, supported by unim- peached testimony of himself and the wit- nesses that he purchased and paid for it, is not sufficient to overcome the statutory presumption of larceny arising from such possession, so as to authorize the setting aside of a conviction for lack of evidence to support it. State v. Gurr, 39: 320, 120 Pac. 209, 40 Utah, 162. (Annotated) 928. A conviction of manslaughter will not be reversed because accused should have been convicted of murder or acquit- ted, since the right to fix the degree of crime of which accused is guilty rests with the jury. Warren v. State, 34: 1121, 115 Pac. 812, 6 Okla. Crim. Rep. 1. 929. Assignments of error which chal- lenge the sufficiency of the evidence to war- rant a conviction cannot be considered by the Federal Supreme Court on a writ of error to the supreme court of the Philip- pine Islands, to review a judgment affirm- ing such conviction, where it is not con- tended that there was no evidence of guilt, since only errors of law can be considered upon a writ of error. Ling Su Fan v. Unit- ed States, 30: 1176, 31 Sup. Ct. Rep. 21, 218 U. S. 302, 54 L. ed. 1049. 930. The legal presumption of the sanity of one accused of crime is not sufficient evi- dence in support of - a conviction to prevent a reviewing court from interfering with a verdict of guilt, where an overwhelming mass of uncontradicted evidence which ad- mits of but one conclusion shows that ac- cused was insane when the offense was com- APPEAL AND ERROR, VII. 1, 2. 119 mitted. State v. Brown, 24: 545, 102 Pac. 641, 36 Utah, 46. 931. A verdict convicting defendant of forgery will not be disturbed on appeal, al- though based on circumstantial evidence, when the proof was sufficient to authorize the verdict, which was approved by the trial judge. Walker v. State, 8: 1175, 56 S. E. 113, 127 Ga. 48. 932. In a murder trial where the evi- dence is wholly circumstantial, a verdict of guilty will not be set aside as based on in- sufficient evidence or as being contrary to the evidence, which was conflicting and in- volved the credibility of witnesses, when the court can see that the jury may have found from the evidence facts sufficient to bring the case within the rule prescribing the quantum of circumstantial evidence neces- sary to a conviction, and requiring that the facts and circumstances shown must be consistent with the hypothesis of guilt, in- consistent with every other hypothesis, and conclusive in their nature and tendency. State v. Kidwell, 13: 1024, 59 S. E. 494, 62 W. Va. 466. b. As to damages and values. (See also same heading in Digest L.R.A. 1-10.) As to measure of damages generally, see DAMAGES, III. Instances of excessive amounts, see DAM- AGES, 48, 58, 73, 240, 241, 261, 263, 264, 273-277, 281, 314, 337, 339, 341, 342, 346, 404-444, 478, 499, 653, 656. See also supra, 914. 933. If a verdict is not in excess of the demand of plaintiff's complaint, and no error appears in the admission of evidence or instructions of the court, and there is any evidence tending to prove the amount of damages, the supreme court will not examine the evidence to ascertain whether the verdict is excessive or not, where the defendant fails or refuses to submit evi- dence. North v. Woodland, 6: 921, 85 Pac. 215, 12 Idaho, 50. 934. The verdict of a jury should not be set aside on the ground that it is excessive, unless it clearly appears that the jury have committed some gross and palpable error, or have acted under some improper bias, in- fluence, or prejudice, or have mistaken the rules of law stating the measure of dam- ages. Arkansas Valley & W. R. Co. v. Witt, 13: 237, 91 Pac. 897, 19 Okla. 262. 935. The court has the same power to set aside a verdict when excessive, in cases in- volving punitive damages, as it has when only compensation is recovered; and this will be done in every case where the verdict appears to have been due to passion or preju- dice. Louisville & N. R. Co. v. Brown, 13: 1135, 106 S. W. 795, 127 Ky. 732. 936. An appellate court cannot interfere with an award of damages for lack of evi- dence to support it, except in a case of Digest 1-52 L.R.A.(N.S.) plain deviation from or palpable insuffi- ciency of evidence. Arminius Chemical Co. v. Landrum, 38: 272, 73 S. E. 459, 113 Va. 7. 937. The amount of a verdict will not be disturbed on appeal if supported by evi- dence which may have been believed by the jury. Savov v. McLeod, 48: 971, 88 Atl. 721, 111 Me." 234. 938. A general verdict in favor of one entitled to actual and punitive damages, and interest on the former, with nothing to show its component parts, cannot be cor- rected on appeal so as to be allowed to stand, if there is nothing to show whether or not interest was computed on the allow- ance of punitive damages. Dunshee v. Standard Oil Co. 36: 263, 132 N. W. 371, 152 Iowa, 618. 939. Where there is a direct invasion of personal rights under circumstances show- ing malice, or a wilful and wanton disre- gard of another's right to personal securi- ty, the amount of compensatory damages is not susceptible of exact computation, and must usually be left to the sound discre- tion of the jury. Kurpgeweit v. Kirby, 33: 98, 129 N. W. 177, 88 Neb. 72. 940. Where there is conflicting evidence as to the amount of the loss upon destruc- tion of a building by fire, the mere fact that the trial court adopted the highest estimate of the witnesses for the insured is no ground for a claim of error. Kinzer v. Na- tional Mut. Ins. Asso. 43: 121, 127 Pac. 762, 88 Kan. 93. Eminent domain cases. 941. An award of damages in a condemna- tion proceeding will not be disturbed on ap- peal if there is evidence to sustain it. Boyne City, G. & A. R. Co. v. Anderson, 8: 306, 109 N. W. 429, 146 Mich. 328. 942. The reviewing court has no authority to disturb a judgment awarding damages in an eminent domain proceeding, which is sustained by evidence. Zehner v. Milner, 24: 383, 87 N. E. 209, 172 Ind. 493. 943. The award by the jury in eminent domain proceedings will not be disturbed on appeal in the absence of anything to in- dicate that it was the result of passion or prejudice. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 944. In case of railroad crossings, where nothing is actually taken but the joint use of small portions of spur tracks, and the injury to the remainder for railroad purposes is doubtful and uncertain, the award of a jury of freeholders of the vici- nage, who have inspected the proposed cross- ings, and who are familiar with all the surroundings, will not be disturbed as to amount. Kansas City, S. & G. R. Co. v. Louisiana W. R. Co. 5: 512, 40 So. 627, 116 La. 178. Personal injuries. Instances of excessive amounts, see DAM- AGES, III. i, 4. 945. The appellate court will not set aside as excessive a verdict allowing damages for negligent injuries, unless it smacks of bias or prejudice, or is so unreasonable that it 320 APPEAL AND ERROR, VII. 1, 3. ought not to stand. O'Gara v. St. Louis Transit Co. 12: 840, 103 S. W. 54, 204 Mo. 724. 946. The amount awarded as damages for personal injuries will not be disturbed on appeal upon evidence of a medical ex- pert which is absurd and unnatural. Savoy v. McLeod, 48:971, 88 Atl. 721, 111 Me. 234. 947. The trial court cannot refuse to en- ter judgment for the amount allowed by a jury to a parent as pecuniary loss for de- privation of society, comfort, and protection of a minor son killed by another's neg- ligence, in accordance with correct instruc- tions given by it, in the absence of motion for new trial for lack of evidence to sup- port it, or unless the amount is so obvi- ously the result of passion and prejudice as to justify the court in ordering a new trial of its own motion. Bond v. United Railroads, 48: 687, 113 Pac. 366, 159 Gal. 270. Goods lost in transportation. 948. A verdict for the full value of merchandise lost while in the carrier's possession for transportation will not be disturbed where the defense was that the loss was caused by an unprecedented flood, and the carrier discharges the burden of proving that the flood caused the loss, and that the goods were totally destroyed there- by, only to the extent of showing that the goods were not identified after the flood, and that all of the freight except the perishable goods that could not be delivered had sup- posedly or probably been sent to the claim department, and there is no showing made from that department with reference there- to. Chicago, R. I. & P. R. Co. v. Logan, Snow, & Co. 29: 663, 105 Pac. 343, 23 Okla. 707. 949. A judgment for a property owner against a carrier for goods lost in trans- portation will not be disturbed on appeal for lack of evidence, although it is based on an arbitrary reduction of the cost price of the property, which was serveral years old, where defendant admitted a value near- ly as great as that awarded, and offered no evidence on the question. Kettenhofen v. Globe Transfer & Storage Co. 42: 902, 127 Pac. 295, 70 Wash. 645. 3. Of findings, of court. ) a. In general. (See also same heading in Digest L.R.A. 1-70.) Presumption as to, see supra, 451-465. See also supra, 506, 665. 950. A judgment sustained by the evi- dence will not be reversed on appeal. Sief- ker v. Paysee, 4: 119, 40 So. 3(i6, 115 La. 953. 951. A finding of the trial court, support- ed by substantial evidence, will not be over- thrown. National Bank v. Duff, 16: 1047, 94 Pac. 260, 77 Kan. 248. Digest 1-52 L.R.A. (N.S.) 952. A finding by the court, based upon sullicient evidence, will not be disturbed oil appeal, where the testimony is sharply con- flicting. Canadian Fish Co. v. McShane, 14: 443, 114 N. VV. 594, 80 Neb. 551. 953. The conclusion drawn by the trial court from conflicting inferences to which the evidence is subject is conclusive upon the appellate court. Mentone Irrigation Co. v. Redlands Electric Light & P. Co. 22: 382, 100 Pac. 1082, 155 Cal. 323. 954. The findings of the trial court will be accepted as conclusive, unless the evi- dence preponderates against them. Dougan v. Seattle, 51: 214, 136 Pac. 1165, 76 Wash. 621. 955. The findings of a trial judge, made upon the testimony of witnesses who ap- peared before him, will be followed by the court in bane unless they are plainly wrong. Evans v. Foss, 9: 1039, 80 N. E. 587, 194 Mass. 513. 956. The reviewing court is bound by the findings of fact by the trial court, where it disposes of the case upon motions for di- rected verdicts, if there is any evidence in support thereof. Interstate L. Assur. Co. v. Dalton, 23: 722, 165 Fed. 176, 91 C. C. A. 210. 957. If, in considering all parts of a spe- cial finding relative to the same matter to- gether, the finding' can be said to be suffi- cient, it will be upheld. Mount v. Mont- gomery County, 14: 483, 80 N. E. 629, 168 Ind. 661. 958. The appellate court will not under- take to weigh conflicting evidence covering 600 printed pages to determine whether it supports the findings of the trial court, even though authorized by statute to do so. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2: 788, 75 N. E. 877, 165 Ind. 421. 959. That the findings of fact by the trial court upon a former trial of the case differ from those made at the trial from which the appeal is taken is unimportant upon the binding effect of the last finding upon the appellate court. Cohen v. La Canada Land & Water Co. n: 752, 91 Pac. 584, 151 Cal. 680. 960. A finding of fact by the court based upon disputed oral testimony, while of weight with, is not controlling upon, the appellate court. Lantz v. Moeller, 50: 68, 136 Pac. 687, 76 Wash. 429. 961. The findings of the trial judge, al- though not binding as a jury verdict upon trial de novo in the appellate court, will not be disturbed when based upon conflict- ing evidence, unless clearly against its weight. Johns v. Arizona F. Ins. Co. 49: 101, 136 Pac. 120, 76 Wa_h. 349. 962. In a cause tried to the court, a gen- eral finding includes the finding of all facts necessary to constitute the claims of the party in whose behalf the judgment is ren- dered, and upon appeal the court will not review the evidence upon which such find- ing is made, to determine its sufficiency. Horner v. Spencer, 17: 622, 95 Pac. 757, 21 Okla. 155. APPEAL AND ERROR, VII. 1, 3. 121 963. In a case tried to the court, where, on request, findings of fact are made, and it is contended on appeal that a certain ma- terial finding is not sustained by the evi- dence, and that in fact all the evidence negatived such finding, the appellate court will, on proper assignment, examine the record for the purpose of ascertaining that fact, and where the contention is sustained, set the finding aside. Board v. Dill, 29:1170, 110 Pac. 1107, 26 Okla. 104. 964. A statutory provision that the su- preme court shall review the conclusions and judgment of the trial court on the evi- dence without any presumption in favor of the court below on the evidence applies to criminal as well as civil, cases. Tony v. State, 3: 1196, 40 So. 388, 144 Ala. 87. 965. The provisions of the New Jersey act (P. L. 1906, p. 658) authorizing a re- view of the facts upon certiorari are not applicable to the court of errors and ap- peals, which is concluded by the findings of the supreme court upon questions of fact. Lehigh & W. B. Coal Co. v. Junction (N. J. Err. & App.) 15: 514, 68 Atl. 806, 75 N. J. L. 922. 966. A decision by the trial court that the oath to an information was administered by the clerk instead of his deputy is conclu- sive on appeal. State v. Forsha, 4: 576, 88 S. W. 746, 190 Mo. 296. 967. A finding by the trial court, based upon conflicting evidence as to whether or not a tunnel intercepts the water of springs which have been appropriated by complain- ant, is binding on the appellate court. Co- hen v. La Canada Land & Water Co. u: 752, 91 Pac. 584, 151 Cal. 680. 968. A determination of the trial court, in an action to foreclose a mechanic's lien, as to the amount due a subcontractor, will not be disturbed, where the testimony upon which the finding is based is uncertain and conflicting. Alberti v. Moore, 14: 1036, 93 Pac. 543, 20 Okla. 78. 969. The determination by the trial court on conflicting evidence that a broker for the sale of property had secured a pur- chaser at a certain price before the owner interfered by a sale through another brok- er is binding on the appellate court. Jen- nings v. Trummer, 23: 164, 96 Pac. 874, 52 Or. 149. 970. A finding of fact that a wharf which has been constructed by the abutting owner upon a street has continuously been used by the public for both foot and vehicle traffic is inconsistent with a finding that the street has not been used or traveled as a public highway and the latter must be rejected by the appellate court in aid of an appeal. Buffalo v. Delaware, L. & W. R. Co. 16: 506, 82 N. E. 513, 190 N. Y. 84. 971. A trial court cannot be said to be plainly wrong in its determination that stock of a corporation was intended to be issued directly to the general public sub- scribing therefor, and not to the promoters to be sold to the subscribers, where such intention appears from the contemporane- ous acts, entries, and other writings with Digest 1-52 L.R.A.(N.S.) their natural inferences, although it is op- posed tp the oral testimony of the pro- moters. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 X. E. 193, 203 Mass. 159. Reasonableness of passenger rate. 972. Whether the imposition of a 2-cent passenger rate upon a railroad company has a tendency to confiscate its property is a' question of fact, upon which the findings of the trial court are not to be disturbed un- less shown to be clearly erroneous. Penn- sylvania R. Co. v. Philadelphia County, 15: 108, 68 Atl. 676, 220 Pa. 100. Disbarment of attorney. 973. A judgment disbarring an attorney from the practice of law will not be dis- turbed on appeal, where the whole question for the consideration of the trial court was as to the unfaithfulness of the attorney, and the version of the client was directly contra- dicted by that of ' the accused, as, in such case, the judgment of the trial court, which had the parties before it, is conclusive. Re Wilson, 21 : 517, 100 Pac. 635, 79 Kan. 674. Illegal sale of liquor. 974. A finding of fact by the appellate court, that two saloons were being run in different rooms in one building under one license, is binding on the supreme court. Malkan v. Chicago, 2: 488, 75 N. E. 548, 217 111. 471. 975. On a writ of error from a judgment rendered by the county court, acquitting one accused of illegally selling intoxicating liquors, the state is regarded as a demur- rant to the evidence ; and the finding of the trial court to which the case was submitted on an agreed statement of facts will not be disturbed, where it would be competent for a jury, under the facts and circumstances disclosed, to find for the defendant. State v. Davis, 14: 1142, 60 S. E. 584, 62 W. Va. 500. Intent to have husband sign contract. 976. A finding on conflicting evidence that there was no intention to require a man to sign his wife's contract to sell her land, to render it binding, will not be disturbed on appeal, where she had authority to convey without his consent, and she had taken steps to carry out the contract notwith- standing he had not signed it. Bates v. Harris, 36: 154, 138 S. W. 276, 144 Ky. 369. Existence or nonexistence of contract. 977. A finding, by the trial court, of the nonexistence of a contract, will not be dis- turbed on appeal unless the preponderance of the evidence is shown to be clearly and indisputably against it. Pressed Steel Car Co. v. Hansen, 2: 1172, 137 Fed. 403, 71 C. C. A. 207. 978. The decision of the trial court that an oral contract between a sister and her brother that she act as his housekeeper and care for him, and that she shall have his property at his death, is still in force, will not be disturbed, although, after living with her brother for many years performing the agreement referred to, the sister married, and for eleven years lived apart from her brother, until her husband died, when sh 122 APPEAL AND ERROR, VII. 1, 3. returned to her brother's home and resumed her duties under the agreement, and con- tinued to perform them until his death, the brother in the meantime expressing satisfaction with her conduct, and holding her in affectionate regard. Smith v. Cam- eron, 52: 1057, 141 Pac. 596, 92 Kan. 652. Preference by bankrupt. 979. A finding by the court below that mortgagees to whom an insolvent executed a mortgage within four months before he filed a voluntary petition in bankruptcy did not have reasonable cause to believe that it was intended to give a preference, and that the mortgagor did not intend thereby to hinder, delay, or defraud any of his other creditors, will be affirmed unless some serious mistake of fact has been made, or some obvious error of law has inter- vened. Coder v. Arts, 15: 372, 152 Fed. 943, 82 C. C. A. 91. Passing of title. 980. The findings of the trial court in an action to recover possession of a quanti- ty of grain which had been sold, but not actually delivered, that the title passed to the vendee, will not be disturbed on ap- peal unless against the clear weight of evi- dence, since the question is on of fact, as it depends on the intent of the parties to the transaction. Seldomridge v. Farmers' & M. Bank, 30: 337, 127 N. W. 871, 87 Neb. 531. Necessity for medical attention. 981. A finding of necessity for medical attention to a child, for failure to furnish which the parent is on trial, will not be dis- turbed on appeal where the evidence tends reasonably to support the finding. Owens v. State, 36: 633, 116 Pac. 345, 6 Okla. Crim. Rep. 110. Fraud. See also supra, 979. 982. Concurrent findings of fact by the two lower courts in a suit to set aside a conveyance as in fraud of creditors will ordinarily be accepted by the Federal Su- preme Court on appeal. Merillat v. Hen- sey, 36: 370, 31 Sup. Ct. Rep. 575, 221 U. S. 333, 55 L. ed. 758. Divorce; suit money; alimony. 983. The finding of the trial court of the infliction upon plaintiff in a divorce pro- ceeding, of grievous mental suffering, by de- fendant, will not be disturbed on appeal un- less the evidence in support thereof is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court. MacDonald v. MacDon- ald, 25: 45, 102 Pac. 927, 155 Cal. 665. 984. The appellate court will not inter- fere with the action of the trial court in awarding permanent alimony to a wife against whom a divorce is granted for de- serting her husband, where the statute au- thorizes the trial court to make such decree touching alimony as may be just and reasonable, and she is old, helpless, penni- less, and almost blind, and there ia evidence tending to show that she left her husband because of his cruelty to her. Vigil v. Vigil, 31:578, 111 Pac. 833, 49 Colo. 156. Digest 1-52 L.R.A.(N.S.) 985. An award of alimony in a divorce proceeding will not be disturbed on appeal unless a clear abuse of discretion on the part of the trial court has been shown. Van Gorder v. Van Gorder, 44: 998, 12!) Pac. 226, 54 Colo. 57. 986. A decree awarding a wife who is no longer able to labor hard, and is forced to seek a separation by the misconduct of her husband, a moiety of the property accu- mulated by their joint labors through a lifetime, will not be interfered with on ap- peal where the joint property is sufficient to support them both comfortably if living together, since she is entitled to sufficient property to support her comfortably living alone. Van Gorder v. Van Gorder, 44: 998, 129 Pac. 226, 54 Colo. 57. (Annotated) 987. The allowance of only $200 as a fee for the wife's attorney in a divorce pro- ceeding will not be interfered with on ap- peal, although the husband is worth $40,- 000, where little work was involved and there was practically no contest on the main issues. Blair v. Blair, 38: 269, 121 Pac. 19, 40 Utah, 306. 988. The award of only $4,500 as alimony will not be disturbed on appeal for abuse of discretion, although the husband is worth $40,000, where the parties have been mar- ried only a short time, the wife has had no part in the accumulation of the property, and the property consists of farm lands not very productive. Blair v. Blair, 38: 269, 121 Pac. 19, 40 Utah, 306. 989. The allowance of $50 per month as alimony to a wife having no property, against a man worth from $15,000 to $60,000, who causes the wife to leave the home because of his siding with his sister in her attempt to control the affairs of the house, will not be interfered with on ap- peal. McConnell v. McConnell, 33: 1074, 136 S. W. 931, 98 Ark. 193. 990. Whether or not a decree for ali- mony rendered by a court of one state is final, so as to be enforceable in another state, is a question of fact, to be deter- mined by the trial court upon the statutes and decisions of the state where the decree was rendered, and such expert evidence as may be offered, and its finding cannot be reviewed on appeal if there is any evidence to support it. Wells v. Wells, 35: 561, 95 N. E. 845, 209 Mass. 282. Insurance cases. 991. A finding of a trial court that there was no acceptance of an application for in- surance upon evidence reasonably tending to show that there was no acceptance is conclusive as against any acceptance which may be inferred from a retention of the application and the premiums. Dorman v. Connecticut F. Ins. Co. 51=873, 139 Pac. 262, 41 Okla. 509. 992. A finding of the trial court that a traveling soliciting insurance agent with- out actual authority to contract, who is fur- nished by the insurance company with no indicia of authority other than printed blank forms of application for insurance, APPEAL AND ERROR, VII. 1, 4. 123 addressed to it, which does not expressly limit the authority of its soliciting agent except by a provision as to when the policy should take effect, had no authority to enter into a contract of insurance, will not be disturbed where the applicant for insur- ance had no knowledge of the contents of the application and claimed no contract of insurance other than a contemporaneous oral one somewhat inconsistent with the only limitations contained in the applica- tion. Dorman v. Connecticut F. Ins. Co. 51: 873, 139 Pac. 262, 41 Okla. 509. 993. A finding by the trial court that a fire preceded an explosion which injured in- sured property, so as not to bring the loss within an exception in the policy, is not binding on appeal if there is no evidence in the case tending to show such to have been the fact. German American Ins. Co. v. Hy- man, 16: 77, 94 Pac. 27, 42 Colo. 156. 994. A finding of the trial court that a hemorrhage did not constitute a serious ill- ness within the meaning of the life insur- ance policy in suit is conclusive, when the evidence is conflicting both as to the severi- ty of the illness and the condition of in- sured's health thereafter until her last ill- ness, and there is an entire absence of any evidence that such loss of blood brought on, or was likely to result in, permanent or material impairment of her health. Emi- nent Household of C. W. v. Prater, 23: 917, 103 Pac. 558, 24 Okla. 214. Negligence. Correctness of instructions, generally, see TRIAL, 1044, 1047, 1061. 995. An appellate court cannot rule that a trial judge was wrong in holding that a master was not negligent in failing to guard planer knives from the rear, where they could not be reached by an operator except from a position which his duties did not require him to occupy, or where he would not reasonably be expected to go. Kroger v. Cumberland Fruit Package Co. 35: 473, 130 N. W. 513, 145 Wis. 433. 996. The appellate court is concluded by the finding of the trial court as to the dan- gerous character of a stovepipe enamel which ignited and injured a person attempting to use it according to directions. Wolcho v. A. J. Rosenbluth & Co. 21: 571, 71 Atl. 566, 81 Conn. 358. b. In equity. (See also same heading in Digest L.R.A. 1-10.) 997. A finding by the chancellor on con- flicting evidence that a lot owner objected to the violation of the covenant establish- ing the building line in the erection of a building on the adjoining lot will be fol- lowed on appeal. 6'Gallagher v. Lockhart, 52: 1044, 105 N. E. 295, 263 111. 489. 998. Where the evidence in an equity pro- ceeding is partly oral, the findings of fact of the single justice will not be disturbed by the law court unless plainly wrong. Old Dominion Copper Min. & Smelting Co. Digest 1-52 L.R.A.(N.S.) v. Bigelow, 40: 314, 89 N. E. 193, 203 Mass. 159. 999. The law court will not interfere with a finding of fact by a single justice on con- flicting testimony, where the inferences from other facts proved in the case are not inconsistent with the finding. Stewart v. Finkelstone, 28: 634, 92 N. E. 37, 206 Mass. 28. 1000. The rulings of the chancellor on questions of fact depending upon conflict ing evidence will not be disturbed on ap- peal, unless they are manifestly wrong. Burwash v. Ballou, 15: 409, 82 N. E. 355, 230 111. 34. 1001. Where, under the Constitution, an appeal in an equity case takes before the reviewing court all questions of law and fact, that court is not bound by findings of the trial court upon conflicting .evidence, at least, where all evidence was taken by deposition. Campbell v. Gowans, 23: 414, 100 Pac. 397, 35 Utah, 268. 1002. The supreme court will weigh for itself the testimony in an equity case where it is practically undisputed, and draw its own conclusion as to the rights of the par- ties, notwithstanding the finding of the trial court. Harris Bkg. Co. v. Miller, i : 790, 89 S. W. 629, 190 Mo. 640. 1003. The appellate court is not bound by the findings of the chancellor in equity cases, but will draw its own conclusions from the evidence. Bushnell v. Loomis, 36: 1029, 137 S. W. 257, 234 Mo. 371. 1004. The appellate court, having no ju- risdiction to review facts in an action at law, cannot review the facts upon appeal from the allowance of a claim against a de- cedent's estate, where the claim is for a legal demand and no defense is made which could not have been interposed in a suit at law. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. c. Where jury has been waived. 1005. Where a case is submitted to the court and a jury waived, the finding of fact by the court will not be disturbed, where there is competent evidence which reason- ably tends to support the findings. Reaves v. Reaves, 2 : 353, 82 Pac. 490, 15 Okla. 240. 4. Of findings by referee, commission, etc. (See also same heading in Digest L.R.A. 1-10.) 1006. The findings of a referee are entitled to the same weight as the special verdict of a jury, and where amply supported by the evidence are conclusive upon the appellate court. Eberle v. Drennan, 51: 68, 136 Pac. 162, 40 Okla. 59. 1007. A finding by a consent master ap- proved by the chancellor is binding on ap- peal, if there is any legal evidence to sus- tain it. Miles v. Dodson, 50: 83, 144 S. W. 908, 102 Ark. 422. 124 APPEAL AND ERROR, VII. 1, 5, m, 1. 1008. A master's finding of facts upon evi- dence taken before him cannot be im- peached, in the absence from the record of his certificate, or other competent proof, either that the evidence presented is the entire evidence that was before him, or that it wa.3 all the evidence which was be- fore him relative to the specific finding or findings challenged. Wheeler v. Abilene Nat. Bank Bldg. Co. 16: 892, 159 Fed.. 391, 89 C. C. A. 477. 1009. A finding of the master that the words "crown malt" so nearly resemble the trademark "Creamalt" when applied to a loaf of bread, as to be likely to deceive the public, will not be interfered with by the reviewing court, unless it is shown to be clearly wrong. George G. Fox Co. v. Glynn, 3: 1096, 78 N. E. 89, 191 Mass.. 344. 1010. Decisions by a referee that legal services were rendered under a general, as distinguished from a special, contract, will not be disturbed,, upon appeal where the evi- dence is conflicting. Mellon v. Fulton, 19: 960, 98 Pac. 911, 22 Okla. 636. 1011. On appeal from a judgment overrul- ing the report and findings of fact made by a commissioner to whom the case had been referred, the appellate court will determine for itself, from the evidence, whether it will sustain the conclusions of the commissioner or those of the court. Deepwater Ry. Co. v. Honaker, 27: 388, 66 S. E. 104, 66 W. Va. 136. Of referee in bankruptcy. 1012. The appellate court will not over- turn the finding of a referee in bankruptcy, affirmed by the bankruptcy court, on con- flicting evidence, as to the bona fid-es of debts in favor of near relatives of the bank- rupt, although they do not appear from the books of either the creditors, or the bank- rupt, if such nonappearance is satisfactorily explained. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 605. 1013. A finding on conflicting evidence by the referee, of bona fides on the part of one advancing money to a bankrupt, which is used to prefer one of the latter's creditors, affirmed by the bankruptcy court, is bind- ing on appeal. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 605. Of state corporation commission. 1014. The prima facie presumption of the correctness of the acts of the state corpora- tion commission applies only to the facts found; and where there is no finding by the commission on a necessary point, and the evidence certified in the record to the su- preme court is indefinite and unsatisfactory, the commission's order will not be sustained. Chicago, R. I. & P. R. Co. v. State, 24: 393, 103 Pac. 617, 24 Okla. 317. 1015. While it is proper for the state cor- poration commission to make findings of facts, such findings have no force or ef- fect upon a review of the order of the com- mission in the supreme court, as this court is required to pass upon the merits of the case, without indulging in any presump- tions, and the court forms its own inde- pendent judgment as to each requirement Digest 1-52 L.R.A.(N.S.) of the order, upon the evidence. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1016. The order of a corporation commis- sion requiring a railroad to install and maintain a telephone in its station in a town having one telephone exchange, which is con- nected with an inland town about 6 miles distant, with about 300 population, which towns received all their freight by way of such station, will not be disturbed on ap- peal, where it appears that the installing and maintaining thereof would be to the con- venience of the patrons of such station. Atchison, T. & S. F. R. Co. v. State, 21: 908, 100 Pac. 11, 23 Okla. 210. 1017. An order of a state corporation com- mission, that a railway company must maintain a telegraph operator at a par- ticular station, is not justified by a find- ing that the company has been compelled to telephone to other stations for orders for trains tied up for want of orders, where the findings do not show how often this has been necessary, or the adequacy of the tele- phone service, or its expense, or the amount of the receipts belonging to the company for freight and passenger service at that station. Chicago, R. I. & P. R. Co. v. State, 24:393, 103 Pac. 617, 24 Okla. 317. 1018. Where an order of the corporation commission, requiring an interstate train to be stopped on flag at a junction point or station, appears to be desirable for the public and necessary for the public con- venience, and proper and adequate facilities are not otherwise afforded for such point, its size and importance being considered, in connection with the service required on account of its being a junction point, the same will not be disturbed on appeal. St. Louis & S. F. R. Co. v. Langer, 44: 478, 119 Pac. 126, 29 Okla. 691. (Annotated) 5. On appeal from, appellate court. (See also same heading in Digest L.R.A. 1-70.) 1019. The judgment of the intermediate appellate court as to facts which there is evidence to support is final. Illinois C. R. Co. v. Siler, 15: 819, 82 N. E. 362, 229 111. 390. 1020. The unanimous affirmance by the ap- pellate division of what purports to be a finding of fact as to the legal effect of a le- gal instrument will not prevent a review by the court of appeals of the question of law involved in the construction of the instru- ment. Smyth v. Brooklyn U. Elev. R. Co. 23: 433, 85 N. E. 1100, 193 N. Y. 335. m. What errors warrant reversal. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Errors waived or cured below, see supra, VII. k. APPEAL AND ERROR, VII. m, 1. 125 Reversal because of disqualification of judge, see JUDGES, 15. 1021. Errors relied upon to reverse a judg- ment must be prejudicial to the party com- plaining. Whitney v. Brown, 11:468, 90 Pac. 277, 75 Kan. 678. 1022. An alleged error not shown by the record to have been prejudicial is not ground for reversal. Mageau v. Great Northern R. Co. 15: 511, 115 N. W. 651, 103 Minn. 290. 1023. Is' onpre judicial errors do not require reversal of a judgment which is otherwise supported by the evidence and the law. Hil- ligas v. Kuns, 26: 284, 124 N. W. 925, 86 Neb. 63. 1024. Error cannot be regarded as harm- ful, so as to require a reversal, unless, with- in reasonable probabilities, had the error not occurred, the result might have been materially more favorable to the one com- plaining of it. Oborn v. State, 31 : 966, 126 N. W. 737, 143 Wis. 249. 1025. Technical errors which do not affect the substantial right of the defendant will not be considered upon appeal, where the record shows that a conviction was fairly obtained. United States v. Hargo, 20: 1013, 98 Pac. 1021, 1 Okla. Grim. Rep. 590. 1026. Erroneous rulings of the trial court upon abstract propositions of law will not require a reversal if, upon the law and legal evidence, the result of the trial was right. Gordon v. Conley, 33: 336, 78 Atl. 365, 107 Me. 286. 1027. Errors of practice which in no wise affect the substantial rights of the parties are without injury where, under the con- ceded facts, the judgment rendered is cor- rect and the only one which could be sus- tained. First Nat. Bank v. Griffin, 49: 1020, 120 Pac. 595, 31 Okla. 382. 1028. Erroneous rulings, if not prejudicial to the rights of the party, may be disregard- ed; but where the findings are contrary to the evidence, and the erroneous rulings may have misled the jury, they are material and constitute reversible error. Fleming v. Thorp. 19: 915, 96 Pac. 470, 78 Kan. 237. 1029. The rule that error without prejudice is no ground for reversal is applicable only when it appeal's so clearly as to be beyond doubt that the error challenged did not prejudice and could not prejudice the com- plaining party. Armour & Co. v. Russell, 6: 602, 144 Fed. 614, 75 C. C. A. 416. 1030. A statute which provides that re- versals shall not be ordered for errors which do not affirmatively appear prejudically to have affected the substantial rights of the party complaining, when it appears that substantial justice has been done, does not authorize the affirmance of a judgment up- on the ground that it is in accordance with the view of the facts which the reviewing court itself might derive from the conflict- ing evidence, where it is based on a verdict rendered under the apparent influence of a materially erroneous instruction, or by a jury made up in part of persons dis- Digest 1-52 L.R.A.(N.S.) qualified on account of interest. Broadway Mfg. Co. v. Leavenworth Terminal R. & B. Co. 28: 156, 106 Pac. 1034, 81 Kan. 616. 1031. It is not reversible error to require the argument of a motion for new trial at the time it is made, without giving time for preparation. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 1032. Although there is no appeal from the judgment, the cause will not be reversed for error in denying plaintiff's motion for new trial because defendant's evidence was not sufficient to support his defense, if the com- plaint on its face shows that no recovery can be had on the cause of action set forth therein, and that no amendment can correct it, so that the tvro.-, if any, is without pre- judice. Peters v. Peters, 23: 699, 103 Pac. 219, 156 Cal. 32. 1033. The supreme court will not affirm a judgment for actual damages only, in an action for assault by one seeking to enter upon his own property which is in posses- sion of a wrongdoer, on the theory that ex- cessive force was employed, where the trial court refused to permit the fact of owner- ship to be considered as justifying the use of force, and thereby tried the case upon an erroneous theory. Walker v. Chanslor, 17: 455, 94 Pac. 606, 153 Cal. 118. 1034. It is reversible error for a state cor- poration commission which has directed the amendment of an original affidavit charging a violation of one of its orders, to proceed with the trial over the objection of the defendant, upon the theory that the affida- vit has been amended so as to charge a violation of a different order, where such amendment has never been made nor veri- fied. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. 1035. That a person libeled by two individ- uals whom he sued jointly recovered a judgment for full damages against one ; who is solvent, and that the other is willing to waive the costs to which he is entitled be- cause of a verdict in his favor, does not of itself show that plaintiff was not preju- diced by error committed by the court, fa- vorable to the defendant in whose favor the verdict was returned. Lawrence v. Herald Pub. Co. 25: 796, 122 N. W. 1084, 158 Mich. 459. 1036. In an action in form to recover the purchase price of chattels, where the cause of action is in fact for damages for breach of the agreement to purchase, a recovery upon the theory of the pleader will not be disturbed on appeal, if the judgment is not in excess of the amount plaintiff would have recovered had he proceeded in the proper way. Lincoln v. Charles Alshuler Mfg. Co. 28: 780, 125 N. W. 908, 142 Wis. 475. 1037. The omission from the summons of the name of the county in which the action is brought and the amount for which judg- ment is demanded, which facts can be sup- plied from the complaint served with the summons, is within a constitutional pro- vision requiring the appellate court to af- firm if the correct judgment was rendered, 126 APPEAL AND ERROR, VII. in, 1. notwithstanding any error committed dur- ing the trial. First Nat. Bank v. Rusk, 44: 138, 127 Pac. 780, 64 Or. 35. Transfer to chancery. 1038. It is reversible error to transfer to the chancery court against the objection of the plaintiff an action properly triable at law. First Nat. Bank v. Reinman, 28: 530, 125 S. W. 443, 93 Ark. 376. Compulsory election. 1039. The administratrix of one who, after purchasing a ticket for an ocean voyage, is excluded from the vessel, who brings actions in contract and tort to recover the damages for the carrier's act, and under compulsion of the court elects to proceed in tort when she has no right to maintain the action in that form, has a right to a reversal, to per- mit her to try out her right to a return of the passage money. Connors v. Cunard Steamship Co. 26: 171, 90 N. E. 601, 204 Mass. 310. Reference; exceptions to report. 1040. Where, in a suit, defendant denies any liability to plaintiff and any foundation for the suit, but agrees for a reference of the same for trial before a referee, it is not error for the court, in its order, to state, "it appearing to the court that this is a case involving an accounting," etc., in the absence of any evidence that the referee was influenced in his findings thereby. Logan v. Brown, 20: 298, 95 Pac. 441, 20 Okla. 334. 1041. Where the evidence in an action equitable in character is sufficient to au- thorize the finding of an auditor to w;hoin the matter has been referred, the overrul- ing of exceptions to the auditor's report by the presiding judge is not error. Cowart v. Singletary, 47: 621, 79 S. E. 196, 140 Ga. 435. 1042. A lack of specification as to the items of an open account in the report of an auditor to whom a cause is referred does not make the action of the trial court in overruling a motion for rereference reversi- ble error, where the recovery of the amount of the open account was waived. Cowart v. Singletary, 47: 621, 79 S. E. 196, 140 Ga. 435. Criminal cases. 1043. An appellate court is not required to do more than read the record carefully in connection with assignments of error in a criminal case which are not argued, but merely repeated and insisted upon in the brief of plaintiff in error; and, if it dis- covers no plain or glaring error prejudicial to the plaintiff in error under such assign- ments, the judgment will not be reversed because of such assigned errors. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. 1044. A conviction should not be reversed where it is clearly proved that the defend- ant is guilty as charged, unless it affirma- tively appears from the record that he was deprived of some substantial right, to his injury, upon the trial. Woody v. State, 49: 479, 136 Pac. 430, 10 Okla. Crim. Rep. 322. 1045. A conviction in a criminal prosecu- tion will not be reversed on account of the ac- Digest 1-52 L.R.A.(N.S.) tion of the trial court unless it affirmatiTe- ly appears in the record that the court committed error during the trial of the case, and that by such error the defendant was deprived of a substantial right, to his injury. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. 1046. The inadvertent omission of arraign- ment and plea in a criminal cause involv- ing les? than capital punishment is not re- versible error if accused is allowed to make his defense as fully and effectively as if issue had been joined at least where the statute provides that no judgment shall be set aside for error in procedure unless it has affected substantial rights. Hack v. State, 45: 664, 124 N. W. 492, 141 Wis. 346. ( Annotated ) 1047. Absence of arraignment and plea in a criminal case is not fatal on appeal, where the statute provides that there shall be no reversal for any defect which does not tend to the prejudice of the substantial rights of accused on the merits; at least, where his counsel announced ready for trial and made no statement except that they pleaded "not guilty." State v. O'Kelley, 52: 1063, 167 S. W. 980, 258 Mo. 345. 1048. It is not reversible error to indict for murder one killing a trespasser on his land, although the statute provides that the crime under such circumstances shall be manslaughter, since the benefit of the statute must be secured at the trial. Brown v. State, 34:811, 54 So. 305, 98 Miss. 786. 1049. The reviewing court cannot say, in the absence of clear inference that the fact might be otherwise, that one on trial for crime was prejudiced by demonstrations on the part of spectators in the court room. Smith v. State, 27: 461, 49 So. 945, 95 Miss. 786. Parties. 1050. On appeal by defendants from a de- cree in equity, failure of the trial court to dismiss the suit for misjoinder of plain- tiffs and of causes of action does not re- quire a reversal, where the record clearly shows that appellants were in no wise prejudiced thereby. Hamilton v. Allen, 28: 723, 125 N. W. 610, 86 Neb. 401. 1051. A judgment rendered in a suit in equity will not be reversed for the reason that a party who should have been made plaintiff is made defendant instead, when the party against whom judgment is ren- dered is not prejudiced thereby. Jobst v. Hayden Bros. 50:501, 121 N. ' W. 957, 84 Neb. 735. Continuance. 1052. Where the testimony of an absent witness, on the ground of which a continu- ance was sought, is shown by the record to be cumulative, and nothing appears from the motion for continuance or the trial to show that the testimony was material, or that a different verdict would probably have been rendered had such testimony been introduced, the act of the trial court in overruling the motion for the continuance is not error, and a conviction will not be APPEAL AND ERROR, VII. m, 2. 127 set aside on account thereof. Litchfield v. State, 45: 153, 126 Pac. 707, 8 Okla. Crim. Rep. 164. 1053. Refusal to continue a case to permit defendant to take the deposition of plaintiff to enable him to prepare his defense, to which he has a right by statute, is prejudi- cial error. Western U. Teleg. Co. v. Wil- liams, 19: 409, 112 S. W. 651, 129 Ky. 515. 2. As to pleadings. (See also same heading in Digest L.R.A. 1-10.) Error waived or cured below, see supra, VII. k, 2. 1054. Erroneous rulings on the pleadings will not require reversal where, on the merits, judgment was entered for the right party. Jenkins v. Hawkeye Commercial Men's Asso. 30: 1181, 124 N. W. 199, 147 Iowa, 113. 1055. A judgment will not be reversed be- cause new matter in a reply constitutes a departure from the petition, although time- ly objection has been made thereto in the trial court, where, notwithstanding the fault in the pleading, the contention of each party has been made clear, and each has had full opportunity to develop the facts. Savage v. Modern Woodmen of America, 33:773, 113 Pac. 802, 84 Kan. 63. 1056. That a reply contains a general de- nial and matter in confession and avoid- ance does not, where no prejudice results from it, require reversal, under a statute requiring the appellate court to disregard nonprejudicial error and consider as made all amendments which might have been made. Richardson v. Brotherhood of Loco- motive Firemen & Enginemen, 41: 32Oj 126 Pac. 82, 70 Wash. 76. 1057. No reversal can be claimed on a re- covery for injury to land by diversion of the flood water of a river for certain years, be- cause the complaint did not clearly indicate that a recovery for those years was de- manded, if the facts were sufficiently stated and warranted a recovery, and defendant had, and availed himself of, an opportunity to meet the claim on which the recovery was allowed. Thompson v. New Haven Water Co. 45: 457, 86 Atl. 585, 86 Conn. 597. 1058. A decree adjudging each defendant guilty of the independent acts set out in separate paragraphs of a petition charging them with contempt of an injunction order, and consolidating sentence without indicat- ing how much of the punishment was im- posed for the disobedience in any particu- lar instance should be reversed if it ap- pears that the defendants have been sen- tenced on any charge which, in law or in fact, does not constitute a disobedience of the injunction. Gompers v. Buck's Stove & Range Co. 34: 874, 31 Sup. Ct. Rep. 492, 221 U. S. 418, 55 L. ed. 797. 1059. A judgment of a trial judge holding Digest 1-52 I*R.A.(N.S.) that a petition has been framed in compli- ance with the pleading act of 1893 (Ga. Civil Code 1895, 4961, p. 56), requiring all petitioners to "set forth the cause of ac- tion in orderly and distinct paragraphs, numbered consecutively," will not bo re- versed unless it is apparent that there has been an utter disregard of the provisions of the act. Atlanta & W. P. R. Co. v. Camp, 15: 594, 60 S. E. 177, 130 Ga. 1. 1060. Although by statute the general is- sue in actions for personal injury is "not guilty," which puts in issue all material allegations of the complaint, a judgment will not be reversed because the court, in an action to hold a father liable for injuries inflicted by his son, accepted as a general issue plea an allegation that defendant was "not guilty of the negligent and wrongful matters alleged against him." Parker v. Wilson, 43: 87, 60 So. 150, 179 Ala. 361. 1061. Under a plea of not guilty in an ac- tion for damages for pollution of a water course, the defense is available that defend- ant's use of the stream is lawful and rea- sonable; and the rejection of a special plea setting up such defense is therefore nonpre- judicial. Arminius Chemical Co. v. Land- rum, 38: 272, 73 S. E. 459, 113 Va. 7. In justice's court. 1062. Very liberal rules of construction should be applied to pleadings in a justice of the peace court, and technical objections will not be allowed to reverse a judgment, where it is apparent from an examination of the entire record that no substantial right of the party raising the objection should have been affected by the ruling, and where a reversal on that ground would tend to defeat the ends of justice. Holden v. Lynn, 38: 239, 120 Pac. 246, 30 Okla. 663. Exceptions. 1063. The overruling of the exceptions taken on the ground of impertinence to so much of the bill filed by the United States under the act of July 2, 1890, 4, to re- strain violations of that act, as counted upon facts occurring prior to its enactment, cannot be regarded as prejudicial error, where the court gave no weight to the tes- timony adduced under the averments com- plained of, except in so far as it tended to throw light upon the acts done after the passage of the statute, the results of which, it was charged, were being participated in and enjoyed by the alleged combination at the time of the filing of the bill. Standard Oil Co. v. United States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. Rulings on demurrer. Errors waived or cured below, see supra, 824, 825. 1064. An order sustaining demurrers will not be reversed because they did not state the special grounds for demurrer, as re- quired by statute, if no exception was taken to them and another demurrer stated the ground, which challenged petitioner's right to relief. Continental Trust Co. v. Balti- more Refrigerating & Heating Co. 46: 887, 87 Atl. 947, 120 Md. 450. 1065. Sustaining a demurrer to a good 128 APPEAL AND ERROR, VII. m, 2. count in a declaration is not reversible error if it is so similar to a count which is sustained that plaintiff had the benefit of all evidence which could have been offered under it. Anderson v. Robinson, 47: 330, 02 So. 512, 182 Ala. 615. 1066. There ia no reversible error in sus- taining a demurrer to a pica to one count in a declaration which contains one good count, where the statute provides that no judgment shall be reversed if there is one good count in the declaration. Alvey v. Hartwig, n: 678, 67 Atl. 132, 100 Md. 254. 1067. Reversal for error in sustaining a general demurrer to the declaration cannot be avoided by the fact that special excep- tions to it were properly sustained, and the defects not cured by amendment. Bigham Bros. v. Port Arthur Canal & Dock Co. 13: 656, 97 S. W. 686, 100 Tex. 192. 1068. A judgment for a plaintiff cannot stand when rendered upon a complaint con- taining a bad paragraph, which has been held good on demurrer, unless the record affirmatively shows that the judgment rests exclusively upon a good paragraph. Lake Shore & M. S. R. Co. v. Barnes, 3: 778, 76 N. E. 629, 166 Ind. 7. 1069. A party cannot complain of the sus- taining of a demurrer to an argumenta tive paragraph of denial in his pleading, where the material facts, so far as perti- nent, aie admissible in evidence under his fneral denial. Clarke v. Darr, 9: 460, 80 N. 19, 168 Ind. 101. 1070. A retrial must be granted where a demurrer to a bad paragraph of complaint is overruled, and the paragraph left in the complaint, and it is not shown that the judgment for plaintiff rested wholly upon the paragraph which was good. W. B. Conkey Co. v. Larsen, 29: 116, 91 N. E. 163, 173 Ind. 585. 1071. A defendant in an action to recover damages for a tort who pleads as a defense facts arising by reason of the law of the place where the accident occurred was not prejudiced by the overiuling of a demurrer to the complaint based on the fact that it did not allege the place of injury. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. Amendments. Delay in filing notice of amendment as ground for reversal, see PLEADING, 117. 1072. Refusal to permit the pleadings to be amended after the evidence has been con- cluded is not error, where there is no proof to support the allegations of the proposed amendment. Heath v. Potlatch Lumber Co. 27: 707, 108 Pac. 343, 18 Idaho, 42. 1073. If, on appeal, it appears that the original bill is broad enough to admit the evidence and sustain the decree pronounced, the decree will not be reversed for failure to mature an amended bill unnecessarily filed. Floyd v. Duffy, 33: 883, 69 S. E. 993, 68 W. Va. 339. 1074. A trial court does not commit preju- dicial error by denying a motion to make a complaint more definite and certain, where the facts called for are known to the mov- Digest 1-52 L.R.A.(N.S-) ing party, and the motion is apparently for the sole purpose of requiring all the facts which are to be relied upon to be stated in the complaint, in order that the action may be settled on general demurrer. Chicago, R. I. & P. R. Co. v. Martin, 27: 164, 105 Pac. 451, 81 Kan. 344. 1075. The refusal of the trial court to re- quire the plaintiff's petition to be made more definite and certain will not be dis- turbed on appeal, where it allirinatively ap- pears from the record that the defendant was not prejudiced thereby. Chic; _;o, R. I. & P. R. Co. v. Logan, Snow, & Co. 29: 663, 105 Pac. 343, 23 Okla. 707. 1076. No complaint can be ma''e of the fil- ing of an amended complaint during vaca- tion under order of court, where no harm results to the complaining party, the issue having been completed without the amend- ment. Bramblett v. Deposit Bank, 6: 612, 02 S. W. 283, 122 Ky. 324. 1077. Permitting amendment of a com- plaint after trial is not ground for reversal if the original complaint was sufficient to warrant the verdict so that the amendment was unnecessary. Estey Organ Co. v. Leh- man, ii : 254, 111 N. W. 1C97, 132 Wis. 141. 1078. The allowance, upon due notice and argument, and a long time prior to the trial, of an amendment of a complaint in an action to recover damages for delay in transportation of live stock, changing the point of destination from the end of the defendant's line, as originally alleged, to a point beyond such line, is not prejudicial to the defendant, where the amendment is in accordance with the allegations of the answer as to the place of destinat' n. and the court strictly confines the damages to the loss occasioned by the neglect of de- fendant on its own line. Fell v. Union P. R. Co. 28: i, 88 Pac. 1003, 32 Utah, 101. Striking out. Striking out, generally, see PLEADING, I. s. 1079. Refusal to compel the striking out of affirmative defenses from a division of an answer containing denials is prejudicial error where the complaint is dismissed be- cause plaintiff refuses to proceed to trial with the surplus matter in the answer. McKay v. McCarthy, 34: 911, 123 N. W. 755, 146 Iowa, 546. 1080. A judgment will not be reversed be- cause of refusal of the trial court to strike out portions of a pleading because redun- dant, or a legal conclusion, in the absence of anything to show prejudice therefrom. Smith v. Hicks, 19: 938, 98 Pac. 138, 14 N. M. 560. 1081. It is not reversible error to refuse to strike matter from an answer which may properly be considered in mitigation of damages, or the presence of which does not prejudice the complainant. McNamara v. McAllister, 34: 436, 130 N. W. 26, 150 Iowa, 243. 1082. Refusal to strike pleadings is not prejudicial error unless it results in the submission of erroneous issues to the jury. APPEAL AND ERROR, VII. m, 3. 129 Jones v. Ford, 38: 777, 134 N. W. 569, 154 Iowa, 549. 1083. There is no prejudice in striking from an answer a portion setting out an ordinance pleaded in the petition, and stating the legal rights claimed under it. Ward v. Ely-Walker Dry Goods Bldg. Co. 45: 550, 154 S. W. 478, 248 Mo. 348. 1084. Striking allegations from an answer is not prejudicial if all the evidence bear- ing upon the subject is admitted. Ward v. Ely-Walker Dry Goods Bldg. Co. 45: 550, 154 S. W. 478, 248 Mo. 348. 1085. It is not reversible error to enter- tain a motion to strike out a separate de- fense to an action at the trial, if the defense is insufficient in law and has not been de- murred to. Ampersand Hotel Co. v. Home Ins. Co. 28: 218, 91 N. E. 1099, 198 N. Y. 495. 1086. It is not prejudicial error to strike out a special plea if the facts therein set out may be proved under the general issue. Hays v. Miller, n: 748, 43 So. 818, 150 Ala. 621. 1087. It is not reversible error to strike out a plea of the statute of limitations sought to be made available before trial, where all facts bearing upon the availability of the pleading are stated in the declara- tion, and the determination of the court upon the question is reviewable at what- ever stage of the trial it is made. Snare & Triest Co. v. Friedman, 40: 367, 169 Fed. 1, 94 C. C. A. 369. Criminal cases. See also supra, 766. 1088. Summarily overruling a plea in abatement of a criminal prosecution, on the ground that there had been no preliminary examination, without requiring issue to be joined thereon, is not prejudicial error where the record transmitted by the examin- ing magistrate shows that there had been an examination and accused had been held to bail. Hack v. State, 45: 664, 124 N. W. 492, 141 Wis. 346. 3. As to evidence. a. In general; erroneous admissions. (1) In general; various particular matters. (See also same heading in Digest L.R.A. 1-10.) Errors as to, waived or cured below, see supra, VII. k, 3; infra, VII m, 3, a, (5). See also supra, 831. 1089. Defendant's failure to introduce m evidence its by-laws in an action upon a benefit certificate will not warrant a rever- sal, where breach of conditions in the certifi- cate is shown, on the theory that the by- laws may have nullified express provisions in the certificaie. Mudge v. Supreme Court Digest 1-52 L.R.A.(N.S.) 9 I. 0. F. 14: 279, 112 N. W. 1130, 149 Mich. 467. 1090. Failure to rule upon objections to jurisdiction and the admission of evidence is not fatal error, if jurisdiction exists and all evidence admitted was pertinent and competent. Haaren v. Mould, 24: 404, 122 N. W. 921, 144 Iowa, 296. 1091. The admission of evidence not le- gally prejudicial cannot be complained of. Morris v. St. Paul City R. Co. 17: 598, 117 N. W. 500, 105 Minn. 276. 1092. The erroneous admission of evidence is not reversible error if the result must have been the same had the evidence been excluded. Dumphy v. New York, N. H. & H. R. Co. 13: 1152, 82 N. E. 675, 196 Mass. 471. 1093. The erroneous admission of evidence which is harmless does not require reversal. State v. Gillies, 43:776, 123 Pac. 93, 40 Utah, 541. 1094. The admission of hearsay evidence is not available error when it is not shown to have prejudiced the complainant. National Bank v. Duff, 16: 1047, 94 Pac. 260, 77 Kan. 248. 1095. The admission of incompetent evi- dence cannot be held to be harmless if it may have led to the verdict. Zucker v. Whitridge, 41 : 683, 98 N. E. 209, 205 N. Y. 50. 1096. The erroneous admission, in an ac- tion against an alleged seller of wood alco- hol, the use of which caused the death of the purchaser, who had asked for and sup- posed he had bought grain alcohol, of a statement of the purchaser as to where he got the liquor, constitutes prejudicial error, where the identity of the seller is a vital fact sharply in issue and necessary to sustain the plaintiff's case. Campbell v. Brown, 26: 1142, 106 Pac. 37, 81 Kan. 480. 1097. A judgment based on a verdict for a lump sum must be reversed where the com- plaint seeks damages for a lump sum on different grounds, and incompetent evidence is admitted over objection in support of any one of them. Howe v. Frith, 17: 672, 95 Pac. 603, 43 Colo. 75. 1098. Where parol evidence as to the con- tents of writings is properly objected to, . it is error to admit it, even though in doing so the trial judge permits its intro- duction subject to being held of no probai- tive value if contradicted by the writings when they are subsequently introduced, as parol evidence is never admissible where there is higher written evidence obtainable. North Georgia Mill. Co. v. Henderson Ele- vator Co. 24: 235, 60 S. E. 258, 130 Ga. 113. 1099. Admitting evidence that witnesses who testify to the amount of damage for injury to a house by removing the coal be- neath it base their estimate partly on what it would cost to move the house and put a new foundation under it, is not prejudicial error, in an action to recover the damages from the one responsible for the injury. 130 APPEAL AND ERROR, VII. m, 3. Collins v. Gleason Coal Co. 18: 736, 115 N. W. 497, 140 Iowa, 114. 1100. It is not reversible error to permit a witness in an action by a servant to hold his master liable for personal injuries, who testifies as to measurements taken immedi- ately after the accident, to state that he was a member of a committee whose duty it was to investigate the circumstances of accidents, and that he took the measure- ments in making such examination. Duffey v. Consolidated Block Coal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. 1101. In an action for injury to a railroad employee through the burning of a trestle, it is error to admit evidence that, months before, quantities of drift wood had float- ed and lodged against the trestle, under a promise to show that the conditions contin- ued until the time of the accident, if the promise is not fulfilled, so that it does not appear that such condition continued. Root v. Kansas City S. R. Co. 6: 212, 92 S. W. 621, 195 Mo. 348. 1102. Admitting expert testimony upon the question of the dangerous character of a machine at which a minor is set at work, in an action by him to hold his employer liable for an injury, is not reversible error where the machinery is so dangerous that the court will take judicial notice of the danger. Braasch v. Michigan Stove Co. 20: 500, 118 N. W. 366, 153 Mich. 652. 1103. Error in admitting evidence in an action for personal injuries caused by the dropping of the lever or boom rail of a derrick, that the defendant's servant, who was operating the derrick, upon witnessing the accident, exclaimed that "the damn thing was about wore out anyhow, and they would keep running it until they killed somebody," is prejudicial and ground for reversal. Illinois C. R. Co. v. Lowery, 49: 1149, 63 So. 952, 184 Ala. 443. 1104. The admission of evidence in an ac- tion against an electric light company for the death of a person because of grounded current, that there were means by which the grounded portion might have been cut out, is not prejudicial, where the company had, before turning the current into the cir- cuit containing the ground, concluded that the ground was not located there, so that it would not have made use of such appli- ances had they been part of its equipment, flarrison v. Kansas City Electric Light Co. 7: 293, 93 S. W. 951, 195 Mo. 606. 1105. There is no prejudicial error in ad- mitting evidence in rebuttal as to the man- ner of fastening the trolley rope some time after an accident was caused by one left lying on the car floor, in an action to hold the company liable for such injury, where the company had offered evidence as to the custom of fastening ropes, which extended over a long period of time. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 1106. The erroneous admission, in an ac- tion against a street car company to recover damages for the death of a person killed on the track, of evidence of a statement by Digest 1-52 L.R.A.(N.S.) the conductor at the time of the accident admonishing the motorman to make no state- ment, is not sufficiently prejudicial to re- quire a reversal of a judgment against the company. Louisville R. Co. v. Johnson, 20: 133, 115 S. W. 207, 131 Ky. 277. 1107. The admission of evidence of condi- tions of ill health and sickness in the family of one for whose death the action is brought, subsequent to his death, the direct and inevitable tendency of which was to arouse the sympathy of the jury to the end that they might improperly enhance the amount of damages to be awarded beyond what the competent evidence in the case would have permitted, is prejudicial error. Simoneau v. Pacific Electric R. Co. 49: 737, 136 Pac. 544, 166 Cal. 264. 1108. The admission of evidence relating to the pecuniary ability of the father of an infant suing for damages for personal in- juries, is not reversible error, if it does not clearly appear that but for such evidence the result might have been more favorable to the complaining party. Kelly v. South- ern Wisconsin R. Co. 44: 487, 140 N. W. 60, 152 Wis. 328. 1109. The admission in evidence of an en- try of temperature in a private diary of a person since deceased, in an action to re- cover damages for injuries caused by a fall upon a ridge of ice on the sidewalk, is prej- udicial. Arnold v. Hussey, 51: 813, 88 Atl. 724, 111 Me. 224. 1110. Permitting evidence of defendant's refusal to settle in an action to hold the owner of an automobile liable for injuries due to collision with a pedestrian, after striking evidence that he refused to do so because his liability insurance contract pre- vented such action, is error, although no mention is made in the testimony admitted of such insurance. Birch v. Abercrombie, 50: 59, 133 Pac. 1020, 74 Wash. 486. 1111. In an action against a railroad com- pany for damages for personal injuries, it is prejudicial error to allow the plaintiff to testify as to the quantum of damages sustained, as it is an invasion of the prov- ince of the jury. Chicago, R. I. & P. R. Co. v. Teese, 52: 167, 140 Pac. 1166, 42 Okla. 188. 1112. In an action on a life insurance policy, where one of the defenses set up in the answer is that the insured had falsely and fraudulently answered certain questions propounded to him in his application for insurance, it is error to admit evidence to the effect that the general reputation of the insured for being a truthful and honest man in the neighborhood in which he re- sided was good, for the purpose of rebutting direct evidence tending to establish the allegation of fraud. Great Western L. Ins. Co. v. Sparks, 49: 724, 132 Pac. 1092, 38 Okla. 395. 1113. The admission of evidence of a cus- tom of various agents of a carrier in receiv- ing and checking baggage, contrary to the provisions of a contract between the car- rier and the holder of a ticket is error, where it is not shown that the custom of APPEAL AND ERROR, VII. m, 3. 131 such agents was expressly or impliedly known to, and acquiesced in by, the govern- ing officials of the carrier. Southern R. Co. v. Dinkins & D. Hardware Co. 43: 806, 77 S. E. 147, 139 Ga. 332. 1114. It is not reversible error to permit an admission of fairness in the publication of the final proceedings in a libel suit to take the place of proof of such publication, in an action for libel growing out of the former proceedings. Meriwether v. George Knapp & Co. 16: 953, 109 S. W. 750, 211 Mo. 199. 1115. The admission of incompetent evi- dence on the question of the sanity of one being sued for divorce because of charges against his wife cannot be held to be harm- less because he did not claim to be sane, if it does not appear that it did not weigh with the court in reaching its conclusion. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. 1116. In a will contest in which there was no evidence that contestant was not tes- tator's son, it is not prejudicial to permit him to show that he resembled testator. O'Dell v. Goff, 10 : 989, 112 N. W. 736, 149 Mich. 152. 1117. On the trial of an action brought up- on a promissory note, the execution of which is denied by the defendant, who testifies as a witness in his own behalf, it is reversible error to permit him to introduce evidence of his general reputation for truth and veraci- ty, where his testimony is not impeached in any manner recognized by the rules of evi- dence. First Nat. Bank v. Blakeman, 12: 364, 91 Pac. 868, 19 Okla. 106. 1118. Admission, in an action on a bond given to secure the release of a lien im- posed on real estate, of recitals in the re- lease deeds, to the effect that the debt se- cured by the lien was discharged, although it was not binding on the obligor in the bond, is not prejudicial error where the legal effect of the transaction was to ef- fect such discharge. Barnes v. Crockett, 3&: 464, 68 S. E. 983, 111 Va. 240. Ci-'minal cases. Error cured by instruction, see infra, 1199. See also infra, 1149-1153, 1174-1177, 1274. 1119. Where the legal evidence in a case conclusively shows that a defendant is guil- ty, and where the jury could not rationally arrive at any other conclusion, ordinarily errors committed by the trial court in the introduction or rejection of evidence will become immaterial, and will not constitute grounds for reversal. Woody v. State, 49: 479, 136 Pac. 430, 10 Okla. Crim. Rep. 322. 1120. Technical errors in rulings on evi- dence, which do not result in prejudice to the accused, and which can in no reasonable way affect the result of the trial, are not sufficient basis for granting a new trial in criminal prosecutions. State v. Gardner, 2: 49, 104 N. W. 971, 96 Minn. 318. 1121. The conclusion of a trial court that dying declarations were admissible in evi- dence will not be disturbed on appeal, unless it is manifest that the facts did not war- Dieest 1-52 L.R.A.(N.S.) rant the conclusion. Gipe v. State, i: 419, 75 N. E. 881, 165 Ind. 433. 1122. The admission in rebuttal upon the trial of one accused of murder, of evidence denying that the deceased had driven up to the scene of the tragedy and stated that he had a gallon of whisky and nothing to do but ride around and drink it, as testified to by the accused, is not reversible error. Lindsay v. State, 50: 1077, 63 So. 832, 66 Fla. 341. 1123. It is reversible error in the trial of a prosecution for homicide for the court to admit testimony as to declarations between an officer who had accused under arrest and the state's witnesses, or other persons, in the presence of the accused, tending to con- nect him with the offense charged, and that the accused remained silent as to such dec- larations. Vaughan v. State, 42: 889, 127 Pac. 264, 7 Okla. Crim. Rep. 685. ( Annotated ) 1124. Error in receiving evidence of declarations of one conspirator in the other's presence, charging him with the crime, in a trial of the latter, is harmless where his responses contained counter- charges. People v. Friedman, 45: 55, 98 N. E. 471, 205 N. Y. 161. 1125. The admission of evidence of the finding of footprints at the place where a crime was alleged to have been committed is reversible error where it is not shown that they corresponded in any way with any shoes ever worn by the accused, and the only fact that tended to connect him with them was that they led in the direc- tion of his house. Kinnan v. State, 27: 478, 125 N. W. 594, 86 Neb. 234. 1126. The introduction in evidence in a criminal prosecution of the record of a de- cree in equity against accused, founded on ex parte affidavits, of which such affidavits form a part, is prejudicial to accused, under the constitutional provision giving him the right to be confronted by the witnesses against him. State v. Weil, 26: 461, 65 S. E. 634, 83 S. C. 478. 1127. In the absence of a showing that the bloody and soiled clothing of the de- cedent would tend to throw light upon some material inquiry in the case, the introduc- tion of it in evidence upon the trial of the accused in a homicide case is error. Flege v. State, 47: 1106, 142 N. W. 276, 93 Neb. 610. 1128. The admission in evidence upon a trial for homicide, where the only question before the jury is whether or not the de- fendant committed the murder, of the clothing of the deceased, which in no way tends to identify the murderer, but tends merely to excite the passions and inflame the minds of the jurors, is error. McKay v. State, 39: 714, 132 N. W. 741, 135 N. W. 1024, 90 Neb. 63, 91 Neb. 281. 1129. Evidence that another check drawn by accused was not paid, without showing that there were no funds to meet it, is prejudicial in a prosecution for obtaining money on a bad check, where accused tes- tifies that he thought he had made arrange- 132 APPEAL AND ERROR, VII. m, 3. ments for the payment of the check for the making of which he is on trial. State v. Foxton, 52: 919, 147 N. W. 347, Iowa, Equity case. 1130. An equity case will not be reversed because of admission of incompetent evi- dence, but such evidence will be disregard- ed, and such judgment rendered as equity and justice may require. Home Teleph. Co. v. Carthage", 48: 1055, 139 S. W. 547, 235 Mo. 644. (2) Immaterial; admitted or uncon- troverted facts. (See also same heading in Digest L.R.A. 1-70.) 1131. The admission of immaterial evi- dence will not require a reversal if it is nonprejudicial. Duffey v. Consolidated Block Coal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. 1132. Admisssion of proof of local custom as to the right of inspection by the pur- chaser of a crop, if error, is immaterial, where such right is given by the contract as practically interpreted by the parties. Mitau v. Roddan, 6: 275, 84 Pac. 145, 149 Cal. 1. 1133. The admission of evidence as to the use of a machine after suit brought for its price is immaterial where the buyer had accepted it before suit brought. Fred W. Wolf Co. v. Monarch Refrigerating Co. 50: 808, 96 N. E. 1063, 252 111. 491. 1134. In an action for damages for wrong- ful refusal to send a telegram notifying the sender's husband of the sickness of their child, there is no prejudicial error in ad- mitting evidence of why the child was buried so soon after its death. Cordell v. Western U. Teleg. Co. 22: 540, 63 S. E. 71, 149 N. C. 402. 1135. The admission in evidence of an in- sufficiently proved letter is not prejudicial error if it throws no particular light on the real question in issue. Rose v. Monarch, 42: 660, 150 S. W. 56. 1136. The admission of evidence to the ef- fect that there were several departments in defendant's department store is nonpreju- dicial in an action by an employee of the ladies' suit department, to hold the em- ployer liable for injury due to the negli- gence of the elevator operator, under a statute making the employer liable for in- juries to one employee through the negli- gence of another in a different department of service. Judd v. Letts, 41: 156, 111 Pac. 12, 158 Cal. 359. 1137. The admission in an action by county commissioners to hold a railroad company liable for personal injuries for which they had been compelled to pay, be- cause of a defect in a highway alleged to have been due to the act of the railroad company, of an agreement made after the accident undertaking to relieve the rail- road company from further liability after Digest 1-52 L.R.A.(N.S.) making certain changes in a highway, is not, although irrelevant, prejudicial error, because having no tendency to prejudice defendant's case. Baltimore & 0. R. Co. v. Howard County Comrs. 40: 1172, 73 Atl. 656, 111 Md. 176. 1338. Refusal of the trial court, which is hearing a case without a jury, to strike evidence which is incompetent because not responsive to the question asked, is not ground for reversal where it is apparent that such evidence was not regarded by the court as a material factor in the determi- nation of the facts found, which are sus- tained by competent evidence. Re Fallen, 32: 486, 124 N. W. 994, 110 Minn. 213. 1139. The verdict of a jury will not be reversed on account of the admission of improper testimony or the giving of an er- roneous instruction, when it clearly appears that if such evidence had been excluded and such instruction refused the result could not thereby have been changed. State v. Davis, 32: 501, 69 S. E. 939, 68 W. Va. 142. 1140. In an action for trespass and as- sault, the admission of evidence as to state- ments of a doctor as to the remedy when administering a drug to quiet the wife of the one against whom the demonstration was made is harmless if erroneous. Saund- ers v. Gilbert, 38: 404, 72 S. E. 610, 156 N. C. 463. 1141. Error in the admission of evidence on the question of the value of personal property sold by the plaintiff to the defend- ant is immaterial, where it would be errone- ous not to direct a verdict in the plaintiff's favor for the contract price of the property. Kelly v. Pierce, 12: 180, 112 N. W. 995, 16 N. D. 234. 1142. The admission, in a proceeding to condemn a right of way for a railroad, of evidence as to the practicability of another route, is harmless, where the jury finds the route selected to be necessary. Boyne City, G. & A. R. Co. v. Anderson, 8: 306, 109 N. W. 429, 146 Mich. 328. 1143. The erroneous admission in evi- dence of a conversation between a man and his wife is not reversible error, if the fact sought to be established by it was not in dispute. Neice v. Chicago & A. R. Co. 41: 162, 98 N. E. 989, 254 111. 595. 1144. The erroneous admission of evidence as to a woman's title to personal property is immaterial in an action by her personal representative to recover it from grantees of her husband, who claimed under her will. Hopkins v. Hey wood, 49: 710, 86 Atl. 305, 86 Vt. 486. 1145. Receipt in evidence of a telegram from a ticket agent, stating the sale of a ticket to a member of a party calling for transportation to a certain station, in an action to hold the carrier liable for refusing to carry the one for whom it was intended to such station, is not prejudicial where counsel has admitted the fact at the trial. Light v. Detroit & M. R. Co. 34: 282, 130 N. W. 1124, 165 Mich. 433. 1146. In an action for the negligent fail- ure of a carrier properly to bed a car so APPEAL AND ERROR, VII. m, 3. 133 that it would be reasonably safe for the transportation of stock, where the proof is undisputed that the car was unsafe because of improper bedding, testimony concerning the custom of the carrier in preparing other cars for like shipments, if irrelevant, i without prejudice to defendant. Allen v. Chicago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. 1147. Permitting an incompetent witness to testify to the possibility of purifying mine water before casting it into a stream is immaterial, where the miner would be liable for the consequent injury, even if it was impossible to purify it. Arminius Chemical Co. v. Landrum, 38: 272, 73 S. E. 459, 113 Va. 7. 1148. Admitting, in an action to hold a connecting express company liable for fail- ure to deliver a package to the consignee according to a contract made with the initial company, evidence of a telegraph notifica- tion of the terms of the contract which was received by the telegraph agent at destination, who was also the express agent, is not prejudicial error, since the company was bound to ascertain the terms of the contract before accepting the package for transportation. Alcorn v. Adams Express Co. 52: 858, 146 S. W. 747, 148 Ky. 352. (Annotated) Criminal cases. 1149. Error in permitting to come to the attention of the jury evidence of the cir- culation, after the offense occurred, of a pe- tition demanding the discharge from his em- ployment of one accused of assaulting his child, is not prejudicial, where accused has practically admitted his guilt as charged. People v. Green, 21:216, 119 N. W. 1087, 155 Mich. 524. 1150. Upon trial of one for forging checks of a corporation, the de facto existence of which is not disputed, defendant is not prejudiced by the introduction in evidence of its articles of incorporation, which are not admissible in evidence because not at- tested as required by statute. State v. Brown, 24: 545, 102 Pac. 641, 36 Utah, 46. 1151. Whether or not one mailing a letter giving information as to where an abortion would be performed, contrary to statute, had a physician's sign on his office, is im- material, and it is not error to refuse to permit a witness to be recalled for cross- examination on that question. Kemp v. United States, 51: 825, 41 App. D. C. 539. 1152. The admission in evidence, in favor of the state, upon the trial of one accused of homicide, of testimony given by a wit- ness upon a former trial upon a showing that a subpoena had been issued for the witness and had been returned indorsed by the sheriff of the county that the said wit- ness could not be found in the county is not reversible error where the accused, upon taking the witness stand, admitted the ma- terial facts as testified to by the witness, to be true. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. 1153. Where a defendant was convicted of killing his wife upon the testimony of a Digest 1-52 L.R.A.(N.S.) fellow prisoner in the jail, as well as upon circumstantial evidence in harmony with such admissions, the conviction will not be i set aside because the trial court allowed a magnifying glass to be put in evidence and taken to the jury room, where such glass had been used upon the trial by ex- perts to discover blood stains upon de- fendant's garments. State v. Cerciello (N. J. Err. & App.) 52: 1010, 90 Atl. 1112, 86 N. J. L. 309. 1154. One who is shown to be guilty of as- saulting an officer in the discharge of his duty, upon his own evidence, cannot secure a reversal of the conviction because improp- er evidence was admitted for the impeach- ment of one of his witnesses. Dotterer y. State, 30: 846, 88 N. E. 689, 172 Ind. 357. 1155. The part of a conversation with a person since deceased which was introduced in evidence upon the trial of one accused of inflicting the injuries from which the deceased died, for the purpose of identifica- tion, which extended beyond the point of identification and was either corroborative of what the deceased had previously said as a part of the res gestce, or which was irrelevant to any issue in the prosecution, is without prejudice. State v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. (3) Facts otherwise proved. (See also same heading in Digest L.R.A. 1-70.J ' . j.. See also infra, 1181. 1156. The admission of evidence cannot be complained of when the fact was otherwise made to appear in evidence, and was not in itself material. Peters v. Nolan Coal Co. 9: 989, 56 S. E. 735, 61 W. Va. 392. 1157. The admission of inadmissible, cor- roborative evidence which is merely cumu- lative, is not reversible error. State v. Rozeboom, 29: 37, 124 N. W. 783, 145 Iowa, 620. 1158. It is not error to admit evidence cor- roborative of other evidence which has been received without objection. Wells v. Hays, 42: 727, 76 S. E. 195, 93 S. C. 168. 1159. The admission of incompetent evi- dence is not reversible error, where the finding of the jury is amply supported by other evidence that was properly admitted. Farris v. Southern R. Co. 40: 1115, 66 S. E. 457, 151 N. C. 483. 1160. Error in admitting incompetent tes- timony is harmless if there is sufficient competent evidence in the record to sustain the decree. Champion v. McCarthy, n: 1052, 81 N. E. 808, 228 111. 87. 1161. It is not prejudicial error to admit incompetent evidence of a fact which has already been proven and is admitted. Haapa v. Metropolitan L. Ins. Co. 16: 1165, 114 N. W. 380. 150 Mich. 467. 1162. The erroneous admission of hearsay evidence is not prejudicial when it concerns 134 APPEAL AND ERROR, VII. m, 3. a fact as to which uncontradicted and com- petent evidence has been adduced. Rhein- heimer v. JEtna, L. Ins. Co. 15: 245, 83 N. E. 491, 77 Ohio St. 360. 1163. Error in admitting incompetent evi- dence in an action tried without a jury does not require reversal if there is abundant competent evidence to justify the finding of the court. Pratt v. Davis, 7 : 609, 79 N. E. 562, 224 111. 300. 1164. A decree in chancery will not be re- versed for error in the admission or exclu- sion of evidence if there is competent evi- dence in the record sufficient to support the decree, and excluded evidence which ought to have been considered, which if considered, would not have changed the result. Shedd v. Seefeld, 13: 709, 82 N. E. 580, 230 111. 118. 1165. The erroneous admission of evidence upon the question of damages for injury to abutting property by the construction of a viaduct jn a street is not reversible error, if there is sufficient competent evidence to sustain the verdict. Shrader v. Cleveland, C. C. & St. L. R. Co. 26: 226, 89 N. E. 997, 242 111. 227. 1166. The admission in evidence of a Bible containing only a single entry, upon the question of date of birth, is not reversible error where there is sufficient other com- petent evidence to establish that fact. Rea- gan v. United States, 44: 583, 202 Fed. 488, 120 C. C. A. 627. 1167. A judgment for plaintiff in an action against a municipal corporation to recover for negligent injuries inflicted by its agent will not be reversed because the only proofs of the agency put in by plaintiff were in- admissible declarations of the agent him- self, where defendant supplies the missing proof of agency. Hewitt v. Seattle, 32: 632, 113 Pac. 1084, 62 Wash. 377. 1168. Permitting a person injured by an- other's negligence to state his earning ca- pacity so indefinitely as to leave it uncer- tain whether it represents the value of his services or partly the profits of his busi- ness is not reversible error if there is in- dependent evidence as to the value of his services and the jury are instructed to al- low nothing for loss or profit. Walsh v. New York C. & H. R. R. Co. 37: 1137, 97 N. E. 408, 204 N. Y. 58. 1169. Permitting one injured by another's negligence to state what he would have earned in his profession in the absence of the injury is not reversible error, where de- fendant had secured th- exclusion of com- petent evidence on that question, and the estimate made is supported by the other evidence in the case. Lake Shore & M. S. R. Co. v. Teeters, 5:425, 77 N. E. 599, 166 Ind. 335. 1170. Admitting an opinion as to the speed at which a car was traveling when it collided with a vehicle is not reversible error where the physical facts shown in evidence estab- lish that the speed was excessive, so as to establish defendant's negligence. Sluder v. St. Louis Transit Co. 5: 186, 88 S. W. 648, 189 Mo. 107. 1171. In an action for the price of hay Digest 1-52 L.K.A.(N.S.) which was to be of a certain quality an error in the admission of evidence that an intend- ing purchaser from the buyer would not take it is rendered nonprejudicial by his testifying fully as a witness as to its quali- ty. Eaton v. Blackburn, 20: 53, 96 Pac. 870, 97 Pac. 539, 52 Or. 300. 1172. Errors, if any, in admitting testi- mony of the wife of one insured against ac- cidents .as to communications made to her by her husband in his last sickness, is not prejudicial where the matter vvus fully cov- ered by other uncontradicted evidence, and the communication consisted simply of com- plaints of suffering from pneumonia, which would have been the same whether the dis- ease was brought on by accident as alleged or otherwise. Western Travelers' Acci. Asso. v. Munson, i: 1068, 103 N. W. 688, 73 Neb. 858. 1173. It is not error to permit a witness to state whether or not the market price of a certain commodity differs in two cities, where that fact could be shown by proving the price in the two cities, and the evidence is elicited merely as leading \ip to more im- portant matters. Mount Vernon Brewing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. Criminal cases. 1174. A verdict of guilty will not be set aside for errors in the admission of evi- dence where the defendant has voluntarily testified in his own behalf and the facts testified to by him, as well as sufficient oth- er competent evidence, clearly show that he is guilty of the crime charged. O'Hearn v. State, 25: 542, 113 N. W. 130, 79 Neb. 513. 1175. That questions which assumed as true certain facts prejudicial to the de- fendant were asked a witness on a crim- inal trial cannot be complained of, where the witness had already given evidence sup- porting the assumption made. State v. Wolfley, 11:87, 89 Pac. 1046, 75 Kan. 406. 1176. The admission in evidence of a memorandum of bills furnished a person for the detection of robbers, upon the trial of persons apprehended for that offense, is not reversible error where the identity of the bills found in possession of the accused with those taken from the person robbed is abundantly proved. Tones v. State, i: 1024, 88 S. W. 217, 48 Tex. Crim. Rep. 363. 1177. A conviction of homicide will not be reversed because a witness is permitted to testify to another offense of the defendant prior to the killing, when a voluntary state- ment of the defendant, in which he alludes to the same charge, is read in evidence by the state without objection. State v. Spey- er, 14: 836, 106 S. W. 505, 207 Mo. 540. (4) Witnesses and their examination. (See also same heading in Digest L.R.A. 1-70.) Instructions as to credibility of witnesses, see TRIAL, 958-964. See also supra, 539, 541, 774, 777, 1175; infra, 1189. APPEAL AND ERROR, VII. m, 3. 135 1178. Error, if any, in the impeachment of a witness, is not ground for reversal, where his testimony does not present any issue material to the case. Caples v. State, 26: 1033, 104 Pac. 493, 3 Okla. Crim. Rep. 72. 1 179. A conviction will not be reversed be- cause accused was forced into trial without giving him an opportunity to procure the at- tendance of witnesses, where it appears that the witnesses named by him did not exist. Cremeans v. Com. 2: 721, 52 S. E. 362, 104 Va. 860. 1380. It is an abuse of discretion, after permitting cross-examination as to in- stances of trouble by an accused who is try- ing to establish his good character, to re- fuse him the privilege of explaining the trouble on redirect examination, and permit the state, on recross-examination, to go into the cause of the trouble. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. [Leading; questions. 1181. A case should not be reversed on ap- peal because leading questions were allowed where the answers given by the witness had already appeared by other testimony given. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. Cross-examination. See also supra, 628. 1182. Cross-examination as to matter not testified to in chief does not require re- versal regardless of its materiality. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 1183. It is not prejudicial error to permit a witness by whom the defendant in a crimi- nal case is attempting to prove good char- acter to be asked if witness and defendant had not smoked opium together in a dis- reputable resort, if the answer is no. State v. Donaldson, 20: 1164, 99 Pac. 447, 35 Utah, 96. (5) Error cured T>y instruction, ver- dict, etc, (See also same heading in Digest L.R.A. 1-10.) See also supra, VII. k, 3. 1184. The erroneous admission of evidence as to the measure of damages constitutes harmless error as to the plaintiff, where there is no liability whatever found by the jury. Puls v. Hornbeck, 29: 202, 103 Pac. 665, 24 Okla. 288. 1185. In an action against a liability in- surance company by an insured who set- tled a prior action against him for dam- ages which the insurance company wrong- fully refused to defend, the admission of the testimony of the attorney for the plain- tiff in the previous suit that, in his opinion, he would have been able to prove the alle- gations of the complaint in that case, is not prejudicial error, where the decision indi- cates that no weight was given to this testimony in so far as it related to the opinion of the witness. Butler Bros. v. Digest 1-52 I*R.A.(N.S.) American Fidelity Co. 44: 609, 139 N. W. 355, 120 Minn. 157. By withdrawing; striking out. 1186. The erroneous admission of evidence is not reversible error if it is withdrawn by the court from the consideration of the jury. American Sales Book Co. v. Whita- ker, 37: 91, 140 S. W. 132, 100 Ark. 360. 1187. The admission of erroneous evidence which was promptly stricken from the rec- ord by the court cannot be complained of. State v. Dickerson, 13: 341, 82 N. E. 969, 77 Ohio St. 34. 1188. A conviction will not be reversed be- cause of an irrelevant question put to a wit- ness, if, upon objection, it was withdrawn, the jury instructed to disregard it, and the trial judge finds that the asking of it did not render the trial unfair. State v. Du- bruiel, 25: 801, 74 Atl. 1048, 75 N. H. 369. 1189. It is error for the prosecuting attor- ney to ask his own witness if he had not stated specific facts to him out of court dif- ferent from those testified to by him, ac- companying the question by the assertion that he had done so, for the alleged pur- pose of impeachment, and by so doing get before the jury evidence that could not be secured otherwise; and it is not cured by the subsequent withdrawal of the evidence from the jury. Andrews v. State, 42: 747, 141 S. W.' 220, 64 Tex. Crim. Rep. 2. (Annotated) 1190. It is error to permit a witness to state where a person killed by a neighbor, under the mistaken belief that he was a burglar, was to spend the night, without requiring him to state the source of his information, which is not cured by striking out the testimony after it is shown that his knowledge was gained by information from decedent, where counsel elicited the testi- mony, knowing it was incompetent. Fos- ter v. Shepherd, 45: 167, 101 N. E. 411, 258 111. 164. 1191. It is reversible error to admit, in an action to hold the owner of an automobile liable for injury through collision with a pedestrian, evidence that he carried lia- bility insurance, which is not cured by striking the evidence and directing the jury to disregard it. Birch v. Abercrombie, 50: 59, 133 Pac. 1020, 74 Wash. 486. By instructions. See also supra, 1188. 1192. The introduction of improper evi- dence may be ground for reversal, although the court instructs the jury to ignore it, where counsel presses it upon the attention of the jury and they actually consider it in reaching their verdict. Brown Land Co. v. Lehman, 12: 88, 112 N. W. 185, 134 Iowa, 712. 1193. Error in admitting evidence of an element of damages not alleged in the com- plaint is not reversible if the jury are in- structed to disregard it and the verdict shows that it did not enter into the re- covery. Howard v. Washington Water Power Co. 52: 578, 134 Pac. 927, 75 Wash. 255. 136 APPEAL AND ERROR, VII. m, 3. 1194. A statement in the charge that testi- mony of plaintiff's sickness going to the amount of damages in a libel suit was stricken out and should be ignored cures the error of its admission, where the ver- dict is not so great as to excite the sus- picion that the defendant may have been aggrieved in the matter. Lundin v. Post Pub. Co. 52: 207, 104 N. E. 480, 217 Mass. 213. 1195. An instruction not to regard evi- dence of defendant's wealth in an action for damages for alienation of affections does not cure error in admitting it, if from the size of the verdict, it is evident that it was not obeyed. Phillips v. Thomas, 42: 582, 127 Pac. 97, 70 Wash. 533. 1196. Error in receiving evidence of the in- tention of the parties with respect to a written contract does not require a reversal, if the construction given by the court to the contract was in exact harmony with the legal construction of the instrument. Brown v. Vermont Mut. F. Ins. Co. 29:698, 74 Atl. 1061, 83 Vt. 161. 1197. The admission in an action by a servant of a street railroad company to hold the master liable for injury caused by the negligence of a fellow servant who, was al- leged to be incompetent, of incompetent evidence as to the making of complaints to an officer having no authority to discharge him, is reversible error, although the jury are instructed to consider it merely as to a subordinate fact, if they are permitted to consider it on the question of notice to the company of such incompetence, and the of- ficer alleged to have received the notice is made a witness and obliged to meet the testimony, which might destroy his value as a witness. Rosenstiel v. Pittsburg Rail- ways Co. 33: 751, 79 Atl. 556, 230 Pa. 273. 1198. Error in admitting in evidence a written statement of those in charge of a street car which was in an accident, in an action to hold the street car company liable for injuries thereby, is not cured by a charge to the effect that it is admitted only to contradict such persons' testimony as witnesses in the case, where, as to one of the witnesses, it was not admissible for that purpose because he had never adopted it by signing it, and it contains matters preju- dicial to the objecting party other than those which are merely contradictory while, in a portion of the charge, the jury are authorized to use it as substantive evi- dence. Boyle v. Boston Elevated R. Co. 33: 552, 94 N. E. 247, 208 Mass. 41. 1199. Upon the question of perjury on the part of one who swore that certain per- sons were properly registered as voters from a certain place, the admission of evidence of a prior conversation tending to show that he knew that they could *iot properly register from that place is not prejudicial error, although it contains statements tend- ing to show the commission of another crime, if the jury is cautioned to disregard that portion of it. People v. Cahill, 20: 1084, 86 N. E. 39, 193 N. Y. 232. Digest 1-52 L.R.A.(N.S.) b. Erroneous exclusion. (See also same heading in Digest L.R.A. 1-10.) Presumption as to exclusion of, on appeal, see supra, 449. Curing error as to, below, see supra, 842- 844. See also supra, 167, 1164. 1200. The exclusion of immaterial evi- dence is not erroneous. Western U. Teleg. Co. v. Milton, ii : 560, 43 So. 495, 53 Fla. 484. 1201. The erroneous exclusion of evidence cannot be successfully complained of when not prejudicial. State use of Hart-Parr Co. v. Robb-Lawrence Co. 16: 227, 115 N. W. 846, 17 N. D. 257. 1202. The erroneous exclusion of evidence is not available error, where no sufficient offer to prove was made. Grimestad v. Lo- gren, 17: 990, 117 N. W. 515, 105 Minn. 286. 1203. Error in the rejection of evidence does not require reversal if, upon the record, the result would not have been changed had the evidence been admitted. Kuhl v. Cham- berlain, 21:766, 118 N. W. 776, 140 Iowa, 546. 1204. The exclusion of a question is not error, in the absence of anything to show what the answer would be. Beauregard v. Benjamin F. Smith Co. 45: 200, 100 N. E. 627, 213 Mass. 259. 1205. Error cannot be predicated upon the refusal of the court to permit witnesses to answer questions propounded to them, where no offer of proof was made, and it does not appear that the appellant was in any way prejudiced by the rulings complained of. Madson v. Rutten, 13: 554, H3 N. W. 872, 16 N. D. 281. 1206. The exclusion of testimony which is material on the theory on which the case is finally submitted to the jury is error. Brown Land Co. v. Lehman, 12: 88, 112 N. W. 185, 134 Iowa, 712. 1207. A recital by a trial judge who has erroneously rejected evidence, that the de- cree should be the same whether th evi- dence was admitted or rejected, will not prevent a reversal. Blount v. Blount, 21: 755, 48 So. 581, 158 Ala. 242. 1208. Rejection of competent evidence is not reversible error if with it in the record the evidence would not be sufficient to estab- lish the issue which it was offered to sup- port. Shaw v. Lobe, 29: 333, 108 Pac. 450, 58 Wash. 219. 1209. It is not prejudicial error to exclude from evidence a plaintiff's conclusior as to the fact to be determined by the jury, where the facts are fully in evidence. Rudd v. Byrnes, 26: 134, 105 Pac. 957, 156 Cal. 636. *1210. A party is not prejudiced by the wrongful refusal of the trial court to per- mit a witness to testify as to whether he wishes his testimony previously given in the same cause to stand. McClain v. Lew- iston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. APPEAL AND ERROR, VII. m, 3. 137 1211. It is not error to refuse to allow a repetition of evidence which had already been once admitted and afterwards proper- ly stricken. United Hardware-Furniture Co. v. Blue, 35: 1038, 52 So. 364, 59 Fla. 419. 1212. Permitting the introduction in evi- dence of the answer to one of several inter- rogatories, without admitting the answers to other interrogatories admissible under a statute providing that the written answers to written interrogatories submitted before trial upon any matter material to the issue shall be evidence in the action if offered by the party proposing the interrogatories, does not constitute error where there was no showing or offer to show, either on the trial or on appeal, that the remaining an- swers were material to the issue, or that they tended to explain, qualify, or limit the answer admitted. Cetofonte v. Camden Coke Co. (N. J. Err. & App.) 27: 1058, 75 Atl. 913, 78 N. J. L. 662. 1213. Rejection of a particular offer of evi- dence is not reversible error if the party has been accorded every reasonable oppor- tunity for showing facts which would be likely to aid the jury to reach a correct conclusion upon the issue involved. Walters v. Spokane International R. Co. 42: 917, 108 Pac. 593, 58 Wash. 293. 1214. It is not error to exclude evidence of remarks by a witness to plaintiff, to which plaintiff did not reply, if there is nothing to indicate that an unfavorable inference should be drawn against plaintiff because of his silence. Miller v. Pearce, 43: 332, 85 Atl. 620, 86 Vt. 322. 1215. Where a motion was made during the trial of a civil action before a jury, to strike the testimony of a certain witness given on a specified day, and the testimony given on that day by such witness was all that he gave in the case, it cannot be said on appeal that the motion to strike was directed to a part only of such evidence, and that a valid portion thereof was not understood as having been stricken, where there is nothing in the record showing that the motion was limited, so as to render the granting of the motion harmless error, as the jury must be considered as having understood that it included all the testi- mony of such witness. Chicago, M. & St. P. R. Co. v. Westby, 47: 97, 178 Fed. 619, 102 C. C. A. 65. 1216. A defendant is not prejudiced by the refusal of the trial court to order into court a deposition which had been taken by the plaintiff upon notice, as provided by stat- ute, but which had not been filed one day before trial, as required by statute, in or- der to make it admissible, at his applica- tion, made during the progress of the trial, where he could, by the exercise of diligence, have discovered the failure to file in season to have obtained the desired evidence in the manner prescribed by statute. Chicago, R. I. & P. R. Co. v. Martin, 27: 164, 105 Pac. 451, 81 Kan. 344. 1217. Refusal to permit a witness to tes- tify because he remained in the court room Digest 1-52 L.R.A.(N.S.) during the opening statements by counsel after the witnesses had been put under the rule and excluded cannot be held to be error on appeal, in the ab3ence of anything to show to what he was expected to testify. Meyers v. Duddenhauser, 5: 727, 90 S. W. 1049, 122 Ky. 866. 1218. The exclusion from evidence of the opinion of a witness as to a fact in contro- versy in a case is immaterial if the jury finds in accordance with the contention of the party offering it. Indianapolis Traction & T. Co. v. Kidd, 7: 143, 79 N. E. 347, 167 Ind. 402. 1219. Error in excluding evidence of a wit- ness tending to show interest does not call for reversal if the evidence would not have added anything to what was already before the jury! State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. 1220. The enforcement in a damage suit of a rule limiting the number of witnesses on the question of damages to four on each side, which was promulgated while plain- tiff's third witness on that question was un- der examination, is reversible error. St. Louis, M. & S. E. R. Co. v. Aubuchon, 9: 426, 97 S. W. 867, 199 Mo. 352. 1221. Rejection of evidence as to the ac- tual transaction which resulted in the re- lease of a lien and execution of a bond is not prejudicial error in an action on the bond, where it could not have affected the legal effect of the transaction. Barnes v. Crockett, 36: 464, 68 S. E. 983, 111 Va. 240. 1222. Rejection of testimony, of an expert as to what is shown by certain account books is not reversible error if the books themselves were before the court and failed to show facts sufficient to establish the issue which they are offered to establish. Shaw v. Lobe, 29: 333, 108 Pac. 450, 58 Wash. 219. 1223. It is not reversible error to refuse to permit a witness who has testified as to the condition of weather on a certain day, to state whether or not he would call it a fair day, since the jury are able, from his de- scription, to determine that fact for them- selves. Pratt v. North German Lloyd S. S. Co. 33: 532, 184 Fed. 303, 106 C. C. A. 445. 1224. The decision of the trial judge in ex- cluding expert evidence of the value of land as a source of water supply, in a proceed- ing to secure compensation for it after it has been taken by right of eminent domain, will not be reversed unless plainly wrong. Sargent v. Merrimac, u: 996, 81 N. E. 970, 196 Mass. 171. 1225. The exclusion of a question as to the position of a person in another's house- hold is not prejudicial error to the for- mer in a suit upon a note given by the lat- ter, where the witness had stated what claimant did there, and witness had not been there for twenty-five years and then very seldom. Harper v. Davis, 35: 1026, 80 Atl. 1012, 115 Md. 349. 1226. It is not reversible error to exclude evidence of declarations of a deceased per- son that, when he came into the country, 138 APPEAL AND ERROR, VII. m, 3. he had very little property, upon the ques- tion of whether or not money left by him was community, where the period referred to was sixteen years before his marriage. Re Pepper, 31: 1092, 112 Pac. 62, 158 Cal. 619. 1227. It is not reversible error to refuse to permit a question to be put to a witness who was a bystander at a time when a horse was injured, as to a remark which he made to the driver, if it is not made to appear that the expected answer would be relevant to any issue in the case. Weller v. Camp. 28: 1106, 52 So. 929, 169 Ala. 275. 1288. In an action to recover damages for the destruction of a well, the exclusion of evidence that a supply of water might have been procured from other sources which did not belong to plaintiffs is not prejudicial error if plaintiffs' recovery is for only $250. Patrick v. Smith, 48: 740, 134 Pac. 1076, 75 Wash. 407. 1229. One accused of assault with intent to murder, who has admitted that he had some feeling against his victim, is not pre- judiced by not being permitted to testify as to whether or not he suspected criminal intimacy between his own wife and the victim, since this testimony would not af- fect the intent with which the crime was committed. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 1230. The exclusion, in a bastardy proceed- ing, of evidence that complainant denied, up to the date of her confinement, that she was pregnant, is not error. Johnson v. Walker, i : 4)0, 39 So. 49, 86 Miss. 757. 1231. Where the only fact offered to be proved by a physician, which was excluded by the court, was that he was present at the time plaintiff's leg was amputated; and no offer was made to prove or disprove by the witness any fact in issue in the case, there was no error in the exclusion of the testimony. Smart v. Kansas City, 14: 565, 105 S. W. 709, 208 Mo. 162. 1232. The exclusion of evidence of an as- sistant surgeon at an operation, tending to corroborate the evidence of the one who per- formed the operation, as to conditions found which bear upon the liability of another physician for malpractice, cannot, where the verdict was against defendant, be held non- prejudicial, if it was properly admissible, on the theory that it was merely cumula- tive. Capron v. Douglass, 20: 1003, 85 N. E. 827, 193 N. Y. 11. 1233. Exclusion of evidence that after an assault, and the starting away of the as- sailant, the victim picked up a rack con- taining a small roll of wrapping paper, in an action to recover damages for the as- sault, is not reversible error, although the act might be regarded as res gestce. Mat- suda v. Hammond, 51: 920, 137 Pac. 328, 77 Wash. 120. 1234. The exclusion in a will contest of testimony as to the contents of a former will is not rendered harmless by the fact that the testimony was not made to appear relevant or material, where nothing could be ascertained as to its character because of Digest 1-52 L.R.A.(N.S.) the rulings of the court. Re Young, 17: 108, 94 Pac. 731, 33 Utah, 382. 1235. Refusal to permit municipal author- ities to state whether or not they would have permitted machinery to be placed by a contractor in the electric plant which he was constructing for the municipality, and payment to be made for it, if they had had knowledge that it was purchased by him on condition, in an action by the manu- facturer for its conversion by the city, is not reversible error. Allis-Chalmers Co. v. Atlantic, 52: 561, 144 N. W. 346, 164 Iowa, 8. 1236. Exclusion of evidence of nervous shock on the part of plaintiff in an action of trespass quare clausum is not error, where she does not show a right to main- tain the action. Munsey v. Hanly, 13: 209, 67 Atl. 217, 102 Me. 423. 1237. Refusal to permit one accused of slander to testify as to absence of intent to injure the person slandered is not preju- dicial error where the testimony given is utterly irreconcilable with any theory of the presence of such intent. Fleet v. Tichenor, 34: 323, 104 Pac. 458, 156 Cal. 343. 1238. In an action for defamation it is not prejudicial error to exclude evidence showing the defendant's good faith and the absence of malice, where the recovery is limited by the charge of the court to com- pensatory damages. Dodge v. Oilman, 47: 1098, 142 N. W. 147, 122 Minn. 177. 1239. Exclusion of evidence that an opera- tor to whom a telegram was delivered for transmission did all he could to get into communication with an intermediate termi- nal without success is not prejudicial error against the telegraph company, because it is answerable for the negligence of those in charge of the latter office the same as it would have been for those to whom the mes- sage was tendered. Maley v. Western U. Teleg. Co. 49: 327, 130 N. W. 1086, 151 Iowa, 228. Personal injury cases. 1240. It is not error, in an action against a city for injury sustained by one falling on a slippery walk, to exclude evidence of an ordinance which requires removal of snow from walks within twelve hours after it has ceased to fall, where the failure to remove the snow within a reasonable time is not shown to have been a contributing cause to the injury. Beirness v. Missouri Valley, 51:218, 144 N. W. 628, 162 Iowa, 720. 1241. It is harmless error in an action for damages for negligently permitting a dog on a race track, to the injury of a partici- pant in a race, to exclude evidence as to whether or not plaintiff had not said while in the hospital after the accident that he did not blame anyone for the dog being on the track or the accident, as such statement, if made, would not prevent recovery if the facts showed a legal liability on the part of the defendants for the injuries sustained. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. APPEAL AND ERROR, VII. m, 3. 139 1242. Striking out the testimony of the conductor of a train upon an issue made by the pleadings, tried by the evidence, and submitted to the jury, as to whether or not such train was executing a switching move- ment at the time the accident complained of occurred, is reversible error. Chicago, M. & St. P. R. Co. v. Westby, 47: 97, 178 Fed. 619, 102 C. C. A. 65. 1243. It is not reversible error to exclude evidence that it is dangerous for a run- ning train to strike a hand car, in an action to hold a railroad company liable for injury to an engineer through the derail- ment of his train by a broken rail, the only notice of which was the fact that a hand car stood on the track at that place. Chi- cago G. W. R. Co. v. McCormick, 47: 18, 200 Fed. 375, 118 C. C. A. 527. 1244. The exclusion of a question as to who was doing the work, for an accident to an employee in which a certain person was alleged to be responsible, is not error if wit- ness is permitted to state all the facts and circumstances bearing upon the matter. Beauregard v. Benjamin F. Smith Co. 45: 200, 100 N. E. 627, 213 Mass. 259. 1245. Refusal to admit evidence, in an action to recover for the conscious suffering prior to death of one injured by another's negligence, that members of the family had died of tuberculosis, for the purpose of rais- ing the presumption that the injured person died of that disease, is not reversible error. Dickinson v. Boston, i: 664, 75 N. E. 68, 188 Mass. 595. Criminal cases. See also supra, 1229; infra, 1259, 1266- 1268. 1246. Rejection of letters from deceased to accused is not reversible error when offered to show their feelings toward each other, upon trial of a man for murder of his wife, where the jury convicts him of manslaugh- ter involving sudden passion. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. Established by other proof. 1247. Refusing to permit a witness to an- swer a question is not error where the fact has been testified to by other witnesses and the additional testimony would not have affected the result. Teakle v. San Pedro, L. A. & S. L. R. Co. 10 : 486, 90 Pac. 402, 32 Utah, 276. 1248. Exclusion of evidence tending to prove a fact which is admitted or estab- lished by other evidence is not prejudicial error. Nashville Lumber Co. v. Busbee, 38: 754, 139 S. W. 301, 100 Ark. 76. 1249. Sustaining an improper objection to a question asked a witness constitutes harmless error where the witness had al- ready given an answer to the question. United Hardware-Furniture Co. v. Blue, 35: 1038, 52 So. 364, 59 Fla. 419^ 1250. Refusing to allow a witness to an- swer a question which he has already an- swered is not prejudicial error. Estey Or- gan Co. v. Lehman, n: 254, 111 N. W. 1097, 132 Wis. 144. 1251. Refusal to permit a witness to Digest 1-52 L.R.A.(N.S.) answer a question is not reversible error if an answer as full as could have been ob- tained in response to the question excluded was obtained from him in response to an- other question. International Harvester Co. v. Iowa Hardware Co. 29: 272, 122 N. W. 951, 146 Iowa, 172. 1252. Exclusion of testimony which is but a repetition of what has previously been ad- mitted without objection is not reversible error. Johnson v. Walker, 1:470, 39 So. 49, 86 Miss. 757. 1253. The exclusion of merely cumulative testimony from the same witness is at most merely harmless error. Smith v. Cashie & C. R. & Lumber Co. 5: 439, 54 S. E. 788, 142 N. C. 26. 1254. The exclusion of evidence, even if erroneous, does not require a reversal, where the facts which the excluded evidence was offered to show were proved by other evi- dence, and the final judgment could not have been altered by its admission. Mac- kenzie v. Minis, 23: 1003, 63 S. E. 900, 132 Ga. 323. 1255. The exclusion from evidence of let- ters is not prejudicial error where they throw no light on the controversy not disclosed by the parol evidence. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. 1256. The erroneous exclusion, in an action on a fraternal benefit certificate, of the proofs of death furnished by the beneficiary, when offered in evidence by the insurer, is not prejudicial, where the physician who made out such proofs, when on the witness stand, gave substantially the same answers as those contained in the proofs of loss. Rasicot v. Royal Neighbors of America, 29: 433, 108 Pac. 1048, 18 Idaho, 85. 1257. Exclusion from evidence of letters describing the repairs to be made on leased property, in an action for rent in which damages for breach of covenant to repair are sought to be set off, is not prejudicial error where the lease itself contains a cove- nant to keep the building in habitable re- pair. Young v. Berman, 34: 977, 131 S. W. 62, 96 Ark. 78. 1258. There is no reversible error in refus- ing to admit in evidence an application for carriage of freight where it is not material- ly different from the carriage agreement which is admitted. Wabash R. Co. v. Thom- as, 7: 1041, 78 N. E. 777, 222 111. 337. 1259. The exclusion of testimony that one accused of homicide was not actuated by anything witness said or did is not error, where he > as been permitted to detail all the facts; sir.ce it is a mere conclusion which it is the province of the ju.y to reach. State v. Forsha, 4: 576, 88 S. W. 746, 190 Mo. 296. 1260. Refusal to admit in evidence testi- mony of a statement by a man that a woman to whom he was talking on a par- ticular occasion was his wife, in an action to hold his father liable in damages for separating them, is immaterial if the wit- ness identifies the woman as the son's wife. Ickes V. Ickes, 44: 1118, 85 Atl. 885, 237 Pa. 582. 340 APPEAL AND ERROR, VII. m, 4. 1261. It is not reversible error to exclude expert testimony presenting a possible, but highly improbable, theory, not based on any particular facts in support thereof, es- pecially if such testimony conflicts with other direct testimony negativing such theory. Wigal v. Parkersburg, 52: 465, 81 S. E. 554, W. Va. . Subsequent admission. 1262. Error in excluding an answer to a question is not prejudicial where the wit- ness subsequently goes into the entire mat- ter at length. Blossi v. Chicago & N. W. R. Co. 26: 255, 123 N. W. 360, 144 Iowa, 697. 1263. A judgment cannot be reversed be- cause of refusal to permit a witness to answer a question, if he afterwards testi- fies fully with respect to the matter. State v. Dyer, 29: 459, 124 N. W. 629, 147 Iowa, 217. Cross-examination. 1264. Cross-examination on matters either directly in iseue or directly relevant to the issue is a matter of right, and its exclusion is error. Prout v. Bernards Land & S. Co. (N. J. Err. & App.) 25:683, 73 Atl. 486, 77 N. J. L. 719. 1265. Unduly limiting the cross-examina- tion of a witness is not reversible error if no prejudice results therefrom. Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. 1266. On cross-examination a hypothetical question omitting material facts which the evidence tended to prove, and which were included in a question asked upon direct examination, is permissible, within reason- able limits, to test the intelligence, capacity, discernment, and candor of the witness; but where the cross-examination proceeded at great length, and the witness testified upon the matters embraced in the question in de- tail, and admitted that he did not know positively whether the death might have occurred from poison without the symptoms stated, a ruling excluding such hypothetical question does not affect the substantial rights of the appellant. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. 1267. It is not reversible error to refuse to permit one accused of statutory rape to cross-examine the prosecuting witness as to promiscuous intercourse with other men for the purpose of affecting her credibility. State v. Stimpson, i: 1153, 62 Atl. 14, 78 Vt. 124. 1268. It is not error to refuse to permit a witness who has identified accused as one who committed a homicide to be asked on cross-examination if he was not present at the inquest, and if it was not true that no testimony about who did the shooting could be secured there, where it does not appear that the question called for more than cumulative evidence that he had made no disclosure at the inquest as to who did the deed. Brown v. State., 37: 345, 55 So. 961, 99 Miss. 719. Digest 1-52 L.R.A.(N.S.) c. Refusal to strike out. (See also same heading in Digest L.R.A. 1-70.) As to striking out evidence, generally, see TRIAL, 48-55. 1269. It is not prejudicial error to refuse to "strike out unresponsive evidence, if it subsequently comes in, in due course, from other witnesses. Atvvood v. Atwood, 37: 591, 79 Atl. 59, 84 Conn. 169. 1270. Refusal to strike out a part of the evidence of a certain witness as not the best evidence is harmless error where, had it been stricken out, other evidence suffi- cient to justify the judgment would have remained. McGregor v. Harm, 30: 649, 125 N. W. 885, 19 N. D. 599. d. Variance. (See also same heading in Digest L.R.A. 1-70.) 1271. Where the facts in issue are known to the defendant, so that he is in no wise misled by a variance between the allegations of the complaint and the proof, the variance is immaterial. Travelers' Indemnity Com- pany v. Fawkes, 45 = 331, 139 N. W. 703, 120 Minn. 353. e. In cases tried without jury. (See also same heading in Digest L.R.A. 1-70.) 1272. The erroneous admission of evi- dence is not reversible error in a case tried by the court without a jury. Spring- field Shingle Co. v. Edgecomb Mill Co. 35: 258, 101 Pac. 233, 52 Wash. 620. 1273. A cause heard by the court without a jury cannot be reversed because books and reports on scientific subjects were admitted in evidence, the statements in which could not be subjected to the sanctity of an oath. Adams v. Milwaukee, 43: 1066, 129 N. W. 518, 144 Wis. 371. 1274. A conviction in a case tried without a jury will not be reversed on appeal for admission of improper evidence, unless the court can see that the accused was preju- diced by the error. Topolewski v. State, 7: 756, 109 N. W. 1037, 130 Wis. 244. 4. As to instructions. a. Instructions given. (1) Generally; miscellaneous matters. (See also same heading in Digest L.R.A. 1-70.) Presumption as to harmlessness of instruc- tion, see supra, 468. Necessity of instruction, see supra, 353. APPEAL AND ERROR, VII. m, 4. 141 Errors as to, waived or cured below, see supra, VII. k, 4. Error in, authorizing new trial, see NEW TRIAL, 20, 21. As to instructions generally, see TRIAL, III. As to correctness of instructions generally, see TRIAL, III. e. See also supra, 1030, 1139. 1275. Error in giving and refusing instruc- tions is not prejudicial where, under the case made and offered to be made, there could properly have been no other verdict than the one returned. Barnes v. Crockett, 36: 464, 68 S. E. 983, 111 Va. 240. 1276. Alleged errors in giving and refus- ing instructions will not be examined on appeal where no verdict other than the one rendered could have been sustained on the facts established by uncontradicted evi- dence. Miller v. Raymond, 31: 783, 123 N. W. 1019, 85 Neb. 543. 1277. Instructions given or refused will not be considered on appeal when it appears plainly from the evidence that no verdict other than the one rendered could have been rendered. Hanger v. Com. 14: 683, 60 S. E. 67, 107 Va. 872. 1278. Where it appears from the evidence that a verdict is so clearly right that, had it been different, the courts should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instructions. Horton v. Early, 47: 314, 134 Pac. 436, 39 Okla. 99. 1279. The supreme court will disregard any error or defect in instructions given, or error in the failure or refusal to give in- structions requested, where the action of the trial court did not affect the substantial rights of the litigants. Maxson v. J. I. Case Threshing Mach. Co. 16: 963, 116 N. W. 281, 81 Neb. 546. 1280. A judgment will not be reversed be- cause of undue emphasis given to particular matters by repetition of instructions, if Srejudice is not shown. Furlow v. United il Mills, 45: 372, 149 S. W. 69, 104 Ark. 489. 1281. A charge, although erroneous, is not ground for reversal when it does not preju- dice the plaintiff in error. Rogers v. Blouenstein, 3: 213, 52 S. E. 617, 124 Ga. 501. 1282. Reversible error cannot be predi- cated upon isolated parts of the instruc- tions. Howard v. Washington Water Pow- er Co. 52: 578, 134 Pac. 927, 75 Wash. 255. 1283. An inaccurate statement in a charge is not a cause for reversal if, taking the charge as a whole, the jury were not misled by it. Berry v. Donovan, 5: 899, 74 N. E. 603, 188 Mass. 353. 1284. When the charge, taken as a whole, is fair, an appellate court should not labor to sustain an objection upon a sentence which, taken by itself, may not express in the happiest terms a proposition which is correct. Georgetown & T. R. Co. v. Smith, 5: 274, 25 App. D. C. 259. 1285. The giving of instructions which as a whole correctly state the law will not operate as reversible error although they are Digest 1-52 r,.R.A.(N.S.) subdivided into different paragraphs, some of which are in themselves incomplete, but not in conflict with others therein, and numbered. Chicago, R. I. & P. R. Co. v. Johnson, 27: 879, 107 Pac. 662, 25 Okla. 760. 1286. An instruction is not subject to ex- ception, though it may be erroneous when standing alone, if, when considered with the other instructions upon the same sub- ject given in connection therewith, it is not prejudically erroneous. Allen v. Chi- cago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. 1287. An erroneous instruction upon an issue which there is no evidence to support is not reversible error. State v. Smith, 36: 910, 72 S. E. 321, 156 N. C. 628. 1288. The giving of an instruction which states a correct proposition of law, but which has no application to the issues in- volved, or the proof, will not warrant a reversal of judgment, unless it is ap- parent that such instruction misled the jury. Pearson v. Yoder, 48: 334, 134 Pac. 421, 39 Okla. 105. 1289. The giving of an instruction covering a case not presented by the pleadings, al- though there be evidence on the subject cov- ered thereby, is erroneous, unless it clearly appears that the rights of the parties com- plaining have not been injuriously affected thereby. Kunst v. Grafton, 26: 1201, 67 S. E. 74, 67 W. Va. 20. 1290. A party taking a case to a higher court for review cannot complain of an in- struction which was more favorable than he was entitled to, since, as to him, the giving thereof was error without injury. Chicago, R. I. & P. R. Co. v. Johnson, 27: 879, 107 Pac. 662, 25 Okla. 760. 1291. Where a statute provides that no judgment shall be reversed unless it shall appear that the error complained of af- fected the substantial rights of the com- plaining party, the mere possibility that the court made a wrong statement of facts in instructing the jury does not require a re- versal. Solberg v. Robbins Lumber Co. 37: 790, 133 N. W. 28, 147 Wis. 259. 1292. The reviewing court cannot deter- mine, as matter of law, that it is reversible error for the trial judge to fail to define to the jury more fully than he saw fit to do, common words, the meaning of which may be assumed to have been understood by them. Com. v. Buckley, 22: 225, 86 N. E. 910, 200 Mass. 346. 1293. The giving of abstract and mislead- ing instructions is not necessarily reversi- ble error. Suell v. Derricott, 23: 996, 49 So. 895, 161 Ala. 259. 1294. An inaccuracy in an instruction to the jury is not prejudicial to the losing party, if it merely imposes upon his op- ponent a burden which he is not bound to sustain to be entitled to a recovery. S. Bluthenthal & Co. v. Bridges, 24: 279, 120 S. W. 974, 91 Ark. 212. 1295. An inadvertent insertion of a word in an instruction to the jury is not revers- ible error where it operates in favor of the 142 APPEAL AND ERROR, VII. m, 4. complaining party. Hiroux v. Baum, 19: 332, 118 N. W. 533, 137 Wis. 197. 1296. An erroneous instruction to a jury, given for the plaintiff, is not prejudicial to the defendant, if, after all the evidence was adduced, it would have been the duty of the court, upon proper motion, to direct a ver- dict for the plaintiff. Davis v. Chesapeake & O. R. Co. 9: 993, 56 S. E. 400, 61 VV. Va. 246. 1297. No complaint can be made on the generality of the instructions to the jury, unless proper ones, more specific in their nature, were asked. St. Louis, I. M. & S. R. Co. v. Jackson, 6: 646, 93 S. W. 746, 78 Ark. 100. 1298. Permitting a finding for plaintiff in case of either an express or implied con- tract is not prejudicial, although no evi- dence of an implied contract exists, if the evidence of an express one is uncontra- dicted. Klinck v. Chicago City R. Co. 52: 70, 104 N. E. 669, 262 111. 280. 1299. A judgment will not be reversed on account of general statements in an instruc- tion which might under some circumstances have been prejudicially erroneous, if the issue was submitted to the jury in such a manner that they could not have misunder- stood the law applicable thereto. Searles v. Northwestern Mut. L. Ins. Co. 29: 405, 126 N. W. 801, 148 Iowa, 65. 1300. It is reversible error to use in one instruction to the jury a vital word in sev- eral different senses, the effect of which would naturally be to confuse rather than enlighten the jury. Neff v. Cameron, 18: 320, 111 S. W. 1139, 213 Mo. 350. 1301. Giving an instruction which has no basis in the evidence is reversible error. State v. Smith, 4: 539, 106 N. W. 187, 129 Iowa, 709. 1302. It is reversible error to give an in- struction presenting an hypothesis which has no foundation in the evidence adduced, un- less the court can clearly see that it did not prejudice the exceptor. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 1303. Instructions submitting issues not authorized by the evidence are, if prejudi- cial, ground for reversal. Mendel v. Miller, 7: 1184, 56 S. E. 88, 126 Ga. 834. 1304. The giving of instruction having no basis or foundation in the evidence in the case in which they are given is prejudicial, and constitutes reversible error. Kuyken- dall v. Fisher, 8: 94, 56 S. E. 48, 61 W. Va. 87. 1305. A charge abstractly correct, but not warranted by the evidence, constitutes rever- sible error, where it is not apparent that the jury could not have been misled by it. Culberson v. Alabama Constr. Co. 9: 411, 58 S. E. 765, 127 Ga. 399. 1306. If the court fails adequately to ap- ply the correct rule of law to the facts of the case, or places undue emphasis upon cor- rect but inapplicable rules of law tending to, and which apparently does, mislead the jury, it constitutes reversible error. Waller v. Ross, 12: 721, 110 N. W. 252, 100 Minn. 7. Digest 1-52 L.R.A.(N.S.) 1307. The giving of an instruction which misstates the law on a material issue, to the prejudice of plaintiff, is a sufficient ground for the reversal of a judgment against him. Singer Sewing Machine Co. v. Robertson, 34: 887, 127 N. W. 866, 87 Neb. 542. 1308. A modification of an instruction as to the specific evidence the jury is to con- sider, so as not to include that of a par- ticular person, is not reversible error, if his testimony was included by a general charge as to consideration of evidence. Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. 1309. Error in one instruction to the jury requires a reversal, where it is impossible to determine on what theory of the case the verdict was founded. Morrow v. South- ern R. Co. 16: 642, 61 S. E. 621, 147 N. C. 623. 1310. Instructions' given in an action for slander, so drawn as to limit the effect of mitigating circumstances to the inquiry as to the existence of actual malice, deprive the defendant of the benefit of the consider- ation of such facts by the jury in ascertain- ing the amount of the damages, and are er- roneous. Alderson v. Kahle, 51:1198, 80 S. E. 1109, 73 W. Va. 690. 1311. That the court tells the jury that a railroad company will not be liable for ejecting a trespasser from its train by law- ful means, without defining such terms, is not prejudicial error in an action to hold it liable for injury to a person so ejected, if there is no question that, if the evidence is believed, the means employed were un- lawful. Golden v. Northern P. R. Co. 34: 1154, 104 Pac. 549, 39 Mont. 435. 1312. Where an action for personal injury occurring in one state is brought in another state, where plaintiff had a right to bring it, it is error for the court to instruct the jury that the fact that plaintiff brought the action away from his home and among strangers may be considered by them in so far as it may throw light, or tend to throw light, upon the transaction. Mason v. Nash- ville, C. & St. L. R. Co. 33: 280, 70 S. E. 225, 135 Ga. 741. 1313. In a contest over the probate of a will, it is error to instruct the jury that their verdict will be that the instrument of- fered for probate is not the will of decedent, if they find that she did not sign it, where the evidence is insufficient to sustain such a finding. Re Gray, 33: 319, 130 N. W. 746, 88 Neb. 835. 1314. A railroad company which is sought to be held liable for obstructing the drain- age from a lot abutting on a street, the grade of which it changes for its own benefit, is not injured by a statement in an instruc- tion as to the character of opening which it should have left in its embankment, if it in fact left none. Shrader v. Cleveland, C. C. & St. I.. R. Co. 26: 226, 89 N. E. 997, 242 111. 227. 1315. The question whether instructions given on the trial of a suit for libel regard- ing particular questions in the case, not APPEAL AND ERROR, VII. m, 4. 143 related to that of damages, misstate the law, becomes immaterial as not affecting the plaintiff's substantial rights, where the jury finds specially from the evidence that the plaintiff suffered no damage, since it will not be presumed that such finding was in- duced by instructions regarding points not related to damages. Coleman v. MacLennan, 20: 361, 98 Pac. 281, 78 Kan. 711. 1316. That plaintiff's right to recover per- sonal property was made to depend, by the court in its instruction, upon ownership rather than right of possession, is not re- versible error, where the word "ownership" was used in the sense of right of possession, and it is improbable that the jury was mis- led. Log Owners' Booming Co. v. Hubbell, 4: 573, 97 N. W. 157, 135 Mich. 65. 1317. If, after having notice of the terms of a guaranty written over his indorsement, the payee of a note ratifies it, any error in an instruction that it was immaterial if the guaranty was written before or after the signature was placed on the note, if the sig- nature was placed there with the intention of guarantying it and the words were writ- ten in accordance with that purpose, is harmless. George E. Lloyd & Co. v. Mat- thews, 7: 376, 79 N. E. 172, 223 111. 477. 1318. Omission of the word "ordinarily" before the words "prudent and cautious," in defining the acts which would constitute probable cause for an arrest, is not reversi- ble error, where the court has impressed upon the jury the necessity of reasonable grounds of suspicion. Jenkins v. Gilligan, 9: 1087, 108 N. VV. 237, 131 Iowa, 176. 1319. An instruction that one whose land is injured by seepage from an irrigation ditch can recover damages therefor only by establishing negligence in its maintenance and operation by a "clear" preponderance of evidence, while erroneous, is not prejudi- cial, where plaintiff offers no evidence of negligence, and rests his case on the theory that the defendant was an insurer of his ditch. Fleming v. Lockwood, 14: 628, 92 Pac. 962, 36 Mont. 384. 1320. Error in permitting a recovery in a joint action for possession of real estate, if the statute of limitations had not run against any plaintiff, is not reversible, if defendant, claiming by adverse possession, has not shown color of title. Napier v- Little, 38: 91, 73 S. E. 3, 137 Ga. 242. 1321. A passenger, having a right of ac- tion against a carrier and a terminal corpo- ration, cannot be said to have suffered no injury by a direction in an action to hold both liable for his injury, tnat a re- covery could be had against one defendant only, because he recovered a judgment against the terminal company, if it has not been satisfied. Hunt v. New York, N. H. & H. R. Co. 40: 778, 98 N. E. 787, 212 Mass. 102. Criminal cases. Instructions as to witnesses, see infra, 1376, 1377. As to facts and evidence in, see infra, 1389- 1395. Digest 1-52 L.R.A.(N.S.) Correctness of instructions, generally, see TRIAL, III. e, 5. 1322. Error in a portion of a charge in a criminal case is not reversible if, in view of the whole charge, it is not probable that the jury were misled. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 1323. Submitting to the jury a form of verdict in a criminal case without instruct- ing them it is to be used only in case they find defendant guilty is not reversible error, where other instructions plainly indicate that such is the fact. State v. Davis, 4: 1023, 92 S. W. 484, 194 Mo. 485. 1324. An erroneous definition of "heat of passion" does not require a reversal of a conviction of murder in the first degree. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. 1325. An instruction defining a reasonable doubt, which commences with the statement that "a reasonable doubt is that state of the case which, after the entire comparison and consideration of all of the evidence and instructions of the court, leaves your minds in doubt and uncertainty as to the guilt of the defendant," is not rendered prejudicial- ly erroneous by the inclusion of the words, "and instructions of the court." Stehr v. State, 45: 559, 139 N. W. 676, 92 Neb. 755. 1326. Where the defense in a prosecution for homicide is that the defendant killed the deceased for the purpose of preventing the deceased from committing the crime of rape upon the daughter of the defendant, it is improper to instruct the jury that they may consider the previous bad character of such daughter as bearing upon the guilt of accused, provided he knew of such bad character. Litchfield v. State, 45: 153, 126 Pac. 707, 8 Okla. Crim. Rep. 164. 1327. In a trial for homicide, in which there is an attempted justification by self- defense, it is reversible error to charge that such justification cannot be made out unless the accused in good faith endeavored to es- cape, although the jury was also instructed that he was not necessarily bound to retreat, where the proved circumstances preclude any practicable means of escape or retreat without great increase in peril of death or of great bodily harm. State v. Gavdner, 2: 49, 104 N. W. 971, 96 Minn. 318. 1328. An instruction that a partner may be guilty of embezzling the funds of a part- nership constitutes harmless error in a pros- ecution for embezzlement, wherein it is not shown that the property alleged to have been embezzled belonged to a partnership of which the accused was a member. State v. Hogg, 29: 830, 53 So. 225, 126 La. 1053. 1329. Where it is conceded that if a check had been cashed on October 6th an indict- ment based on the transaction would not be barred, an instruction to that effect which names October 6th instead of October 5th, the date when the evidence shows the check to have been cashed, is not prejudicial. State v. Smith, 49:834, 144 N. ' W. 32, 162 Iowa, 336. 1330. In a prosecution for rape charged in the first count of the indictment to have been 144 APPEAL AND ERROR, VII. m, 4. committed with the consent of the female, and in the second count to have been com- mitted forcibly and against her will, an in- struction to the jury that they may bring in a general verdict of guilty upon both counts, if they find the evidence to be of such char- acter as to warrant a conviction upon either count, is erroneous where the law affixes a different punishment to the two grades of the offense; but the error is not prejudicial when the minimum penalty is imposed. State v. Hensley, 9: 277, 79 N. E. 462, 75 Ohio St. 255. Erroneous reason for instruction. 1331. Giving an erroneous reason for a correct instruction is not prejudicial error. State v. Donovan, 36: 167, 132 N. W. 698, 28 S. D. 136. Illogical arrangement. 1332. If the instructions as a whole cor- rectly state the law, the judgment will not be reversed because of illogical arrangement of the several instructions, if it appears from the whole record that the jury was not misled thereby. Bigley v. National Fidelity & C. Co. 50: 1040, 144 N. W. 810, 94 Neb. 813. Conflicting instructions. 1333. The doctrine of harmless error is seldom applicable to the giving of conflict- ing instructions. Gibboney Sand Bar Co. v. Pulaski Anthracite Coal Co. 24: 1185, 66 S. E. 73, 110 Va. 444. 1334. The giving of conflicting instruc- tions is reversible error, where it is impos- sible to determine by which the jury was guided. Nutt v. Davidson, 44: 1170, 131 Pac. 390, 54 Colo. 586. 1335. The giving of antagonistic instruc- tions on a material issue is reversible error. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. Oral instructions. 1336. Although it is better practice to re- quire instructions to be in writing, the mere fact that an instruction is oral is not ground for reversal. State v. Woodrow, 2: 862, 52 S. E. 545, 58 W. Va. 527. Failure to number and sign. 1337. Failure of the trial court to number and mark the instructions given to the jury is not erroneous under the Oklahoma stat- ute, in the absence of a request therefor by counsel, but, if erroneous, would be harm- less error. Mclver v. Williamson-Halsell- Frazier Co. 13: 696, 92 Pac. 170, 19 Okla. 454. (2) As to negligence. (See also same heading in Digest L.R.A. 1-10.) Necessity or propriety of instructions, see TRIAL, 893-905. Correctness of instructions generally, see TRIAL, III. e, 4. See also supra, 1312. 1338. A judgment for plaintiff in a negli- gence case will be reversed if defendant's Digest 1-52 L.R.A.(N.S.) theory of the case was not fairly presented to the jury in the instructions, which were insufficient in stating the rules of law ap- plicable to the case. Philip Carey Roofing & Mfg. Co. v. Black, 51: 340, 164 S. W. 1183, 129 Tenn. 30. 1339. An instruction which permits the jury to speculate upon what might be negligence, and base a verdict upon some- thing they might infer to be negligence, other than the specific negligent act charged in a complaint, is error. Messer v. Bruening, 48: 945, 142 N. W. 158, 25 N. D. 599. 1340. An instruction to the jury in an action for negligence, that negligence is wanton where the person causing the injury at the time sees and knows that the person injured is in a position of peril, and, not- withstanding such knowledge, commits the act causing the injury, though it was in his power to refrain from doing such act, is not so misleading as to warrant the re- versal of a judgment upon a verdict against the defendant. Souther v. Northwestern Teleph. Exch. Co. 45: 601, 136 N. W. 571, 118 Minn. 102. 1341. It is error to make the right to re- cover against a municipal corporation for injury caused by a defect in a sidewalk de- pend upon actual notice of the de.ect, if there is evidence tending to show that it was chargeable with constructive notice. Campbell v. Chillicothe, 39: 451, 144 S. W. 408, 239 Mo. 455. 1342. It is not reversible error in an ac- tion by a child to hold a municipal corpora- tion liable for injuries due to a defective sidewalk, for the court to instruct that the fact that the father or mother of the child knew that it was not reasonably safe for travel was no defense, where counsel had argued that, if they knew of the condition of the walk, it was their duty to notify the city. Neff v. Cameron, 18: 320, 111 S. W. 1139, 213 Mo. 350. 1343. To instruct that, on being in- formed that a county bridge is out of re- pair, it is the duty of the county commis- sioners to examine it thoroughly and make it "perfectly safe" for ordinary travel, is not reversible error, where the jury are also instructed that the standard of duty is that of the ordinarily prudent man. Gehringer v. Lehigh Count}', 35: 1127, 80 Atl. 987, 231 Pa. 497. 1344. It is error to instruct the jury in effect that an officer who, in lawful self- defense, while attempting to arrest another, at close range, shoots at the other, and, missing him, accidentally wounds a by- stander who at the time is to one side of the line of true aim at such assailant, and a few feet away from him, is, in an action for damages, liable to such bystander if he knew, or is chargeable with knowledge, of the presence of such bystander, as if this, of itself, constituted want of due care, and therefore was per se actionable negligence. Lord v. Shaw, 50: 1069, 137 Pac. 885, 41 Okla 347. APPEAL AND ERROR, VII. m, 4. 145 Negligence of carrier. Correctness of instructions generally, see TRIAL, 1050-1054. 1345. An instruction in an action against a railroad company for confiscating, a pas- senger's ticket and expelling him from the train, that carriers of passengers are bound to exercise the highest degree of care, is not prejudicial error, even if erroneous, if, under the circumstances, the carrier would be liable if required to exercise only ordi- nary care. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 1346. Error in defining gross negligence is not reversible in an action to hold a rail- road company liable for injury to a gra- tuitous passenger, if, under the circum- stances, defendant would be liable in case of ordinary negligence, which was amply shown by the evidence. John v. Northern P. R. Co. 32: 85, 111 Pac. 632, 42 Mont. 18. 1347. The giving of an instruction as to duty of railroad employees to passengers in regard to the starting and stopping of trains, in an action for personal injuries to a passenger caused by his being struck, while standing on a car step, by an express truck alleged to have been negligently left in dan- gerous proximity to the track, while imma- terial because the manner of starting or stopping the train was not in issue, does not constitute error sufficient to justify a reversal upon the ground that it was mis- leading, confusing, or prejudicial. Irvin v. Missouri P. R. Co. 26: 739, 106 Pac. 103, 81 Kan. 649. Of railroad. Correctness of instructions generally, see TRIAL, 1044-1048. 1348. A recovery against a railroad com- pany for personal injuries will not be re- versed because of an instruction predicat- ing a right to recover upon a state of facts not shown to exist, if the defendant in fact owed plaintiff a duty which it failed to discharge, and which failure caused the injury. St. Louis, I. M. & S. R. Co. v. Jackson, 31 : 980, 132 S. W. 206, 96 Ark. 469. Negligence of master. Correctness of instructions generally, see TRIAL, 1039-1043. 1349. A charge in an action to recover damages for personal injuries caused by the breaking of a defective eccentric strap on a railroad locomotive that it was the de- fendant's duty to furnish plaintiff instru- mentalities safe for use, does not constitute reversible error where the court's attention was not called to the inaccuracy of the lan- guage before the jury retired. Koreis v. Min- neapolis & St. L. R. Co. 25: 339, 122 N. W. 668, 108 Minn. 449. 1350. An instruction stating the duty of an employer as to the guarding of gearing about which an employee was compelled to work, to be, to make the guard such that employees shall be secure against danger or violence while performing their work, is prejudicial in an action to hold the mas- ter liable for injury through an unguarded gearing, where the jury find him to be Digest 1-52 L.R.A.(N.S.) negligent, while the evidence was such that, in the absence of such instruction, he might have been found to be free from negligence. West v. Bayfield Mill Co. 45: 134, 128 N. W. 992, 144 Wis. 106. 1351. An instruction in an action by a servant to hold his master liable for inju- ries alleged to be due to the negligence of a superintendent, in which the defense is that the act which actually caused the in- jury was done merely as a common laborer, that, if he was found to be superintendent, no one particular act could take away from him that authority, will justify the jury in understanding that, being a superintendent, the master was liable for every act per- formed by him, and is reversible error not- withstanding the rule as to the master's liability for acts done by the superintend- ent as a common laborer has been correct- ly stated elsewhere. Gallagher v. Newman, 16: 146, 83 N. E. 480, 190 N. Y. 444. Contributory negligence. Correctness of instructions as to, generally, see TRIAL, 1036, 1037, 1044, 1047. 1352. When the court charges that the plaintiff was guilty of contributory negli- gence, no error prejudicial to the defendant is committed by another instruction that the burden is upon the defendant to show such negligence. Barker v. Kansas City, M. & 0. R. Co. 43: 1121, 129 Pac. 1151, 88 Kan. 767. 1353. An instruction upon the question of contributory negligence is not reversible er- ror if, because of the absence of evidence on that subject, it could not have misled the jury. Walter v. Louisville R. Co. 43: 126, 150 S. W. 824, 150 Ky. 652. 1354. The modification of an instruction that, if plaintiff and defendant were both guilty of negligence contributing to plain- tiff's injury, the latter could not recover, by the addition of the words, provided the plaintiff is "guilty of a want of ordinary care," while not proper or necessary, not being liable to mislead the jury, will not work a reversal. Pauckner v. Wakem, 14: ni8, 83 N. E. 202, 231 111. 276. (3) As to damages. (See also same heading in Digest L.R.A. 1-10.) Necessity or propriety of instructions gen- erally, see TRIAL, 889-892. Correctness of instructions generally, -see TRIAL, III. e, 2. 1355. A charge of the court as to a meas- ure of damages, in a more restricted form than had before been properly given by the court, furnishes no reversible error, in the absence of a request of the party in- jured for an addition clearly stating the proper rule. Reynolds v. Great Northern R. Co. 52: 91, 138 N. W. 30, 119 Minn. 251. 1356. A contradictory and meaningless in- struction upon the measure of damages does not require reversal, if it is apparent that the jury, in assessing the damages, followed 10 146 APPEAL AND ERROR, VII. m, 4. a correct instruction. White Walnut Coal Co. v. Crescent Coal & Min. Co. 42: 669, 98 N. E. 669, 254 111. 368. 1357. Submitting the measure of damages to a jury on a wrong theory is error without prejudice, where the result attained is the same as would necessarily have followed, had the question not been submitted to the jury at all. Kelly v. Pierce, 12: 180, 112 N. W. 995, 16 N. D. 234. 1358. The omission from an instruction as to an element of damages of a requirement that plaintiff must be found to be entitled to recover will not require reversal, where such requirement is properly set forth in other instructions. Van Cleef v. Chicago, 23: 636, 88 N. E. 815, 240 111. 318. 1359. An erroneous instruction permitting the recovery of nominal damages is not pre- judicial if the verdict is for substantial damages, and is supported by evidence. Stratton v. Mt. Hermon Boys' School, 49: 57, 103 N. E. 87, 216 Mass. 83. 1360. An instruction that the wrongful failure of a bank to honor a check entitles the drawer to temperate damages, to be fixed by the jury, is not prejudicial as tend- ing to cause the jury to believe that the drawer is entitled to recover only a small sum, where the court further directs them to return such sum as is right and proper under the circumstances, especially where no request is made for any further instruc- tion. Hilton v. Jesup Bkg. Co. n: 224, 57 S. E. 78, 128 Ga. 30. 1361. In an action by a passenger to recov- er damages for having been wrongfully threatened with expulsion from a street car, an instruction that the jury may weigh the worldly circumstances of the parties is re- versible error, where there is no evidence as to such circumstances, and the only question to be determined is the amount of the ver- dict. Georgia R. & Electric Co. v. Baker, 7: 103, 54 S. E. 639, 125 Ga. 562. 1362. That the court in an action on a bond gave the jury an incorrect rule for the computation of interest is no ground for reversal, where such rule operated to the benefit of appellant, and necessarily made the award of the jury less than it would have been under the correct rule. United States Fidelity fc G. Co. T. State, 26: 865, 106 Pac. 1040, 81 Kan. 660. 1363. The charge of a court in an action against a carrier for loss of goods, on the measure of damages, which is more favor- able to the carrier than it is entitled to, and which, under the circumstances and proof offered, is not prejudicial, does not require a new trial, although it is not en- tirely accurate. Alabama G. S. R. Co. v. McKenzie, 45: 18, 77 S. E. 647, 139 Ga. 410. For malicious prosecution. 1364. An instruction in an action to re- cover damages for malicious prosecution, that the damages might include an allow- ance for suffering caused by cold and lack of bed and food during his imprisonment, cannot be regarded as prejudicial where the only evidence to which it is applicable is to the effect that the bed furnished was hard Digest 1-52 L.R.A.(N.S.) and that plaintiff ate nothing, which may have been due to his own volition. Seidler v. Burns, 33: 291, 79 Atl. 53, 84 Conn. 111. For negligent injuries. 1365? It is not prejudicial error to use the word "may" instead of "will" in defining the damages to which a person injured by another's negligence is entitled, which in- cludes an allowance for such as it is rea- sonably certain "that she may endure." Cleveland v. South Covington & C. Street R. Co. 11:853, 100 S. W. 283, 30 Ky. L. Rep. 1072. 1366. An instruction to the jury, in an ac- tion for personal injuries, in no event to al- low plaintiff more than $15,000, without specifically explaining that that amount was named because it was the sum claimed in the petition, and must therefore limit the plaintiff's recovery, will not require a re- versal upon the ground that the jury might infer therefrom that a verdict up to that amount would be proper, where the verdict was for $3,000, a reasonable amount under the circumstances. McGovern v. Interurban R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 1367. A reviewing court will not reverse a judgment for error in an instruction in an action by a minor to recover damages for personal injuries, which does not expressly deny a recovery for reduced earning capaci- ty during minority, to which no exception was taken at the time, although the statute permits the assignment of errors upon the charge after judgment, where, from the whole instruction, the jury must have un- derstood that such damages could not be allowed, they having been instructed that he could not recover for lost time. Braasch v. Michigan Stove Co. 20: 500, 118 N. W. 366, 153 Mich. 652. 1368. Instructing a jury to allow damages for pain suffered by one killed by another's negligence, if any is shown by the record, is not reversible error, although the evi- dence shows instant death, since evidence of pain being absent, it must be presumed that the jury did not allow anything for it. St. Louis & S. F. R. Co. v. Moore, 39: 978, 58 So. 471, 101 Miss. 768. 1369. In an action by a wife for the wrong- ful death of her husband, a statement in the charge that the jury might consider the loss by the plaintiff of the society, aid, and comfort of her husband, is not preju- dicial, where in the same instruction, both before and after these words, the jury are expressly told that the allowance should be for such sum as would compensate the plaintiff for her pecuniary loss, and the amount awarded by the jury is moderate. Harbert v. Kansas City Elevated R. Co. 50: 850, 138 Pac. 641, 91 Kan. 605. Punitive damages. 1370. An instruction that the jury may award punitive damages is not prejudicial where the smallness of the verdict rendered does not indicate that the jury gave any punitive damages. Lindsay v. Oregon Short Line R. Co. 12: 184, 90 Pac. 984, 13 Idaho, 477. 1371. Error of the trial court in intimating APPEAL AND ERROR, VII. m, 4. 147 that, under certain conditions, the jury "ought" to award punitive damages on ac- count of plaintiff's ejection from the de- fendant's train, cannot be held harmless on appeal upon the theory that the verdict, be- ing for only $400, did not include exemplary damages, although, if plaintiff sustained the physical injuries to the extent claimed by him, the verdict would seem to give him compensation only, where there was a dis- pute as to the extent of his injuries, the defendant contending that he was not in- jured at all by the ejection, but that his in- juries if any were sustained, resulted from other causes, and probably after he left the train. Louisville & N. R. Co. v. Cottengim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. (4) As to witnesses. (See also same heading in Digest L.R A 1-10.) Instructions as to credibility of witnesses, see TBIAL, 958-964. 1372. It is not reversible error to instruct in the language designated by the statute, that a witness false in one part of his tes timony is to be distrusted in others, where no request is made to limit the rule to testi- mony wilfully false. Simpson v. Miller. 29: 680, 110 Pac. 485, 57 Or. 61. (Annotated) 1373. An erroneous instruction permitting the jury to disregard the entire testimony of a witness who has testified wilfully and deliberately false does not require a reversal of conviction where defendant introduced practically no testimony of a substantial character to establish a defense. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. 1374. An instruction in a bastardy case, that it is to be taken for granted that a witness speaks the truth on the stand, and consequently that the complaining witness teljs the truth, unless the force of surround- ing circumstances and the attendant facts are such as to compel the belief in the minds of the jury that falsehood instead of truth has been spoken, constitutes re- versible error, in that it states a presump- tion which does not exist in law, and lays down an improper rule as to the weight of evidence required on the issue of the truth of the witness's testimony. State v. Hal- vorson, 14: 947, 114 N. W. 957, 103 Minn. (Annotated) 1375. It is error for the court to instruct the jury that they might consider the fail- ure of plaintiff in a libel case to appear as a witness, as raising an inference against him, if he was beyond the seas and there was nothing in the pleadings or evidence which called for any explanation or contra- diction on his part. Astruc v. Star Co. 40: 79, 193 Fed. 631, 113 C. C. A. 499. 1376. It is error to single out the defend- ant in a criminal case, and instruct the jury specially upon his credibility as a witness. Culpepper v. State, 31: 1166, 111 Pac. 679, 4 Okla. Crim. Rep. 103. Dieest 1-52 L.R.A.(N.S.) 1377. It is error to charge the jury in a criminal case that the fact that a witness for defendant was jointly indicted, but not yet tried, for the same offense with which defendant is charged, may be considered in determining his credibility. State v. Mintz, 43:146, 150 S. W. 1042, 245 Mo. 540. (Annotated) (5) Upon facts and evidence. (See also same heading in Digest L.R.A. 1-10.) Instructions on, generally, see TRIAL, III. d. 1378. An instruction that, if the weight of all the evidence tending to prove a fact is greater than that of all the evidence tending to disprove it, then it is said to be proved by a preponderance of the evidence, is not reversible error, if the jury are also told that to recover plaintiff must intro- duce that degree of proof that produces conviction in the unprejudiced mind. Ergo v. Merced Falls Gas & Electric Co. 41 : 79, 119 Pac. 101, 161 Cal. 334. 1379. Charging that, if the evidence is believed, the jury must find that the alle- gations of the complaint are true, is rever- sible error where the action is for breach of contract, which is alleged to have been actuated by malice and bad faith, where there is no evidence to support such charge. Pullman Co. v. Krauss, 4: 103, 40 So. 398, 145 Ala. 395. 1380. In an action on a promissory note, where a plea of non est factum Is set up, an instruction by the court, in deciding upon the sufficiency of the extrinsic evi- dence of the execution of the instrument to lay a foundation for its admission, that the court admits the note in evidence, but that its execution is still a question of fact for the jury, does not require a new trial. Patton v. Bank of La Fayette, 5: 592, 53 S. E. 664, 124 Ga. 965. 1381. Error in charging that proof of loss was sufficient under the terms of the in- surance policy is harmless, where it ap- pears from uncontradicted evidence that proof of loss had been waived. St. Paul F. & M. Ins. Co. v. Mittendorf, 28: 651, 104 Pac. 354, 24 Okla. 651. 1382. It is not reversible error as a com- ment on evidence, for the court to instruct the jury not to waste time upon a denial in the pleadings of proper presentation of claim in an action to hold a municipality liable for negligent injury, where proper presentation of the claim is not denied at the trial and a copy of the claim is in evi- dence before the jury. Hewitt v. Seattle, 32: 632, 113 Pac. 1084, 62 Wash. 377. 1383. In an action against two carriers for damages, where it appears that each has been guilty of separate acts of negli- gence, and that plaintiff has sustained damages, but there is an issue of fact as to which carrier's negligence was the proxi- mate cause of the injury, and where such 148 APPEAL AND ERROR, VII. m, 4. fact can be determined only from the evi- dence and circumstances of the case, an instruction which takes such fact from the jury is erroneous. Atchison, T. & S. F. R. Co. v. St. Louis & S. F. R. Co. 48: 509, 135 Pac. 353, 41 Okla. 80. Assuming facts. Instructions assuming facts generally, see TRIAL, 968-971. 1384. It is error in an action to hold a landlord liable for injury to a tenant by forcing formaldehyde into his room to eject him therefrom, to instruct the jury as to the measure of liability in case it merely ag- gravated an existing condition in the tenant, if there is no evidence that such a condition did exist. Saros v. Avenue Theater Co. 42: 392, 137 N. W. 559, 172 Mich. 238. Burden of proof. Instructions as to generally, see TRIAL, 942, 943. 1385. An instruction in an action on an accident insurance policy which had been found in insured's safe, fully signed, and dated some two months before his death, that under a statute providing that every written instrument purporting to have been signed or executed by any person shall be proof that it was so signed or executed, un- til such person shall deny the signature or execution of the same by his oath or affida- vit, the burden was upon the defendant to disprove by a preponderance of evidence the full execution of the contract, is at least not prejudicial error, where the genuineness of the signature is admitted. Gardner v. United Surety Co. 26: 1004, 125 N. W. 264, 110 Minn. 291. 1386. A ruling that defendant in an action for damages for performing an unauthor- ized surgical operation upon a married woman has the burden of showing leave and license, notwithstanding the declaration avers want of consent by herself "or anyone authorized to act for her," to which defend- ant pleaded leave and license, which was denied by plaintiff, is harmless, if error, where it is shown that plaintiff herself did not consent, and evidence of the conduct of her husband, the only one claimed to be au- thorized to consent for her, tends to neg- ative consent on his part. Pratt v. Davis, 7: 609, 79 N. E. 562, 224 111. 300. 1387. An instruction to the jury in an ac- tion to foreclose a security deed as an equitable mortgage, where the defense in- terposed is usury, "that the presumption of law is against usury, and the burden would then be upon the defendant in this case, ' who sets up usury as a defense, to estab- lish the existence of usury in the contract, to your satisfaction," while not entirely apt or exact in expression, does not require a reversal where, when taken in connection with the entire charge, it did not lead the jury to believe that there was any conclu- sive presumption against usury, but prac- tically informed them that, when a deed to secure a debt is apparently regular and lawful, and does not disclose any usury on its face, and the defendant seeks to have it declared void by setting up that it is in- Digest 1-52 L.R.A.(N.S.) fected with usury, such is an affirmative plea, and the burden of establishing it would rest upon the defendant. Purser v. Thompson, 22: 571, 64 S. E. 75, 132 Ga. 280. Amount of evidence necessary. 1388. An instruction to the jury, in a civil case, that a certain theory of the case must be proven "to your satisfaction," with- out adding specifically that a preponderance of evidence would suffice for that purpose, and that, "in all civil cases, the preponde- rance of testimony is considered sufficient to produce mental conviction," in the ab- sence of any request for additional instruc- tions, does not constitute error requiring a reversal. Purser v. Thompson, 22: 571, 64 S. E. 75, 132 Ga. 280. Criminal cases. Instructions as to, generally, see TRIAL, 940, 941, 943, 947-953, 958-963, 972. See also supra, 1325. 1389. Dying declarations, being in their nature secondary evidence and subject to many infirmities, are not ordinarily en- titled to the same weight or credence as testimony of living witnesses under oath and subject to cross-examination, the ques- tion of weight being one for the jury, and it is error to instruct the jury that such evidence is of no more weight than if the deceased were present and testifying, be- cause such instruction is calculated to lead the jury to consider that dying declara- tions are entitled to the same weight as the testimony of living witnesses under oath, and subject to cross-examination. State v. Valencia, 52: 152, 140 Pac. 1119, N. M. 1390. An instruction to the jury upon the trial of one charged with robbery, to the effect that the presumption of innocence is not evidence and does not partake of the nature of evidence and only remains with the defendant until it is overcome by com- petent evidence which convinces the minds of the jurors of the defendant's guilt be- yond a reasonable doubt, is error. Mona- ghan v. State, 46: 1149, 134 Pac. 77, 10 Okla. Crim. Rep. 89. 1391. An instruction in a criminal case, defining the term "reasonable doubt" as a doubt that has a reason for it, or as a doubt the jury can give a reason for, is erroneous, and ground for reversing a judg- ment of conviction. Abbott v. Territory, 16: 260, 94 Pac. 179, 1 Okla. Crim. Rep. 1, 20 Okla. 119. (Annotated) 1392. Where a jury has been charged to convict only in case they are convinced of guilt beyond a reasonable doubt, it is not prejudicial error to instruct further that cases are to be decided upon the weight of evidence and not by counting witnesses, and that a single witness may be more satis- factory than a half dozen who contradict him. Hack v. State, 45: 664, 124 N. W. 492, 141 Wis. 346. 1393. Charging the jury that they were bound to convict if they believed defendant's testimony is not reversible error if such testimony shows him to have been guilty of the crime charged. State v. Donovan, 36: 167, 132 N. W. 698, 28 S. D. 136. APPEAL AND ERROR, VII. m, 4. 149 1394. Failure to instruct that the state, when introducing an alleged confession of guilt, is bound by exculpatory matter there- in unless it is shown to be false, is not re- versible error where other inculpatory evi- dence is introduced. Loan v. State, 43: 844, 153 S. W. 305, Tex. Grim. Rep. . 1395. A conviction will not be reversed be- cause the jury were instructed that the testimony of an accomplice must tend to show guilt, where the testimony absolutely shows the guilt if the jury believes it. Thorp v. State, 29: 421, 129 S. W. 607, 59 Tex. Crim. Rep. 517. b. Failure or refusal to instruct, (See also same heading in Digest L.R.A. 1-70.) For refusal to instruct, generally, see TRIAL, III. b. On what matter instructions are necessary, see TRIAL, III. c. See also supra, 857, 1275-1277, 3279. 1396. Failure to instruct upon material matters within the issues is error. Allis- Chalmers Co. v. Atlantic, 52: 561, 144 N. W. 346, 164 Iowa, 8. 1397. Refusing an instruction not ma- terial to the issues is not error. New York, C. & St. L. R. Co. v. Roper, 36: 952, 96 N. E. 468, 176 Ind. 497. 1398. It is not error to refuse tendered in- structions which are not applicable to the facts in the case. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 1399. It is not prejudicial error to refuse an instruction which is not within the is- sues presented by the pleadings. Darda- nelle Pontoon Bridge & Turnp. Co. v. Croom, 30: 360, 129 S. W. 280, 95 Ark. 284. 1400. It is not reversible error to refuse to instruct the jury that plaintiff cannot re- cover in an action unless they find certain facts, if the facts alleged to be necessary were actually found. New York, C. & St. L. R. Co. v. Roper, 36: 952, 96 N. E. 468, 176 Ind. 497. 1401. It is not reversible error to refuse an instruction when one given by the court at its own instance is fully as favorable to the complaining party as the one refused. New York, C. & St. L. R. Co. v. Roper, 36: 952, 96 N. E. 468, 176 Ind. 497. 1402. Refusal to give an instruction to cor- rect one which is subject to criticism is not reversible error where it is no more persuasive for that purpose than some which were actually given by the court. International Harvester Co. v. Iowa Hard- ware Co. 29: 272, 122 N. W. 951, 146 Iowa, 172. 1403. The refusal to charge the jury "just as requested" does not constitute reversible error. Exchange Nat. Bank v. Henderson, 51: 549, 77 S. E. 36, 139 Ga. 260. 1404. Refusal to give requested instruc- tions is not error where the court has fully Digest 1-52 L.R.A.(N.S.) covered the question in its general charge. State v. Larkin, 46: 13, 157 S. W. 600, 250 Mo. 218. 1405. Refusal of a requested instruction is not prejudicial error if the principle in- volved was embodied in instructions given. Miller v. Northern P. R. Co. 48: 700, 135 Pac. 845, 24 Idaho, 567. 1406. Although an instruction correctly stating the law applicable to a case under the issues as framed is requested, refused, and exceptions saved, the same will not constitute reversible error if suck instruc- tion is fairly and reasonably covered by other instructions given. Curtis & Gartside Co. v. Pribyl, 49: 471, 134 Pac. 71, 38 Okla. 511. 1407. Where the trial court has fairly in- structed the jury upon the defendant's theory of his case, a refusal of other in- structions requested by the defendant is not reversible error. Stehr v. State, 45: 559, 139 N. W. 676, 142 N. W. 670, 92 Neb. 755. 1408. Refusal of a general and abstract instruction is not reversible error. Spears v. People, 4: 402, 77 N. E. 112, 220 111. 72. 1409. The defendant is not prejudiced by the court's failure to instruct as to the law upon a matter not available as a defense. Schwarzschild & S. Co. v. Weeks, 4: 515, 83 Pac. 406, 72 Kan. 190. 1410. Refusal to affirm requests to charge is not reversible error if the points are suf- ficiently covered in the general charge. Hufnagle v. Del-aware & Hudson Co. 40: 982, 76 Atl. 205, 227 Pa. 476. 1411. A qualified affirmance, because of mistake as to its import, of a requested in- struction, is not prejudicial error, where the requested proposition is unqualifiedly affirmed in response to other requests. Bracken v. Pennsylvania R. Co. 34: 790, 71 ,Atl. 926, 222 Pa. 410. 1412. A judgment against a municipality for injury caused to a traveler through a defect in a highway will not be reversed because of failure to give an instruction that no recovery can be had if the negli- gence of plaintiff's driver contributed to the injury, where the jury has found that the driver was not negligent. Feeley v. Melrose, 27: 1156, 91 N. E. 306, 205 Mass. 329. 1413. A general verdict for plaintiff can- not be sustained in an action against a street car company for injury to one at- tempting to become a passenger on its car, where there are two counts in the declara- tion, one charging simple and the other gross negligence, both of which are good, and the court, although its attention is called to the matter, fails to point out the degree of delinquency which is necessary to support a recovery under the latter count. Yancy v. Boston Elevated R. Co. 26: 1217, 91 N. E. 202, 205 Mass. 162. 1414. Refusal to charge that one cannot be said to be guilty of wilfulness or wanton- ness unless he has been guilty of miscon- duct and malice, or of some act from which misconduct and malice ought to be inferred, in an action for punitive damages for the 150 APPEAL AND ERROR, VII. m, 4. killing of a passenger, is not prejudicial error where the court instructed that puni- tive damages cannot be recovered unless there was wantonness, recklessness, or wil- fulness, since each of these words embodies the element of malice. Hull v. Seaboard Air Line R. Co. 10: 1213, 57 S. E. 28, 76 S. C. 278. 1415. When the recovery for the death of a minor child must, under the statutes, be for the sole benefit of the father, who has abandoned his family, it is reversible error to permit the jury to infer that the mother, to whose" relief in supporting the family the deceased contributed, might share in the division of the recovery, and to refuse to charge the jury that no part of the recovery could be for her benefit. Swift & Co. v. Johnson, i: 1161, 138 Fed. 867, 71 C. C. A. 619. 1416. Refusal to instruct the jury in an ac- tion for damages for the maintenance of a nuisance, that plaintiff could not recover for inconvenience to members of her fam- ily, is not prejudicial, where the only evidence upon that subject was for the pur- pose of showing the existence of the nui- sance. New York Continental Jewell Fil- tration Co. v. Wynkoop, u: 542 29 App. D. C. 594. 1417. The refusal to instruct the jury in an action upon a promissory note, wherein liability is denied by the maker upon the ground that the note has been altered by the addition of a clause making it bear interest at the rate of 5 per cent per annum from maturity, whereas, at the time of its exe- cution, it made no mention of interest, that the note would, if executed without mention of the interest, draw the statutory rate of 6 per cent per annum after maturity, is material error. New York L. Ins. Co. v. Martindale, 21: 1045, 88 Pac. 559, 75 Kan, 142. 1418. A defendant whose negligence is al- leged to have contributed to an injury for which action is brought cannot complain of a refusal to instruct as to particular al- leged negligent acts of his codefendant, if the jury finds the codefendant to be neg- ligent, and his own liability must rest on some negligent act of his own. Jaquith v. Worden, 48: 827, 132 Pac. 33, 73 Wash. 349. 1419. A judgment of conviction in a crimi- inal case will not be reversed for the er- roneous refusal of the court to give certain instructions, where it appears that, if the instructions requested had been given, the verdict would have been the same. Hendrix v. State, 43: 546, 129 Pac. 78, 8 Okla. Grins. Rep. 530. 1420. In a prosecution for burglary, the accused having admitted that, fifteen min- utes prior to the time a person was de- tected attempting to rifle a safe in the office of a mill building, he was in close proximity thereto, and one witness having identified him as the guilty party, it is not prejudicial error for the court, after it has fully instructed as to the burden of proof, the presumption of innocence, and as to every element essential to constitute the Digest 1-52 KR.A.(N.S.) crime, and that, if the proof is not beyond all reasonable doubt as to all of those ele- ments, the jury should acquit, to refuse specifically to instruct concerning the de- fense of an alibi, although the accused tes- tified that at the precise time the burglary was committed he was about 20 rods dis- tant from the mill building. Schultz v. State, 34: 243, 130 N. W. 105, 88 Neb. 613. 1421. Failure to charge upon the effect of absence of outcry is immaterial in a trial for assault with intent to rape, where the victim was in a state of insensibility pro- duced by intoxication. Quinn v. State, 46: 422, 142 N. W. 510, 153 Wis. 573. 1422. Omission to instruct the jury that, to be guilty of rape by intercourse with an intoxicated woman, accused must have knowledge of her intoxicated condition, is not prejudicial error where the evidence discloses that he himself had brought about her intoxicated condition. Quinn v. State, 46: 422, 142 N. W. 510, 153 Wis. 573. 1423. The failure of the court, on a trial for homicide, to give a proper written re- quest fully embodying the law applicable to the sole theory under which the accused was claimed to be responsible for the murder of the deceased, is ground for a new trial. Brooks v. State, 12: 889, 57 S. E. 483, 128 Ga. 261. 1424. Where the attorney for the state in a prosecution for homicide was erron- eously permitted to interrogate witnesses for the state as to whether or not they had an interview with the attorney for the defendant, and, upon an affirmative reply, whether or not they had not violated his instructions not to talk to anyone about the case without his permission, it is error to refuse a request to charge that the at- torney for the state had no authority to make any such request or enforce obedience to it so far as it affected counsel for the defendant; and that it is the right of coun- sel for a defendant to ascertain by proper and legitimate means the nature, strength, and credibility of testimony to be offered in the case, so long as they do not by word or act attempt in any manner to influence a witness to conceal, modify, or change his testimony from that which is absolutely true. State v. Cooley, 52: 230, 140 Pac. 1111, N. M. . Where no instruction is requested. Effect of failure to request generally, see TRIAL, 843-845. See also supra, 1355. 1425. Mere failure to charge a jury upon a particular proposition of law is not re- versible error, unless a suitable instruction has been tendered. Maxson v. J. I. Case Threshing Mach. Co. 16: 963, 116 N. W. 281, 81 Neb. 546. 1426. Mere failure to instruct the jury on a particular issue is not reversible error, unless a specific instruction, good in point of law, covering the omission, is requested. Duncan v. National Mut. F. Ins. Co. 20: 340, 98 Pac. 634. 44 Colo. 472. 1427. Failure to instruct the jury on the question of damages in an action for wrong- APPEAL AND ERROR, VII. m, 4. 151 fully expelling a member of a fraternal benefit society is not ground for reversal if no instructions were asked at the trial, and the damages awarded are well within what might properly be assessed. Independent Order of S. & D. of J. of A. v. Wilkes, 52: 817, 53 So. 493, 98 Miss. 179. 1428. It is not reversible error to fail to require the separation of compensatory and punitive damages in the verdict, in the absence of a request for such action. Chesa- peake & 0. R. Co. v. Johns, 50: 853, 159 S. W. 822, 155 Ky. 264. 1429. The failure of the court to define the term "seduction" as used in an instruction to the jury in an action for breach of prom- ise to marry, that the jury may take into account the plaintiff's seduction, is not er- ror in the absence of a request for an in- struction on STich subject. Dalrymple v. Green, 43: 972, 129 Pac. 1145, 88 Kan. 673. 1430. In the absence of a request in a murder trial for a definition of the words "in the heat of passion," the omission to give one is not a ground for reversal. State v. Buffington, 4: 154, 81 Pac. 465, 71 Kan. 804. 1431. Error cannot be predicated upon an omission to give a special instruction which was not requested upon the trial of a crim- inal charge, where the court presented the principal questions involved to the jury. State v. Shaw, 21: 27, 100 Pac. 78, 79 Kan. 396. 1,432. It is the duty of the trial judge, par- ticularly in criminal actions, to instruct the jury as to the rules of law governing the disposition of the cause, whethei he is re- quested to do so or not; and, if a charge to a jury, by omission to instruct on certain points, in effect withdraws from their con- sideration an essential issue of the case, it is erroneous. Young v. State, 2: 66, 104 N. W. 867, 74 Neb. 346. As to facts or evidence. 1433. It is error to refuse a requested in- struction pointing out particular phases of the evidence, although an instruction has been given dealing in general terms with the point involved. Penny v. Atlantic C. L. R. Co. 32: 1209, 69 S. E. 238, 153 N. C. 296. 1434. Refusal to instruct the jury in an action on a life insurance policy, the de- fense to which is suicide, that the proofs of loss offered in evidence to show that they were furnished are not evidence of the facts therein stated, is reversible error. Metropolitan L. Ins. Co. v. People's Trust Co. 41: 285, 98 N. E. 513. 117 Ind. 578. 1435. Refusal to charge the jury, as re- quested, that one seeking damages for per- sonal injuries could not recover unless the specific act of negligence relied on in the complaint was estaolisl ed by a preponder- ance of the evidence, is reversible error, where the gene al charge contains no in- structions on that point, merely stating that the plaintiff must prove by fair pre- ponderance of evidence that the accident was caused by defendant's negligence, and the evidence is conflicting as to whether or Digest 1-52 I*R.A.(N.S.) not the injury was caused by the negligence charged. Dambmann v. Metropolitan Street R. Co. 2: 309, 73 N. E. 59, 180 N. Y. 384. 1436. It is not reversible error to refuse a charge on circumstantial evidence in a prosecution for assault with intent to rape, if no issue in the case depends entirely upon such evidence. Quinn v. State, 46: 422, 142 N. W. 510, 153 Wis. 573. 1437. Failure to instruct in a prosecution for burglary that, in order to convict where the only evidence of intent is circumstan- tial, the circumstances must be such as to exclude every reasonable hypothesis con- sistent with respondent's innocence, is not error where accused had testified to the entry and subsequent larceny. State v. Lapoint, 47: 717, 88 Atl. 523, 87 Vt. 115. As to burden of proof. 1438. Failure to instruct the jury that the statutory certificate of the factory inspect- or is prima facie evidence that machinery was properly guarded is not prejudicial er- ror, where the inspector has testified in the case that the machine was properly guard- ed, so that no issue as to the existence of a prima facie case is before the jury. Benner v. Wallace Lumber & Mfg. Co. 45: 128, 105 Pac. 145, 55 Wash. 679. c. Modification of instruction. (See also same heading in Digest T j.R.A. 1-10.) Modification generally, see TRIAL, 880. Sufficiency of compliance, generally, wit! request, see TRIAL, 822-825. 1439. Prejudicial error is committed where the court, after instructing the jury that they may disregard the testimony of any witness testifying falsely, or give it such weight as they regard it entitled to, refuses to modify the instruction upon his attention being called thereto by counsel, so as to make essential knowledge of the falsity of the matter testified to. State v. Sugarman, 52: 999, 148 N. W. 4G6, 126 Minn. 477. 5. Argument, remarTcs or conduct of counsel. (See also same heading in Digest L.R.A. 1-10.) Necessity for exceptions to, see supra, 343. Errors waived or cured below, see supra, 815. As ground for new trial, see NEW TRIAL, 12, 13. Matters as to generally, see TRIAL, I. d 152 APPEAL AND ERROR, VII. m, 5. 1440. Improper argument by counsel will not require a reversal if, from the whole case, it is evident that it did not prejudice the rights of the complaining party. Pa- ducah Box & Basket Co. v. Parker, 43:179, 136 S. W. 1012, 143 Ky. 607. 1441. To warrant reversal for remarks of counsel in his argument to the jury, they must be prejudicial. Pigford v. Norfolk Southern R. Co. 44: 865, 75 S. E. 860, 160 N. C. 93. 1442. A case will not be reversed because of remarks of counsel in argument as to the effect of instructions which had been given by the court, if they are no more than correct inferences to be drawn from the record. Pulaski Gas Light Co. v. Me- Clintock, 32: 825, 134 S. W. 1189, 97 Ark. 576. 1443. Remarks of counsel, in an action for personal injuries, as to the expectancy of the injured person according to mortality tables, when no mortality tables are in evidence, do not constitute reversible error, when subsequently qualified by counsel and court, and the size of the verdict does i.ot indicate that the jury was prejudiced there- by. Molin v. Wark, 41 : 346, 129 N. W. 383, 113 Minn. 190. 1444. It is not error for counsel, in argu- ing to the jury in an action to hold one lia- ble in damages for killing another, to ask them to consider what the life of decedent would be worth to his widow and children. Foster v. Shepherd, 45: 167, 101 N. E. 411, 258 111. 164. 1445. Permitting counsel to state to the jury, in an action for charging a girl with fornication, that one guilty of making such charge is not fit to live in the county, is not reversible error. Miller v. Nuckolls, 4: 149, 91 S. W. 759, 77 Ark. 64. 1446. It is not reversible error for that torney to state, in arguing to the jury in an action to recover damages for personal injuries, that defendant paid more for coun- sel to defend the suit than to remedy the lack of safety in the working place which caused the injury, if such was the fact. Marshall v. Dalton Paper Mills, 24: 128, 74 Atl. 108, 82 Vt. 489. 1447. A statement by the state's attorney when summing up a criminal case to the jury, to the effect that to the knowledge of the presiding judge one of the number had been fixed, based not upon facts in evidence, but upon the judge's statement to him that he had seen the juror and a rela- tive of the accused in conversation under suspicious circumstances, an objection to which the judge overrules, is reversible error. Turpin v. Commonwealth, 30: 794, 130 S. W. 1086, 140 Ky. 294. (Annotated) 1448. A statement by the prosecuting at- torney in a rape case, that unless the jury assessed the death penalty, the people would take the law into their own hands in the future; that "if you turn the defendant loose, you cannot blame the people for tak- ing the law into their own hands," and that it would be much worse than convicting an innocent man, to turn this defendant loose Digest 1-52 L.R.A.(N.S.) and then in a week or two for him to rape one of your wives, sisters, or daughters, is reversible error. Hemphill v. State, 51: 14, 165 S. W. 462, Tex. Crim. Rep. . (Annotated ) 1449. Where the evidence conclusively shows the guilt of a defendant of murder, and the jury convicts him only of man- slaughter, ordinarily the court will not con- sider objections to improper remarks made by the county attorney in his closing argu- ment to the jury. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. As to evidence, witnesses, and facts. Argument as to, generally, see TRIAL, 71-75. 1450. It is prejudicial error for counsel persistently to continue to offer evidence in various forms which the court has ruled to be incompetent. Thomas v. Township of Byron, 38: 1186, 134 N. W. 1021, 168 Mich. 593. 1451. It is not reversible error for the prosecuting attorney to comment in argu- ment to the jury upon the failure of ac- cused in a murder case to call a witness, although it is a matter of inference that he might not have been in a position to see what occurred. State v. Larkin, 46: 13, 157 S. W. 600, 250 Mo. 218. 1452. It is error for the prosecuting attor- ney in a criminal case to ask questions which, by insinuation and innunendo, tend to reflect upon the moral character of ac- cused, when there is not a scintilla of tes- timony to justify them. Bailey v. People, 45: 145, 130 Pac. 832, 54 Colo. 337. 1453. The persistence of the prosecution in attempting to draw out evidence detrimen- tal to the character of accused, notwithstand- ing adverse rulings of the trial court, and in insinuating in the questions asked that public sentiment is strong against him, is reversible error. Shipp v. Com. 10: 335, 99 S. W. 945, 124 Ky. 643. 1454. It is not such abuse of discretion on the part of the trial court to refrain from interfering with remarks by the prosecuting attorney to the effect that accused had been drinking, were lying, and were guilty, so as to require reversal, where there was evi- dence in the record tending to show that they had been drinking. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 1455. It is prejudicial misconduct for the prosecuting attorney, in addressing the jury on a trial for rape, to urge a conviction "in view of the fact that you have before you two girls whose lives have been ruined by this defendant," where there is no evidence in the record that the defendant had ruined the lives of two girls, as stated by the at- torney. State v. Nvhus, 27: 487, 124 N. W. 71, 19 N. D. 326. 1456. A conviction for obtaining money by false pretenses will not be reversed because the prosecuting attorney, in his argument to the jury, stated that the defendant was com- mitting adultery every day, where he was living with a woman not his wife, and the gist of the argument was not that his rela- tions were such as the word used defines, but that they were immoral and affected the APPEAL AND ERROR, VII. m, 6. 153 credibility of the accused. People v. Ranney, 19: 443, 116 N. W. 999, 153 Mich. 293. 1457. It is not reversible error for counsel, in arguing to the jury, to state as a fact matter which may fairly be inferred from the evidence, if, in so doing, he is not at- tempting to testify, but is merely asking the jury to find that he was stating what the evidence tended to prove. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . Correction or withdrawal. 1458. Statements by counsel in argument, of facts outside the record, will not require reversal if the admonition of the court was sufficient to cause the jury to disregard the statement. Cumberland Teleph. & Teleg. Co. v. Quigley, 19: 575, 112 S. W. 897, 129 Ky. 788. 1459. That the court rebuked improper re- marks by counsel to the jury in a quiet manner merely is not reversible error, where the objecting party offered no in- structions requiring them to disregard the remarks. Miller v. Nuckolls, 4: 149, 91 S. W. 759, 77 Ark. 64. 1460. The misconduct of a prosecuting at- torney in urging, in his address to the jury on a trial for rape, a conviction "in view of the fact that you have before you two girls whose lives have been ruined by this defendant," where there was no evidence in the record that the defendant had ruined the lives of two girls, is not rendered non- prejudicial by a general caution in the in- structions to the jury that misstatements of the evidence by the attorneys should be disregarded, and the issue determined from the evidence alone. State v. Nyhus, 27: 487, 124 N. W. 71, 19 N. D. 326. 6. Remarks or conduct of judge. (See also same heading in Digest L.R.A. 1-70J Matters as to, generally, see TRIAL, I. h. Indicating opinion as to evidence, see TRIAL, 966. 1461. While the trial court has a wide discretion in the conduct of the trial, it must not invade the province of the jury by making comments, insinuations, or sug- gestion indicative of belief or unbelief in the integrity or credibility of witnesses. Minneapolis v. Canterbury, 48: 842, 142 N. W. 812, 122 Minn. 301. 1462. It is reversible error for the court, upon the trial of a case and in the hearing of the jury, to express or intimate an opin- ion as to what has or has not been proved with reference to a fact of vital importance in the controversy between the parties. At- lantic Coast Line R. Co. v. Powell, 9: 769, 56 S. E. 1006, 127 Ga. 805. 1463. It is prejudicial error for the court to instruct counsel in the presence of the jury that it is not permissible to manu- facture anything in the case, where the re- mark is unwarranted by any circumstance. Digest 1-52 KR.A.(N.S.) Foster v. Shepherd, 45: 167, 101 X. E. 411, 258 111. 164. 1464. It is reversible error for the judge to communicate with the jury otherwise than as provided by law, as by holding con- ferences with the foreman not in open court. Texas Midland R. Co. v. Byrd, 20: 429, 115 S. W. 1163, 102 Tex. 263. 1465. It is reversible error for a regular judge, pending the trial of a cause begun and continued before a special judge, duly elect- ed to preside in the absence of such regular judge, on making his appearance at the same term, to assume jurisdiction thereof, pro- ceed with the trial, and pronounce judgment therein. State v. Stevenson, 19: 713,^62 S. E. 688, 64 W. Va. 392. 1466. It is prejudicial error for the court, after receiving a prisoner's plea of guilty of murder in the first degree, and before pro- nouncing judgment thereon, to proceed, in the absence of the prisoner, to examine witnesses and hear, from the special judge who presid- ed at the time of receiving such plea, state- ments respecting the circumstances and facts of the killing, whether such examina- tion be for the personal satisfaction of the judge pronouncing the judgment of the court, or to advise him as to the character of judgment that should be pronounced on said plea. State v. Stevenson, 19: 713, 62 S. E. 688, 64 W. Va. 392. 1467. One on trial for murder cannot be prejudiced by an admonition to an accom- plice who takes the stand on behalf of the people that any statement he may make may be used against him, if the jury are afterwards told that he is testifying under an agreement that, if he lives up to his agreement made with the state as to giv- ing testimony, he will not be prosecuted. Grant v. State, 42: 428, 148 S. W. 760, Tex. Crim. Rep. . ' & . 1468. A statement of the judge to the jury in a criminal case that certain evidence which had a certain tendency could be con- sidered only under certain circumstances is not reversible error, as intimating the opinion of the judge on the evidence, where the sole purpose of the statement was to identify it so as to limit its application in favor of accused. State v. Dobbins, 42: 735, 132 N. W. 805, 152 Iowa, 632. 1469. It is not reversible error for the court, in granting the request of the prose- cuting attorney to cross-examine his own witness in a criminal case, because he was unwilling, to state in the presence of the jury that he sees that he is unwilling. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 1470. A promise of the court to consider a recommendation by the jury in a criminal case will vitiate a verdict of guilty, as tending to influence the verdict, although, because the maximum penalty must be imposed under the indeterminate-sentence law, the recommendation was of no utility. State v. Kernan, 40: 239, 135 N. W. 362, 154 Iowa, 672. (Annotated) 1471. A remark of the trial judge, in over- ruling an objection that the questions asked 154 APPEAL AND ERROR, VII. m, 7. a witness were leading, that he was only thirteen years old, very young, that such questions could be asked such witnesses, is not reversible error as an unconstitutional comment on the facts, where the testimony as to his age does not conflict. State v. McDowell, 32: 414, 112 Pac. 521, 61 Wash. 398. 1472. Fining and imprisoning a witness for refusal to answer questions is not rever- sible error in a criminal case, on the theory that it indicates to the jury an opinion of guilt on the part of the judge. Loan v. State, 43: 844, 153 S. W. 305, Tex. Crim. Rep. . (Annotated) 7. As to jury; conduct of trial. a. in general. (See also same heading in Digest L.R.A. 1-10.) See also supra, 640. 1473. A judgment which is right on the law and facts will not be reversed for inter- vening errors of procedure. Logansport v. Jordan, 37: 1036, 85 N. E. 959, 171 Ind. 121. 1474. Merely informing the jury, which has requested the testimony of a witness to be read to it on Sunday, that the re- quest will be complied with the following morning, will not require a reversal of the cause if the jury do mot wait for the evi- dence but agree on a verdict on Sunday. Auld v. Cathro, 32: 71, 128 N. W. 1025, 20 N. D. 461. 1475. That the sheriff, in conducting the jury to luncheon by a convenient and natu- ral route, passes a building in which an explosion occurred, which forms the sub- ject-matter of the action, is not reversible error if the injury to the building has been repaired, and their attention is not called to the fact that the building is the one under consideration. Higgins v. Los An- geles Gas & Electric Co. 34: 717, 115 Pac. 313, 159 Cal. 651. 1476. In an action to hold a gas company liable for injury to a building through the explosion of gas which was alleged to have been caused by the negligent use of an elec- tric flash lamp in searching for a leak in the pipes, it is not reversible error te per- mit the jury to take to their room a similar lamp with which to experiment, to deter- mine whether or not it would produce a spark which would ignite gas, where de- fendant's liability depends on negligence in permitting the leak, and not upon the method by which the gas was ignited. Hig- gins v. Los Angeles Gas & Electric Co. 34: 717, 115 Pac. 313, 159 Cal. 651. (Annotated) 1477. Permitting the jury in a homicide case to take a dying declaration which had been reduced to writing and introduced in evidence, to their room, under the erro- neous belief that it was within the terms of a statute providing what papers shall Digest 1-52 L.B.A.(N.S.) be allowed to be so taken, is reversible error. Territory v. Eagle, 30: 391, 110 Pac. 862, 15 N. M. 609. 1478. Where after an arraignment and plea of not guilty to an information for homicide, an amendment is allowed to cor- rect a defect in the date of the crime, which was alleged therein as subsequent to the filing of the information, it is error for the trial court to require the accused, over his objection, immediately to proceed with the trial without arraignment under, and plea to, such amended information, and without giving him the statutory time in which to plead thereto. McKay v. State, 39: 714, 132 N. W. 741, 135 N. W. 1024, 90 Neb. 63, 91 Neb. 281. 1479. It is prejudicial error to appoint aa an assistant prosecutor in a criminal prose- cution an attorney who has theretofore been employed and paid by another person- sus- pected of the crime, and who has appeared, for such person in the preliminary exami- nation and in a former trial of the accused, taking an active part therein for the pur- pose of protecting his suspected client. Flege v. State, 47: 1106, 142 N. W. 276, 93 Neb. 610. (Annotated) 1480. Where, at the close of the evidence in a criminal prosecution, the judge and attorneys went to a room other than the court room, and there, in the absence of the accused, a motion to strike out certain evidence was made, argued, and decided against the accused, and where, upon the discovery of the absence of the accused, the court had him brought in and stated to him and his counsel that the court would again hear the motion argued, an offer which the prisoner's counsel in his presence declined to accept, reversible error is committed and the accused is entitled to a new trial. State v. Sutter, 43: 399, 76 S. E. 811, 71 W. Va. 371. 1481. A judgment of conviction of one ac- cused of homicide will not be reversed be- cause he was not present when his motion for new trial was argued. Henry v. State, 52: 113, 136 Pac. 982, 10 Olda. Crim. Rep. 369. 1482. When a juror becomes insane pend- ing the trial of a criminal case, the court must declare a mistrial and proceed de novo, and it is fatal error to substitute another juror and proceed with the trial, if proper objections are taken to such proceeding. Dennis v. State, 25: 36, 50 So. 499, 96 Misa. 96. (Annotated) 1483. Merely bringing the child into the court room in a bastardy proceeding is not reversible error, if it is immediately re- moved without the attention of the jury being called to it, or any reference to it being made in the presence of the jury. Johnson v. Walker, 1:470, 39 So. 49, 86 Miss. 757. Excluding witnesses. 1484. One on trial for murder, whose de- fense is insanity, is not prejudiced by the action of the court in excluding alienists who testify on his behalf from the court room during the testimony of all but the APPEAL AND ERROR, VII. m, 7. 155 principal witnesses. Smith v. State, 27: 461, 49 So. 945, 95 Miss. 786. Opening and closing. As to right to open and close, generally, see TRIAL, 07. 1485. In a prosecution for the alleged com- mission of a crime, the defendant may waive his opening statement to the jury; but if the court compels counsel, over their objections, to make that statement, the er- ror is without prejudice, unless it affirma- tively appears from the record that defend- ant suffered some disadvantage thereby. Pumphrey v. State, 23: 1023, 122 N. W. 19, 84 Neb. 636. Refusal to elect Let-ween counts. As to election between counts generally, see TRIAL, I. b. 1486. Where a plaintiff set up in his peti- tion three counts based on the same trans- action, and at the close of the testimony elected to stand on one of the counts, and the case was submitted to the jury as a single cause of action, the refusal of the court to require an earlier election was not prejudicial error. Edwards v. Hartshorn, i: 1050, 82 Pac. 520, 72 Kan. 19. Order of reception of evidence. As to order of proof generally, see TRIAL, 32-40. 1487. That the trial court received evi- dence out of its proper order is not ground for reversal, except in a clear case of abuse of discretion. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 1488. While evidence in a trial for homi- cide, that the witness saw the deceased immediately before the shooting, and knew that he did not make any motion toward his right side or right pants' pocket, is properly evidence in chief, the admission thereof in rebuttal where it is contradic- tory of evidence given by the defendant is a matter of discretion of the trial court, and does not constitute a ground for rever- sal unless an abuse of discretion is shown. Hampton v. State, 40: 43, 123 Pac. 571, 7 Okla. Grim. Rep. 291. 1489. It is not reversible error to refuse to permit questions to be put to a witness on recross-examination, where no excuse is given why they were not asked upon the cross-examination, where the witness has been finished with once and recalled, and the party offering him has finished with him. Duffey v. Consolidated Block Ccal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. 1490. It is not reversible error to refuse to reopen an action for rent of property leased for saloon purposes, which use has failed because of the enactment of a prohibition law, to enable defendant to show that the rental value of the property was much less for any other purpose, where the lease con- tains no provision for relief in such cases. Hecht v. Acme Coal Co. 34: 773, 113 Pac. 788, 117 Pac. 132, 19 Wyo. 18. Digest 1-52 L.R.A.(N.S.) b. Summoning and selection of jury. (See also same heading in Digest L.R.A. 1-10.) Errors cured below, see supra, 814. Summoning and selection of jury generally, see JURY, II. Ground for new trial as to, see NEW TRIAL, III. c. See also supra, 1030. 1491. Where a competent, impartial, and honest jury is secured in a murder case, a conviction will not be reversed because of some inadvertent failure to comply with every directory provision of the jury law, in the absence of any showing of prejudice against accused. State v. Barnes, 23: 932, 103 Pac. 702, 54 Wash. 932. 1492. The trial court is vested with great discretion in excluding veniremen or tales- men from a jury, and its rulings in that particular are not subject to review, unless a fair jury was not obtained. Pumphrey v. State, 23: 1023, 122 N. W. 19, 84 Neb. 636. 1493. A judgment of conviction will not be set aside because of alleged error in over- ruling defendant's challenges for cause to veniremen, on the ground that he was com- pelled by reason of such rulings to exhaust his peremptory challenges, where none of such persons sat upon the jury, and it does not affirmatively appear that they were peremptorily challenged by him. Pum- phrey v. State, 23:1023, 122 N. W. 19, 84 Neb. 636. 1494. A judgment of conviction of murder will be reversed where the record shows that, after the regular panel of jurors had been exhausted, the deputy marshal, in summoning additional talesmen, improperly discriminated against men acquainted with defendant's counsel, for the purpose of ob- taining the conviction. United States v. Hargo, 20: 1013, 98 Pac. 1021, 1 Okla. Crim. Rep. 590. 1495. It is error for the court to exclude from the jury all persons of the Catholic faith who reside within the diocese of a bish- op who has title to property in trust for the Church, the right to remove a building from which is in controversy, on the theory that they are pecuniarily interested therein, where they are not members of the parish where the property is located. Searle v. Ro- man Catholic Bishop, 25: 992, 89 N. E. 809, 203 Mass. 493. 1496. It is error to retain upon the jury, over a challenge, resident taxpayers of a city against which a judgment is sought, at least where there is no difficulty in pro- curing jurors whose impartiality is unques- tioned. Broadway Mfg. Co. v. Leaven- worth Terminal R. & B. Co. 28: 156, 106 Pac. 1034, 81 Kan. 616. 1497. Even though the trial court may improperly overrule a challenge for cause 1' to a juror, yet, if the defendant perempto- rily challenges said juror, and if it appears that the defendant did not exhaust all of 156 APPEAL AND ERROR, VII. m, 7. his peremptory challenges, and that no ob- jectionable juror was forced on the defend- ant, the error of the court in improperly overruling such challenge will be harmless, and will not be ground for the reversal of a conviction. Warren v. State, 34: 1121, 115 Pac. 812, 6 Okla. Grim. Rep. 1. 1498. Refusal to sustain a challenge for actual bias as to one called as a juror in a criminal prosecution who stated on his voir dire examination that he had formed such an opinion as to the guilt of the ac- cused as would require evidence to remove, constitutes prejudicial error, although the evidence produced may show the defendant guilty beyond all peradventure of a doubt, since the accused has an absolute right to have preserved to him his constitutional rights of the presumption of innocence and a trial by an, impartial jury. Scribner v. State, 35: 985, 108 Pac. 422, 3 Okla. Crim. Rep. 601. 1499. An accused cannot complain of the sustaining of challenges by the state where he has unexhausted challenges when the jury is complete, so that it does not ap- pear that any objectionable juror was forced upon him. Grant v. State, 42: 428, 148 S. VV. 760, Tex. Crim. Rep. . 1500. Under a statute rendering incompe- tent as a juror in a criminal prosecution one who has read the testimony of the wit- nesses and formed or expressed an opinion as to the guilt or innocence of the accused thereon, for such facts are made to ap- pear, there is no discretion lodged in the court, and it is manifest error to overrule a challenge for cause on this ground. Flese v. State, 47: 1106, 142 N. W. 276, 93 Neb. 610. 1501. A true verdict in a criminal case will not be set aside because a juror was inadvertently given a wrong Christian name on the slip placed in the wheel, so that defendant's counsel investigated the qualifi- cations of the wrong man, if the occupation and residence were correctly given, and no objection was made to him. Com. v. Potts, 47: 714, 88 Atl. 483, 241 Pa. 325. (Annotated) 1502. The swearing of the jury upon the trial of an indictment for embezzlement, in advance of the arraignment and plea of the accused, and not again thereafter, is rever- sible error. United States v. Aurandt, 27: 1181, 107 Pac. 1064, 15 N. M. 292. c. Conduct of, or interference with, jury. (See also same heading in Digest L.R.A. Ground fo new trial as to, see NEW TRIAL, III. d. Conduct of, or interference with, jury gen- erally, see TRIAL, V. b. See also supra, 441. 1503. Taking notes of the testimony, by a juror, does not require the setting aside of the verdict; but the matter is within the Digest 1-52 L.R.A. (N.S.) discretion of the trial court. Com. v. Tuck- er, 7: 1056, 70 N. E. 127, 189 Mass. 457. 1504. The taking of a hat which had been introduced in evidence in an action for damages for an assault and battery, to the jury room, constitutes an unprejudicial ir- regularity not affording ground for a re- versal, where the evidence adduced upon a motion for a new trial showed beyond ques- tion that the act was an innocent mistake of one of the jurors, and that no use was made of the hat by the jury which could in any way affect or influence the minds of the jurors or work any injury to the de- fendant. Morris v. Miller, 20: 907, 119 N. W. 458, 83 Neb. 218. 1505. That a juror, while in a jury room, stated to a fellow juror, in a side talk, that, about two weeks before the fire, he had removed a trunk from the house of the de- fendant, who was being prosecuted for the burning thereof, does not constitute mis- conduct sufficient to invalidate a verdict, where such statements were not discussed or considered as a part of the evidence. State v. Shaw, 21 : 27, 100 Pac. 78, 79 Kan. 396. 1506. It is reversible error to permit the jury impaneled to try one accused of il- legal liquor selling, to listen to a political address advocating state-wide prohibition, in which violations of local option laws are discussed. Rigsby v. State, 38: 1116, 142 S. W. 901, 64 Tex. Crim. Rep. 504. (Annotated) 1507. A conviction for homicide will be re- reversed where the jury, pending the trial, were allowed to mingle with the crowd in the lobby of the hotel where they stopped and in the corridors of the courthouse, and were permitted to secure intoxicating liquor at saloons, and have it brought to their room in the hotel. Com. v. Fisher, 26: 1009, 75 Atl. 204, 226 Pa. 189. 1508. A verdict recovered by a party who, pending the action, took jurors to the bar to drink in the absence of other jurors and the officers in charge of them, will be set aside at the instance of the other party; and he will be required to pay the costs regardless of the absence of wrongful intent or the fact that the verdict was not influenced thereby. Scott v. Tubbs, 19: 733, 95 Pac. 540, 43 Colo. 221. (Annotated) d. Submission of issues; directing ver- dict. (See also same heading in Digest L.R.A. 1-70.) Errors as to, cured or waived below, see supra, VII. k, 5. 1509. It is not reversible error for the court to permit a jury trial, although notice of election to try the case to a jury was not given, as required by statute. Sholin v. Skamania Boom Co. 28: 1053, 105 Pac. 632, 56 Wash. 303. Submitting issues. As to submission of issues to jury generally, see TBIAL, II. APPEAL AND ERROR, VII. m, 7. 157 As to special interrogatories generally, see TRIAL, II. e. 1510. It is error to refuse to submit to the jury issues which there is evidence tending to support. Kuschinsky v. Flani- gan, 41: 430, 136 N. W. 362, 170 Mich. 245. 1511. The submission to the jury of a cause of action in the complaint, which there is no evidence to support, will require a rever- sal, where it is impossible to tell upon which cause of action the damages were allowed. Chase v. Knabel, 12: 1155, 90 Pac. 642, 46 Wash. 484. 1512. Submission to the jury of an issue which there is no sufficient evidence to sup- port is error which will require the setting aside of a verdict in favor of the one having the burden of establishing it. Hobbs v. George W. Blanchard & Sons Co. 18: 939, 70 Atl. 1082, 75 N. H. 73. 1513. Under a statute giving the appellate court in a trial de novo of probate matters authority to order a trial by jury, but re- quiring such order to state distinctly and plainly the questions of fact to be tried it is error for the court which has thus ordered a jury trial to submit the case to the jury for a general verdict; but the case should not be reversed for such an error, where it affirmatively appears that, not- withstanding the verdict of the jury, the trial judge reviewed the evidence and reached the same conclusion as the jury Apache State Bank v. Daniels, 40: 901, 121 Pac. 237, 32 Okla. 121. Refusal or failure to submit issue. Refusal of special interrogatories generally, see TRIAL, II. e. 1514. The failure of the trial court to sub- mit the question of exemplary damages is harmless error as to the plaintiff, even though he was entitled to such submission, where there is no liability whatever found by the jury. Puls v. Hornbeck, 29: 202, 103 Pac. 665, 24 Okla, 288. 1515. It is not error to refuse to submit to the jury a special interrogatory if an interrogatory submitted by the court of its own motion was fair and full. Mer- rill v. Los Angeles Gas & Electric Co. 31: 559, 111 Pac. 534, 158 Cal. 499. 1516. It is not error to refuse to submit to the jury a special interrogatory if the return of the answer expected by the one propounding it would not control a general verdict in favor of his opponent. Mer- rill v. Los Angeles Gas & Electric Co. 31: 559, 111 Pac. 534, 158 Cal. 499. 1517. Refusal to submit a special question to the jury is not error, if, by findings on the issues submitted to them, the jury an- swer the question against the contention of the one taking the exception. Manning v. Anthony, 32: 1179, 94 N. E. 466, 208 Mass. 399. 1518. Where it is a disputed question of fact whether a person who employed the workmen and superintended the operation of a gypsum mine was an independent con- tractor or the superintendent for the owner, it is error to instruct the jury that the owner is liable for fatal injuries to a Digest 1-52 I,.R.A.(N.S.) laborer employed in the mine, caused by the negligence of the person so superintending the mine, without submitting to the jury the disputed question of fact as to the re- lation of the superintendent to the owner. Laffery v. United States Gypsum Co. 45: 930, 111 Pac. 498, 83 Kan. 349. Demurrer to evidence. As to demurrer to evidence generally, see TRIAL, II. d, 4. 1519. Where the evidence in an action against the devisees of a grantee in a deed, to set aside the deed, shows that sixteen years elapsed after the execution of the deed and prior to the bringing of the ac- tion; that the land deed was situated in a state other than that in which the par- ties resided; that the deed was executed upon the erroneous advice of an attorney as to the rights of inheritance between the grantor and grantee in the land in ques- tion; and that no circumstances arose to cause distrust of the advice given until a short time before the action was begun; and that no rights of third parties have intervened nor has any change of conditions occurred that would make it inequitable to grant relief, the laches of complainant is a question of fact, and it is error to sus- tain a demurrer to the evidence and dis- miss the action. Osincup v. Henthorn, 46: 174, 130 Pac. 652, 89 Kan. 58. Directing verdict. Error as to, waived or cured below, see supra, 871, 872. As to direction of verdict generally, see TRIAL, II. d, 3. See also supra, 413; MOTIONS AND ORDERS, 5. 1520. Under the principle of de minimis non curat lex refusal to direct a verdict for 39 cents, although erroneous, does not con- stitute ground for reversal, where no ques- tion of costs is involved. McGregor v. Harm, 30: 649, 125 N. W. 885, 19 N. D. 599. 1521. Where issues of fact are presented by the pleadings and supported by evidence, and the facts are disputed, or the credibili- ty of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from facts proven, the case, under proper instructions, should be submitted to the jury; and it is revers- ible error in such case to sustain a mo- tion to direct a verdict. Adams v. Coon, 44: 624, 129 Pac. 851, 36 Okla. 644. 1522. A defeated party who has intro- duced at the trial all the legal evidence he offered, and has rested his case, is thereby estopped from denying that he can do no more to overcome the objection that the vidence is insufficient to sustain a verdict in his favor, and if the bill of exceptions ontains all the evidence, and it is clear beyond doubt that it could not sustain a verdict in his favor, an instruction by the ourt to return a verdict against him upon some other, but untenable, ground, is er- ror without prejudice, and no ground for reversal. Bank of Havelock v. Western U. Teleg. Co. 4: 181, 141 Fed. 522, 72 C. C. A. 580. 158 APPEAL AND ERROR, VII. m, 8. 1523. Where, upon the issue of limitations, the undisputed evidence shows that plain- tiff's cause of action is not barred by oper- ation of the statute, it is error for the trial court to refuse a peremptory instruc- tion to return a verdict for the plaintiff. Fidelity & Deposit Co. v. Sheahan, 47: 309, 133 Pac. 228, 37 Okla. 702. 1524. A trial judge cannot be held to be in error in directing a verdict for defend- ant in an action brought to recover dam- ages for injury to the hand of a planer operator of mature years and some ex- perience, by his placing it in the revolving knives, on the theory that there could be no reasonable difference of opinion as to his negligence, notwithstanding his testi- mony that he did not know that revolving knives existed where he put his hand, if feeding boards into the space caused noise, vibration, and the flying of shavings, which could have been caused only by the pres- ence of such knives. Kroger v. Cumber- land Fruit Package Co. 35: 473, 130 N. W. 513, 145 Wis. 433. 1525. To require a reversal of a decision directing a verdict for defendant in an ac- tion to recover damages for personal in- juries, on the ground that there was no ground for reasonable difference of opinion upon the evidence, it must appear to have been clearly wrong. Kroger v. Cumberland Fruit Package Co. 35: 473, 130 N. W. 513, 145 Wis. 433. 1526. A verdict directed for defendant in an action against a railroad company for killing a person at a railroad crossing will not be reversed where nothing in evidence be- fore the court tends to show the exercise of care by the person killed, or anything that in law would excuse it, merely because the jury viewed the premises and might have seen something not disclosed by the evidence which would have warranted a recovery. Shum v. Rutland R. Co. 19: 973, 69 Atl. 945, 81 Vt. 186. 1527. Where the defense in an action for libel is that the communication is privi- leged, and the evidence shows that the de- fendant made an affidavit against- the plain- tiff, whom he had discharged six years previously, charging the said plaintiff with dishonesty, only after solicitation and upon the assurance that it would be used only before the department of justice and in a hearing before the Senate for the purpose of refuting charges made by the plaintiff against an appointee to public office; and there is no evidence to indicate that, since the discharge of the plaintiff by the defend- ant, any ill feeling existed on the part of the defendant, other than the fact of the discharge at which time some little diffi- culty occurred, the court does not err in holding the communication a qualified privi- lege and in taking the question of malice awav from the jury. Tuohy v. Halsell, 43: 323/128 Pac. 126, 35 Okla. 61. 1528. Where the evidence submitted in be- half of a proponent as to the due execution of an instrument offered for probate, and as to the testamentary capacity of the Digest 1-52 L,.R.A.(N.S.) alleged testatrix at the time of its execu- tion, is sufficient to make out a prima facie case for the probate of the paper as a will, and no evidence is adduced for the contest- ant, it is error to direct a verdict in favor of the latter. Wells v. Thompson, 47: 722, 78 S. E. 823, 140 Ga. 119. 8. As to findings, verdict, or judgment. (See also same heading in Digest L.R.A. 1-10.) As to findings generally, see TRIAL, IV. As to verdict generally, see TRIAL. V. 1529. Error in changing the finding of the jury in respect to an issue propounded to them will not require a reversal of the judgment if it is supported by the other findings in the case. Sprinkle v. Wellborn, 3: 174, 52 S. E. 666, 140 N. C. 163. 1530. A judgment unsupported by the find- ings and conclusions of law will be reversed. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 1531. That the verdict in an action to re- cover possession of real estate is in favor of all the plaintiffs, and also in favor of "those defendants who are tenants in com- mon with the plaintiffs," evidently meaning those thus named and described in the petition, but failing to specify their names or the precise proportional share of each plaintiff or prevailing defendant, does not prejudice the defendants, and is not ground for reversal. Fowler v. Wood, 6: 162. 85 Pac. 763, 73 Kan. 511. 1532. The submission to the jury of a pro- posed form of special verdict prepared by counsel for the plaintiff is not such an ir- regularity as will require the special ver- dict by the jury to be set aside, where counsel for defendant declined to prepare or assist in the preparation of such a form, and the jury were told that they were at liberty to disregard it. Rheinheimer v. ^Etna L. Ins. Co. 15: 245, 83 N. E. 491, 77 Ohio St. 360. 1533. A provision in a decree in an action for a divorce brought by a husband, in which alimony was allowed to the wife and a divorce granted the husband, that the ac- ceptance by the wife of any portion of the alimony should be an acquiescence in the decree of divorce, and bar and preclude her right to an appeal from it, and that an application for an appeal . from the decree should render the provision for alimony in- effectual, inoperative, and void, is errone- ous. Huff v. Huff, 51 : 282, 80 S. E. 846, 73 W. Va. 330. Verdict disregarding instructions. 1534. A judgment will not be reversed be- cause the jury did not follow instructions which were so erroneous that doing so would have required reversal. Thornton v. Dow, 32: 968, 111 Pac. 899, 60 Wash. 622. 1535. A judgment cannot be reversed on the ground that the jury disregarded the instructions, if there is evidence from which they might have found that the condi- APPEAL AND ERROR, VII. m, 8. 159 tions required by the instructions did not exist. Hasseltinu v. Southern R. Co. 6: 1009, 55 S. E. 142, 75 S. C. 141. Insufficiency of verdict or finding. Generally, see TRIAL, V. c. 1536. In a trial by the court, where the court makes special findings in favor of the defendants, and finds generally on all the issues in their favor, the special find- ings, when insufficient to support the judg- ment based on all the findings, will be dis- regarded, and the general findings held sufficient, where the plaintiffs have failed to ask for further findings or for modifi- cation of those made. People's Gas Co. v. Fletcher, 41: 1161, 105 Pac. 34, 81 Kan. 76. 1537. It is not reversible error for the court, upon receiving the report of a jury in a prosecution on separate counts for il- legally selling intoxicating liquor and main- taining a liquor nuisance, that they had agreed as to the count for nuisance but dis- agreed as to the other, to announce that such a verdict would be received and to act upon the announcement. State v. Weiss, 36: 73, 113 Pac. 388, 84 Kan. 165. 1538. A conviction upon consolidated in- dictments charging different crimes of the same general nature will not be reversed because of a general verdict of guilty as charged, if it is followed by a sentence that could have been imposed under either in- dictment, and all the indictments are suf- ficient. Lucas v. State, 3: 412, 39 So. 821, 144 Ala. 63. Failure to find. 1539. Where a defendant files a separate answer, setting up affirmative matter con- stituting a defense, it is error for the trial court to fail to make findings on the is- sues thus raised, where a finding favorable to the defendant on the issue presented would defeat the plaintiff's right of re- covery. Lorenzi v. Star Market Co. 35: 1142, 115 Pac. 490, 19 Idaho, 674. Amount; measure of damages; costs. See also supra, 185, 681. 1540. Failure to award nominal damages is reversible error where their recovery would determine and adjudicate valuable rights. Harvey v. Mason City & Ft. D. R. Co. 3: 973, 105 N. W. 958, 129 Iowa, 465. 1541. Failure to assess nominal damages is not ground for reversal on appeal. New York, C. & St. L. R. Co. v. Rhodes, 24: 1225, 86 N. E. 840, 171 Ind. 521. 1542. A judgment will not be reversed for the purpose of permitting the appellant to recover nominal damages. Hewaoo v. Pet- erman Mfg. Co. 51:398, 136 Pac. 1158, 76 Wash. 600. 1543. A judgment will not be reversed to permit the recovery of nominal damages. Checkley v. Illinois C. R. Co. 44: 1127, 100 N. E. 942, 257 111. 491. 1544. A verdict for nominal damages should be set aside in favor of one injured by another's negligence, where he has been compelled to pay a substantial sum for medical attendance, and there is evidence tending to show that he suffered physical pain and impaired health because of the Digest 1-52 L.R.A.(N.S.) injury. Strever v. Woodard, 46: 644, 141 N. W. 931, 160 Iowa, 332. 1545. A verdict against a defendant un- der instructions of the court allowing puni- tive damages in addition to compensatory damages will be set aside where punitive damages are not properly recoverable, since it is not possible to tell what part of the verdict is founded on such damages. Voves v. Great Northern R. Co. 48: 30, 143 N. W. 760, 26 N. D. 110. 1546. The erroneous allowance of $10 as lost profits for the negligent destruction of a wagon will not require a reversal of the judgment, where the interest which might have been, but was not, allowed on the principal sum, would have amounted to more than that. Weick v. Dougherty, 3: 348, 90 S. W. 966, 139 Ky. 528. 1547. An error in allowing excessive com- pensation for extra work under a contract does not require a reversal; but the appel- late court may correct the error and affirm the judgment as corrected. McConnell v. Corona City Water Co. 8: 1171, 85 Pac. 929, 149 Cal. 60. 1548. The mere statement by counsel that he would consent to just damages will not prevent a reversal on appeal if they were erroneously granted, if the court states that his decision was not influenced by the statement, and an appeal was taken from the award. Cowley v. Northern P. R. Co. 41: 559, 123 Pac. 998, 68 Wash. 558. 1549. While the value of the labor be- stowed on a growing crop in bringing it forward to the time of its wrongful de- struction does not ordinarily afford either a sufficient or a safe measure of the dam- ages occasioned by its loss, where the parties have tried the case upon the theory that this is the proper measure of damages, a judgment will not be reversed for this error, especially where it does not appear that an unjust verdict has been rendered. Missouri 0. & G. R. Co. v. Brown, 50: 1124, 136 Pac. 1117, 41 Okla. 70. 1550. It is reversible error for the court to attempt to add interest to the amount awarded by a jury in an eminent domain proceeding from the time of the taking to that of the award. Minot v. Boston, 25: 311, 86 N. E. 783, 201 Mass. 10. 1551. A relator is not entitled to reversal ef a decree refusing a mandamus, for the purpose of avoiding costs, because it did not award that portion of the relief demanded to which he was entitled, where he rejected respondent's offer to furnish such portion. State ex rel. Hallett v. Seattle Lighting Co. 30: 492, 110 Pac. 799, 60 Wash. 81. Excessive punishment. 1552. A conviction for crime will not be reversed because the sentence couples with life imprisonment, which is entirely legal, a further punishment which may be uncon- stitutional as cruel and unusual. State v. Feilen, 41:418, 126 Pac. 75, 70 Wash. 65. Wrong reasons. 1553. If a judgment be right on the evi- dence and the facts found, it will be af- firmed regardless of whether the reason as- 160 APPEAL AND ERROR, VII. n, VIII. a. signed for it by the trial court is sound. Re Upham, 48: 1004, 140 N. W. 5, 152 Wis. 275. 1554. A judgment which is proper upon the undisputed facts shown by the record will be affirmed upon appeal without considering whether the reasons given by the trial judge for his conclusion were competent and ade- quate to support the same. Bowhay v. Rich- ards, 19: 883, 116 N. W. 677, 81 Neb. 764. 1555. Assigning the wrong reason for sus- taining a demurrer to a bill which is sub- ject to demurrer is not ground for reversal. Gaynor v. Bauer, 3: 1082, 39 So. 749, 144 Ala. 448. 1556. A sound decree sustaining a general demurrer to a bill in equity should not be reversed, merely because the trial court assigned an erroneous or incorrect reason therefor. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 1557. A verdict directed on specific but un- tenable grounds cannot be affirmed on other grounds unless it is clear beyond doubt that the new grounds could not have been obvi- ated if they had been called to the atten- tion of the defeated party at the time the verdict was rendered. Bank of Havelock v. Western U. Teleg. Co. 4: 181, 141 Fed. 522, 72 C. C. A. 580. 1558. To sustain a judgment in the appel- late court on a theory as to which no ques- tion was submitted to the jury, the facts to support it must be admitted, or conclusive- ly established, by the evidence. Galveston, H. & S. A. R. Co. v. Currie, 10: 367, 96 S. W. 1073, 100 Tex. 136. 1559. A judgment for defendant in an ac- tion upon a purchase-money note given for a horse, founded upon the fact that the ani- mal was not the one described by the seller, cannot be affirmed on appeal upon evidence of breach of warranty of pedigree or some latent defect in the animal. Northfield Nat. Bank v. Arndt, 12: 82, 112 N. W. 451, 132 Wis. 383. 1560. That one sued upon a note given for the purchase price of an engine was permit- ted to recover from plaintiff the value of certain other property delivered to plain- tiff in exchange for the engine, upon the theory that there had been no acceptance of the engine, and therefore no consideration for the property, instead of upon breach of warranty of the engine, does not require a reversal, where the engine delivered was wholly worthless for the purposes for which it was purchased, although some parts of it might have had some value for old iron. J. I. Case Threshing Mach. Co. v. Huber, 32: 212, 125 N. W. 66, 160 Mich. 92. 1561. Permitting a recovery of the differ- ence in the- value of the property before and after the injury for destruction of a well, without taking into account the cost of another supply of water, is not preju- dicial error where the recovery is only for $250. Patrick v. Smith, 48:740, 134 Pac. 1076, 75 Wash. 407. Digest 1-52 L.R.A.(N.S.) 1 n. Effect of matters occurring after de- cision below. I Matters pending appeal or error as ground of dismissal, see supra, 392-394. VIII. Judgment, a. In general. (See also same heading in Digest L.R.A. 1-70.) Finding that evidence was not sufficient to sustain verdict of murder, as acquittal of that offense, see CRIMINAL LAW, 189. Effect of reversal on former jeopardy, see CRIMINAL LAW, 201-205. Effect of death on judgment rendered with- out knowledge thereof, see JUDGMENT, 97. Amendment of pleading after affirmance of judgment on appeal, see PLEADING, 121-123. Decree upon bill of review, see REVIEW, 4, 5. See also supra, 870. 1562. The supreme court will liberally con- strue the matters presented for adjudication, and incline to a final determination of the merits of the controversy, rather than send the case back to the trial court, upon merely formal or technical issues, for obvious, but not apparently useful, amendment. Gordon v. Doran, 8: 1049, 111 N. W. 272, 100 Minn. 343. 1563. The supreme court will direct an ac- tion to be dismissed where the complaint does not state a cause of action, and the evidence affirmatively shows that no cause of action exists. Hart v. Evanson, 3: 438, 105 N. W. 942, 14 N. D. 570. 1564. The court cannot, upon appeal from a judgment dismissing the action after the entry of a former judgment on a verdict in plaintiffs' favor, interfere with the judg- ment so entered. Wagner v. Northern L. Ins. Co. 44: 338, 126 Pac. 434, 70 Wash. 210. 1565. On appeal, after a cause has been fully argued and regularly submitted on its merits, the reviewing court may, for good and sufficient reasons, decline to render a decree conforming to a subsequent stipula- tion of the parties, where the effect will be to reverse the judgment of the district court. Jones v. Hudson, 44: 1182, 141 N. W. 141, 93 Neb. 561. 1566. An appellate court cannot set aside a verdict in one case because a jury has reached the opposite conclusion on the same facts in another case. Sterns v. Spokane, 46:620, 131 Pac. 476, 73 Wash. 118. 1567. In considering an assignment that the judgment of the lower court is not sus- tained by the evidence, an appellate court is not required to set out and discuss tire evidence in extenso. Burrowes v. Chicago, B. & Q. R. Co. 34: 220, 123 N. W. 1028, 85 Neb. 497, 126 N. W. 1084, 87 Neb. 142. 1568. On appeal, appropriate orders may be made as to a complaint which does not APPEAL AND ERROR, VIII. b. 101 state a cause of action, although the suffi- ciency thereof was not presented to the ap- pellate court for action. Prall v. Prall, 26: 577, 50 So. 67, 58 Fla. 496. 1569. Upon the direction of a verdict in favor of both defendants in an action against a city and a railroad company for damages to abutting property by the con- struction of an approach to abolish a grade crossing of the railroad tracks, the appel- late court, in reversing the judgment, can- not place the entire liability on one de- fendant to the exclusion of the other. Wal- ters v. Baltimore & 0. R. Co. 46: 1128, 88 Atl. 47, 120 Md. 644. 1570. An undelivered deed signed by the donee of a power who was ignorant of his rights and privileges will be canceled on ap- peal from a decree in an equitable action involving a construction of the will creating such power, and the rights of all devisees and legatees named therein, where a consid- eration of all the issues was asked and the general prayer of all parties was for equi- table relief, although such donee did not specifically appeal from that part of the de- cree dismissing without prejudice her com- plaint as to such deed. Loosing v. Loosing, 25: 920, 122 N. W. 707, 85 Neb. 66. 1571. A caveator who might have asked for the restoration of deleted portions of a mutilated will in a probate court may have such relief in the superior court, to which the proceeding is removed by appeal. Hartz v. Sobel, 38: 797, 71 S. E. 995, 136 Ga. 565. 1572. Judgment should not be rendered for appellant upon reversal of a decision in de- fendant's favor in an action to recover the premiums alleged to be due on an insur- ance policy, if the findings as made would not support it. Fidelity & Casualty Co: v. Fresno Flume & Irrig. Co. 37: 322, 119 Pac. 646, 161 Cal. 466. 1573. Although an appeal in an eminent domain proceeding must be heard de novo in the appellate court, and that court enter a final judgment fixing the rights of the parties and awarding compensation with- out reference to the action of the trial court, a judgment is not insufficient which, in effect, enters as the judgment of the ap- pellate court that of the trial court, which defines the rights of the parties and awards compensation. Chesapeake Stone Co. v. Moreland, 16: 479, 104 S. W. 762, 126 Ky. 656. 1574. The reviewing court will dispose of an application for injunction against a li- quor nuisance on ^the evidence taken, where neither party seeks to have the case remand- ed for further testimony, although the trial court, while holding that the charge of nui- sance had not been sustained, dismissed the case for want of jurisdiction, declining to go fully into the evidence on that account. Detroit Realty Co. v. Oppenheim, 21: 585, 120 N. W. 804, 156 Mich. 385. 1575. The effect of a conviction upon the family of a defendant cannot be ground for a reversal. Woody v. State, 49: 479, 136 Pac. 430, 10 Okla. Crim. Rep. 322. Digest 1-52 L.B.A.(N.S.) 1576. A prosecution under an indictment charging an offense cannot be dismissed by the appellate court because the facts do not support the conviction. Hartnett v. State, 23: 761, 119 S. W. 855, 56 Tex. Crim. Rep. 281. 1577. Although a carrier has no right to sell a shipment without legal proceedings to enforce its lien for freight and demur- rage, yet where it has done so, and has used reasonable diligence to get the best price obtainable- therefor, and no damage to the shipper is shown by the unlawful sale, the illegality thereof is no cause for reversing a judgment against the shipper rendered in an action against him for the balance of the carrier's charges after credit- ing the amount derived from the sale. Baltimore & 0. R. Co. v. Luella Coal & Coke Co. 52: 398, 81 S. E. 1044, W. Va. Entry nunc pro tune. 1578. The fact of the death of a party between the submission and decision of a cause in the appellate court does not im- pair the validity of a judgment thereafter rendered, but that court will, on proper showing, satisfy the judgment, recall the mandate, and direct the clerk to refile the opinion and enter judgment in the case nunc pro tune, as of the date when the same was submitted. Boyes v. Masters, 33: 576, 114 Pac. 710, 28 Okla. 409. 6. Rendering modified judgment, (See also same heading in Digest L.R.A. 1-10.) 1579. Where it appears from the plead- ings and the record that an item has been included in the judgment, which is sepa- rable, the cause will not be remanded, but as modified judgment will be rendered by the appellate court. Farmers & M. Ins. Co. v. Cuff, 35: 892, 116 Pac. 435, 29 Okla. 106. 1580. On appeal, an equitable decree which is erroneous, because taken for confessed as to a nonresident as to whom there was in- sufficient process, will, if it gives no relief against such party, be corrected without re- versal, provided it is not otherwise errone- ous. Billmver Lumber Co. v. Merchants' Coal Co. 26: 1101, 66 S. E. 1073, 66 W. Va. 696. 1581. In the exercise of its appellate juris- diction the Supreme Court has the power to allow temporary alimony to a party pend- ing an appeal in an action of divorce, and to order the payment of attorneys' fees or suit money necessary to a prosecution of the appeal, and may likewise provide for the temporary custody of children until the determination of the appeal. Kjellander v. Kjellander, 45: 943, 132 Pac. 1170, 90 Kan. 112. 1582. Suit money and maintenance cannot be awarded upon appeal from a decree dis- missing a suit for divorce, by an appellate court having original jurisdiction in cases of habeas- corpus, mandamus, and prohibi- tion only, where no issue in regard thereto 11 162 APPEAL AND ERROR, VIII. b. was made in the trial court. Maxwell v. Maxwell, 27: 712, 67 S. E. 379, 67 W. Va. 119. 1.383. The supreme court has jurisdiction, iiiul.T X. D. Rev. Code 1905, 7229, to deter- mine all the issues between the parties in- volved in a divorce suit brought before it by appeal, and may consider applications for temporary alimony, counsel fees, and suit money, after the district court has lost ju- risdiction; but such applications will not be considered as a matter of course, and should be made in the district court whenever there is reasonable opportunity to present them intelligently to that court before appeal. Mosher v. Mosher, 12: 820, 113 N. W. 99, 16 N. D. 269. 1584. The wife's share of community prop- erty cannot be increased upon the husband's appeal in a divorce proceeding. Pereira v. Pereira, 23: 880, 103 Pac. 488, 156 Cal. 1. 1585. An order imposing a fine for con- tempt of court for violation of an injunc- tion erroneously appropriating it to the use of parties injured by the act constituting the contempt, or to the use of parties prose- cuting the contempt proceeding, in the ab- sence of a statute authorizing it, will be modified on appeal by striking out that fea- ture. Barnes v. Chicago Typographical Union No. 16, 14: 1150, 83 N. E. 932, 232 111. 402. Affirming in part and reversing in part. 1586. Where a case is dismissed on both general and special demurrers, and on ap- peal it appears that the general demurrer was wrongly sustained, but that several grounds of the special demurrer were well taken and that if the dismissal should be affirmed the cause of action would be barred by the statute of limitations, the ruling on the general demurrer will be reversed, the ruling on the special demurrers well taken will be affirmed, and directions given that the plaintiff be given reasonable opportunity to amend so as to meet the ground of such special demurrers before the case shall be dismissed. Riley v. Wrightsville & T. R. Co. 24: 379, 65 S. E. 890, 133 Ga. 413. Redncing or increasing damages; re- mittitnr. Remittitur on new trial, see NEW TBIAL, V, e. Remittitur on trial, see TEIAL, V. e. See also infra, 1621, 1622. 1587. A trial court which deems the verdict in an action for damages to be excessive may impose upon the successful party the al- ternative of accepting a reduced amount or of submitting to a new trial; but it has no power to render judgment for a smaller sum against the plaintiff's objection, after re- fusal to remit, and such action is error as to both patties. Cogswell v. Atchison, T. & S. F. R. Co. 20: 837, 99 Pac. 923, 23 Okla. 181. 1588. Although a case is of such a charac- ter that the question of measure of dam- ages is primarily one for the jury, if, un- der all the circumstances, the amount of the verdict is such as to indicate passion Digest 1-52 L.R.A.(N.S.) or prejudice, the appellate court will re- quire a remittitur or reverse. Kurpgeweit v. Kirby, 33: 98, 129 N. W. 177, 88 Neb. 72. 1589. A judgment will not be reversed be- cause of an instruction which, although not ullecting the real controversy between the parties, allows damages to one party to which he is not entitled, where the amount found under it can be segregated from the rest of the verdict if the successful party will remit such amount. Eaton v. Black- burn, 20: 53, 96 Pac. 870, 97 Pac. 539, 52 Or. 300. 1590. Where a judgment has been reversed for the erroneous admission of evidence on the subject of damages, and on a former trial the jury, with entirely legitimate evi- dence before it, awarded damages in an amount which was not challenged on appeal as excessive, the respondent may, on con- senting to a reduction of damages to the amount of the verdict on the former trial, have a decree of affirmance. Simoneau v. Pacific Electric R. Co. 49: 737, 136 Pac. 544, 166 Cal. 264. 1591. A remittitur in an action to appor- tion a corporate dividend among life ten- ants and remaindermen should be amemied on motion so as to show the appearance of the remaindermen and their consent to be bound by the decree. Re Osborne, 50: 510, 103 N. E. 823, 209 N. Y. 484. 1592. Under a statute allowing the su- preme court to direct the entry of a proper judgment, it may, in an action for wrong- ful death, affirm a judgment on condition that a part of the damages recovered be remitted. Simoneau v. Pacific Electric Co. 49: 737, 136 Pac. 544, 166 Cal. 264. 1593. A verdict of $1,000 for injuries sus- tained at a railroad crossing by the wife of a farmer, who is the mother of children and a housekeeper, is inadequate where, in ad- dition to the physical and mental suffering sustained by her, injuries were sustained which will cause inconvenience for a long time and perhaps for the balance of her life; and such verdict will be increased to $3,000. Roby v. Kansas City S. R. Co. 41: 355, 58 So. 696, 130 La. 880. 1594. An allowance of $1,500 may be raised by the appellate court to $3,000 as damages to be awarded parents for the negligent killing of their eleven-year-old boy. Bur- vant v. Wolfe, 29: 677, 52 So. 1025," 126 La. 787. 1595. An award of $25,000 for injury to a thirteen-year-old boy which causes a loss of both his hands will not be reduced on ap- peal, as excessive. Olson v. Gill Home Invest. Co. 27: 884, 108 Pac. 140, 58 Wash. 151. 1596. Where a town marshal, in arresting a person, beats him on the head with a loaded pistol, lacerating his scalp so that he is covered with blood, a judgment for $100 in an action brought for such injuries will be increased to $500. Stoehr v. Payne, 44: 604, 61 So. 206, 132 La. 213. 1597. An award of $25,000 for an assault committed by seizing a box carried by a cus- tomer in defendants' store and searching it APPEAL AND ERROR, VIII. c. 163 for stolen goods in the presence of others will be reduced on appeal to $1,000, although the insult and indignity was emphasized by the offering of no apology upon discov- ering that the contents had not been ob- tained in their store and by ordering her to leave the store when she complained of the treatment extended her, where there was no bodily injury, no mental suffering caused by physical injury, and no allowance for slan- der or words spoken, or for battery. Small v. Lonergan, 25: 976, 105 Pac. 27, 81 Kan. 48. 1598. An allowance to the administrator of $150 for the burial casket of the deceased, an old man with no immediate family sur- viving, who had been a sailor and engineer on small steamers, and of simple tastes and habits and modest and economical ex- penditures, will be reduced to $100 on ap- peal, where the decedent's estate was only $798.32, and the burial expenses, embra- cing the casket, exceeded one fourth of that amount, especially where it appears that the sole legatee objected to the purchase of such an expensive casket, and the admin- istrator was a person having knowledge of his duties as such. Kroll v. Close, 28: 571, 92 N. E. 29, 82 Ohio St. 190. (Annotated) 1599. An allowance of $500 for mental suffering caused to a widowed mother by be- ing deprived of consolation of her son at the time of his brother's funeral, because of failure to deliver a telegram, will be re- duced where erroneous elements of damage are allowed to go to the jury. Western U. Teleg. Co. v. Garlington, 49: 300, 142 S. W. 854, 101 Ark. 487. Reducing or increasing punishment. 1600. The criminal court of appeals of Oklahoma while in possession of the power of modifying a judgment and reducing the punishment of death to imprisonment for life cannot exercise this power except for special reasons which may arise in an in- dividual case. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. 1601. A sentence will not be interfered with on appeal if it is within the limits prescribed by law and is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 1602. A sentence of death rendered under a statute providing that upon conviction of murder in the first degree the penalty shall be death or life imprisonment "in the discretion of the jury" will, on appeal, be reduced to imprisonment for life, where the competent evidence, although showing that the accused was clearly guilty of the crime charged, also shows that other co-conspira- tors, including the apparent ring leader, equally guilty had, upon conviction, been given life sentence only, and incompetent evidence which naturally tended to influence the minds of the jurors had been admitted upon the trial. O'Hearn v. State, 25: 542, 113 N. W. 130, 79 Neb. 513. 1x503. An attorney, a juror, and a bailiff connected with a murder case who ha.ve been guilty of contempt of court in furnish- ing and drinking intoxicating liquor in the Digest 1-52 !L.R.A.(N.S.) attorney's room may be relieved of a jail sentence by the appellate court if they have sought in every way to purge themselves of intentional disrespect for the court. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. c. Remanding; granting new trial. (See also same heading in Digest L.R.A. 1-10.) Statute permitting appellate court to di- rect judgment on setting aside verdict, see CONSTITUTIONAL LAW, 132. Direction of judgment on appeal as denial of due process, see CONSTITUTIONAL LAW, 546. Remanding case for rehearing upon petition for mandamus to compel issuance of li- cense, see MANDAMUS, 120. See also supra, 1562. 1604. The court of appeals will not par- ticipate in the division of a fund which had been awarded for opening a street, where none of the claimants are shown to be en- titled to more than nominal damages. Re New York, 37: 281, 89 N. E. 829, 196 N. Y. 286. 1605. A case will be remanded by an ap- pellate court for further evidence where the interests of justice appear to require it. Vicksburg, S. & P. R. Co. v. Webster Sand, G. & Constr. Co. 47: 1155, 62 So. 140, 132 La. 1051. 1606. A constitutional provision that, upon a review of an order of the state cor- poration commission upon a removal to the supreme court by one of the parties, that court may, upon application, in its discre- tion or of its own motion, require or au- thorize additional evidence to be taken in such cause, does not contemplate the tak- ing of additional evidence in the supreme court, but that in a proper case the cause will be referred back to the commission for such purpose. Seward v. Denver & R G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1607. On appeal, where there is no finding of the trial court upon a material fact, and the evidence in the record is not di- rected to the ascertainment thereof, the case will be remanded for further proceed- ings. Jobst v. Hayden Bros. 50: 501, 121 N. W. 957, 84 Neb. 735. 1608. In an equitable action pending on appeal, the case will be remanded for fur- ther inquiry as to the value of the prop- erty in controversy, where the result de- pends upon such value, and it is impossible to determine it from the evidence adduced. Griswold v. Szwanek, 21: 222, 118 N. W. 1073, 82 Neb. 761. 1609. The appellate court will reverse a judgment for plaintiff', and remand for a new trial, unless it clearly appears that plaintiff cannot better his case upon an- other trial, where the evidence is such that the trial court should have directed a ver- dict for the defendant, and refused. Hoyl- 164 APPEAL AND ERROR, VIII. c. man v. Kanawha & M. R. Co. 22: 741, 64 S. E. 53(5, 0.1 W. Va. 204. 1610. Upon the reversal of a judgment by the supreme court, the case is required to be remanded for a new trial only when neces- sary; and that condition is always deemed to exist, as to a jury case, when, under any circumstances, a new trial might result oth- erwise than in such a judgment being awarded as would have been rendered be- fore had the fatal error or errors not been committed. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 1611. In the absence of evidence to sup- port the allegations in an application for habeas corpus, petitioner will be remanded. Ex parte' Barnes, 51: 1155, 166 S. W. 728, Tex. Crim. Rep. . 1612. A new trial will not be granted un- less the evidence so strongly preponderates against the verdict as to lead to the con- clusion that the jury have either wilfully disregarded the evidence or failed to un- derstand or appreciate it. Metropolitan L. Ins. Co. v. Montreal Coal & Towing Co. 1 B. R. C. 298, 35 Can. S. C. 266. Also Re- ported in 25 Canadian Law Times, Occ. N. 4. 1613. Upon affirmance of a judgment sus- taining a demurrer to the complaint for de- fects in form, the court may transmit the case to the trial court for trial on the : ier- its if the complaint discloses a good cause of action, under a statute providing that, in case of affirmance, where it shall appear that a new trial ought to be had, : l shall be awarded and the judgment transmitted to the court from which the appeal was taken, to the end that the case may ->e trie.d as if it never had been tried. Milske v. Steiner Mantel Co. 5: 1105, 63 Atl. 471, 103 Md. 235. 16] 4. If issues not presented by the plead- ings were fully tried, the appellate court may remand the cause with permission to amend the pleadings to meet the issues without awarding a new trial. Lemay v. Springfield Street R. Co. 37: 43, 96 N. E. 79, 210 Mass. 63. 1615. The granting by the trial court of a motion to change answers to interroga- tories, which will result in a judgment for defendant, does not remove from the case his alternative motion to set aside the ver- dict and for new trial, and, upon reversal for error in ruling upon the first motion, the case may be remanded for action upon the others. Fleming v. Northern Tissue Paper Mill, 15: 701, 114 N. W. 841, 135 Wis. 157. ; 1616. In an action brought to enforce against property, liens claimed by subcon- tractors and materialmen in -which the original contractor is not made a party, the case will be remanded to allow such original contractor to be made a party and a new trial granted therein. Eberle v. Drennan, 51: 68, 136 Pac. 162, 40 Okla. 59. 1617. A suit to enforce a landlord's cove- nant to rebuild cannot be remanded by the appellate court to allow the tenant's re- covery of the expense of removing the build- Digest 1-52 L,.K.A.(N.S.) ing when it was condemned by the public authorities, where no evidence upon that question was ofl'ered at the trial. Kirby v. Wylie, 21:129, "0 Atl. 213, 108 Md. 501. 1018. A new trial will not be granted by the appellate court for errors in instruc- tions in a suit which results in favor of plaintiff, if in no aspect of the testimony was there an available defense to the ac- tion. Bateman v. Kramer Lumber Co. 34: 615, 70 S. E. 474, 154 N. C. 248. 1619. Where the only error upon a trial to recover damages for personal injuries af- fects tTie question of the amount of damages only, the appellate court in reversing the judgment may grant a new trial as to that question alone. Marshall v. Dalton Paper Mills, 24: 128, 74 Atl. 108, 82 Vt. 489. 1620. On error to the overruling of a mo- tion for a new trial on the ground of the inadequacy of the damages found by the jury in an action to recover for personal injuries, the reviewing court may reverse the judgment of the trial court, and grant a new trial on the ground that the verdict is not sustained by sufficient evidence. To- ledo Railways & L. Co. v. Mason, 28: 130, 91 N. E. 292, 81 Ohio St. 463. (Annotated) 1621. The appellate court will not order a reduction of the judgment, but will grant a new trial only as to those defendants whose liability was less than the amount of the judgment, where, in an action on a li- quor bond, a joint judgment was entered against several sureties in excess of the lia- bility of some of them as specified in their bonds, especially where the liability is several as well as joint, and plaintiff of- fered in the lower court to discontinue as to them or allow them a new trial. MerHv nane v. Miller, 25: 585, 118 N. W. 11, 122 N. W. 82, 157 Mich. 279. 1622. Where the amount of the verdict in an action against a railroad company for ejection of a passenger from a train dis- closes such passion and prejudice that it would be unjust to hold the railroad com- pany foreclosed by its findings, the court will grant a new trial, and not merely re- quire a remittitur. Olson v. Northern P. R. Co. 18: 209, 96 Pac. 150, 49 Wash. 626. 1623. A policeman is not exempt from civil liability when he acts in a wrongful, oppres- sive, and illegal manner; but where, in an action against a policeman and the munici- pality for wrongful arrest, a joint verdict is rendered against both defendants, and judgment thus entered, and upon appeal the municipality is adjudged not liable for the act of the policeman, the entire judgment will be reversed and a new trial ordered as to the policeman. Lawton v. Harkins, 42: 69, 126 Pac. 727, 34 Okla. 545. (Annotated) 1624. A convicted defendant who has duly- perfected his appeal to a court of last re- sort is entitled to a reversal of the convic- tion and a new trial as a matter of right where the record has been lost without pos- sibility of substitution through no fault 1 of the defendant or his counsel. Bailey v. United States, 25: 860, 104 Pac. 917, 3 Okla. Cr.im. Rep. 175. (Annotated) APPEAL AND ERROR, VIII. d. 165 1625. A conviction of murder will be sei aside on appeal for unfairness, where the court room was filled with a hostile crowc who threatened lynching, so that the coun- sel called upon to defend accused did no1 dare ask the customary time for prepara- tion, and the space about the judge, coun- sel, and witnesses was so filled with people that counsel for accused could not see the witnesses, and failed to see the jury until he arose to address them. State v. Weldon 39: 667, 74 S. E. 43, 91 S. C. 29. ( Annotated ) 1626. Where there is a variance between the verdict of the jury and the sentence of the court, it must appear from the record that such variance cannot be corrected with- out depriving tne defendant of a substantial right, before the conviction will be set aside, but the cause will be remanded to i/ue lower court for resentence. Wood v. State, 45: 673, 112 Pac. 11, 4 Okla. Crim. Rep. 436. Directions to trial court. 1627. Upon appeal in an equity case, where the facts have all beeji judicially ascer- tained, the court, in reversing the decree, may direct the entry of the judgment to which the parties are entitled. Central New York Teleph. & Teleg. Co. v. Averill, 32: 494, 92 N. E. 206, 199 N. Y. 128. 1628. On appeal from an order issuing out of a suit founded upon a creditor's bill, temporarily enjoining the prosecution of a suit for the same cause of action in a foreign court, where it clearly appears that the prosecution of such foreign action can- not be restrained, the appellate court must direct the dismissal of the bill as to the prayer for an injunction in order to save the parties to the suit further expense re- sulting from the endeavor to secure im- possible relief. Guardian Trust Co. v. Kan- sas City S. R. Co. 28: 620, 171 Fed. 43, 96 C. C. A. 285. 1629. Notwithstanding statutory authority to render final judgment in the appellate court upon reversal of a judgment entered upon an agreed statement of facts, the bet- ter practice is to remand the case with directions to the trial court to enter judg- ment in accordance with the petition. Lenon v. Mutual L. Ins. Co. 8: 193, 98 S. W. 117, 80 Ark. 563. 1630. When the facts are undisputed, and the rights of the parties can be clearly seen and determined, the appellate court may or- der judgment to be entered for the proper party. Haskell & B. Car Co. v. Przezdzian- kowski, 14: 972, 83 N. E. 626, 170 Ind. 1. 1631. An appellate court cannot, in re- versing a judgment, direct judgment to be entered for one of the parties, where the evidence upon the issue is conflicting. Rep- pond v. National L. Ins. Co. n: 981, 101 S. W. 786, 100 Tex. 519. 1632. On the denial of a motion, made in the circuit court, to change a verdict which upon its face is contrary to the undisputed evidence, to correspond with the established state of the case, or for a judgment not- withstanding the same, the supreme court Digest 1-52 L.R.A.(N.S-) may, after reversing the judgment rendered according to the erroneous verdict, remand the case, with directions to grant the mo- tion and render judgment accordingly. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. d. Costs; interest; damages for delay. (See also same heading in Digest L.R.A. 1-70.) Power of attorney to appeal and bind client for costs of transcript, see ATTORNEYS, 43. Costs on appeal in condemnation proceed- ings, see EMINENT DOMAIN, 177, 178. 1633. Each party may be required to pay his own costs on reversal of a decree for want of jurisdiction in the trial court, where defendant did not question the jurisdic- tion, but proceeded to try the case on its merits. Columbia Nat. Sand Dredging Co. v. Morton, 7: 114, 28 App. D. C. 288. 1634. One who institutes, in a court of equity, a suit of which it has no jurisdic- tion, and is compelled to appeal upon de- fendants recovering judgment against him without questioning the jurisdiction, is en- titled to his costs on appeal upon dismissal of the suit. Maxwell v. Frazier, 18: 102, 96 Pac. 548, 52 Or. 183. 1635. Appellants, who prevail on the main issue in the case, are entitled to costs, al- though a definition of their rights upon a matter incidental to the main purposes of the suit may be modified by the appellate court. Trullinger v. Howe, 22: 545, 97 Pac. 548, 99 Pac. 880, 53 Or. 219. 1636. A creditor upon whose objection a bankrupt is denied his discharge for failure to disclose assets will not be required to pay the costs of appeal, although the de- cision is reversed, where the bankrupt re- fused to furnish information necessary to a proper disposition of the case. Re McCrea, 20: 246, 161 Fed. 246, 88 C. C. A. 282. 1637. A landowner who upon appeal suc- ceeds in increasing the amount awarded him in a road-opening proceeding is entitled to Ins costs in the appellate court. Broadway Coal Min. Co. v. Smith, 26: 565, 125 S. W. 157, 136 Ky. 725. 1638. One appealing from an injunction too broad, because in contravention of a statute, is not entitled to his costs on ap- peal if he never performed or offered to perform that portion of the decree to which plaintiff was entitled, thereby depriving lim of material relief, to his injury. Grand Union Tea Co. v. Dodds, 31 : 260, 128 N. W. 1090, 164 Mich. 50. 1639. Nominal defendants to a bill to set aside a deed and distribute the property :o heirs, who are made such to bind them by the decree, should not be charged with :osts on appeal in case plaintiff succeeds n reversing a decree against him in the ower court, if they make no active de- 'ense. Renehan v. McAvoy, 38: 941, 81 AtL 586, 116 Md. 356. 166 APPEAL AND ERROR, VIII. e. Cost of transcript, brief, etc. 1640. On appeal of a case dismissed on de- murrers, costs cannot be taxed for the mak- ing of the transcript of the answers of the defendants, where the bill of exceptions did not specify such answers, and they were not directed to be transmitted, but were voluntarily included by the clerk of the trial court in the transcript of the record. Riley v. Wrightsville T. R. Co. 24: 379, 65 S. E. 890, 133 Ga. 413. 1641. A defendant with property and one who does not intend to press his appeal are not entitled to free transcripts of notes of evidence taken at the trial. State v. Dewey, 40: 478, 136 N. W. 533, 155 Iowa, 469. e. Effect of decision; subsequent pro- ceedings. {See also same heading in Digest L.R.A. 1-70.) Effect of reversal on former jeopardy, see CRIMINAL LAW, 201-205. 1642. Where, after a decision of a case, and rendition of an opinion by the Supreme Court, its mandate is regularly trans- mitted to the trial court, and is spread upon its records, the former, in the ab- sence of fraud, accident, inadvertence, or mistake, is without jurisdiction to recall the mandate and entertain a petition for rehearing, and a motion for leave to file the same will be denied. Thomas v. Thomas, 35: 124, 109 Pac. 825, 113 Pac. 1058, 27 Okla. 784. 1643. Retrial of an action if reversed for want of parties may be dispensed with if, upon the case again reaching the trial court, the absent parties stipulate to be bound by the judgment. Mitau v. Ruddan, 6: 275, 84 Pac. 145, 149 Cal. 1. 1644. A plaintiff whose judgment is re- versed on appeal after consideration of the law and the facts is not entitled to the benefit of a statute permitting the institu- tion of a new suit within a year in case of a nonsuit or a reversal of a judgment in his favor, where the appellate court is authorized to award a new trial, reverse, or affirm, since the reversal referred to in the statute must be held to mean one in which the merits of the cause have not been adjudicated. Strottman v. St. Louis, I. M. & S. R. Co. 30: 377, 128 S. W. 187, 228 Mo. 154. (Annotated) 1645. An amendment to the complaint in an action by a father to recover damages for the death of his minor son, leave to file which was applied for pending a motion for new trial, prior to appeal, which resulted in a reversal of a judgment in plaintiff's favor, so as to add the name of his wife, as a co- plaintiff, may be allowed when the case is remanded for new trial. Bracken v. Penn- sylvania R. Co. 34: 790, 71 Atl. 926, 222 Pa. 410. 1646. An amendment of an alternative writ of mandamus may be allowed by the trial Digest 1-52 L.R.A. (N.S.) court after its dismissal of the proceeding has been uHirmed on appeal by a decree di- recting the case to be remanded, and a judg- ment to be "entered and docketed in accord- ance herewith.'' State ex rel. Gibson v. Richardson, 8: 362, 85 Pac. 225, 48 Or. 309. 1C47. It is error for the trial court, upon the return of a case to it, to continue per- petually an injunction which the appellate court directs to be continued to the hear- ing. Durham v. Eno Cotton Mills, n: 1163, 57 S. E. 465, 144 X. C. 705. 1648. Upon reversal of a judgment in a divorce proceeding upon the husband's ap- peal and remanding of the case for new trial, because of error in classing as com- munity in the division of the property that which was his separate estate, the trial court is at liberty to make a new appor- tionment of community between the parties in such shares as shall seem just under all the circumstances. Pereira v. Pereira, 23: 880, 103 Pac. 488, 156 Cal. 1. 1649. An amendment of the complaint in an action for damages for mistake in the transmission of a telegram which was insuf- ficient because failing to allege negligence, should be allowed upon reversal of a judg- ment of nonsuit, where the complaint was not challenged except by motion for nonsuit, although insufficiency of the com- plaint is not a ground for nonsuit, and upon the trial a prima facie case of negligence was established. Strong v. Western U. Teleg. Co. 30: 409, 109 Pac. 910, 18 Idaho, 389. Conclusiveness of, generally. 1650. The opinion of the Federal appel- late court, upon remanding a cause to the Federal trial court for trial, does not con- stitute the law of the case in a state court in which plaintiff brings the action after dismissing it in the Federal court. Wells v. Western U. Teleg. Co. 24: 1045, 123 N. W. 371, 144 Iowa, 605. 1651. After the supreme court of appeals of West Virginia has reversed a decree as to a matter finally determined thereby, and has remanded the cause with direction to enter a particular decree as upon the merits of the subject-matter thereof, its mandate is final and conclusive upon all parties as to all matters and things so directed; and no new defenses existing and known at the date of the decree so reversed can be enter- tained or heard in opposition thereto. Bar- bour v. Tompkins, 3: 715, 52 S. E. 707, 58 W. Va. 572. 1652. The affirmance of a nonsuit in an action for negligent injuries is the law of the case in future litigation upon the same state of facts, regardless of different theories that may be advanced as ground for recovery. Strehlau v. John Schroeder Lumber Co. 48: 464, 142 N. W. 120, 152 Wis. 589. (Annotated) On later appeal. 1653. A decision rendered on appeal, which is palpably erroneous, may be corrected on second appeal. Henry v. Atchison, T. & S. F. R. Co. 28: 1088, 109 Pac. 1005, 83 Kan. 104. APPEAL AND ERROR, VIII. f X. 167 1654. That a point was involved in the record of a first appeal does not preclude its consideration and determination on a sec- ond appeal, where it was not brought to the attention of or considered by the court on the former appeal. Henry v. Atchison, T. & S. F. R. Co. 28: 1088, 109 Pac. 1005, 83 Kan. 104. 1655. A question once decided by the court of appeals will not be re-examined when the case again comes before that court upon the same facts and under the same conditions. Mutual Reserve Fund L. Asso. v. Ferren- bach, 7: 1163, 144 Fed. 342, 75 C. C. A. 304. 1650. Matters arising in an action after a first appeal therein, and before a second ap- peal is taken, are rendered res judicata upon the determination of the second appeal. Brown v. Cresap, 9: 997, 56 S. E. 603, 61 W. Va. 315. 1657. Matters of law determined upon a former appeal become the settled law of the case, are binding upon the court and the litigants, and cannot be reviewed on second appeal. Dye v. Crary, 9: 1136, 85 Pac. 1038, 13 N. M. 439. 1658. The effect of a judgment cannot be avoided on the second trial on the theory of a difference in evidence if it is clear that the court, in rendering the first judgment, acted upon the facts substantially as they appear in the newly offered evidence. Tha- ler v. Wilhelm Greisser Constr. Co. 33: 345, 79 Atl. 147, 229 Pa. 512. 1659. A decision against plaintiff by an appellate court for failure of proof is not conclusive in defendant's favor upon a sub- sequent appeal, where the missing proof has been supplied. Terre Haute & I. R. Co. v. Zehner, 3: 277, 76 N. E. 169, 166 Ind. 149. 1660. A ruling by an appellate court that there is evidence to take the case to the jury under the issues as presented is the 1 law of the case on a second appeal. White v. International Text-Book Co. 42: 346, 136 N. W. 121, 156 Iowa, 210. 1661. Refusal of the court to allow a claim against an estate cannot be complained of on appeal, where such relief is not prayed for, on a fair construction of the bill, and the issues arising under it were determined on a former appeal. Brown v. Cresap, 9: 997, 56 S. E. 603, 61 W. Va. 315. 1662. A ruling upon a complaint filed to compel specific performance of a contract to devise real estate does not, under the rule of the law of the case, preclude a defense of fraud in procuring title thereto, to a cross-complaint in the action to quiet title to the property. Flood v. Templeton, 13: 579, 92 Pac. 78, 152 Cal. 148. 1663. A ruling by an appellate court that in assessing benefits for a change in a high- way, the court should have considered the history of the change, the fact that the mu- nicipality contemplated the change made, and its effect upon abutting property, is the law of the case upon a second appeal. Park City Yacht Club v. Bridgeport, 39: 478, 82 Atl. 1035, 85 Conn. 366. 1664. The decision upon appeal from an order continuing or refusing an interlocu- Digest 1-52 L.R.A.(N.S.) tory injunction is neither an estoppel nor the law of the case upon appeal from a de- cree refusing to make the injunction perma- nent. Solomon v. Wilmington Sewerage Co. 6: 391, 55 S. E. 300, 141 N.^C. 439. 1665. A former judgment of the supreme court, holding an indictment sufficient in substance, is the law of the case and conclu- sive on a subsequent appeal. State v. Camp- bell, 9: 533, 85 Pac. 784, 73 Kan. 688. 1 666. The question of the sufficiency of the information may be regarded as res judicata upon a second appeal, where, upon the first one, the court held that defendant might be found guilty, and remanded the case for retrial upon it. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. Liability for acts done in accordance with. 1667. The reversal of a judgment awarding an appropriator a certain number of inches of water from a stream does not, where no stay of proceedings is secured on appeal, require him to make compensation to other claimants in tort for the injury caused by the use by him, pending the appeal, of the quantity awarded him. Porter v. Small, 40: 1197, 120 Pac. 393, 124 Pac. 649, 62 Or. 574. (Annotated) /. Correction. (See also same heading in Digest L.R.A.. 1-10.) Vacation of judgment after term for death of party before cause was submitted, see JUDGMENT, 338, 339. 1668. An appellate court may, on a second appeal, correct the entry o'f the former judgment so as to make it express the true decision of the case. Durham v. Eno Cot- ton Mills, ii : 1163, 57 S. E. 465, 144 N. C. 705. IX. Rehearing. (See also same heading in Digest L.R.A. 1-70.) See also supra, 1642. 1669. It is not ground for rehearing that the supreme court erroneously took jurisdic- tion by transfer of a case decided by the appellate court. Marion Trust Co. v. Blish, 18: 347, 84 N. E. 814, 170 Ind. 686. 1670. A motion to reconsider the opinion before it is certified down may be enter- tained by the supreme court in a criminal case, although a petition to rehear the ap- peal cannot be. State v. Ice & Fuel Co. 52: 216, 81 S. E. 737, 166 N. C. 366. X. Liability on appeal bond. (See also same heading in Digest L.R.A. 1-10.) Matters as to security generally, see supra, HI. g. 108 APPEARANCE. Validity of appeal bond within statute of frauds, see COXTK.UTS, 283. Injunction against enforcement of judgment upon appeal bond, see INJUNCTION, -JT'.i. Release of surety on appeal bond, see Pmx- CIPAL AND SUKETY, 29. Subrogation of surety on supersedeas bond, see SUBROGATION, 25. 1671. That an appeal bond prepared on a printed form, the penalty of which is the minimum provided for an appeal merely, contains words making it a supersedeas bond also, will not vitiate it, where no at- tempt has been made to use it as such, but the latter words will be rejected as an in- advertence. Douglas \. Badger State Mine, 4: 196, 83 Pac. 178, 41 Wash. 266. Amount of liability. 1672. An undertaking upon appeal from a decree awarding the right to use a certain quantity of water from a stream, which binds appellant to pay all damages, costs, and disbursements which may be awarded against him, does not cover the loss which the prevailing party would suffer if he re- frained from the use of the water awarded him pending appeal. Porter v. Small, 40: 1197, 120 Pac. 393, 124 Pac. 649, 62 Or. 574. APPEARANCE. On appeal, see APPEAL AND ERROR, III. e. What reviewable on appeal from judgment jurisdiction to enter which under spe- cial appearance is questioned, see AP- PPEAL AND ERROR, 488. Of owner of stock in insolvent building and loan association, see BUILDING AND LOAN ASSOCIATIONS, 25. Opinion evidence as to, see EVIDENCE, VII. 1. To resist nunc pro tune entry of judgment, see JUDGMENT, 6l. To set aside judgment for lack of juris- diction, see JUDGMENT, 134. Effect of decree reciting appearance of all adult defendants on rights of nonresi- dent not actually appearing, see JUDG- MENT, 228. Necessity of, to validate judgment, see JUDGMENT, I. c, 2. 1. The appearance of a nonresident de- fendant in an action after the limitation period has run will not deprive plaintiff of the right to a judgment against property which he attached within the limitation period, although defendant is no longer sub- ject to a personal judgment. Slater v. Roche, 28: 702, 126 N. W. 925, 148 Iowa, 413. "What constitutes; sufficiency. 2. Where the jurisdiction of the court over the person of the defendant is chal- lenged under a special appearance made pending the action and before judgment, the same is not a general appearance, and a judgment entered by default is valid. Digest 1-52 L.R.A.(N.S.) Goldstein v. Peter Fox Sons Co. 40: 566, 135 N. VV. 180, *L X. D. 636. 3. Acceptance of notice to take deposi- tions, by a nonresident defendant not served with process, does not amount to a volun- tary appearance in the action. White v. White, 24; 1279, 60 S. E. 2, 66 W. Va. 79. 4. A nonresident defendant in an equit- able action for the partition of lands, who was not served with process will not be held to have appeared because pleas were filed purporting to have been filed by defend- ants generally. White v. White, 24: 1279, 66 S. E. 2, 66 W. Va. 79. 5. If defendant appeals from a judg- ment in which jurisdiction was not secured over him, he enters his appearance, so that, upon return of the case to the trial court, it will have jurisdiction over him. Foster- Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. As waiver of process, defects, or ob- jections. Effect of appeal by one appearing solely for purpose of challenging service, see APPEAL AND ERROR, 101. 6. Appearance and pleading to the mer- its is not a waiver of service or jurisdiction, where the defendant moves to dismiss the case for want of service, and pleads to the jurisdiction at the time of filing his defense. Stallings v. Stallings, 9: 593, 56 S. E. 4CO, 127 Ga. 464. 7. If a defendant who was not efficient- ly served with the summons in the action appears solely to question the jurisdiction of the court as to his person, and, after his plea is overruled, submits to a trial upon the merits, he thereby waives the question of want of jurisdiction. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. (Annotated) 8. A defendant, in order to preserve his status as not having been properly served with a summons, must abstain from mak- ing any appearance in the action other than to raise the question of jurisdiction of his person. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W/365, 135 Wis. 505. 9. The rule that a party who goes to trial upon the merits after an adverse rul- ing on his objection to the jurisdiction for want of an efficient service of the summons waives the question of jurisdiction is appli- cable, although he participated in the trial under protest, and notwithstanding a plea that the right further to insist upon the jurisdictional defect is not waived. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. 10. Appearance in a contempt proceed- ing waives failure to serve the citation be- fore the return day. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. 11. Defective service of process is waived by pleading to the merits. Springfield Shingle Co. v. Edgecomb Mill Co. 35: 258, 101 Pac. 233, 52 Wash. 620. 12. The appearance of the parties and trial of the cause before a circuit court which has jurisdiction of the subject-mat- ter waives a defect in the appeal from a APPELLATE COURT APPORTIONMENT. 169 lower tribunal. Manufacturer's & M. In- spection Bureau v. Everwear Hosiery Co. 42: 847, 138 N. W. 624, 152 Wis. 73. 13. The appearance of defendant by counsel on the return day of the summons in a justices' court, and his consent to the case being set down for trial on a day cer- tain, waives the objection that the case was made returnable in less time than that pre- scribed by statute. Fanton v. Bvrum, 34: 501, 128 N. W. 325, 26 S. D. 366. 14. Personal service of notice of a pe- tition for alimony is not necessary to sup- port a decree, where the one against whom it is rendered has entered an appearance in the divorce proceeding. Wells v. Wells, 35: 561, 95 N. E. 845, 209 Mass. 282. 15. A railroad company cannot, upon a review of an order of the state corporation commission by the suprem^ court, object for the first time in the supreme court i ^ the failure of the commission to serve upon it copies of the petitions or complaints upon which the action was based, as by its gen- eral appearance without objection before he commission it waived all irregularity preceding such hearing. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. Effect to give jurisdiction. See also supra, 5. 16. A general appearance in an action in support of a motion to set aside the judg- ment does not waive the question of juris- diction. Bennett v. Supreme Tent, K. of M. 2: 389, 82 Pac. 744, 40 \Vash. 431. 17. A court of general jurisdiction with power to grant writs of mandamus has jurisdiction of a proceeding to compel a school board to admit a pupil to school, and of the persons of defendants if process is served on them and they appear in the ac- tion. Crawford v. District School Bd. 50: 147, 137 Pac. 217, 68 Or. 388. 18. Appearance of the parties in a di- vorce proceeding does not remedy failure to allege residence for the time which the statute makes necessary to confer jurisdic- tion. Holton v. Holton, 48: 779, 129 Pac. 532, 64 Or. 290. 19. One against whom a judgment is en- tered without jurisdiction of his person sub- mits himself to the jurisdiction of the court by appearing for the purpose of quashing a garnishment proceeding to subject his prop- erty to the satisfaction of the judgment, and to contest a motion to amend the re- turn of service, ana, although his motion to quash the judgment is granted, he may be required to plead to the complaint. Stubbs v. McGillis, 18: 405, 96 Pac. 1005, 44 Colo. 138. 20. A nonresident defendant over whom personal jurisdiction has not been obtained may appear specially in a suit in a Federal circuit court for the sole purpose of moving to quash the service of writs of attach- ment and garnishment upon its property in the district, on the ground that such property was not subject to attachment or garnishment. Davis v. Cleveland, C. C. & Digest 1-52 L.R.A.(N.S.) St. L. R. Co. 27: 823, 30 Sup. Ct. Rep. 463, 217 U. S. 157, 54 L. ed. 708. 21. The appearance of a nonresident de- fendant in an action commenced by attach- ment, after the limitation period has elapsed, does not authorize a personal judg- ment against him, where process was not 1 serVed upon him within the limitation period. Slater v. Roche, 28: 702, 126 N. W. 925, 148 Iowa, 413. APPELLATE COURT. Original jurisdiction of, see COURTS, II. a, 2. APPENDICITIS. As accident, see INSURANCE, 739, 740. APPLIANCES. Master's duty as to, see MASTER AND SERV- ANT, II. a, 4. APPLICATION. Of deposit, see BANKS, IV. a, 2. For insurance, see INSURANCE, III. e, V. b. Of payments, see PAYMENT, IV. APPOINTMENT. To office, see CIVIL SERVICE, 1; OFFICERS, I. b. Of personal representative, see EXECUTORS AND ADMINISTRATORS, I. Of guardian, see GUARDIAN AND WARD, I. Of committee for insane person, see IN- COMPETENT PERSONS, 35. Of judges, see JUDGES, II. Of receiver, see RECEIVERS, I. Of trustee, see TRUSTS, II. a. Power of, see POWERS. APPORTIONMENT. Of annuity, see ANNUITIES, 3, 4. Of costs, see COSTS AND FEES, 13-18. Of damages, see DAMAGES, III. u. Of loss between insurers, see INSURANCE, VI. g. Of state into election districts, see LIMITA- TION OF ACTIONS, 62. Of public improvement assessments, see PUBLIC IMPROVEMENTS, III. e. 170 APPRAISALAPPROPRIATIONS. APPRAISAL. In eminent domain proceedings, see EMI- .\K.\T DOMAIN, 122. Of public service property for purpose of fixing rates, see GAS, 30-52. Of insurance loss, see INSURANCE, VI. Of water works plant which city has elected to purchase, see MUNICIPAL CORPORA- TIONS, 300. See also ARBITRATION. APPRENTICES. Evidence as to damage from negligent kill- ing of, see EVIDENCE, 1727. Necessity of procuring license, see LICENSE, 74. Rights of, as employee, see MASTEB AND SERVANT, 66. In barber shops, see STATUTES, 117. APPROACHES. To railroad station, safety of, see CARRIERS, II. 1. To bridge, see EMINENT DOMAIN, 201; HIGHWAYS, 126. APPROPRIATIONS. Agreement of one entitled to, to accept less than amount named in appropriation bill, see CONTRACTS, 523; OFFICERS, 80. Judicial review of appropriation act, see COURTS, 110, 111. I Mandamus to compel payment of, see MAN- DAMUS, 27. Attacking validity of, in mandamus pro- ceeding, see MANDAMUS, 132, 133. Of public money, for what purposes allowed, see PUBLIC MONEYS. 1. Under a constitutional provision that no money shall be paid out of the state treasury except in pursuance of an appropriation, nor unless such payments be made within two and one-half years after the passage of the appropriation act, ap- propriations are effective only for two and one-half years after the making thereof. Menefee v. Askew, 27: 537, 107 Pac. 159, 25 Okla. 623. What constitutes; form; sufficiency. 2. In Oklahoma an appropriation is an authority from the legislature, given at the proper time and in legal form, to the prop- er officers, to apply a distinctly specified sum from a designated fund out of the treasury, in a given year, for a specified object or demand against the state. Mene- fee v. Askew, 27: 537, 107 Pac. 159, 25 Okla. 623. 3. A statute creating a state game pro- Digest 1-52 L.R.A.(N.S.) tection fund, and providing that the state game and fish warden shall be reimbursed therefrom "for his actual and necessary of- fice expenses" without stating the amount set aside therefor, does not constitute a valid appropriation for the payment of such expenses under a constitutional provision that no state funds shall be paid out ex- cept in pursuance of an appropriation by law, which law shall distinctly specify the amount appropriated. Menefee v. Askew, 27: 537, 107 Pac. 159, 25 Okla. 623. 4. A statute creating a state game pro- tection fund, and providing that the state game and fish warden shall receive an an- nual specified salary and traveling expenses, not exceeding a specified sum per year, and that a specified number of deputy game and fish wardens shall receive stated salaries and expenses, not to exceed specified sums, to be paid monthly therefrom, constitutes a valid appropriation for the payment of such salaries and expenses, under a constitu- tional provision that no state funds shall be paid out except in pursuance of an ap- propriation by law, which law shall dis- tinctly specify the sum appropriated and the object to which it is to be applied. Menefee v. Askew, 27: 537, 107 Pac. 159, 25 Okla. 623. (Annotated) 5. To make an appropriation under a constitutional provision that no money shall be paid out of the state treasury ex- cept in pursuance of an appropriation by law distinctly specifying the sum appro- priated and the object to which it is to be applied, no arbitrary form of expression or particular words are required, it being suf- ficient if the language employed reasonably leads to the belief that it was the intention of the legislature to make an appropriation. Menefee v. Askew, 27: 537, 107 Pac. 159, 25 Okla. 623. 6. An appropriation, within the mean- ing of a constitutional provision that no money shall be drawn from the state treas- ury except in pursuance of appropriations, is effected by a ctatute directing that vouch- ers issued to pensioners shall be paid out of the treasury upon the warrant of the auditor, who is directed to issue his war- rant to each person for the amount of his claim. Bosworth v. Harp, 45: 692, 157 S. W. 1084, 154 Ky. 559. 7. An appropriation for the expenses of a public official is not sufficient which states that they shall be paid, but speci- fies no maximum or other amount in con- nection with them. State ex rel. Davis v. Eggers, 16: 630, 91 Pac. 819, 29 Nev. 4G. (Annotated) 8. A sufficient appropriation to author- ize the payment of a salary of a state of- ficial is made by an act declaring that he shall be entitled to certain compensation, to be paid out of the state treasury at cer- tain times, taken in connection with a gen- eral statute providing that all officers whose salaries are fixed by law shall be entitled to receive the same on the first of each month, and that the state comptroller shall draw his warrant arid the treasurer shall APPROVAL-ARBITRATION, I. 171 pay the same. State ex rel. Davis v. Eg- gers, 16: 630, 91 Pac. 819, 29 Nev. 469. (Annotated) 9. A provision in a statute providing for three tax commissioners, that "each of said commissioners shall receive an annual salary of $3,000, payable in the same manner as the salaries of other state officers are paid," is a valid annual appropriation of $9,000, especially where there is another statutory provision appropriating annually out of "any funds in the state treasury not otherwise appropriated such sums as may be necessary to pay the salaries of the various state officers." State ex rel. Bird- zell v. Jorgenson, 49: 67, 142 N. W. 450, 25 N. D. 539. (Annotated) 10. Section 8 of chapter 303 of the North Dakota Laws of 1911, which provides that the commission thereby created shall keep its office at the capitol, and "shall be pro- vided with suitable rooms, necessary office furniture, supplies, stationery, books, period- icals, and maps. . . . The commission- ers, secretary, and clerks, and such experts and assistants as may be employed by the commission, shall be entitled to receive from the state their actual necessary expenses while traveling on business of the commis- sion; . . . but the total amount to be expended for such office supplies and travel- ing expenses shall not exceed the sum of $4,500," creates a valid annual appro- priation to the amount of $4,500. State ex rel. Birdzell v. Jorgenson, 49: 67, 142 N. VV. 450, 25 N. D. 539. 11. Section 6 of chapter 303 of the North Dakota Laws of 1911, which provides that "the commissioners first appointed under this act', after having duly qualified, shall without delay meet at the capital at Bis- marck and shall thereupon organize by electing a secretary, who shall receive a sal- ary of not more than $2,400 per annum," creates a valid annual appropriation of $2,400. State ex rel. Birdzell v. Jorgenson, 49: 67, 142 N. W. 450, 25 N. D. 539. 12. The provisions of 14, chap. 303 of the Laws of North Dakota 1911, creating a tax commission, which provides that "there is hereby annually appropriated out of any moneys in the state treasury, not otherwise appropriated, the sum of $3,000, or as much thereof as may be needed for the purpose of carrying out the provisions of this act," are not all inclusive of the money appropriated for such commission, but create a valid appropriation of $3,000 to cover incidental expenses of the commis- sion not expressly provided for in other sec- tions of the act. State ex rel. Birdzell v. Jor- genson, 49: 67, 142 N. W. 450, 25 N. D. 539. 13. Section 7 of chapter 303 of the North Dakota Laws of 1911, which provides that the commission thereby created may, in addition to secretary provided for in 6 of the act, "also employ such other persons as clerks, stenographers, and experts as may be necessary for the performance of the duties required of the commission. The commission shall fix the compensation of such secretary, clerks, stenographers, and Digest 1-52 L.R.A.(N.S.) experts employed by them, but the total amount expended for that purpose shall not exceed $6,000 per annum," constitutes a valid annual appropriation of $6,000. State ex rel. Birdzell v. Jorgenson, 49: 67, 142 N. W. 450, 25 N. D. 539. 14. A statutory provision that a speci- fied officer shall be paid a salary not to ex- ceed a certain amount per year is not a continuing appropriation of money to pay it, so as to satisfy the requirements of a statute forbidding the payment of money from the public treasury except upon ap- propriations made by law. Leddy v. Cor- nell, 38: 918, 120 Pac. 153, 52 Colo. 189. Power of executive to veto or reduce items of. 15. The governor, of West Virginia can- not veto a general appropriation bill or an item in it after the adjournment of the legislature. Woodall v. Darst, 44: 83, 77 S. E. 264, 71 W. Va. 350. APPROVAL. Of fire escape, see BUILDINGS, 30-32, 35. APPURTENANCES. Passing of, by deed, see DEEDS, 50-63. Easements as, see EASEMENTS, II. c. Right to use water for irrigation passing on foreclosure as easement appurtenant to land, see MORTGAGE, 126. What passes as, on sale of steamer, see SALE, 7. ARBITRATION. I. In general, 16. II. Arbitrators; umpire, 7, 8. III. Award, 915. Of insurance loss, see EVIDENCE, 2429; IN- SURANCE, VI. a. By-law of board of trade as to, see EX- CHANGES, 5. Waiver or estoppel by participation in, see INSURANCE. V. b, 5, h. As to reference generally, see REFERENCE. I. In general. (See also same heading in Digest L.R.A. 1-10.) Status of certifying architect as arbitrator between building owner and contractor, see ARCHITECTS, 3. Awarding of attorneys' fees by, see ATTOR- NEYS, 61. Agreement for. Revival of action under stipulation in agree- ment for, see ABATEMENT AND REVIVAL, 35. Proceeding to set aside umpire's decision made final by contract as condition precedent to action on contract, see ACTION OR SUIT, 7. 172 ARBITRATION, II., III. Oral agreement for, see CONTRACTS, 261, 262. Validity of agreement for, see CONTRACTS, 441, 461. 1. A contract for the appraisement of a stock of merchandise "at the invoice pur- chase price" means that the goods are to be appraised at what was paid for them when they were bought, not at what it would cost to buy them from wholesalers at the time of the appraisement. Swisher v. Dunn, 45: 810, 131 Pac. 571, 132 Pac. 832, 89 Kan. 412, 787. 2. A general stipulation in a contract of lease that, in case of difference between the parties, it shall be referred to arbitra- tion, does not prevent either party from re- sorting to the courts in the first instance without such reference unless the stipula- tion makes such submission the only mode by which the amount of damages may be as- certained or by which liability can be fixed. Lawrence v. White, 19:966/63 S. E. 631, 131 Ga. 840. 3. A provision in a building contract for arbitration of any damage through de- fault in promptly finishing the work does not apply to defaults due to failure of the architect to furnish the plans and designate materials, and in furnishing improper plans. Hunn v. Pennsylvania Inst. for Blind, 18: 1248, 70 Atl. 812, 221 Pa. 403. (Annotated) Revocation of submission. 4. -The mere issuance of a summons upon a cause of action which has been submitted to arbitration does not affect a revocation of the arbitration, where neither a complaint nor other paper giving notice of the character of the action is filed until after the award is made. Wil- liams v. Branning Mfg. Co. 31: 679, 68 S. E. 902, 153 N. C. 7. (Annotated) 5. One of the parties to a building con- tract which provides that all matters in dis- pute shall be submitted to an arbitrator cannot revoke his authority when, through mistake, he has failed to consider and de- cide a part of the dispute submitted to him, and an action on the award has failed on that account; but he may proceed to rehear and decide the matter still in dispute. Frederick v. Margwarth, 18: 1246, 70 Atl. 797, 221 Pa. 418. (Annotated) 6. When the court, in setting aside an award, directs the case to be referred back to the arbitrators for another award, nei- ther party can afterward withdraw from the arbitration without consent of the court. McCann v. Alaska Lumber Co. 43: 711, 128 Pac. 663, 71 Wash. 331. (Annotated) II. Arbitrators; umpire. (See also same heading in Digest L.R.A. 1-10.) Competency of commissioner in condemna- tion proceedings, see EMINENT DO- MAIN, 160, 161. 7. It is not necessary that there should be a formulated dispute, in order to clothe with the duties and to invest with the im- Digest 1-52 L.R.A.(N.S.) munities of an arbitrator a person who by agreement is to ascertain what one party is to pay and the other party has a right to be paid in respect of a certain matter. Chambers v. Goldthorpe, 4 B. R. C. 833, [1901] 1 K. B. 624. Also reported in 70 L. J. K. B. N. S. 482, 49 Week. Rep. 401, 84 L. T. N. S. 444, 17 Times L. R. 304. Liability for negligence. 8. A surveyor to whose judgment a tim- ber owner and one who has contracted to cut it at a certain amount per thousand feet have submitted the scaling of the logs cut, which judgment is to be final and con- clusive between the parties, is not liable in damages for the negligent performance of his duty. Hutchins v. Merrill, 42: 277, 84 Atl. 412, 109 Me. 313. (Annotated) ///. Award. (See also same heading in Digest L.R.A. 1-10.) Award of commissioners in condemnation proceedings, see EMINENT DOMAIN, II. c, 2. Binding effect on mortgagee of award of ap- praiser, see INSURANCE, 668-670. Interest on award, see INTEREST, 28, 29. Validity. 9. No valid award can be made without notice to the parties of the selection of the third arbitrator and of the time and place of meeting to make the award, where arbi- trators who have failed to agree select a third arbitrator in accordance with the terms of the arbitration agreement. Bray v. Staples, 19: 696, 62 S. E. 780, 149 N. C. 89. (Annotated) 10. The valuation of a waterworks plant, made by a board of appraisers where a municipality has elected, under legis- lative authority, to exercise its option to purchase at a value to be determined by three engineers, one each to be selected by the city by the waterworks company, and the third by the two so selected, is not vitiated, in the absence of any evidence of actual bad faith, by the examination of the company's books by the" appraisers without the consent of the city, or the presence of its representatives, since the strict rules relating to arbitration and awards do not apply. Omaha v. Omaha Water Co. 48: 1084, 30 Sup. Ct. Rep. 615, 218 U. S. 180, 54 L. ed. 991. 11. The appraisal of a waterworks plant where a municipality elects, under legisla- tive authority, to exercise its option to purchase at a value to be determined by three engineers, one each to be selected by the city and the waterworks company, and the third by the two so selected, is a mat- ter of public concern, and unanimity among the appraisers is therefore unnecessary, the decision of the majority being sufficient. Omaha v. Omaha Water Co. 48:1084, 30 Sup. Ct. Rep. 615, 218 U. S. 180, 54 L. ed. 991. ARCHITECT. 173 Conclusiveness. Review on appeal of order setting aside award of commissioners in condemna- tion proceedings, see APPEAL AND Eu- KOR, 564. Provision that no agreement that award shall be final shall oust jurisdiction of courts, see CONSTITUTIONAL LAW, 455. Conclusivoness of certificate of performance of contract, see CONTRACTS, 677-685. Court's power to set aside award, see COURTS, 3. Review by courts of award of arbitrators, see COURTS, 172. Extent of jurisdiction in equity in suit to set aside award, see EQUITY, 114. 12. Where appraisers appointed to ap- praise a stock of merchandise upon a sale thereof at what had been paid for the goods, under a misapprehension as to the meaning of the language used in the contract, ap- praised the goods a w h a t it would cost to buy them from wholesalers at the time of the appraisement, their award is not bind- ing. Swisher v. Dunn, 45: 810, 131 Pac. 571, 132 Pac. 822, 89 Kan. 412, 787. 13. An award cannot be attacked be- cause not warranted by the terms of the submission, by one who has admitted of record that the award passed upon the mat- ters submitted. Williams v. Branning Mfg. Co. 31 : 679, 68 S. E. 902, 153 N. C. 7. 14. A provision of a contract for the or- namental work of a building, that any dis- pute as to the true meaning of the drawings and specifications shall be decided by the ar- chitect, whose decision shall be conclusive, does not make binding an award based upon his including in the contract matters which are not part of it, and excluding therefrom matters which' are a part of it. Snead & Co. Iron Works v. Merchants' Loan & T. Co. 9: 1007, 80 N. E. 237, 225 111. 442. Effect of setting aside. See also supra, 6. 15. The original rights of parties who have entered into an arbitration agreement are not affected by a judgment setting aside an award because the arbitrators acted with- out giving the necessary notice to the par- ties. Bray v. Staples, 19: 696, 62 S. E. 780, 149 N. C. 89. ARCHITECT. Constitutionality of statute as to licensing of, see CONSTITUTIONAL LAW, 291. Revocation of license of, see CONSTITUTION- AL LAW, 103, 133, 554; LICENSE, 36; STATUTES, 39. Certificate by, of performance of contract, see CONTRACTS, IV. d. Construction of contract with, see CON- TRACTS, 390. Architect's good faith in failing to pass on plans and drawings for changes in work, see CONTRACTS, 638. Right to recover on part performance of contract, see CONTRACTS, 646. Digest 1-52 L.R.A.(N.S.) Misrepresentations as to ability to perform contract, see CONTRACTS, 664; FRAUD AND DECEIT, 9. Liability for damages occasioned by de- parture from agreed building plan, see CONTRACTS, 700. Authority to change plans, see CONTRACTS, 703. Reasonableness of custom of, to retain plans, see CUSTOM, 7. Measure of damages for wrongful discharge, see DAMAGES, 204. Damages for fraud in securing contract, see DAMAGES, 322. Admissibility of certificate of, in evidence, see EVIDENCE, 750. Fraud in statement as to costs of structure, see FRAUD AND DECEIT, 8. Wife's contract for services of, see HUS- BAND AND WIFE, 38. Right to lien for services, see MECHANICS' LIENS, 33, 34. 1. One who has employed an architect to prepare plans for the alteration of a building within a specified sum cannot hold him liable for damages caused by the re- pairs according to his plan exceeding the amount specified, if before proceeding with the work he was told by contractors who re- fused to take a contract for the work at the price specified, that it was practically im- possible to estimate with any degree of ac- curacy the cost of construction because of market conditions. Benenato v. McDougall, 49: 1202, 137 Pac. 8, 166 Cal. 405. 2. An architect employed to do all that was necessary to be done as an architect in designing and carrying out a certain build- ing operation, for an agreed remuneration, is not entitled to retain the plans and speci- fications prepared by him, after the com- pletion of the work, notwithstanding any custom to the contrary. Gibbon v. Pease, 3 B. R. C. 460 [1905] 1 K. B. 810. Also Reported in 74 L. J. K. B. N. S. 502, 69 J. P. 209, 53 Week. Rep. 417, 92 L. T. N. S. 433, 21 Times L. R. 365, 3 L. G. R. 461. ( Annotated ) 3. An architect employed by a building owner to supervise the performance of a building contract which provides for pay- ments on account of the price of the work during its progress, and for the payment of the balance after its completion, upon cer- tificates of the architect, and that a cer- tificate of the architect, showing the final balance due or payable to the contractor, should be conclusive evidence of the work having been duly completed and of the right of the contractor to receive payment of the final balance, occupies the position of an arbitrator, rather than that of a real valu- er, in ascertaining the amount due to the contractor and certifying for the same un- der the contract, and therefore is not liable to an action by the building owner for neg- ligence in the exercise of those functions. Chambers v. Goldthorpe, 4 B. R. C. 833, [1901] 1 K. B. 624. Also Reported in 70 174 AREA WAYS ARREST. L. J. K. B. N. S. 482, 49 Week. Rep. 401, 84 L. T. N. S. 444, 17 Times L. H. :i()4. (Annotated) AREAWAYS. Under sidewalk, see ESTOPPEL, 17; HIGH- WAYS, 171. ARGUMENT. Of counsel, see APPEAL AND EBBOB, VII. m, 5; TRIAL, I. d. ARM. Damages for loss of, see DAMAGES, 434. ARMORY. Liability for personal injuries in state ar- mory, see STATE, 30. Lease of etate armory, see STATE, 30, 31. ARMY AND NAVY. Bond for proper conduct of liquor business on military reservation, see BONDS, 32; ESTOPPEL, 170. Special rate for transportation of state militia, see CAKBIEBS, 1029. Free transportation to soldiers and sailors, see CABBIEBS, 1064. Courts martial, see COUBTS MABTIAL. Damages for excluding petty officer from dance hall, see DAMAGES, 628. Habeas corpus to secure discharge of minor who has deserted from navy, see HA- BEAS CORPUS, 75. Unlawful sale of intoxicating liquors on military reservation, see INTOXICATING LIQUORS, 185. Libel in repprt as to merits of claim for medal of honor, see LIBEL AND SLAN- DER, 143, 153. Appropriation to provide compensation to injured members of National Guard, see PUBLIC MONEY, 16. Letter written by soldier as soldier's will, see WILLS, 120, 121. See also MILITIA. 1. The language of W. Va. Code 1906, chap. 18, 47, relating to provision for any member of the National Guard "who shall, without fault or neglect on his part, be wounded or disabled while performing any lawfully ordered duty," is sufficiently comprehensive to embrace the case of a member of the National Guard who is in- jured while going to the place of annual .encampment, and who is not at fault when Digest 1-52 L.R.A.(N.S.) injured. Woodall v. Darst, 44: 83, 77 S. E. 264, 71 W. Va. 350. ARRAIGNMENT. Time for objection that accused was not arraigned, see APPEAL AND EBBOB, 359. Presumption on appeal as to arraignment of accused, see APPEAL AND ERROR, 473. Omission of arraignment in criminal case as ground for reversal of conviction, see APPEAL AND ERROR, 1046, 1047. Trial without, as bar to prosecution, see CBIMINAL LAW, 190, 192, 193. ARREARS. Effect of payment of, to reinstate insured, see INSUBANCE, 407, 411-413. ARREST. 7. For crime, 114. a. In general, 13. fo. Without warrant, II. In civil cases, 1519. Use of warrant of, to extort money, see ABUSE OF PBOCESS, 2. Probable cause for, see APPEAL AND EBBOB, 1318; TRIAL, 277. Effect of finding on appeal from joint ver- dict against municipality and police- man for wrongful arrest, see APPEAL AND ERROR, 1623. Assault in effecting arrest, see ASSAULT AND BATTERY, 17. Assault in resisting, see ASSAULT AND BAT- TERY, 35, 36; EVIDENCE, 749. Release from, on bail, see BAIL AND RECOG- NIZANCE. Liability on official bond for unlawful shoot- ing in making arrest, see BONDS, 58, 59, 63. Sheriff's liability for injury by deputy in making arrest, see BONDS, 62. Of passenger, see CARBIEBS, II. f. Delegating to clerk of court power to issue warrants of, see CONSTITUTIONAL LAW, 137. By military authorities, see CONSTITUTION- AL LAW, 572. Of convict violating parole, see CONSTITU- TIONAL LAW, 573. Privilege from, see COUBTS, 247, 248; WRIT AND PBOCESS, II. e, 1. Sufficiency of warrant for, see CBIMINAL LAW, 132. Of judgment, see CRIMINAL LAW, 161-166; NEW TBIAL, 80. Punitive damages for, see DAMAGES, 59, 60. Measure of damages for, see DAMAGES, III. g. Recovery for mental suffering because of, see DAMAGES, 620. ARREST, I. a, b. 175 Civil liability for killing in effecting arrest, see DEATH, 38; EVIDENCE, 2003. Homicide in making, see HOMICIDE, 76, 77; TRIAL, 932. Homicide while resisting, see EVIDENCE, 109; HOMICIDE, 75, 94. Burden of showing authority for, see EVI- DENCE, 673. Effect of illegality of arrest on admissibil- ity of confession, see EVIDENCE, 1209. Wrongful arrest of tenant by landlord's agent, see EVIDENCE, 1427. Evidence to show officer's good faith in making, see EVIDENCE, 1665, 1682. Evidence in mitigation of damages for causing, see EVIDENCE, 2009. Variance in action against sheriff for shoot- ing person in attempting to arrest him, see EVIDENCE, 2485. Of fugitive from justice, see EXTRADITION. Civil liability for, see FALSE IMPRISON- MENT; MALICIOUS PROSECUTION; MU- NICIPAL CORPORATIONS, 423, 424. Review of, on habeas corpus, see HABEAS CORPUS, 34-36. Sufficiency of verification of information to justify issue of warrant of arrest, see INDICTMENT, ETC., 7. Injunction against, see INJUNCTION, 328. Of guest at hotel, see INNKEEPERS, 30. Burning of building by marshal in effect- ing arrest, see INSURANCE, 691. Liability for libel in swearing to affidavit for, see LIBEL AND SLANDER, 97. Ne exeat bond to secure release from arrest, see NE EXEAT. Resisting officer in making generally, see OBSTRUCTING JUSTICE. Reward for, see REWARD. 1. For crime, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. A warrant for arrest for violation of a statute is not void because it recites an illegal amendment, if it also recites a valid statute which has in fact been violated. People ex rel. Farrington v. Mensching, 10 : 625, 79 N. E. 884, 187 N. Y. 8. 2. When the conductor of a train points out to a peace officer a passenger whom he alleges to have been guilty of conduct for which the statute makes it such officer's du- ty to arrest him, it is his duty to make the arrest upon the verbal demand of the con- ductor, and he is not required to inquire into the guilt or innocence of the offender. Com. v. Marcum, 24: 1194, 122 S. W. 215, 135 Ky. 1. 3\ An actiofi cannot be maintained for false arrest if a fine has been imposed by a police court for the conduct which caused the arrest. Louisville R. Co. v. Hutti, 33: 867, 133 S. W. 200, 141 Ky. 511. Digest 1-52 I,.R.A.(N.S.) ft. Without warrant. (See also same heading in Digest L.R.A. 1-70.) Liability on bond of officer, see BONDS, 66. Evidence on question of good faith in mak- ing, see EVIDENCE, 1665. Civil liability for, see FALSE IMPRISON- MENT. Homicide in resisting arrest without war- rant, see HOMICIDE, 75. Statute providing for arrest without war- rant, see SEARCH AND SEIZURE, 13 4. An arrest under a "John Doe" war- rant by an officer who saw the person ar- rested in the act of committing a crime is not illegal, as it is not necessary, under such circumstances, that any warrant should have been issued. State v. Sutter, 43: 399, 76 S. E. 811, 71 W. Va. 371. 5. A peace officer may properly arrest without a warrant one whom he has prob- able cause to believe has committed a felony, or who has actually committed such an of- fense. Atchison, T. & S. F. R. Co. v. Hins- dell, 12: 94, 90 Pac. 800, 76 Kan. 74. 6. The provision of Ga. Pen. Code 1895, 896, on the subject of arrest, applies alike to state and municipal arresting officers. Porter v. State, 2: 730, 52 S. E. 283, 124 Ga. 297. 7. A marshal or policeman may law- fully arrest without a warrant an offender against a municipal ordinance, who is at- tempting to escape. Porter v. State, 2: 730, 52 S. E. 283, 124 Ga. 297. (Annotated) 8. An arrest without a warrant, on the ground of an attempt to escape, is not jus- tified where the person sought to be arrested by the marshal is not shown to have violat- ed any municipal ordinance other than by proof of a verbal complaint made to the marshal by another person, that the person sought to be arrested had created a dis- turbance, whereupon the latter eluded him in order to prevent an illegal arrest. Por-- ter v. State, 2: 730, 52 S. E. 283, 124 Ga. 297. 9. A police officer cannot, as such, justi- fy an arrest without warrant out of the limits of the town for which he was ap- pointed. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N. C. 317. 10. A police officer has no authority to arrest without warrant a woman who is walking quietly along the street after emerging from a disorderly saloon at mid- night. Klein v. Pollard, 10: 1008, 112 N. W. 717, 149 Mich. 200. 11. One who, in the presence of a public officer, uses abusive and threatening lan- guage toward him, and interferes with his performance of his duties, may be arrested by him without a warrant. Myers v. Dunn, 13: 881, 104 S. W. 352, 126 Ky. 548. (Annotated) 12. A statute directing the conductor of a train on which a passenger has been guilty of uttering obscene language in the presence of other passengers, or of behaving in a 176 ARREST, II. ARTICLES OF INCORPORATION. boisterous manner to their annoyance, to notify a peace officer at the first stopping place, authorizes the arrest of such person by such officer without warrant. Com. v. Marcum, 24: 1194, 122 S. W. 215, 135 Ky. 13. A private citizen cannot justify an arrest without warrant for the alleged com- mission of a felony, unless it appears that a felony was in fact committed. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N. C. 317. 14. Persons assisting a police officer in making an arrest without a warrant out of his jurisdiction cannot justify under his authority, since he has none. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N. C. 317. II. In civil cases. (See also same heading in Digest L.R.A. 1-10.) . Privilege from, see WHIT AND PROCESS, II. d, 1. 15. The statute permitting arrest for fraud applies in an action by one partaer against another when, by reason of the character of the transaction, or the general termination of the partnership dealings, an action at -law will lie against one partner ir favor of the other. Ledford v. Emerson, 4: 130, 52 S. E. 641, 140 N. C. 288. (Annotated) 16. The mere fact that one arrested for debt had filed his petition in bankruptcy before his arrest is not sufficient to show that the arrest was illegal, where the pend- ency of the proceedings does not appear. Gibson v. Holmes, 4: 451, 62 Atl. 11, 78 Vt. 110. 17. The arrest of defendant in a prior suit upon the promissory notes which be- came the foundation of a judgment, from which arrest he was voluntarily discharged, does not prevent his arrest in a proceeding to enforce the judgment. Re Morton, n: ,1087, 81 N. E. 869, 196 Mass. 21. 18. A statute giving to a person dis- charged from arrest on taking the poor debtor's oath, exemption from a second ar- rest for the same cause of action,. does not apply to a voluntary discharge, or a dis- charge after taking the oath that defendant does not intend to leave the state. Re Mor- ton, ii : 1087, 81 N. E. 869, 196 Mass. 21. 19. -A warrant describing defendant as of a certain municipality in a certain county located within the state is sufficient to de- termine his residence within the United States, so as to entitle him to the benefit of a statutory exemption from arrest for debt. Caldbeck v. Simanton, 20: 844, 71 Atl. 881, 82 Vt. 69. ARREST OF JUDGMENT. See CRIMINAL LAW, 161-166; NEW TRIAL, 80. Digest 1-52 L.R.A.(N.S.) ARSON. Effect of misconduct of juror on verdict of conviction, see APPEAL AND ERKOR, 1505. Admissibility of confession of one accused of, see EVIDENCE, 1208. Sufficiency of proof of attempted arson, see EVIDENCE, 2392. Libel in charging, see LIBEL AND SLANDER, 90. Competency of wife as witness against hus- band charged with, see WITNESSES, 36. 1. The corpus delicti in arson consists in proof of the burning and of criminal agency in causing it. Spears v. State, 16: 285, 46 So. 166, 92 Miss. 613. (Annotated) 2. The corpus delicti of arson is not es- tablished by merely showing that a build- ing has been burned, but, in addition, it must appear that the fire was caused by the wilful act of some person criminally re- sponsible. State v. Pienick, u: 987, 90 Pac. 645, 46 Wash. 522. 3. An attempt to commit arson is made by employing and paying persons to do fhe act, furnishing them materials and a horse, showing them how to start the fire, and starting them on their way, although the persons employed do not in fact intend to carry out their agreement, and one is act- ing with the knowledge of the owner of the building, for the purpose of entrapping the others. State v. Taylor, 4: 417, 84 Pac. 82, 47 Or. 455. (Annotated; 4. A storehouse connected by a cov- ered, but uninclosed, gallery with a dwell- ing house, is a part of the dwelling house, so as to render one setting fire to it guilty of arson of a dwelling. Spears v. State, 16: 285, 46 So. 166, 92 Miss. 613. 5. A house belonging to a married wo- man is the property of "another" than her husband, under Kan. Gen. Stat. 1901, 2046, providing that any person burning the prop- erty of another shall, on conviction, be ad- judged guilty of arson. State v. Shaw, 21 : 27, 100 Pac/78, 79 Kan. 396. 6. The legal identity of husband and wife does not prevent a husband who burns his wife's house from being guilty of arson in jurisdictions where the wife has power to possess a separate estate. State v. Shaw, 21 : 27, 100 Pac. 78, 79 Kan. 396. ( Annotated ) 4 ARTESIAN WELLS. Injunction against interference with, see APPEAL AND ERROR, 802. Lien for drilling, see MECHANICS' LIENS, 31. Rights as to, generally, see WATERS, 250, 287-289, 292. ARTICLES OF INCORPORATION. See CORPORATIONS, III. ARTIFICIAL CHANNEL ASSAULT AND BATTERY. 177 ARTIFICIAL CHANNEL. Diversion of water by municipality through, see MUNICIPAL CORPORATIONS, 447, 448. Diverting water from river to, for improve- ment of navigation, see WATEBS, 99. ARTIFICIAL CONDITION. Duty to maintain artificial condition of water, see WATERS, 138, 139, 327-330. ARTIFICIAL TEETH. As necessaries, see HUSBAND AND WIFE, 13. ARTISAN. Lien of, see MECHANICS' LIENS. ART MUSEUM. Bequest to, as one for charitable purpose, see CHARITIES, 16. ASBESTOS. Lien for, see MECHANICS' LIENS, 35. ASEXUALIZATION. Of criminal, see CRIMINAL LAW, 243. ASHES. Liability on bond of ash collector, see BONDS, 14. Duty to put on icy sidewalk, see HIGHWAYS, 301. Liability of city for negligence in removal of, see MUNICIPAL CORPORATIONS, 427, 428. Right of municipality to remove, from res- idence in absence of ordinance, see MU- NICIPAL CORPORATIONS, 29. Liability of city for dumping into water, see MUNICIPAL CORPORATIONS, 428. Injury to child by hot ashes, see NEGLI- GENCE, 142. Injury by hot ashes thrown from engine, see RAILROADS, 60, 91. ASPHYXIATION. Liability for death by, see GAS, 57. Death of insured by, see INSURANCE, 754. Digest 1-52 L.R.A.(N.S.) ' ' ASPORTATION. What is sufficient asportation to constitute larceny, see LARCENY, 11-13. ASSAULT AND BATTERY. /. In general, 125. II. Justification; defenses, 2647. Review of verdict on appeal, see APPEAL AND ERROR, 902. Instructions, see APPEAL AND ERROK, 1344; TRIAL, 1077-1079. Taking object in evidence in action for, in- to jury room as prejudicial error, see APPEAL AND ERROR, 1504. Increasing or reducing damages for, on ap- peal, see APPEAL AND ERROR, 1596, 1597. Attorney's lien for services on client's right of action for, see ATTORNEYS, 80. Effect of discharge in bankruptcy on liabili- ty for, see BANKRUPTCY, 164. Liability of sureties on constable's bond for, see BONDS, 67. On passenger, see CARRIERS, II. e. On judge as contempt, see CONTEMPT, 4, 5. Assignment of right of action for, see CON- TRACTS, 449. Liability for manslaughter of one assisting in assault, see CRIMINAL LAW, 51. Conviction of assault as bar to prosecution for murder after victim's death, see CRIMINAL LAW, 214. Exemplarv damages for, see DAMAGES, 51- 55, 78-81, 90. Measure of damages for, see DAMAGES, 332. Mental anguish as element of damages, see DAMAGES, 622, 631, 634. Presumption and burden of proof, see EVI- DENCE, 106. Evidence admissible on prosecution for, see EVIDENCE, 749, 883, 1208, 1355, 1477, 1568, 1652, 2450. Evidence admissible on civil trial for, see EVIDENCE, 884, 1368, 1542, 3569-1572, 1612, 1664, 1852, 1866, 2001, 2016. Prejudicial error in admission of evidence, see APPEAL AND ERROR, 1140. Prejudicial error in exclusion of evidence, see APPEAL AND ERROR, 1229, 1233. Evidence as to damages by, see EVIDENCE, 1743. Evidence in mitigation of damages for, see EVIDENCE, 2011, 2012. Evidence on trial for homicide of assaults by deceased, see EVIDENCE, 1893. Weight and sufficiency of evidence in prose- cution for, see EVIDENCE, 2397, 2398. Liability for injury resulting from fright caused by assault on other person, see FRIGHT, 11. Homicide resulting from fright caused by unlawful assault on other person, see HOMICIDE, 36. Homicide in defending third person against, see HOMICIDE, 63, 81, 83-90. Homicide in resisting, see HOMICIDE, 67; III. b. 12 178 ASSAULT AND BATTERY, I. Effect of, on right subsequently to kill in self-defense, see HOMICIDE, 95-97. Wife's right of action for assault on her by husband, see HUSBAND AND WIFE, 204- 206. Conviction for assault with deadly weapon upon indictment charging murder, see INDICTMENT, INFORMATION AND COM- PLAINT, 122. Injunction against, see INJUNCTION, 187. On insured person as accidental injury, see INSUBANCE, 731. Recovery against one only of two parties sued for, see JUDGMENT, 24. ,By servant, see CARRIERS, 132-147 ; MASTER AND SERVANT, 26, 41, 941-945, 953-974. Charging one with threatening to assault as slander per se, see LIBEL AND SLAN- DER, 14. Charging assault as libelous, see LIBEL AND SLANDER, -31. Liability of municipality for assault by agent, see MUNICIPAL CORPORATIONS, 397. New trial for inadequacy of damages, see NEW TRIAL, 35. Sufficiency of defendant's pleadings in ac- tion for, see PLEADING, 466. Demurrer to complaint in action for, see PLEADING, 590. With intent to rape, see RAPE. Liability of teacher for, see SCHOOLS, 34. Counterclaim in action for, see SET-OFF AND COUNTERCLAIM, 16. Offer of evidence in action for, see TRIAL, 45. Right to have question of guilt of lesser degrees of assault submitted to jury, see TRIAL, 93. Question for jury in action for, see TRIAL, 244, 289, 291, 666. Cross-examination of witnesses, see WIT- NESSES, 86. Evidence to contradict witness in action for, see WITNESSES, 172. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. A civil action for an assault and bat- tery may be maintained where it appears that the act complained of was unlawful, although no intent on the part of the de- fendant to injure the plaintiff was shown. Mohr v. Williams, i: 439, 104 N. W. 12, 95 Minn. 261. 2. Placing one's hand on another's head and pushing his hat back for the purpose of seeing his face, in order to identify him, is an assault and battery. Seigel v. Long, 33: 1070, 53 So. 753, 169 Ala. 79. 3. One is not guilty of assault in pla- cing his hand upon a woman whom he dis- covers to be in danger of being led astray, for the purpose of persuading her to return to her friends, if he attempts no coercion, and leaves her when she frees herself from his touch. State v. Hemphill, 45: 455, 78 S. E. 167, 167, N. C. 632. (Annotated) 4. A battery is not committed by one Digest 1-52 t.R.A.(N.S.) who, in attempting to secure goods from another, who had obtained possession of them without paying for them, and who, re- sorting to a ruse to divert his attention, takes the property out of his hands, and, in doing so, accidentally touches him on the knee. Steinman v. Baltimore Antiseptic Steam Laundry Co. 21: 884, 71 Atl. 517, 109 Md. 62. 5. A member of a mob which by threats and hostile demonstrations compels a per- son to seek refuge in his home, who fires a pistol at him while there, is liable in dam- ages for assault and trespass. Saunders v. Gilbert, 38: 404, 72 S. E. 610, 156 N. C. 463. (Annotated) 6. Abusing and threatening a woman over a telephone is not an assault. Kramer v. Ricksmeier, 45: 928, 139 N. W. 1091, 159 Iowa, 48. 7. Making threatening gestures towards another with an ax does not constitute an assault if one is not within striking dis- tance of him, or sufficiently near to put him in fear of being struck. Grimes v. State, 33: 982, 54 So. 839, 99 Miss. 232. (Annotated) 8. The flight of the person assaulted when another advances upon him with drawn knife under threat to kill him, so that the assailant does not get near enough to carry out his threat, does not prevent the act from being a criminal assault, under a statute making an assault an unlawful at- tempt coupled wich the present ability to commit a violent injury on the person of another. Wells v. State, 45: 1171, 157 S. W. 389, 108 Ark. 312. 9. One who is assaulted upon the street without provocation, by a much heavier man, and has applied to him in a tone that can be heard 175 feet distant the vilest of epithets, is entitled, although he was not physically injured by the as- sault, to such compensation for the indig- nities and vilification as money can afford. Carrick v. Joachim, 28: 85, 52 So. 173, 12(i La. 5. . (Annotated) By pointing unloaded weapon. See also infra, 2o, 37. 10. That the weapon was not loaded will not prevent the pointing of a gun at an- other from being an assault if the latter had reasonable cause to believe it was load- ed, and was put in fear of immediate bodily injury therefrom, under circumstances which would induce fear in the mind of an ordinary man. State v. Barry, 41: 181, 124 Pac. 775, 45 Mont. 598. (Annotated) 11. Pointing an unloaded gun at another is not an assault if, when the one at whom \$> is pointed first discovers it, the one presenting it is, to the knowledge of his apparent victim, covered by a gun in the hands of another, so as to be harmless, so that no fear is induced in the mind of the victim. State v. Barry, 41: 181, 124 Pac. 775, 45 Mont. 598. 12. An assault with a dangerous weapon cannot be committed by pointing at an- other an unloaded pistol, although the per- son toward whom it is pointed does not ASSAULT AND BATTERY, II. 179 know that the weapon is not loaded, and is put in fear by the act. Price v. Unit- ed States, 15: 1272, 156 Fed. 950, 85 C. C. A. 247. (Annotated) 13. An assault may be committed by pointing at another an unloaded pistol if the person at whom it is pointed does not know that it is unloaded, and is put in apprehension by the act. Price v. United States, 15: 1272, 156 Fed. 950, 85 C. C. A. 247. (Annotated) By parent punishing child. 14. A parent may be guilty of assault in inflicting punishment upon his child if it was cruel and severe, and such as, in its very nature, would negative the idea of good faith on the part of the parent, al- though it does not cause permanent injury or disfigurement to the child. People v. Green, 21: 216, 119 N. W. 1087, 155 Mich. 524. ( Annotated ) 15. A father may be convicted of assault where he whips with a riding whip his twelve-year-old daughter on her nude body, so as to cut the flesh, and then leaves her locked in a room for a couple of days, with her hands tied behind her, feeding her on bread and water. State v. Green, 21:216, 119 N. W. 1087, 155 Mich. 524. Punishment of convict. 16. Corporal punishment of a convict by a warden under circumstances not war- ranted by a statute authorizing only such punishment as may be reasonably necessary to compel work or labor in the execution of the sentence, or to maintain proper disci- pline, is an assault, as a person by convic- tion of crime does not lose, except as ex- pressly provided by statute, his right tto personal security against unlawful invasion. Westbrook v. State, 26: 591, 66 S. E. 788, 133 Ga. 578. By officer. 17. Where a town marshal in arresting a person is accompanied by a deputy, and they are each heavier and more powerful than the person whom they arrest, and together can readily handle him without beating him on the head with a loaded pistol, at the risk of killing him, thereby so lacerating his scalp that he is covered with blood, the marshal by whom such un- warranted assault is committed will be held liable in damages. Stoehr v. Payne, 44: 604, 61 So. 206, 132 La. 213. 18. A policeman on an Indian reservation who assaults and imprisons a person of In- dian blood who, upon going to a train to meet his wife and children, disregards his directions to keep back from the entrance to the train, is liable therefor in damages. Deragon v. Sero, 20: 842, 118 N. W. 839, 137 Wis. 276. By physician; unauthorized operation. 19. In a civil action by a patient against a surgeon for assault and battery, it is not necessary to show that the surgeon in- tended, by the act complained of, to injure the patient, but it is sufficient if it appears that the act was wrongful and unlawful. Rolater v. Strain, 50: 880, 137 Pac. 96, 39 Okla. 572. (Annotated) Digest 1-52 L.R.A.(N.S.) 20. An operation upon the left ear of a patient without her express or implied consent, after she had consented to an operation upon her right ear, was wrong- ful and unlawful, and constituted in law an assault and battery. Mohr v. Williams, i: 439, 104 N. W. 12, 95 Minn. 261. (Annotated) Liability of one encouraging assault. 21. One present at a quarrel, who en- courages a battery, assumes the conse- quences of the act to its full extent, as much as the party who does the deed. Per- rine v. Hanacek, 51: 718, 138 Pac. 148, 40 Okla. 359. (Annotated) Intent to kill. Evidence in prosecution for, see EVIDENCE, 1477. Prejudicial error in exclusion of evidence, see APPEAL AND ERROR, 1229. Construction of statute as to punishment for, see STATUTES, 231. Duty of court to define "malice afore- thought," see TRIAL, 888. Correctness of instructions, see TRIAL, 1078, 1079. Change of venue in action for assault with intent to kill, see VENUE, 26. 22. To render one guilty of assault with intent to murder, it must have been made with malice aforethought and an intent to kill. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 23. The wounding of one while shooting at another with intent to kill will not sus- tain a prosecution for shooting the former with intent to kill, under a statute provid- ing that every person who shall shoot at another with intent to kill such other shall be punished. State v. Mulhall, 7: 630, 97 S. W. 583, 199 Mo. 202. (Annotated) 24. An assault with intent to kill, com- mitted without legal justification or excuse, and without any extenuating circumstances, in law is committed with malice afore- thought, and is an assault with intent to murder. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 25. One is guilty of assault with intent to kill who points a loaded revolver at an- other to compel him to do a specified act which the assailant has no right to demand, under threat to kill him if he does not com- ply with the demand, although death may be avoided by such compliance. People v. Connors, 39: 148, 97 N. E. 643, 253 111. 266. (Annotated) //. Justification; defenses. (See also same heading in Digest L.R.A, 1-10.) In case of assault on passenger, see CAR- RIERS, 139, 140. Evidence in justification of, see EVIDENCE, 2002. Mere words as provocation for, see CAR- RIERS, 139, 140; HOMICIDE, 70. 26. A tenant, who, upon vacating the premises, leaves a chattel, with the under- 180 ASSAULT AND BATTERY, II. standing that he can get it when he wants it, has no right to use force to obtain it, when, upon calling for it and asserting that it is liis, his successor states that he knows nothing about it, but will refer the matter to the landlord, and forbids the owner to re- move it, placing his hand on it to prevent his doing so. Stanley v. Payne, 3: 251, 62 Atl. 495, 78 Vt. 235. (Annotated) 27. Assisting in the elopement of a minor girl will not justify the father in admin- istering a whipping to the one so doing, which is the result of deliberation, after the lapse of sufficient cooling time. Shoemaker v. Jackson, i : 137, 104 N. W. 503, 128 Iowa, 488. (Annotated) 28. An officer who, in lawful self- defense, shoots at one whom he is intending to arrest, and, missing him, accidentally wounds an innocent bystander, is not liable for the injury, in the absenee of negligence. Lord v. Shaw, 50: 1069, 137 Pac. 885, 41 Okla. 347. (Annotated) 29. That one who has been driven to his home by a mob fires a pistol into the air to frighten the crowd away does not con- done the assault and trespass of which those composing the mob have been guilty. Saund- ers v. Gilbert, 38: 404, 72 S. E. 610, 156 N. C. 463. 30. An employer may, after the termina- tion of a contract of employment, use rea- sonable force to remove the servant from his premises, if, after reasonable opportuni- ty to do so or while behaving in a disorder- ly manner, he refuses to leave. Noonan v. Luther, 41: 761, 99 N. E. 178, 206 N. Y. 105. (Annotated) Mutual combat. 31. Where two persons engage voluntari- ly in a fight, either can maintain an action against the other to recover the actual damage for the injuries he may receive; and the fact that the combat was by agreement or mutual consent of the parties to it is no defense. Morris v. Miller, 20: 907, 119 N. W. 458, 83 Neb. 218. (Annotated) Mistake in identity. 32. Mistake in identity of the person assaulted is no justification for assault and battery. Seigel v. Long, 33: 1070, 53 So. 753, 169 Ala. 79. (Annotated) Contributory negligence. 33. The doctrine of contributory negli- gence as a defense has no proper application to an action for damages for an assault and battery. Eckerd v. Weve, 38: 516, 118 Pac. 870, 85 Kan. 752. (Annotated) Offer of apology. 34. Offering to apologize to one upon whom a battery has been committed is no defense to an action to recover damages for the battery. Seigel v. Long, 33: 1070, 53 So. 753, 169 Ala. 79. Unlawful arrest. Homicide in resisting unlawful arrest, see HOMICIDE, 75. 35. The offense which one commits who fires at an arresting officer attempting an illegal arrest, with a gun, and misses him, when such resistance is unnecessary to de- fend himself from the illegal arrest, is that Digest 1-52 L.R.A.(N.S.) of unlawfully shooting at another not in his own defense. Porter v. State, 2: 730, 52 S. E. 283, 124 Ga. 297. 30. If an attempted arrest be unlawful, the party sought to be arrested may use such reasonable force, proportioned to the injury attempted upon him, as is neces- sary to effect his escape, but no more; and he cannot do this by using or offering to use a deadly weapon, if he has no rea- son to apprehend a greater injury than a mere unlawful arrest. State v. Gum, 33: 150, 69 S. E. 463, 68 W. Va. 105. (Annotated) Defense of property or dwelling. In attempt to enter upon one's own prop- erty in possession of wrongdoer, see APPEAL AND ERKOB, 1033. Evidence to show good faith, see EVIDENCE, 1666, 1743, 2001. 37. The pointing, by one whose property has been taken out of his possession under a writ of attachment, of a firearm at another who is attempting to use the property, to compel him to desist, without first request- ing him to do so, is such excessive force as to render the one so doing guilty of an assault. State v. Scott, 9: 1148, 55 S. E. 69, 142 N. C. 582. 38. The mere act of a trespasser in tear- ing down one's outlying fence after he has been warned to desist does not justify shoot- ing or wounding him with a firearm, so as to relieve the assailant from liability in damages for assault. Newcome v. Russell, 22: 724, 117 S. W. 305, 133 Ky. 29. (Annotated) 39. That one on trial for assaulting an- other with a dangerous weapon while try- ing to gain possession of real estate was the owner of the property is immaterial, since he had no right to resort to force to regain his rights. Hickey v. United States, 22: 728, 168 Fed. 536, 93 C. C. A. 616. (Annotated) 40. That one injured by a property own- er attempting to effect an entry on the property was merely an employee of one in wrongful possession thereof does not render such owner liable for the injury if he used no more force than was necessary to effect the entry. Walker v. Chanslor, 17: 455, 94 Pac. 606, 153 Cal. 118. (Annotated) 41. The owner of land who is entitled to immediate possession of it is not liable for assault upon a trespasser thereon be- cause of the use by him of no more force than is necessary to expel the trespasser when he attempts to exercise his right of entry. Walker v. Chanslor, 17: 455, 94 Pac. 606, 153 Cal. 118. (Annotated) 42. One is not guilty of assault and bat- tery in ejecting from his apartments, using no more force than is necessary, a trespasser who must have known that he would be ejected if he went there. Slater v. Taylor, 18: 77, 31 App. D. C. 100. Self-defense. Liability of officer who, in self-defense, shoots another, for accidental injury to third person, see APPEAL AND EBBOB, 1344. ASSAYERS ASSETS. 181 Evidence as to character or reputation of person assaulted, see EVIDENCE, 1568- 1572. Question for jury as to, see TKIAL, 291. . Instruction as to right of self-defense, see TKIAL, 1016. Evidence on question of, see WITNESSES, 172. See also supra, 28. 43. One pleading self-defense in justifica- tion of an assault and battery is bound to show that he used no more force than rea- sonably appeared to him, under all the cir- cumstances, to be necessary for his own per- sonal safety. AlcQuiggan v. Ladd, 14: 689, 64 Atl. 503, 79 Vt. 90. 44. The force which one may use in self- defense is that which reasonably appears to him to be necessary in view of all the cir- cumstances of the case; and his honest be- lief with reference thereto is immaterial. McQuiggan v. Ladd, 14: 689, 64 Atl. 503, 79 Vt. 90. 45. One under the influence of liquor who, while on the sidewalk, has applied in- sulting epithets to the owner of abutting property, has the right of self-defense if the latter advances upon him to force him to leave the walk. Hixson v. Slocum, 51: 838, 161 S. W. 522, 156 Ky. 487. (Annotated) 46. One who enters another's house for a wrongful purpose has a perfect right of self-defense, if, when discovered, he aban- dons his purpose, flees from the building, and is pursued and assaulted by the owner of the property. Cox v. State, 26: 621, 123 S. VV. 69G, 57 Tex. Crim. Rep. 427. (Annotated) Criminal intimacy with wife. Evidence as to, see EVIDENCE, 2002. 47. One is not justified in making an as- sault with a deadly weapon to prevent the one assaulted from committing adultery in the future with the wife of the assailant. State v. Young, 18: 688, 96 Pac. 1067, 52 Or. 227. (Annotated) ASSAYERS. Injunction against operation of assay office, see INJUNCTION, 12. ASSEMBLY. Constitutional right to assemble peaceably, see CONSTITUTIONAL LAW, II, i. ASSEMBLY HALL. Authority of town to construct, see TOWNS, 5. Digest 1-52 L.R.A.(N.S.) ASSENT. Estoppel by, see ESTOPPEL, III. f. Presumption and burden of proof as to, see EVIDENCE, II. e, 4. To encumbrance on insured property, see INSUBANCE, 239. ASSESSMENT COMPANY. See INSURANCE, 7; VI. h, 2. ASSESSMENT ROLL. Entry of tax on, see TAXES, 178. ASSESSMENTS. On members of social club, see APPEAL AND ERROR, 43; CLUBS, 3, 4. On pledged stock, see CORPORATIONS, 239. On paid-up stock, see CORPORATIONS, 311- 316. On unpaid subscription to stock, see COR- PORATIONS, 347, 366. For drains and sewers, see DRAINS AND SEWERS, III. Injunction against, see INJUNCTION, I. k. For insurance, see INSURANCE, III. h. Action against assessment company, see IN- SURANCE, VI. h, 2. Forfeiture of benefit certificate for non- payment of, see INSURANCE, 397-406. For public improvements, see PUBLIC IM- PROVEMENTS, III. For tax, see TAXES, III., V. d. ASSESSMENT WORK. On mining claim, see MINES, I. b. ASSETS. Of bankrupt, see BANKRUPTCY, II. Sale of assets of corporation, see CORPORA- TIONS, II. Of decedent's estate, see EXECUTORS AND ADMINISTRATORS, II. c. Of insurance company, see INSURANCE, 8- 11, 30. Insurance as, see INSURANCE, 826. Of insolvent estate, see RECEIVERS, 22. 182 ASSIGNMENT, I. ASSIGNMENT. /. What assignable; validity, 118. II. Equitable assignment; orders, 19. III. Rights and liabilities of parties, 2O33. For creditors, see ASSIGNMENT FOR CRED- ITORS. Of judgment, see ATTORNEYS, 70. Of expectancy, see BANKRUPTCY, 139; CON- TRACTS, 609; EXPECTANCIES; HUSBAND AND WIFE, 32. Of judgment, see ESTOPPEL, 242; INJUNC- TION, 263; JUDGMENT, 317. Of stock in banks, see BANKS, 11-13. Of action for damages for unlawful con- spiracy, by bankrupt, see BANKRUPTCY, 49. Of savings bank deposit, see BANKS, 235, 236. Of negotiable paper, see BILLS AND NOTES, III., V. Of bill of lading, see BILLS OF LADING; COURTS, 301. Of chattel mortgage, see CHATTEL MORT- GAGE, 50 Of future inventions, see CONTRACTS, 446. Of corporate franchise, see CORPORATIONS, Of corporate stock, see CORPORATIONS, V. c. Of contract for supplies, see DAMAGES, 157 ; LANDLORD AND TENANT, 13; KAILROADS, 5, 6. Of dower, see DOWER, 42-46. Of legacy, see EVIDENCE, 270. Of cause of action for tort, see EXECUTION, 5. Of photographs, injunction against sale of, see INJUNCTION, 105. Of property and insurance thereon as se- curity for debt, see INSURANCE, 231. Of equity of redemption, effect on insurance payable to mortgagee, see INSURANCE, 821. Of trust deed to insurance company paying loss to cestui que trust, see INSURANCE, 889, 890. Of insurance policy, see INSURANCE, IV. Of lease, see LANDLORD AND TENANT, II. e. Of license, see LICENSE, 9; PLEDGE AND COL- LATERAL SECURITY, 2; TIMBER, 4. Of logs sunk in river on which marks have become obliterated, see LOGS AND LOG- GING, 9. Of note secured by mortgage, see MORTGAGE, 59, 60. Of mortgage, see MORTGAGE, IV. Of patents, see PATENTS, IV. c. Of note on paying original holder of mort- gage securing it, see PAYMENT, 18. Of liquor license, see PLEDGE AND COLLATER- AL SECURITY, 2. Of claim, to prevent removal of action to Federal court, see REMOVAL OF CAUSES, 10. Of negotiable bonds of corporation by in- debted stockholder, to prevent set-off, see SET-OFF AND COUNTERCLAIM, 33. Of trademark, see TRADEMARKS, III. Digest 1-52 L.R.A.(N.S.) Of property of debtor to bank who under- takes to conduct debtor's business, see TRUSTS, 40. Of land contract, see VENDOR AND PUR- CHASER, 86, 87. Effect of, on Federal jurisdiction, see COURTS, 254. Effect of, on right of action, see PARTIES, I. a, 3. Draft as, see BILLS AND NOTES, 6. Check as assignment of funds in bank, see BANKS, 95; CHECKS, 7. Evidence to discredit alleged assignment of notes, see EVIDENCE, 830. As to pledge, see PLEDGE AND COLLATERAL SECURITY. As affecting set-off, see SET-OFF AND COUN- TERCLAIM, la, 33, 35, 38. Parol promise of assignee of equity of re- demption to mortgagee to pay mortgage debt, see CONTRACTS, 227. Taking assignment of claims and bringing actions thereon as doing business with- in the state, see CORPORATIONS, 417. Covenant against, in lease, see LANDLORD AND TENANT, 16, 35-37. Evidence as to capacity of one making, see EVIDENCE, 1102. Evidence to show notice of, see EVIDENCE, 1582. Sufficiency of evidence as to invalidity of assignment, see EVIDENCE, 2103. Payment of insurance policy taken for bene- fit of lien holder as affecting equitable assignment of lien to the insurer, see INSURANCE, 884. To surety paying debt, see SUBROGATION, 30, 31. /. What assignable; validity. (See also same heading in Digest L.R.A.. 1-70.) Civil action for violation of penal statute forbidding assignment of claim against wage earner, see CASE, 5. Validity of statute prohibiting assignment of claim to evade exemption laws, see CONSTITUTIONAL LAW, 537. Parol acceptance by assignee of written as- signment, see CONTRACTS, 293. Parol assignment of lease, see CONTRACTS, 326. Record of assignment of mortgage, see REC- ORDS AND RECORDING LAWS, 25. By conditional vendee, of his interest, see SALE, 152. As question for court, see TRIAL, 268. Of railroad ticket, see CARRIERS, 63. Of easement, see EASEMENTS, 80, 81. Of expectancy, see EXPECTANCIES. Of license as revocation, see TIMBER, 4. Right of action. By administrator to widow of right of ac- tion for death of intestate, see EXECU- TORS AND ADMINISTRATORS, 51. Of action for assault and battery or false imprisonment, see CONTRACTS, 449. 1. A cause of action for personal in- juries may be assigned where by statute it ASSIGNMENT, I. 183 would survive the death of the person in- jured. Wells v. Edwards Hotel & City R. Co. 27: 404, 50 So. 628, 96 Miss. 191. (Annotated) 2. A right to recover damages for a personal tort is a mere personal right, and not assignable before judgment. Boogren v. St. Paul City R. Co. 3: 379, 106 N. W. 104, 97 Minn. 51. 3. A right to recover damages for fraudulent representations may be assigned under a statute permitting assumpsit to be brought in such cases, and providing that the cause of action shall survive. Hicks v. Steel, 4: 279, 105 N. W. 767, 142 Mich. 292. Decree for alimony. 4. A decree for permanent alimony is not assignable. Fournier v. Glutton, 7: 179, 109 N. W. 425, 146 Mich. 298. (Annotated) Unpaid club dues. 5. Unpaid dues owing by a member of a social club may be assigned by the asso- ciation, and the assignee thereof may main- tain an action to recover the same. An- derson v. Amidon, 34: 647, 130 N. W. 1002, 114 Minn. 202. Future -vages. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 180, 181, 458, 519. Duty of one suing employer on assignment of wages to prove amount due from as- signor, see EVIDENCE, 654. Burden of proving payment in action to recover assigned wages, see PLEADING, 489. See also infra, 31, 32. 6. An assignment of wages to be earned in the future under an existing employment is valid. Rodijkeit v. Andrews, 5: 564, 77 N. E. 747, 74 Ohio St. 104. (Annotated) 7. An assignment by one in service of wages to be earned in th future is not against public policy. Chicago, B. & Q. R. Co. v. Provolt, 16: 587, 93 Pac. 1126, 42 Colo. 103. Unearned pay of officers. See also MANDAMUS, 59. 8. An assignment of unearned salary by a public officer is against public policy, and void. McGowan v. New Orleans, 8: 1120, 43 So. 40, 118 La. 429. 9. An agreement between partners in the practice of the law, one of whom has been elected to the office of prosecuting at- torney, to divide the salary of the office, is invalid as an attempted assignment of a portion of the salary before it is earned. Anderson v. Branstrom, 43: 422, 139 N. W. 40, 173 Mich. 157. (Annotated) 10. A fireman belonging to a munici- pal fire department is within the rule that public officers cannot assign salary yet to be earned. Schmitt v. Dooling, 36:881, 140 S. W. 197, 145 Ky. 240. (Annotated) Time certificate. 11. A time certificate executed by a con- struction company to an employee in pay- ment of balance due upon an open account, in which it is stipulated that it shall be nontransferable, and shall be payable only to the person to whom issued, when properly ' Digest 1-52 L.R.A.(N.S.) receipted by him in the presence of the pay- master of the employer, which stipulation the payee agrees to in writing, is not, in it- self, assignable, nor is it rendered so by Wilson's Okla. Rev. & Anno. Stat. 4163, providing that things in action arising out of an obligation may be transferred by the owner, and therefore an attempted assign- ment of the certificate is void as between the assignee and the maker thereof. Barringer v. Bes Line Constr. Co. 21: 597, 99 Pac. 775, 23 Okla. 131. (Annotated) Contract. Statute of frauds as affecting assignment of land contract, see CONTRACT'S, 276, 277. Parol acceptance by assignee of written assignment, see CONTRACTS, 293. Of contract to purchase stock, see ESTOPPEL, 34. Estoppel to deny validity of assignment of construction contract, see ESTOPPEL, 115. Sufficiency of pleading to raise question of validity, see PLEADING, 509. 12. A contract to supply all the eggs of a specified quality that the purchaser may require for his business for one year, the purchaser undertaking not to purchase else- where, is a personal one the benefit of which is not assignable to the transferee of the business. Kemp v. Baerselman, 2 B. R. C. 436 [1906] 2 K. B. 604. Also Reported in 75 L. J. K. B. N. S. 873. (Annotated) 13. That one contracted for himself, "his heirs and assigns," does not render assignable a contract which, without the words "his heirs and assigns," would not have been assignable. Schlesinger v. For- est Products Co. (N. J. Err. & App.) 30: 347, 76 Atl. 1024, 78 N. J. L. 637. 14. A contract for the sale of staves to be manufactured is not assignable by the vendor, where the purchaser relied upon personal performance of the contract by the vendor, so as to compel the purchaser to accept performance from one to whom the contract had been assigned. Schlesinger v. Forest Products Co. (N. J. Err. & App.) 30: 347, 76 Atl. 1024, 78 N. J. L. 637. 15. A contract to construct and equip a canning factory for persons who subscribe the cost of the enterprise, the subscriptions to be payable when the plant is completed, is not assignable without the consent of the subscribers. Johnson v. Vickers, 21:359, 120 N. W. 837, 139 Wis. 145. (Annotated) 16. A contract to purchase its own stock from a corporation is not assignable. Re Holyoke, 43: 790, 139 N. W. 392, 151 Wis. 551. (Annotated) 17. An agreement by those developing a tract of land, with a purchaser of lots, that certain improvements would be made on the tract, may be assigned by the purchaser. Anderson v. American Suburban Corp. 36: 896, 71 S. E. 221, 155 N. C. 131. 18. A contract to cut wood and deliver it to a railroad company is assignable by the company, so as to impose upon the as- signee the duty to pay for the wood when delivered according to its terms. Atlantic 184 ASSIGNMENT, II., III. & N. C. R. Co. v. Atlantic & N. C. Co. 23: 223, 61 S. E. 185, 147 N. C. 368. (Annotated) II. Equitable assignment; orders. (See also same heading in Digest L.R.A. 1-10.) Bank draft as, see BANKS, 80. 19. An agreement, in consideration of a loan of money, to transfer to the lender the proceeds of a pending sale of real estate when received, constitutes a present equita- ble assignment of such proceeds. Godwin v. Murchison Nat. Bank, 17: 935, 59 S. E. 154, 146 N. C. 320. III. Rights and liabilities of parties. (See also same heading in Digest L.R.A. 1-10.) Assumpsit by assignee of a portion of claim against second assignee who has col- lected full amount, see ASSUMPSIT, 27. Effect of bankruptcy of assignor on rights of assignee of expectancy, see BANK- RUPTCY, 139. Rights of assignee of negotiable paper, see BILLS AND NOTES, V. Of .bills of lading, see BILLS OF LADING. Civil action for violation of penal statute forbidding assignment of claim against wage earner, see CASE, 5. Assignee's rights under covenant in deed, see COVENANTS AND CONDITIONS, 123. Right to enforce covenant, see COVENANTS AND CONDITIONS, 104, 105. Rights of assignee of expectancy to secure loan with exorbitant interest, see CON- TRACTS, 609. Of transferees of corporate stock, see COR- PORATIONS, V. c. Right of assignee to benefit of privilege to take water from spring, see DEEDS, 28. Equitable jurisdiction of suit by corporate creditor to reach assigned claim, see EQUITY, 28. Estoppel of assignee by acts of assignor, see ESTOPPEL, 97. As against subsequent garnishee, see GAR- NISHMENT, 49, 50. Effect of transfer of good will, see GOOD WILL. Right of assignee of married woman to sue her husband upon contract obligation, see HUSBAND AND WIFE, 196. Of assignee of insurance policv, see INSUR- ANCE, 451-458, 464-467. Rights of assignee to insurance, see INSUR- ANCE, VI. e, 2, d. Right of assignee of mortgage to open de- fault judgment quieting title as against assignor, see JUDGMENT, 325. Right of assignee of interest in action to attack judgment because of perjured testimony, see JUDGMENT, 141. On assignment to lessee of lessor's contract for supplies, see LANDLORD AND TEN- ANT, 13; RAILROADS, 5, 6. Digest 1-52 L.B.A.(N.S.) On assignment of lessor's rights under lease, see LANDLORD AND TENANT, 89. On assignment of lease, see LANDLORD AND TENANT, II. e, 195-198, 204, 215, 216. Right of assignees of license to compensa- tion on revocation of, see LICENSE, 9. Effect of acknowledgment to assignor after assignment as collateral security, see LIMITATION OF ACTIONS, 78, 351. On assignment of mortgage, see MORTGAGE, IV. Assignee's right of action, see PARTIES, I. a, 3. Who may enforce promise of assignee of stock to pay unpaid subscriptions, see PARTIES, 56. On assignment of patent, see PATENTS, IV. c. Right of assignee of leasehold to benefit of covenant for conveyance of fee, see PLEADING, 242. Right of assignee to specific performance of contract, see SPECIFIC PERFORMANCE, 80. Sufficiency of tender as against assignee, see TENDER, 19. Right of assigns of grantor of land to com- pel vendees to perform agreed consider- ation for sale, see VENDOR AND PUR- CHASER, 28. On assignment of land contract, see VEN- DOR AND PURCHASER, 86, 87. Competency of assignor as witness in suit by assignee against personal represen- tative, see WITNESSES, 61, 62. 20. One by whose negligence another is injured, having notice of an assignment of the claim, is not protected in settling it with the person injured. Wells v. Edwards Hotel & City R. Co. 27:404, 50 So. 628, 96 Miss. 191. 21. Where claims for tort may be as- signed, a railroad company against which a claim exists for a personal injury cannot, by settlement with the person injured, avoid liability to his wife for the amount due her under an agreement between them in a divorce proceeding that she shall have a portion of the recovery as alimony, which has been confirmed by a decree which made the allowance a lien on the fund to be recovered, after it had notice thereof. Kith- cart v. Kithcart, 30: 1062, 124 N. W. 305, 145 Iowa, 549. 22. An assignee of a land contract with full knowledge that his assignor surrendered it to the original vendor for the purpose of negotiating a sale of the property to a mu- nicipal corporation takes subject to the outcome of such negotiations, and cannot enforce a conveyance of the property until the negotiations with the municipality prove ineffectual. Allen v. Detroit, 36: 890, 133 N. W. 317, 167 Mich. 464. 23. Acceptance of an assignment of a contract to sell real estate is shown by placing the matter in the hands of a title guaranty company, with directions to ex- amine the title and prepare a deed, and requiring the assignor to secure title to a small strip of ground upon which a build- ASSIGNMENT FOR CREDITORS. 1S5 ing on the property encroaches. Evans v. Stratton, 34: 393, 134 S. W. 1154, 142 Ky. 615. 24. The assignee of a contract to con- vey real estate cannot repudiate his obliga- tion because he is required to pay the as- signor a bonus for the rights conferred by the contract. Evans v. Stratton, 34: 393, 134 S. W. 1154, 142 Ky. 615. 25. The assignee of a contract for sup- plies is, under the general doctrine of in- debitatus assumpsit, bound to indemnify the assignor for loss which he may suffer at the suit of the other contracting party, because of the default of the assignee. At- lantic & N. C. R. Co. v. Atlantic & N. C. Co. 23: 223, 61 S. E. 185, 147 N. C. 368. 26. A provision in a contract for public work entitling the municipality to retain a certain percentage of the contract price until claims of laborers and materialmen, of which it is given notice, have been paid, does not prevent assignment by the con- tractor after completion of the work, of the right to such balance prior to the filing of notice of laborers' and materialmen's claims, which shall take precedence of the latter in the distribution of the fund. United States Fidelity & G. Co. v. Newark (N. J. Err. & App.) 37: 575, 81 Atl. 758, 79 N. J. Eq. 584. 27. The vendor cannot maintain an action to recover the deferred payments from the principal in case of an option con- tract to purchase mining property, secured by an agent in his own name, and assigned to his principal, although the assignee ex- pressly agrees with the agent to make the payments necessary to comply with the option, where, by the terms of the contract, all payments are optional. Rockwell v. Edgcomb, 45: 661, 131 Pac. 191, 72 Wash. 694. Priority between assignees. 28. The mere assignment by a customer to his bank of book accounts, of which no notice is given the debtor, is not binding on another bank, ignorant of the assignment, in whose favor the customer draws on the debtor, and which applies the proceeds of the draft upon a claim against the cus- tomer. American Exch. Nat. Bank v. Fed- eral Nat. Bank, 27: 666, 75 Atl. 683, 226 Pa. 483. 29. One having no valid pledge of an- other's book accounts cannot prevent an- other person from holding the proceeds of a draft in his favor upon the debtor, on the ground that he had made no advances or had given no new credits on the faith of them. American Exch. Nat. Bank v. Fed- eral Nat. Bank, 27: 666, 75 Atl. 683, 226 Pa. 483. 30. One who loans money on a written assignment of contract for public work, but, without giving notice of his rights, permits the contractor to retain possession of the contract, complete the work, and obtain time orders for the amount due, which he sells for value to a stranger, will be sub- ordinated to the rights of the latter. Washington Twp. v. W T abash Bridge & Iron Digest 1-52 L.R.A.(N.S.) Works, 11:471, 111 N. W. 349, 147 Mich. 571. (Annotated) \ssignee of wages or salary. Effect of assignor's discharge in bankruptcy on right to enforce valid assignment of wages, see BANKRUPTCY, 148, 149. Liability of one causing discharge of em- ployee by persisting in claiming an as- signment of his wages, see CASE, 42. Admissibility of employer's statements on discharging employee on notice of as- signment of wages, see EVIDENCE, 1366. Assignee as party defendant in action to compel payment of salary, see PARTIES, 159. 31. A partial assignment of wages to se- cure a loan cannot be enforced against the employer unless accepted by him. Chicago, B. & Q. R. Co. v. Provolt, 16: 587, 93 Pac. 1126, 42 Colo. 103. 32. An assignment of "any and all sal- ary" to be earned by the assignor, to se- cure a loan of money, creates merely a lien on the salary as security for the money loaned. Chicago, B. & Q. 'R. Co. v. Provolt, 16: 587, 93 Pac. 1126, 42 Colo. 103. Equities and set-offs. Set-off of assigned claim, see SET-OFF AND COUNTERCLAIM, I. a. Right of set-off as against assignee, see SET-OFF AND COUNTERCLAIM, I. d. 33. The rule that a deed of trust can- not be assigned so as to vest title freed from any defenses which the mortgagor has against the original grantee does not apply to a promissory note which the deed is given to secure. Zollman v. Jackson Trust & Sav. Bank, 32: 858, 87 N. E. 297, 238 111. 290. ASSIGNMENT FOB CREDITORS. I. What constitutes an assignment, 1, 2. II. Construction and effect of assign- ment. III. Assignee or trustee, 3S. a. In general, 3. b. Bights and powers, 4, 5. 1. In general. 2. Property or title taken, 4. 3. Actions by, 5. c. Liabilities, 68. IV. Rights and liabilities of assign- ee's attorney. V. Validity; talcing effect, 9, 1O. VI. Property included, 1113. VII. Preferences by insolvent. a. In general. b. Validity of. VIII. Rights, duties, and liabilities of creditors; priority and re- lease of claims, 14 16. a. In general, 1416. b. Release of claims. IX. Liability of assignor. Validity of promissory note given to secure secret advantage to creditor, see BILLS AND NOTES, 19. 186 ASSIGNMENT FOR CREDITORS, I. III. b, 2. Effect of agreement by guarantor of cor- poration note, to assignment, on his right as against accommodation mak- ers, see BILLS AND NOTES, 73. Conflict of laws as to, see CONFLICT OF LAWS, I. f. By foreign corporation, see CORPORATIONS, VII. d. Estoppel of creditor by participating in, see ESTOPI-EL, 204. Admissibility in evidence of statement of account, see EVIDENCE, 735. Refusal to furnish gas to assignee for creditors until amount due by assignor for gas is paid, see GAS, 17. Set-off in case of, see SET-OFF AND COUNTER- CLAIM, 35, 38. Enforcement against assignee of equitable mortgage on property, see MORTGAGE, 10. As to bankruptcy matters, see BANKRUPTCY. As to insolvency generally, see INSOLVENCY. As to receivers, see RECEIVERS. ) /. What constitutes an assignment. (See also same heading in Digest L.R.A. 1-10.) 1. A transfer by a hardware company under an agreement with its larger credit- ors, of its stock of goods to one of the creditors, to sell the stock and divide the proceeds pro rata among the creditors, is not an assignment for the benefit of credit- ors within the meaning of the Oklahoma bulk sales law, 7910, Comp. Laws 1909, which excepts such assignments from its operation, where the trustee gave no bond for the faithful performance of his duty, the deed of assignment was not recorded in the office of the registry of deeds as re- quired by law, and no notice was given the complaining creditor to present its claim or be present at the meeting of the creditors in order to protect himself. Humphrey v. Coquillard Wagon Works, 49: 600, 132 Pac. 899, 37 Okla. 714. 2. An absolute conveyance of property by an insolvent person to two of sixteen accommodation indorsers of a promissory note, "to indemnify them the said indor- sers against loss," the expressed intention being to vest the title of the property con- veyed in the indorsers for their use and benefit, where the deed authorized the gran- tees to sell the property and pay the pur- chase price on the note, and to make such deeds or other conveyances in the name of the creditor as might be necessary, and provided that, if either of the grantees should fail or refuse to act in pursuance of the terms of the deed, the remaining grantee alone might do so, and that in event of the death or resignation of both, the indorsers should name a successor who should have all the powers of the original grantees, the instrument containing no clause of defeasance in case the indorsers did not have to pay the note, is an as- signment for the benefit of creditors, and not a deed of trust in the nature of a Digest 1-52 ] mortgage to secure the indorsers, and there- fore a compliance with the essential re- quirements of the statute on the subject of assignments for the benefit of creditors is necessary to its validity. Johnson v. Brewer, 31: 332, 68 S. E. 589, 134 Ga. 828. (Annotated) II. Construction and effect of assign- ment. (See also same heading in Digest L.R.A. 1-10.) Effect of, to convey real property in other state, see CONFLICT OF LAWS, 103. Effect of assignment by payee of note ob- tained by fraud and transferred, on liability of maker, see BILLS AND NOTES, 125. III. Assignee or trustee, a. In general. (See also same heading in Digest L.R.A. 1-10.) Right of purchaser from assignee to use tradename, see TBADENAME, 2. 3. An assignee for creditors possesses no greater right to resist a rescission of a sale to his assignor on the ground of fraud than did the assignor. Atlas Shoe Co. v. Bech- ard, 10 : 245, 66 Atl. 390, 102 Me. 197. b. Rights and powers. 1. In general. (See same heading in Digest L.R.A. 1-10.) 2. Property or title taken. (See also same heading in Digest L.R.A. 1-10.) Property included in assignment generally, see infra, VI. By assignee or trustee in insolvency, see INSOLVENCY, III. 4. An assignment for creditors by a publisher, of all its personal property ex- cepting such as is exempt from execution, with power to the trustees to carry on the business, empowers them to transfer to purchasers of the assets the good will with respect to the various publications the right in which it owns, so that a purchaser of the property used in the business and the good will connected with it may use the name of the assignor in connection with such publication, and advertise himself as the successor of the assignor in the business so purchased. Lothrop Pub. Co. v. Lothrop, L. & S. Co. 5: 1077, 77 N. E. 841, 191 Mass. 353. (Annotated) ASSIGNMENT FOR CREDITORS, III. b, 3 VI. 187 3- Actions ~by. (See also same heading vn Digest L.R.A. 1-10.) To enforce stockholder's liability, see COR- PORATIONS, 361-364. 5. Where, by statute, property fraudu- lently transferred by one making an assign- ment for benefit of creditors vests in the assignee, he may avoid a pledge of securi- ties by a bank to secure certificates of de- posit, which is invalid because they are retained in its possession and no record is made of the transaction as required by statute. Burnes v. Anderson, 25: 525, 122 S. W. 182, 135 Ky. 355. c. Liabilities. (See also same heading vn Digest L.R.A.. 1-10.) For interest on funds kept by assignee in bank, see EVIDENCE, 514. 6. One who takes from a debtor an as- signment of property sufficient to pay all the debts of the assignor, under the agree- ment that he will pay them, cannot avoid liability to creditors on their claims. Dy- cus v. Brown, 28: 190, 121 S. W. 1010, 135 Ky. 140. 7. An assignor for creditors cannot set aside a sale of the property to a corpora- tion because an agent of the assignee, who was managing the property, was a stock- holder in the purchasing corporation, and, before the deed was executed, he increased his holdings out of stock issued to pay for the property, and one of the assignees be- came a stockholder, and both were elected directors of the purchasing corporation. Whitman v. Mclntyre, 19: 682, 85 N. E. 426, 199 Mass. 436. 8. An assignor for creditors cannot com- plain that the property was sold to a cor- poration for shares of its stock where the property was not sufficient to satisfy in full the demand of creditors, and they consented to take the stock in payment of their claims. Whitman v. Mclntyre, 19: 682, 85 N. E. 426, 199 Mass. 436. (Annotated) IV. Rights and liabilities of assignee's attorney. (See same heading in Digest L.R.A. 1-70.) V. Validity; talcing effect. (See also same heading vn Digest L.R.A. 1-10.) 9. A general assignment for the benefit of creditors, which does not purport on its face to transfer all of the debtor's unex- empt property, and provides for the pay- Digest 1-52 L.R.A. (N.S.) ment to the debtor of any surplus which may remain in the assignee's hands after satisfying the claims of the assenting cred- itors, and which contains a provision di- recting the assignee, after converting the property into cash, "to distribute the pro- ceeds of said property ratably among the creditors of the party of the first part as shall consent to this trust agreement and shall agree, in consideration of the bene- fits accruing to them thereunder, to ab- solve and discharge the party of the lirst part from any and all liability," is void as an unlawful attempt by the debtor to co- erce his creditors to surrender a portion of their just claims as a condition to receiving their just share of the estate, and tends directly to delay and hinder them in the collection of their claims, and also on the ground that it does not purport to transfer all the debtor's unexempt property, and pro- vides for the payment due him of any sur- plus which may remain in the assignee's hands, thus operating to put the surplus be- yond the reach of nonassenting creditors and to hinder and delay them in the col- lection of their demands. MacLaren v. Kramar, 50: 714, 144 N. W. 85, 26 N. D. 244. 10. A secret arrangement whereby a statutory provision for the equal distribu- tion of assets among creditors is defeated is void as a fraud upon the general body of creditors, notwithstanding that the ad- ditional amount is guaranteed and to be paid in the lirst instance by a third person. Brigham v. La Banque Jacques Cartier, 2 B. R. C. 449, 30 Can. S. C. 429. ( Annotated ) VI. Property included. (See also same heading vn Digest L.R.A. 1-10.) Property or title taken by assignee, see supra, III. b, 2. Sufficiency of description of property in, see DEEDS, 39. Pledged property, see PLEDGE AND COLLATE- RAL SECURITY, 9. 11. A vested remainder will pass by a deed of trust for benefit of creditors of all the property of the grantor. Roberts v. Roberts, i: 782, 62 Atl. 161, 102 Md. 131. 12. Goods procured by an insolvent mer- chant by fraudulent representations as to his financial standing, without any inten- tion of paying for them, do not pass by his assignment for the benefit of creditors, or to his assignee in bankruptcy. Lowry v. Dye, 17: 1032, 110 S. W. 833, 33 Ky. L. Rep. 573. (Annotated) 13. An assignment for creditors will not carry the right of the assignor to exercise the option of surrendering for its cash value an insurance policy on his life, paid up while he was in sufficient circumstances, which he has taken for the benefit of his children. McCutchen v. Townsend, 16: 316, 105 S. W. 937, 127 Ky. 230. (Annotated) 188 ASSIGNMENT FOR CREDITORS, VII. a ASSOCIATIONS. VII. Preferences by insolvent, a. In general. (See also so/me heading in Digest L.R.A. 1-10.) Necessity of surrender of preferences made by bankrupt, see BANKRUPTCY, 129, 130. Right to prefer creditors generally, see FRAUDULENT CONVEYANCES, III. 6. Validity of. (See same heading in Digest L.R.A. 1-10.) VIII. Rights, duties, and liabilities of creditors; priority and release of claims. a. In general. (See also same heading in Digest L.R.A. 1-10.) Priority of claims against receivers, see RECEIVERS, III. 14. Upon assignment for creditors by a partnership which has wrongfully converted property to its own use, and also by the members thereof, since the individual mem- bers are liable severally for the partner- ship tort, the property owner may prove his claim against'partnership assets equally with the partnership creditors and also against the individual assets of the partners equally with individual creditors. Re Peck, 41: 1223, 99 N. E. 258, 206 N. Y. 55. ( Annotated ) Trusts; liens. 15. No trust relations exist between a stockbroker and his customer as to the pro- ceeds of stock sold, which will entitle the customer to priority over other creditors, if the fund is deposited in the broker's bank account and the broker makes an assign- ment for creditors before the principal cashes the check which the broker has drawn in his favor against the account. Furber v. Dane, 27: 808, 90 N. E. 859, 204 Mass. 412. (Annotated) 16. A person who, upon receiving a check from his broker for the proceeds of his property, is confined to his house by ill- ness, and, without notice of the broker's financial embarrassment, does not, by fail- ing to collect the check in time, elect to stand upon it and waive any equitable rights which he may have to charge the broker's bank account in the hands of as- signees for creditors with the payment of his claim. Furber v. Dane, 27: 808, 90 N. E. 859, 204 Mass. 412. 6. Release of claims. (See same heading in Digest L.R.A. 1-10.) IX. Liability of assignor. (See same heading in Digest L.R.A. 1-10.) Digest 1-52 L.R.A.(N.S.) ASSIGNMENTS OF ERROR. On appeal, see APPEAL AND ERROR, IV. p. In motion for new trial, see NEW TRIAL, 82. ASSISTANCE. To passenger, see CARRIERS, 460-460b, 511- 522. To voters, see ELECTIONS, 48, 49. 1. A writ of assistance to place a pxir- ohaser of land at an execution sale in pos- session thereof cannot be properly issued where the defendant in the execution claims that the judgment on which it is founded is void for want of service, since this writ never issues except in cases substantially free from doubt as to the right of possession. Lundstrom v. Branson, 52: 697, 139 Pac. 1172, 92 Kan. 78. (Annotated) 2. A writ of assistance should not be issued to put a purchaser at a judicial sale on a foreign attachment into possession of the real property supposed to have been sold, which is in the possession of one not a party to the attachment suit, and who claims the property adversely to the parties to such suit and to all the world. Kirken- dall v. Weatherley, 9: 515, 109 N. W. 757, 77 Neb. 421. ASSISTANTS. Burden of showing conductor's authority to employ, see EVIDENCE, 185. Person called to assist servant as employee of master, see MASTER AND SERVANT, 61-67. ASSOCIATIONS. /. In general, 16. II. Members, 71O. a. In general, 7. b. Right to membership; expul- sion, 81O. As beneficiary of trustee or charity, see CHARITIES. Communistic life by members of, see COM- MUNISM. Of physicians, validity of, see CONSPIRACY, 18. Boycott by, see CONSPIRACY, b. Forbidding parties not members to wear badges of secret societies, see CONSTI- TUTIONAL LAW, 639. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 3. Of wholesale merchants for protection against delinquent customers, libel by, see DAMAGES, 43; LIBEL AND SLANDEB, 121. False charge by wife to association of which husband is member as to his character as ground for divorce, see DIVORCE AND SEPARATION, 30. ASSOCIATIONS, I. II. b. 189 Liability of athletic association for injury from fall of stand used at exhibition, see EXHIBITIONS. Libel of candidate to office in, see LIBEL AND SLANDER, 59. Libel by letter to members of, in regard to collection agent, see LIBEL AND SLAN- DER, 111-113. Requiring membership in ticket brokers' as- sociation as condition of license, see LICENSE, 66. Illegal combination of, see MONOPOLY AND COMBINATIONS. Ejection of, from rooms by municipal of- ficers, see MUNICIPAL CORPORATIONS, 390. Method of voting by, see PARLIAMENTARY LAW. Benevolent societies, see BENEVOLENT SO- CIETIES. Building and loan associations, see BUILD- ING AND LOAN ASSOCIATIONS. Passenger association, see CARRIERS, 633- 635. Clubs, see CLUBS. Exchanges, see EXCHANGES. Joint stock company, see JOINT STOCK COMPANY. Labor organizations, see LABOR ORGANIZA- TIONS. Railroad relief association, see RAILROAD RELIEF ASSOCIATIONS. Religious societies, see RELIGIOUS SOCIE- TIES. I. In general. (See also same heading m Digest L.R.A. 1-10.) 1. No constitutional privileges or im- munities are denied a citizen by forbidding him to wear the badge of a secret society of which he is not a member; nor are exclusive privileges unlawfully conferred by such leg- islation. Hammer v. State, 24: 795, 89 N. E. 850, 173 Ind. 199. (Annotated) Actions by or against. Questioning for first time on appeal ca- pacity to sue or be sued, see APPEAL AND ERROR, 737, 738. Jurisdiction over, see COURTS, I. d. Necessary parties in suit against unincor- porated associations, see PARTIES, 161, 162. Service of process on unincorporated as- sociation, see WRIT AND PROCESS, 18. 2. A voluntary association, unincorpo- rated, which is not organized to carry on some trade or business, or to hold property in the state of Nebraska, and does not in fact carry on a trade or business or hold property therein, cannot sue or be sued as such. Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 3. No action lies against an unincor- porated association in the absence of legis-. lative authority. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2: 788, 75 N. E. 877, 165 Ind. 421. (Annotated) 4. An unincorporated labor union can- Digest 1-52 L.R.A.(N.S.) not be made a party defendant to an action. Pickett v. Walsh, 6: 1067, 78 N. E. 753, 192 Mass. 572. 5. An injunction to restrain a boycott will not lie against an unincorporated as- sociation of workmen. American Federa- tion of Labor v. Buck's Stove & Range Co. 32: 748, 33 App. D. C. 83. 6. Unincorporated labor unions are not proper parties to a suit to enjoin a strike by their members. Reynolds v. Davis, 17: 162, 84 N. E. 457, 198 Mass. 294. //. Members, a. In general. (See also same heading in Digest L.R.A. 1-10.) As to membership in benefit society, see BENEVOLENT SOCIETIES, IV. Membership in board of trade, see EX- CHANGES, 4, 5. Membership in religious society, see RE- LIGIOUS SOCIETIES, VI. 7. Protecting members of secret so- cieties in the use of its emblems is not within a constitutional provision that no preference shall be given by law to any creed. Hammer v. State, 24: 795, 89 N. E. 850, 173 Ind. 199. b. Right to membership; expulsion. (See also same heading in Digest L.R.A. 1-10.) Expulsion from benevolent society, see BE- NEVOLENT SOCIETIES, 13, 14. Review by courts of expulsion, see COURTS, 177, 178. Mandamus to compel reinstatement in, see MANDAMUS, 11. Expulsion from religious society, see RE- LIGIOUS SOCIETIES, VI. b. 8. A voluntary association of physicians and surgeons the by-laws of which provide for the trial of a member for a criminal offense or for misconduct, and provide a penalty by discipline or expulsion, may try a member for acts which were necessari- ly" involved in a criminal charge, tried in the district court, and of which the member was acquitted. Miller v. Hennepin County Medical Soc. 50: 579, 144 N. W. 1091, 124 Minn. 314. (Annotated) 9. A baseball club cannot be expelJcd from a league at a special meeting called for - specified purpose, where no notice is given that the question of its expulsion will be considered at the meeting. State ex rel. Rowland v. Seattle Baseball Asso. 31: 512, 111 Pac. 1055, 61 Wash. 79. 10. A provision of the constitution of a baseball league that the membership of any club may be terminated by a unani- mous vote of the remaining clubs is not affected by a subsequent resolution extend- ing the franchise of clubs in the league 190 ASSUMPSIT, I. II. b. for periods of five years, where it does not appear that the resolution was passed by a unanimous vote, as required by the con- stitution to amend it, and no reference to the constitutional provision is made in the resolution. State ex rel. Rowland v. Seattle Baseball Asso. 31:512, 111 Pac. 1055, 61 Wash. 79. ASSUMPSIT. 7. In general, 19. II. Money paid or received, 1O65. a. Money paid, 1O. b. Money received, 1127. c. Recovering back payments, 2865. 1. In general, 284=9. 2. Of assessment, taxes, or license fees, 5O6&. 3. Public money, 65. On an account stated, see ACCOUNTS, 4. Condition of right to maintain suit, see ACTION OR SUIT, 27. Raising for first time on appeal objection to form of action, see APPEAL AND ERROR, 756. Waiver of objection as to form of action, see APPEAL AND ERROR, 821. Against bank collecting checks cashed on forged indorsement, see BANKS, 133. By supreme lodge for benefit funds distrib- uted by subordinate lodge, see BENEV- OLENT SOCIETIES, 6, 7. Remedy under ultra vires contract, see COR- PORATIONS, 90. Effect, on right to maintain, of mistakenly bringing trover, see ELECTION OF REM- EDIES, 40. Against agent, see PRINCIPAL AND AGENT, 119. Amendment of declaration so as to make action one in tort, see PLEADING, 103. Sufficiency of averment of promise to pay, in declaration in assumpsit on promis- sory note, see PLEADING, 163. 7. In general. (See also same heading in Digest L.R.A. 1-10.) 1. An action will lie to recover a sum certain whenever one has the money of another which he, in equity and good con- science, has no right to retain. Brooks v. Hinton State Bank, 30: 807, 110 Pac. 46, 26 Okla. 56. 2. An action will lie to recover a sum certain whenever one has the money of an- other which he, in equity and good con- science, has no right to retain. Allsman v. Oklahoma City, 16: 511, 95 Pac. 468, 21 Okla. 142. 3. In the absence of fraud, mere igno- rance by one rendering gratuitous services, that recipient is able to pay for them, will not entitle him to compensation therefor. Digest 1-52 L.R.A. (N.S.) Hanrahan v. Baxter, 16: 1046, 116 N. W. 595, Iowa, . 4. Assumpsit will not lie on behalf of one who has contributed his property to a communistic religious society of which he is a member, in consideration of receiving support for himself and his family to re- gain possession of the property upon his withdrawal from the society. Ruse v. Wil- liams, 45: 923, 130 Pac. 887/14 Ariz. 445. 5. One who voluntarily and with full knowledge of absence of indebtedness gives another his note cannot compel him to re- fund what the maker is compelled to pay thereon to a bona fide holder for value, without notice. Dickinson v. Carroll, 37: 286, 130 N. W. 829, 21 N. D. 271. 6. Common counts are not applicable in an action against an indorser, as such, of negotiable promissory notes. Worley v. Johnson, 33: 639, 53 So. 543, 60 Fla. 294. 7. The liability of a bank for negli- gence in collecting a check deposited for that purpose cannot be enforced under the common counts. Jefferson County Sav. Bank v. Hendrix, i : 246, 39 So. 295, 147 Ala. 690. 8. A recovery under the common counts may be had against one to whom money has been delivered for investment, and who, after using it for his own benefit, delivers to the customer worthless obligations of a corporation of which he is president. Dono- van v. Purtell, i: 176, 75 N. E. 334, 216 111. 629. 9. A discharged employee cannot await the termination of the contract period of service to hold the employer liable for the wages which would have accrued had he continued in the service to the expiration of the term. Derosia v. Firland, 28: 577, 76 Atl. 153, 83 Vt. 372. (Annotated) //. Money paid or received, a. Money paid. (See also same heading in Digest L.R.A. 1-10.) 10. A purchaser of real estate upon which a mortgage had existed, but which had been paid off after the assessment of a tax upon the mortgage interest, which be- came a lien thereon, cannot pay the tax upon refusal of the mortgagee to do so, and maintain an action against him for money paid to his use. William Ede Co. v. Hey- wood, 22: 562, 96 Pac. 81, 153 Cal. 615. (Annotated) b. Money received. (See also same heading in Digest L.R.A. 1-10.) Recovery by payee of check against collect- ing bank as for money had and received, see BANKS, 174. Who may maintain action, see PARTIES, 59, 62. Complaint in action of, see PLEADING, 231. ASSUMPSIT, II. b. 191 11. An action for money had and re- ceived will lie to recover money secured from the plaintiff without consideration, in reliance upon fraudulent representations made by the defendant. Martin v. Hut- ton, 36: 602, 132 N. W. 727, 90 Neb. 34. ( Annotated ) 12. The draAver of a check for a speci- fied number of cents may, in case it is cashed by mistake as calling for that num- ber of dollars, maintain an action for money had and received against the payee to re- cover the difference between the amount called for and that collected by him. Wag- ener v. United States Nat. Bank, 42: 1135, 127 Pac. 778, 63 Or. 299. (Annotated) 13. One whose property has been im- proved by the partial compliance by a mu- nicipality with its agreement to locate pub- lic buildings near it in consideration of a do- nation by him towards their cost cannot, upon the refusal of the municipality fully to comply with its agreement, recover back the amount paid by him as money had and received. Edwards v. Goldsboro, 4: 589, 53 S. E. 652, 141 N. C. 60. 14. An action for money had and re- ceived may be maintained by one who has loaned money to a municipal corporation, which has been used by it for legitimate corporate purposes authorized by law, al- though the municipality had no power to borrow the money, and the note given there- for was void. Luther v. Wheeler, 4: 746, 52 S. E. 874, 73 S. C. 83. 15. An action for money had and re- ceived may be maintained by one who has loaned money to a county, which has been used by it to discharge a legally incurred liability for a current expense, although the officials of the county had no authority to borrow the money or to give a note therefor. Butts County v. Jackson Bkg. Co. 15: 567, 60 S. E. 149, 129 Ga. 801. (Annotated) 16. One who wrongfully takes possession of cattle which are subject to chattel mort- gage, and after their sale disclaims all title to them, and consents that the proceeds be turned over to one claiming them under an- other mortgage, cannot, when a judgment is recovered against him for their value by the mortgagee, which he satisfies, maintain a suit against the one to whom the pro- ceeds were turned over, for money had and received to his use, for the purpose of re- imbursing himself for his outlay. Third Nat. Bank v. Rice, 23: 1167, lOl^Ped. 822, 88 C. C. A. 640. 17. An action may be maintained against persons who enter into a written contract for the sale of lands, assuming to act as agents for the owners, and receive money to be paid to the owners as part of the consideration, for money had and re- ceived to the use of the person from whom they received it, independently of the con- tract, where they retain the money and the owners refuse to be bound by the contract, as in such case the law implies an agree- ment to restore the money, because the con- tract which the agents assumed to have Digest 1-52 L.B.A.(N.S.) authority to make has failed, and they have the plaintiffs' money in their possession. Simmonds v. Long, 23: 553, 101 Pac. 1070, 80 Kan. 155. (Annotated) 18. An action against the clerk of an auction will lie to compel the return of money paid on a bid, without an order from the seller, where the article purchased does not comply with the seller's warranty, and the sale is rescinded, and the article returned to and accepted by the seller. Mc- Clean v. Stansberry, 35: 481, 131 N. W. 15, 151 Iowa, 312. (Annotated) 19. A broker who in good faith receives from a bank teller for speculation money which he had stolen from the bank, but whicjh he represented was the money of a depositor for whom he was acting as agent, is not liable to the bank for the money so received, although the money apparently belonged to the bank and was delivered over its counter, and the broker made no further inquiry, the test being honesty and good faith, not diligence. First National Bank v. Gibert, 25: 631, 49 So. 593, 123 La. 845. 20. A ward cannot sue her guardian in assumpsit to enforce payment of the amount remaining in the guardian's hands, before settlement of his account in the court having original jurisdiction thereof, although the guardianship has in law ceased, since for purposes of settlement the guard- ianship is deemed to continue. Mitchell v. Penny, 26: 788, 66 S. E. 1003, 66 W. Va. 660. ( Annotated ) 21. A bona fide purchaser at sheriff's sale may recover the amount of his bid in an action for money had and received, from an execution creditor who received the proceeds of the sale, if the chattels sold are at the time of the sale not the prop- erty of the execution debtor, but of a stran- ger, who takes it from the purchaser. Dresser v. Kronberg, 36: 1218, 81 Atl. 487, 108 Me. 423. (Annotated) 22. A mortgagee of a mining claim who redeems from an execution sale under a prior judgment against the property, with knowledge that the purchaser at the sale had relocated the property because the judgment debtor had failed to perform the required assessment work, in consequence of which the execution title failed, cannot maintain an action for money received against the one from whom the redemption was made. Copper Belle Min. Co. v. Glee- son, 48: 481, 134 Pac. 285, 14 Ariz. 548. (Annotated) 23. A mortgagee of a mining claim who has redeemed from an execution sale of the property under a prior judgment at which the judgment creditor became the purchaser cannot, after the time for reviv- ing the judgment has elapsed, compel the purchaser to refund the redemption money because the title to the property failed on account of a relocation for failure to per- form the assessment work, although the execution creditor himself owns the reloca- tion claim. Copper Belle Min. Co. v. Glee- son, 48: 481, 134 Pac. 285, 14 Ariz. 548. 24. An action to recover money deposited 192 ASSUMPSIT, II. c, 1. in lieu of bail for one accused of violation of a municipal ordinance may, where there is no authority to accept cash bail, be main- tained by the one making the deposit, al- though he is not the defendant in the prose- cution. Brasfield v. Milan, 44: 1150, 155 S. W. 926, 127 Tenn. 561. 25. Money deposited in lieu of bail for one accused of violation of a municipal or- dinance may, where there is no statutory authority to accept cash bail, be recovered, although it has been declared forfeited for nonappearance of accused. Brasfield v. Mi- lan, 44: 1150, 155 S. W. 926, 127 Tenn. 561. (Annotated) 26. A mortgagor with right of redemp- tion still existing may maintain an action for money had and received to recover a sur- plus obtained by the mortgagee by sale of the mortgaged property. Dow v. Bradbury, 44: 1041, 85 Atl. 896, 110 Me. 249. (Annotated) 27. The assignee of a portion of a claim against a county for public work may re- cover as for money had and received the amount of such assignment from a second assignee, who has collected the full amount from the county, where it appears that the first assignment was pinned to the claim when the second assignment was made, and was so attached when the claim was filed with the county clerk by the second as- signee, but before payment had become de- tached and lost. Brooks v. Hinton State Baaik, 30: 807, 110 Pac. 46, 26 Okla. 56. (Annotated) c. Recovering back payments. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Inapplicability to sale out of state of pro- vision for recovering back money paid, see CONFLICT OF LAWS, 1. Of money deposited as bail, see BAIL AND RECOGNIZANCE, 29. Of amount paid on forged negotiable paper, see BANKS, 110-120; CHECKS, 53. Of payment on bill or note, see BILLS AND NOTES, II. Insurance premium paid, see INSURANCE, 434-444. Of rent paid in advance where tenement is destroyed, see LANDLORD AND TENANT, 191, 192. By agent of principal's money, see PABTTES, 59. Of discriminatory rates charged by carrier, see PLEADING, 157. 28. Money paid to secure services which the other contracting party has no legal right to perform may be recovered back so long as the contract remains executory. Deaton v. Lawson, z: 392, 82 Pac. 879, 40 Wash. 486. 29. In the absence of a statute defining the maximum lawful rate for water service of an irrigation company, one from whom Digest 1-52 L.R.A.(N.S.) prices are exacted which are unreasonably high, and who pays them under protest or under such circumstances as do not amount to acquiescence in the charge, may recover the excess over a reasonable price. Salt River Valley Canal Co. v. Nelssen, 12: 711, 85 Pac. 117; 10 Ariz. 9. 30. Fees wrongfully exacted under an unconstitutional statute, by a county clerk by reason ot his ollidal position, lor the filing of inventories and appraisements ot' decedent's estates, required to be filed with- in a given time in order that the adminis- tration may proceed, may be recovered as involuntarily paid, although the filing could have been compelled by mandamus. Trower v. San Francisco, 15: 183, 92 Pac. 1025, 152 Cal. 479. (Annotated) 31. To entitle a shipper to recover back money paid under a discriminatory freight rate, it is not necessary that the payment should have been made under protest. Hil- ton Lumber Co. v. Atlantic Coast Line R. Co. 6: 225, 53 S. E. 823, 141 N. C. 171. 32. The insured may recover back premiums paid on a policy of insurance which never attached, and under which the insurance company assumed no risk, tin' - ss he has been guilty of fraud, or the contract is illegal and he is in pari delicto. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 33s Where no provision is made for the payment of taxes, in a lease of real estate, and the lease provides that the structures or improvements put upon the lot by the lessee are removable, and the landlord is compelled to pay the entire amount of the taxes to save the property from being sold at tax sale, an action may be maintained by him against the tenant for the recovery of that portion of the tax levied upon the improvements. La Paul v. Hey wood, 32: 368, 129 N. W. 763, 113 Minn. *376. Voluntary payments. Evidence as to voluntariness, see EVIDENCE, 1930. Right to recover back insurance premiums, see INSURANCE, 434-444. See also infra, 57-60. 34. Excessive fees exacted by attorneys from a client under an illegal contract for compensation may be recovered although voluntarily paid; and the fact that the rela- tion of attorney and client is temporarily broken before the end of the service by em- ployment of another attorney is immaterial when the other attorney does not represent the client in any controversy about fees. Donaldson v. Eaton, 14: 1168, 114 N. W. 19, 136 Iowa, 650. 35. Payments voluntarily made for tele- phone service in excess of the rates which the company's charter authorizes it to exact, under a contract entered into without fraud, misrepresentation, or mistake of fact, can- not be recovered. Illinois Glass Co. v. Chi- cago Teleph. Co. 18: 124, 85 N. E. 200, 234 111. 535. (Annotated) 36. One who has accepted and paid a draft attached to a bill of lading for prop- erty purchased by and to be delivered to ASSUMPSIT, II. c, 2. 193 him, to a bank which purchased the draft in due course of business, cannot, upon fail- ure of the consideration, recover back from the bank the amount so paid. Lewis v. W. H. Small & Co. 6: 887, 96 S. W. 1051, 117 Tenn. 153. 37. A vendee having no notice of the violation of the statute may recover back money paid for an interest in a patent right which was sold without tiling a copy of the letters or an affidavit of genuine- ness with the county clerk, as required by statute, a breach of which is made a mis- demeanor. Michener v. Watts, 36: 142, 96 N. E. 127, 176 Ind. 376. :>8. A county which, with knowledge of the facts, returns money voluntarily paid in satisfaction of a tax assessment subsequent- ly declared to be invalid, cannot maintain an action to recover the money so paid, al- though it could not have been compelled to make the refund. Adair County v. Johns- ton, 45: 753, 142 N. W. 210, 160 Iowa, 683. (Annotated) Mistake. Mistake as ground for recovery of payment by bank, see BANKS, 86, 87. When limitations begin to run against ac- tion, see LIMITATION OF ACTIONS, 120. Recovery by agent of principal's money, see PARTIES, 59. See also infra, 61, 62. 39. An illiterate debtor who, in making a final payment upon his debt, forgets one payment and the receipt therefor, so that he pays more than is due, may recover the over- payment, and is not precluded therefrom on the theory this his mistake was one of law. Simms v. Vick, 24: 517, 65 S. E. 621, 151 N. C. 78. (Annotated) 40. The rule permitting a recovery of money paid under a mutual mistake of fact is not applicable in case, to avoid suit, an insurance company pays the amounts due on policies on the life of a person who has disappeared, but who subsequently re- appears. New York L. Ins. Co. v. Chitten- den. ii : 233, 112 N. W. 96, 134 Iowa, 613. 41. One who pays a sum of money in or- der to secure the release of her parents from what she mistakenly supposes to be a binding contract for the sale of their land is not a volunteer in the transaction. Tuck- er v. Denton, 15: 289, 106 S. W. 280, 32 Ky. L. Rep. 521. 42. The payment of money by a daugh- ter to secure the release of her parents from what she mistakenly supposes to be an en- forceable written contract for the sale of their land will not be upheld because of the moral obligation of the parents to carry- out their verbal agreement of sale. Tucker v. Denton. 15: 289, 106 S. W. 280, 32 Ky. L. Rep. 521. 43. One who pays more than a fourth of the estimated value of land which she mis- takenly believes her parents have bound themselves to convey, in order to have the contract canceled, may recover it back, the mistake being as to an existing fact, mate- rial, controlling, and mutual, or, if not mu- tual, the vendees being guilty of fraud in Digest 1-52 L.R.A.(N.S.) receiving the money when they knew the contract was unenforceable. Tucker v. Den- ton, 15: 289, 106 S. W. 280, 32 Ky. L. Rep. 521. 44. A bank which, under mistake of fact as to the genuineness of the obligation, de- livers to an ex-county treasurer upon a forged obligation of the county a check pay- able to the order of the county treasurer, which the ex-treasurer delivers to the coun- ty in satisfaction of personal indebtedness to it, may recover back the payment if the claim of the county against the ex-treasurer and his sureties has been in no manner jeopardized or impaired. Hathaway v. Del- aware County, 13: 273, 78 N. E. 153, 185 N. Y. 368. (Annotated) 45. To enable a bank to recover back from a county money deposited in another bank to the order of the county upon the faith of a forged note of the county, it must be shown that the money was actually ap- propriated to the discharge of valid obliga- tions of the county. Hathaway v. Dela- ware County, 13: 273, 78 N. E. 153, 185 X. Y. 368. 46. A drawer whose check was not col- lected because of the negligence of a bank to which it had been indorsed and forward- ed for collection is equitably entitled to re- cover from the payee, on the ground of mis- take, the amount of a second check, is- sued on account of the supposed dishonor of the first one, and duly paid. Noble v. Doughten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. 47. An employee who, under a mistake as to his rights, turns over to his employer tips given him by customers for his person- al use, may compel the employer to return them to him. Polites v. Barlin, 41: 1217, 149 S. W. 828, 149 Ky. 376. (Annotated) Duress. What constitutes payment of taxes under duress, see DURESS, 3. See also infra, 63, 64. 48. Money paid by a brick manufacturer at the demand of a labor union, to prevent its members from refusing to handle his prod- uct because he had sold to unfair bosses, may be recovered back, since it was ob- tained by extortion. March v. Bricklayers' & Plasterers' Union No. 1, 4: 1198, 63 Atl. 291, 79 Conn. 7. (Annotated) 49. One who negotiates a loan to take up an existing mortgage upon which foreclosure proceedings have been begun, and who is re- quired, under protest, to pay an illegal bonus to secure a discharge of the mortgage, acts under duress in so doing, and is entitled to recover the amount paid. Kilpatrick v. Germania L. Ins. Co. 2: 574, 75 N. E. 1124, 183 N. Y. 163. (Annotated) 2. Of assessment, tares, or license fees. (See also same heading in Digest L.R.A. 1-70.) License fee paid to conduct unlawful busi- ness, see CONTRACTS, 583. 13 194 ASSUMrSIT, II. c, 2. Duty to return unearned license fee for sale of liquor, see INTOXICATING LIQUORS, 58, 59. \Yho may maintain action, see PARTIES, 138. Pleading in action to recover taxes paid, see PLEADING, 41. Against state, see STATE, 28. See also supra, 23. 50. In the absence of a statute permit- ting it, the legal representatives of a de- ceased licensee cannot recover any part of the amount paid for the liquor license be- cause of the latter's death before the ex- piration of the term of the license. Wood v. School Dist. No. 32, 15:478, 115 N. W. 308, 80 Neb. 722. 51. A liquor dealer cannot recover the unearned portion of his license fee when his license is summarily revoked by the mu- nicipal authorities because he was not a fit person to conduct the business. Roberts v. Boise City, 45: 593. 132 Pac. 306, 23 Idaho, 716. (Annotated) 52. One who secures and pays for a li- cense to sell intoxicating liquor, under an interpretation of the law by a nisi prius court, may, upon reversal of the decision by a ruling that there was no authority to issue the license, recover so much of the money so paid as is in proportion to the remainder of the term. Scott v. New Cas- tle, 21 : 112, 116 S. W. 788, 132 Ky. 616. 53. One to whom a license to sell in- toxicating liquors has been duly issued by a city is entitled to recover back the un- earned portion of the license fee, where, be- fore the expiration of the year for which the license was granted, the licensee is compelled to close his place of business be- cause of an enactment of a state prohibi- tory law. Allsman v. Oklahoma City, 16: 511, 95 Pac. 468, 21 Okla. 142. (Annotated) 54. The holder of a license to sell intox- icating liquors, who, upon the enactment by the general assembly of a law providing for a higher license tee, ceases to. transact business before the expiration of the year for which the license was granted, is not entitled to have that proportion of the fee representing the portion of the year in which he did not sell liquor refunded to him, aft- er the term of the license has expired. Fitz- gerald v. Witchard, 16: 519, 61 S. E. 227, 130 Ga. 552. (Annotated) 55. A taxpayer cannot maintain a suit against a county to recover taxes illegally and wrongfully exacted by the officers of the county after the taxes have been paid out by its disbursing officers. Com. use of Devoe v. Boske, n: 1104, 99 S. W. 316, 124 Ky. 468. (Annotated) 56. The grounds of protest which ac- companies a payment of taxes need not be set out, in order to authorize a recovery of the amount paid, if the tax was invalid. Whitford v. Clarke, 36: 476, 80 Atl. 257, 33 R. I. 331. (Annotated) Voluntary payments. 57. One who pays an illegal tax to se- cure the rebate allowed by law for prompt payment cannot recover the monev paid Digest 1-52 I?.R.A.(N.S.) where, under the statute, he has a right to test in court the right to enforce the tax, and the taxing district has applied the money to the purposes for which it was collected. Louisville v. Becker, 28: 1045, 129 S. W. 311, 139 Ky. 17. 58. Where an illegal tax is levied on the property of a taxpayer, which he is com- pelled to and does pay, it is to be regard- ed as an involuntary payment, which he may recover back; but, if he, in order to secure a rebate, pays the whole of such tax prior to the date when the first instalment becomes due, including the second half due in June of the following year, the payment of the second half thus made to obtain the rebate is deemed to be voluntary, and is therefore not recoverable. Atchison, T. & S. F. R. Co. v. Humboldt, 41 : 175, 123 Pac. 727, 87 Kan. 1. (Annotated) 59. Payments of monthly fees for a sa- loon license with full knowledge of the facts, without protest or objection, and with- out urging on the part of the officials, ex- cept a warning that the licensee must be more prompt or he was liable to be arrested, and a statement, when part of the fee for a month had been paid, that the balance must be paid on the following day or arrest would follow, are not involuntary, so that they can be recovered in case the ordinance pro- viding for the license proves to be invalid. Eslow v. Albion, 22: 872, 117 N. W. 328, 153 Mich. 720. (Annotated) 60. A city, when about to distrain for taxes, may make an agreement with the taxpayer that the payment is under pro- test, which may be carried out in any sub- sequent litigation to recover back the money paid. State Nat. Bank v. Memphis, 7: 663, 94 S. W. 606, 116 Tenn. 641. Mistake. 61. Where a purchaser at tax sale re- cords his deed, lists and returns the prop- erty for taxation as his, and pays the taxes on "it for the purpose of perfecting his title under the Constitution, he cannot, years afterwards, demand a return of such taxes on the theory that they were paid in er- ror. Lisso & Brother v. Police Jury, 31: 1141, 53 So. 566, 127 La. 283. (Annotated) 62. Where money paid by mistake of law may be recovered, money paid for a license to sell soft drinks under an ordinance sup- posed to be valid, which payment might have been enforced by fine and imprison- ment, may be recovered, and action by the licensee under the license is immaterial, since, the ordinance being invalid, the li- cense was not necessary to protect the li- censee from prosecutions for making sales. Spalding v. Lebanon, 49: 387, 160 S. W. 751, 156 Ky. 37. (Annotated) Duress. Nature of action to recover money paid under, see ACTION OB SUIT, 84. 63. Payment of water rates under pro- test, to avoid the shutting off of the water, which would be a great detriment to the property owner, is under duress, within the rule that payments so made may be recov- (..ic!.M).A.H..l S'cI Jas^iCI 'srr, n. c, 3 ATTACHMENT. ered back. Chicago v. Northwestern Mut. L. Ins. Co. i: 770, 75 N. E. 803, 218 111. 40. 64. Charges for the administration of an estate which are demanded of the adminis- trator by an officer acting under an uncon- stitutional law, and whicu are paid by the administrator under written protest and under circumstances where injury to the estate and the third parties would have resulted from a refusal to pay, and a re- sort to legal remedies to compel the per- formance of the official duty, are paid under compulsion and duress, and can be re- covered from the county upon a proper showing being made. JVlaliii v. LaAioure, 50: 997, 145 IN. W. 582, 27 N. D. 140. 3. Public money. (See also same heading in Digest L.R.A. 1-10.) 60. A municipal corporation which has paid over money which it appropriated, in violation of a constitutional prohibition, to induce a railroad company to build its road j to the town and establish a depot there, may maintain an action to recover it back, even after the conditions of the appropriation have been complied with. J^uxora v. Jones- boro, L. C. & E. R. Co. 13: 157, 103 S. W. 605, S3 Ark. 275. ( Annotated) By visitor to manufactory, see NEGLIGENCE, 103. By child, see NEGLIGENCE, 215. By person crossing between freight cars on switch, see RAILROADS, 74. By person crossing track in front of street car, see STREET RAILWAYS, 84, 85. Necessity of pleading, see PLEADING, 468, 469. As question for jury, see TRIAL, II. c, 8. 1. Notice or knowledge and apprecia- tion of the danger are indispensable to an assumption of the risk of it. Winona v. Botzet, 23: 204, 169 Fed. 321, 94 C. C. A. 563. ASSUMPTION OF DEBT. Oral contract as to, see CONTRACTS, I. e, 2. Construction of agreement for, see CON- TRACTS, 371-373. As consideration for conveyance, see MOKT- GAGE, III. ASSUMPTION OF RISK. By spectators at game of baseball, see AMUSEMENTS, 9. By person taking passage on logging train, see CARRIERS, 77. By volunteer taking passage on freight train, see CARRIERS, 79. By shipper of animals, see CARRIERS, 892. By passenger, see CARRIERS, II. g, 2. By passenger on freight elevator, see ELEVA- TORS, 15. By teamster using sidewalk as driveway, see HIGHWAYS, 351. By guest of hotel, see INNKEEPERS, 31. By insured, see INSURANCE, VI. b. By employee of tenant, see LANDLORD AND TENANT, 177. By person hiring horse from liveryman, see LIVERY STABLES, 4. By servant generally, see MASTER AND SERV- ANT, II. b. By workman sent by master to repair chim- ney on another's property, see NEGLI- GENCE, 94. Digest 1-52 L.R.A.(N.S-) ASTROLOGY. Forbidding casting and reading of horo- scope, see CONSTITUTIONAL LAW, 762. Power of legislature to prohibit fortune tell- ing by, see FORTUNE TELLING. Validity of ordinance as to, see MUNICIPAL CORPORATIONS, 214. ATHLETIC ASSOCIATION. Liability for injury from fall of stand used at athletic exhibitions, see EXHI- BITIONS. ATTACHMENT. /. When lies, 1-17. a. In general, 14. 6. On what claims, 53. c. By or against nonresidents or foreign corporations, 913. d. For fraud, 1417. II. Interest acquired; lien; priority, 18-22. a. In general, 18. b. Lien, priority, 1922. III. Procedure, 2348. a. In general; affidavits; peti- tion; judgment, 2331. It. Bonds; liability on, 3237. c. Dissolution; dismissal; setting aside, 3S48. Abuse of process in bringing attachment suit, see ABUSE OF PROCESS, 4, 6. Effect of appearance of nonresident on rights of plaintiff in attachment, see APPEARANCE, 1. Of property of individual partner where other member has been adjudged a bankrupt, see BANKRUPTCY, 25. Malicious attachment, see BANKRUPTCY, 47, 96; DAMAGES, 340; EVIDENCE, 2005: MALICIOUS PROSECUTION, 26. Effect of bankruptcy on prior attachment, see BANKRUPTCY, 55. Of trust fund in bank for debt of trustee, see BANKS, 66, 67. (.B.VTj.A.H.J VC-J j.-.?si-T 190 AlTALiiMEM, i. a.. Liability of bond of constable for failure | to return to defendant money paid tn secure release of goods, see BONUS. 08. j Defense to note given to secure release of, see BILLS AND NOTES, 217. Of mortgaged chattels, see CIIAITKI. Mom- , (.AGE, 37, 3b, 47, 48, 53-57, 03. Waiver of lien of .chattel mortgage by levy- ing attachment on property, see CHAT- TEL MORTGAGE, 53-57. Levy of, as cloud on title, see CLOUD o> TITLE, 13. Giving note to secure release of, as a com- promise and settlement, see COMPRO- MISE AND SETTLEMENT, 5. Punishing contempt of court by, see CON- TEMPT, 100. Oral agreement to pay debt of another to prevent attachment of his property, see CONTRACTS, 226. Validity of unregistered pledge of stock as against subsequent attachment, see COR- PORATIONS, 234-237. From state court during bankruptcy pro- ceedings, see COURTS, 273. What court may determine validity of levy, see COURTS, 274. Effect of removing suit to Federal court, see COURTS, 277. Authority of receiver appointed by other court to interfere with, see COURTS, 291. .Right to attach property before commenc- ing creditor's suit, see CREDITORS' BILL, 6. As condition of right to maintain creditors' bill, see CREDITORS' BILL, 7. Duty to minimize damages for wrongful at- tachment, see DAMAGES, 26. Exemplary damages for wrongfully suing out, see DAMAGES, 56-58. Damages for malicious attachment, see DAM- AGES, 340. Issuing of, to enforce obedience to subpoena duces tecum, see DISCOVERY AND IN- SPECTION, 8. Oral motion to dismiss; time for, see DIS- MISSAL OR DISCONTINUANCE, 1. Of exempt property subject to payment of particular debt, see ELECTION OF REME- DIES, 3. Levy of, on land equitably converted, see EQUITABLE CONVERSION, 3. Effect of attaching property on right to foreclose chattel mortgage thereon, see ESTOPPEL, 201. Estoppel of payee of check who has com- menced suit against drawer, to inter- vene in action by other creditor of drawer, see ESTOPPEL, 218. Attaching creditor as bound by estoppel up- on debtor, see ESTOPPEL, 257. Judicial notice of, see EVIDENCE, 11. Order of, as process, see EXEMPTIONS, 2. Property exempt from, see EXEMPTIONS; HOMESTEAD. As to garnishment, see GARNISHMENT. Injunction against attachment suit, see IN- JUNCTION, 261. Levy of, as effecting change of interest or title to insured property, see INSTTB- ANCE, 228. Digest 1-52 L.R.A.(N.S.) Lonclusiveiiess of judgment in attachment suit, see JUDGMENT, 262. Sale under, see JUDICIAL SALE. Right to jury trial in, see JUKY, 38. \\liat property subject to, see LEVY AND SKIZUUE, 1. Mode and sulnciency of levy and return, see LKVY AND SEIZURE, II. When action is commenced, see LIMITATION OF ACTIONS, 280. Obstructing execution of process, see OB- STRUCTING .JUSTICE, 3. Complaint in action on note purchased at attachment sale, see PLEADING, 170. Of trust property; trustee's attempt to de- feat, see PLEADING, 528. Of property after appointment of receiver therefor, see RECEIVERS, 29, 48. Replevin against attaching creditors, see REPLEVIN, 4, 17, 34. Sufficiency of delivery of chattels sold as against attachment, see SALE, 13, 34. Effect of seller's delay in asserting right to retake property as against attaching creditor, see SALE, 187. Subrogation of surety on bond for release from, see SUBROGATION, 25. Duty of court in possession of fund in at- tachment to pay taxes, see TAXES, 2.~>s. Against spendthrift trust, see TRUSTS, 130. Of right of man to elect to take against will of his wife, see WILLS, 350. Service on nonresident before attaching property, see WRIT AND PROCESS, 53. /. When lies, a. In general. (See also same heading in Digest L.I?. A. 1-10.) Attachment of property covered by bill of lading, draft attached to which lias been discounted by bank, see BILLS OF LADING, 2. What property subject to, see LEVY AND SEIZURE, I. 1. A purchaser of goods sold and de- livered upon condition that the title shall not pass unless the price agreed upon be paid has no attachable interest in the prop- erty until the performance of the condition. Mclver v. Williamson-Halsell-Frazier Co. 13: 696, 92 Pac. 170, 19 Okla. 454. ( Annotated) 2. Duly deposited funds of a bankrupt's estate are in the possession of the court so as to prevent attachment, even after dis- tribution is ordered and the checks have been drawn and countersigned but not de- livered, the custody of the law continuing until the trustee in bankruptcy actually pays the distributees the dividends awarded them. Rockland Sav. Bank v. Alden, 14: 1220, 68 Atl. 863, 103 Me. 230. (Annotated) 3. Under a statutory provision that rent due farming land shall be a lien on the crops growing thereon, enforceable by attachment, and providing further that when a person liable to pay rent intends < 8,*). A.M. ; 1- ."-,< i ATTACHMENT, I. b d. 197 to remove, or is removing, or has within thirty days removed, his property or crops from the leased premises, the person to whom the rent is due may commence an action in attachment, the intent of a ten- ant from year to year is immaterial, as affecting the right of the landlord to at- tachment, where such tenant is engaged in gathering and removing the crops, and has removed part of the same, from the farm at the time of the attachment. Tur- ner v. Wilcox, 40: 498, 121 Pac. 658, 32 Okla. 56. 4. Under a statute giving the right of attachment to a landlord to enforce a lien for rent, whether the same be due or not, providing it becomes due within one year, when the person liable intends to remove or is removing his property or crops, a landlord who has received no rent from a tenant holding from year to year is entitled to an attachment against the crops raised on the farm in the fall of the year, when the tenant is engaged in removing such crops and has removed part of the same. Turner v. Wilcox, 40: 498, 121 Pac. 658, 32 Okla. 56. &. On ^vhat claims. (See also same heading in Digest L.R.A. 1-10.) 5. A contract to hire a livery rig for a certain number of days is not within the purview of a statute allowing an attach- ment when the debt is for an article the price of which should have been paid at the time of delivery, which the debtor re- fuses to do. Kilpatrick v. Inman, 26: 188, 105 Pac. 1080, 46 Colo. 514. 6. One Avho obtains another's property by larceny is his debtor, within the mean- ing of- a statute giving one to whom another is indebted a right to attachment if he is attempting to conceal or dispose of his property with intent to defraud his credit- ors, and the debt was fraudulently con- tracted. Downs v. Baltimore, 41: 255, 76 Atl. 861, 111 Md. 674. 7. A civil action to compel one accused of larceny to restore the value of the thing taken may be instituted against him after the institution of a criminal proceeding, which may be aided by attachment if grounds therefor exist. Downs v. Balti- more, 41: 255, 76 Atl. 861, 111 Md. 674. ( Annotated ) 8. No contract to pay fpr animals negligently driven in the way of a railroad train and killed can be implied so as to bring a demand for compensation within a statute allowing attachments in case of breach of contract, express or implied. Kyle v. Chester, 37: 230, 113 Pac. 749, 42 Mont. 522. c. By or against nonresidents or foreign corporations. (See also same heading in Digest L.R.A. 1-10.) Digest 1-52 L.R.A.(N.S.) Against nonresidents generally. 9. A nonresident who, as an enlisted soldier of the United States, is stationed | upon a tract of land which has been se- i cured by the Federal government within a I state for military purposes, does not be- j come a citizen of such state, so as to de- i feat the right of a creditor to issue an at- | tachment against him as a nonresident, al- \ though state process may be served within I the reservation. Bank of Phoebus v. By- rum, 27: 436, 67 S. E. 349, 110 Va. 708. 10. Jurisdiction over a debtor upon i whom the service of summons and com- plaint is by publication may be secured by I levying an attachment upon his equity in corporate stock which he has pledged as security for a debt, so far as is necessary i to uphold a sale of such stock under execu- ! tion. (State Banking & T. Co. v. Taylor, ! 29: 523, 127 N. W. 590, 25 S. D. 577. 11. An attachment against the kidividu- ; al property of a resident member of a j partnership cannot be sustained in an ac- i tion against the partnership on the theory that the other member was a nonresident, under a statute authorizing attachment in case of nonresidence. Johnson v. Jones, 48: 547, 135 Pac. 12, 39 Okla. 323. Against foreign corporation. Attachment of registered bonds of foreign corporation, see LEVY AND SEIZURE, 9. Attachment of foreign railway cars, see AC- TION OB SUIT, 42; COMMERCE, 21-24; LEVY AND SEIZURE, 15, 16. 12. Attachment against the property of a foreign corporation as that of a. non- resident will not lie where it is doing busi- ness within the state, and has complied with the terms of a statute which provides that upon such compliance it shall be to all intents and purposes a domestic cor- poration. Stonega Coke & Coal Co. v. Southern Steel Co. 31 : 278, 131 S. W. 988. 123 Tenn. 428. (Annotated) 13. The legislature may provide for the domestication of foreign corporations seek- ing to do business within the state, so that their property shall no longer be at- tachable as that of nonresidents. Stonega Coke & Coal Co. v. Southern Steel Co. 31: 278, 131 S. W. 988, 123 Tenn. 428. d. For fraud. (See also same heading in Digest L.R.A. 1-10.) 14. The direction of a debtor in a for- eign state to his domestic agent to pay the principal's funds in his hands to an as signee of the principal in another state is an attempted removal of property from the state within the meaning of the attachment laws. Dillingham v. Traders' Ins. Co. 16: 220, 108 S. W. 1148, 120 Tenn. 302. 15. The direction of a debtor to his agent within the state to pay funds in his hands to the principal's receiver in another state to which the right thereto had been as- signed, and not the act of the receiver, ef- fects the removal of the funds from tho 198 ATTACHMENT, II. a 111. a. state, so as to briug the property within the operation of the attachment laws in a suit against the principal. Dillingham v. Traders' Ins. Co. 16: 220, 108 S. W. 1148, 120 Tenn. 302. 16. Failure to take according to contract a livery rig which had been engaged for a few days will not support an attachment on the theory of fraud, since it is a mere breach of contract. Kilpatrick v. Inman, 26: 1 88, 105 Pac. 1080, 46 Colo. 514. 17. A debt incurred by obtaining goods from a wholesaler upon credit given in re- liance upon financial statements of the debtor, which purported to disclose all his indebtedness, but which in fact omitted a loan substantially equal to his original in- vestment in the retail business, for which the goods were intended, is fraudulently contracted within the meaning of a statute authorizing the attachment of the defend- ant's land in a creditors' suit.- Western Grocer Co. v. Alleman, 27: 620, 106 Pac. 460, 81 Kan. 543. //. Interest acquired; lien; priority, a. In general. (Set also same heading in Digest L.R.A. 1-110.) 18. An attaching creditor may acquire greater and better rights to mortgaged per- sonal property belonging to his debtor than the debtor himself could claim at the time the attachment is levied. Holt v. Lucas, 17: 203", 96 Pac. 30, 77 Kan. 710. ft. Lien; priority. (See also same heading in Digest L.R.A. 1-10.) Right of one purchasing property as against one attaching it as that of vendor, see FRAUDULENT CONVEYANCES, 46. Lien of, on funds of estate in administra- tor's hands, see MONEY LN COURT, 3. Rights as between attaching creditor of re- puted grantee and holder of prior un- recorded deed, see VENDOR AND PUB- CHASEB, 90. Priority between attachment and ether liens. Priority of chattel mortgage over, see CHAT- TEL MORTGAGE, 37, 38. See also supra, 18. 19. One attaching stock which is placed in the name of a person on the books of the corporation to qualify him to act as a director, for the debt of the latter, cannot contest the title of the true owner to the stock, because the statute requires directors to be bona fide stockholders, and the owner of the stock has aided in a violation of the statute. Gray v. Graham, 49: 1159, 89 Atl. 262, 87 Conn. 601. 20. One who places corporate stock in the name of another on the books of the Digest 1-52 L.R.A.(N.S.) corporation to qualify him as a director, re- taining possession of the certificate him- self, has priority over an attaching creditor of the latter who did not extend credit on the faith of the stock. Gray v. Graham, 49: 1159, 89 Atl. 262, 87 Conn. 601. (Annotated) 21. A junior attachment levied on the property embraced in a conditional-sale con- tract illegally recorded because the attesta- tion of such instrument was taken before a notary public who was a stockholder in the vendor corporation is entitled to priori- ty over the lien of the conditional-sale con- tract, although founded on a debt antece- dent to the conditional bill of sale. South- ern Iron & E. Co. v. Voyles, 41: 375, 75 S. E. 248, 138 Ga. 258. 22. A conditional bill of sale attested by a notary public who is a stockholder in the vendor corporation, which is thereafter re- corded as required by statute to perfect the lien of such contract, is not, by virtue of such record, entitled to a priority over a subsequently acquired attachment lien, where the disqualification of the notary was known to the official of the corpora- tion conducting the transaction, although such disqualification may not appear on the face of the paper. Southern Iron & E. Co. v. Voyles, 41=375, 75 S. E. 248, 138 Ga. 258. ///. Procedure. a. In general; affidavits; petition; judgment. (See also same heading in Digest L.R.A. 1-10.) Presenting for first time on appeal petition to amend insufficient affidavit for at- tachment, see APPEAL AND ERROB, 6'.)3. Special appearance to move to quash writ of, see APPEARANCE, 20. Sufficiency of petition in creditor's action to enforce attachment lien, see PLEAD- ING, 423. Sufficiency of service of process, see WRIT AND PROCESS, 3, 54, 55. 23. A freight car is within the provisions of a statute permitting the execution of an attachment on any property "incapable of manual delivery to the sheriff," by leaving with the individual holding the property a certified copy of the warrant with a notice showing the property levied upon. Seibels v. Northern C. R. Co. 16: 1026, 61 S. E. 435, 80 S. C. 133. 24. An attachment of registered bonds of a foreign corporation is not defeated by failure to comply with provisions of a stat- ute prescribing the method of attaching stock of domestic corporations. De Beam v. De Beam, 36: 421, 81 Atl. 223, 115 Md. 668. 25. An attachment based upon an affida- vit made by the plaintiff's attorney is suf- ficient if the facts are positively stated in the language of the statute; it being unnec- essary that the affidavit should disclose, in (.a.VD.A.fl^i sn-i .t9*Ki ATTACHMENT, III. b. 199 addition thereto, that the affiant possessed personal knowledge of such facts. P.. Mayer Boot & Shoe Co. v. Ferguson, 14: 1126, 114 N. W. 1091, 17 N. D. 302. (Annotated) 26. A statutory provision allowing serv- ice of process upon the president, treasurer, or other chief officer of a corporation is not sufficient to show that the treasurer is the agent of the corporation for the purpose of executing an affidavit for attachment on its behalf. Taylor v. Sutherlin-Meade Tobacco Co. 14: 1135, 60 S. E. 132, 107 Va. 787. 27. The words "secretary and treasurer," appended to the signature of an affidavit for attachment sued out on behalf of a corpora- tion, are not sufficient, as matter of law, to show that the affidavit was within the re- quirements of a statute that it must be exe- cuted by plaintiff, his agent or attorney. Taylor v. Sutherlin-Meade Tobacco Co. 14: 1135, 60 S. E. 132, 107 Va. 787. ,!;-, (Annotated) Intervention. What questions may be raised by person in- tervening in attachment proceedings, see INTERVENTION. Right of Receiver to intervene in attach- ment proceeding, see RECEIVERS, 48. 28. The owner or claimant of property attached as that of another in an action for debt has such an interest as against both parties to the main action as entitles him to intervene, irrespective of other and adequate remedies, for the purpose of as- serting his right and title to the attached property, under a statute authorizing the intervention of third parties who have an interest in the matter in litigation, in the success of either of the parties, or an in- terest against both. Potlatch Lumber Co. v. Runkel, 23: 536, 101 Pac. 396, 16 Idaho, 192. ( Annotated ) 29. A third person who intervenes in an action for debt, on the ground that his property has been attached as that of the debtor in the main action, does not thereby raise an additional issue, where the attach- ment statute provides that an attachment duly and rd^ularly issued becomes a lien on the property ''as security for the satis- faction of any judgment that may be re- covered," as in such case the attachment is a, provisional remedy which reaches out and lays hold upon the property by proceeding in rem, and subjects it to the payment of the debt for the recovery of which the action was brought, and therefore the intervention simply raises the issue as to the ownership of the property. Potlatch Lumber Co. v. Runkel, 23: 536, 101 Pac. 396, 16 Idaho, 192. Judgment. 30. A court securing jurisdiction of a nonresident by attachment of his property and substituted service of process has no jurisdiction to render a personal judgment for the amount of the claim over and above the value of the property attached. Joseph Joseph & Bros. Co. v. Hoffman & McNeill, 38: 924, 56 So. 216, 173 Ala. 568. 31. Upon attachment of bonds of a non- resident corporation in the hands of cus- todians, to reach the debt of a nonresi- Digest 1-52 L.R.A.(N.S.) dent' owner of the bonds, which are reg- istered in the name of his children, the judgment must be one of condemnation against the specific bonds, and not in per- sonam against the custodians. De Beam v. De Beam, 36: 421, 81 Atl. 223, 115 Md. 668. 6. Bonds; liability on. (8ee also same heading in Digest L.R.A. 1-10.) Effect of discharge in bankruptcy on bond executed to release attached property of bankrupt, see BANKRUPTCY, 140. Punitive damages for breach of attachment bond, see DAMAGES, 30. Hn \\ Estoppel of wife of surety on bond to as- sert title to property standing in his name, see ESTOPPEL, 65. Release of surety on attachment bond, see PRINCIPAL AND SURETY, 32. Bond for release of attached property, see LEVY AND SEIZURE, IV. See also infra, 40. 32. The relation of debtor and creditor between an attachment creditor and a surety for the return of the attached prop- erty arises at the moment the contract of suretyship is entered into, for the purpose of determining the rights of the attachment creditor in property standing in the, surety's name, and in reliance upon which he is accepted as surety, as against the real owner thereof, to whom the surety subse- quently transfers it. Goldberg v. Parker, 46: 1097, 87 Atl. 555, 87 Conn. 99. 33. An obligor on a statutory bond to discharge an attachment, conditioned that the defendant will perform the judgment of the court in the action in which the attachment is issued, is absolutely liable in an action ^against him on the bond for the amount recovered in the action in which the bond was . given, without reference to the question whether the attachment was right- fully or wrongfully issued, and the defend- ant is precluded by such bond from con- troverting the grounds of the attachment. Moffit v. Garrett, 32: 401, 100 Pac. 533, 23 Okla. 398. (Annotated) 34. The mere levying of an attachment or garnishment is not sufficient to show in- jury so as to raise a liability on the bond in case the levy proves to have been wrong- ful. Ames v. Chirurg, 38: 120, 132 N. W. 427, 152 Iowa, 278. 35. Attorneys' fees for defending the main suit cannot be recovered in a suit upon an attachment bond, in the absence of peculiar circumstances requiring it in a particular case. Ames v. Chirurg, 38: 120, 132 N. W. 427, 152 Iowa, 278. 36. The fact that no indebtedness is in fact due at the time an attachment is sued out in a suit to recover a pretended in- debtedness does not show that the attach- ment was wrongful so as to support an ac- tion on the bond, where the statute requires, as a basis for such action, not only that the attachment was wrongful, but that there 200 ATTACHMKXT, 111. c. was no reasonable cause to believe the ground upon which the same was issued to be true. Ames v. Chirurg, 38: 120, Kfci X. W. 427, 152 Iowa, 278. (Annotated) 37. Under a statute providing bail abso- lute to discharge a foreign attachment con- ditioned to pay the debt or damages, the liability of the sureties depends upon the sum demanded in the cause of action upon which attachment issued, and cannot be in- creased by an amendment substituting a different measure of damages after the bond is filed. Com. use of Gettman v. A. B. Baxter & Co. 42: 484, 84 Atl. 136, 235 Pa. 179. (Annotated) c. Dissolution; dismissal; setting aside. (See also same heading in Digest L.R.A. i-m.) Collusiveness of judgment dissolving, see JUDGMENT, 162. Bond for release of attached property^ see LEVY AND SEIZURE, IV. 38. An equitable conversion effected by an election to exercise an option to buy real estate will not relate back to the date of the contract, so as to dissolve an attachment levied on the land as that of the grantor prior to the election, and while the grantor retains the ownership. Sheehy v. Scott, 4: 365, 104 N. VV. 1139, 128 Iowa, 551. 39. Refusal to vacate a warrant of at- tachment is proper, where it is in all re- spects regular, and the only issue is as to whether or not the property seized is sub- ject thereto. Brenizer v. Supreme Council of the Royal Arcanum, 6: 235, 53 S. E. 835, 141 N. C. 409. 40. In a suit against a foreign corpora- tion, in which its property has been attached and afterwards released by the giving of a bond, pursuant to statutory provisions, where the defendant appears and makes de- fense, and a personal decree is rendered against it for an amount which it has previously tendered on account of the de- mand set up in the bill, but not paid into court, it is error to dismiss the attachment and decree a release of the bond. Dudley v. Chicago, M. & St. P. R. Co. 3: 1135, 52 S. E. 718, 58 W. Va. 604. 41. Although an attachment may be dis- missed because of its invalidity, plaintiff is entitled to proceed for a verdict and general judgment on his declaration, if the defend- ant has appeared and made defense, under Code provisions providing that, where de- fendant has appeared and made defense, judgment against him shall bind all his property, and have the same force and effect as if there had been personal service, and that, where notice in writing was given to defendant of the pendency of attachment proceedings, the declaration shall not be dismissed because the attachment may have been dismissed or discontinued, but the plaintiff shall be entitled to judgment on the declaration filed, as in other cases at common law, upon the merits of the case. Digest 1-52 ^.R.A.(N.S.) I Cowart v. W. E. Caldwell Co. 30: 720, 68 i S. E. 500, 134 Ga. 544. Grounds for. 42. The rule that an attachment will not be dissolved on the ground that defendant has no title to the property does not apply where the attachment is sued out to acquire jurisdiction over a nonresident. Greenwood Grocery Co. v. Canadian County Mill & Elevator Co. 2: 79, 52 S. E. 191, 72 S. C. 450. 43. An attachment sued out on the ground of the fraudulent conveyance or dis- position of the debtor's property should be dissolved, where a sale in bulk of the stock of goods levied on is found to have been made in good faith and without actual fraud, as such finding overthrows the pre- sumption of fraud created by Okla. Sess. Laws 1903, p. 249, chap. 30, 1. Williams v. Fourth Nat. Bank, 2: 334, 82 Pac. 496, 15 Okla. 477. 44. An attachment is properly dismissed when the only levy thereof is by the service of a summons of garnishment which is void. Cowart v. W. E. Caldwell Co. 30: 720, 68 S. E. 500, 134 Ga. 544. 45. A motion to vacate an attachment for misjoinder of parties in an action by a husband and wife is properly overruled where by statute the question of misjoinder can be raised only by demurrer, and the husband is a necessary party to an action brought on behalf of his wife of the class in which the attachment was issued. Sei- bels v. Northern C. R. Co. 16: 1026, 61 S. E. 435, 80 S. C. 133. 46. While it is proper to entertain a motion for the immediate discharge of property seized in attachment proceedings as that of defendant when it is claimed by another who interpleads, if the showing upon the motion discloses a substantial question as to the ownership between de- fendant and interpleader, the motion should be overruled where the hearing is upon ex parte affidavits. Western Grocer Co. v. Alleman, 27: 620, 106 Pac. 460, 81 Kan. 543. 47. An attachment in the hands of per- sons in whose custody they have been placed, of bonds of a nonresident corpora- tion registered in the name of one person, but found by the court to belong to an- other, who is a nonresident, to reach a debt of the latter, should not be set aside, if the bonds are subject to attachment, be- cause neither the custodian nor anyone be- fore the court could transfer them, since equity might, by proper proceedings, have them transferred in such a way as to make the judgment in the attachment proceed- ings effective. DeBearn v. DeBearn. 36: 421, 81 Atl. 223, 115 Md. 668. 48. The defendant in an attachment proceeding based upon the ground of non- residence cannot be heard to deny his ownership of the property attached, to de- feat the limited jurisdiction of the court, proceeding quasi in rent against the at- tached property. Thornley v. Lawbaugh, 47: 1127, 143 N. W. 348, N. D. . (Annotated) ATTEMPT ATTORNEY IX FACT. 201 ATTEMPT. To commit crime, see CRIMINAL LAW, I. c. Of convict to escape, see CRIMINAL LAW, 237; EVIDENCE, 2423. To agree *as prerequisite to condemnation proceedings, see EMINENT DOMAIN, 123, 124. To discharge revolver, see EVIDENCE, 2398. To commit suicide, see SUICIDE, 2. Sufficiency of proof of, see EVIDENCE, 2392, 2398, 2423. Evidence admissible on prosecution for as- sault with attempt to commit sodomy, see EVIDENCE, 1911. ATTENDANCE. At school, aee SCHOOLS, I. b. ATTESTATION. Of writ of error, see APPEAL AND ERROR, 119-121. Of deed, see DEEDS, 4; ESTOPPEL, 252. Of will, see WILLS, I. b. ATTESTATION CLAUSE. See WILLS, 38. ATTESTING WITNESSES. See SUBSCRIBING WITNESSES. ATTORNEY GENERAL, Jurisdiction of action by, see COURTS, 215. Right of governor to require attorney gen- eral to examine witnesses, see GOVERN- OR, 3. Power of, to remove municipal officers, see OFFICERS, 60, 61, As proper party defendant in suit to re- strain enforcement of statute, see PARTIES, 167. As necessary party to action to enforce a public right, see PARTIES, 106. Quo warranto, see Quo WARRANTO, 6, 13. Injunction to restrain enforcement of stat- ute by, see STATE, 21-23. 1. As the chief law officer of the state, the attorney general is clothed and charged with all the common-law powers and duties pertaining to his .office, except as limited by statute. State v. Ehrlick, 23: 691, 64 S. E. 935, 65 W. Va. 700. 2. The attorney general of a state pos- sesses, in addition to the authority express- ly conferred upon him by statute, all com- mon-law powers incident to and inherent in the office. State ex rel. Young v. Robinson. 20: 1127, 112 N. W. 269, 101 Minn. 277. Digest 1-52 L.R.A.(N.S.) 3. A proceeding for the examination of witnesses under the provisions of a pro- hibitory liquor law (Gen. Stat. 1909, 4366) is a matter before an officer, in which the state is interested; and when required by the governor the attorney general has no discretion to refuse to prosecute in such a proceeding. State ex rel. Stubbs v. Daw- son, 39: 993, 119 Pac. 360, 86 Kan. 180. Right to bring suit. As proper party to invoke power of courts over administration of charitable trust, see CHARITIES, 60. Construction of statute as to duty of at- torney general to prosecute at request of governor, see STATUTES, 257. See also STATE, 10-12, 14. 4. In the absence of any statutory pro- vision to the contrary, the attorney general has the management and control of civil litigation on behalf of the state. State v. Ehrlick, 23: 691, 64 S. E. 935, 65 W. Va. 700. 5. The attorney general of a state has, in the absence of a statute forbidding him to do so, power to institute proceedings in the name of the commonwealth, to en.ioin the commonwealth, to enjoin the mainte- nance of a public nuisance. Com. ex rel. Breathitt v. Respass, 21: 836, 115 S. W. 1131, 131 Ky. 807. 6. Statutory authority to the attorney general to prosecute all actions in the su- preme court in which the state shall be in- terested or a party, and to appear for the state in any circuit court whenever request- ed by the governor or either branch of the legislature to do so, does not empower him, Without the request of the governor or leg- islature, to institute in the circuit court an action to annul the franchise of a private corporation. State v. Milwaukee Electric R. & L. Co. 18: 672, 116 N. W. 900, 136 Wis. 179. ( Annotated ) 7. An attorney general may, on behalf of the state, maintain an action in equity to enjoin common carriers whose rates are fixed by law, from violating the terms of a statute and exacting unlawful and excessive rates. State v. Pacific Exp. Co. 18: 664, 115 N. W. 619, 80 Neb. 823. (Annotated) 8. The attorney general may properly appear in a proceeding to test the right of a corporation to engage in the practice of the law. Re Co-operative Law Co. 32: 55, 92 N. E. 15, 198 N. Y. 479. 9. The attorney general may maintain a suit to enjoin a municipal corporation from emptying sewage into a stream in such a manner as to constitute a public nuisance. Bird ex rel. Emmons v. Grand Rapids, 50: 473, 141 N. W. 890, 175 Mich. 503. ATTORNEY IN FACT. Special deposit by, see BANKS, 218. Execution of deeds by attorney in fact, see DEEDS, 6. Acknowledgment of deed executed by attor- nev in fact, see ACKNOWLEDGMENT, C. 202 ATTORNEYS. ATTORNEYS. /. Right to practise; control of court, 1-31. a. Admission, 14. b. Disbarment or suspension, a 29. c. License. d. Control of court generally, 3O, 31. II. Relation to client, 3288. a. In general; liability, 3241. b. Authority, 42-49. c. Compensation; lien, 5OS6. 1. In general; amount of, SO 63. 2. Lien for; rights in fund or property, 64 86. d. Summary proceedings, 87, 88. III. Remedies against; motions. Taking by, of acknowledgment, see AC- KNOWLEDGMENT, 1. As friend of court, see AMICUS CUBI^E. Effect of executing appeal bond in names of, see APPEAL AND ERROR, 147. Participation of special attorney in prose- cution for homicide, see APPEAL AND ERROR, 362. Relation of judge to attorney in the case, see APPEAL AND ERROR, 363; JUDGES, 10-12. Contempt of, see APPEAL AND ERROR, 1603; CONSTITUTIONAL LAW, 551; CONTEMPT, 9, 10, 29, 30, 102. Argument of, see APPEAL AND ERROR, VII. in, 5; NEW TRIAL, 12, 13; TRIAL, I. d. Review of discretion in limiting time al- lowed counsel for argument to jury, see APPEAL AND ERROR, 640, 641. Appearance by, see APPEARANCE. Agreement between law partners one of whom is prosecuting attorney to divide salary of office, see ASSIGNMENT, 9; CONTRACTS, 417. Sufficiency of attachment based upon affi- davit of, see ATTACHMENT, 25. As to attorney general, see ATTORNEY GEN- ERAL. Deposit of money by, in bank in his own name as "attorney," see BANKS, 65- 67. Right of prosecutrix in bastardy proceeding to retain private counsel, see BASTARDY, 3. Appointment of special attorney to prose- cute infringements of liquor law, see CONSTITUTIONAL LAW, 72. Validity of contract with, see CONTRACTS, 465-471, 515, 516, 610. Duty to give security for costs, see COSTS AND FEES, 10. Right of accused to consult with his attor- ney, see CRIMINAL LAW, 78-81. Serving notice of application to discontinue action on defendant instead of an attor- ney, see DISMISSAL OR DISCONTINU- ANCEJ 8. Estoppel of, see ESTOPPEL, 242. Accounts kept by, as admissions of client against interest, see EVIDENCE, 799, 800. Digest 1-52 L.R.A.(N.S.) Proof of foreign law by member of bar of foreign jurisdiction, see EVIDENCE, 1135. Evidence as to attorney's opinion concern- ing title to personalty, see* EVIDENCE, 1205. Admissions of, as evidence, see EVIDENCE, 1254, 1255. Confidential communications to, see EVI- DENCE, 1282, 1296-1306, 1338. Letters by wife's attorney to husband as confidential communications, see EVI- DENCE, 1316. Advice of attorney as defense in action for false imprisonment, see FALSE IM- PRISONMENT, 46, 47. Power of married woman to employ, see HUSBAND AND WIFE, 37. Right to invade insane asylum in profes- sional capacity, see INCOMPETENT PER- SONS, 20. Presence of, in grand jury room, see INDICT^ MENT, ETC., 138, 140. Enjoining suit against attorney collecting judgment, see INJUNCTION, 263. Right of attorney to whom client has as- signed interest in action to attack judg- ment because of perjured testimony, see JUDGMENT, 141. Collusiveness of judgment as to, see JUDG- MENT, 226. *~~ Failure of, to prepare or serve answer as ground for opening judgment, see JUDG- MENT, 350, 352. Vacating judgment for mistake of, see JUDG- MENT, 381, 382. Imputing to attorney knowledge of defects in Itgal proceedings taken under his direction, see JUDICIAL SALE, 0. Relation of attorney and client between juror and party, see JURY, 64. Liability for use and occupation of attor- ney taking possession of leasehold of debtor, see LANDLORD AND TENANT, 183, 184. Slander of, see LIBEL AND SLANDER, 52. Libel or slander by, see LIBEL AND SLANDER, 104, 125; TRIAL, 275. Delay in instituting suit caused by inter- ference by stranger with attorneys, see LIMITATION OF ACTIONS, 16. Advice of counsel as defense to action for malicious prosecution, see MALICIOUS PROSECUTION, 10-] 2. Notice to attorney as notice to client, see NOTICE, 22, 23. Notice to special attorney as notice to gen- eral attorney, see NOTICE, 22. Eligibility to office of county attorney, see OFFICERS, 9. Clients as necessary parties plaintiff in ac- tion of attorney for their benefit, see PARTIES, 150. Compensation for services rendered by phy- sician to lawyer in examination of his client, see PHYSICIANS AND SURGEONS, 33, 34. Power of attorney, see PRINCIPAL AND AGENT, 46-49. (.2.91). A. A.J S8 I t-si-I ATTORNEYS, I. a, b. 203 Effect of slight indulgence to maker by attorney charged with collection of note, on surety's liability, see PRINCI- PAL AND SURETY, 53. Acting under advice of counsel in infring- ing trademark, see TRADEMARKS, 28. Power of court to compel disclosure of facts by counsel, see TIUAL, 4. Competency as witness, see WITNESSES, 9. I. Bight to practise; control of court. Right of corporation to practise law, see ATTORNEY GENERAL, 8; CORPORATIONS, 13. Validity of statute forbidding solicitation of business by, see CONSTITUTIONAL LAW, 433. a. Admission. (See also same heading in Digest L.R.A. 1-10.) 1. The power to admit applicants to the practice of the law is judicial, and not legislative. Hanson v. Grattan, 34: 240, 115 Pac. 646, 84 Kan. 843. 2. A legislative requirement that per- sons possessing certain qualifications shall be admitted to practise law does not violate the constitutional or inherent prerogatives of the court. Re Applicants for License to Practise Law, 10: 288, 55 S. E. 635, 143 N. C. 1. (Annotated) 3. The court cannot inquire into the character of an applicant ,for admission to the bar, under a statute providing that ap- plicants shall be of certain age and file a certificate of character, and that all appli- cants who shall satisfy the court of their competent knowledge of the law shall re- ceive licenses to practise. Re Applicants for License to Practise Law, 10: 288, 55 S. E. 635, 143 N. C. 1. 4. When an applicant is legally admit- ted to the practice of law, he becomes there- by an officer of the court for the term of his life, or until he shall have been dis- barred by the judgment of a court of com- petent jurisdiction. Hanson v. Grattan, 34: 240, 115 Pac. 646, 84 Kan. 843. Z>. Disbarment or suspension. (See also same heading in Digest L.R.A. 1-10.) Statute requiring attorney to prosecute dis- barment proceedings without fees, see infra, 51. Nature of action for disbarment, aee ACTION OR SUIT, 60. Review on appeal of judgment of disbar- ment, see APPEAL AND ERROR, 973. Statute as to disbarment as encroachment on judicial powers/ see CONSTITUTION- AL LAW, 131. Contempt by disbarred attorney, see CON- TEMPT, 29, 30, 102. Sufficiency of evidence to sustain judgment of disbarment, see EVIDENCE, 2315. Digest 1-52 L.R.A.(N.S.) i Disqualification of judge to sit at disbar- ment proceedings, see JUDGES, 19. Institution of disbarment proceedings by commonwealth's attorney, see STATE, 14. 5. An attorney at law who has been legally called upon to give testimony or produce evidence tending to establish that he received a bribe is not granted immunity from disbarment therefor by a constitu- tional provision that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on -account of any trans- action, matter, or thing concerning which he may so testify, or produce evidence," as such provision relates only to criminal ac- tion, and an action for disbarment is a civil proceeding. Re Biggers, 25: 622, 104 Pac. 1083, 24 Okla. 842. 6. The appellate court which has power to admit an attorney to practice has in- herent original jurisdiction to suspend or disbar him for offensive language directed towards it in a petition for a rehearing. Re Robinson, 15: 525, 92 Pac. 929, 48 Wash. 153. Grounds for. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 131. Disbarment of attorney because of convic- tion of felony as cruel and unusual punishment, see CRIMINAL LAW, 238. See also infra, 27-29. 7. An attorney cannot be disbarred for lending money on usury, if the taking of usury is not an offense against the law. People ex rel. Chicago Bar Asso. v. Wheeler, 45: 1202, 102 N. E. 188, 259 111. 99. 8. An attorney has the right, in com- mon with every citizen, to comment upon and criticize, without any restriction, the rulings of a judicial officer in an action which has been finally determined, and is not answerable therefor otherwise than in an action triable by jury, unless the com- ment or criticism is so base and vile as to establish clearly his bad character and his unfitness to remain a member of an honor- able profession, in which case his conduct may be considered a sufficient cause for dis- barment. Re Hart, 17: 585, 116 N. W. 212, 104 Minn. 88. (Annotated) 9. An attorney, in exercising his right to' comment upon and criticize the rulings of a judicial officer, is guilty of professional misconduct for which he may be disbarred or suspended, where he addresses to the chief justice of the supreme court a per- sonal letter impugning both the intelligence and the integrity of the chief justice and his associates, in the decision of certain appeals then fully ended and in which he had been attorney for the defeated litigants. Re Hart, 17: 585', 116 N. W. 212, 104 Minn. 88. 10. The entry upon his records by the trial judge, after reversal of his decision by the supreme court, of a statement that the supreme court made a statement of facts not supported by the record for the purpose of bolstering up a decision, neither founded on law nor supported by facts, its opinion be- 204 ATTU1LNEVS, i. b. ing an abnormally strange document, and a reversal of a decision that had been ac- cepted law for forty years; all of which was reprehensible if the court knew what it was doing, pitiful if it did not, is such a violation of his duty as an attorney and officer of the supreme court as to justify his suspension or disbarment, although he de- clares under oath that he meant no disre- spect for that court, and the matters on which the statement by the supreme court was based came to its attention during the argument of the case before it, of which fact the trial judge was ignorant. Re Breen, 17:572, 93 Pac. 997, 30 Nev. 164. (Annotated) 11. An attorney who states in a petition for a rehearing that it is commonly reported that the court was controlled by political motives in its decision in the case, and suggests that in order to relieve itself from such slanderous rumors it should en- tertain the petition and that the petition need not become public property, violates his statutory duty to maintain due respect to the court and to abstain from offensive personality, and is guilty of an attempt to intimidate the court into a favorable de- cision, although he himself disavows his be- lief in the truth of the scandalous ,state- ments and of any intention to reflect on the court. Re Robinson, 15: 525, 92 Pac. 929, 48 Wash. 153. (Annotated) 12. The legislature may authorize the disbarment without a trial by jury, of an attorney at law, for soliciting business. State ex rel. Mackintosh v. Rossmari, 21: 821, 101 Pac. 357, 53 Wash. 1. 13. An attorney at law who procures ad- mission to practise and has himself en- rolled in the courts of one state, without disclosing a previous disbarment for fraud and deceit in another state, is thereby guilty of practising such deceit on the ad- mitting court as to require his disbar- ment, under a statute providing that an attorney who is guilty of deceit, or con- sents thereto with intent to deceive a court or judge, is liable to be disbarred. Re Mosher, 24: 530, 102 Pac. 705, 24 Okla. 1. (Annotated) 14. Courts have no inherent power to dis- bar an attorney for conviction of crime in a foreign jurisdiction where the legislature has expressly provided what convictions shall result in disbarment, which do not in- clude those in foreign jurisdictions. State V. Ebbs, 19: 892, 63 S. E. 190, 150 N. C. 44. 15. Conviction in another jurisdiction is not within the provision of a statute declar- ing that an attorney must be disbarred upon his conviction of a crime punishable by im- prisonment in the penitentiary, and permit- ting his disbarment if he shall have been convicted in open court of some criminal offense showing himself unfit to be trusted. State v Ebbs, 19 '. 892, 63 S. E. 190, 150 N. C. 44. (Annotated) 16. A justice's court conviction for petit larceny affords sufficient ground for disbar- ment under a statute providing that an at- torney at law may be disbarred for and on Digest 1-52 L.R.A.(N.S.) account of his conviction of a felony or mis- demeanor involving moral turpitude. Re Henry. 21 : 207, 99 Pac. 1054, 15 Idaho, 755. lOa. Moral turpitude for conviction of an oil'ciisi 1 involving which an attorney may In- disbarred, is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty be- tween man and man. Re Ih-ury, 21:207, 99, Pac. 1054, 15 Idaho, 755. 17. The commission of the crime of petit larceny involves moral turpitude, with- in the meaning of a statute providing for the disbarment of an attorney at law for and on account of his conviction of a fel- ony or misdemeanor involving moral turpi- tude. Re Henry, 21:207, 99 Pac. 1054, 15 Idaho, 755. 18. Under a statute providing, in effect, that an attorney shall not be disbarred for the commission of an offense against a criminal statute until after conviction, where the offense was not connected with any act of wilful disobedience, or violation of an order of court requiring him to do or forbear any act connected with the line of his profession, or related to his duties as an attorney ; and providing further, in effect, that there shall be no disbarment for any act involving moral turpitude not connected with any professional duty, if such act is not one for which a prosecution and con- viction lies, an attorney cannot be dis- barred for having obtained state examina- tion questions and sold them to prospec- tive applicants in advance of the examina- tion, thereby enabling incompetent persons to prepare for the examination and fraudu- lently secure certificates to teach school, where it is neither charged that the at- torney has been indicted and convicted therefor, nor that the acts constitute a vio- lation of any statute. Re Saddler, 44: 1195, 130 Pac" 906, 35 Okla. 510. 19. The wrongful detention of a portion of the purchase price of real estate by an attorney while acting as agent for the sale thereof constitutes a sufficient ground for his disbarment, although he may not have been called upon to give legal advice, or to take part in litigation. Re Wilson, 21: 517, 100 Pac. 635, 79 Kan. 674. 20. Gross carelessness in failing to keep books and accounts of clients, and in mis- representing the facts to clients because of failure to know the truth with respect to them, as his duty requires, is not sufficient to require the disbarment of an attorney. Re Robertson, 36: 442, 132 N. W. 684, 28 S. D. 70. 21. Immoral conduct is no ground for disbarring an attorney where for several years after it occurred he has lived an exemplary life. Re Sherin, 40: 801, 130 X. W. 761, 133 X. W. 701, 27 S. D. 232. 22. Publishing advertisements in other states, and sending pamphlets there, for the purpose of attracting their citizens to the state for the purpose of instituting divorce ATTORNEYS, I. t II. a. 205 proceedings in its courts, and giving em- < ployment to the one doing the advertising, is misconduct on the part of an attorney within the meaning of a statute permitting j his disbarment or suspension therefor. Re ; Schnitzer, 33: 941, H2 Pac. 848.. 33 Nev. 581. (Annotated) 23. An attorney bringing a suit for di- vorce upon the identical pleadings upon . which, after full hearing, another court of > concurrent jurisdiction has dismissed the | suit for want of equity, is bound to disclose j that fact to the court, under penalty of dis- j ba'rment or suspension for failure to do so. I People ex rel. Mealy v. Case, 25: 578, 89 N. i E. 638, 241 111. 279. 24. Threatening a man who had deserted his wife and was living in adultery with ' another woman in another state, with crim- inal prosecution and extradition unless he secured the release of an attachment of property left by him in the state, under a note which he had given his paramour, and gave his wife a bill of sale, and paid her the sum of money to which she was justly entitled, is extortion for which an attorney may be disbarred, where the stat- ute defines extortion as obtaining property from another with his consent, induced by the wrongful use of force or fear. Re Sherin, 40: 801, 130 N. W. 761, 27 S. D. 701, 27 S. D. 232. ( Annotated) i Practice as to. 25. Disbarment proceedings should not j be begun against an attorney for a crime not connected with his work as an attorney, until after the matter has been disposed of by a proper criminal proceeding. Re Sherin, 40: 801, 130 N. W. 761, 133 N. W. 701, 27 S. D. 232. What will preclude; defenses. 26. Ceasing advertising for divorce busi- ness among nonresidents upon complaint of the bar association may, in case of a first delinquency, be ground for leniency on the part of the court in fixing punishment there- for. Re Schnit/er, 33: 941, 112 Pac. 848, 33 Nev. 581. 27. The attempt on the part of an at- torney to inform the judg: before whom he has brought a suit for divorc?, that another judge had dismissed a bill alleging the same facts on the merits after a hearing, if it is made out of court and fails because of that fact, will not condone his offense of failure to inform the judge of such dismissal in open court, so as to absolve him from punishment for his fraud upon the court. People ex rel. Healy v. Case, 95: 578, 89 N. E. 638, 241 111. 279. 28. A constitutional provision that all attorneys at law licensed to practise in any of the United States courts for the Indian territory, shall be eligible to practise in any court of the state of Oklahoma without examination does not preclude the supreme court from inquiring into the circumstances of a fraud practised on the Federal court which admitted an attorney to practise in the territory before the adoption of the Constitution, or prevent his disbarment Digest 1-52 L.R.A.(N.S.) therefor. Re Mosher, 24: 530, 102 Pac. 705, 24 Okla. 61. 29. A pardon of an attorney convicted of forgery will not prevent his being dis- barred where evidence of good moral character is necessary to an attorney's li- cense, and the courts have inherent power to disbar for want thereof, although the pardon releases him from all liability and consequences of the conviction, and the stat- ute provides that no person convicted of felony shall be permitted to practise law, on the theory that the statute creates a li- ability connected with the offense which is released by the pardon, since the pardon does not restore the character. Nelson v. Com. 16: 272, 109 S. W. 337, 128 Ky. 779. (Annotated) c. License. (See same heading in Digest L.R.A. 1-70.) d. Control of court generally. 30. The court cannot by ex parte order require the publisher of a newspaper, al- though he is also an attorney at law, to justify in open court an article in which he raises a suspicion that the jury was bribed in an action tried before the court, where the information may necessitate the naming of persons in good standing be- fore the community, and subject the pub- lisher to libel suits. Warren v. Connolly, 33: 314, 130 N. W. 637, 165 Mich. 274. 31. An attorney cannot complain of he imposition of a fine upon him for ignoring rulings of the court that he cannot put a certain kind of questions to witnesses. Grant v. State, 42: 428, 148 S. W. 760, Tex. Grim. Rep. . //. Relation to client. a. In general; liability. (See also same heading in Digest L.R.A. 1-10.) Stipulation for dismissing appeal without aid of counsel, see APPEAL AND ERROR, 388. Right of accused to consult with his at- torney, see CRIMINAL LAW, 78-81. Estoppel to maintain action to compel de- livery of documents by attorney, see ESTOPPEL, 199. Confidential communications to, see EVI- DENCE, 1282, 1296-1306, 1338. Attorney's purchase for resale of subject- matter of employment, see EVIDENCE, 268. Validity of employment of attorney by mu- nicipality, see MUNICIPAL CORPORA- TIONS, 242. Right of attorney, after relations with client have ceased, to purchase client's land at foreclosure sale, see TRUSTS, 54. 32. An attorney in hac re cannot sus- tain a purchase from a client of the subject- 206 ATTORNEYS, 11. b. matter of the retainer, where it that during the course of his employment he formed an opinion that the property was more valuable than had theretol'ore. beeji as- sumed, which opinion he failed to disclose, since by such silence he failed to give his client all that reasonable advice against himself that he would give against a third person. Crocheron v. Savage (N. J. Err. & App.) 23: 679, 73 Atl. 33, 75 N. J. Eq. 589. (Annotated) 33. An attorney in whose name his client has placed property for the purpose of defrauding the creditors of the client cannot refuse to comply with his agreement to return it, on the theory that the parties being in pari delicto, equity will leave them where it finds them. Lindsley v. Cald- well, 37: 161, 137 S. W. 983, 234 Mo. 498. 34. An attorney who makes a collection for another, there being no special agree- ment as to service, should remit the pro- ceeds to his client, less his reasonable charges, within a reasonable time, or noti- fy the latter of readiness to pay. Ott v. Hood, 44: 524, 139 N. W. 762, 152 Wis. 97. 35. An attorney who has received a sum of money to prosecute a suit to judg- ment may withdraw from the case without returning the money, if although he has performed services worth all he has re- ceived the client falsely charges him in a / telegram with deceiving, lying, and negJect- ing him, and states that he does not in- tend to stand his abuse any longer. Gen- row v. Flynn, 35: 960, 131 N. W. 1115, 166 Mich. 564. (Annotated) Termination of relation. 36. An attorney at law employed for an indefinite period, and for a contingent fee, is a mandatory whose power is revocable, as it is not coupled with an interest in the cause of action; and the principal may ter- minate the relationship of attorney and client at will. Louque v. Dejan, 38: 389, 56 So. 427. 129 La. 519. (Annotated) 37. Where a party to an action dies after judgment, the agency and authority of his attorney is at once terminated, and the attorney must obtain his employment and authority from a legal representative of the estate of such deceased person be- fore he can prosecute an appeal in the case. McCornick v. Shaughnessy, 34: 1188, 114 Pac. 22, 19 Idaho, 465. (Annotated) Liability. Condition precedent to action against at- torney by client, see ACTION OB SUIT, 30. Condition of right to defend on merits, ac- tion to recover money collected, see CONSTITUTIONAL LAW, 579. Liability to infant for money turned over to next friend, see ELECTION OF REME- DIES, 21; INFANTS, 113. Evidence to show intent of attorney in giving forged note to client, see Evi- DKXCE. 1634. Liability for interest on amount collected for minor and paid to his father, where latter fails to account, see INTEREST, 43. Digest 1-52 L.R.A.(N.S.*) Iviinning of limitations against liability, MV LIMITATION OF ACTIONS, 114, 155, 173175. I'leadiiiir in action against, see PLEADING, 389. Sufficiency of replication of fraudulent con- cealment to plea of limitation in suit against attorney for. negligence, see PLEADING, 551. What is reasonable time to allow attorney to pay over money collected by him for client, see TRIAL, 207. 38. Fraud is not necessary to render an attorney liable for wrongfully dismissing his client's action. Cornell v. Esden, 51: 279, 139 Pac. 602, 78 Wash. 662. 39. In defense of a claim by the admin- istrator of a child for money recovered in a suit by the administrator for the negli- gent killing of the child, which, under the statute, is solely for the benefit of the child's parents, the attorney may show that he paid the money to assignees of the parents and in satisfaction of attorneys' liens which might have been asserted against the money in his hands, notwithstanding the statute provides that every attorney receiv- ing money for his client, and refusing to pay the same when demanded, shall be proceeded against in a summary way, and be subject to interest and penalties. White v. Ward, 18: 568, 47 So. 166, 157 Ala. 345. 40. An attorney proceeded against sum- marily under a statute for failure to pay over money collected for his client is not deprived of the right to defend on the merits in case he fails to pay the money into court, by a provision of the statute that he may avoid interest and penalty by payment of the money into court to await judgment. White v. Ward, 18: 568, 47 So. 166, 157 Ala. 345. 41. If an attorney makes misrepresenta- tions to his client as to whether he has col- lected money for the latter, whereby such client, in reasonable reliance thereon, fails seasonably to invoke the law for recovery thereof, thus permitting the right thereto to be extinguished by the statute of limita- tions, a cause of action accrues in favor of the client against his attorney for damages for such injury. Ott v. Hood, 44: 524, 139 N. W. 762, 152 Wis. 97. b. Authority. (See also same heading in Digest L.R.A.. 1-10.) Revocation or termination of authority, see supra, 36, 37. Payment by bank of draft indorsed by pay- ee's attorney, see BANKS, 137. Authority to make demand for dower, see CONTRACTS, 255; DOWER, 36. Presumption as to authority, see EVIDENCE, 180. Estoppel of client by mistake f attorney, see INSUBANCE, 549. For infants, authority to satisfy judgment, see JUDGMENT, 314. (.a.Tt).A.k.J S?. f ATTORNEYS, II. c, 1. 2U7 Estoppel to deny authority to represent one in action, see JUDGMENT, 336. To satisfy judgment against municipality, see MUNICIPAL CORPORATIONS, 250. 42. The attorney appointed by the guardian ad litcm to prosecute a suit for a minor has authority to satisfy the judg- ment. State ex rel. Lane v. Ballinger, 3: 72, 82 Pac. 1018, 41 Wash. 23. ( Annotated) 43. The employment of an attorney to conduct a trial to final termination in the nisi prius court does not authorize him to appeal from an adverse decision or bind his client for the cost of a transcript of evi- dence to be used for that purpose. Tobler T. Nevitt. 23: 702, 100 Pac. 416, 45 Colo. 231. (Annotated) To settle or make final disposition of suit. Collateral attack on compromise of action by attorney, see COMPROMISE AND SET- TLEMENT, 10. Vacation of order of dismissal entered pur- suant to unauthorized compromise by attorney, see JUDGMENT, 337. Relief from judgment entered upon unau- thorized consent of attorneys, see JUDG- MENT, 344, 345. Running of limitations against right of ac- tion because of wrongful dismissal of action by attorney, see LIMITATION OF ACTIONS, 175. See also infra, 52. 44. Under his general authority, an at- torney has the exclusive control of the rem- edy, and he may discontinue the action by a dismissal without prejudice, and his client is bound by his act. Bacon v. Mitchell, 4: 244, 106 N. W. 129, 14 N. D. 454. (Annotated) 45. An attorney, under his general re- tainer, has no implied power to settle and compromise his client's cause of action, except when confronted with an emergency, and prompt action is necessary to protect the interests of the client, and there is no opportunity for consultation with him. Gibson v. Nelson, 31: 523, 126 N. W. 731, 111 Minn. 183. (Annotated) 46. One dealing with an attorney is bound to take notice of the extent of the attorney's authority or lack of authority to compromise his client's caue of action, and therefore cannot be heard to say that he, acting with the attorney for the adverse party, compromised a cause of action in good faith and before notice that it had been discontinue! by the party himself. Gibson v. Nelson. 31: 523, 126 N. W. 731, 111 Minn. 183. 47. A general retainer authorizes an at- torney to do anything fairly pertaining to the prosecution of his client's cause, but not to surrender or compromise away his client's substantial rights; and therefore, an attorney employed by the agent of a landlord to collect rent has no authority, by virtue of such general employment, to compromise a suit brought on such claim, and surrender the claim for rent, and agree that the defendant be paid a certain sum Digest 1-52 !L.R>A.(N.S.) on a cross petition filed by him. Turner v. Fleming, 45: 265, 130 Pac. 551, 37 Okla. 75. 48. An attorney is not empowered by Minn. Rev. Laws 1905, 2283, providing that an attorney may bind his client at any stage of the action by an agreement made in ooen court, or in the presence of the clerk, and entered in the minutes of the court, or by a writing signed by him, to compromise and settle his client's cause of action without consulting the client, where there is no emergency, and the client's in- terests do not demand immediate attention, and the client is near at hand and accessi- ble. Gibson v. Nelson, 31 : 523, 126 N. W. 731, 111 Minn. 183. To enter retraxit. 49. An attorney cannot without author- ity enter a retraxit in a suit on a promis- sory note, so as to bar the plaintiff from commencing another suit. Shefler v. Per- kins, 25: 1313, 75 Atl. 6, 83 Vt. 185. ( Annotated ) c. Compensation; lien. 1. In general; amount of. (See also same heading in Digest L.R.A. 1-10.) Charge for services accepted by client as account stated, see ACCOUNTS, 8. Review of discretion of trial court as to amount of fees to be allowed, see AP- PEAL AND ERROR, 572. Motion to require election between counts in suit for compensation, see APPEAL AND ERROR, 651. * Liability on injunction bond for attorney's fees, see APPEAL AND ERROR. 699; IN- JUNCTION, 432-434. Validity of statute allowing attorneys' fees in mechanics' lien case, see APPEAL AND ERROR, 739. Counsel fees in action for divorce, see AP- PEAL AND ERROR, 987; DIVORCE AND SEPARATION, 91, 101-106. Review of decision of referee in suit for compensation, see APPEAL AND ERROR, 1010. Stipulation in contract for attorney's fees to be added to obligation, see ATTOR- NEYS' FEES. Recovery of attorney's fees in suit on at- tachment bond, see ATTACHMENT, 35. Allowance to attorney of trustee in bank- ruptcy, see BANKRUPTCY, 128. Validity of note given in consideration of services in procuring divorce, see BILLS AND NOTES, 17. Champerto-us agreement between attorney and client, see CHAMPERTY AND MAIN- TENANCE, II. Including attorney's fee in penalty for fail- ure of railroad to pay claim within cer- tain time, see CONSTITUTIONAL LAW, 566. Contempt in failing to pay attorneys' fees, see CONTEMPT, 08. 208 ATTORNEYS, II. c, 1. Acceptance by disbarred attorney of fee for services as contempt, see CONTEMPT, 30, 102. Liability for counsel fee of lessee agreeing to pay cost of conveyance of fee to him, see CONTRACTS, 379. Public policy as to contract affecting, see CONTRACTS, 405-471. Recovery on i/mnitiim nicruit \vherecontract for services is void, see CONTRACTS, 611, 912. Recovery of attorney's fees, in action for contribution, see CONTRIBUTION AND IN- DEMNITY, 9. Liability of corporation for legal services rendered before incorporation, see COR- PORATIONS, 117. Counsel fees as element of costs, see COSTS AND FEES, 23-32. Allowance for attorneys as element of dam- ages without any stipulation therefor, see DAMAGES, 111. r. Recovery of expense incurred for fees of, in preparing for trial, on dismissal thereof, see DISMISSAL AND DISCON- TINUANCE, 6. Admissibility in action for, of declarations of client, since deceased, see EVIDENCE, 1390. Liability of estate for fees of attorneys, see EXECUTORS AND ADMINISTRATORS, 66, 101, 102, 119-121; PLEADING, 179. Right of attorney to surcharge account of administrator in which attorneys' fees are allowed, see EXECUTORS AND AD- MINISTRATORS, 131. Liability of surety on administrator's bond for, see EXECUTORS AND ADMINISTRA- TORS, 131. Surcharging executor's account for over- payment of counsel fees, see EXECUTORS AND ADMINISTRATORS, 128, 129. Right to issue execution to secure attorney's fee for services, see EXECUTION, 5. Liability of husband for wife's attorneys' fees in divorce suit, see HUSBAND AND WIFE, 3, 4. Right to recover for services in securing re- lease of person from insane asylum, see INCOMPETENT PERSONS, 7. Liability of infant for legal services, see INFANTS, 56, 65, 66. Taxation of attorneys' fees against defend- ant in injunction suit, see INJUNCTION, 97. Liability for counsel fees under guaranty insurance policy, see INSURANCE, 911. In action to annul marriage, see MARRIAGE, 28-30, 44. Liability of church for attorneys' fees, see RELIGIOUS SOCIETIES, 17. Recovery of attorneys' fees in action on re- plevin bond, see REPLEVIN, 30. Instruction in action by attorney to re- cover' compensation, see TRIAL, 1012. Recovery of attorneys' fees upon counter- claim in replevin action, see SET-OFF AND COUNTERCLAIM, 12. 50. An agreement of .a client involving the payment of a lump sum to his attorneys for services in securing a divorce and set- Digest 1-52 L.R.A.(N.S.) tling his wife's claim for alimony is invnlid when made after terms of settlement havp been agreed to by the wife, and that fact is not disclosed to the client. Donaldson v. Eaton, 14: 1168, 114 N. W. 19, 136 Iowa, 650. 51. No constitutional right of an at- torney is infringed by a statute requiring him to prosecute disbarment proceedings by direction of the court without fees. Brown v. Warren Countv. 42: 527, 135 N. W. 4, 137 N. W. 474, 156' Iowa, 20. ( Annotated) 52. An attorney who compromises his client's case against the latter's express direction is not entitled to any compensa- tion. Rogers v. Pettigrew, 42: 852, 75 S. E. 631, 138 Ga. 528. (Annotated) 53. An attorney who impliedly debars himself, under the terms of a general re- tainer, from employment by others whose interests are antagonistic to those of his clients, may recover a retaining fee in a suit for services rendered under such general employment. Mellon v. Fulton, 19: 960, 98 Pac. 911, 22 Okla. 636. (Annotated) 54. In the absence of a contract, ex- press or implied, between attorney and client, fixing the stipulated percentage which the payee is entitled to recover from the payor, in case of default and the pla- cing of the note in the hands of an attor- ney for collection, as the compensation which the attorney is to receive, the attor- ney is entitled to recover from his client only the reasonable value of his services. Rogers v. Kemp ( Lumber Co. 31:594, 137 Pac. 586, 18 N. M. 300. (Annotated) 55. Only a reasonable compensation for attorney's services can be charged against a fund recovered in a stockholders' action for the benefit of a corporation which has itself refused to sue, in the fixing of which the contingency of success or failure cannot be taken into consideration. Graham v. Dubuque Specialty Mach. Works. 15: 729, 114 N. W. 619, 138 Iowa, 456. (Annotated i 56. The skill, experience, and standing of an attorney in a stockholders' action to reach a fund for the corporation, where a transaction showing want of fidelity in trust relations must be unmasked and con duct inconsistent with business integrity be proven in order to succeed, together with the prominence of the defendants, should be taken into consideration in estimating the value of legal services rendered therein. Graham v. Dubuque Specialty Mach. Works, 15: 729, 114 N. W. 619, 138 Iowa, 456. 57. Two thousand five hundred dollars is a reasonable, compensation for attorney's ser.vices in the recovery of about $9,000 of misappropriated trust funds for the benefit of a corporation, in a litigation extending over several years, from defendants prom inent in the community, the attorney being a lawyer of learning and distinction in pqui ty jurisprudence, of fifty years' experience. Graham v. Dubuque Specialty Mach. Works, 15: 729, 114 N. W. 619, 138 Iowa, 456. 58. A fee of $2,471 for simply negotiating an annulment of a marriage and settle- ment of the amount of alimony, nothing but ATTORNEYS, II. c, 2. 209 a formal trial being contemplated, is grossly exotssive; and a motion to require the at- torney to refund $2,000 of this sum should be granted. Donaldson v. Eaton, 14: 1168, 114 N. W. 19, 136 Iowa, 650. Of attorney appointed to defend in- digent prisoner. Recovery against counties of fees by coun- sel appointed by court to defend per- son accused of crime, see COUNTIES, 16-18, 29. 59. Constitutional provisions entitling a person accused of crime to appear by coun- sel, and forbidding the taking of property for public use without compensation, or the taking of liberty or property without due process at law, do not entitle a person des- ignated by the court to defend an indigent prisoner, to recover compensation for his services from the public. Pardee v. Salt Lake County, 36:377, 118 Pac. 122, 39 Utah, 482. * (Annotated) Contract for contingent fee. Agreement of woman to share alimony with attorney, see APPEAL AND ERROK. 439 ; CONTRACTS, 466. Champertous agreement for, see CHAMPERTY AND MAINTENANCE, 7. Parol contract for, see CONTRACTS, 254, 328. Partial invalidity of contract as to, see CON- TRACTS, 4091 Public policy as to, see CONTRACTS, 468, 467, 470", 516. Recovery on quantum meruit where con- tract for contingent fee is Toid, see CONTRACTS, 611, 612. See also infra, 76, 78, 81-, 83-86. 60. It is not illegal or against public policy for a lawyer to prosecute an action for a client who is unable to pay for his services, or to contract with a client for compensation to be paid out of the amount recovered, and contingent upon recovery. Stevens v. Sheriff, n: 1153, 90 Pac. 799, 76 Kan. 124. 61. An attorney is estopped from claim- ing his contingent fee by bringing the ac- tion in a jurisdiction where the statutes provide for the awarding of attorneys' fees by arbitration, and seeking and accepting the benefit of such provision. Plummer v. Great NoVthern R. Co. 31:1215, 110 Pac. 989, 60 Wash. 214. 62. The death before trial or final settle- ment of the case, of an attorney who has taken a case on a contingent fee, terminates his right to compensation under the con- tract, although his services result in a settlement of the action and payment of a substantial amount to his client, and limits recovery by his estate to the reason- able value of his services only. Sargent v. McLeod, 52: 380, 103 N. E. 164, 209 N. Y. 360. (Annotated) Rights on death of one member of firm. firmed, without allowance to the successors for their labor in the appellate court. Sen- neff v. Healy, 39: 219, 135 N. W. 27, 155 Iowa, 82. 2. Lien for; rights in fund or property. (See also same heading in Digest L.R.A.. 1-10.) Statute as to attorneys' liens as restricting right of contract, see CONSTITUTIONAL LAW, 457. Estoppel to compel delivery of documents on which lien is claimed, see ESTOPPEL, 199. Injunction against enforcement of lien against judgment, see INJUNCTION, 6. Interpleader to determine respective rights of judgment creditor and attorney claiming lien on judgment, see INTER- PLEADER, 7. Right to jury in proceeding to enforce at- torney's lien, see JURY, 3. Special legislation as to, see STATUTES, 164. See also infra, 87, 88. 64. Where securities are given by a client to a solicitor to secure the payment of particular costs, the solicitor's general line is unaffected. Re Morris, 2 B. R. C. 46, [1908] 1 K. B. 473. Also Reported in 77 L. J. K. B. N. S. 265, 98 L. T. N. S. 500. 65. Where a solicitor takes any secur- ity for his general costs which is inconsis- tent with the retention of his general lien, as where he takes security upon property already included in the lien, or a security which gives time, or which gives him a right to interest which would not otherwise be payable, his lien is gone unless he gives the client express notice of his intention to retain it. Re Morris, 2 B. R. C. 46, [1908] 1 K. B. 473. Also Reported in 77 L. J. K. B. X. S. 265, 98 L. T. N. S. 500. ( Annotated ) 66. A statute giving an attorney a lien upon money in the hands of the adverse party in an action or proceeding in which the attorney was employed, from the time of giving notice thereof, applies only to proceedings in the local courts. Plummer v. Great Northern R. Co. 31: 1215, 110 Pac. 989, 60 Wash. 214. (Annotated) 67. No equitable lien upon the fund arises in favor of an attorney who under- takes to protect his client's interest under a will for a percentage of the value of the property recovered. De Winter v. Thomas, 27: 634, 34 App. D. C. 80. (Annotated) An attorney, who is employed by the mother of an illegitimate child to as- sist in the prosecution of bastardy pro- ceedings, under a contract by which he is to be paid an attorney's fee out of the fund recovered, is entitled to a lien upon such 63. The death pending appeal, of one of i fund for his fees. Costigan v. Stewart, several attorneys who have agreed to share a contingent fee to be earned by the success- ful prosecution of a suit, will not deprive his estate of his share of the fee in case the judgment in favor of their client is af- Digest 1-52 L.K.A.(N.S.) ii : 630, 91 Pac. 83, 76 Kan. 353. (Annotated) 69. Under a statute giving an attorney a lien for his services upon money of his client which comes into court because of the 14 210 ATTORNEYS, 11. c, 2. litigation, no part of such money can be withdrawn by the client, where an agree- ment for percentage compensation has been declared invalid, until the true value of the services has been ascertained by a reference. Re Snyder, 14: 1101, 82 N. E. 742, 190 N. Y. 06. 70. Under a statute giving an attorney a lien on the judgment from the time of filing notice thereof, an assignment of the judgment in good faith and without col- lusion, before the lien is filed, frees the judgment from liability to the lien. Hump- tulips Driving Co. v. Burrows, 37: 226, Ii8 Pac. 827, 65 Wash. 636. 71. Money paid to a litigant in settle- ment of a claim is recovered, within the meaning of a statute giving an attorneys' lien. btandidge v. Chicago R. Co. 40: 529, 98 N. E. 963, 254 111. 524. 72. An attorney in whose name stock is placed under the express agreement that he would indorse and turn it over to his client cannpt hold it to compel a settlement of his claim against the client; at least when, to his knowledge, the .stock belongs to a stranger. Lindsley v. Caldwell, 37: 161, 137 S. W. 983, 234 Mo. 498. 73. An attorney waives his right to a statutory lien for his fees where he con- tracts to take a conveyance of land for his fee, and gives no notice of intention to claim a lien under the statute. Stearns v. Wol- lenberg, 14: 1095, 92 Pac. 1079, 51 Or. 88. 74. Courts of law as well as of equity have jurisdiction to enforce attorneys' liens, under a statute providing that any court of competent jurisdiction shall, on petition, adjudicate the rights of the parties and enforce the lien. Standidge v. Chicago R. Co. 40: 529, 98 N. E. 963. 254" 111. 524. 75. A statute permitting attorneys' liens to be enforced in any court of com- petent jurisdiction, by petition filed in the cause of the client wherein the employment is made, does not violate a constitutional requirement of uniform procedure. Stand- idge v. Chicago R. Co. 40: 529, 98 N. E. 963, 254 111. 524. Settlement or dismissal of action by client. Remedy in case of fraudulent attempt to dismiss suit to deprive of, see ACTION OB SUIT, 4. Intent to deprive attorney of compensation by dismissal of action, see PLEADING, 390. Contract forbidding client to settle claim without consent of attorney, see CON- TRACTS, 409, 467-470, 612.. See also DISMISSAL OB DISCONTINUANCE, 7. 76. A client may, if he acts in good faith, settle his claim without consulting his attorney, although, by the agreement between them, the attorney is to receive as a contingent fee for his services a por- tion of the sum recovered. Plummer v. Great Northern R. Co. 31: 1215, 110 Pac. 989, 60 Wash. 214. 77. The court may, for the protection of its officer, set aside a collusive settlement of a suit consummated pursuant to the Digest 1-52 L.R.A.(N.S.) intent of both parties to defraud the at- torney out of his compensation, and permit him to proceed in the case in the name r of his client to final determination, and ascer- tain what is due him for his services when fully performed. Jackson v. Stearns, 5: 390, 84 Pac. 798, 48 Or. 25. (Annotated) 78. Under a written contract made be- tween one claiming a right ol action against a railroad company for damages for personal injuries, and an attorney at law, whereby the latter is to bring suit in the i;ame of the former, and pay all the ex- penses of prosecuting it, and is to receive half the amount recovered, after deducting the expenses, the attorney has no lien upon the cause of action, and is not an equitable assignee of an interest therein, and the claimant has the legal right to compromise the claim and dismiss the action without the consent of the attorney, and the latter is not entitled to continue the action to protect his interests. Boogren v. St. Paul City R. Co. 3: 379, 106 N. W. 104, 97 Minn. 51. (Annotated) 79. An oral agreement by one suing to cancel a satisfied mortgage as a cloud on his title, to transfer to his attorney a por- tion of the property in case of success in the suit, conters upon the attorney no right in the cause of action which the court can protect; and it will not, therefore, if ^he attorney has failed to take the proper steps to perfect his statutory lien, set aside, upon his motion, a dismissal of the action by agreement of the parties to defraud him of his fee, although plaintiff has transferred the property to defendant, and has thereby put it out of his power to comply with his contract. Stearns v. Wollenberg, 14: 1095, 92 Pac. 1079, 51 Or. 88. (Annotated) 80. An attorney has no charging lien for services upon his client's right of action for assault and battery and false imprison- ment before judgment, which will prevent the client from settling the case against his will. Tyler v. Superior Court, 23: 1045, 73 Atl. 467, 30 R. I. 107. 81. Where an action for personal in- juries, in whici. an attorney was employed under a contract by which he was to re- ceive one half of any recovery, after pay- ment of certain expenses, was settled by the client without the knowledge or consent of the attorney, such attorney cannot bring suit in the name of his client for the pur- pose of recovering his fee, although the de- fendant made the settlement after notice of the contract between the attorney and his client. Winslow Brothers Co. v. Murphy, 45: 750, 77 S. E. 25, 139 Ga. 231. (Annotated) 82. Parties to a suit who, although not primarily liable thereon, bring about a set- tlement of the case without consent of the plaintiffs' attorneys, are liable jointly with the primary debtor for the fees of which the plaintiffs.' attorneys are thereby deprived, liigersoll v. Coal Creek Coal Co. 9: 282, 98 S. W. 178, 117 Teim. 263. 83. A defendant who settles an action after the death of plaintiff's attorney, who ..VTi./-..H f .:'-! t.. ATTORNEYS, II. d ATTORN MENT. 211 had taken it upon a contingent fee, is liable under the statute securing the attorney a lien on the cause of action for his services, not for the amount of the contingent fee, but for the reasonable value, of the services rendered. Sargent v. McLeod, 52: 380, 103 N. E. 164, 209 N. Y. 360. 84. An attorney entitled by contract to 50 per cent of the amount recovered by his client for injuries negligently inflicted on him can recover from defendant only one half the amount paid his client, in case of a compromise of the action by an agree- ment to pay the client, a certain amount and the attorney's fee. Schuiitz v. South Covington & C. Street R. Co. 22: 776, 114 S. W. 1197, 131 Ky. 207. (Annotated) 85. The defendant in an action is not pre- vented from questioning the legality of a contract between plaintiffs and their attor- neys as to the fees on the ground that he is not a party thereto, where he is sought to be held for the fees because of having effected 4 compromise of the suit without consent of the plaintiff's' attorneys. Ingersoll v. Coal Creek Coal Co. 9: 282, 98 S. W. 178, 117 Tenn. 263. 86. The illegality of a contract for a contingent attorney's fee, arising from a stipulation that the client shall not com- promise or settle his claim without the con- sent of the attorney, is available as a de- fense in an action against a third party, based on the contract. Davy v. Fidelity & C. Ins. Co. 17: 443, 85 N. E. 504, 78 Ohio St. 256. d. Summary proceedings. (See also same Iteading in Digest L.R.A. 1-10.) 87. One cannot secure a summary order for the delivery by an attorney not em- ployed by him, of papers upon which the attorney claims a lien for services, by offer- ing to pay what is due the attorney under an employment by another litigant. Re Niagara, L. & 0. Power Co. 38: 207, 97 N. E. 33, 203 N. Y. 493. 88. One not entitled to maintain sum- mary proceedings to compel an attorney to deliver papers upon which he claims a lien for services cannot succeed upon the ground that the retention of the papers by the at- torney is improper. Re Niagara, L. & 0. Power Co. 38: 207, 97 N. E. 33, 203 N. Y. 493. ///. Remedies against; motions. (See same heading in Digest L.R.A. 1-70.) ATTORNEYS* FEES. [This title includes only the matter of attorneys' fees added to a recovery upon 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 stip- ulation therefor, see COSTS AND FEES, 23- 32; DAMAGES, III. r.] Provision for, in note as measure of at- torney's compensation for collecting note, see ATTORNEYS, 54. Effect of provision for, in mortgage on ne- gotiable note secured thereby, see BILLS AND NOTES, 62, 63. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 6. Including attorneys' fees in determining amount in controversy, see COURTS, 236, 237. As part of statutory penalty, see PENAL- TIES, 3. Effect of provision for, on negotiability of note, see STATUTES, 334. 1. One foreclosing a mortgage is not entitled to attorneys' fees under a provision thereof that upon foreclosure a specified sum may be recovered as attorneys' fees, which sum was stipulated as reasonable, unless he proves that he agreed to pay his counsel a fixed sum for his services, and the reasonableness thereof, or what would be a reasonable fee in such action, as in such case there is nothing upon which to base a finding as to fees, notwithstanding the validity of the prpvision therefor. Porter v. Monarch, 27: in, 106 Pac. 299, 17 Idaho, 364. 2. Upon foreclosure of a deed of trust which provides for the discharge of the debt evidenced by a certain promissory note and the incerest thereon according to the tenor thereof, both of which instruments were executed at the same time, by the same parties, and in furtherance of the same pur- pose, attorneys' fees should be allowed as rrovided in the note although the trust deed itself does not expressly provide there- for. Armijo v. Henry, 25: 275, 89 Pac. 305, 14 N. M. 181. 3. A guarantor of a note which he is compelled to pay is not entitled to the ben- efit of a provision in the note for payment of attorneys' fees in an action against an accommodation maker, although the stat- ute provides that when the instrument is paid by a person secondarily liable, it is not discharged, but the party by paying is remitted to his former rights as regards all prior parties. Noble v. Beeman-Spauld- ing- Woodward Co. 46: 162, 131 Pac. 1006, 65 Or. 95. ATTORNMENT. Sufficiency of evidence to show reason for attornment to stranger, see EVIDENCE, 2279. an obligation by virtue of a stipulation in To avoid eviction, see GARNISHMENT, 11. Digest 152 L.R.A.(N.S.) 212 ATTRACTIVE NUTS A NCE AUDITOR. ATTRACTIVE NUISANCE. Doctrine of, see .MINKIP.M. CORPORATIONS, 325, 341-344; NEGLIGENCE, I. c. 2, b. Question for jury as to, see TRIAL, 548, 540. AUCTIONS. Assumpsit by bidder to recover money paid, see ASSUMPSIT, 18. Duty of clerk to return bid upon rescission of sale as obligation to pay debt of another, see CONTBACTS, 222. Validity of contract 'under statute of frauds, see CONTRACTS, 209, 303, 30(5. Record of, as evidence, see EVIDENCE, 847. License of auctioneer, see LICENSE, 23, 123. Laches as precluding relief of unsuccessful bidder at judicial sate, see LIMITATION OF ACTIONS, 23. Auction sale as lottery, see LOTTERY, 10. As nuisance, see NUISANCES, 11. Liability of auctioneer to purchaser, see PRINCIPAL AND AGENT, 111. 1. The officer in charge of an auction sale of county property has discretion to re- fuse to accept bids, so that the highest bid- der cannot enforce a right to the property where his bid is not accepted. McPherson Bros. Co. v. Okanogan County, 9: 748, 88 Pac. 199, 45 Wash. 285. 2. A bidder at a public auction may withdraw his offer to purchase, or the own- er his offer to sell, at any time before the bid is accepted by the fall of the hammer. Anderson v. Wisconsin C. R. Co. 20: 1133, 120 N. W. 39, 107 Minn. 296. 3. A bid for property at a public auction is merely an offer to purchase at the price named, and no contractual relation arises until acceptance of the bid. Anderson v. Wisconsin C. R. Co. 20: 1133, 120 N. W. 39, 107 Minn. 296. 4. An announcement or advertisement that certain property will be sold at public auction to the highest bidder is not an of- fer to sell which becomes binding, even con- ditionally, on the owner when a bid is made, but is a mere declaration of an intention to hold an auction at which bids will be re- ceived. Anderson v. Wisconsin C. R. Co. 20: 1133, 120 N. W. 39, 107 Minn. 296. (Annotated) 5. Conditions of sale announced by the auctioneer supersede those incorporated in circulars distributed among prospective bid- ders at an auction sale, and bind one to whom the property is struck off, although they were not brought to his attention. Kennell v. Boyer, 24: 488, 122 N. W: 941, 144 Iowa, 303. (Annotated) 6. A notice at an auction sale of lots in a residence tract, that the property is restricted as to buildings and against nui- sances, does not give fair notice to bidders of a provision which, after restricting the property, character of buildings, and usages which may be made of the property, em- powers the grantor or his assignees to digest 1-52 L.R.A.(N.S.) annul any restriction at pleasure in favor of any lot owner. Sohns v. Beavis, 34: 927, 93 N. E. 935, 200 N. Y. 268. 7. One who has bid in a lot at an auc- tion sale, and who signs the terms of sale with notice merely of restrictions as to buildings and against nuisances, under the assurance that they are all right, has a reasonable time to investigate their char- acter if they are so unreasonable and un- precedented as to make the title unmarket- able. Sohns v. Beavis, 34: 927, 93 N. E. 935, 200 N. Y. 268. 8. One who, having bid in a lot in a tract of land at an auction sale, signs the terms of sale with notice merely that there are restrictions as to buildings and against nuisances, which upon investigation prove to be so unreasonable and unprecedented as to make the title unmarketable, may re- cover the amount paid down and the rea- sonable expenses incurred in investigating the title. Sohns v. Beavis, 34: 927, ~93 N. E. 035, 200 N. Y. 268. (Annotated) 9. A bidder at an auction sale who, upon acceptance of his bid, receives from the auctioneer a written contract of sale, is not bound by the terms of a memorandum in the auctioneer's book describing the true owner of the property, made for the pur- pose of satisfying the statute of frauds and charging him upon the contract. Meyer v. Redmond, 41 : 675, 98 N. E. 906, 205 N. Y. 478. 10. An auctioneer has authority to sign the bidder's name to a memorandum of sale, so as to make a binding contract un- der the statute of frauds. Love v. Harris, 36: 927, 72 S. E. 150, 156 N. C. 88. AUDITA QUERELA. 1. The remedy afforded by the common- law writ of audita querela exists in Kansas only in such cases as fall within Gen. Stat. 1901. 5054, 5056, which provide upon what grounds a judgment may be vacated or modified at or after the term at which it was rendered and the method of proce- dure. Electric Plaster Co. v. Blue Rapids City Twp. 25: 1237, 106 Pac. 1079, 81 Kan. 730. 2. There is no necessity for an audita querela to vacate a void judgment and the execution thereon. French v. White, 2: 804, 62 Atl. 35, 78 Vt. 89. AUDITOR Expert accountants, see ACCOUNTANTS. Allowance of amendment of defective ex- ception to report of; time for, see AP- PEAL AND ERROR, 338. Taxing entire fee of, against one party, see APPEAL AND ERROR, 575 ; COSTS AND FEES, 17. Bond of county auditor, see BONDS, 45, 46, 48.. Mandamus to state auditor, see COURTS, 133, 228. AUTHENTICATION AUTOMOBILES. 213 AUTOMATIC FIRE EXTINGUISHER. Injunction against, state auditor, see IN- Insurance against loss by accidental dis- JUNCTION, 332. Negligence of county auditor in failing to give notice of tax sale, see TAXES, 191, 238. AUTHENTICATION. Of bill of exceptions, see APPEAL AND EB- ROR, 253. Of document offered in evidence, see EVI- DENCE, 738, 739. AUTHOR. Right of, to royalties upon sales made by publisher's trustee in bankruptcy, see BANKRUPTCY, 118. Conflict of laws as to rights of, see CON- FLICT OF LAWS, 108. Who is the "author" within meaning of copyright laws, see COPYRIGHT, 5, 6. *Right of, to enjoin publication of text-book, see INJUNCTION, 99. Common-law rights of, see LITERARY AND ARTISTIC PROPERTY. charge of, see INSURANCE, 685. AUTOMATIC MOVEMENTS. Opinion evidence as to danger from, see EVIDENCE, 1087, 1088. Duty to warn servant of danger from, see MASTER AND SERVANT, 235. AUTOMATIC SPRINKLERS. Injunction to prevent enforcement of un- reasonable rate for supply to, see IN- JUNCTION, 219. Provision in insurance policy as to main- taining, see INSURANCE, 243, 244. Liability of insurer against leakage from, see INSURANCE, 675. Charge for connecting with water mains, see WATERS, 408, 422. AUTHORITY. Of attorney, see ATTORNEYS, II. b. Of officer or agent of bank, see BANKS, III. b. Of servant, see MASTER AND SERVANT, III. a, 2. Of agent, see PRINCIPAL AND AGEXT, II. From legislature to maintain nuisance, see NUISANCES, 189-203. Presumption of, see EVIDENCE, II. e, 4. Evidence as to, see EVIDENCE, XI. x. Sufficiency of proof of, see EVIDENCE, 2226, 2227. As question for jury, see TBIAL, 103, 248, 309-311. AUTOMATIC COIN COLLECTOR. Use of, on street cars, see CARRIERS, 645- 647. AUTOMATIC COUPLERS. Master's duty as to, see MASTER AND SERV- ANT, 424. Violation of Federal statute requiring use of, see REMOVAL OF CAUSES, 2. Digest 1-52 L.R.A.(N.S.) AUTOMATIC VENDING MACHINE. License tax on, see LICENSE, 87. AUTOMOBILES. /. Public regulation and control, 19. II. Negligence as to; injuries by, 1O 72. a. Negligence of person operat- ing, 1O57. b. Contributory negligence, 58 72. Right to recover for negligent injury to unlicensed automobile, see ACTION OR SUIT, 38. Liability of garage keeper for injury to ma- chine, see BAILMENT, 18-22; MASTER AND SERVANT, 878, 914-918. Estoppel to introduce evidence as to value of injured machine, see ESTOPPEL, 200. Evidence of costs of repairs to automobile in action for injury thereto, see EVI- DENCE, 2438. Liability for injury to, by defect in high- way, see EVIDENCE, 298; HIGHWAYS 184-186, 236. Destruction of, at railroad crossing, see NEGLIGENCE, 294. Effect of contributory negligence on dam- ages for destruction of automobile at railroad crossing, see DAMAGES, 448. Reckless injury to, as malicious mischief, see MALICIOUS MISCHIEF, 6. Indictment for malicious injury to, see IN- DICTMENT, ETC., 60. Defense to note given to secure release of attachment for repair bill, see BILLS AND NOTES, 217. 214 AUTOMOBILES, I. Compromise of dispute as to amount of bill for repairs, see COMPROMISE AND SET- TLEMENT, 5. Erection of garage as breach of covenant, see COVENANTS AND CONDITIONS, 49, 78-80. Agreement of persons to take and use wrongfully as conspiracy, see CONSPIR- ACY, 9. Damages for breach of contract to perform services as automobile sales agent, see DAMAGES, 225. Presumption as to ownership of, see EVI- DENCE, 613. Admissibility of evidence under answer in action by hirer of taxicab for injuries, see EVIDENCE, 2456. Exemption of automobile, see EXEMPTIONS, '16, 17. Conveyance of, in fraud of creditors, see FRAUDULENT CONVEYANCES, 45. One using gas engine to generate electricity for charging, as a manufacturer, see GAS, 15. Duty to keep highway safe for, see HIGH- WAYS, 184-186, 236. Contributory negligence of one driving on defective highway, see HIGHWAYS, 372, 373. Double indemnity under policy to person injured in taxicab, see INSURANCE, 803. Insurance against injury to or by, see IN- SURANCE, 676-678, 940-943. Garnishment of amount due under policy insuring against liability for injury, see GARNISHMENT, 23. Lessor's liability for injury by vibrations from conducting automobile business in other portion of building, see LAND- LORD AND TENANT, 170. Libel on chauffeur, see LIBEL AND SLANDER, 35, 96. Discharge of one employed as assistant in automobile agency, see MASTER AND SERVANT, 119. Liability of automobile manufacturer for injury to servant on testing track, see MASTER AND SERVANT, 327. Liability of proprietor of garage for acts of servant, see MASTER AND SERVANT, 877, 878, 914-918. Liability of manufacturer of, for injury due to defects an, see NEGLIGENCE, 51-53. Notice to purchaser of defect in automobile, see NOTICE, 9. Compensation of automobile sales agent, see PRINCIPAL AND AGENT, 115. Conditional sale of, see SALE, 154. Injury to occupants of, at railroad cross- ing, see RAILROADS, 221, 266, 270, 271, 280, 281. Contributory negligence of driver at rail- road crossing, see RAILROADS, 221, 254, 255, 266, 280, 281; TRIAL, 452. Injury to occupant of, by collision with street car, see STREET RAILWAYS, 56. Lease of, on Sunday, as defense to liability for injury to occupant, see SUXDAY, 32. Proximate cause of injury to occupant as question - for jury, see TRIAL, 187. Unfair competition by imitation of lights for, see UNFAIR COMPETITION, 4. Digest 1-52 L.R.A.(N.S.) /. Public regulation and control. Forbidding use of dangerous highways by,. as denial of equal protection, see CON- STITUTIONAL LAW, 158. Review by courts of reasonableness of act regulating, see COURTS, 91. Power to require one causing injury to identify himself, see CRIMINAL LAW, 121. Validity of excise tax on, see LICENSE, 26, 27, 77, 78, 107, 108. Effect of partial invalidity of statute regu- lating, see STATUTES, 73. See also infra, 24. 1. The law regulating the use of auto- mobiles alone, of all the vehicles which use the highway, is not invalid special legisla- tion. State v. Swagerty, 10: 601, 102 S. W. 483, 203 Mo. 517. 2. A toll road owned and operated by a private corporation is a "public high- way" within the meaning of a statute regu- lating the operation of automobiles upon any public highway, since, as the danger of personal injury to travelers is as great, and immunity therefrom is as important, thereon as on an ordinary highway, it will be presumed, in the absence of express pro- vision, that the legislature contemplated a remedy as broad as the mischief to be guard- ed against. Weirich v. State, 22: 1221, 121 N. W. 652, 140 Wis. 98. 2a. A "public highway," in the broad, ordinary sense, includes every common way for travel by persons on foot or with vehi- cles rightfully used on highways, which the public have the right to use, either con- ditionally or unconditionally. Weirich v. State, 22: 1221, 121 N. W. 652, 140 Wis. 98. 3. Forbidding the use of automobiles on highways constructed over deep ravines and along the edges of cliffs, to protect the lives of their occupants and of those attempting to use horses along such roads, is reason- able. State v. Mayo, 26: 502, 75 Atl. 295, 106 Me. 32. (Annotated) 4. Since the legislature might prohibit the use -of automobiles on the public high- ways, it may, without infringing the con- stitutional provision that no one shall be compelled to be a witness against himself, make it a condition to their use that it shall be a crime for anyone whose machine causes injury to leave the place of the acci- dent without leaving his name and address with the person injured, or a police officer. People v. Rosenheimer, 46: 977, 102 N. E. 530, 209 N. Y. 115. 5. Charter authority to license and regulate hackmen, draymen, drivers, and all others pursuing like occupations, does not empower a municipality to forbid children under a specified age to operate automobilos on its streets. Ex parte Epperson, 37 : 303, 134 S. W. 685, 61 Tex. Grim. Rep. 237. Registration. Burden of proving absence of registration. see EVIDENCE, 97. Sufficiency of evidence to show failure to register, see EVIDENCE, 2303. AUTOMOBILES, II. a. 215 Effect of failure to register on right to re- covery for injury through defective street, see HIGHWAYS, 385, 186. 6. One operating an automobile on a public highway in violation of a statute for- bidding the operation thereon of unregis- tered machines has no right of action against one who injures it merely by want of ordinary care. Dudley v. Northampton Street R. Co. 23: 561, 89 N. E. 25, 202 Mass. 443. (Annotated) Speed. Effect of fast driving on liability for injury, see infra, 52. Constitutionality of statute limiting speed of, see CONSTITUTIONAL LAW, 161. Evidence in prosecution for driving at dan- gerous speed, see EVIDENCE, 1769. Sufficiency of title of act regulating speed of, see STATUTES, 110. 7. The question of the reasonableness of a statute limiting the speed of auto- mobiles on the highways to 9 miles an hour is for the legislature, and not the courts. State v. Swagerty, 10: 601, 102 S. W. 483, 203 Mo. 517. Lights. 8. An automobile standing at the curb is within the operation of a statute requir- ing lights on automobiles driven on pub- lic streets during the hours of darkness. Jaquith v. Worden, 48: 827, 132 Pac. 33, 73 Wash. 349. Unlicensed person driving car. Effect of failure to procure license on lia- bility for injury, see infra, 28, 28a. Validity of license tax on, see LICENSE, 26, 27, 77, 78, 107, 108. Contributory negligence in employing un- licensed person to operate, see STREET UAILWAYS, 56. Computation of time during which nonresi- dent may operate automobile without license, see TIME, 8. 9. To entitle an unlicensed person driving an automobile to the protection of a statute permitting the operation of the machine by an unlicensed person if riding with or accompanied by a licensed chauf- feur or operator, there must be knowledge on the part of both parties of the exist- ence of a relation like that of operator without a license, and licensed chauffeur or operator accompanying him, but if such knowledge exists, the operator will be pro- tected, although it was not expected that one would exercise any supervision over the other if the operator was in fact com- petent. Bourne v. Whitman, 35: 701, 95 N. E. 404, 209 Mass. 155. II. Negligence as to; injuries by. a. Negligence of person operating. Objecting for first time on appeal to lack of parties in action for injury by, see AP- PEAL AND ERROR, 735. Review, on appeal, of finding as to negli- gence, see APPEAL AND ERROR, 918. Prejudicial error in admission of evidence, see APPEAL AND ERROR, 1110, 1191. Digest 1-52 t.R.A.(N.S.) Damages for injury to pedestrian by, see DAMAGES, 413, 417. Presumption of negligence of driver, see EVIDENCE, 465. Skidding of, as evidence of negligence in operation, see EVIDENCE, 343. Exclusion of self-serving declarations of person driving car at time of injury, see EVIDENCE, 1351. Admissibility of chauffeur's statements and conduct at time of accident, see EVI- DENCE, 1412, 1413. Evidence as to habit of leaving unlighted machine standing at curb, see EVI- DENCE, 1532. Sufficiency of proof of negligence, see EVI- DENCE, 2112. Variance between pleading and proof in ac- tion for injury, see EVIDENCE, 2498. [n jury to pedestrian by automobile driven by street superintendent, see HIGH- WAYS, 173. Liability of community for negligence of husband in driving, see HUSBAND AND WIFE, 51. Insurance against loss from injury by, see INSURANCE, 677, 678, 940-943. When limitations begin to run against ac- tion for injury, see LIMITATION ft OF ACTIONS, 184. Automobile as nuisance on account of tend- ency to skid, see NUISANCES, 14. Authority of boy operating parent's ma- chine to engage physician to attend person whom he injures, see PARENT AND CHILD, 7. Question for jury as to negligence, see TRIAL, 416-419. Refusal of instructions in action for in- jury, see TBIAL, 820. Correctness of instruction in action for in- jury, see TRIAL, 1063, 1064, 1069. Sufficiency of verdict in action for injury, see TRIAL, 1141. Cross-examination of plaintiff in action for injuries by, see WITNESSES, 85. Eomicide by reckless driving, see HOMI- CIDE, 3-6. Evidence in prosecution of chauffeur for homicide, see EVIDENCE, 1555. Instructions in prosecution for homicide in negligent operation of automobile, see TRIAL, 943. See also supra, 4. 10. The use of an automobile on a pub- lic highway is not negligence as matter of law. Indiana Springs Co. v. Brown, i : 238, 74 N. E. 615, 165 Ind. 465. (Annotated) 11. One using an automobile on a pub- lic highway is required to use only i;eason- able care and caution for the safety of others. House v. Cramer, 10: 655, 112 N. W. 3, 134 Iowa, 374. 12. There may be a recovery for com- mon-law negligence in handling an auto- mobile on a highway if properly pleaded, although the use of such vehicles has be- come a matter of statutory regulation. Christy v. Elliott, 1:215, 74 N. E. 1035, 216 111. 31. (Annotated) 13. The rights of pedestrians and driv- 216 AUTOMOBILES, II. a. crs of automobiles, when using streets or other public highways, are mutual, equal, and co-ordinate, except as varied by the nature of the appliance or mode of travel employed, and as long as each observes the reciprocal rights of the other neither will be liable for any injury his use may cause. Deputy v. Kimmell, 51:989, 80 S. E. 919, 73 W. Va. 595. (Annotated) 14. The driver of an automobile is negli- gent in propelling his machine against a pedestrian standing in plain sight near a street car track, waiting to board a car, al- though he does not respond to a signal an- nouncing the approach of the automobile. Ouellette v. Superior Motor & Machine Works, 52: 299, 147 N. W. 1014, 157 Wis. 531. 15. The driver of an automobile, and the driver of a horse upon a highway, are each required to regulate his own use by the observance of ordinary care and caution to avoid receiving injury, as well as inflicting injury on another. Indiana Springs Co. v. Brown, x: 238, 74 N. E. 615, 165 Ind. 465. (Annotated) 16. The driver of an automobile is negli- gent in proceeding along a city street when he is so blinded by the headlight of an ap- proaching car that he cannot see objects ahead of him. Jaquith v. Worden, 48: 827, 132 Pac. 33, 73 Wash. 349. 17. A chauffeur is negligent in taking his hands from the steering gear to adjust his hat while the car is running 30 milea an hour, although the road is level, smooth, and straight. O'Bierne v. Stafford, 46: 1183, 87 Atl. 743, 87 Conn. 354. 18. The driver of an automobile may be found to be negligent in turning from side to side, instead of stopping the machine, to avoid hitting one who, having been warned of its approach by a signal, has become con- fused, and is dodging back and forth to avoid being hit. Weil v. Kreutzer, 24: 557, 121 S. W. 471, 134 Ky. 563. (Annotated) 19. The driver of an automobile is liable for running down a boy standing in or moving diagonally across the street ahead of him, and unaware of his peril, if the driver failed to see him and avoid a col- lision because he permitted his attention to be diverted in another direction. Bur- vant v. Wolfe, 29: 677, 52 So. 1025, 126 La. 787. 20. One driving an automobile on a highway constantly traveled by pedestrians and teams and occupied by children must exercise so high a degree of diligence in approaching such persons as to enable him to control his machine, or stop it if neces- sary to avoid collision which cannot be re- garded as a pure accident or due to con- tributory negligence. Savov v. McLeod, 48: 971, 88 Atl. 721, 111 Me.*234. 21. One is negligent in driving an auto- mobile into collision with a team slowly approaching from the opposite direction in a highway, although the driver fails to obey : his signal to turn out to let him pass. ' Digest 1-52 L.R.A.(N.S.) Savoy v. McLeod, 48: 971, 88 Atl. 721, 111 Me. 234. 22. The driver of an automobile can- not be held liable for injuries to the oc- cupant of a horse-drawn vehicle which he was about to meet and pass unless his negligence is the proximate cause of such injuries. Messer v. Bruening, 48: 945, 142 N. W. 158, 25 N. D. 599. 23. A driver of a motor vehicle who neg- ligently, because of excessive speed or not having his machine under control, fails to keep to the right of the intersection of a public street, when turning to the right, as required by statute, but crosses to the left instead, and collides with another vehicle lawfully upon that side of the street, whose driver is free from negligence, is responsible for the consequent damages. Molin v. Wark, 41:346, 129 N. W. 383, 113 Minn. 190. (Annotated) 24. The jury may find that it is the duty of the driver of an automobile to stop to permit a faster car to pass, where, for miles, there would be no proper opportunity for it to pass while both cars were in motion, and stopping for a few seconds would per- mit it to do so, under a statute requiring an overtaking car to pass on the left, and the driver of the forward one to, "as soon as practicable, turn to the right, so as to allow free passage on the left." Mark v. Fritsch, 22: 632, 88 N. E. 380, 195 N. Y. 282. 25. The driver of an automobile who overtakes and passes another car at such speed, and returns to the right side of the road so close to it as to disconcert its driv- er by striking the car and causing it to swerve over the embankment, is liable for the injury thereby inflicted upon the occu- pants of the car, although the blow was not sufficient to propel the car over the em- bankment. Granger v. Farrant, 51 : 453, 146 N. W. 218, 179 Mich. 19. (Annotated) 26. All who join in an enterprise to take a pleasure ride in an automobile on a highway are liable in case the one having control of the machine is guilty of reckless driving. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 27. A statute making the owner of a motor vehicle liable for injuries caused by its operation by any person limits liability to the proprietor of the vehicle, and does not extend it to persons who may be mediately or immediately in possession of it, where other provisions of the statute provide for its registration by the owner Daugherty v. Thomas, 45: 699, 140 N. W. 615, 174 Mich. 371. Effect of failure to procure license. 28. Mere failure of the driver of an automobile to have secured the statutory license at the time his machine injured a pedestrian on the highway will not ren- der him liable for the injury, unless such failure had some causal relation to the in- jury. Lindsay v. Cecchi, 35: 699, 80 Atl. 523, 3 Boyce (Del.,) 133. (Annotated) 28a. Failure to comply with a statute forbidding one, under penalty, to operate an automobile on a public highway with- (.e.K>.A.H.,j AUTOMOBILES, II. a. 217 out a license, does not, in case the oper- ator is in fact competent, make him a tres- passer on the highway, so as to be liable for all injuries to other vehicles with which he comes into collision, even though it was not due to any negligence in the operation of his car. Bourne v. Whitman, 35: 701, 95 N. E. 404, 209 Mass. 155. At street crossings. 29. A greater degree of care is required by the operator of an automobile while on the public highway and especially at street crossings than is required of persons using the ordinary or less dangerous instruments of travel. Deputy v. Kimmell, 51: 989, 80 S. E. 919, 73 W. Va. 595. 30. The driver of an automobile must approach street crossings with his machine under control. Baker v. Close, 38: 487, 97 N. E. 501, 204 N. Y. 92. (Annotated) 31. The driver of an automobile is guilty of gross negligence in driving his car at high speed across the intersection of two much- used streets and around the end of a street car, which obstructs his view of the cross- ing, so that, upon finding a pedestrian di- rectly in the path of the car, he cannot avoid a collision with him. Gregory v. Slaughter, 8: 1228, 99 S. W. 247, 124 Ky. 345. Passing street car discharging pas- sengers. 32. The driver of an automobile may be found to be negligent in running his ma- chine at a speed of 10 or 12 miles an hour, on the parallel track past a street car which he has overtaken after it has stopped to discharge passengers from the front door, without taking precautions to ascertain if passengers will attempt to cross in front of the car, where there is a space of 60 feet be- tween the car and the curb which the driver might have used. Minor v. Mapes, 39: 214, 144 S. W. 219, 102 Ark. 351. 33. An automobile overtaking and pass- ing a street car is within the operation of a statute providing that the driver of a carriage or other vehicle passing another carriage or other vehicle traveling in the same direction shall drive to the left. Fos- ter v. Curtis, 42: 1188, 99 N. E. 961, 213 Mass. 79. (Annotated) 34. A provision in a statute requiring vehicles overtaking others on the highway to pass to the left, that it shall not apply to horse railroads, does not take out of its operation an automobile overtaking a street car. Foster v. Curtis, 42: 1188, 99 N. E. 961, 213 Mass. 79. 35. The driver of an automobile will not be negligent in failing to obey a statutory direction to pass an overtaken street car on the left of the middle of the way, if the car tracks are located along the side of the road, so that the statute cannot, in the exercise of reasonable care, be literally obeyed. Foster v. Curtis, 42: 1188, 99 N. E. 961, 213 Mass. 79. 36. A passenger injured by an auto- mobile when alighting from a< street car cannot rely on the violation by the driver of the automobile, of his statutory duty to Digest 1-52 L.R.A.(N.S.) pass to the left of the car, to establish negligence on his part. Marsh v. Boyden, 40: 582, 82 Atl. 393, 33 R. I. 519. 37. That the driver of an automobile passes an overtaken vehicle on the wrong side does not impose upon him a greater degree of care to avoid injury to pedestrians than would rest upon him had he been ou the proper side. Marsh v. Boyden, 40: 582, 82 Atl. 393, 33 R. I. 519. Frightening horse. 38. One driving an automobile on a pub- lic highway is bound to take notice that it is likely to startle horses when driven toward them at a rapid rate. Mclntyre v. Orner, 4: 1130, 76 N. E. 750, 166 Ind. 57. ( Annotated ) 39. That the driver of an automobile successfully passed a team of horses on a highway when overtaking them from the rear does not justify his assuming that he can do so when meeting them, if, when 200 feet away, he sees that they are making violent efforts to break away. Mclntyre v. Orner, 4: 1130, 76 N. E. 750, 166 Ind. 57. 40. The necessity of constant observa- tion of the road to avoid holes and guide his machine in safety does not justify the driver of an automobile in driving the ma- chine at more than 15 miles an hour to within 15 or 20 feet of a team of horses whicu are badly frightened at its approach. Mclntyre v. Orner, 4: 1130, 76 N. E. 750, 166 Ind. 57. (Annotated) 41. The driver of an automobile is bound to take notice of its effect upon horses which it is approaching on a highway, and, if they exhibit signs of fright, to slow up, stop the machine, or do whatever is reason- ably required to relieve the persons in the carriage of their perilous situation. Mcln- tyre v. Orner, 4: 1130, 76 N. E. 750, 166 Ind. 57. ( Annotated ) 42. One attempting to crank an automo- bile in close proximity to horses, without paying any attention to whether or not they are frightened by the resulting noise, and continuing to turn the crank until the machine starts notwithstanding the horses manifest fright, as the result of which they run away, is responsible for the resulting injury to them. Tudor v. Bo wen, 30: 804, 67 S. E. 1015, 152 N. C. 441. 43. It is negligence per se to attempt to crank a defective automobile which makes a terrible noise when starting, in close proximity to horses, without giving their driver notice to remove them to a safe place. Tudor v. Bo wen, 30: 804, 67 S. E. 1015, 152 N. C. 441. 44. The driver of an automobile is not negligent per se in failing to arrest the sparker upon making only a brief stop with the machine. House v. Cramer, 10: 655, 112 N. W. 3, 134 Iowa, 374. 45. One stopping an automobile in front of a corner store is not liable for the run- ning away of a team hitched near the corner on a side street, although he permitted the explosions to continue after the machine stopped, if, after he saw, or might have seen, that the team was frightened, he could 218 AUTOMOBILES, II. a. not have stopped the noise in time to obvi- ate the escape of the team. House v. Cramer, 10: 655, 112 N. \V. 3, 134 Iowa, 374. 46. The driver of an automobile, upon meeting upon the highway a horse which is frightened and in such a situation that its driver cannot extricate himself from danger unless the machine is stopped, is bound to stop, and will be liable for the injuries in- flicted by his failure so to do. Indiana Springs Co. v. Brown, i: 238, 74 N. E. 615, 165 Ind. 465. (Annotated) 47. A statutory requirement that the driver of an automobile shall stop it upon approaching a horse which appears to be frightened will apply in case, "by the ex- ercise of reasonable diligence on the part of the driver," it would have appeared that a horse was frightened. Christy v. Elliott, i: 215, 74 N. E. 1035, 216 111. 31. (Annotated) 48. No signal from the persons in a car- riage drawn by a horse, that the animal is about to be frightened by an approaching automobile, ia necessary to charge the driver of the latter with the statutory duty to stop the machine, if it appears that a horse approaching on the highway is about to be- come frightened by the machine. Christy v. Elliott, i: 215, 74 N. E. 1035. 216 111. 31. (Annotated) 49. The requirement of Minn. Gen. Laws 1903, chap. 356, p. 646, 2, that operators of automobiles upon public highways shall stop upon being signaled to do so, does not impose upon them the duty, upon signal, to stop the motive power of the vehicle, in ad- dition to stopping the vehicle itself. Ma- honey v. Maxfield, 14: 251, 113 N. W. 904, 102 Minn. 377. (Annotated) 50. The driver of an automobile, who is about to meet and pass a horse-drawn vehicle, may be negligent in not prompt- ly observing that the horse is frightened, and in continuing on his way until he actually observed this, if, in the. exercise of prudence, he should have observed the fright and stopped the automobile before he did. Messer v. Bruening, 48: 945, 142 N. W. 158, 25 N. D. 599. (Annotated) 51. No liability of the driver of an au- tomobile for failure to stop his machine when about to meet and pass a horse-drawn vehicle can be based upon a statute which requires the driver of an automobile "when signaled by the driver of any vehicle pro- pelled by horse" to stop the same until the horse-drawn vehicle has passed, where an occupant of the horse-drawn vehicle other tlian the driver signaled him to stop. Messer v. Bruening, 48: 945, 142 N. W. 158, 25 N. D. 599. Speed. Opinion as to speed of, see EVIDENCE, 1137, 1138. Correctness of instructions as to unlawful rate of speed, see TRIAL, 1069. See also supra, 30-32. 52. One who drives an automobile at an unlawful speed is guilty of negligence. Digest 1-52 L.R.A.(N.S.) Hubbard v. Bartholomew, 49: 443, 144 N. W. 13, 163 Iowa, 58. Lack of lights. 53. Running an automobile on the public streets at night without lights, in viola- tion of the statutory requirements, is evi- dence of negligence. Zoltovski v. Ozella, 26: 435, 124 N. W. 527, 159 Mich. 620 Injury to person riding with driver. 54. One who invites another to ride in his automobile must exercise ordinary care not to increase the danger of such under- taking, or create a new danger, and will be liable, to him for injuries caused by such rapid driving of the machine, against the protest of the guest, as to result in a col- lision with an obstruction in the street. Beard v. Klusmeier, 50: noo, 164 S. W. 319, 158 Ky. 153. (Annotated) 54a. One who operates a sight-seeing automobile over regular routes in a city, which he invites the general public to pat- ronize for hire, owes patrons the duty of exercising, in the operation of the vehicle, the highest degree of care consistent with the proper transaction of the business. Hinds v. Steere, 35: 658, 95 N. E. 844, 209 Mass. 442. (Annotated) 55. The owner of a passenger-carrying automobile cannot escape liability for in- jury to a passenger caused by collision be- tween the automobile and a street car, if the chauffeur negligently ran near the car j at high speed without having .the machine under control, and, without such negligence, the accident would not have happened, al- though the immediate cause of the accident was the breaking of a brake-rod through a latent defect, for which the owner was not responsible. Johnson v. Coey, 21: 81, 86 N. E. 678, 237 111. 88. (Annotated) Responsibility of owner when car op- erated by another. Husband's liability for negligence of wife in driving, see HUSBAND AND WIFE, 15. , Liability of lunatic for negligence of chauf- feur, see INCOMPETENT PERSONS, 16. Liability of parent for negligence of child operating machine, see EVIDENCE, 133, 2243; MASTER AMD SERVANT, 54-58, 888; PARENT AND CHILD, 22-24; PRIN- CIPAL AND AGENT, 88; TRIAL, 245, 1038. Who is master of negligent chauffeur, see MASTER AND SERVANT, 36. Who is master of driver of hired machine, see MASTER AND SERVANT, 45-58. Chauffeur as independent contractor and not servant, see MASTER AND SERVANT, 1031. Evidence as to whether one operating auto- mobile was servant of owner, see EVI- DENCE, 1962. When child operating is deemed servant of father, see MASTER AND SERVANT, 54- 58; TRIAL, 245, 1038. Question whether negligent chauffeur was acting within v scope of employment at time of injury, see MASTER AND SERV- ANT, 920-929. Presumption as to authority of servant driving automobile, see EVIDENCE, 178, 184. (.* y. r..n :/. - AUTOMOBILES, II. b. 219 Automobile as dangerous agency in hands of servant, see MASTER AND SERVANT, 983-986. Liability of city for negligence of employee in running machine, see MUNICIPAL CORPORATIONS, 386. Sufficiency of proof that child had not been forbidden to run father's automobile, see EVIDENCE, 2346. Making owner liable for injury through use of machine by persons who have taken it without his knowledge or permission, see CONSTITUTIONAL LAW, 392. Liability of owner for injury by car while being run by one to whom it had been intrusted for repair, see MASTER AND SERVANT, 1032. See also supra, 55. 56. To sustain a recovery for injuries caused by being run down by an automobile owned by the de/endant, while being oper- ated by another, the plaintiff must show by a preponderance of the evidence that the person in charge of the machine was the defendant's servant, and was at the time of the accident engaged in the master's busi- ness or pleasure, with the master's knowl- edge and direction. Neff v. Brandeis, 39: 933, 135 N. W. 232, 91 Neb. 11. 57. The owner of an automobile is not liable on the theory that it is a dangerous machine, for its negligent use to the injury of a stranger by one to whom he had loaned it and who was in complete control of its operation, although the owner is, at the time of the accident, present in the machine as a guest. Hartley v. Miller, 33: 81, 130 N. W. 336, 165 Mich. 115. (Annotated) 6. Contributory negligence. Negligence of driver of car in which person killed by other car is riding, see HOMI- CIDE, 6. Negligence in attempting to escape from peril, see NEGLIGENCE, 213. Imputing negligence of driver to passenger, see NEGLIGENCE, 260, 268-271. Application of doctrine of last clear chance in case of injury by automobile, see NEGLIGENCE, 295. As proximate cause of injury, see PROXI- MATE CAUSE, 164. As question for jury, see TRIAL, 430-433. 58. A pedestrian injured by an automo- bile in a public street cannot hold the owner liable in damages if he might, by the ex- ercise of his ordinary faculties, have avoid- ed the accident. Minor v. Stevens, 42: 1178, 118 Pac. 313, 65 Wash. 423. (Annotated) 59. A person lawfully in a public high- way may rely upon the exercise of reason- able care by drivers of automobiles to avoid injury to him. Deputy v. Kimmell, 51: 989, 80 S. E. 919, 73 W. Va. 595. GO. A pedestrian is not bound, as matter of law, when lawfully using the public high- ways, to be continuously looking or listen- ing to ascertain if auto cars are approach- ing, under penalty that, upon his failure to do so, if he is injured his own negligence Digest 1-52 L.R.A.(N.S.) must be conclusively presumed. Gerhard v. Ford Motor Co. 20: 232, 119 N. W. 904, 155 Mich. 618. (Annotated) 61. A pedestrian seeking to cross a high- way is not baund to be constantly on the lookout to ascertain if auto cars are ap- proaching, under the penalty that, upon failing to. do so, if injured, his negligence must be conclusively presumed. Hennessey v. Taylor, 3: 345, 76 N. E. 224, 189 Mass. 583. (Annotated) 62. A pedestrian is not bound to look both ways and listen before attempting to cross a street at a regular crossing, although the street at that point is much used by automobiles, but his duty is to use such reasonable care as the case requires. Baker v. Close, 38: 487, 97 N. E. 501, 204 N. Y. 92. ( Annotated ) 63. The rule requiring travelers to look out for trains at railroad crossings does not fix the measure of care which a pe- destrian attempting to cross a street nlust use in looking out for automobiles. Mill- saps v. Brogdon, 32: 1177, 134 S. W. 632, 97 Ark. 469. 64. It is not negligence per se for a man riding a bicycle along a street in front of an automobile to attempt to cross the road in front of the machine, if it was so far behind him that it might reasonably have been expected that the driver would see him, and could and would, by the exer- cise of proper care, so manage the machine as to avoid a collision; but the question is one for the jury under all the circumstan- ces of the case. Rogers v. Philips, 28: 944, 92 N. E. 327, 206 Mass. 308. Of person alighting from street car. 65. A passenger alighting from a street car at a place other than a cross walk has a right to presume that the driver of an automobile following the car will pass to the left, as required by statute, and the jury may consider the driver's failure to do so, to the injury of the passenger, as evidence of negligence on his part. Foster v. Curtis, 42: 1188, 99 N. E. 961, 213 Mass. 79. 66. A passenger is not negligent in alighting from a street car, knowing that an automobile is following the car, if it is not so close that it could not have been stopped by the' exercise of ordinary care and prudence on the part of the driver before it reached him. Marsh v. Boyden, 40: 582, 82 Atl. 393, 33 R. I. 519. Of driver or rider' of horse. 67. The driver of a restive horse, who, upon seeing an automobile approaching, drives into an offset from the road, where the horse becomes unmanageable, assumes the risk of injury in attempting to force it past the machine after it has been stopped beside the road. Cumberland Teleph. & Teleg. Go, v. Yeiser, 31: 1137, 131 S. W. 1049, 141 Ky. 15. (Annotated) 68. The driver of a team on a public highway may be found not to be negligent in failing to turn out to pass an approach- ing 'automobile, if there is room in the 220 AUTOPSY BAD REPUTATION. highway for the automobile to pass without his doing so. Savoy v. McLeod, 48: 971, 88 Atl. 721, 111 Me. '234. 69. The failure of the driver of a horse- drawn vehicle to give the statutory signal to an automobile which he is about to meet and pass, to stop, does not preclude a re- covery by him for injury suffered in an action based on common-law negligence. Messer v. Bruening, 48: 945, 142 X. W. 158, 25 N. D. 599. 70. The driver of a vicious horse, upon seeing an automobile approach, and know- ing that an attempt to pass it will result in a struggle for the mastery between himself and the horse, is negligent in attempting to keep the horse in the road while the auto- mobile passes, without warning the driver of the danger, so that in case he is thrown and killed the driver of the automobile can- not be held liable for the injury. Dreier v. McD.ermott, 50: 566, 141 N. W. 315, 157 Iowa 726. (Annotated) Of children. 71. An eleven-year-old boy is not negli- gent in standing in or moving diagonally across a street toward the scene of a com- motion to which many people are going, without looking out for automobiles which may come up behind him, but to do so must be on the wrong side of the street. Burvant v. Wolfe, 29: 677, 52 So. 1025, 126 La. 787. 72. A thirteen-year-old boy at play in the street is guilty of negligence in be- coming so engrossed in his play that he attempts to run across the street directly in front of an approaching automobile, without taking any precaution to see if such a machine or other vehicle is approach- ing. Zbltovski v. Gzella, 26: 435, 124 N. W. 527, 159 Mich. 620. (Annotated) AUTOPSY. AVERAGE. 1. Expense incurred for the safety of a. cargo which has been removed from the vessel with no intention of reloading it must be charged against it alone. St. Paul F. & M. Ins. Co. v. Pacific Cold Storage Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. AVULSION. Submersion of land by, see WATERS, 160, 161. AWARD. Of arbitrator, see ARBITRATION, III. Court's power to set aside award of board, see COURTS, 3. Of commissioners in condemnation proceed- ings, see EMINENT DOMAIN, II. c. 2. Competency of commissioner in condemna- tion proceedings, see EMINENT DO- MAIN, 160, 161. Interest on, see INTEREST, 28, 29. AWNINGS. | In street generally, see HIGHWAYS, 30, 43. Requiring removal of stationary awnings, see MUNICIPAL CORPORATIONS, 102, 103; TRIAL, 192. Liability for making unauthorized autopsy see CORPSE, 3, 4, 16, 17. [Injury from fall of, see HIGHWAYS, 291- Evidence as to, see EVIDENCE, 1292, 1983. ' 295; MASTER AND SERVANT, 1010. B BAD CHARACTER. BADGE. Evidence; as to, see EVIDENCE, XL c. Forbidding wearing of badge of society of Actionability of charge of, see LIBEL AND .which one is not a member, see Asso- SLANDER II. b. CITATIONS, 1, 7; CONSTITUTIONAL LAW, 639. BAD FAITH. Intent to defraud creditors as taking place of, see EVIDENCE, 230. Evidence as to, see EVIDENCE, XL e. Question for jury as to, see TRIAL, II. c. 5. Digest 1-52 I*R.A.(N.S.) BAD REPUTATION. Evidence as to, see EVIDENCE, XI. c. Actionability of charge of, see LIBEL AND SLANDER, II. b. BAGGAGE BAIL AND RECOGNIZANCE. 221 BAGGAGE. In general, see CARRIERS, II. o. Injury by fall of, from rack, see CARRIERS, 204, 205, 252. Injury to passenger by falling over valise in aisle, see CARRIERS, 206. Discrimination in granting privilege to so- licit, see CARRIERS, 1007-1013. Requiring carrier to provide baggage room, see CARRIERS, 1082. Damages for loss or delay of baggage, see DAMAGES', 296-301. Presumption and burden of proof as to loss of, see EVIDENCE, 360, 374-378. Innkeeper's liability for, see INNKEEPERS, III. b. Larceny of, see LARCENY, 29, 30. Proximate cause of loss of, see PROXIMATE CAUSE, 78. BAGGAGEMAN. Authority to eject trespasser, see CARRIERS, 401. BAGGAGE TRANSFER COMPANIES. Liability of. see CARRIERS, 682. Discrimination betw een, see CARRIERS, 1007-1013. Forbidding solicitation of business by, at station, see CONSTITUTIONAL LAW, 785; MUNICIPAL CORPORATIONS, 181-185. BAIL AND RECOGNIZANCE. Recovery of money deposited in lieu of bail, see ASSUMPSIT, 24, 25. .Embezzlement by clerk of certified check taken in lieu of bail, see BONDS, 49; PARTIES, 90. Effect of discharging prisoner from custody | on his surrender by his bail, see CRIMI- NAL LAW, 61. Right to habeas corpus in case of, see HA- BEAS CORPUS, 5. Discharge of one released on, and cancela- tion of his bond, during his absence from court, see HABEAS CORPUS, 69. Surrender by sureties to legalize imprison- ment of one not originally liable to arrest, see IMPRISONMENT FOR DEBT, 4. Effect of erroneously demanding cash bail on jurisdiction of justice of the peace, see JUSTICE OF THE PEACE, 1. Ne exeat bond to secure release from ar- rest, see NE EXEAT. 1. In a proceeding by scire facias upon a recognizance given in a criminal proceed- ing, oyer of the recognizance and of the rec- ord upon which it is founded may be de- manded. State v. Dorr, 5 : 402, 53 S. E. 120, 59 W. Va. 188. Digest 1-52 L.R.A.(N.S.) 2. A recognizance given in accordance with a sentence of fine and imprisonment for wrongfully selling intoxicating liquor, but providing that the imprisonment part shall be canceled on payment of the fine if accused will give a recognizance not to make further sales, is void, since the court had no power to grant the relief. State v. Sturgis. 43: 443, 85 Atl. 474, 110 Me. 96. 3. After conviction of an accused, for whose enlargement bail had been given, when he was present in court and his passing into custody of the sheriff, the court cannot, without the knowledge of the sureties, upon granting him a new trial, permit him to go at large under the former bond. Miller v. State, 20: 86 1, 48 So. 360, 158 Ala. 73. ( Annotated ) 4. Failure to state, in a recognizance to secure the enlargement of one under arrest for uttering false paper, that it was passed with intent to defraud, does not render the instrument void, if the statutory form re- quires that the offense be designated gener- ally, and the instrument recites that an in- dictment has been found charging accused with uttering and passing false paper. State v. O'Keefe, 38: 309, 108 Pac. 2, 32 Nev. 331. (Annotated) Right to require. , 5. A justice of the peace, who has ar- rested a fugitive from justice wholly with- out legal warrant, cannot legally demand from him a bail bond or a cash deposit of bail. State ex rel. Grass v. White, 2: 563, 82 Pac. 907, 40 Wash. 560. 6. The judge may require defendant in a supplementary proceeding to give security for his appearance in case the action of the judge in ordering the clerk to dismiss a proceeding instituted pending an appeal from a former one of similar nature should prove to be erroneous, where there is dan- ger of defendant leaving the state, and it appears that he has property which he un- justly refuses to apply to the satisfaction of the judgment. Ledford v. Emerson, 10 : 362, 55 S. E. 969, 143 N. C. 527. Right to; when admitted to. Sufficiency of evidence to justify refusal of, see EVIDENCE, 2348. Liability for causing imprisonment for want of excessive cash bail, see FALSE IMPRISONMENT, 35. Burden of proof in habeas corpus proceed- ing for discharge on bail, see HABEAS CORPUS, 71. What constitutes murder taking away right to bail, see HOMICIDE, 51. 7. One demanded by one state from an- other as a fugitive from justice, under the Federal statute, should not be admitted to bail in a habeas corpus proceeding to test the validity of the requisition, unless some departure from the requirements of the statute has been made to appear. State v. Massee, 46:781, 79 S. E. 97, 95 S. C. 315. 8. One arrested as a fugitive from jus- tice under interstate rendition proceedings cannot secure his release on bail by show- ing that, while he had violated the crim- inal laws of the demanding state, he had (. . eJ. A : jf.\, H. .il i"; c> [ r t: > a i ' ; 222 BAIL AND RECOGNIZANCE. been guilty of no moral wrong; that the prosecution was a hardship on him, insti- tuted to collect a debt, and that the gov- ernor of another state had refused to issue a requisition. State v. Massec, 46: 781, 79 S. E. 97, 95 S. C. 315. 9. A convict is not within the opera- tion of a constitutional provision that all persons shall be bailable by sufficient sure- ties, except for capital offenses, where the proof is evident or the presumption great. Re Schriber, 37: 693, 114 Pac. 29, 19 Idaho, 531. 10. Where a defendant who has been con- victed and sentenced to serve a term of imprisonment appeals from such judgment, and applies to the trial judge for admission to bail, such application is addressed to the sound legal discretion of such judge or court, and, unless it clearly appears that such discretion has been 'abused, the action of the trial judge or court will not be disturbed or interfered with by the su- preme court on application for a writ of habeas corpus. Re Schriber, 37: 693, 114 Pac. 29, 19 Idaho, 531. 11. A Chinese person who has been or- dered by a United States district judge to be deported is not entitled to release on bail pending an appeal which does not en- title him to a trial de novo, where the stat- ute provides that the marshal shall execute the order of deportation with all convenient despatch, and that, pending the execution of the order, the Chinese person shall re- main in custody, and shall not be admitted to bail. Jung Goon Jow v. United States, 31: 1091, 108 Pac. 490, 13 Ariz. 255. 12. The court is not deprived of the power to admit to bail a Chinaman who lias appealed from a commissioner's order of deportation, by the act of Congress of November 3, 1893, which provides that pending the execution of an order of de- portation, the Chinese person shall remain in custody of the marshal, and should not be admitted to bail. United States v. Wong Lee Foo, 31: 1088, 108 Pac. 488, 13 Ariz. 252. (Annotated) 13. That one committed to jail to await trial for murder is becoming anemic and suffers from melancholia, which, in the opinion of physicians, will tend to shorten his life, is not sufficient to entitle him to the benefit of a statute permitting the ad- mission to bail of any person in legal cus- tody when it appears that the confinement will endanger his life. Ex parte Johnson, 31: 916, 131 S. W. 316, 60 Tex. Crim. Rep. 50. (Annotated) 14. The fact that there is a conflict in the testimony at a hearing on the charge of a capital offense, before an examining magistrate, does not necessarily show that the proof of guilt is not evident or the pre- sumption thereof not great, so that such magistrate may not refuse bail, but, if from the entire evidence a reasonable doubt of the guilt of the accused is not generated, the proof is evident and bail should be de- nied. Re Thomas, 39: 752, 93 Pac. 980, 20 Okla. 167, 1 Okla. Crim. Rep. 15. Digest 1-52 L.R.A.(N.S.) 15. The burden of proof being on one committed for a capital offense by an exam- ining magistrate, to show that he is illegal- ly deprived of his liberty, upon an applica- tion to the supreme court for bail by writ of habeas corpus, if, after hearing the whole evidence introduced on the application for bail, it is insufficient to generate in the rnind of the court a reasonable doub- whether the accused committed the act charged and in so doing was guilty of a capital offense, such court will, in the ab- sence of any exceptional circumstance, re- fuse bail. Re Thomas, 39: 752, 93 Pac. 980, 20 Okla. 107, 1 Okla. Crim. Rep. 15. ( Annotated ) 16. The fact that a person charged with a capital offense supports his application by the ex parte affidavits of two other persona, tending to establish an alibi, does not so rebut or destroy the presumption arising from the action of the grand jury, in finding the bill of indictment, as to make it the plain legal duty of the judge of the district court to admit the accused to bail. State v. Jenkins, 41: 1198, 57 So. 321, 129 La. 1019. Who may take. 17. Under a statute vesting the power to take bail solely in persons or courts au- thorized by law to arrest and imprison per- sons charged with the commission of crimi- nal offenses, a bail bond taken by the clerk of a district court, or his deputy, is void. Territory ex rel. Thaeker v. Woodring, i : 848, 82 Pac. 572, 15 Okla. 203. (Annotated) Rights of sureties; release. .Bond to indemnify bail, see CONTRACTS, 448 ; FRAUDULENT CONVEYANCES, 52. Conclusiveness against surety of judgment against principal, see JUDGMENT, 254. When statute of limitations begins to run against right of surety to recovei amount paid under erroneous judgment, see LIMITATION OF ACTIONS, 117. See also infra, 25. 17a. Sureties on the bond of one under indictment for felony do not act at their peril in permitting him to leave the state on a visit, so as to be absolutely liable in case he is prevented from returning in time for his trial, because of an unavoidable accident to his person. Hargis y. Begley, 23: 136, 112 S. W. 602, 129 Ky. 477. 18. The insanity and disappearance of his principal do not release the surety on a bail bond. Com. v. Allen, 50: 252, 162 S. W. 116, 157 Ky. 6. (Annotated) 19. A surety on a bail bond who cove- nants that his principal shall appear be- fore the grand jury to answer the charge against him, and shall at all times render himself amenable to the orders and proc- ess of the court in the prosecution of said charge, and if convicted shall render him- self in execution thereof, continues bound after indictment for the future appearance of his principal, until the court requires a different bond, or his liability is terminated by surrendering his principal to the au- thorities. Com. v. Allen, 50: 252, 162 S. W. 116, 157 Ky. 6. 20. An accidental gun-shot wound which C..i)^JrJiJ[ So t BAILIFF; BAILMENT, I. 223 prevents one under an indictment for crime, who has left the state on a visit, from re- turning in time for trial, is within the operation of a statute allowing relief to his sureties for unavoidable casualty or mis- fortune preventing the principal from ap- pearing and defending. Hargis v. Begley, 23: isC, 112 S. W. 602, 129 Ky. 477. (Annotated) 21. Sureties on the bond of one who, being under indictment for crime, did not appear for trial, may excuse their failure to appear at the term of court at which the case was called, by showing that they reJied on a printed court calender which did not show the term at which the case was called, and that they were ignorant of the change from the calender as printed. Hargis v. Begley, 23: 136, 112 S. W. 602, 129 Ky. 477. 22. The courts taking possession of an accused who is out on bail, and committing him to the custody of the jailer, releases the sureties on his bond. Com. v. Skaggs, 44: 1064, 153 S. W. 422, 152 Ky. 268. ( Annotated ) 23. The arrest on a criminal charge of one who had been arrested in the same state ou another charge and released on bail, intermediate the date of the bond and the time when, by the terms thereof, he was obligated to appear in court, and his detention until after such time, releases the sureties on the bond, since the state for whose protection the bond was given, itself rendered performance of the conditions by the prisoner impossible. State v. Funk, 30: an, 127 N. W. 722, 20 N. D. 145. (Annotated) 24. A surety on a bail bond is not- re- leased from liability thereon after the in- dictment of his principal, by the failure of the court to take a new bond or to direct that the principal shall stand under his former bond, since the provisions of the statute that, upon an indictment being' found, the court, if the defendant be on bail, may order a bench warrant to issue, or commit him to custody and fix the amount of bail to be given by him, leave the action to be taken within the discretion of the court. Com. v. Allen, 50: 252, 162 S. W. 116, 157 Ky. 6. Forfeiture of bond. Evidence of forfeiture of, by accused, see EVIDENCE, 1836 25. If the term at which the accused is recognized to appear adjourns without his default having been entered of record, the recognizance cannot thereafter be forfeited, and the recognizors will be discharged from liability thereunder. State v. Dorr, 5: 402, 53 S. E. 120, 59 W. Va. 188. 26. A recognizance given in a criminal proceeding, conditioned for the appearance of the accused before a circuit court on the first day of a certain term thereof, and that he will not depart thence without leave of court, can only be forfeited by calling the accused upon the recognizance at some time during the term, and, if he fails to ap- pear by entering his default of- record. State v. Dorr, 5: 402, 53 S. E. 120, 59 W. Va. 188. (Annotated) Digest 1-52 L.R.A.(N.S.) 27. A bail bond under which one accused of a misdemeanor, the punishment tor which in case of conviction is imprisonment, is at liberty, may, in the discretion of the court, be forfeited if the defendant appear only by attorney at the time and place specified for trial. State v. Johnson, 27: 943, 108 Pac. 793, 82 Kan. 450. (Annotated) Enforcement of bond. 28. A statutory bail bond which is void for want of authority to execute it cannot be enforced as a common-law obligation. Territory ex rel. Thacker v. Woodring, i: 848, 82 Pac. 572, 15 Okla! 203. Recovery back of money deposited as. 29. Money deposited as bail to secure the release of another from custody in which he is illegally detained may be recovered back, although the condition of its deposit was not complied with. State ex rel. Grass v. White, 2: 563, 82 Pac. 907, 40 Wash. 563. (Annotated/ BAILIFF. Contempt by, see APPEAL AND ERROR, 1603; CONTEMPT, 8. Competency of, as juror, see JURY, 61. i,;ytfo I"' '- .E : BAILMENT. /. In general, 1, 2. II. Rights of bailee, 36. III. Duty and liability of bailee, 7-25. As to agistment, see AGISTERS. Duty of owner of vicious dog to bailee, see ANIMALS, 34, 35. Bank as gratuitous bailee, see BANKS, 108, Terms of, as excusing subpoena duces te- cum, see DISCOVERY AND INSPECTION, 10. Under hire and purchase agreement, see FIXTURES, 25, 26. Theft by bailee, see LARCENY, 5. Wrongfully obtaining property from bailed as larceny, see LARCENY, 31. Liability of bailee for acts of servants, see MASTER AND SERVANT, 877-880, 914- 929, 952. When contract of, converted into one of service, see MASTER AND SERVANT, 880. Imputing to bailor negligence of bailee, see NEGLIGENCE, 255, 256. Payment by bailor of claim against himself and bailee as precluding further pro- ceedings against bailee, see PAYMENT, 2. Right of bailor paying claim against him- self and bailee to enforce primary li- ability of bailee, see PAYMENT, 2. As to warehousemen, see WAREHOUSEMEN. /. In general. (See also same 1-10.) Una in Digest L.R.A.. 224 BAILMENT, II., III. What constitutes. 1. The delivery to a creditor by his debtor, who is a public warehouseman, of a receipt covering property actually contained in the warehouse and owned by the ware- houseman, for the purpose of securing the indebtedness by a lien upon the property, operates in law to create the relation of bailor and bailee between the parties, under N. D. Laws 1001, chap. 141, p. 180, Rev. Code, 2262-2272, relating generally to warehousemen, during the time the prop- erty remains in the warehouse, and renders the surety on the warehouseman's bond li- able for its safe-keeping. State use of Hart-Parr Co. v. Robb-Lawrence Co. 16: 227, 115 N. W. 846, 17 X. D. 257. Bailor's right of action against third persons. 2. The liability of a third person for the loss of a horse which he is knowingly using for a purpose not contemplated in a contract of bailment is not affected by the fact that the loss is due to inevitable ac- cident. Palmer v. Mayo, 15: 428, 68 Atl. 369, 80 Conn. 353. II. Right* of bailee. (See also same heading in Digest L.R.A. 1-10.) 3. A bailee for hire to transport and store material for the bailor, who contracts to purchase a quantity of such material from the bailor, cannot fill his order from the material in his possession, without the consent of the bailor, and his attempt to do so will justify termination of the bail- ment. Atlantic Bldg. Supply Co. v. Vul- canite Portland Cement Co. 36: 622, 96 N. E. 370, 203 N. Y. 133. (Annotated) 4. The bailor, by the bailment, im- pliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired. Williamson v. Phillipoff, 52: 412, 64 So. 269, 66 Fla. 549. 5. Independently of special agreement, express or implied, the bailor is not bound to make such repairs as are rendered neces- sary by ordinary wear and tear, but he is ordinarily bound to provide that the article hired should be in good condition to last during the time for which it is hired, and beyond that he is liable only for extraordi- nary expenses arising from unexpected causes. Williamson v. Phillipoff, 52: 412, 64 So. 269, 6ft Fla. 549. (Annotated) 6. In an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the full value of the goods, although he would have had a good answer to an action by the bail- or for damages for the loss of the thing bailed. The Winkfield, 3 B. R. C. 368, [1902] P. 42. Also Reported in 71 L. J. Prob. N. S. 21, 50 Week. Rep. 246, 85 L. T. N. S. 688, 18 Times L. R. 178, 9 Asp. Mar. L. Cas. 259. (Annotated) Digest 1-52 L,.R.A.(N.S.) ///. Duty and liability of bailee. (See also same heading in Digest L.R.A. 1-10.) When statute of limitations begins to run, see LIMITATION OF ACTJONS, II. d. 7. A bailee for hire impliedly under- takes to keep the thing hired in repair, and must bear such expenses as are incident thereto, where the use of the thing bailed is the essence of the contract, unless the necessity therefor arises from some defect in the thing against which the bailor has / expressly or impliedly warranted it. Williamson v. PhilUpotF. 52: 412, 64 So. 269, 66 Fla. 549. 8. A bailee for hire is, in the absence of express stipulations to the contrary, liable only pro tanto for the payment of .hire, where the hired chattel is destroyed without fault of the bailee before the ex- piration of the period during which he was to have the use of it. Williamson v. Philli- poff, 52: 412, 64 So. 269, 66 Fla. 549. 9. A bailee cannot relieve himself from the duty of redelivering the property to the bailor, by showing that at some unknown time it had been stolen by an unknown thief from an undisclosed owner, and that the bailor by reasonable inquiry could have ascertained that fact, and that the bailee had purchased the property from one claim- ing to be the agent of such owner. Jensen v. Eagle Ore Co. 33: 681, 107 Pac. 259, 47 Colo. 306. (Annotated) Loss of or injury to property gen- erally. Joinder of causes of action, seo ACTION OR SUIT, 108. Liability of carrier for loss of parcel .left in check room, see CARRIERS, 688-693. Presumption and burden of proof, see EVI- DENCE, 375, 449-452. Opinion evidence as to negligence of bailee, see EVIDENCE, 1346. Evidence of costs of repairs to automobile in action for injury thereto, see EVIDENCE, 2438. Liability of innkeeper as gratuitous bailee, see INNKEEPERS, 21, 32. Theft by. bailee, see LARCENY, 5. Liability of bailee for negligence of serv- ants, see MASTER AND SERVANT, 914- 918. Sufficiency of complaint in action against bailee for loss of property bailed, set- PLEADING, 240. Question for jury as to negligence, see TRI- AL, 591. Liability of warehousemen, see WARE- HOUSEMEN, 8-10. 10. A storekeeper is not responsible for the theft of valuables from the pockets of clothing of a customer which is laid aside to try on garments which the customer de- sires to purchase, where the customer, knowing that the clerks are busy, proceeds to wait upon himself, and, to his knowledge, there is no one* but himself to watch the i.B.tt):A.H.j ss-i BAKER. 225 garments laid aside. Wamser v. Browning, K. & Co. 10: 314, 79 N. E. 861, 187 N. Y. 87. (Annotated) 11. A vendor of chattels, who undertakes to ship them to a consignee and send the bill of lading to the buyer, is liable for their value in case they are lost through his fail- ure to see that they reach the carrier, and to secure the bill of lading. Sprinkle v. Brim, 12: 679, 57 S. E. 148, 144 N. C. 401. (Annotated) 12. The proprietor of a bath house, who, for a consideration, furnishes bath rooms, bathing suits, and other accessories of the bath to those who desire to bathe in the sea, and also receives their money, jewelry, or other valuables for safe-keeping, is a de- positary for hire in relation thereto, and is liable for any loss occurring from want of ordinary care on his part. Walpert v. Bo- han, 6: "828, 55 S. E. 181, 126 Ga. 532. (Annotated) 13. One hiring horses to draw castings along a public road does not convert a team by detaching it from the wagon on which it is working, and attaching it to one of his own which has become stalled on a de- fective road, to assist in getting it out, so as to render him liable for an accident to it while it is so engaged. Weller v. Camp, 28: 1 1 06, 52 So. 929, 169 Ala. 275. 14. A livery-stable keeper is not liable for injury to a horse by its getting loose in the night and being kicked by another horse, where it was tied in the usual, and customary manner, and as the owner had tied it when he brought it to the stable. Bigger v. Acree, 23: 187, 112 S. W. 879, 87 Ark. 318. (Annotated) 15. A bailee becomes an insurer for the return of a stallion under an agreement to return thf animal in as good condition as when received, or to pay for him. Grady v. Schweinler, 14: 1089, 113 N. W. 1031, 16 N. D. 452. (Annotated) 16. A bailee who contracts to return a stallion in as good condition as when re- ceived, or to pay for him, is liable for the value of the animal, which dies of disease while in the bailee's possession, although without fault on the part of the bailee. Grady v. Schweinler, 14: 1089, 113 N. W. 1031/16 N. D. 452. 17. A contract of hire between bailor and bailee, that the bailee will return a stal- lion in as good condition as when received, or pay for it, creates a liability on the bailee greater than that imposed by law, in the absence of a special contract, that of ordinary care. Grady v. Schweinler, 14: 1089, 113 N. W. 1031, 16 N. D. 452. 18. A garage keeper to whom an auto- mobile is entrusted for repairs is a bailee for hire and, while not an insurer, is bound to use reasonable care to protect and pre- serve it. Roberts v. Kinley, 45: 938, 132 Pac. 1180, 89 Kan. 885. 19. The proprietor of a garage in which automobiles are kept f-or hire is not an insurer of the machines, but owes the duty to exercise only ordinary care with regard Digest 1-52 L.RJMN.S.) thereto. Firemen's Fund Ins. Co. v. Schrei- ber, 45: 314, 135 N. W. 507, 150 Wis. 42. ( Annotated ) 20. A garage keeper is bound to exercise reasonable or ordinary care to protect from injuries cars kept by their owners at his garage for hire. McLain v. West Virginia Automobile Co. 48: 561, 79 S. E. 731, 72 W. Va. 738. (Annotated) 21. The keeper of a garage is not in the exercise of reasonable care in allowing a car to be taken out of the garage by one whose apparent authority arose from the fact that he had instructed the owner in its use on several occasions about two months previous. McLain v. West Virginia Automobile Co. 48: 561, 79 S. E. 731, 72 W. Va. 738. 22. A custom of garage keepers contrary to the implied obligation of reasonable care for safe-keeping, arising in favor of an au- tomobile owner by the storing of his car at a public garage, cannot absolve the garage keeper from observance of such care. McLain v. West Virginia Automobile Co. 48: 561, 79 S. E. 731, 72 W. Va. 738. By fire. Burden of proof as to negligence where property is destroyed by fire, see EVI- DENCE, 452. Liability of keeper of livery stable, see LIVERY STABLES, 1. 23. A warehouseman seeking to avoid liability for the loss of the property bailed on account of its destruction by fire must show the circumstances of the fire from which absence of negligence on his part may be inferred. Fleischman v. Southern R. Co. 9: 519, 56 S. E. 974, 76 S. C. 237. While in cold storage. 24. One contracting to keep meat in cold storage is liable for loss caused by its deterioration in value, because of absorb- ing odors from other substances with which it is permitted to* come into contact. Smith v. Diamond Ice & Storage Co. 38: 994, 118 Pac. 646, 65 Wash. 576. (Annotated) 25. Although a piece of meat has the odor of a chemical about it when delivered to a cold storage company, the company may be found negligent in permitting it to remain with the rest of the consignment which it has undertaken to store, so as to be liable in case the whole mass is impreg- nated and deteriorated in value by contact with such piece, where the owner was ab- sent wjtien the meat was delivered to the storage company by its agent, and did not know its condition. Smith v. Diamond Ice & Storage Co. 38: 994, 118 Pac. 646, 65 Wash. 576. BAKER. Unfair competition by, in copying size, shape, and condition of surface of loaf of bread, see UNFAIE COMPETITION, 7-9. 15 226 BAKERIES BANKRUPTCY. BAKERIES. Police power as to, see CONSTITUTIONAL LAW, 691. BALL GAME. Evidence as to precautions to prevent injury at, see EVIDENCE, 1762. In public street, see MUNICIPAL CORPORA- TIONS, 329. Proximate cause of injury to patron at, see PROXIMATE CAUSE, 36. See also BASEBALL. BALLOT BOXES. Failure of custodian of, to obey order to deliver boxes to clerk of court, see CON- TEMPT, 26. Order to place at disposal of officers in man- damus proceeding to compel them to declare result of election, see MANDA- MUS, 81; SUBPCENA DUCES TfiCUM, 1. BALLOT MACHINES. See ELECTIONS, 41-47. BALLOTS. See ELECTIONS, III. b. BALL PLACING. In public streets, see MUNICIPAL CORPORA- TIONS, 329. See also BASEBALL. BAND STAND. Injury by article dropping from, see AMUSE- MENTS, 5, 6. BANK CHECH. Definition of, see CHECKS, 2. BANKING. See BANKS. Digest 1-52 L.R.A.(N.S.) BANKRUPTCY. /. In general; jurisdiction; proced- ure, 1-X5. II. Assets; their collection and admin- istration, 2696. a. In general; what constitutes assets, 2654=. b. Avoidance of prior transfer, preference, or levy, 55 90. 1. General effect of adjudica- tion in bankruptcy, 55, 56. 2. Validity of prior transfers or liens; preferences, 57-OO. a. In general, 5782. b. Computation of period of retroactive avoid- ance, 83 9O. c. Mode of collecting or recover- ing assets, 9196. III. Rights in assets; title, rights, and liabilities of assignee or trustee, 97-110. IV. Claims against estate; distribu- tion, 111138. a. What claims provable; set-offs, 111-131. b. Presentment and proof, 132, 133. c. Distributive rights and distri- bution, 134138. V. Discharge; effect, 139178. VI. Foreign bankruptcy and discharge, 179, ISO. Abatement of action by failure of trustee in bankruptcy to intervene, see ABATE- MENT AND REVIVAL, 2. Right of town to enforce lien for trust funds on property of bankrupt, see ACCESSION AND CONFUSION, 2. Agreement not to resort to, as consideration for release of claim on part payment, see ACCORD AND SATISFACTION, 21, 22. Who may be heard on appeal in bankruptcy proceedings, see APPEAL AND ERKOR, 418. Review of findings of referee in bankruptcy, see APPEAL AND ERROR, 1012, 1013. Method of reviewing action of bankruptcy court, see APPEAL AND ERROR, 51-55. Scope of review on appeal in bankruptcy proceedings, see APPEAL AND ERROR, 496, 504. Effect of, on right to arrest for debt, see ARREST, 16. Attachment of funds of bankrupt's estate in possession of court, see ATTACH- MENT, 2. Validity as against trustee of agreement permitting bankrupt mortgagor to sell property, see CHATTEL MORTGAGE, 18. Powers of state court during bankruptcy proceeding, see COURTS, 273. Attachment from state court during bank- ruptcy proceedings, see COURTS, 273. Federal bankruptcy court following state decisions, see COURTS, 322. BANKRUPTCY, I. 227 Admission of schedules filed in bankruptcy proceeding, in prosecution against bankrupt for selling property, aee CRIMINAL LAW, 117. Production of bankrupt's books as infring- ing privilege against self-crimination, see CRIMINAL LAW, 118. Election of remedy by trustee in, see ELEC- TION OF REMEDIES, 23, 24. Estoppel of owner to assert title to prop- erty as against purchaser at bank- ruptcy sale, see ESTOPPEL, 117. Effect of failure to include in bankruptcy schedule claim for damages for libel, to bar action therefor, see ESTOPPEL, 121. Admissibility of records in bankruptcy proceedings, see EVIDENCE, 766. Admissibility of admissions against inter- est of owner of estate against trustee in bankruptcy, see EVIDENCE, 1245. Right to proceed in bankruptcy against in- solvent who purchases goods on credit without disclosing facts, see FRAUD AND DECEIT, 22. Right to enjoin sale under trust deed by bankrupt, see INJUNCTION, 90. As to insolvency, see INSOLVENCY. Change of title of insured by filing petition in, see INSURANCE, 225, 226. Collateral attack on judgment in, see JUDG- MENT, ]24. Conclusiveness of adjudication in bankrupt- cy, see JUDGMENT, 153. Effect of judgment against husband in bankruptcy proceeding to which wife is not a party on her liability as his surety, see JUDGMENT, 255. Binding effect on bankrupt's wife of orders by referee in bankruptcy disposing of property as exempt, see JUDGMENT, 245. Lien of judgment against bankrupt, see JUDGMENT, 272, 319. Sale of leasehold estate by trustee in bank- ruptcy as assignment of lease, see LANDLORD AND TENANT, 37. Lien of township on property of bankrupt bought with township funds, see LIENS, 3. Right to mechanics' lien for services ren- dered by receiver or trustee in bank- ruptcy of contractor, see MECHANICS' LIENS, 5. Effect of bankruptcy of original contractor on lien of materialman or subcontract- or, see MECHANICS' LIENS, 71. Trustee in bankruptcy of contractor as nec- essary party in action to enforce me- chanics' lien, see MECHANICS' LIENS, 90. Ne exeat bond to secure release of bankrupt, see NE EXEAT. Perjury by bankrupt, see PERJURY, 8, 9. Right of conditional vendor as affected by bankruptcy of purchaser, see SALE, 242. Instruction as to consideration of state- ment by bankrupt, see TRIAL, 964. Digest 1-52 L.R.A.(N.S-) Impeaching witness by showing conviction for fraudulently concealing property from trustee in bankruptcy, see WIT- NESSES, 162. /. In general; jurisdiction; procedure* 1. The release of the honest, unfortu- nate, and insolvent debtor from the burden of his debts, and his restoration to business- activity in the interest of his family and the general public, is one of the main ob- jects of the bankruptcy law of 1898. Har- die v. Swofl'ord Bros. Dry Goods Co. 20: 785, 165 Fed. 588, 91 C. C. A. 426. 2. The sale of a bankrupt's property free from his wife's inchoate right of dower should be approved if it can be made with her consent, and a fair allowance made to her for its value out of the proceeds. Savage v. Savage, 3: 923, 72 C. C. A. 494, 141 Fed. 346. Jurisdiction. Concurrent jurisdiction of courts, see COURTS, 295. See also infra, 17, 91, 92. 3. That property of a bankrupt is lo- cated in a district other than that in which bankruptcy proceedings against him are in- stituted, does not prevent the court's deter- mining all liens and interests affecting it. Thomas v. Woods, 26: 1180, 173 Fed. 585, 97 C. C. A. 535. 4. Where bankruptcy proceedings are not begun within four months of the filing of a preferential mortgage, so that the Fed- eral court has no jurisdiction thereof, the state court may, if the proceedings are be- gun within the prescribed time, act under a state statute which makes such mortgage,, when properly attacked, operate as a vol- untary assignment for the benefit of all j creditors; and it is immaterial that the- bankrupt has, in the meantime, secured a; discharge from the bankruptcy court. Lou- isville Dry Goods Co. v. Lanman, 28: 363-, 121 S. W. 1042, 135 Ky. 163. (Annotated) What is an act of bankruptcy. 5. An adjudication of bankruptcy against a partnership is not warranted by an averment that the firm, within four months, paid out large sums of money in the settlement of debts of the firm, thereby mak- ing preferences among the creditors. Mills v. Fisher, 16: 656, 159 Fed. 897, 87 C. C. A. 77. Who may be adjudged bankrupt. Liability for mistakenly instituting bank- ruptcy proceedings, see MALICIOUS PROSECUTION, 14. 6. A farmer is not taken out of the class engaged principally in farming, which can- not, under the provisions of the bankrupt- cy act, be subjected to involuntary bank- ruptcy proceedings, by the fact that he maintains cows from the produce of his farm and that bought elsewhere, and sells the milk at retail, although he also pur- chases and distributes milk of other pro- ducers. Gregg v. Mitchell, 20: 148, 166 Fed. 725, 92 C. C. A. 415. (Annotated) 7. A farmer does not, .by executing a C . /-... i 228 BANKRUPTCY, I. general assignment for benefit of creditors, cease to be a person engaged chiefly in farm- ing, so as to deprive himself of the excep- tion in his favor in the bankruptcy act which prevents the institution of involun- tary proceedings against him. Olive v. Armour & Co. 21: 109, 167 Fed. 517, 93 C. C. A. 153. 8. A corporation whose principal busi- ness is making and constructing arches, walls, and abutments, bridges, buildings, etc., out of concrete, in carrying on which business it buys and combines together raw materials, and supplies the necessary labor, machinery, and appliances, is a "corporation engaged principally in manufacturing," within the meaning of the bankrupt act of July 1, 1898 (30 Stat. at L, 544, chap. 541, U. S. Comp. Stat. 1901, p. 3418), 4, as amended by the act of February 5, 1903 (32 Stat. at L. 797, chap. 487, U. S. Comp. Stat. Supp. 1909, p. 1309), denning the persons or cor- porations which may be adjudged involun- tary bankrupts, although such company makes its product, and gives it form and shape, at the place where it is to remain. Friday v. Hall & Kaul Co. 26: 475, 30 Sup. Ct. Rep. 261, 216 U. S.. 449, 54 L. ed. 562. (Annotated) 9. Involuntary bankruptcy proceedings cannot be instituted against public-service corporations, under the act of 1898. Re Hudson River Power Transmission Co. 33: 454, 183 Fed. 701, 106 C. C. A. 139. (Annotated) Procedure. 10. The provision of 7, subdiv. 9, of the bankruptcy act, which requires a bankrupt to submit to examination, contemplates ex- amination under oath. Edelstein v. United States, 9: 236, 149 Fed. 636, 79 C. C. A. 328. 11. The statute permitting the bank- ruptcy court to require persons to appear and be examined concerning the acts, con- duct, or property of the bankrupt whose estate is in process of administration unr der this act does not authorize an order directing one against whom a petition in bankruptcy has been filed, to appear for ex- amination, before he has joined issue on the petition, or the time has been fixed for him to show cause why he should not be ad- judged a bankrupt, since prior to such time the estate is not in process of administra- tion; and it is immaterial that a receiver was appointed when the petition was filed. Skubinsky v. Bodek, 24: 985, 172 Fed. 332. 97 C. C. A. 116. (Annotated) Custody and control of bankrupt es- tate. 12. Property in the course of administra- tion under the bankruptcy act, while not exempted from taxation or freed from tax liens or claims theretofore fastened upon it, is nevertheless in custodia legis; and a pre-existing tax lien or claim cannot be con- verted into a full title by the procurement of a tax deed without the court's sanction. Eppstein v. Orahood, 17: 465, 156 Fed. 42, 84 C. C. A. 208. (Annotated) Digest 1-52 L.R.A.(N.S.) Bankruptcy of partnership or mem- ber thereof. See also supra, 5; infra, 66, 70, 126, 154, 155, 177, 178. 13. A partnership, under the bankruptcy act of July 1, 1898, chap. 541, 30 Stat. at L. 544, U. S. Comp. Stat. 1901, p. 3418, is a distinct entity, separate from the partners who compose it, which owns its property and owes its debts apart from the individ- ual property of its members, which it does not own, and apart from the individual debts of its members, which it does not owe; and it may be adjudged bankrupt although the partners who compose it are not so ad- judicated. Re Bertenshaw, 17: 886, 157 Fed. 363, 85 C. C. A. 61. 14. A partnership is insolvent under the bankruptcy act of July 1, 1898, chap. 541, 30 Stat. at L. 544, U. S. Comp. Stat. 1901, p. 3418, if the partnership property is in- sufficient to pay the partnership debts, be- cause by 1 (19) of the act it is a person, and because under 1(15) any person is insolvent whose property is insufficient to pay its debts, and since the only property a partnership has or can convey or apply to the payment of its debts is partnership property, and the only debts it owes are the partnership debts. Re Bertenshaw, 17: 885, 157 Fed. 363, 85 C. C. A. 61. 15. Partnership creditors may pursue unadjudicated partners by actions at law and suits in equity before, during, and after the proceedings in bankruptcy against the partnership. Re Bertenshaw, 17: 886, 157 Fed. 363, 85 C. C. A. 61. 16. An adjudication of bankruptcy against a partnership is not warranted by the preference of a firm creditor by a part- ner out of his own property, although hia credit is the sole asset of the partnership. Mills v. Fisher, 16: 656, 159 Fed. 897, 87 C. C. A. 77. (Annotated) 17. A bankruptcy court is without ju- risdiction, after determining that a part- nership is bankrupt, but that none of the partners is a bankrupt, summarily to take arid administer in the proceedings against the partnership the individual estate of a solvent partner without his consent. Re Bertenshaw, 17: 886, 157 Fed. 363, 85 C. C. A. 61. 18. The provision of the bankruptcy act of July 1, 1898, chap. 541, 5f, 30 Stat. at L. 548, U. S. Comp. Stat. 1901, p. 3424, that the net proceeds of partnership property shall be appropriated to the payment of partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts, enun- ciates a rule of administration of partner- ship and individual property; and it gov- erns only such partnership and such indi- vidual property as the alleged bankrupts own at the time the petition is filed, and that which has been previously transferred fraudulently or to make a voidable prefer- ence. Sargent v. Blake, 17: 1040, 160 Fed. 57, 87 C. C. A. 213. 19. The trustee of the estate of a bank- rupt partnership is not the trustee of the BANKRUPTCY, II. a, individual property of the unadjudicated partners, and has no right to administer it; nor is he the trustee or the assignee of the claims of the partnership creditors, nor their agent or attorney to collect those claims out of other than the partnership property; and where no partner is adjudged bankrupt, the trustee has no power to en- force such claims against any property ex- cept that of the partnership, or against any unadjudicated partner or other person who has none of the partnership property. Re Bertenshaw, 17: 886, 157 Fed. 363, 85 C. C. A. 61. 20. Members of a partnership which has committed an act of bankruptcy may be re- quired by the court to bring their property into the bankruptcy proceedings for admin- istration, although proceedings wxr.iid uot, under the statute, lie against them individ- ually because they belong to an exempt class, or have committed no act of bank- ruptcv. Dickas v. Barnes, 5: 654, 140 Fed. 849, 72 C. C. A. 261. (Annotated) 21. A creditor of a partnership which is insolvent and without assets may secure a bankruptcy adjudication against one of its members who applies his whole separate estate in satisfaction of a liability of the partnership. Mills v. Fisher, 16: 656, 159 Fed. 897, 87 C. C. A. 77. 22. The discharge of the partnership where the partners are not adjudicated bank- rupt does not discharge the partners from their liability for the partnership debts. Re Bertenshaw, 17: 886, 157 Fed. 363, 85 C. C. A. 61. 23. One whose bonds have been converted and consumed by a brokerage firm cannot, upon the theory that the tort is both joint and several, so as to permit him to proceed in contract, prove his claim in bankruptcy proceedings both against the estate of the firm and that of an individual partner who is not shown to have participated in the conversion pr benefited thereby. Reynolds v. New York Trust Co. 39: 391, 188 Fed. 611, 110 C. C. A. 409. (Annotated) 24. The trustee in bankruptcy of the surviving member of a partnership takes title to the firm property as well as that belonging to him individually. Hewitt v. Hayes, 27: 154, 90 N. E. 985, 204 Mass. 586. 25. The property of a partnership which has not been adjudicated a bankrupt does not pass to the trustee of the estate of an individual member who has been adjudged a bankrupt, so as to defeat an attachment lien of a firm creditor, levied on firm assets within four months prior to the adjudica- tion of the individual as a bankrupt, under 67 of the Federal bankruptcy act of 1898, which provides that all attachments ob- tained against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed void in case he is adjudge'd a bankrupt, and the property affected shall pass to the trustee unaffected by the attachment. American Steel & W. Co. v. Coover, 30: 787, 111 Pac. 217, 27 Okla. 131. (Annotated) Digest 1-52 L.R.A.(N.S.) II. Assets; tJieir collection and adminis- tration. a. In general; what constitutes assets. Impounding assets of nonresident alien in bankruptcy proceeding, see CONFLICT OF LAWS, 135. Contempt in refusing to obey order to turn over funds, see CONTEMPT, 39, 78. Concealment of assets as continuing of- fense, see CRIMINAL LAW, 20. Sufficiency of evidence to show that money on deposit was property of bankrupt corporation, see EVIDENCE, 2092. Evidence as to property belonging to bank- rupt not reduced to possession, see EVI- DENCE, 1760. When title passes so as to give trustee in bankruptcy right to property, see SALE, 24. See also supra, 19, 24, 25; infra, 136. 26. The grantor in a deed of trust to se- cure unmatured debts less in amount than the value of the property retains an inter- est ; n the property which will pass to the trustee upon the institution of bankruptcy proceedings against him. Re Jersey Island Packing Co. 2: 560, 138 Fed. 625, 71 C. C. A. 75. 27. A sum of money paid by the lessee of a hotel upon the acceptance of hio pro- posal to lease the hotel for a term of iifteen years, and pay the sum so paid as an ad- vance payment on rent, and keep such ad- vance good during the first five years of the term, with the privilege of reducing it at the rate of one third thereof per year for the third, fourth, and fifth years of the term, is not a security, nor is it a bonus or independent consideration for the lease, but is an advance payment of rent to become due for the third, fourth, and fifth years of the term, and under th-e lease, which pro- vides that a re-entry by the lessor for con- ditions broken shall not work a forfeiture of the rent due or to become due, where the lessor has terminated the lease within the first year, as was his right thereunder, on account of the bankruptcy of the lessee, the trustee in bankruptcy cannot recover the sum so paid. Galbraith v. Wood, 50: 1034, 144 N. W. 945, 124 Minn. 210. (Annotated) 28. The trustee in bankruptcy of one who purchased property while insolvent, and with knowledge that he could not pay for it, cannot claim the percentages allowed by the bankruptcy law out of the proceeds of a sale of such property by the receiver, since, as the property was obtained by fraud, the pro- ceeds thereof form no part of the estate of the bankrupt, where such sale has been re- scinded by the original vendors and demand made for the proceeds. Gillespie v. J. C. Piles & Co. 44: i, 178 Fed. 886, 102 C. C. A. 120. 29. A lien acquired under the state law by an assignee for creditors, upon property which had been conditionally sold to the assignor by an instrument not filed with the register of deeds as required by statute, 230 BANKRUPTCY, II. a. may, upon order of the court of bank- ruptcy, be retained by the trustee for the benefit of the creditors, upon his succeeding the assignee by the institution of bank- ruptcy proceedings against the assignor, in view of that provision of the bankruptcy law which provides that claims which, for want of record, are not valid lions as against the claims of creditors of the bank- rupt, shall not be liens against his estate. Re Fish Bros. Wagon Co. 26: 433, 164 Fed. 553, 90 C. C. A. 427. (Annotated) 30. A bankruptcy court which attempts to sell encumbered property of the bank- rupt free from liens may charge the ex- pense of the sale against the general es- tate of the bankrupt if one exists, and per- mit the lien holder to take the entire pro- ceeds of the sale if they do not exceed the amount of his claim. Re Harralson 29: 737, 179 Fed. 490, 103 C. C. A. 70. (Annotated) 31. A bankrupt and the receiver of his property may enter into a nonwaiver agree- ment with an insurer of the property for the purpose of securing an adjustment of claim under an insurance policy which is claimed to have been forfeited because -of failure to comply with the iron-safe -clause. Day v. Home Ins. Co. 40: 652, 58 -So. 549, 177 Ala. 600. Insurance; surrender value. .'Statute permitting bankrupt to assign in- surance to his wife free from claims of creditors, see INSURANCE, 449, 450. 32. Policies of life insurance on the life of the bankrupt which do not have a cash surrender value available to the bankrupt at the time ot bankruptcy as a cash asset do not pass to the trustee in bankruptcy, under the bankrupt act of July 1, 1898 (30 :Stat. at L. 565, chap. 541), '70a, subd. 5, which, though investing the trustee with the title to property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold under judicial proc- ess against him, provides that a bankrupt, when the cash surrender value of insurance policies having such value has been ascer- tained, may paj or secure such sum to the trustee, and continue to hold and own them free from claims of creditors, and that oth- erwise the policies shall pass to the trus- tee as assets. Burlingham v. Grouse, 46: 148, 33 Sup. Ct. Rep. 564, 228 U. S. 459, 57 L. ed. 920. (Annotated) 33. The time when the petition in bank- ruptcy is filed fixes the cash surrender value of the insurance policies mentioned in the proviso in the bankrupt act of July 1, 1898 (30 Stat. at L. 565, chap. 541), 70a, subd. 5, that a bankrupt, when the cash surrender value of insurance policies hav- ing such value has been ascertained, may pay or secure such sum to the trustee and continue to hold and own them free from the claims of creditors, otherwise the pol- icies shall pass to the trustee as assets, and hence the death of the bankrupt between the time of the filing of the petition and the date of the adjudication does not make Digest 1-52 X,.R.A.(N.S.) the proceeds of the policies, over and above the cash surrender value, assets in the hands of the trustee, although that section also provides that the trustee, upon liis appointment and qualification, becomes vested by operation of law with the title of the bankrupt as of the date of adjudi- cation. Everett v. Judson, 46: 154, 33 Sup. Ct. Rep. 568, 228 U. S. 474, 57 L. ed. 927. 34. The absolute assignment by a bank- rupt of policies of life insurance on his life does not exclude them from the oper- ation of the proviso in the bankrupt act of July 1, 1898, 70a, subd. 5, that a bank- rupt, when the cash surrender value of pol- icies having such a value has been ascer- tained, may pay or secure such sum to the trustee, and continue to hold and own them free from the claims of creditors, otherwise they shall pass to the trustee as assets; and such policies, therefore, if they have no cash surrender value, do not pass to the trustee in bankruptcy. Burlingham v. Grouse, 46: 148, 33 Sup. Ct. Rep. 564, 228 U. S. 459, 57 L. ed. 920. 35. The death of one holding a policy of insurance upon his life, payable to his per- sonal representatives or estate, after the filing of a petition in bankruptcy against him, and before adjudication, destroys the surrender value of the policy, and, it hav- ing been capable of assignment by him, and passing to the bankruptcy trustee under 70a-5 of the bankruptcy act, there is noth- ing upon which the proviso to that section allowing redemption by payment to the trustee of the surrender value of the policy can act, and therefore the whole proceeds of the policy become assets in the hands of the trustee. Re Andrews, 41: 123, 191 Fed. 325, 112 C. C. A. 69. (Annotated) 36. The proviso in 70 of the bankrupt- cy act, that when a bankrupt shall have an insurance policy with a cash surrender value payable to himself or his estate, he may, under certain circumstancfs, pay such value to the trustee and retain the policy, does not interfere with the operation of the provision in the section that the trustee shall be vested by operation of law with any property which the bankrupt could by any means have transferred, and therefore a policy the beneficiary in which may be changed by the bankrupt at pleasure will pass to the trustee. Re Orear, 30: 090, 178 Fed. 632, 102 C. C. A. 78. (Annotated) 37. A statute permitting a married woman to take out insurance on her hus- band's life does not render exempt, under the bankruptcy act, the policy taken out by him and payable to her if she survives him, otherwise to his estate or beneficiary designated by him, and which may be sur- rendered by him for cash or value. Re White, 26: 451, 174 Fed. 333, 98 C. C. A. 205. 38. The trustee has a right to surrender insurance on the life of the bankrupt, and receive the proceeds, where the policy pro- vides that it shall be payable to his wife if she survive him, otherwise to his estate, or to any beneficiary to be named by him, and which permits the insured himself at any (.8"V1).A.-H.,I $.?-[ t? BANKRUPTCY, II. a. 231 time to surrender the policy for paid-up in- surance or other value. Re White, 26: 451, 174 Fed. 333, 98 C. C. A. 205. (Annotated) Insurance agent's commissions on re- newals. 39. A trustee in bankruptcy of an insur- ance agent has, under the provisions of the bankruptcy act, a right to his commissions on renewals as property which may be trans- ferred, where his contract gives him such commissions for a term of years, and, in case of Iiis death, gives them to his estate, although the contract is terminable by the company upon his failure to comply with its conditions. Re Wright, 18: 193, 157 Fed. 544, 85 C. C. A. 206. (Annotated) Estate held by entireties. 40. The trustee in bankruptcy of a man cannot reach any portion of an estate held by him and his wife by entireties during the life of the wife. Re Meyer, 36: 205, 81 Atl. 145, 232 Pa. 89. (Annotated) Contingent interest under will. 41. The assignee in bankruptcy is enti- tled to the interest of one who, living at the death of testator, is a beneficiary in the will giving the income of property to his father for life, and, upon the father's death, giving the property to him if living. Clarke v. Fay, 27: 454, 91 N. E. 328, 205 Mass. 228. 42. A trustee in bankruptcy will not take the interest of a beneficiary under a will, if it depends upon the death of an aunt dying without issue after the death of the father of the beneficiary, and while the beneficiary is yet alive. Clarke v. Fay, 27: 454, 91 N. E. 328, 205 Mass. 228. 43. The estate of a grandchild under the will of its grandfather, which is dependent upon its surviving its father, although con- tingent, passes . to his trustee in bank- ruptcy, under a statute providing that ex- pectant estates, which include contingent future estates, in which the person to whom they are limited to take effect remains un- certain, are descendible, devisable, and alienable. Clowe v. Seavey, 47: 284, 102 N. E. 521, 208 N. Y. 496. (Annotated) Cause of action generally. 44. A cause of action which would sur- vive and pass to the personal representative of the plaintiff, so that the avails thereof would be distributed in administration of his estate, will pass to his trustee in bank- ruptcy, under the provisions of 70 of the bankruptcy act of 1898 (30 Stat. at L. 566, chap. 541, U. S. Comp. Stat. 1901, p. 3451). Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 X. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. d- rt 45. A right of action for tort is not prop- erty, within the meaning of the national bankruptcy act; and, even though an action is pending thereon, such right does not pass to the trustee in bankruptcy. Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 46. The right of action given by Neb. Comp. Stat. 1901, chap. 91a, 11, to recover damages caused by a wrongful conspiracy to prevent competition, is for injury to Digest 1-52 L.R.A.(N.S.) "business, employment, or property" and, under the national bankruptcy act, 6, passes to an assignee in bankruptcy. Cle- land v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 47. Malicious attachment of corporate property is not a personal tort, but gives rise to a cause of action for injury to prop- erty, which passes to the trustee in bank- ruptcy of the corporation, upon its adjudi- cation as a bankrupt, and upon his qualify- ing as such trustee. Hansen Mercantile Co. v. Wyman, P. & Co. 21: 727, 117 N. W. 926, 105 Minn. 491. (Annotated) Bankrupt's interest in pending ac- tion. 48. The interest of a bankrupt in a pending action, which he might sell and as- sign and of which his creditors might obtain the benefit on administration of his estate, is "property" within the provision of the national bankruptcy act July 1, 1898 (30 Stat. at L. 566, chap. 541, U. S. Comp. Stat. 1901, p. 3451), 70, subd. 5, rather than a "right of action" under subd. 6, where the state statutes make a distinction between a plaintiff's interest in a pending action, and his cause of action before suit brought, making one assignable in cases where the other is not. Cleland v. Anderson. 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 49. The interest of a bankrupt in a pending action to recover damages sus- tained by reason of an unlawful conspiracy to prevent competition passes to the trus- tee; and a purchaser, and an assignee there- of, claiming under a trustee's sale, may satisfy the claim. Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. :.; .' j Action for personal injuries. 50. A right of action for a negligent in- jury to the person does not vest in the bank- ruptcy trustee under statutory provisions that he shall be vested with title to all property which the bankrupt could have transferred, or which could be levied upon and sold under judicial proceedings against him, and rights of actions arising upon con- tracts, or from injury to property. Sibley v. Nason, 12: 1173, 81 N. E. 887, 196 Mass. 125. ( Annotated ) 51. The claim for loss of time which one negligently injured by another is entitled to include in his recovery of damages can- not be separated from the claim for the in- jury, so as to pass to a bankruptcy trustee appointed after injury, but before entry of judgment. Sibley v. Nason, 12: 1173, 81 N. E. 887, 196 Mass. 125. Action for slander or libel. 52. A claim for damages, based on slander or libel, being a peculiarly person- al action, and nonassignable, and therefore nonenforceablc by a trustee in bankruptcy, need not be placed on the schedule of a pe- titioner in bankruptcy. Irion v. Knapp, 43: 940, 60 So. 719, 132 La. 60. (Annotated) 232 BANKRUPTCY, II. b, 1, 2. Corporate assets. Sec also supra, 47. 53. Unpaid subscriptions to the stock of a corporation constitute assets in the hands of its trustee in bankruptcy, even though the stock has been transferred from the possession of the original subscribers. Per- kins v. Cowles, 30: 283, 108 Pac. 711, 157 Cal. 625. 54. The bankruptcy trustee of a cor- poration cannot enforce the statutory double liability of stockholders, since it is not a corporate asset and does not pass to the trustee, but remains subject to the de- mands of creditors, if the corporate assets are insufficient to discharge their claims. Walsh v. Shanklm, 31: 365, 102 S. W. 295, 125 Ky. 715. (Annotated) b. Avoidance of prior transfer, prefer- ence, or levy. 1. General effect of adjudication in bankruptcy. Surrender of void preference to permit proof of claim, see infra, 129-131. On prior attachment or conveyance for creditors. 55. Service of process under a petition in bankruptcy does not give the bankruptcy court constructive possession of property formerly belonging to the bankrupt, but which, at the time of such service, is in pos- session either of a sheriff under attachment from a state court, or of a trustee to whom the bankrupt has conveyed the property for the benefit of creditors, so as to prevent the levying upon it of a writ of replevin sued out of the state court. Morning Teleg. Pub. Co. v. S. B. Hutchinson Co. 8: 1232, 109 N. W/42, 146 Mich. 38. (Annotated) Prior action to rescind sale for fraud. 56. The institution of a bankruptcy pro- ceeding does not draw to the jurisdiction of the bankruptcy court property which has previously been seized under process from a state court in a suit to rescind for fraud its sale to the bankrupt, if the title is adjudged by the state court to be in the vendor; and the bankruptcy court cannot therefore properly dispose of the property. Linstroth Wagon Co. v. Ballew, 8: 1204, 149 Fed. 960, 79 C. C. A. 470. (Annotated) 2. Validity of prior transfers or liens; preferences. a. In general. Time for appeal from decree on bill in equity by trustee to set aside transfer, see APPEAL AND ERROR, 135. Review on appeal of findings as to, see APPEAL AND ERROR, 979. Satisfaction of note by acceptance of amount due which payee is obliged to refund under bankruptcy proceedings, see BILLS AND NOTES, 81. Digest 1-52 L.R.A.(N.S.) Right of trustee to impeach un filed chattel mortgage given by bankrupt, see CHAT- TEL MORTGAGE, 39. Validity of mortgage of after-acquired property as against trrustee in bank- ruptcy, see CHATTEL MORTGAGE, 12, 15. Jurisdiction of action to avoid preferences, see COURTS, 295. Right to dower after avoidance of convey- ance in bankruptcy proceedings against husband, see DOWER, ]3. Equitable jurisdiction of suit by bankrupt to recover preferences, see EQUITY, 23. Enforcement against trustee, of mortgage of bankrupt's exemptions, see EXEMP- TIONS, 6, 21. Pleading in action to recover property, see PLEADING, 417-420. See also supra, 5; infra, 102, 121. 57. In order to constitute a person a purchaser for valuable consideration with- in the exception of the English bankruptcy statute declaring transfers void as against a trustee in bankruptcy except where "in favor of a purchaser or encumbrancer in good faith or for valuable consideration," it is not necessary that either money or physical property should be given ; the re- lease of a right or the compromise of a claim may be sufficient. Re Pope, 4 B. R. C. 775, [1908] 2 K. B. 169. Also Reported in 77 L. J. K. B. N. S. 767, 98 L. T. X. S. 775, 24 Times L. R. 556, 52 Sol. Jo. 458, 15 Manson, 201. (Annotated) 58. A postnuptial settlement of his own property, executed by a bankrupt with- in two years of his bankruptcy, in favor of his wife and children, in consideration of the wife's refraining from taking divorce proceedings against him, is within the ex- ception of that section of the English bank- ruptcy act which avoids, as against the trustee in bankruptcy, transfers made by the bankrupt except where made "in favor of a purchaser or encumbrancer in good faith or for valuable consideration." Re Pope, 4 B. R. C. 775, [1908] 2 K. B. 169. Also Reported in 77 L. J. K. B. N. S. 767, 98 L. T. N. S. 775, 24 Times L. R. 556, 52 Sol. Jo. 458, 15 Manson, 201. 59. The provision of the bankruptcy act that the trustee shall be vested with all the rights of a lien creditor speaks as of the time of the bankruptcy, and he cannot therefore assert his lien to defeat rights secured before such time. Big Four Imple- ment Co. v. Wright, 47: 1223, 207 Fed. 535, 125 C. C. A. 577. 60. For the purpose of determining whether or not a transfer of the proceeds of a fire-insurance policy is voidable under the provisions of the bankruptcy act, the time when the collection and payment are made, and not that when the contract therefor was made, is to be considered, ^n the absence of actual notice to creditors of the agree- ment, under a contract by a debtor to cany a certain amount of insurance on his stock for the protection of his creditor, and which "assigns by these presents" the said amount of insurance as collateral security for the BANKRUPTCY, II. b, 2. 233 debt, where the policies themselves are not transferred, but are to be held by the debtor, who, in case of loss, agrees to enforce the policies and pay over to the creditor suffi- cient to liquidate his indebtedness. Long v. Farmers' State Bank, 9: 585, 147 Fed. 360. 77 C. C. A. 538. (Annotated) 61. Acceptance by one who has transmit- ted a mortgage to an insolvent banker for collection, of a deed to real estate and notes of strangers in satisfaction of the proceeds of the mortgage, which the banker trans- mitted with instructions to accept the same upon hearing that the bank had closed its doors, amounts to treating the transaction as an indebtedness, and terminates the trust relation, where the banker dissipates the proceeds of the collection and closes the bank without funds into which the proceeds can be traced; and the owner of the mort- gage is therefore not entitled to a prefer- ence over other creditors, but may be re- quired to surrender his security to the bank- er's trustee in bankruptcy, who is appointed within four months thereafter. Atherton v. Green, 30: 1053, 179 Fed. 806. 103 C. C. A. 298. (Annotated) C>2. A mortgage which, by state law, is required to he recorded to be valid against certain classes of persons, is within the pro- vision of the bankruptcy law making invalid against the trustee unrecorded conveyances which are required to be recorded by the state law, although it might be valid for some purposes without being recorded. Loe- scr v. Savings Deposit Bank & T. Co. 18: 1233, 148 Fed. 975, 78 C. C. A. 597. (3. A policy on property mortgaged to secure past indebtedness within four months of bankruptcy, so as to constitute a void- able preference, secured at the instance of the mortgagee, running to the mortgagor, with standard mortgage clause attached, bears prior to default by the mortgagor the infirmity of the mortgage, so that, in case of loss, the proceeds go to the bank- ruptcy trustee rather than to the mort- gagee, although the premium was advanced by the mortgagee, and the proceeds of the policy were less than the mortgage debt. Brown City Sav. Bank v. Windsor, 41: 1012, 198 Fed. 28, 117 C. C. A. 136. ( Annotated ) 64. The conveyance by a bankrupt to his wife of real estate which he had purchased with her funds, but held in his own name, cannot be interfered with by the bankruptcy trustee, in the absence of anything to estop her from claiming the benefit of the trust. Blake v. Meadows, 30: i, 123 S. W. 868, 225 Mo. 1. 65. The payment by the maker of a note to the holder in exoneration of an accommodation indorser, within four months of bankruptcy, is a preference to the indorser which may be recovered by the trustee under 60, subdivision a and b. of the bankruptcy act. Platt v. Ives, 45: 1068, 86 Atl. 579, 86 Conn. 690. (Annotated) 66. In a, suit by the trustee in bank- ruptcy of a partnership to recover a void- Digest 1-52 L.R.A.(N.S.) able preference knowingly obtained by a creditor, to authorize a recovery, it must be shown that the firm and the partners individually were also insolvent at the time the judgment was suffered to be entered against it. Rodolf v. First Nat. Ban-k, 41 : 204, 121 Pac. 629, 30 Okla. 631. 67. A trustee in bankruptcy has no right to set aside contracts made by the bankrupt with money fraudulently obtained, by which an insurance company, in consid- eration of a present cash premium, under- took to pay him annuities beginning at a designated future time, where the company acted in good faith without notice of the source of the funds, since it acquired rights and advantages under the transaction of which it could not be deprived. Mutual L. Ins. Co. v. Smith, 33: 439, 184 Fed. 1, 106 C. C. A. 593. Intent to prefer or defraud. 68. The intent of an insolvent in paying a debt is immaterial under 60b of the bankruptcy act making voidable preferences given within four months of bankruptcy proceedings, if the person benefited had reasonable cause to believe that he intended thereby to give a preference. Schmidt v. Bank of Commerce, 33: 558, 110 Pac. 613, 15 N. M. 470. (Annotated) 69. Intentional transfers by insolvents to secure or pay pre-existing debts, within four months prior to the filing of a petition in bankruptcy, which are not voidable as preferences under the bankruptcy act of July 1, 1898, chap. 541, 67e, 30 Stat. at L. 564, U. S. Comp. Stat. 1901, p. 3449, or vio- lative of other provisions of law, and which are made without intent to hinder, delay, or defraud creditors more than such securities or payments necessarily have that effect, do not evidence an intent to hinder, delay, or defraud creditors, within the meaning of that section. Sargent v. Blake, 17: 1040, 160 Fed. 57 f 87 C. C. A. 213. 70. The application, with the consent of all the partners, of the partnership prop- erty to the payment of an individual debt of a partner, within four months of the fil- ing of a petition in bankruptcy, and while the partners^ and the partnership are insol- vent, does not evidence any intent to hin- der, delay, or defraud the creditors of the partnership, within the meaning of 67e of the bankruptcy law (act July 1, 1898, chap. 541, 30 Stat. at L. 564, U. S. Comp. Stat. 1901, p. 3449) ; and it is not void or void- able, where the creditor paid has no rea- sonable cause to believe that a preference is intended thereby. Sargent v. Blake, 17: 1040, 160 Fed. 57, 87 C. C. A. 213. (Annotated) Creditor's knowledge or belief. Review on appeal of findings as to, see AP- PEAL AND ERROR, 979. 71. Under 60, subds. "a" and "b" of the bankruptcy act as amended, where an insolvent debtor procures or suffers a judg- ment to be entered against himself within four months before the filing of the petition in bankruptcy, and the judgment then op- erates as a preference, the preference is not 234 BANKRUPTCY, II. b, 2. voidable by the trustee, unless it appears | that the creditor, at the time the judgment was entered, had reasonable cause to be- lieve that the enforcement of the judgment would affect a preference. Galbraith v. Whitaker, 43: 427, 138 N. W. 772, 119 Minn. 447. 72. Where, under 60, subds. "a" and "b" of the bankruptcy act as amended, an insolvent debtor makes a transfer of any of his property, and the effect is a prefer- ence of any creditor, such preference is voidable by the trustee, and the amount thereof may be recovered, if it appears that the creditor receiving the preference had, at the time of the transfer, reasonable cause to believe that such transfer would effect a preference. Galbraith v. Whitaker, 43: 427, 138 N. W. 772, 119 Minn. 447. 73. In determining whether a creditor had reasonable cause to believe a transfer by the debtor would effect a preference within the meaning of the bankruptcy act, facts which are sufficient to put an ordi- narily prudent man upon inquiry as to his debtor's solvency charge such person with all the knowledge he could have acquired by the exercise of reasonable diligence. Gal- braith v. Whitaker, 43: 427, 138 N. W. 772, 119 Minn. 447. 74. Where creditors who were compelled to bring suit against the debtor were requested not to levy execution on the judgment obtained, and told that in case they did so bankruptcy proceedings would, be begun, took no steps to ascertain if the insolvency necessary to justify bankruptcy proceedings in fact existed, but levied exe- cution on personal property of the debtor and sold the same thereunder, although on the day following the execution bankruptcy proceedings were begun, it is not so conclu- sively shown that the creditors at the time of the execution sale had reasonable cause to believe it would effect a preference as to require the supreme court to render judg- ment in favor of the trustee in bankruptcy and against such creditors. Galbraith v. Whitaker, 43: 427, 138 N. W. 772, 119 Minn. 447. 75. While a mortgage, or a lien volun- tarily created by an insolvent, is a prefer- ential transfer within the meaning of the bankruptcy act of July 1, 1898, chap. 541, 60a, 30 Stat. at L. 562. U. S. Comp. Stat. 1901, p. 3445, it is nevertheless not voidable under 60b, unless the creditor who receives it or is benefited thereby had reasonable cause to believe that it was intended to give a preference. Coder v. Arts, 15: 372, 152 Fed. 943, 82 C. C. A. 91. 76. Knowledge, by the creditor at the time he files a chattel mortgage for record, that the debtor is insolvent and contem- plates a disposition of his property for the benefit of creditors, will, under the amend- ment of 1903 to 60 of the bankruptcy act, avoid the transfer if bankruptcy proceed- ings are instituted within four months thereafter, although he did not have reason- able cause to believe that a preference was intended at the time of the record, because Digest 1-52 L.R.A.(N.S.) the instrument had been executed long prior thereto. First Nat. Bank v. Connett, 5: 148, 142 Fed. 33, 73 C. C. A. 219. 77. One who has executed his accommo- dation notes to secure money for a corpora- tion upon its executing a mortgage upon its property as security to him, under the agreement that the notes shall be paid out of the deposit account of the corporation, cannot hold, as against the trustee in bank- ruptcy of the corporation, payments upon such notes, made within four months of the institution of the bankruptcy proceedings, out of such account, witli knowledge on his part of the company's insolvency in excess of his security. Claridge v. Evans, 25: 144, 118 N. W. 198, 803, 137 Wis. 218. 78. The president of a corporation, who, to relieve himself from liability as indorser on its notes, causes it to pay them within four months of the institution of bankruptcy proceedings against it, knowing it to be in- solvent, may be required to make good the amount to the trustee. Kobusch v. Hand, 18: 660, 156 Fed. 660, 84 C. C. A. 372. 79. An officer of an insolvent corpora- tion, having full knowledge of its affairs, who pays a debt to himself within four months of the institution of bankruptcy proceedings against it, will be held to have had reasonable cause to believe that a preference* was intended, so as to render the payment voidable under 60a of the bank- ruptcy act. Claridge v. Evans, 25: 144, 118 N. W". 198, 803, 137 Wis. 218. Set-off by bank against deposit. 80. The set-off by a bank against a de- positor's account of a note which it bona fide holds against him is not a transfer or pref- erence within the provisions of the bank- ruptcy act; and it will therefore be upheld in favor of both the bank and the indorse! from whom the note was received, although made within four months of the time the depositor becomes bankrupt. Booth v. Prete, 20: 863, 71 Atl. 938, 81 Conn. 636. (Annotated) Transfer or mortgage to secure pre- existing debt. 81. A transfer by an insolvent, within four'months prior to the filing of a petition, for the purpose of securing or paying a pre-existing debt, without any intent or purpose to affect other creditors injuriously beyond the necessary effect of the security, is lawful, if not violative of other provi- sions of law, and it does not evidence any intent to hinder, delay, or defraud creditors, within the meaning of bankruptcy act July 1, 1898, chap. 541, 67e, 30 Stat. at L. 564, U. S. Comp. Stat. 1901, p. 3449. Coder v. Arts, 15: 372, 152 Fed. 943, 82 C. C. A. 91. (Annotated) 82. A transfer or mortgage made by a person adjudged a ban-krupt, to secure a pre-existing debt, within four months of the filing of the petition, is not void, under bankruptcy act July 1, 1898, chap. 541, 67e, 30 Stat. at L. 564, U. S. Comp. Stat. 1901, p. 3449, unless it was either made with the intent on his part to hinder, delay, or defraud his creditors, or some of them, or BANKRUPTCY, II. o. 235 is held void as against his creditors by the laws of the state, territory, or district in which the property is situated. Coder v. Arts, 15: 372, 152 Fed. 943, 82 C. C. A. 91. b. Computation of period of retroactive avoidance. Conflicting findings as to time of payment by bankrupt, see TRIAL, 1138. 83. The transfer of the proceeds of a sale of property, to be applied on a loan, although within four months of the insti- tution of bankruptcy proceedings against the assignor, is not a voidable transfer if made in accordance with an agreement at the time of the loan, entered into more than four months before such proceedings, to transfer the proceeds when received, where a present equitable assignment was created by the agreement, with nothing but the transfer remaining to be done. Godwin v. Murchison Nat. Bank, 17: 935, 59 S. E. 154, 145 N. C. 320. (Annotated) 84. The taking possession by the cred- itor, within four months of the bankruptcy of the debtor, of securities, either negotiable by delivery or indorsed in blank, which the debtor had, prior to the four months' period, set apart at the creditor's request in a package marked "escrow" for the creditor's account, and deposited in his safe-deposit vaults to secure his drafts upon the credit- or, notifying the creditor of the transaction and sending him a list of the securities, which were approved by the creditor, is not a voidable preference under the bank- ruptcy law; since, after taking possession, the creditor may be regarded as holding both by way of mortgage and by way of pledge, and his possession may be regarded as relating back to the time when his right to take it was created. Sexton v. Kessler & Co. 40: 639, 172 Fed. 535, 97 C. C. A. 161. (Annotated) 85. Where, under the state law, a chattel mortgage must be recorded to be valid against creditors it is required to be record- ed, within the meaning of the amendment of 1903 to 60a of the bankruptcy act, de- fining an illegal preference, where the other conditions concur, as a transfer by an in- solvent within four months of the filing of a petition in bankruptcy against him, and providing that, where the preference is in a transfer, the period of four months shall not expire until four months after the recording or registering of the transfer, "if by law such recording or registering is required." First Nat. Bank v. Connett, 5: 148, 142 Fed. 33, 73 C. C. A. 219. (Annotated) 86. The validity of an unrecorded chat- tel mortgage as against a trustee in bank- ruptcy is not determinable by the state law since the amendment of 1903 to 60 of the bankruptcy law, which provides that, in case of preference in a transfer, the period of four months shall commence to run at the time of recording; but, if the transfer is required by the state law to be record- ed, it is not to be regarded as made until Digest 1-52 L.R.A.(N.S.) placed on record. First Nat. Bank v. Con- nett, 5: 148, 142 Fed. 33, 73 C. C. A. 219. 87. Where, under the state law, the rights under an unrecorded chattel mort- gage are, where possession is not taken un- der it, merely inchoate, the time of record- ing or taking possession is the date from which to reckon the four months in deter- mining whether or not there has been a voidable preference under the bankruptcy law. First Nat. Bank v. Connett, 5: 148, 142 Fed. 33, 73 C. C. A. 219. 88. The recording within a few days of the institution of bankruptcy proceedings against the mortgagor of a mortgage which had been given long before that time, to secure future advances, and the recording of which had, by oversight, been neglected, does not bring the transaction within the operation of 60a of the bankruptcy act, defining a preference, and providing that where a preference consists of a transfer, the required period of four months, neces- sary to validate the transaction against creditors, shall not expire until four months after its registry. Claridge v. Evans, 25: 144, 118 N. W. 198, 803, 137 Wis. 218. (Annotated) 89. The filing within four months of bankruptcy of a conditional sale contract executed some time previously is not a preference which is avoided by the bank- ruptcy act. Big Four Implement Co. v. Wright, 47: 1223, 207 Fed. 535, 125 C. C. A. 577. (Annotated) 90. Where a creditor procures a judg- ment against an insolvent debtor, and there- after procures execution thereon to be is- sued and levied on personal property of the debtor, and at the execution sale such prop- erty is sold and the proceeds of the sale paid to the creditor in satisfaction of the debt, such execution sale and payment of the proceeds thereof constitute a transfer of his property by the debtor, within the meaning of those words as used in the bank- ruptcy act. Galbraith v, Whitaker, 43: 427, 138 N. W. 772, 119 Minn. 447. (Annotated) c. Mode of collecting or recovering assets. 91. The United States district court has jurisdiction, in a summary proceeding, to order one who, by direction of a receiver of property of a bankrupt appointed by such court, sold the bankrupt's property, to turn over the proceeds of the sale to a trustee in bankruptcy. Mason v. Wolkowich, 10: 765, 150 Fed. 699, 80 C. C. A. 435. 92. A court of bankruptcy may, by sum- mary process, require those who assert ti- tle to, or an interest in, property which has rightfully come into its possession and control as part of the bankrupt's estate, to present their claims to that court, and, the notice being reasonable, may proceed to ad- judicate the merits of such claims. Epp- stein v. Orahood, 17: 465, 156 Fed. -1-2, 84 C. C. A. 208. 236 BANKRUPTCY, III. Bight of creditor or trustee to sue. Conditions precedent to trustee's right to enforce stockholder's liability, see COR- PORATIONS, 366, 367. Right of trustee in, to sue for partition, see PARTITION, 4-7. 93. A creditor of one discharged in bank- ruptcy cannot maintain a suit to set aside an alleged fraudulent transfer of the prop- erty of the bankrupt, although made more than four months prior to the filing of the petition in bankruptcy; but the right to sue for and subject such property to the pay- ment of the bankrupt's debts is vested alone in the trustee, and his failure to bring such a suit within the time prescribed by law does not transfer the right to do so to the creditor. Ruhl-Koblegard Co. v. Gillespie, 10 : 305, 56 S. E. 898, 61 W. Va. 584. (Annotated) 94. Special authority from the bank- ruptcy court is not necessary to authorize a trustee to bring actions to collect assets, notwithstanding the bankruptcy act pro- vides that trustees shall collect the prop- erty of the estate under direction of the court. Walsh v. Shanklin, 31: 365, 102 S. W. 295, 125 Ky. 715. 95. A trustee in bankruptcy has a right to recover money which has been deposited in bank by the bankrupt, for the benefit of all his creditors. Wagner v. Citizens' Bank & T. Co. 28: 484, 122 S. W. 245, 122 Tenn. 164. Right of bankrupt to sue. 96. A corporation cannot maintain an action for malicious attachment of its cor- porate property after it has been adjudged a bankrupt, and while a trustee, who has been duly appointed, is in possession of its property, and is engaged in the adminis- tration of its estate. Hansen Mercantile Co. v. Wyman, P. & Co. 21:727, 117 N. W. 926, 105 Minn. 491. III. Rights in assets; title, rights, and liabilities of assignee or trustee. Right of trustee in bankruptcy to intervene on appeal in action by bankrupt, see APPEAL AND ERROR, 113. Right of bank which has undertaken to hold bankrupt's deposit as a fund for creditors to set-off deposit against its own claim, see BANKS, 79. Jurisdiction of suit by trustee against stockholders of corporation, see COUBTS, 23. Estoppel to claim property as against trus- tee in bankruptcy, see ESTOPPEL, 147. Garnishment of funds in hands of trustee, see GARNISHMENT, 28. Liability for interest of one aiding receiv- er in selling property of bankrupt in suit by bankrupts' trustee to recover proceeds, see INTEREST, 3. Effect of failure to record conditional sale to make it ineffectual against trustees in bankruptcy of vendee, see SALE, 49. 97. A trustee in bankruptcy may be charged with the value of assets which never Digest 1-52 L.R.A.(N.S.) came into his possession, if he failed in his duty to get them into possession. Re Re- inboth, 16: 341, 157 Fed. 672, 85 C. C. A. 340. (Annotated) 98. The petition of a trustee in bank- ruptcy that the proceeds of an unauthorized sale, by a receiver, of the bankrupt's proper- ty be turned over to him, is a ratification of the sale. Mason v. Wolkowich, 10: 765, 150 Fed. 690, 80 C. C. A. 435. 99. One who aids a receiver of a bank- rupt's property in disposing of it, and who receives the proceeds, indorsing checks, and giving receipts in his own name, cannot ab- solve himself from complying with the court's order to turn them over to a trustee in bankruptcy, on the ground that he paid them to the receiver's attorney, without showing that he was not a principal actor in the transaction, and had authority to pay them to the attorney. Mason v. Wolkowich, 10 : 765, 150 Fed. 699, 80 C. C. A. 435. 100. A trustee in bankruptcy cannot de- feat the enforcement of a lien on the prop- erty which came to his hands because it will . deprive him of compensation for his services. Smith v. Au Gres Twp. 9: 876, 150 Fed. 257, 80 C. C. A. 145. 101. A bankrupt mortgagor has such an interest in the equity of redemption that a parol agreement for its extension between him and the mortgagee is valid if the trus- tee has not appropriated it as an asset of the estate. Dow v. Bradbury, 44:1041, 85 Atl. 896, 110 Me. 249. Title acquired by trustee. As to what passes to assignee for benefit of creditors, see ASSIGNMENT FOR CRED- ITORS, 12. See also infra, 136. 102. A trustee in bankruptcy takes title to the bankrupt's property which has been conveyed in fraud of creditors, and contrary to the terms of the bankruptcy act, sub- ject to outstanding equities not lost by estoppel or fraud, to which the title was subject in the hands of the bankrupt. Blake v. Meadows, 30: i, 123 S. W. 868, 225 Mo. 1. 103. The proceeds of goods bought with- out intent to pay for them may be recovered by the vendor from the purchaser's trustee in bankruptcy, who sold them under direc- tion of the court as perishable property of the bankrupt purchaser. Gillespie v. J. C. Piles & Co. 44:1, 178 Fed. 886, 102 C. C. A. 120. 104. The deed of a trustee in bankruptcy of property which had been conveyed to the bankrupt by warranty deed to secure a debt which was afterwards paid conveyed no title, although no defeasance was record- ed, where the purchaser from the trustee had actual notice tnat the conveyance to the bankrupt was for security. Vallely v. First Nat. Bank, 5: 387, 106 N. W. 127, 14 N. D. 580. (Annotated) 105. A mortgage executed by the true owner of property should be sustained against one who had theretofore purchased the property from a trustee in bankruptcy, where such owner had conveyed the prop- erty by warranty deed to the bankrupt to BANKRUPTCY, IV. a. 237 secure a debt which was paid before the latter's failure,' and the purchaser from the trxistee had actual notice that the con- veyance to the bankrupt was for security. Va'llely v. First Nat. Bank, 5: 387, 106 N. W. 127, 14 N. D. 580. 106. Where, under the local law, it is not against public policy to permit the trans- fer of exemptions from execution, and mort- gages may cover after-acquired property, a mortgage by one of his exemptions, to apply when it is sought to be enforced, will be enforced against the claim of his trus- tee in bankruptcy. Re National Grocery Co. 30: 982, 181 Fed. 33, 104 C. C. A. 47. Time of vesting of title. 107. Corporate stock of a bankrupt vests in the trustee by relation on the date of the commencement of the proceedings, where it is in the hands of a creditor under a parol pledge. French v. White, z: 804, 62 Atl. 35, 78 Vt. 89. 108. The title to the property involved in bankruptcy proceedings remains in the bankrupt until the appointment and quali- fication of the trustee; the title of the trus- tee, when appointed, relating back as of the date of the adjudication in bankruptcy. Christopherson v. Harrington, 41:276, 136 N. W. 289, 118 Minn. 42. 109. During the interval between the ad- judication in bankruptcy and the appoint- ment of the trustee, the vendor in an exec- utory contract for the sale of land to the bankrupt may serve notice upon the bank- rupt for the termination and cancelation of the contract for default in payment of the purchase price, as provided by statute, and the notice so served and given is valid and eliectual, unless the result of fraud or col- lusion with the bankrupt and for the pur- pos of defeating the rights of creditors. Christopherson v. Harrington, 41: 276, 136 N. W. 289, 118 Minn. 42. (Annotated) 110. The title to a leasehold held by a bankrupt vests in the trustee only upon some act of acceptance on his part, notwith- standing the provision of the bankruptcy act that the trustee shall upon his appoint- ment be vested with the title of the bank- rupt as of the date he was adjudged a bank- rupt, and therefore acceptance of rent from him prior to that time will not waive a right to re enter under the terms of the lease, for devolution of the term by opera- tion of law. Re Frazin, 33: 745, 183 Fed. 28, 105 C. C. A. 320. (Annotated) TV- Claims against estate; distribution. (See also same heading in Digest L.R.A . 1-10.) Right of creditor to appeal from order al- lowing claims against estate, see AP- PEAL AND ERROR, 86. Claims against assignee for creditors, see ASSIGNMENT FOR CREDITORS, 14. Allowance of claim against estate, as evi- dence in action to hold stranger liable thereon, see EVIDENCE, 2035. Digest 1-52 L.R.A.CN.S.) Interest on claims allowed in bankruptcy, see INTEREST, 26. Collusiveness of allowance of claim by bankruptcy court, see JUDGMENT, 76. See also supra, 23. a. What claims provable; set-offs. Claims discharged, see infra, 160-178. Power of Congress to terminate dower rights on bankruptcy of husband, see DOWER, 14. Conflict of laws as to right of dower in land of bankrupt, see CONFLICT OF LAWS, 106, 107. 111. That one lending money to a bank- rupt on mortgage security acts as trustee for a bank does not prevent the allowance of a claim against the bankrupt's estate. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 605. 112. One who in good faith advances mon- ey to a bankrupt, and takes a mortgage as security therefor, is entitled to enforce the mortgage, although the money is used by the bankrupt to give a preference to one of his creditors. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 606. (Annotated) 113. A claim for loss on a contract by which one party was to buy produce with money furnished by the other, and to ship it to the. latter for sale, after which the net profits were to be divided, is provable in bankruptcy proceedings against the former,, so as to be barred by the discharge if the creditor had notice of the proceedings and" that a loss was likely to result from the undertaking, although, at the time of the proceedings, the produce had not all been disposed of, so that the amount of the claim was not then ascertained. Dycus v. Brown, 28: 190, 121 S. W. 1010, 135 Ky. 140. 114. A contract, express or implied, for which claims may be filed under the bank- ruptcy act, includes quasi contracts to pay for property converted and consumed by the debtor. Reynolds v. New York Trust Co. 39: 391, 188 Fed. 611, 110 C. C. A. 409. 115. A warranty by a copurchaser of tim- ber land, to induce his associates to join in its purchase, that it will cut a certain quantity of lumber, does not raise an im- plied contract to reimburse them in case of loss through its failure to do so, the claim upon which can be proved against his estate as founded upon contract, express or implied, under the bankruptcy act. Swit- zer v. Henking, 15: 1151, 158 Fed. 784, 86 C. C. A. 140. (Annotated) 116. If a trustee in bankruptcy sells mortgaged property free of the mortgage, the mortgagee is entitled, if the proceeds are sufficient for that purpose, to the pay- ment of the interest upon his mortgage debt, as well as the principal, in accordance with the terms of the note and mortgage. Coder v. Arts, 15: 372, 152 Fed. 943, 82 C. C. A. 91. 117. A bank cannot assent to the ratifica- tion by a partnership of the individual debt 238 BANKRUPTCY, IV. a. of a partner to it after the partnership has become insolvent, so as to be entitled to apply collateral held to secure firm obliga- tions in satisfaction of such indebtedness. Blake v. Atlantic Nat. Bank, 39: 874, 82 Atl. 225, 33 R. I. 464. (Annotated) 118. An author who has sold the copy- right of his book to a publisher upon the terms that the publisher should print and publish it, and should pay him certain roy- alties upon the sales of the book, is not en- titled to royalties upon sales made by the publisher's trustee in bankruptcy; the transaction between the author and pub- lisher being analogous to that of a sale of goods at a price varying in amount and depending \ipon certain events; but the au- thor is only entitled to prove in the bank- ruptcy for the damages sustained by breach of the contract. Re Grant Richards, 4 B. R. C. 597, [1907] 2 K. B. 33. Also Re- ported in 76 L. J. K. B. N. S. 643, 96 L. T. N. S. 712, 23 Times L. R. 388, 14 Man- son, 88 (Annotated) Fixed liability, absolutely owing. 119. The bankruptcy, before the time ar- rives, of one who has promised to return the amount paid for stock of a corporation if it is surrendered within a certain time, does not prevent the claim upon the contract from being a fixed liability, absolutely ow- ing, at the time of the bankruptcy, so as to be provable under the bankruptcy act, since the promisee may treat the bankruptcy as a repudiation of liability and immediately bring an action for damages. Re Neff, 28: 349, 157 Fed. 57, 84 C. C. A. 561. (Annotated) 120. The liability of a lessee under a lease giving the lessor the right to re-enter upon the bankruptcy of the lessee, and obligating the lessee to pay the difference between the amount reserved in the lease and what the lessor is able to secure by a reletting of the property, is not a fixed liability, absolutely owing upon the con- tract at the filing of the petition, so as to be provable in the bankruptcy proceedings; and the provision of the bankruptcy act permitting the liquidation of unliquidated demands has no application to such a case. Re Roth, 31: 270, 181 Fed. 667, 104 C. C. A. 649. (Annotated) 121. Rent accruing after the filing of a petition in bankruptcy against a lessee is not provable against his bankrupt estate as a "fixed liability, absolutely owing at the time of the filing of the petition," since a covenant to pay rent creates no debt until the time stipulated for the payment arrives. Re Roth, 31: 270, 181 Fed. 667, 104 C. C. A. 649. 122. That one lending money to a bank- rupt obtained it from a bank on his own note, secured by pledge of the bankrupt's note and a mortgage, does not make the claim against the bankrupt that of the bank. Ohio Valley Bank v. Mack, 24: 184, 163 Fed. 155, 89 C. C. A. 605. Unliquidated claims. 123. The provision of 17 of the bankrupt- cy act that a discharge shall release the Digest 1-52 L.R.A.(N.S.) bankrupt from all his "provable debts" ex- cept certain ones specified, among which are certain torts, does not require a con- struction of 63b in such a manner as to render provable all unliquidated claims for torts not specified in the exception. Brown v. United Button Co. 8: 961, 149 Fed. 48, 79 C. C. A. 70. (Annotated) 124. Unliquidated claims for tort are not provable in bankruptcy proceedings under 631) of the bankruptcy act, which pro- vides that unliquidated claims may be liqui- dated and thereafter proved, since the claims referred to are those specified in subdivision a of the section, which does not include those for tort. Brown v. Unit- ed Button Co. 8: 961, 149 Fed. 48, 79 C. C. A. 70. (Annotated) 125. A discharge in bankruptcy does not affect a claim for deceit which has not been reduced to judgment, since such claim is not a provable debt within the meaning of the bankruptcy act. Talcott v. Friend, 43: 649, 179 Fed. 676, 103 C. C. A. 80. Equitable claims. 126. Under a bankruptcy act allowing the pressntation of equitable claims against bankrupt estates, the Federal courts will al- low the presentation of a claim by a mar- ried woman for money loaned out of her statutory separr.te estate to a firm of which her husband was a partner, in bankruptcy proceedings against it, although the deci- sions of the state in which the bankruptcy was declared have denied the validity of such claims. James v. Gray, i: 321, 65 C. C. A. 385, 131 Fed. 401. Set-offs. 127. Freight charges on property the sale of which was fraudulent because of a lack of intention and ability to pay for the prop- erty cannot be deducted from the proceeds of the sale of such property by the receiver in bankruptcy of the original "purchaser, where no claim or proof of any lien thereon for such charges was presented to the bank- ruptcy court, and no railroad company was a party to the proceeding. Gillespie v. J. C. Piles & Co. 44: i, 178 Fed. 886, 102 C. C. A. 120. 128. The attorney of the trustee in bank- ruptcy of one who purchased property while insolvent, knowing that he could not pay for it, cannot be allowed compensation by the bankruptcy court out of the proceeds of a sale of such property by the receiver, for services rendered after the original vendors had notified the trustee of their election to rescind the fraudulent sale, and had de- manded a return of the proceeds of the property, in trying to retain such proceeds in the estate of the bankrupt, as against such original vendors. Gillespie v. J. C. Piles on proper proceeding, that sucli judgment shall be discharged and satisfied of record, will be construed to apply only to judg- ments extinguished by the bankruptcy pro- ceeding so that they shall no longer have the vitality to attach as liens to real es- tate subsequently acquired, and not as au- thorizing the discharge of a judgment that has become a valid lien upon real property more than four months prior to the adjudi- cation in bankruptcy. John Leslie Paper Co. v. Wheeler, 42: 292, 137 N. W. 412, 23 N. D. 477. 177. Where a partnership is formed for owning and managing a bank, one of the partners being president and the other cashier and having the full management, and a loss results from such management, in the absence of fraud on the part of the cashier, his discharge in bankruptcy of which his partner had actual notice and knowledge but 'failed to file a claim, is a good defense to any claim such partner may have against him for the management of the bank. Inge v. Stillwell, 42:1093, 127 Pac. 527, 88 Kan. 33. 178. In a partnership owning a private bank, one of the partners being president and the other cashier and having the full management thereof, the relationship be- tween the partners is not such a fiduciary relationship as will bring a claim which the president may have against the cashier for mismanagement .of the bank within the ex- ception of 17 of the bankruptcy act (act July 1, 1898, chap. 541 ) , providing that a dis- charge in bankruptcy shall not relieve a bankrupt from provable debts created by fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity. Inge v. Stillwell, 42: 1093, 127 Pac. 527, 88 Kan. 33. ( A r, rotated) VI. Foreign bankruptcy and discharge. 179. Real estate cannot be transferred by a foreign involuntary assignment in bank- ruptcy which does not comply with the pro- visions of the statute as to the conveyance of real estate. Re Delehanty, 17: 173, 95 Pac. 109, 11 Ariz. 366. 180. A foreign involuntary assignment in bankruptcy will be given precedence over the claim of the assignor to share as next of kin in the personal estate of a decedent. Re Delehanty, 17: 173, 95 Pac. 109, 11 Ariz. 366. (Annotated) BANKRUPT STOCK; BANKS. 243 BANKRUPT STOCK. Imposing license fee upon one selling, see CONSTITUTIONAL LAW, 704; LICENSE, 125. BANKS. I. Right to do business; powers, 1 1O. II. Stockholders, 11-17. III. Officers and agents, IS 55. a. In general; qualification; elec- tion. b. Authority; ratification, 184:4. c. Liability, 4=555. IV. Banking, 56198. a. Deposits, 5615O. 1. In general; nature of; liens on, 5668. 2. Bank's control over; ap- plication of, 6979. 3. Payment of checks; for- geries, 8014:6. a. In general, 8O1O6. b. Forgeries, 1O7146. (1) In general, 1O7 122. (2) Altered checks, 123-128. (3) Forged indorse- ments, 129 14:6. 4. Certificate of deposit, 147 150. t. Collections, 151188. 1. In general, 151186. 2. Insolvency, 187, 188. c. Other transactions; discounts, etc., 189198. d. Clearing house business. V. Insolvency, 199231. TI. Savings banks, 232242. VII. Crimes, 243254. Acceptance by bank as agent for contractor for public work of warrant in full pay- ment, see ACCORD AND SATISFACTION, 19, 20. Assignment by customer to bank of book accounts, see ASSIGNMENT, 28. Hecovery back of amount paid on draft with bill of lading attached, see As- SUMPSIT, 36. Application of collateral held to secure firm obligations in satisfaction of indi- vidual debt of partner, see BANK- RUPTCY, 117. Effect of renewing note to, without requir- ing surrender of old one, which has been pledged by bank as collateral, see BILLS AND NOTES, 192. AB bona fide purchaser of bills and notes, see BILLS AND NOTES, 165, 166, 174, 175, 186, 187, 195; EVIDENCE, 2324, 2325. Effect of certification of checks by, see CHECKS, III. Digest 1-52 L.R.A.(N.S.) Exempting loans made by national banks from statute requiring assignment of future wages to be accepted in writing, see CONSTITUTIONAL LAW, 181. Equal protection of laws as to, see CON- STITUTIONAL LAW, 280-283. Due process of law as to, see CONSTITU- TIONAL LAW, 435, 436. Police power as to, see CONSTITUTIONAL LAW, 700-702. Impairing contract obligations, see CONSTI- TUTIONAL LAW, 776. Necessity of written authority to fill blank in deed, see CONTRACTS, 256. Obligation of one assuming debts of bank in consideration of transfer of assets, see CONTRACTS, 371, 372. Liability of corporation absorbing bank for debts of, see CORPORATIONS, 22. Right of one loaning money to bank which has borrowed beyond the limit fixed by charter, see CORPORATIONS, 88. Estoppel to set up ultra, vires, see COR- PORATIONS,. 91-95. Liability of incorporators of trust company, see CORPORATIONS, 183-187. Theft of stock certificate pledged with, see CORPORATIONS, 244. Right to allowance of counsel fees upon successfully defending claim to interest on fund, see COSTS AND FEES, 24. Agreement not to deliver up documents without depositor's consent as answer to subpoena duces tecum, see DISCOV- ERY AND INSPECTION, 10. Pledge to bank of town orders as collat- eral security for loan to town treas- urer, see ESTOPPEL, 22; PLEDGE AND COLLATERAL SECURITY, 18, 19. Estoppel to deny liability aa indorser of note, see ESTOPPEL, 184. Estoppel to set up defense to note taken by bank as collateral for loan, see ESTOP- PEL, 188. Judicial notice as to banking business, see EVIDENCE, 40, 41. Evidence to show breach of trust by or- ganizers of trust company, see EVI- DENCE, 1675. Garnishment of contents of safety deposit box, see GARNISHMENT, 17, 18. Right of debtor to place money in bank in order to confer jurisdiction in gar- nishment proceedings, see GARNISH- MENT, 30. Guaranty by requesting bank to permit overdrafts by third person, see GUAR- ANTY, 10, 11. Injunction to restrain payment by solvent bank, of margins, upon breach of con- tract for sale of wheat, see INJUNC- TION, 55. Right of bank undertaking to deliver money to carrier to benefit of judgment in favor of principal against carrier, see JUDGMENT, 83. Libel in giving information as to credit and standing of business corporation, see LIBEL AND SLANDER, 105. 244 BANKS, I. When limitation period begins to run against right to recover penalty for taking of usury by national bank, see LIMITATION OF ACTIONS, 119. Loan by, to municipality, see MUNICIPAL CORPORATIONS, 228, 251, 252. Notice to generally, see NOTICE, 17, 18, 37, 40-43, 56-59. Action in its own name to recover back money paid for taxes on stock, see PARTIES, 138. Effect of payment by worthless cashier's check, see PAYMENT, 11-13. Negligence in acceptance of pledge, see PLEDGE AND COLLATERAL SECURITY, 20. Proximate cause of loss to bank accepting stolen paving tax certificates, see PROXIMATE CAUSE, 156. Taxation of generally, see TAXES, 37-42. Taxation of United States bonds held by national bank, see TAXES, 2. Taxation of national bank stock, see TAXES, 3, 15. Taxation of capital stock, see TAXES, 30, 75-77, 187, 188. Liability of telegraph company sending to bank forged telegram promising to honor bank draft, see TELEGRAPHS, 25, 49. Sufficiency of tender deposited in bank, se'e TENDER, 11. Investment in capital stock of, by trustee, see TRUSTS, 113. J. Right to do business; powers. (See also same heading in Digest L.R.A. 1-10.) Police power to regulate business of, see CONSTITUTIONAL LAW, 700-702. Constitutionality of provisions as to cap- ital, see CONSTITUTIONAL LAW, 280, 281. Right to do business. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 280-283. 1. The state may refuse a bank charter if, upon examination, no public necessity is found for its existence in the community in which it is sought to be established. Schaake v. Dolley, 37: 877, 118 Pac. 80, 85 Kan. 598. 2. In a state where bank charters are to be granted only when necessary, if equally meritorious applications for char- ters for several banks in the same com- munity are pending before the charter board at the same time, and th charter board determines against the necessity for more than one bank, the application first presented should be granted. Schaake v. Dolley, 37: 877, 118 Pac. 80, 85 Kan. 598. 3. The legislature may lawfully require at least one member of a private banking firm to be a resident of the state. State v. Richcreek, 5: 874, 77 N. E. 1085, 167 Ind. 217. (Annotated) Digest 1-52 L.R.A.(N.S.) 1 4. Requiring incorporation as a condi- j tion to doing a banking business is regu- lation, and not prohibition, and therefore does not unconstitutionally interfere with the right to transact such business. Weed v. Bergh, 25: 1217, 124 N. W. 664, 141 Wis. 569. 5. A requirement that all banks must \fc converted into corporations within three months after the passage of a statute does not render the statute invalid on the theory that it cannot be obeyed without a ruinous sacrifice of property amounting to practical confiscation, if the incorporation can be ef- fected within that time, by the application of ordinary business methods, without loss. Weed v. Bergh, 25: 1217, 124 N. W. 664, 141 Wis. 569. 6. Where the statutes for the regula- tion of the banking business provide for issuance of licenses only to corporations, individuals may conduct the business with- out a license. Marymont v. Nevada State Bkg. Board, 32: 477, 111 Pac. 295, 33 Nev. 333. Guaranty deposit law. Denial of equal protection of laws by, see CONSTITUTIONAL LAW, 282. As exercise of police power, see CONSTITU- TIONAL LAW, 702. As impairment of contract obligations, see CONSTITUTIONAL LAW, 776. As a taking of property for private use, see EMINENT DOMAIN, 56. 7. A state law permitting state banks to contribute to a fund to guarantee their deposits is not invalid because the plan will tend to attract depositors from nation- al banks, and therefore impair their effi- ciency as instrumentalities of the national government. Abilene Nat. Bank v. Dolley, 32: 1065, 179 Fed. 461, 102 C. C. A. 607. (Annotated) Dealing in merchandise. 8. A national bank has no authority to deal in merchandise, so as to : nder itself liable for the full delivery of a consignment of merchandise which it purchases in trans- it and undertakes to deliver to the con- signee. Lewis v. W. H. Small & Co. 6: 887, 96 S. W. 1051, 117 Tenn. 153. Owning real estate. Escheat of land held by national bank, see ESCHEAT, 2. 9. A banking company may, as an in- cident to its business, or to secure itself from loss in the transaction of its author- ized business, become the lawful owner of real estate. State Security Bank v. Hos- kins. 8: 376, 106 N. W. 764, 130 Iowa, 339. Promoting schemes. 10. The authority of a trust company to buy and sell stocks and bonds does not authorize it to indulge in hazardous pro- moting schemes, although it may hope from the successful launching of such schemes to make large commissions and receive large bonuses. Gause v. Commonwealth Trust Co. 24: 967, 89 N. E. 476, 196 N. Y. 134. (.?.W).A.H.J i'r, I BANKS, II., III. a. 245 //. Stockholders. (See also same heading in Digest L.R.A. 1-70.) Right of notary who is stockholder of hank discounting note to protest it for non- payment, see BILLS AND NOTES, 100. Repurchase of its own stock by bank, see CORPORATIONS, 84. Trust for voting stock of, see CORPORATIONS, 381. Stockholders in corporations generally, see CORPORATIONS, V. Liability of corporate stockholders, gener- ally, see CORPORATIONS, V. f. Removal of suit to enforce stockholders' liability, see REMOVAL OF CAUSES, 16. Transfer of stock. Transfer of corporate stock generally, see CORPORATIONS, V. c. 11. To effect an assignment and dispo- sition of shares of capital stock in a bank, so as to release the assignor from the super- added liability of shareholders fixed by law, }\e must procure a transfer of the stock on the books of the bank in accordance with the provisions of the banking act. Abilene State Bank v. Strachan, 46: 668, 132 Pac. 200, 89 Kan. 577. 12. A transfer of stock on the- books of a bank is essential to a release from lia- bility of a shareholder who sells and assigns his stock to the bank itself in payment of a previously contracted debt owing by him to the bank. Abilene State Bank v. Strachan, 46: 668, 132 Pac. 200, 89 Kan. 577. (Annotated) 13. A purchaser of bank stock may com- pel, by bill in equity, the transfer of the same on the books of the -corporation, or he may sue in conversion and damages for the failure to so transfer. Ardmore State Bank v Mason, 39: 292, 120 Pac. 1080, 30 Okla. 568. Pledge of stock. See also infra, 15. 14. By-laws of a bank prohibiting the sale of stock while the holder is indebted to the bank do not apply to a sale by a pledgee who took the pledge to secure a debt at a time when no indebtedness to the bank existed, although, with knowledge of the pledge, the bank subsequently made a loan to the stockholder. Ardmore State Bank v. Mason, 39: 292, 120 Pac. 1080, 30 Okla. 568. Lien on stock. Lien on corporate stock, generally, see COR- PORATIONS, V. c, 3. 15. The statutory lien of a bank on its stock for indebtedness of its holder is sub- ordinate to that of the pledgee of the stock, who takes it to secure a loan at a time when the holder is not indebted to the bank, where, to the knowledge of the bank, the pledge was in existence when it made the loan for which the lien is claimed. Ard- more State Bank v. Mason, 39: 292, 120 Pac. 10SO, 30 Okla. 568. (Annotated) Digest 1-52 L.R.A.(N.S.) Actions by. By corporate stockholders generally, see CORPORATIONS, V. e, 2. 16. Stockholders and depositors of a bank in possession of a receiver may main- tain an action to hold the directors liable for loss of funds through breach of duty, making the receiver a party defendant upon his refusal to institute the proceedings. Ellis v. H. P. Gates Mercantile Co. 43: 982, 60 So. 649, 103 Miss. 560. Enforcement of stockholders' liabil- ity. Of corporate stockholders, generally, see CORPORATIONS, V. f, 4. 17. A complaint in a suit in equity wherein a receiver of an insolvent bank joins certain subscribers to the capital stock of the bank as defendants, for the purpose of recovering unpaid subscriptions, that further alleges, in substance, that the judge of the court wherein said receiver was ap- pointed, upon application of creditors, sup- ported by a showing that the bank was entirely insolvent, and without assets suffi- cient to distribute any part thereof to the bank or its shareholders, entered an order directing said receiver to retain counsel and institute proper proceedings against the defendants as subscribers for the capital stock of said insolvent bank, to recover the respective amounts remaining unpaid on said subscription, or for the stock issued to them, for the benefit of all the creditors of said bank, and that this suit is filed in compliance with said order, states facts sufficient to warrant the trial court in treating such suit as one brought by the creditors of said insolvent bank, over which a court of equity has jurisdiction, and in which all the subscribers to the capital stock may be joined as defendants. Dill v. Ebey, 46: 440, 112 Pac. 973, 27 Okla. 584. III. Officers and agents, a. In general; qualification; election. (See also same heading in Digest L.R.A. 1-10.) Recovery from broker of money received by him in good faith from bank teller for purpose of speculation, see ASSUMPSIT, 19. Validity of consideration for note given to cover shortage of employee, see BILLS AND NOTES, 27, 28. Rights of bank taking from its cashier, without indorsement, negotiable paper indorsed to him personally, see BILLS AND NOTES, 96. Availability against president of bank pur- chasing note from it of defenses there- to, see BILLS AND NOTES, 133, 134. Imputing to president knowledge of infirm- ity in note purchased from bank, see BILLS AND NOTES,- 178. Bonds of, see BONDS, 41-44. Embezzlement from bank and from corpo- rate depositor by officer common to both, see CORPORATIONS, 158. 246 BANKS, III. b. Theft by officer of bank of stock certificate pledged with, see CORPORATIONS, 244. Evidence in prosecution of oUicers for con- version of state moneys, see EVIDENCE, 1969. Parol evidence as to indorsement of notes to cashier of bank as individual, see EVIDENCE, 997. Parol evidence that indorser acted as agent of bank, see EVIDENCE, 998. Right of bank agent to testify to trans- actions from knowledge of course of business, see EVIDENCE, 1180. Imputing to bank knowledge of officials, see NOTICE, 17, 18, 33, 37, 40-43, 56-59. Effect of act of cashier in taking purchase- money mortgage in the name of the bank upon sale of his property, see MORTGAGE, 3, 4. Action by, on note taken by president for bank's benefit, see PARTIES, 54. Suit by, for recovery of promissory notes pledged by cashier, see PARTIES, 65. Conversion by bank officers, see TROVER, 37, 49. Indictment of officer for converting public funds, see INDICTMENT, ETC., 96, 130. b. Authority; ratification. (See also same heading in Digest L.R.A. 1-10.) Rights of one taking pledge of negotiable paper of bank official as collateral for his own debt, see BILLS AND NOTES, 194. Burden of proving officers' authority, see EVIDENCE, 182. Notice to bank of misappropriation of funds of other corporation by cashier, see NOTICE, 18. Imputing officer's knowledge to bank, see NOTICE, 18, 33, 37, 40-43, 56-59. Director as agent of bank or of one giving chattel mortgage to bank, see PRINCI- PAL AND AGENT, 5. 18. When the general manager of a bank accepts for the bank a promissory note, payable to its order, with surety, in the place of another note, without surety, and as a part of the transaction of ac- ceptance alters tie date of the new note to correspond with that of the note sur- rendered, the bank is chargeable with the act of its officer as one done in the course of the business of the bank by a general agent; and it cannot, as to nonconsenting obligors, rely upon the altered note as evi- dence of the indebtedness, and at the same time disavow the act of its officer and agent, and claim his action to be that of a stranger, or beyond his authority. Bodine v. Berg (N. J. Err. & App.) 40: 65, 82 Atl. 901, 82 N. J. L. 662. 19. A creditor of a bank official is bound to return to the bank funds belonging to it which had been placed to his credit by the official on fictitious notes, and checked out by him in payment of the official's debt to himself, although he had no knowledge of Digest 1-52 L.R.A.(N.S.) the wrongful use of the bank's funds. Cobe v. Coughlin Hardware Co. 31: 1126, 112 Pac. 115, 83 Kan. 522. (Annotated) Authority of president. Imputing knowledge of president to bank, see NOTICE, 43, 56, 57. 20. A bank cannot dispute the authority of its president to make payments on a building contract other than according to its terms, where the matter was placed in his hands, and payments made were en- tered on the bank's books, while it claims credit for them. First Nat. Bank v. Fi- delity & D. Co. 5: 418, 40 So. 415, 145 Ala. 335. 21. Authority conferred upon the presi- dent of a bank to sign notes and checks- of the corporation and to disburse moneys on behalf of the corporation includes au- thority to indorse the company's notes. Page v. Ford, 45: 247, 131 Pac. 1013, 65 Or. 450. Authority of cashier. Ratification of act of, see infra, 40-43. Binding effect on, of statements by cashier to bonding company, see BONDS, 44. Rights of creditor of cashier, untruthfully notified by latter that amount of debt has been placed to creditor's credit on books of bank, see EVIDENCE, 64'J. Liability for interest, of bank whose cash- ier through its machinery misappro- priates estate of which he is executor, see INTEREST, 7. Imputing notice of cashier to bank, see NOTICE, 18, 37, 41, 42, 59. 22. Neither tlie cashier of a national bank nor a member of the discount board who owns a majority of the stock, nor the two conspiring together, can, by any device or fraud, give away the funds of the bank, nor use them to pay the individual debts of either. Cobe v. Coughlin Hardware Co. 31: 1126, 112 Pac. 115, 83 Kan. 522. 23. A bank cashier has no authority, simply by virtue of his office, to accept for the bank, unknown to the directors thereof, a qualified indorsement on a promissory note, irrespective of whether the note is an original one presented for discount, or one taken in judgment or in renewal of a pre-existing note. First Nat. Bank v. Low- ther-Kaufman Oil & C. Co. 28: 511, 66 S. E. 713, 66 W. Va. 505. (Annotated) 24. The cashier of a bank has no author- ity to bind the bank by his promise that one signing paper without consideration, to replace that of the cashier, to enable the bank to pass inspection, shall not be held liable thereon, and one signing such paper is chargeable with notice of such want of authority, and acts at his peril in relying on the promise. State Bank v. Forsyth, 28: 501, 108 Pac. 14, 41 Mont. 249. (Annotated) 25. The act of the cashier of a bank in rendering assistance to a gang of men who are engaged in fleecing the public by means of fictitious races, by opening accounts with intended victims, cashing and forwarding checks for collection, and giving the scheme the appearance of respectability, w'll bind BANKS, III. b. 247 the bank, since it ia banking business, at least where all stockholders in th bank are cognizant of the facts. Hobbs v. Boat- right, 5:906, 93 S. W. 934, 195 Mo. 693. 26. Depositors who intrust their money to the keeping of a bank cashier, and stock- holders who treat him as cashier, must lose, rather than one who furnishes money to him as such, and requires a pledge of the assets of the bank as collateral security. Citizens' Bank v. Weakley, 11:598, 103 S. W. 249, 126 Ky. 169. 27. It is within the apparent authority of a bank cashier to borrow money for use of the bank, and pledge notes owned by it as security for the loan. Citizens' Bank v. Weakley, 11:598, 103 S. W. 249, 126 Ky. 169. 28. A bank holding a majority of the stock of another bank as security for a loan to its cashier is not charged with no- tice that the latter bank has no directors, or that its stockholders are taking no in- terest in its affairs. Citizens' Bank v. Weakley, 11:598, 103 S. W. 249, 120 Ky. 169. 29. That a cashier borrowing money on behalf of the bank, which has no president or directors, furnished the lender a forged director's resolution authorizing the loan does not put the lender in a worse position than though the resolution had not been required. Citizens' Bank v. Weakley, n: 598, 103 S. W. 249, 126 Ky. 169. 30. The cashier of a bank has no implied authority to extend the time of payment of a note due the bank, without its knowl- edge or consent. Vanderford v. Farmers' & M. Nat. Bank, 10: 129, 66 Atl. 47, 105 Md. 164. 31. Intention to effect that result is nec- essary to vest title in a bank to the obliga- tion of a stranger which its cashier sub- stituted for his own. First Nat. Bank v. Gun- bus, 9: 471, 110 N. W. 611, 133 Iowa, 409. 32. An assistant cashier acting under the direction of the cashier in substituting in the bank's assets the obligation of a stranger for that of the cashier cannot be said to be acting for the bank, so as to bind it by the transaction. First Nat. Bank v. Gun- hus, 9: 471, 110 N. W. 611, 133 Iowa, 409. (Annotated) 33. The mere notification, by the cashier of a bank to his individual creditor, that he has placed the amount of the debt to the latters credit on the books of the bank, followed by the honoring of his check for a portion of the amount, does not charge the bank with responsibility for the credit. Langlois v. Gragnon, 22: 414, 49 So. 18, 123 La. 45.'j. 34. A bank the directors of which per- mitted the cashier to conduct its affairs al- most without supervision will not be per- mitted to charge against the account of an estate of which he was executor checks drawn by him as executor against the ac- count of the estate to his own order, and delivered to the teller, to provide funds to meet checks which he had drawn on his private account and certified. Lowndes v. Digest 1-52 L.R.A.(N.S.) City Nat. Bank, 22:408, 72 Atl. 150, 82 Conn. 8. 35. A bank is liable to make good to the account of an estate of which its cashier was executor the amount of checks drawn by him upon the estate's account, and used I by the bank's clerks -to make good over- i drafts which the cashier had drawn upon the account of a corporation of which he was manager, and which had not been charged against such account of the corporation so as to show the overdraft, but had been car- ried by the teller as cash items. Lowndes v. City Nat. Bank, 22: 408, 72 Atl. 150, 2 Conn. 8. ^6. A bank the directors of which permit the cashier to conduct its affairs almost without supervision will be liable to make good to the account of an estate of which he is executor the amount of checks drawn by him against the estate's account, to pay notes of a corporation of which he is mana- ger, where, for a long period of time, the agents of the bank have permitted him to make good overdrafts on the corporation's account by checks against that of the estate. Lowndes v. City Nat. Bank, 22: 408, 72 Atl. 150, 82 Conn. 8. 37. A bank which pays its cashier a check drawn by him in iiis own favor, upon the account of an estate of which he is executor, is not, in the absence of anything to indicate that he has misappropriated the funds of the estate, bound to make good to the estate the amount of the check. Lowndes v. City Nat. Bank, 22: 408, 72 Atl. 150, 82 Conn. 8. 38. In contemplation of law, the leasing of property belonging to a national bank- ing association is not within the ordinary powers and duties of the cashier of the bank. Spongberg v. First Nat. Bank, 31:736, 110 Pac. 716, 18 Idaho, 524. (Annotated) 39. The cashier of a bank, having im- plied authority, as its executive officer, to contract for the disposal of lands acquired by the bank in the collection of its credits, will bind the bank by his contract to pay commissions for the disposal of land placed in the hands of a broker, but which, through a mistake in identity, the bank does not own. Arnold v. National Bank. 3: 580, 105 N. W. 828, 126 Wis. 362. Ratification of acts of. 40. A bank cannot ratify the act of its cashier in substituting the obligation of a stranger for his own to the bank, retroact- ively, so as to cut out the rights of another bank to which the cashier subsequently de- livered such obligation as security for his own debt. First Nat. Bank v. Gunhus, 9: 471, 110 N. W. 611, 133 Iowa, 409. 41. Ratification of the act of a bank cashier in leasing rooms in the bank build- ing is effected where he had assumed to exercise the power of leasing them, and at least a majority of the directors had knowl- edge of a particular lease, while the lessee had been in possession for eighteen months, and the building committee had made alter- ations at the request of the lessee. Spong- 248 BANKS, III. c. berg v. First Nat. Bank, 31: 736, 110 Pac. 716, 18 Idaho, 524. 42. A national bank cannot ratify the act of its cashier in guarantying payment of a loan made by a third person to its customer to whom it has made a loan ex- ceeding the statutory limit, although the money was needed to pay the person's debts and keep the customer solvent. First Nat. Bank v. Monroe, 32: 550, 69 S. E. 1123, 135 Ga. 614. 43. Where the cashier of a bank, who has misappropriated its funds in order to cancel his defalcation, transfers thereto funds of an elevator company of which he is treasurer, and, in order to account for the transfer, draws checks upon the ele- vator company payable to the bank, and eharges the amount thereof against the ele- vator company upon the books of the bank, the bank, having accepted such payment through its cashier, cannot retain the bene- fits of his act without accepting the conse- quences of his knowledge, and where it does so retain such funds, it ratifies the fraudulent act of its agent, the cashier, and becomes particeps criminis with him, and liable to the elevator company for the amount so fraudulently transferred. Eme- rado Farmers' Elevator Co. v. Farmers' Bank, 29: 567, 127 N. W. 522, 20 N. D. 270. 44. A bank is chargeable with the gen- eral manager's knowledge of the fact that it holds a note which has been altered by its general manager; and if, with this knowledge, it accepts payments on account of the note, and subsequently assigns the note as altered, such acts amount to a ratification of the act of the manager in altering the note. Bodine v. Berg (N. J. Err. & App.) 40: 65, 82 Atl. 901, 82 N. J. L. 662. c. Liability. (See also same heading in Digest L.R.A. 1-70.) Officers of savings bank, see infra, 240-242. Criminal liability of officer, see infra, VII. Effect of discharge in bankruptcy of part- ner acting as cashier on liability for loss resulting from mismanagement, see BANKRUPTCY, 177, 178. Liability on bonds of, see BONDS, 41-44. See also infra, 189. Of directors. Action by stockholders and depositors to hold directors liable for loss, see supra, 16. Multifariousness of bill in action against, see ACTION ON SUIT, 126. Liability of directors of insolvent bank to stockholders for illegal dividends, see CORPORATIONS, 165. Liability of distributees of deceased bank director for losses through misfeasance, see DESCENT AND DISTRIBUTION, 33. Jurisdiction of equity of bill by receiver to hold directors liable for loss, see EQUITY, 8. Digest 1-52 L.R.A.(N.S.) Right of delinquent director to invoke statute of limitations, see LIMITATION OF ACTIONS, 92. When limitations begin to run against lia- bility of, see LIMITATION OF ACTIONS, 154. 45. The directors of a bank are not held, as a matter of law, to know all its affairs, or what its books and papers would show; and such knowledge cannot be imputed to them for the purpose of charging them with liability. Mason v. Moore, 4: 597, 76 N. E. 932, 73" Ohio St. 275. 46. In an action against the directors of a national bank by one who purchases some of its stock, relying on the statements con- tained in its report to the Comptroller of the Currency as to its resources and liabili- ties, which report was attested by the di- rectors and published as the statute directs, some of which statements are false, whereby the purchaser is damaged, it is not error for the court to charge the jury that "it must appear by a preponderance of the evi- dence that, at the time of the attesting and publication of said report, the directors so attesting this report, or who assented to and directed the publication of the same, did so knowing said report to be false, or under such circumstances as will warrant the jury in finding, by a preponderance of the evi- dence, that such director, or directors, by the exercise of ordinary care and prudence, would have known that the said report was false in some one or more of the particulars set forth in the petition." Mason v. Moore, 4: 597, 76 N. E. 932, 73 Ohio St. 275. 47. The directors of a bank are author- ized to appoint a cashier and confer upon him the usual powers pertaining to such an office, and to him may be properly confided the custody of the money, securities, and valuable papers of the bank, and the super- vision of its books and accounts; and while this does not absolve the directors from the duty of reasonable supervision and the ex- ercise of that degree of care which is ex- ercised by ordinarily careful and prudent men acting under similar circumstances, yet they are not insurers of the fidelity of the cashier or other agents whom they have ap- pointed, and where the directors act in good faith and wiui ordinary care they are not responsible for losses resulting from the wrongful acts or omissions of the cashier or other agents unless the loss is a consequence of their own neglect of duty. Mason v. Moore, 4: 597, 76 N. E. 932, 73 Ohio St. 275. (Annotated) 48. A bank director cannot be held liable for breach of his duty as such in inducing the bank to extend credit to an individual beyond the statutory limit, and in making false representations as to paper presented for discount, where he was not at the time acting as director, but as agent for the bor- rower. Hicks v. Steel, 4: 279, 105 N. W. 767, 142 Mich. 292. (Annotated) 49. A director of a banking corporation owes no duty in a legal sense, by reason of his office, to the creditors of the bank or to BANKS, IV. a, 1. the piiblic. Hart v. Evanson, 3: 438, 105 N. W. 942, 14 N. D. 570. 50. The directors of a bank are liable only to the corporation whose agents or trustees they are, for violation or neglect of their official duty. Hart v. Evanson, 3: 438, 105 N. W. 942, 14 N. D. 570. 51. In the absence of actionable deceit, directors are not directly liable in dam- ages to a creditor of a bank for loss suf- fered by the creditor through the insolvency of the bank caused by the directors' neglect of their official duties. Hart v. Evansou, 3: 438, 105 N. W. 942, 14 N. D. 570. 52. Ihe mere fact that a director, who knows that the bank is insolvent, takes no action to close the bank, or announce its insolvency, does not make him liable for deceit to persons who extended credit after the bank became insolvent on the assump- tion that it was solvent. Hart v. Evan- son, 3: 438, 105 N. W. 942, 14 N. D. 570. (Annotated) 53. Directors of a bank are not person- ally liable directly to depositors for the loss of deposit accounts through the in- solvency of the bank due to their negli- gence. United States Fidelity & G. Co. v. Corning State Sav. Bank, 45: 421, 134 N. W. 857, 154 Iowa, 588. (Annotated) 54. The directors of a bank are liable to depositors and stockholders for loss sus- tained through their neglect to supervise the acts of its officers as required by its by-laws, which enables the officers to mis- appropriate funds and make improvident and unlawful loans. Ellis v. H. P. Gates Mercantile Co. 43 : 982, 60 So. 649, 103 Miss. 560. 55. The directors of a bank are not per- sonally liable to stockholders for loss due to their refusal to sell stock of a private cor- poration which they had taken as collateral and had been compelled to take over, except on condition that stock held by them indi- vidually should be purchased also, where the corporation owed the bank a large sum of money so as to make it advisable to main- tain some control over its affairs. Bras- well v. Pamlico Ins. & Bkg. Co. 42:101, 75 S. E. 813,. 159 N. C. 628. IV. Banking. a. Deposits. 1. In general; nature of; liens on. (See also same heading in Digest L.R.A. 1-70 J Rights in deposit in insolvent bank, see infra, 200-204. Deposits in savings banks, see infra, 235, 236. Eight of trustee in bankruptcy to bank de- posit, see BANKRUPTCY, 95. Officer's liability for loss of public funds deposited in bank, see CONSTITUTIONAL j LAW, 770; OFFICERS, 111-114. Digest 1-52 L.R.A.(N.S/> Validity of statute passed after depositor's disappearance permitting deposit to be administered, see CONSTITUTIONAL LAW, 778. Contract between guardian and his surety as to withdrawal of deposit of ward, see CONTRACTS, 450; GUARDIAN AND WARD, 20, 22. Presumption as to ownership of deposit in name of certain person as "agent," see EVIDENCE, 614. Sufficiency of evidence to show that money on deposit was property of bankrupt corporation, see EVIDENCE, 2092. Liability of executors for loss of deposit, see EXECUTORS AND ADMINISTRATORS, 69- 71. Garnishment of bank deposit, see GAR- NISHMENT, 14, 16, 46, 51. Gift of bank deposit, see GIFTS, 9, 11-18, 23, 26. Liability of guardian for loss of, by bank's failure, see GUARDIAN AND WARD, 18- 20. Liability of surviving partner for interest on money deposited, see INTEREST, 16. Interest on deposit in bank which stops payment, see INTEREST, 44. Limitation of action to recover deposit, see LIMITATION OF ACTIONS, 146-148. Clients as necessary parties in action by at- torney to recover money of clients de- posited by him, see PARTIES, 150. Deposits of public money, see PUBLIC MONEYS, 2-7. Subrogation to bank's lien, see SUBROGA- TION, 6. Taxation of bank deposits to credit of for- eign corporation, see TAXES, 78. Determining value of bank balance for pur- pose of taxation, see TAXES, 184. Trover for, see TROVER, 7. Ademption of bequest of money in bank, see WILLS, 402. 56. The effect of placing money in a bank on general deposit is to pass the title immediately to the bank, and to create the relation of debtor and creditor between the bank and the depositor. McGregor v. Bat- tle, 13: 185, 58 S. E. 28, 12S Ga. 577. 57. A general deposit of money in a bank is not a loan. Elliott v. Capital City State Bank, i: 1130, 103 N. W. 777, 128 Iowa, 275. 58. The relation of bank and depositor exists between a bank and a railroad com- pany where the former purchases county aid bonds and places the amount of the bid to the credit of the railroad company paya- ble on its order. Missouri P. R. Co. v. Con- tinental Nat. Bank, 17: 994, 111 S. W. 574, 212 Mo. 505. 59. The creation of a bank account sub- ject to another's check is not prevented from constituting the relation of bank and de- positor between the bank and such person by the fact that his right to the fund is subject to a condition, if it is duly per- formed. Missouri P. R. Co. v. Continental Nat. Bank, 17: 994, 111 S. W. 574, 212 Mo. 505. 250 BANKS, IV. a, 2. 60. Whether or not a bank receiving and crediting to a depositor a check on another bank is entitled to enforce it as owner de- pends upon its having been the intention of the parties that the deposit shall be treated as cash, which fact is to be determined by the jury. Fayette Nat. Bank v. Summers, 7: 694, 54 S. E. 862, 105 Va. 689. (Annotated) 61. A bank gains no title to money of a man, deposited in it by his wife, without authority, where neither he nor his wife had any account there, even though the bank had no notice that the wife had no title to the money, or authority to deposit it. Patek v. Patek, 35: 461, 131 N. W. 1101, 166 Mich. 446. (Annotated) 62. A bank which pays out a deposit un- der garnishment upon a judgment against another person of the same name as the depositor is liable to the depositor for the amount. O'Neil v. New England Trust Co. ii : 248, 67 Atl. 63, 28 R. I. 311. (Annotated) Special. Right to interest on, see COSTS AND FEES, 24. Damages for refusal to return, see DAM- AGES, 624. What is special deposit not subject to gar- nishment, see GARNISHMENT, 16. Conversion of special deposit, see TROVER, 16, 37. See also infra, 71, 204, 218, 244, 246. 63. Money turned over to the officers of a bank without any request that it be kept separate from the other funds of the bank, and which was entered upon the books as a general deposit, and a certificate of deposit issued for the amount, which is later with- drawn by check, has all the characteristics of a general deposit, and is entirely lacking in any of the essential elements of a special deposit. McGregor v. Battle, 13: 185, 58 S. E. 28, 128 Ga. 577. 64. A special deposit is affected by the delivery to the depositary of checks, under provisions of a statute by which the leg- islature, which, under the Constitution, has no authority over the investment of the educational funds of the state, permits the state treasurer to designate a depositary for the collection of commercial paper re- ceived by him on account of such funds. State v. Ross, 42:601, 104 Pac. 596, 55 Or. 450. Trusts. Termination of trust as against trustee in bankruptcy, see BANKRUPTCY, 61. Executed trust in deposit, eee TRUSTS, 30. Establishing trust in deposit by parol, see TRUSTS 32 See also infra, 70, 77-79, 209, 227. 65. The same relation exists between a bank and one who deposits money therein in his own name as "Atty.," as would exist between the bank and any general deposi- tor. Cunningham v. Bank of Nampa, 10: 706, 88 Pac. 975, 13 Idaho, 167. 66. Money collected by an attorney for clients, and deposited in a bank in his own name as "Atty.," may be recovered for the Digest 1-52 L.R.A.(N.S.) use and benefit of the parties beneficially interested, in an action brought against the bank and an officer who attached the fund to secure an individual debt of the attorney. Cunningham v. Bank of Nampa, 10: 706, 88 Pac.' 975, 13 Idaho, 167. 67. A bank is justified in paying over a fund deposited witli it by an attorney in his own name as "Atty.," and as to the ownership of which it has no other informa- tion, to an officer levying a writ of attach- ment thereon to secure an individual debt of the attorney. Cunningham v. Bank of Nampa, 10: 706, 88 Pac. 975, 13 Idaho, 167. (Annotated) 68. A bank which issues to its customer a certificate of deposit in his favor as guard- ian, the funds for which he secures from individual sources and from a loan by it on collateral furnished by him individually, which certificate he needs to make good a defalcation in his guardian's account, in order to secure a surety on his guardian's bond, is charged with notice that he there- by devotes the funds to the use of his ward, and will be liable to the estate in case it accepts a surrender of the certificate, re- turns the funds represented by it to their original sources, and surrenders the collat- eral, although it had no notice of the de- falcation and acted in good faith in the transaction. United States Fidelity & G. Co. v. Adoue, 37: 409, 137 S. W. 648', 138 S. W. 383, 104 Tex. 379. 2. Bank's control over; application of. Set-off by, against depositor's account, of note against him as preference, see BANKRUPTCY, 80. Bank's title to check indorsed to it, see CHECKS, 4-6. Set-off by bank of deposit against unma- tured note, see CORPORATIONS, 404; SET-OFF AND COUNTERCLAIM, 51. Damages for refusal to return, see DAM- AGES, 624. Set-off by bank summoned as garnishee, see GARNISHMENT, 46. Set-off or against bank generally, see SET-OFF AND COUNTERCLAIM, 36, 37, 39, 51. See also infra, 87, 204. 69. A bank must, upon receiving notice of an adverse claim to a fund in its de- positor's account, exercise diligence i-n noti- fying its customer of the claim and of its intention to protect itself by retaining out of his account a sum sufficient to meet the claim. Jaselli v. Riggs Nat. Bank, 31: 763, 36 App. D. C. 159. (Annotated) 70. Funds in a bank account belonging to several beneficiaries, which were deposit- ed by a trustee who reduced the account below the aggregate of the claims, will, ex- cept as to such deposits as remain intact, be distributed ratably. Boyle v. Northwestern Nat. Bank, i: mo, 103 N. W. 1123, 104 N. W. 917, 125 Wis. 498. 71. A bank which accepts a deposit of money needed by the depositor for a special BANKS, IV. a, 3. 251 purpose, under the agreement that it will pay the amount when needed for that pur- pose, cannot apply it upon the depositors general indebtedness to it. Smith v. San- born State Bank, 30: 517, 126 N. W. 779, 147 Iowa, 640. (Annotated) Applying; on note due third person. 72. Neither a cashier nor the bank which he represents can be held liable for his disobedience of instructions to lend a customer's money on a certain note, when a certain indorser had been secured, if his promise in writing had been obtained to sign the note before the transaction was closed. Petty v. Gacking, 33: 175, 133 S. W. 832, 97 Ark. 217. Deposit by agent or factor. See also supra, 70. 73. Money received by a commission mer- chant for produce sent him for sale, and deposited by him in his general account in bank, belongs to the owners of the produce, and cannot be applied by the bank to the obligations of the merchant. Bo'yle v. Northwestern Nat. Bank, 1:1110, 103 N. W. 1123, 104 N. W. 917, 125 Wis. 408. (Annotated) 74. A consignor, the proceeds of whose property have been deposited by a broker in his general bank account and checked against, can hold the bank liable only for the lowest amount remaining in the ac- count at any time when he was the sole equitable owner of the account, as against the rights of other consignors, the proceeds of whose property subsequently swelled the account. Boyle v. Northwestern Nat. Bank, i: ii 10, 103 N. W. 1123, 104 N. W. 917, 125 Wis. 498. 75. Where funds belonging to several consignors are deposited by the broker in his general bank account, which is checked against, and thereby reduced below the ag- gregate amount of the claims, the claim rep- resented by the last deposit which remains intact, except as to charges properly made against it at the time the fund is brought into court for distribution, is entitled to payment of its net balance in full. Boyle v. Northwestern Nat. Bank, i: mo, 103 N. W. 1123, 104 N. W. 917, 125 Wis. 498. 76. Persons who have shipped grain to a commission merchant for sale, the pro- ceeds of which he has deposited in his bank account, cannot, as equitable owners, reach the proceeds of property belonging to other consignors, which the merchant had trans- ferred to the bank in payment of his own obligation prior to the receipt of the prop- erty of the complaining consignors. Boyle v. Northwestern Nat. Bank, i: mo, 103 N. W. 1123, 104 N. W. 917, 125 Wis. 498. Duty as to trust funds. See also supra, 65-68. 77. A bank in which a guardian has de- posited his ward's money is not bound to see that he makes a proper application of the funds. Brookhouse v. Union Pub. Co. 2: 993, 62 Atl. 219, 73 N. H. 368. 78. A bank, upon paying trust funds to a person known by it to stand in a trust relation to the depositor, with notice that Digest 1-52 L.R.A.(N.S.) such person intends to misappropriate them, renders itself liable to the depositor to the amount of the funds so paid. Emerado farmers' Elevator (Jo. v. Farmers' Bank, 29: 567, 127 N. W. 522, 20 N. D. 270. 79. A bank which, through its president, as one of the creditors of a manufacturing company, has agreed with it and the other creditors that the assets of the company shall be collected and deposited in the bank, to be divided among all creditors pro rata, cannot, upon the institution of bankruptcy proceedings against the corporation, set off the fund so accumulated against its own claim, since the fund is a trust deposit for speciiic purposes, created with the knowl- edge and consent of the bank, and it can- not, for purposes of set-off, treat it as the individual property of the corporation. Wag- ner v. Citizens' Bank & T. Co. 28: 484, 122 S. W. 245, 122 Tenn. 164. (Annotated) 3. Payment of checks; forgeries, a. In general. (See also same heading in Digest L.R.A. 1-10.) Presumption of acceptance of check from delay in returning, see BILLS AND NOTES, 65, 66. Presentation of negotiable paper, see BILLS AND NOTES, IV.; CHECKS, II. As to rights and liabilities on checks of persons other than banks, see CHECKS. Estoppel of principal by failure to examine pass book to deny liability for agent's overdraft, see ESTOPPEL, 187. See also infra, 149, 150, 237-239. 80. Ordinarily the issuance of a bank draft does not, prior to its acceptance, op- erate as an assignment of a part of the fund against which it is drawn. Clark v. Toronto Bank, 2: 83, 82 Pac. 582. 72 Kan. 1. (Annotated) 81. The bank cashing a check must take proper means to assure itself that it is- paid to the proper person, especially where it is presented far distant from the residence of drawee or payee. Harmon v. Old Detroit Nat. Bank, 17: 514, 116 N. W. 617, 153 Mich. 73. 82. It is not negligence for a bank to pay a check in excess of a letter of credit issued to a depositor for the purpose of making his checks good anywhere, the amount of the check being less than the actual deposit. Vogeli v. First State Bank, 19: 402, 96 Pac. 490, 78 Kan. 264. 83. It is not negligence for a bank to pay a check written on the blank of another bank without making inquiry. Vogeli v. First State Bank, 19:402, 96 Pac. 490, 78 Kan. 264. (Annotated) 84. Payment of a check wholly written by hand, and signed "V. P. by S. P.," the "V. P. by" having been written by a hand other than the "S. P.," will not authorize charging the amount thereof against a de- posit account as to which it had been agreed ,252 BANKS, IV. a, 3. that checks drawn thereon should be hon- ored only when signed either "V. P. per S. P.," written wholly by S. P., or when drawn upon a certain printed form and signed by S. P., although the signature upon the check paid was that of iS. P., where checks similar in form to that paid had never been issued by S. P., and in tact he had written his signature upon a blank piece of paper for another purpose, and the balance of the check had afterward been written in by another, without authority, and with intent to defraud, and the bank had ample time to inquire as to the valid- ity of the check before honoring it. Poliz- zotto v. People's Bank, 30: 206, ol So. 843, 125 La. 770. (Annotated) 85. That the proceeds of overdrafts drawn by an agent without authority upon his principal's bank account went to pay ex- penses of the principal's business does not entitle the bank to charge them against the account, if the proceeds were used merely to replace money which had been misappro- priated by the agent. Merchants' Nat. Bank v. Nichols & S. Co. 7: 752, 79 N. E. 38, 223 III 41. 86. That payment of an overdraft, un- der the mistaken belief that the drawer had funds, was made by the bank after office hours for the accommodation of the payee, does not change the rule that payment of such draft under such mistake in the ordi- nary course of business is not such a pay- ment under mistake of fact as will entitle the bank to recover the money from the payee. Spokane & E. Trust Co. v. Huff, 33: 1023, 115 Pac. 80, 63 Wash. 225. ( Annotated ) 87. A bank which pays its customer's check on funds in its possession, in igno- rance of the drawer's insolvency, will not be permitted to compel a return of the funds by the payee merely to enable it to utilize the funds so paid as a set-off upon its claim against the depositor, on the theory that the payment was made under a mis- take. National Exch. Bank v. Ginn, 33: 963, 78 Atl. 1026, 114 Md. 181. ( Annotated ) 88. A bank which pays coupons made payable to bearer, on bonds of one of its depositors, under the mistaken belief tli^t there were funds on deposit to meet them, cannot compel the payee to return the amount so paid. Citizens' Bank v. Schwarz- schild & Sulzberger Co. 23: 1092, 64 S. E. 954, 109 Va. 539. (Annotated) 89. Failure of a bank to comply with the rules of a clearing house association, necessary to enable it to compel a return by another member of the association of funds paid upon a worthless check, does not destroy its right to compel a return by the payee of the check after they reach his hands, since his rights or liabilities are not alfected by such rules. National Exch. Bank v. Ginn, 33: 963, 78 Atl. 1026, 114 Md. 181. 90. A bank is not liable for paying a check to one who obtains it by falsely rep- resenting that he was the one who owned a Digest 1-52 L,.R.A.(N.S.) parcel of land, and securing from the maker a loan secured by mortgage upon it, to se- cure the money for which the check was given, where the check was paid to the person for whom it was intended. Mc- Henry v. Old Citizens' Nat. Bank, 38: nn, 97 N. E. 395, 85 Ohio St. 203. (Annotated) Check with invalid indorsement. 91. A bank paying a check upon the un- authorized indorsement by an agent of the payee, and charging the amount thereof to the drawer's account, becomes liable to the payee for the amount of such check, unless the conduct of the payee excuses such pay- ment, or prevents him from asserting such liability. McFadden v. Follrath, 37: 201, 130 N. W. 542, 114 Minn. 85. Effect of drawer's death. 92. A bank which in due course of busi- ness, and without notice, pays a check of a depositor after his death, is not bound to account to his personal representative for the amount so paid. Glennan v. Rochester Trust' & Safe Deposit Co. 52: 302, 102 N. E. 537, 209 N. Y. 12. Liability for dishonoring check. Instruction as to effect of failure of bank to honor check, see APPEAL AND EKKOR, 1360. Punitive damages for, see DAMAGES, 5. Measure of damages for, see DAMAGES, 212. Estoppel to decline to honor check, see ES- TOPPEL, 89. Evidence to show damages resulting from wrongful dishonor of check, see EVI- DENCE, 1751. Limitation of action for damages from fail- ure to pay check, see LIMITATION OF ACTIONS, 245. Bank's authority to refuse to cash check where bank credit was obtained by forged indorsement through connivance of agent, see PRINCIPAL AND AGENT, 79. 93. A telegram stating that a certain person's check is good for a sum named, sent by a bank in response to a telegraphic inquiry as to whether such person's check is good for that amount, does not import an absolute promise to pay the amount of the check, or constitute a contract of ac- ceptance external to the bill. First Nat. Bank v. Commerciar Sav. Bank, 8: 1148, 87 Pac. 746, 74 Kan. 606. (Annotated) 94. In the absence of either prior or sub- sequent negligence or misleading conduct on the part of a depositor, a bank cannot charge him with any payments except such as are made in conformity with his order, no matter what care is exercised or what precautions are taken by the bank. Nation- al Dredging Co. v. Farmers' Bank 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 95. A check on a bank in which the drawer has funds subject to check is an as- signment of such funds of the drawer to the amount of the check, which assignment is complete as between the drawer and payee when the check is given, and complete as between the payee or holder and the bank when the check is presented for payment, and upon such presentation, the bank, un- less its right to pay has been taken away BANKS, IV. a, 3. 253 by some occurrence before presentation, is legally bound to pay the check. Wasgatt v. First Nat. Bank, 43: 109, 134 N. W. 224, 117 Minn. 9. 96. The drawee bank of a check upon which at the time Jt was drawn was stamped in the lower left-hand corner, and immediately following the direction to the drawee bank, the words, "Payable through (a named bank in another city) at cur- rent rate," need not pay the check when not presented through the named bank, but directly by a third bank. Farmers' Bank v. Johnson, King, & Co. 30: 697, 68 S. E. 85, 134 Ga. 486. (Annotated) 97. A bank cannot refuse to pay a check upon itself, because of delay in presenting it, if no prejudice to its rights has resulted therefrom. .Robinson v. Pikeville, 37: 1186, 142 S. W. 1065, 146 Ky. 538. 98. A depositor is not entitled to dam- ages for a bank's refusal to honor his check al~er he has closed the account by drawing the balance as stated by the bank, although he claims that the bank owes him an ad- ditional amount, and that it wrongfully charged against his account the claim of a stranger. Jaselli v. Riggs Nat. Bank, 31: 763, 36 App. D. C. 159. 99. A bank cannot take advantage of the refusal of its customer to answer ques- tions when seeking an explanation as to its refusal to honor his check, where it had, without notifying him, honored a rival claim to the fund and paid the money out of his account. Jaselli v. Riggs Nat. Bank, 31 : 763, 36 App. D. C. 159. 100. Where presentation of a check makes the bank liable therefor to the hold- er, one who, after giving a check, signs an order directing the bank to pay to the holder the amount of such check if it is still unpaid, takes the risk of the subse- quent presentation of such check, and the bank may be required to pay both checks if the deposit account has funds. South- ern Seating & Cabinet Co. v. First Nat. Bank, 29: 623, 68 S. E. 962, 87 S. C. 79. ( Annotated ) 101. A bank which honors the check of a customer upon a deposit account based upon a draft upon which he had forged an in- dorsement, by placing the check to fche cred- it of an innocent stranger, and authorizing him to check against such credit, cannot re- fuse, because of the original fraud, to hon- or his check to the injury of an innocent payee. Robinson v. Pikeville, 37: 1186, 142 S. W. 1065, 146 Ky. 538. Stopping payment. Stopping payment of check for purchase money as rescission of sale, see SALE, 189. 102. Though a telegram countermanding a cheque may reasonably be acted upon by a banker, at least to the extent of postpon- ing the honoring of the cheque until further inquiry can be made, yet a banker is not bound as a matter of law to accept an un- authenticated telegram as sufficient author- ity for refusing payment. Curtice v. Lon- don City & Midland Bank, Ltd., 1 B. R. C. Digest 1-52 L.R.A.(N.S.) 417, [1908] 1 K. B. 293. Also Reported in 77 L. J. K. B. N. S. 341, 98 L. T. N. S. 190, 24 Times L. R. 176. (Annotated) 103. It seems, that a banker may expose himself to an action for negligence on ac- count of his neglect to take from his letter- box a telegram countermanding payment of a cheque, where in consequence thereof the cheque has been paid before such counter- mand is brought to his attention. Curtice v. London Citv & Midland Bank Ltd., 1 B. R. C. 417, [1908] 1 K. B. 293. Also Re- ported in 77 L. J. K. B. N. S. 341, 98 L. T. N. S. 190, 24 Times L. R. 176. 104. The mere delivery of a telegram by the postoffice authorities to a bank, al- though that telegram has by an oversight never been opened, and has, therefore, never come to the attention of the banker, does not operate as a countermand of payment of a cheque within the meaning of a statute providing that the duty and authority of a banker to pay a cheque drawn on him by his customer are determined by (1) coun- termand of payment, and (2) notice of the customer's death. Curtice v. London City & Midland Bank, Ltd. 1 B. R. C. 417, [1908] 1 K. B. 293. Also Reported in 77 L. J. K. B. N. S. 341, 98 L. T. N. S. 190, 24 Times L. R. 176. 105. A bank is liable for paying a check which is countermanded by the drawer be- fore accepted by the bank, although it has been presented to the bank prior to coiinter- mand, in the absence of funds and a prom- ise secured that it would be credite " i - the account of the payee. First Nat. Bank v. School Dist. No. 4, 39: 655, 120 Pac. 614, 31 Okla. 139. (Annotated) 106. Checks are but inland bills of ex- change and subject to all the rules appli- cable to instruments of that character, and impose no obligation upon the drawees un- til accepted; and, until presented and paid, are revocable by the drawer, who has the legal control of the money to his credit until actual acceptance or payment of the checks. First Nat. Bank v. School Dist. No. 4, 39= 655, 120 Pac. 614, 31 Okla. 139. b. Forgeries. '(1) In general. (See also same heading in Digest L.R.A. 1-10.) By savings bank, see infra, 237-239. Rights and liabilities as to parties other than bank, see CHECKS, V. Right of bank which has paid forged check to a subrogation, see SUBROGATION, 40, 41. Question for jury as to care and diligence of depositor, see TRIAL, 219. Inconsistency between general and special findings in action by depositor to re- cover amount of check, see TRIAL, 1143. See also infra, 182-186. 107. Neither any rule of law nor the or- dinary course of business renders it a mat- 254 BANKS, IV. a, 3. ter of suspicion that the body of a check is not written in the handwriting of the maker. Yogeli v. First State Bank, 19:402, 96 Pac. 490, 78 Kan. 2tii. 108. A bank which, without considera- tion, receives a sura of money from a money lender, to be delivered to one of his custo- mers on a check to be drawn by such custo- mer, which money is, in good faith, paid on a check received in due course of business at the time and under the circumstances agreed upon, is not rendered liable for the amount so paid by the fact that the check is a forgery, since, in such case, the bank is a gratuitous bailee merely, and, as such, liable only in case of failure to exercise or- dinary care and good faith. Peoples' Nat. Bank v. Wheeler, 21:816, 96 Pac. 619, 21 Okla. 387. (Annotated) 109. A bank Which, acting upon tele- graphic instructions to pay money for war- ranty deed, if regular, to a named person, pays the money to an impostor for a forged deed, is not bound to relieve its correspond- ent from the loss if the latter, in answer to a communication from the impostor in the name of the property owner, makes an offer for the land and closes the deal by forwarding a deed for execution, which "is done by the one to whom the money is paid, and directing the bank to pay over the money for the deed. Boatsman v. Stock- men's Nat. Bank, 50: 107, 138 Pac. 764, 56 Colo. 495. Recovery back by drawee of amount paid. See also infra, 183; ASSUMPSIT, 44, 45. 110. The drawee of a forged draft may recover back the amount paid upon it to one whose conduct has been such as to mis- lead him, or induce him to pay the draft without the usual security against fraud. Ford v. People's Bank, 10: 63, 54 S. E. 204, 74 S. C. 180. (Annotated) 111. An unrestricted indorsement of a draft by a holder other than the original payee is a representation that the signature of the drawer is genuine, upon which the drawee may rely, so that, in case it proves to be a forgery, he may recover back the money paid upon the draft to the indorser. Ford v. People's Bank, 10: 63, 54 S. E. 204, 74 S. C. 180. (Annotated) 112. A bank which pays a forged check to the payee, who took it without identifica- tion of the drawer, may require the return of the amount paid. Newberry Sav. Bank v. Bank of Columbia, 38: 1200, 74 S. E. 615, 91 S. C. 294. 113. If the drawee of a forged check or bill of exchange pay it to a bona fide hold- er who is without fault, he cannot recover the money from the person to whom pay- ment was made. Bank of Williamson v. McDowell County Bank, 36: 605, 66 S. E. 761, 66 W. Va. 545. 114. A bank which pays to a bona fide holder a forged check purporting to be drawn upon it by one of its depositors can- not recover the amount paid from the inno- cent holder. Pennington County Bank v. liigest 1-52 L.R.A.(N.S.) First State Bank, 26: 849, 125 N. W. 119, 110 Minn. 2G3. 115. The immunity accorded the holder of a forged check which is paid without fault on Iiis part, being an exception from the general rule of law allowing recovery of money paid under a mutual mistake of fact, does not extend to one who has omitted some precautionary act or duty, usual and customary among bankers. Bank of Williamson v. McDowell County Bank, 36: 605, 66 S. E. 761, 66 W. Va. 545. 116. The payee cannot retain money re- ceived from the drawee on a forged check unless he was free from negligence in re- ceiving the check and the drawee did not use due care in paying it and ne lias changed his position or would be in a worse condi- tion if tlie mistake was corrected than if the drawee had refused to pay the check at the time of its presentment. American Express Co. v. State Nat. Bank, 33: 188, 113 Pac. 711, 27 Okla. 824. 117. If, in case a bank forwards for col- lection a forged check upon which it has advanced the money, both parties have been guilty of negligence, the drawee in failing to have in its possession any means of test- ing the genuineness of the signature of the drawer, and the paying bank, in tailing to have the payee identified, when he is un- known, the former cannot recover of the latter. Bank of Williamson v. McDowell County Bank, 36: 605, 66 S. E. 761, 66 W. Va. 545. 118. In taking a forged check from an unknown person for collection, without in- quiry as to his identity, and forwarding it for collection, after having taken the in- dorsement thereon of the reputed payee and placed its own unrestricted indorsement on the same, a bank omits a precautionary duty which the law merchant devolves upon it for the protection of the drawee, and makes a warranty of the genuineness of the signature of the payee, which it cannot afterwards deny; wherefore it is liable to the drawee for the money paid on the check by the latter in ignorance of the forgery, unless the latter, by omitting some duty resting upon it, is likewise in fault. Bank of Williamson v. McDowell County Bank, 36: 605, 66 S. E. 761, 66 W. Va. 545. 119. *A bank which cashes a forged check payable to itself, without attempting to identify the drawer, cannot avoid returning the funds to the drawee from whom it col- lected them, on the theory that it should have ascertained the forgery and notified the payee, to enable it to protect itself, sooner than it did, where there was noth- ing to arouse its suspicion as to the gen- nuineness of the check. Newberry Sav. Bank v. Bank of Columbia, 38: 1200, 74 S. E. 615, 91 S. C. 294. 120. The drawee of a draft purporting to have been drawn by a South Dakota bank upon an Illinois bank, but to which the drawer's name had been forged, which pays the draft to a Nebraska banker to whom the payee, a personal acquaintance of the Nebraska banker, had indorsed (..-'.>: >. A.;"!. : !"-' j BANKS, IV. a, 3. 255 generally and sold the instrument for its face value, cannot recover back the amount so paid unless it pleads ana proves that the latter was negligent in purchasing the instrument or in indorsing it, or withheld from the drawee at the time the draft was paid some information or ground for sus- picion within his knowledge concerning the genuineness of the instrument; and if the one cashing the draft acted in good faith in the transaction, he is not required, in order to acquit himself of a charge of negligence in purchasing the bill, to prove that before such purchase he inquired of the drawer whether the instrument was genuine, or communicated with the drawee to learn whether the bill would be. accepted. State Bank v. First Nat. Bank, 29: 100, 127 N. W. 244, 87 Neb. 351. (Annotated) Drawee's presumed knowledge of drawer's signature. 121. In the absence of negligence or mis- conduct on the part of the holder of forged paper contributing to the fraud, by which the person on whom it purports to be a check or acceptance is induced to part witn money on the faith of it, such person must determine at his peril whether the signa- ture is genuine. Bank of Williamson v. Mc- Dowell County Bank, 36: 605, 66 S. E. 761, 66 W. Va. 545. 122. A statutory provision that the ac- ceptor of a negotiable instrument admits the genuineness of the drawer's signature does not apply in favor of one who acquired the paper without any consideration what- ever therefor either present or past. Title Guarantee & T. Co. v. Haven, 25: 1308, 89 N. E. 1082, 196 N. Y. 487. (2) Altered checks. (See also same heading in Digest L.R.A.. 1-10.) Raising for first time on appeal failure to plead estoppel to take advantage of raising of check, see APPEAL AND ERROR, 727. Imputing to depositor knowledge of agent as to fraudulent alteration of check, see NOTICE, 35, 36. Question for jury as to negligence of bank in cashing altered checks, see TRIAL, 592. 123. A depositor cannot be charged with the amount of checks containing an unau- thorized erasure of the words "the order of," and an insertion of the words "or bearer," whereby payment is made by the bank to a person other than the payee. National Dredging Co. v. Farmers' Bank, 16:593, 69 Atl. 607, 6 Penn. (Del.) 580. Negligence of depositor. Damages for depositor's neglect to examine bank book and vouchers, see DAMAGES, 101. Estoppel of depositor by negligence, see ESTOPPEL, 185, 186, 189. Digest 1-52 L.R.A.(N.S.) Notice to agent intrusted with examination of passbook as notice to depositor, see NOTICE, 35. Conduct of depositor as proximate cause of loss, see PROXIMATE CAUSE, 157, 158. Question for jury as to care and diligence of depositor, see TRIAL, 219. 124. It is the duty of a depositor who has caused his bank book to be written up and the vouchers returned, to examine the account so rendered, within a reasonable time. National Dredging Co. v. Farmers' Bank, 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 125. A depositor is under no duty to the bank so to conduct the examination of his bank book and vouchers that it will neces- sarily lead to the discovery of fraudulently altered checks, but, if he examines the vouchers personally and is himself deceived by their skilful character, his failure to dis- cover the forgery will not shift upon him the loss which, in the first instance, is the loss of the bank. National Dredging Co. v. Farmers' Bank, 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 126. The failure of a depositor to notify the bank within a reasonable time after the return to him of his bank book and vouch- ers, of the fact that checks paid by the bank in the exercise of due and reasonable care have been fraudulently altered, constitutes a defense for the bank to the depositor's suit for money subsequently paid out by the bank on similar checks. National Dredging Co. v. Farmers' Bank, 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 127. The negligent payment of altered checks by a bank is not excused by the de- positor's failure to examine his bank book and vouchers with reasonable care, and to report to the bank, within a reasonable time, any errors or mistakes. National Dredging C*?. v. Farmers' Bank, 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 128. A depositor who fails to examine his bank book and vouchers with reasona- ble care and diligence, and to notify the bank that checks paid by it, in the absence of negligence, have been fraudulently al- tered, is liable to the bank for all damages sustained by it in consequence of his omis- sion of duty. National Dredging Co. v. Farmers' Bank, 16:593, 69 Atl. 607, 6 Penn. (Del.) 580. (3) Forged indorsements. (See also same heading in Digest L.R.A. 1-10.) Payment by person other than bank, of check issued to impostor, see CHECKS, 54, 55. Estoppel to claim reimbursement from bank, see ESTOPPEL, 132. Evidence that one to whom forged check was paid was the one whom maker in- tended to receive the money, see EVI- DENCE, 1621. '' 256 BANKS, IV. a, 3. Interpleader in suits by payee of checks paid under forged indorsement, see IN- TERPLEADER, 9. Notice to agent of forgery as notice to principal, see NOTICE, 28. Who may maintain action for payment of check on forged indorsement, see PAB- TIES, 61. Agent's authority to connive at forging of indorsement on draft to be used for satisfying judgment, see PRINCIPAL AND AGENT, 79. Proximate cause of payment by bank of forged check, see PROXIMATE CAUSE, 158. See also supra, 101; infra, 184-186, 232, 238, 239. 129. The indorsement of a draft in his own name by one into whose hands it falls by mistake, being payable to another per- son bearing the same name, is a forgery, and will not protect a bank which innocent- ly cashes it upon such indorsement against the claim of the true owner. Thomas v. First Nat. Bank, 39: 355, 58 So. 478, 101 Miss. 500. 130. A statute making a check drawn in favor of a fictitious payee payable to bearer does not apply where its execution in that form was secured by fraud. Harmon v. Old Detroit Nat. Bank, 17: 514, 116 N. W. 617, 153 Mich. 73. 131. A check is not prevented from being drawn in favor of a fictitious person by the fact that the name of a known individual is inserted therein as payee, if the check was not intended to be paid to such person, but the name was not intended to represent anyone. Jordan-Marsh Co. v. National Shawmut Bank, 22: 250, 87 N. E. 740, 201 Mass. 397. 132. A draft secured from a bank, which, for a fraudulent purpose, without its knowl- edge, is made payable to one having no in- terest in the transaction, whose indorse- ment is subsequently forged thereon by the person guilty of the fraud, is not payable to the order of a fictitious or nonexistent person if the bank does not understand such to be the fact, within the meaning of the negotiable instruments law, making drafts in favor of such persons payable to bearer. Seaboard Nat. Bank v. Bank of America, 12: 499, 85 N. E. 829, 193 N. Y. 26. (Annotated) 133. A bank which collects checks cashed by it on forged indorsements is not liable for money had and received to the use of the payee, where the rule is that no con- tractual relation exists between the payee and drawee of an unaccepted check, and the fact that the payee credits the drawers with the amount of the checks is immaterial. Tibby Bros. Glass Co. v. Farmers' & M. Bank, 15: 519, 69 Atl. 280, 220 Pa. 1. (Annotated) 134. One who delivers a check payable to a borrower to the latter's agent, to be trans- mitted to the borrower, does not intend that it shall be indorsed and collected by him, so as to relieve the bank from further liability Digest 1-52 L.R.A.(N.S.) in case it pays the check to him on his in- dorsement of his principal's name and his own upon it. Goodfellow v. First Nat. Bank, 44: 580, 129 Pac. 90, 71 Wash. 554. 135. Drawers of a check made payable to a customer to whom they are indebted, and forwarded to an agent for delivery, cannot recover the amount of the check from a bank in which the agent has deposited it to his own credit, having forged the name of the payee, the drawee bank having later paid the check on the forged indorsement in the ordinary course of business, where the agent, being short in his accounts with his principals, transferred to their names a part of his account, which included the pro- ceeds of the forged check, since such pro- ceeds came back to them, and the shortage of the agent remaining unpaid, they suil'ered no damage by reason of the payment of the check by the defendant bank, and it is immaterial that credit instead of cash was used in the transaction. Andrews v. North- western Nat. Bank, 25: 996, 117 N. W. 621, 780, 122 N. W. 499, 107 Minn. 196. (Annotated) 136. A bank which pays to an agent a check drawn to the order of his principal upon his placing thereon, without authority, the name of his principal and his own must make good the amount to the drawer. Good- fellow v. First Nat. Bank, 44: 580, 129 Pac. 90, 71 Wash. 554. 137. A bank which cashes a draft upon indorsement of the payee's name by his attorney-at-law, who has it in his posses- sion, is bound to make good the loss to the payee. Brown v. People's Nat. Bank, 40: 657, 136 N. W. 506, 170 Mich. 416. 138. A bank which has collected a check deposited by one who has forged the payee's indorsement thereto is not relieved from lia- bility to the drawer for the full amount of the check by the fact that the forger ad- vanced to the drawer a sum of money to aid him to meet the check, so that the drawer has in fact lost only the difference; since he may still be liable to account for the sum borrowed. North and South Wales Bank v. Macbeth, 3 B. R. C. 748, [1908] A. C. 137. Also Reported in 77 L. J. K. B. N. S. 464, 98 L. T. N. S. 470, 24 Times L. R. 397, 13 Com. Cas. 219, 52 Sol. Jo. 353, 354. Bank's duty to discover genuineness. Proximate cause of payment by bank of forged check, see PROXIMATE CAUSE, 158. 139. The duty of the bank to identify the one to whom a check is paid is not changed by the fact that the name of a fictitious payee was fraudulently inserted before it was signed by the drawer. Harmon v. Old Detroit Nat. Bank, 17: 514, 116 N. W. 617, 153 Mich. 73. (Annotated) 140. A bank cannot justify payment of a check fraudulently drawn in favor of a fic- titious payee by the fact that the check came to it through other banks which had cashed it, since their negligence is imputed to it. Harmon v. Old Detroit Nat. Bank, 17: 514, 116 N. W. 617, 153 Mich. 73. 141. The duty of a bank to its depositor BANKS, IV. a, 4, b, I. to pay checks only to the payee or upon his order is not affected by the fact that the check is collected through a clearing house, upon a guaranty of indorsements by a rep- utable bank. Jordan-Marsh Co. v. National Shawmut Bank, 22: 250, 87 N. E. 740, 201 Mass. 397. 142. Payment by a bank of a check upon a forged indorsement of the name of the payee, without inquiry as to its genuineness, carf- not be called constructive negligence. Jor- dan-Marsh Co. v. National Shawmut Bank, 22: 250, 87 N. E. 740, 201 Mass. 397. 143. A bank cannot escape liability for payment of a check upon a forged indorse- ment, by the fact that it was made payable to a fictitious or nonexistent person, through negligent failure to discover the fraud by which it was obtained. Jordan-Marsh Co. v. National Shawmut Bank, 22: 250, 87 N. E. 740, 201 Mass. 397. Duties and liabilities of depositor. Estoppel to claim reimbursement from bank, see ESTOPPEL, 132. Notice to agent of forgery as notice to prin- cipal, see NOTICE, 28. See also supra, 124-128. 144. The drawer of a check who mails it to the wrong address, without anything on it to identify the drawee, cannot, because 147. Demand must be made for payment of a certificate of deposit payable without interest on return of the certificate properly indorsed, within the time limited for bring- ing an action upon such certificate. Pierce v. State Nat. Bank, 46: 693, 101 N. E. 1060, 215 Mass. 18. 148. A bank is not bound to pay over to an administrator money deposited by a per- son since deceased, until the certificate of deposit executed by it is surrendered or impossibility of surrender is shown. Divine v. Unaka Nat. Bank, 39: 586, 140 S. W. 747, 125 Tenn. 98. 149. The cashing by a bank of certifi- cates of deposit issued to the order of certain minors "or guardian," on the order of one who made the deposits and pur- ported to act as guardian in the trans- action, does not discharge the bank from liability to such minors, where the one to whom the payment was made was not in fact the guardian, since the bank, by pay- ment to one not actually named in the certificates, acted at its peril that such person was a legally appointed guardian. McMahon v. German-American Nat. Bank, 29: 67, 127 N. W. 7, 111 Minn. 313. (Annotated) 150. A bank which cashes a certificate of of his own negligence, hold the bank liable deposit made payable "to the order of for paying the check on the indorsement of one bearing the same name as the drawee, to whom the letter was delivered by the postoffice department, where the check came through the regular channels of collecting banks with indorsements guaran- teed. S. Weisberger Co. v. Barberton Sav- ings Bank Co. 34: noo, 95 N. E. 379, 84 Ohio St. 21. (Annotated) 145. The duty of the depositor to examine his return vouchers does not extend to an examination of the signatures of the indors- rs to determine their genuineness. Jordan- Marsh Co. v. National Shawmut Bank, 22: 250, 87 N. E. 740, 201 Mass. 397. 146. That a bank which has paid checks upon forged indorsements cannot show that it could have protected itself had it re- ceived prompt notice of the forgery will not prevent the failure to give such notice from depriving the depositor of his right to require the bank to make good to his ac- count the amount of payment so made. McNeely Co. v. Bank of North America*, 20:79/70 Atl. 891, 221 Pa. 588. (Annotated) 4. Certificate of deposit. (See also same heading in Digest L.R.A. 1-70.) Indorsement of, by trustee, see BILLS AND NOTES, 183. Transfer of certificate of deposit to secure money for gambling purposes, see CON- TRACTS, 530. Running of limitations against action on, see LIMITATION OF ACTIONS, 129, 130, 143-145, 218. Inheritance tax on, see TAXES, 340. Digest 1-52 L.R.A.(N.S.) T., guardian," upon the order of T., who had not in fact been appointed guardian, is not thereby discharged from liability to the minor wards, where such certificate was issued to T. upon surrender by him of the original certificate, which had been made payable to such minors "or guard- ian," as the original certificate determined the obligation of the bank, since the true owners, being minors, could not be estopped by the unauthorized issuing of the sec- ond certificate. McMahon v. German-Amer- ican Nat. Bank, 29: 67, 127 N. W. 7, 111 Minn. 313. ft. Collections. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Allegations as to negligence, see ASSUMP- SIT, 7 ; PLEADING, 284. Rights of drawer of chock not collected through bank's negligence, see As- SUMPSIT, 46. Presentment of negotiable paper at bank for payment, see BILLS AND NOTES, IV. Liability of bank collecting draft with bill of lading attached, see BILLS OF LAD- ING. Criminal liability of bank collecting draft attached to bill of lad : ng for liquor, see INTOXICATING LIQUORS, 97. Time for presenting check for payment gen- erally, see CHECKS, 9-15. Measure of damages for negligence, see DAMAGES, 213, 214. Evidence of custom as to, see EVIDENCE, 1525. BANKS, IV. b, 1. Parol evidence to explain indorsement by bank, of note, Bee EVIDENCE, 996. Attaching proceeds of draft with bill of lading attached in hands of collecting bank, see GARNISHMENT, 1. Retrospective operation of statute as to lia- bility of collecting bank, see STATUTES. 302. See also CHECKS, 5. 151. Where a vendor in a sale of land that had been effected by correspondence followed the suggestion of the vendee's agent that he send the deed for the land to a local bank where it would be taken up by the vendee, and so sent the deed with a sight draft for the unpaid portion of the purchase price, together with specific in- structions to deliver the deed on payment of such draft, and to remit the proceeds by New York or Chicago exchange, the bank was the vendor's agent for the collection of such draft and the confirmation of the deal by the delivery of the deed. Schafer v. Ol- son, 43: 762, 139 N. W. 983, 24 N. D. 542. 152. If the holder of a check indorses it, and deposits it for credit and collection in another bank, the collecting bank, if the check is not paid and it is without fault in forwarding it for payment, lias the right, on its return, to charge it back to its customer, or recover the amount if he has in the meantime withdrawn the money. Pinkney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 254. 153. The holder of a note payable at a particular bank, who, at the request of the maker, forwards it to another bank at which he was doing business, for collection, does not make the latter his agent, so that the loss will fall on him in case it fails after collecting and surrendering the note, but before it forwards the proceeds. Vir- ginia Carolina Chemical Co. v. Steen, 34: 734, 55 So. 47, 99 Miss. 504. (Annotated) 154. A collecting bank which returns to the drawee money paid on the check because it receives notice that the check is fraudu- lent cannot, in an action by its principal to hold it liable for the fund so returned, set up the fact that the principal had notice of the fraud, and therefore could not have en- forced payment of the check against tlie drawee. Monongahela Bank v. First Nat. Bank, 26: 1098, 75 Atl. 359, 226 Pa. 270. (Annotated) 155. When a bank holding a note for col- lection surrendered it to the maker in ex- change for his worthless check upon another bank, but, .upon the dishonor of the check, regained possession of the note as a subsist- ing obligation against all makers and indors- ers, and no actual prejudice resulted to the owner from the transaction, which took place after the close of banking hours upon one day and before their opening on the next, no liability was thereby created against the collecting bank in favor of the owner of the note. Interstate Nat. Bank v. Ringo, 3: 1179, 83 Pac. 119, 72 Kan. 116. (Annotated) 156. After a collecting bank presents a check for payment, gives notice of dishonor, Digest 1-52 LuR.A.(N.S.) and charges it back to the payee, it is not ils duty to present a claim in bankruptcy against the estate of the bank on which it was drawn, since the check is then the property of the payee, who alone can file 7. A liank whifh, upon receiving a note for collection, indorses it, "Previous indorse- ments guaranteed. Pay to the order of any bank or banker;" and forwards it to a cor- respondent for collection, does not render itself liable on the paper. Johnston v. Schnabaum, 17:838, 109 S. W. 1163, 86 Ark. 82. 158. A collecting bank does not make a check received for collection its own because after dishonor it fails to return it to its owner when the check is in the hands of the receiver in bankruptcy of the bank on which it was drawn. Hendrix v. Jellerson County Sav. Bank, 14: 686, 45 So. 136, 153 Ala. 636. 159. The mere retention, by the owner, of a check returned to him protested by a collecting agent, is not a ratification of the latter's act in refunding money paid on the check, under a claim that it was fraudulent- ly issued, where he has no notice that the check had been paid and the money re- turned. Monongahela Bank v. First Nat. Bank, 26: 1098, 75 Atl. 359, 226 Pa. 270. Title to paper. Parol evidence as to indorsement of checks for collection, see EVIDENCE, 993. Variance between pleading and proof as to title, see EVIDENCE, 2472. 160. That a bank receiving commercial paper for collection permits the holder to draw the amount of it before the collection is made, does not change the relation of the parties to it. Winchester Milling Co. v. Bank of Winchester, 18: 441, 111 S. W. 248, 120 Tenn. 225. 161. An unrestricted indorsement of a check confers on the indorsee the legal title and the right to sue thereon, although the check is taken for collection. Citizens' State Bank v. E. A. Tessman & Co. 45: 606, 140 N. W. 178, 121 Minn. 34. 162. Where certain checks are deposited by the payee to his account in a bank, and immediately thereafter he draws on his account in favor of the drawer of the checks,, in such an amount as to leave his account with the bank overdrawn upon a dishonor of the checks deposited, and there- after other checks are substituted by the drawer of the first checks for the dis- honored ones, and these indorsed unre- strictedly, and deposited for collection by the payee with the bank, to make good his overdraft, and thereupon the drawer, wi!;h knowledge of the possession of the checks by the bank, settles with the depositor, and stops payment on the substituted checks, an action may be maintained by the bank against the drawer on the checks. Citizens' State Bank v. E. A. Tessman 4 Co. 45: 606, 140 N. W. 178, 121 Minn. 34. 163. An agency coupled with an interest in favor of the bank is created by the de- . -' : BANKS, IV. b, 1. 259 posit in a bank of checks unrestrictedly indorsed, in lieu of previously dishonored checks, and to cover an overdraft created thereby; and the depositor has no power to revoke the agency, or to demand a re- turn of the checks or their proceeds, or to prejudice the rights of the bank by a settlement with the drawer, so long as the overdraft is unpaid. Citizens' State Bank v. E. A. Tessman & Co. 45: 606, 140 N. W. 178, 121 Minn. 34. 164. The relation of debtor and creditor, and not that of principal and agent, is cre- ated between a trust company and one who sends to it for credit to his account a check drawn by him on another bank, in favor of the trust company, so that, as between him and the bank on which the check is drawn, he must bear the loss caused by the in- solvency of the trust company, where it places the check to his credit and sends it for collection to the drawee bank, which pays it without knowledge of the trust company's insolvency. Plumas County Bank v. Bank of Rideout, Smith, & Co. 47: 552, 131 Pac. 360, 165 Cal. 126. (Annotated) Notice as to title from indorsement. 165. An indorsement, by a bank, of a note to pay to the order of any bank or banker, shows on its face that it passes title for collection only. Johnston v. Schnabaum, 17: 838, 109 S. W. 1163, 86 Ark. 82. Care in selecting correspondent. 166. In the absence of a controlling stat- ute or agreement, a bank selects its agent for collection at its own risk ; and where a check payable in another city is deposited, to be credited to the depositor, and is paid to a bank to which the bank of deposit has forwarded it for collection, the bank of de- posit is liable to the depositor, although the collecting bank does not remit the collec- tion. Brown v. People's Bank, 52: 608, 52 So. 719, 59 Fla. 163. Sending directly to bank required to pay. Damages for negligence in, see DAMAGES, 213, 214. 167. Sending a check for collection to the drawee bank is prima facie negligence on the part of the collecting bank; at least, when it is a cashier's check on his own bank. Jefferson County Sav. Bank v. Hen- drix, i : 246, 39 So. 295, 147 Ala. 670. 168. Generally it is negligence for a col- lecting bank to send checks direct to the drawee bank, and the fact that the drawee bank is the only one in the place where it is located is immaterial. Pinkney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 254. 169. The custom of the banks at the place where the collecting bank is located, of sending checks to a drawee bank, will not justify the sending of a check directly to a drawee. Pinkney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 254. 170. A custom of a bank to send paper re- ceived for collection to the bank on which it is drawn is void for unrea onableness. Farley Nat. Bank v. Pollak, 2: 194, 39 So. 612, 145 Ala. 321. (Annotated) Digest 1-52 L.R.A.(N.S.) 171. A bank receiving a check for collec- tion is negligent in sending it to the drawee, although it is the only bank in the place where it is located. Winchester Milling Co. v. Bank of Winchester, 18: 441, 111 S. W. 248, 120 Tenn. 225. (Annotated) 172. The drawing of a check on a good ac- count is discharged from liability where the collecting bank sends it to the drawee, which returns its draft for the amount, charges the check against the drawer's account, and cancels and surrenders it, by reason of which the drawer is prevented from drawing the amount of such check when drawing the balance of his account, although the draft is not paid for lack of funds and fail- ure of the bank drawing it. Winchester Milling Co. v. Bank of Winchester, 18: 441, 111 S. W. 248, 120 Tenn. 225. 173. The owner of a check delivered to a bank for collection ratifies its act in send- ing the check to the drawee and accepting its draft for the amount, by receiving the draft after it is dishonored, and making it the basis of an action against the collecting bank for negligence in failing to collect it. Winchester Milling Co. v. Bank of Winches- ter, 18: 441, 111 S. W. 248, 120 Tenn. 225. 174. Where a collecting bank is negligent in transmitting a check for collection, and in lorwarding it to the drawee bank, where- by such drawee, though in disregard of a special agreement, is enabled to debit the drawer of the check and credit the collect- ing bank, and control of the check is lost by the collecting bank and it is never re- turned to the customer, the latter may in action of assumpsit, upon the common counts as for money had and received, re- cover the full amount of the check. Pink- ney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 254. Promptness in making collection or giving notice of failure. Effect of delay in presentation of check tak- en in payment of other check, see CHECKS, 27, 28. See also CHECKS, 16. 175. A collecting bank, knowing of the depressed financial condition of the debtor, is delinquent in its duty if it neglects to inform its customer of such vital con- dition, and fails to take vigorous measures under the circumstances to secure payment, and if loss occurs by its negligence to exercise that degree of skill, care, and diligence which the nature of its under- taking calls for, with reference to the time, place, and circumstances surrounding the undertaking, it will incur liability to its principal for the loss sustained. Pinkney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 25.4. 176. Knowledge by one who deposits a check in a bank for collection, of a custom of the bank to collect through a clearing house, does not make a rule of the clearing house as to the time settlements are made between the members thereof, binding upon him so as to relieve the bank from liability for the loss in case because of such rule the check is not presented to the drawee until 200 BANKS, IV. b, 1. after the close of business on the day fol- lowing the receipt of the check by the de- positor and the consequent release of the surety's liability, and prevent? his holding the collecting bank liable for loss due to the failure of the drawee before presenta- tion of the check, which would have been paid if presented in time. Dorchester v. Merchants' Nat. Bank, 50: 542, 163 S. W. 5, Tex. . (Annotated) 177. A bank to which a check indorsed to its order is forwarded for collection, its amount to be credited to the account of the correspondent, and which presents it for payment on the day of its receipt to the drawee, who then has funds of the drawer on deposit to meet it and who is ready to pay it in money, but which, instead of tak- ing cash, surrenders the check for the drawee's own check on another bank, must use the utmost diligence to collect the sec- ond check, or bear any loss which may be occasioned by the delay, in case the drawer should become insolvent. Noble v. Dough- ten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. (Annotated) Payment; accepting check in pay- ment. Effect of delay in presentation of check tak- en in payment of other check, see CHECKS, 27, 28. Effect of acceptance by collecting bank of check in payment of commercial paper, as between the owner of the paper and the obligor thereon, see PAYMENT, 9, 10. See also supra, 155, 177. . 178. Where the vendor in a land contract sends a deed for the land, together with a sight draft for the balance of the purchase price, to a bank, with instructions to deliver the deed upon the payment of the draft and remit the proceeds, and a person who has sufficient funds in the bank, which is not shown to be insolvent, and who is acting on behalf of the vendee, gives to the bank his check on his account therein in payment of the draft, and the same is accepted by the bank, and the deed delivered, but no remittance made of the proceeds nor charge made to the depositor's account, at the time of the insolvency of the bank, eight days thereafter, the giving and receiving of such check constitutes a payment of the draft. Schafer v. Olson, 43: 762, 139 N. W. 983, 24 N. D. 542. 179. The credit by the drawee of a check, to which it is forwarded by another bank for collection, under a custom au- thorizing it to credit the amount and remit or settle at stated periods, amounts to payment, and renders the forwarding bank liable to its puincipal, although the check was an overdraft and the drawee insolvent. Pinkney v. Kanawha Valley Bank, 32: 987, 69 S. E. 1012, 68 W. Va. 254. 180. A bank which accepted the check of an indorser in payment of a note sent to it for collection, relying upon a telephone mes- sage from the drawee bank that the check would be paid, which message was founded on a mistake as to what check was meant, Digest 1-52 L.R.A.(N.S.) is not liable, although it gave the owner of the note credit on its books for the amount and mailed him a statement to that effect, adding that the credit was subject to collection, where notice of the nonpay- ment of the check was promptly sent the owner by telephone; nor is the bank liable because, having on deposit funds of the bank on which the check was drawn, it charged the amount of the check against such deposit, and refused to pay it out until indemnified against loss in so doing. Inter- state Nat. Bank v. Ringo, 3: 1179, 83 1'ac. 119, 72 Kan. 116. (Annotated) 181. If a bank to which a check indorsed to its order has been forwarded for col- lection, its amount to be credited to the account of the correspondent, instead of taking cash from the drawee bank, as it might have done, accepts the latter's check on another bank, such transaction fixes the rights of the parties; and, after the insolv- ency of the drawee of the first check has oc- curred, the negligent holder cannot charge the drawer and indorsers with liability by repossessing itself of the instrument, pre- senting it for payment a second time, and protesting it for nonpayment; and this is true, even although the first presentment might have been rightfully delayed for a longer period of time than that during which the drawee remained solvent. Noble v. Doughten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. Forgeries. Evidence as to person to whom maker in- tended money to be paid, see EVIDENCE. 1621. See also supra, IV. a, 3, b. 182. A fraudulent county warrant re- ceived by a bank for collection from a city treasurer, and credited to his account, and intended by him to cover up his defalca- tions, is not a liquidation of the amount of the defalcation so as to prevent the bank, as against the city and the surety on the official bond of the treasurer, from charging off the credit upon discovery of the fraudu- lent character of the warrant. Dickinson v. White, 49: 362, 143 N. W. 754, 25 N. D. 523. 183. A bank which takes a forged check from a stranger, although without inquiry or investigation, and indorses thereon "For collection," and, "ogether with a request for telegraphic advice if the check is honored, forwards it to the drawee bank, is a bona fide holder so as to prevent recovery there- from after discovery of the forgery by the drawee bank, which, in accordance with such request, had remitted the amount to the indorsee bank, which had in turn paid it to the one presenting it for payment. Pen- nington County Bank v. First State Bank, 26: 849, 125 N. W. 119, 110 Minn. 263. 184. An employee who forges his em- ployer's name to a check for which he ob- tains from a bank a draft in favor of a stranger acquires no rights to the draft as owner, which will entitle him to divert it from the purposes for which it was issued, so as to justify the cashing of the draft up- BANKS, IV. b, 2, c. 261 on his Indorsement of the payee's name thereon, and prevent the drawee which pays the amount to the cashing bank from recov- ering the fund upon discovering the facts. Seaboard Nat. Bank v. Bank of America, 22: 499, 85 N. E. 829, 193 N. Y. 26. 185. That a check which becomes the con- sideration for a bank draft was forged, and the bank was negligent in honoring it, has no bearing in determining the right of the drawee of the draft, after cashing it, to recover the funds from the collecting bank, because of a forged or fictitious indorse- ment on the draft. Seaboard Nat. Bank v. Bank of America, 22: 499, 85 N. E. 829, 193 N. Y. 26. 186. One who cashed a check on indorse- ment by the payee of the assumed name in which he had fraudulently obtained it from the maker, and who received the amount from the drawee, cannot, upon discovery of the fraud and return of the amount by the drawee to the drawer's account, be com- pelled to return to the drawee what he re- ceived from it on the ground that he guar- anteed the indorsement, since he made pay- ment as intended by the maker, who should bear the loss caused by his own negligence. Central Nat. Bank v. National Metropolitan Bank, 17: 520, 31 App. D. C. 391. 2. Insolvency. (See also same heading in Digest L.R.A. 1-10.) Insolvency generally, see infra, V. Rights as against trustee in bankruptcy, see BANKRUPTCY, 61. See also supra, 163, 176, 178. 187. A bank which, having taken collater- al for a note, discounts it with a corre- spondent, does not hold the proceeds of the collateral as trustee for the latter, so as to enable it to claim a preference from the general funds of the former when distrib- uted by a receiver; at least where it does not appear that cash to the amount collected on the collateral passed into the receiver's hands. American Nat. Bank v. Pedley, 38: 146, 142 S. W. 239, 146 Ky. 194. (Annotated) 188. The loss caused by the closing of the doors of an insolvent trust company after a check in its favor to transfer to it a de- posit in another bank had been honored by this bank by a draft for the same amount against its own deposit account, somewhat smaller in amount, with the trust company, which draft was received but not carried through its books, falls upon the depositor, and not upon the bank, where the trust company placed the check to his credit and the small overdraft on the account of the bank was subsequently made good to the receiver of the trust company, although a draft on a third bank, to make good such overdraft, received by the trust company before its doors were closed, was returned by one of its agents without authority. Plumas County Bank v. Bank of Rideout, Digest 1-52 L.R.A.(N.S.) Smith & Co. 47: 552, 131 Pac. 360, 165 Cal. 126. c. Other transactions; discounts, etc. (See also same heading in Digest L.R.A . 1-70. ) Rights and liabilities of bank paying draft with bill of lading attached, see BILLS OF LADING. Notice that draft discounted for acceptor was drawn for accommodation, see BILLS AND NOTES, 186, 187. Indorsement of fictitious payment on back of note discounted by bank, see BILLS AND NOTES, 3, 179. Right of bank purchasing from co*unty offi- cer worthless tax refunding warrants, see BONDS, 47, "48 ; SUBROGATION, 33. Conducting business of debtor so as to se- cure payment of debt, see CORPORA- TIONS, 94; TRUSTS, 40. Estoppel to set up ultra vires, see CORPORA- TIONS, 91-95. Evidence to show that note discounted was obligation of the principal, see EVI- DENCE, 994. Imputing to bank knowledge of member of discount committee, see NOTICE, 40. Accepting stock of insane person as col- lateral security to loan, see PLEDGE AND COLLATERAL SECURITY, 16. Release of collateral security by, see PLEDGE AND COLLATERAL SECURITY, 14. Rights as to town orders pledged by town treasurer as security for money ad- vanced upon his check, see PLEDGE AND COLLATERAL SECURITY, 18, 19. Usury in transactions, see USURY, I. c. See also supra, 88. 189. A bank and its officers who, knowing that a gang of men are engaged in fleecing persons by means of fictitious races, lend to them the appearance of respectability by the backing of the institution, and allow the bank to be used to effect the exchange and transfer of money, may be held liable for money lost through such aid. Hobbs v. Boatright, 5: 906, 93 S. W. 934, 195 Mo. 693. 190. That a national bank has no author- ity to deal in stocks does not make invalid a transaction by which it secures title to stock to save itself from loss on account of a loan. Westminster Nat. Bank v. New Eng- land Electrical Works, 3: 551, 62 Atl. 971, 73 N. H. 465. Guaranty; loan of credit. Right to set up ultra vires nature of guar- anty of sale of securities, see COHPO- RATIONS, 91, 92. Estoppel to set up invalidity of guaranty, see ESTOPPEL, 233. 191. A national bank in negotiating its paper can bind itself for the payment there- of by its indorsement thereon ; but it can- not guarantee the payment of the paper of others, or become surety thereon, solely for the benefit of the latter. First Nat 262 BANKS, IV. d, V. Bank v. Monroe, 32: 550, 69 S. E. 1123, 135 Ga. 614. 102. An attempt by a trust company organized to do a banking business, and to perform duties which are largely fiduciary in their nature, to guarantee the sale of se- curities of a stranger, in order to induce him to come into a pooling agreement in which the company is not interested, is ultra vires and void. Cause v. Common- wealth Trust Co. 24: 967, 89 N. E. 476, 196 N. Y. 134. 193. A bank which cashes the checks of a customer of a national bank with notice that the bank has loaned its credit to the customer cannot enforce its guaranty to pay the checks. Merchants' Bank v. Baird, 17: 526, 160 Fed. 642, 90 C. C. A. 338. 194. An agreement by a national bank to "protect" the checks of its customer and raise the limit of its "guarantee" so that the customer may draw to any amount is sufficient to charge the other party with notice that the bank is exceeding its powers. Merchants' Bank v. Baird, 17: 526, 160 Fed. 642, 90 C. C. A. 338. (Annotated) 195. That a national bank which guaran- teed payment of a customer's checks prof- ited by the agreement to the extent of ex- change in the payment of checks and kept the profit does not prevent its denying lia- bility on its guaranty where the profit was all swallowed up in losses growing out of the transaction. Merchants' Bank v. Baird, 17: 526, 160 Fed. 642, 90 C. C. A. 338. Pledge of assets. 196. A bank organized under a statute permitting it to do business upon the terms and conditions and subject to the liabilities prescribed in the statute has no power to pledge its assets to secure a de- positor or a surety for a depositor, where such power is not expressly mentioned in the statute. Commercial Bank & T. Co. T. Citizens' Trust & Guaranty Co. 45: 950, 156 S. W. 160, 153 Ky. 566. 197. Charter authority to receive de- posits and pay interest thereon does not empower a bank to pledge its assets to secure a depositor. Commercial Bank & T. Co. v. Citizens' Trust & Guaranty Co. 45: 950, 156 S. W. 160, 153 Ky. 566. 198. A statute requiring banks which be- come state depositories, to give security for the public fund, does not authorize them to pledge their assets as security, but ap- plies to personal security only. Commer- cial Bank & T. Co. v. Citizens' Trust & Guaranty Co. 45: 950, 156 S. W. 160, 153 Ky. 566. (Annotated) d. Clearing house business. (See also same heading in Digest LJi.A. 1-70.) See supra, 89, 141, 176. Digest 1-52 I*R.A.(N.S.) V. Insolvency. Action by stockholder and depositors of bank in possession of receiver, see supra, 16. In case of collection, see supra, 187, 188. Action by receiver of bank to recover illegal credit allowed by bank, see AC- TION OR SUIT, 72; CORPORATIONS, 84; INTEREST, 4. Appeal by state superintendent of insolvent bank, see APPEAL AXD EKROR, 81. Pdght of assignee for benefit of creditors to avoid invalid pledge of securities by bank, see ASSIGNMENT FOB CRELHTOBS, 5. As to bankruptcy matters, see BANKRUPTCY. Action by receiver on note executed to en- able bank to deceive bank examiner, see BILLS AND NOTES, 205. Liability of officer for loss of public funds through bank failure, see CONSTITU- TIONAL LAW, 770; OFFICERS, 111-114; TAXES, 14. Liability of administrator for loss of funds through bank failure, see EXECUTORS AND ADMINISTRATORS, 69-71. Liability of guardian for loss of funds by bank failure, see GUARDIAN AND WARD, 18-20. Imputed notice of insolvency, see NOTICB, 42. Right as between individual and firm cred- itors of insolvent banking partnership, see PARTNERSHIP, 42. Pleading in intervention in proceedings for appointment of receivers for corpora- tions, see PLEADING, 409, 410. Validity of pledge as against assignee for creditors, see PLEDGE AND COLLATERAL SECURITY, 9. Set-off in case of, see SET-OFF AND COUNTEB- CLAIM, 37. Effect of repeal of statute authorizing liquidation of insolvent bank, see STAT- UTES, 360, 361. Right of depositor to subrogation, Bee SUBROGATION, 4, 5. 199. A bank which, after receiving money under a contract to receive milk, convert it into butter, deduct a portion of the proceeds for services, and pay the remainder to pa- trons, and issuing checks to them for their shares, diverts the money to other uses, and passes into the hands of a receiver, leaving the checks unpaid, is, at least, a general debtor of the patrons, and they have a right to stand as general creditors, and share in the dividends declared out of the bank's assets. Emigh v. Earling, 27: 243, 115 N. W. 128, 134 Wis. 565. Rights in deposit after insolvency generally. 200. Where a bank fails and passes into the hands of a receiver after it has issued a draft upon a correspondent bank in which it has funds on deposit, and the drawee has notice of the receivership before the draft is presented for payment, the title to such deposit passes to the receiver, and the holder of the draft, in the absence of BANKS, V. 263 any special circumstances, is entitled to no priority over other creditors of the failed bank. Clark v. Toronto Bank, 2: 83, 82 Pac. 582, 72 Kan. 1. E Taking deposits while insolvent. Criminality of taking deposit while insol- vent, Bee infra, 247-254. 201. One who deposits money in a bank which is in a failing condition is not en- titled to priority of payment over other creditors out of cash remaining on hand at the time the bank closes its doors, whore auch sum on hand is less than the amount of the deposits subsequently made by other creditors. Cherry v. Territory, 8: 1254, 89 Pac. 192, 17 Okla. 221. 202. The mere silence of the officers of an insolvent bank as to its condition at the time a general deposit is made therein is not sufficient either to authorize the depos- itor to reclaim his money on the ground of a fraud, or to give him any superior lien over other creditors in the distribution of the assets of the bank. McGregor v. Bat- tle, 13: 185, 58 S. E. 28, 128 Ga. 577. 203. One who deals with a bank upon the assumption that it is solvent, and in- trusts his money to it as a general depos- itor, has no superior claim over other cred- itors, growing out of the fact that he is ignorant of the insolvency at the time of the deposit, in the absence of any induce- ment to make it, other than the bank hold- ing itself out to the world as a bank of de- posit. McGregor v. Battle, 13: 185, 58 S. E. 28, 128 Ga. 577. 204. Money known to have been deposit- ed by other parties on the day of the fail 're of the bank cannot be appropriated in re- payment of a special fund which had been deposited by a customer to indemnify the bank for its guaranty of the performance of a contract by the one making the de- posit. Italian Fruit & Importing Co. v. Penniman, i: 252, 61 Atl. 694, 100 Md. 698. (Annotated) Taking money for draft. 205. Money received by an insolvent banker for the purchase of a draft which he knows to be worthless will be held by him in trust for its owner, who is entitled to priority over general creditors. Whitcomb v. Carpenter, 10: 928, 111 N. W. 825, 134 227. 206. A bank which, while hopelessly in- solvent, sells a draft when the statute pro- hibits it from receiving money, takes the money so paid if the draft is dishonored as a trustee ex maleficio. Widman v. Kellogo', 39: 563, 133 N. W. 1020, 22 N. D. 396. (Annotated) 207. Where an agent each day secures a bank draft to forward the receipts of the business, a finding that he deposited the re- ceipts and secured drafts therefor means that he purchased drafts with the receipts. Widman v. Kellogg, 39: 563, 133 N. W. 1020, 22 N. D. 396. 208. A receiver appointed for an insol- vent bank which has sold a worthless draft takes the funds paid for it as a trustee. Digest 1-52 L.R.A.(N.S.) Widman v. Kellogg, 39: 563, 133 N. W. 1020, 22 N. D. 396. Trust fund generally. As to trust in public funds, see infra, 222- 227. Termination of trust as against trustee in bankruptcy, see BANKRUPTCY, 61. Following trust funds, generally, see TEUSTS, V. See also supra, 65-68, 77-79, 201-208. 209. The trust-fund theory does not re- quire a return of money paid out by an insolvent bank in due course of business on its customer's checks. Wilson v. Baker Clothing Co. 50: 239, 137 Pac. 896, 25 Idaho, 378. 210. Money received by an insolvent banker as payment upon a note payable to the banker, but which he had used as col- lateral security for his own debt, is, in case the application is not made, held in trust so as to entitle the purchaser to priority over general creditors. Whitcomb v. Car- penter, 10: 928, 111 N. W. 825, 134 Iowa, Iowa, 227. (Annotated) 211. A bank which takes over the assets of a liquidating bank upon an agreement that it will pay its debts and a certain sum to each shareholder assumes towards creditors the trust relation held by the transferrer, and the creditors of the latter have a prior lien on the assets so trans- ferred in case the transferee becomes in- solvent before completing its undertaking. Ex parte Savings Bank of Rock Hill, 5: 520, 53 S. E. 614, 73 S. C. 393. (Annotated) 212. That the funds of an insolvent bank decrease between the time a trust fund is received and the making of an assignment for creditors does not defeat the right of preference of the trust fund over general creditors, on the theory that the assets in the receiver's hands were not increased by the receipt of such fund, so long as the money on hand equals or exceeds such fund. Whitcomb v. Carpenter, 10: 928, 111 N. W. 825, 134 Iowa, 227. 213. The extent to which trust funds blended with general moneys of a bank have been dissipated, or can be identified, when the cash in the bank has sunk below the amount of the trust fund, is to be deter- mined, not by the cash balance when the bank closes its doors in insolvency, but by the lowest cash balance after the trust-fund deposits are made, to which are to be added the subsequent trust-fund deposits. Craw- ford County v. Strawn, 15: noo, 157 Fed. 49, 84 C. C. A. 553. 214. Trust funds blended with general moneys of an insolvent bank cannot be identified in the shifting balances carried in reserve or in correspondent banks, made up of collections and proceeds of rediscounts, and sometimes of funds remitted by the in- solvent bank, where the trust fund is not traced to any of the rediscounts or collec- tions; the presumption as to the funds re- mitted being that they were not trust mon- eys. Crawford County v. Strawn, 15: noo, 157 Fed. 49, 84 C. C. A. 553. 215. The fact that some of an insolvent 264 BANKS, V. bank's commercial paper, consisting of many separate instruments acquired at different times, may have been purchased with the general funds of the bank with which trust moneys have been mingled, is insufficient to fasten a trust upon it, or upon the pro- ceeds of a part of it. Crawford County v. Strawn, 15: noo, 157 Fed. 49, 84 C. C. A. 553. 216. A bank which passes into the hands of a receiver after it has received drafts for property belonging to patrons, which it has mingled with its own funds, without at any time drawing its funds below the amount so received, holds the fund for the benefit of the patrons, and they may re- cover it from the receiver. Emigh v. Earl- ing, 27: 243, 115 N. W. 128, 134 Wis. 565. 217. When funds received by an insolvent bank which goes into the hand of a re- ceiver as a trust are not commingled with any of the assets of the banl. except cash assets, the preference of the beneficiary is limited to the cash funds of which the re- ceiver took possession, when distinguishable from the other assets of the estate going into his hands. Widman v. Kellogg, 39: 563, 133 N. W. 1020, 22 N. D. 396. 218. Money delivered to a bank by an administrator and attorney in fact for heirs, to be held until receipts can be se- cured from them, when it is to be forward- ed to them by bank draft, is a special de- posit, entitled to preference when the bank goes into the hands of a receiver, although the bank commingles the money with its general funds, if cash in excess of the de- posit remains in the possession of the bank at all times subsequent to the deposit, and passes into the hands of the receiver. Carlson v. Kies, 47:317, 134 Pac. 808, 75 Wash. 171. 219. A receiver of a bank in which funds of one person have been deposited by an- other without authority, so that the bank gained no title to them, must, in case the bank had on hand a sum in excess of such deposit at all times after it was made, re- turn the amount to the true owner as a trust fund, in preference to claims of gen- eral creditors of the bank. Patek v. Patek, 35: 461, 131 N. W. 1101, 166 Mich. 446. 220. A package of bills marked with the owner's initials, and delivered to a bank for safe-keeping, and for which a receipt stating that fact is executed by the cash- ier, is a special deposit, which the owner is entitled to have returned to him in case the assets of the bank pass into the hands of a receiver. Fogg v. Tyler, 39: 847, 82 Atl. 1008, 109 Me. 109. (Annotated) 221. That a package of bills delivered to a bank for safe-keeping as a special deposit cannot be identified when th^ assets pass into the hands of a receiver does not de- stroy the prior right of the owner to pay- ment out of such assets, if the cash on hand never fell below the amount of the deposit after it was made. Fogg v. Tyler, 39:847, 82 Atl. 1008, 109 Me. 109. Digest 1-52 L.R.A.(N.S.) Trust in public funds. Who may appeal from order giving state priority in assets of insolvent bank, see APPEAL AND ERROR, 81. Estoppel of county to pursue trust funds, see ESTOPPEL, 250. 222. The claims of a state for money de- posited in banks have, under a constitu- tional provision abrogating only such parts of the common law as are repugnant to the Constitution, priority in case of the bank's insolvency, over those of private depositors having no specific lien, even though the money belongs to special funds, if it is the property of the people. Re Carnegie Trust Co. 46: 260, 99 N. E. 1096, 206 N. Y. 390. (Annotated) 223. Upon the insolvency of a bank which has been receiving taxes and delivering treasury receipts therefor, the county is en- titled to a preference out of its assets for the amount collected and not turned over, on the theory that the bank is a trustee, where there is no authority of law to deposit the funds with the bank, and the taxpayers from whom the funds have been received cannot be ascertained. Page County v. Rose. 5: 886, 106 N. W. 744, 130 Iowa, 296. (Annotated) 224. No title is acquired by a bank to county tax funds illegally deposited by its cashier, who was a deputy tax collector, which it mingles with its other moneys; and the county may recover the same so far as they can be traced into the property which comes into the possession of a receiv- er of the bank. Crawford County v. Strawn, 15: i too, 157 Fed. 49, 84 ,C. C. A. 553. (Annotated) 225. A territory is not entitled to claim priority of payment over other creditors of an insolvent bank in which a public of- ficer, without any authority, had deposited money, checks, and drafts derived from the leasing of the school lands of the territory, where it does not affirmatively appear by a preponderance of the evidence that the particular money, checks, and drafts so de- posited, or their proceeds, were turned over to the receiver of the bank. Cherry v. Territory, 8: 1254, 89 Pac. 192, 17 Okla. 221. 226. The identity of trust funds belong- ing to a county, and deposited by its treas- urer in a bank which thereafter became in- solvent, is sufficiently shown to enable the county to reclaim the amount of the de- posit, where the money can be traced into the general mass turned over to the re- ceiver. Watts v. Cleveland County, 16: 918, 95 Pac. 771, 21 Okla. 231. 227. The title to county funds deposited by the county treasurer in a bank in his own name as treasurer, prior to the passage of the Oklahoma statute providing for the designation of county depositories, did not pass to the bank, although there was no agreement that the identical money should be returned; and, upon the insolvency of the bank, the county is entitled to recover the amount of the deposit from the receiver of the bank, prior to the payment of gen- BANKS, VI. 265 eral depositors. Watts v. Cleveland County, 16: 918, 95 Pac. 771, 21 Okla. 231. Unlawful preferences. Sufficiency of proof of collusion in pay- ment of check on insolvent bank, see EVIDENCE, 2091. Set-off as preference, see SET-OFF AND COUNTERCLAIM, 37. See also supra, 209. 228. The mere fact that a bank depositor knows that the bank is insolvent at the time he withdraws his deposit does not render him liable to return the amount to the bank's receiver. Wilson v. Baker Cloth- ing Co. 50: 239, 137 Pac. 896, 25 Idaho, 378. (Annotated) 229. If a bank, though insolvent, is still conducting its business, and pays a check of a depositor in the usual course of busi- ness, and the depositor has no notice of the insolvency of the bank, the payment is good and the depositor will be protected. Me Gregor v. Battle, 13: 185, 58 S. E. 28, 128 Ga. 577. (Annotated) 230. A depositor not paid in the usual course of business, but at a time when he has notice or knowledge that the bank is insolvent, and that the intent of the bank is to create a preference in his favor over other creditors, is liable to repay to the bank or its representative the difference be- tween the amount received by him and his pro rata share of the assets of the bank upon a final winding up of its affairs. Mc- Gregor v. Battle, 13: 185, 58 S. E. 28, 128 Ga. 577. (Annotated) 231. Money paid to a depositor by a bank which is actually insolvent, in due course of business, at a time when it was paying all checks in order and when it claims to be in- solvent, is not impressed with a trust, al- though the deposit is withdrawn because the depositor suspects the bank's insolvency. Livingstain v. Columbian Banking & Trust Co. 22: 445, 62 S. E. 249, 81 S. C. 244. VI. Savings banJes. Constitutionality of statute as to unclaimed deposits, see ACTION OB SUIT, 61; CON- STITUTIONAL LAW, 283, 43G, 777. Pleading in action to recover savings bank deposit, see PLEADING, 416. Succession tax on 'deposits in foreign sav- ings bank, see TAXES, 339. Trover for deposit in, see TROVEU, 7. 232. A savings bank which has issued a check in payment of a deposit account is under no obligation to defend a suit by the drawee against one who cashed it and collected its amount from the drawee, for a return of the money on the theory that the indorsement was forged. Gallo v. Brooklyn Sav. Bank, 32: 66, 92 N. E. 633, 199 N. Y. 222. By-laws. See also infra, 237. 233. By-laws of a savings bank which re- quire the presentation of the deposit book, or due notice to the bank in case of the loss of the book, as conditions precedent to pay- Digest 1-52 L.R.A.(N.S.) ment to the depositor or upon his written order, are reasonable conditions, and become a part of the contract between the bank and the depositor, when brought to the notice of the latter. Hough Avenue Savings & Bkg. Co. v. Anderson, 18: 431, 85 N. E. 498, 78 Ohio St. 341. 234. A savings bank cannot require a bond of the administrator of a depositor as a condition to paying the deposit to him, in the absence of any by-law requiring it, al- though the pass book is lost, and both the statute and by-laws require presentation of such book as a condition to the withdrawal of deposit. Mierke v. Jefferson County Sav. Bank, 46: 194, 101 N. E. 889, 208 N. Y. 347. (Annotated) Assignment of deposit. Gift of deposit, see GIFTS, 12-15, 26. 235. The personal representative of a de- positor in a savings bank cannot question the validity of a transfer of the deposit .which the bank recognized without requir- ing compliance with its by-law as to pro- duction of the pass book. Candee v. Con- necticut Sav. Bank, 22: 568, 71 Atl. 551, 81 Conn. 372. 236. A savings bank may waive a require- ment of its rules that orders for the trans- fer of money by depositors must be wit- nessed, and, if it does so, the absence of a witness cannot be taken advantage of by the personal representatives of the trans- ferrer. Candee v. Connecticut Sav. Bank, 22: 568, 71 Atl. 551, 81 Conn. 372. Payment t -wrong person. 237. By-laws of a savings bank which re- quire presentation of the deposit book, or due notice to the bank in case of the loss of the book, as conditions precedent to pay- ment to the depositor or upon his written order, do not relieve the bank from liability to him where it does not act in good faith and exercise reasonable care in making pay- ment on presentation of the deposit book by a third person upon what purports to be a written order of the depositor, but which is in fact a forgery. Hough Avenue Savings & Bkg. Co. v. Anderson, 18: 431, 85 N. E. 498, 78 Ohio St. 341. (Annotated) 238. A savings bank which, upon not being satisfied of the identity of one pre- senting a pass book and demanding money from the account, gives him a check for the amount, payable to the order of the depositor, is not guilty of such negligence or fraud as to be liable in tort to one who cashes the check for the one to whom it was delivered. Gallo v. Brooklvn Sav. Bank, 32: 66, 92 N. E. 633, 199 N. Y. 222. 239. The liability, as drawer of a savings bank which, upon not being satisfied of the identity of one presenting a pass book and demanding money from an account, gives him a check payable to the order of the depositor, is terminated by the payment of the check by the drawee, so that it cannot be held liable as such to one who cashed the check and is compelled to return the amount which he collects from the drawee, because the instrument was forged, on the theory that the one to whom the check waa 266 BANKS, VII. delivered must be regarded as the true payee. Gallo v. Brooklyn Sav. Bank, 32: 66, 92 N. E. 633, 199 N. Y. 222. Liability of officers. When limitations begin to run against lia- bility, see LIMITATION OF ACTIONS, 159. Pleading in action to hold trustees personal- ly liable, see PLEADING, 184. 240. Trustees of a savings bank are per- sonally liable for money lost through loans made without observing the limitations im- posed by the rules and by-laws of the in- stitution. Greenfield Sav. Bani; v. Aber- crombie, 39: 173, 97 N. E. 897, 211 Mass. 252. (Annotated) 241. Salaried trustees of a savings bank are personally liable for loss of its funds which they lend in excess of the statutory limit for the security furnished if, by the exercise of reasonable care and prudence, they ought to have known that they were exceeding the limit. Greenfield Sav. Bank v. Abercrombie, 39: 173, 97 N. E. 897, 211' Mass. 252. 242. Statutory requirements that, in lending money by a savings bank, only first mortgages shall be taken, after report on the value of the property, and that all ap- plications for loans shaK be in writing, are mandatory, and trustees will be personally responsible for money lost through loans made without observing these requirements. Greenfield Sav. Bank v. Abercrombie, 39: 173, 97 N. E. 897, 211 Mass. 252. VII. Crimes. Criminal contempt of officers in refusing to produce books, see APPEAL AND EBKOR, 70; CONTEMPT, 14, 37. Production of books as infringing privilege of bank officers against self-crimina- tion, see CRIMINAL LAW, 110. Liability of cashier for embezzlement, see EMBEZZLEMENT, 5. Evidence in prosecution of officers for con- version of state moneys, see EVIDENCE, 1969. Liability of cashier for false pretenses, see FALSE PRETENSES, 20. Indictment of officer for converting public funds, see INDICTMENT, ETC., 96, 130. Criminal liability of bank collecting draft attached to bill of lading for liquor, see INTOXICATING LIQUORS, 97. 243. The officers of a trust company whoso acts result in the conversion of state funds on deposit with it are, where accessor- ies are punishable as principals, indictable therefor, under a statute declaring one who, having state funds in his possession, shall convert them to his own use, to be guilty of larceny; and it is immaterial that under the statute the money could not have been deposited with them individually, since the funds were in their hands as of- ficers of the bank. State v. Ross, 42:601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. (Annotated) Digest 1-52 L.R.A.(N.S.) 244. Officers and director of a trust com- pany who permit a special deposit of state funds to become part of its general deposit, and to be paid out in the usual course of its business, are personally liable under a statute providing that one who, having pos- session of state funds, converts them to his own use, shall be guilty of larceny. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 245. That officers of a trust company wrongfully lending state funds to strangers act for the benefit of the company, and not for themselves, does not prevent their punishment, under a statute providing that anyone having possession of state funds who shall convert them to his own use shall be ; ilty of larceny. State v. Ross, 42:601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 246. That state funds held by a trust com- pany as a special deposit were lost through the failure of another corporation to which they were lent is no defense to a prosecu- tion against the officers of the trust com- pany for conversion of the funds. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. Taking deposit when insolvent. Sufficiency of indictment for, see INDICT- MENT, ETC., 100. Class legislation as to, see STATUTES, 155. 247. A bank is "unsafe or insolvent" within the meaning of a statute making it an offense punishable by imprisonment to receive money on deposit in a bank, whero the one receiving it knows, or has good cause to know, that the bank is unsafe or insolvent, when the cash value of its as- sets, realizable in a reasonable time, in case of liquidation by its proprietors as ordinarily prudent persons would ordi narily close up their business, is not equal to its liabilities, exclusive of stock lia- bilities; and such term does not mean in- solvent in the limited sense of inability to pay indebtedness in the ordinary course of business. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. (Annotated) 248. Where bank officers are largely in- debted thereto and possess property to a very cons'derable amount as compand to such indebtedness, the fact that some of the officers, equally interested in the bank and such property, are. not debtors of th bank, but, nevertheless, agreed to join in conveying the property to strengthen the bank as to paper on which they were not lia- ble, thereby creating a moral obligation only so to join, which obligation the other of- ficers believed would be, and in fact was, redeemed, does not militate against the outside interests of such nondebtor officers being considered by the others before the transfer, on the question of whether the bank is insolvent within the meaning of a statute prohibiting the receipt of deposits after the one receiving them knows, or has good cause to know, that the bank is unsafe or insolvent. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 249. In case officers of a bank are largely indebted thereto, and possess property in- BAR BARBER SHOP. 267 terests in a corporation to a very signifi- cant amount, as compared to such indebted- ness, and they convey such property to the bank on account of such indebtedness, pursuant to an understanding of long standing, the situation before the convey- ance should be regarded substantially the same as that thereafter, as regards the mental state of the officers respecting the condition of the bank as to solvency, in a prosecution against them for accepting de- posits while insolvent. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 250. The status of an officer of a bank who receives money on deposit for the cred- it of the depositor, and which is subject to withdrawal by him at his pleasure, as re- gards a statute making it an offense pun- ishable by imprisonment to receive money on deposit in a bank, where the one re- ceiving it knows, or has good cause to know, that the bank is unsafe or insolvent, is lixed, as regards guilt under such stat- ute, as of the time of the deposit; and is n~t affected by the fact that the de- positor is indebted to the bank on an in- debtedness not then due, but which, in fact, does mature shortly, so as to absorb the deposit, in part, before the bank is forced to suspend, as such deposit, being at the disposal of the depositor, cannot be regarded as having been made to apply up- on an undue indebtedness. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 251. The call of a statute making it an offense punishable by imprisonment to re- ceive money on deposit in a bank, where the one receiving it knows, or has good cause to know, that the bank is unsafe or insolvent, as regards the act constituting a criminal fraud, is a deposit such as will create the relation of debtor and creditor, and not one which, in practical effect, is only payment of an indebtedness to the bank. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 252. Ihe deposit of a check in a bank, where it is treated as money subject to withdrawal by the depositor at his pleasure, constitutes a deposit of money within the meaning of a statute making it an offense punishable by imprisonment to receive money on deposit in a' bank, where the one receiving it knows, or has good cause to know, that the bank is unsafe or insolvent. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 253. Ihe failure of a statute making it a crime to receive a deposit into an insolvent bank to declare that the offer to do a bank- ing business is a declaration of solvency, for the purpose of establishing a fraud or false pretense, to uphold the criminal lia- bility, is not fatal to the validity of the statute, since such offer to do business is in effect a public declaration of solvency, and there is therefore no necessity for the legis- lature to declare it. Re Pittman, 22: 266, 99 Pac. 700, 31 Nev. 43. 254. The director of a bank who keeps open for the receipt of deposits one of its branches, knowing that the bank is insol- Digest 1-52 L.R.A.(N.S.) vent, may be convicted under a statute pro- viding for the punishment of an agent of a bank who receives deposits knowing the establishment to be insolvent, although he is not present in the town where the branch is located, and has no part in the manual receipt of the deposit. State v. Mitchell, 26: 1072, 51 So. 4, 96 Miss. 259. (Annotated) BAR. Power of state to license on ferry boat, see INTOXICATING LIQUORS, 22. Of dower, see DOWER, I. c. Of judgment, see JUDGMENT, II. Of limitation, see LIMITATION OF ACTIONS. BAR ASSOCIATION. Disqualification of judge who is member of, to sit in disbarment proceedings, see JUDGES, 19. BARBED WIRE. Injury to animals by, see NUISANCES, 120, 127. BARBERS. Equal protection and privileges of, see CONSTITUTIONAL LAW, 239, 296. Statute regulating as denial of liberty or property, see CONSTITUTIONAL LAW, 431. Working on Sunday, see CoNSTrnfriONAL LAW, 296; STATUTES, 159. License for barber business, see LICENSE, 41, 96-98. Title of statute regulating business of, see Statutes, 117. Special legislation as to, see STATUTES, 159. 160. 1. Prohibiting students in barber col- leges from charging for their work during the two-year period which the instruction is required to cover violates a constitu- tional provision that all persons shall have a right to the enjoyment and gains of their own industry. Moler v. Whisman, 40: 629, 147 S. W. 985, 243 Mo. 571. ( Annotated ) BARBER SHOP. Discrimination against negroes in, sec CIVIL RIGHTS, 7. 268 BARKING BAST AUDY BARKING. As !iiii>ance, see NUISANCES, 27. <* BARRIERS. Lack of, on bridge, see BRIDGES, 8-11. At dangerous place in highway, see CONTRI- BUTION AND INDEMNITY, 12; HIGHWAYS, 230-239; TRIAL, 409. In highway to protect park strips, see HIGHWAYS, 197, 198. For highway which has been discontinued, see HIGHWAYS, 403. Lack of barriers about opening into mill race, see NEGLIGENCE, 170. BARS. Effect of leaving of, for convenience of neighbor when fencing land on acquisi- tion of easement by prescription, see EASEMENTS, 25. BARTER. Of liquor as a loan, see INTOXICATING LIQUORS, 95. BASEBALL. Effect of authorizing game on grounds of , agricultural society to defeat right to aid from state treasury, see AGRI- CULTURAL SOCIETIES, 1. Liability for negligence in playing, see AGRICULTURAL SOCIETIES, 2; AMUSE- MENTS, 7-9. Measure of damages for injury to spectator at ball game, see DAMAGES, 363. Evidence as to precautions to prevent in- jury at game of, see EVIDENCE, 1762. Pleading in action for injury to spectator, see PLEADING' 280. Proximate cause of injury to patron at game of, see PROXIMATE CAUSE, 36. Question for jury as to negligence towards patrons, see TRIAL, 560. Playing of, on Sunday, see CONSTITUTIONAL i LAW, 297; SUNDAY, 5-10. Removal of city officers for refusal to stop i professional ball playing on Sunday, see OFFICERS, 65. False imprisonment by restraint upon per- son refusing to pay entrance fee, sec FALSE IMPRISONMENT, 13. Injunction against ordinance forbidding operation of baseball parks, see IN- JUNCTION, 341. Voluntary exposure to unnecessary danger in playing, see INSURANCE, 770. See also AMUSEMENTS; BALL GAMES; BALL PLAYING; BASEBALL BAT; BASEBALL CLUB. Digest 1-52 L.R.A.(N.S.) BASEBALL BAT. As deadly weapon, see HOMICIDE, 30. *-- BASEBALL CLUB. Expulsion of, from league, see ASSOCIA- TIONS, 9, 10. Mandamus to reinstate in league, see MANDAMUS, 11. BASE FEE. Creation of, by lease, see LANDLORD AND TENANT, 108. Levy on, see LEVY AND SEIZURE, 12. BASTARDY. Abatement of bastardy proceeding, see ABATEMENT AND REVIVAL, 22. Limitation of time for action to compel support of bastard, see ACTION OB SUIT, 65. Question whether action is civil or criminal, see ACTION OR SUIT, 65. Exclusion of complainant's denial of preg- nancy, see APPEAL AND EUHOR, 1230. Prejudicial error in instructions, see AP- PEAL AND ERROR, 1374. Error in bringing child into court room, see APPEAL AND ERROR, 1483. Attorney's lien on fund in bastardy pro- ceedings, see ATTORNEYS, 68. Legitimation of bastard, see CONFLICT OF LAWS, 83; PARENT AND CHILD, II. Mayor's jurisdiction of proceedings in, see COURTS, 201. Power of governor to pardon prisoner found guilty of, see CRIMINAL LAW, 294. Effect of illegitimacy on right to inherit, see DESCENT AND DISTRIBUTION, 12-15. Evidence to show paternity, see EVIDENCE, 1530. Evidence of mother's declarations during travail, see EVIDENCE, 1510. Necessity of corroborating testimony of relatrix, see EVIDENCE, 2054. Sufficiency of evidence as to, see EVIDENCE, 2210, 2211. Appointment of guardian ad litem to de- fend bastardy proceedings against minor, see INFANTS, 110. Conclusiveness of judgment of dismissal, see JUDGMENT, 106. Venue of proceedings in, see JUSTICE OF THE PEACE, 8. Competency of relatrix as witness, see WIT- NESSES, 28. See also ILLEGITIMATES. 1. The issue in a bastardy proceeding is properly made up when the affidavit and declaration charging defendant with being the father of the child are traversed by an V:> /.* J SC-1 BATH HOUSE BENEFICIARY. 269 affidavit filed by him. Johnson v. Walker, i : 470, 39 So. 49, 86 Miss. 757. 2. One bound over to the circuit court by the mayor of a city in a bastardy pro- ceeding waives the question of the mayor's jurisdiction over his person by pleading to the action without raising such question. Evans v. State ex rel. Freeman, 2: 619, 74 N. E. 244, 75 N. E. 651, 165 Ind. 369. 3. Prosecutrix in a bastardy proceed- ing is not precluded from retaining private counsel, by a statute making it the duty of the district attorney to appear and prose- cute inl such actions, since the proceeding is not primarily to punish defendant, but to recover compensation for the person in- jured. State v. Smith, 33: 463, 130 N. W. 894, 146 Wis. 111. (Annotated) BATH HOUSE. Liability of proprietor of, see BAILMENT. 12; INNKEEPERS, 4. Forbidding solicitation of business by, at railroad stations, see CONSTITUTIONAL LAW, 688. Damages for expulsion from, see DAM- AGES, 629. BATHING. Forbidding bathing in pond from which public water supply is taken, see CON- STITUTIONAL LAW, 516, 674; WATERS, 126. Public right of bathing on seashore, see WATERS, 68. BATHING RESORTS. Liability of married woman for negligence in conducting, see HUSBAND AND WIFE, 28. Pleading in action for injury at, see PLEAD- ING, 278. 1. The owner of a public bathing resort may be found to be negligent where he places no signs as to depth of water, or marks to indicate danger, and keeps no one at hand to aid persons in danger, and takes no steps to aid a person actually in peril until too late to be of any avail. Larkin v. Saltair Beach Co. 3: 982, 83 Pac. 686, 30 Utah, 80. (Annotated) 2. A patron of a public bathing resort is not negligent so long as he remains in the territory in which the public generally are invited to bathe, unless, with knowl- edge or notice of danger, he puts himself in a position of peril. Larkin v. Saltair Beach Co. 3: 982, 83 Pac. 686. 3C Utah, 86. 3. One who maintains a public bathing resort with a springboard for diving pur- poses, over water too shallow to permit div- ing without injury, is liable for injury to a Digest 1-52 L.R.A.(N.S.) patron who attempts to use it without warn- ing of the danger. Turlington v. Tampa Electric Co. 38: 72, 56 So. 696, 62 Fla. 398. (Annotated) BATTERY. See ASSAULT AND BATTERY. BAWDY HOUSE. See DISORDERLY HOUSES. BAY. Presumption as to rights in, see EVIDENCE, 620. BEER. ,-;. ; -j, Intoxicating character of, see EVIDENCE, 693-695; INTOXICATING LIQUORS, 13. 101, 106-113. Near beer, see NEAR BEEB. In general, see INTOXICATING LIQUORS. ._ - t ivUK. 1 ' Mip.-i . , v\ iV-'.'i idm*)& '.'|i BEET GROWER. Contract to instruct in making of crop, see CONTRACTS, 387, 687. BEHAVIOR. Evidence of good behavior of prosecutrix on prosecution for incest, see EVIDENCE, 1576. BELIEF. Effect of, on criminal liability, see CRIM- INAL LAW, 1. Presumption and burden of proof as to, see EVIDENCE, II. e, 5. Of person making fraudulent representa- tions, see FRAUD AND DECEIT, IV. As question for jury, see TRIAL, 294, 295. BENEFICIARY. In insurance policy, see INSURANCE. In trust, see TRUSTS. In will, see WILLS, III. 37-42. 270 BENEFIT CERTIFICATES BENEVOLENT SOCIETIES, II. BENEFIT CERTIFICATES. See INSURANCE. BENEFITS. Restoration of benefits received as condi- tion precedent to suit, see ACTION OR SUIT, I. b, 2. Restoring, on rescission of contract, see CONTRACTS, 397-738. Deducting benefits resulting from nuisance from damages for, see DAMAGES, 506. Deduction for, in condemnation proceedings, see DAMAGES, III. 1, 6. Estoppel by receiving, see ESTOPPEL, III. As basis of assessment for public improve- ment, see PUBLIC IMPROVEMENTS, 42, 50-53, 70, 71. Necessity of, to sustain special taxes, see TAXES, 43. BENEVOLENT SOCIETIES. I. In general, 13. II. Local lodges, 4S. III. Constitution, rules, and by-laws, 912. IV. Membership; expulsion; liability, 13-15. V. Irregularities; dissolution. For associations, generally, see ASSOCIA- TIONS. Gift to pay death benefits and assist mem- bers of, see CHARITIES, 5. Consideration for subscription to, see CON- TRACTS, 100. Jurisdiction over, see COURTS, I. d. Garnishment of, see GARNISHMENT, 21, 47. Insurance by, see INSURANCE. As to railroad relief associations, see RAIL- ROAD RELIEF ASSOCIATIONS. Taxation of property of, see TAXES, 85, 91, 185. Validity of bequest to, where will was wit- nessed by member of, see WILLS, 180. /. In general. (See also same heading in Digest L.R.A. 1-10.) Power to take under will. 1. The heirs of a testate may call in question the power of a fraternal beneficiary association to take under the will. Kennett v. Kidd, 44: 544, 125 Pac. 36, 87 Kan. 652, 130 Pac. 691, 89 Kan. 4. (Annotated) 2. Under a statute authorizing a camp of Modern Woodmen to take, hold, and dis- pose of personal estate for the purpose of their corporation, and providing that the fund from which benefits shall be paid, and expenses, shall be derived from assessments, premiums, or dues collected from its mem- bers, such a camp cannot take a bequest of Dieest 1-52 KR.A.(N.S.) personal property. Kennett v. Kidd, 44: 544, 125 Pac. 36, 87 Kan. 652, 130 Pac. 691, 89 Kan. 4. 3. Under a statute authorizing a camp of Modern Woodmen to purchase, hold, and dispose of such real estate, including such suitable building or buildings as may be necessary to provide suitable accommoda- tions for the holding of its meetings and transaction of its business, and providing further that the fund from which the bene- fits of said order shall be paid, and expenses, shall be derived from assessments, premiums, or dues collected from its members, such a camp cannot take a devise of farm lands. Kennett v. Kidd, 44: 544, 125 Pac. 3ti, 87 Kan. 652, 130 Pac. 691, 89 Kan. 4. //. Local lodges. (See also same heading in Digest L.R.A. 1-70.) Power of officers to waive provisions in bene- fit certificates, see INSURANCE, 537. 4. The secretary of a local branch of a fraternal society, charged with the duty of collecting the assessments on benefit cer- tificates issued by the grand lodge, is the agent of such lodge with respect to the business of such collections. Trotter v. Grand Lodge, 1. L. of H. 7: 569, 109 N. W. 1099, 132 Iowa, 513. Rights and powers of local lodge. Authority to apply amount due member for benefits in payment of assessment, see INSURANCE, 406. Waiver by local lodge of right of society to insist on forfeiture of certificate, see INSURANCE, 594-596. 5. The officers of the subordinate tent, an unincorporated association, of a frater- nal beneficiary order, may be found by the jury to have been acting, while conducting initiation ceremonies, as the agents of the supreme tent, a foreign corporation, and within the scope of their authority to such an extent as to render the supreme tent liable for an injury to the person being initiated, where the injury resulted from an act specifically prescribed and enjoined by the ritual prepared by the supreme tent; and the latter cannot escape liability under a provision of the by-laws which makes the subordinate tent the agent of its members in making applications for membership, in the admission of members, and the collec- tion and transmission of dues, and provides that the supreme tent shall not be liable for negligence in any of such matters, nor bound by any "illegal action" on the part of such subordinate tent. Thompson v. Su- preme Tent K. O. T. M. 13: 314, 82 N. E. 141, 189 N. Y. 294. (Annotated) 6. A benefit fund belonging to a subor- dinate lodge, and distributed in good faith to those entitled to receive it after notice of revocation of its charter, cannot be re- covered by the parent body under a statute requiring moneys to be turned over to it in such an event, where the act also pro- vides that the funds are to be held for the same purposes and intents for which they were received by the subordinate associa- BENEVOLENT SOCIETIES, III. BERTH. 271 tion. State Council J. O. U. A. M. v. Emery, 15: 336, 68 Atl. 1023, 219 Pa. 461. 7. A benefit fund contributed by the members of a subordinate lodge for their own use belongs to them, and cannot, upon the revocation of its charter, be taken by the parent body under charter provisions which require the property of the former to be turned over to the latter, but in which no mention is made of money; nor under a statute requiring "moneys" to be turned over, where it also provides that such funds shall be held for the same purposes and in- tents for which they were received by the subordinate association, especially where no provision is made for the collection and disbursement of such fund by the parent body. State Council J. O. U. A. M. v. Em- ery. 15: 336, 68 Atl. 1023, 219 Pa. 461. (Annotated) 8. The majority of a subordinate lodge of a benevolent society cannot authorize a secession of the lodge from the parent organization, and take with them the prop- erty of the order, if the general laws cf the order provide that all property and funds of a lodge shall be held exclusively as a trust fund for carrying on the fraternal and benevolent features of the order, and shall not be expended for any other pur- pose, and that no part of the property shall ever be divided among the members, and if any lodge, for any reason, shall cease to exist, all its property shall immediately and ipso facto revert to the superior lodge. Grand Court of Washington F. of A. v. Model, 47: 927, 133 Pac. 438, 74 Wash. 314. ( Annotated ) ///. Constitution, rules, and by-laws. (See also same heading in Digest L.R.A. 1-10.) Stipulation as to collusiveness of decisions of tribunals of order, see COURTS, 167, 168. As to matters relating to insurance, see INSURANCE, 93-114, 430, 431. Changes in. In matters relating to insurance, see IN- SURANCE, 95-98, 100-105, 108-113. 9. The classification of members of a mutual -benefit society according to age, in a by-law readjusting methods of assessment, is not illegal. Reynolds v. Supreme Council, R. A. 7: 1154, 78 N. E. 129, 192 Mass. 150. 10. A mutual-benefit society has power to amend its by-laws so as to increase the assessments on its members, where the ex- isting rate has proved inadequate, under charter authority to provide for the pay- ment of a certain death benefit, to be se- cured by assessment, and to provide for the amendment of its by-laws. Reynolds v. Su- preme Council, R. A. 7: 1154, 78 N. E. 129, 192 Mass. 150. (Annotated) 11. Raising the rate of assessment on a member of a mutual -benefit society by change of by-laws does not impair his con- tract, where the by-laws to which he agreed Digest 1-52 L,.R.A.(N.S.> required him to conform to the laws then in force, or which might thereafter be adopted. Reynolds v. Supreme Council, R. A. 7: 1154, 78 N. E. 129, 192 Mass. 150. 12. An agreement by a member of a fraternal benefit association to be bound by subsequently enacted by-laws will be up- held when such by-laws are reasonable in their nature and legally enacted. Lauge v. Royal Highlanders, 10: 666, 106 N. W. 224, 110 N. W. 1110, 75 Neb. 188. IV. Membership; expulsion; liability. (See also same heading in Digest L.R.A. 1-10.) Members bound by by-laws, etc., see supra, III. Expulsion. Error in failing to instruct in action for expulsion of member, see APPEAL AND ERKOR, 1427. Review by courts of expulsion, see COURTS, 177, 178. 13. Members of the supreme council of a benefit society are disqualified to try and expel a member for defaming the members of such council by charging them with graft, fraud, and dishonesty, and an attempted ex- pulsion by them is void, where, under the rules of the order, other persons might have been chosen as triers, at least where the truth of the charge against them is in issue. Wilcox v. Supreme Council, R. A. 52: 806, 104 N. E. 624, 210 N. Y. 370. 14. The validity of the expulsion of a member of a benefit society by a prejudiced committee may be collaterally attacked in an action on his certificate, where there is no method of directly reviewing such ex- pulsion. Wilcox v. Supreme Council, R. A. 52: 806, 104 N. E. 624, 210 N. Y. 370. Liability of members. 35. Persons who did not receive improp- erly disbursed lodge funds are not account- able therefor, under a statute permitting re- covery only from those who have received the money. State Council J. 0. U. A. M. v. Emery, 15: 336, 68 Atl. 1023, 219 Pa. 461. V. Irregularities; dissolution. (See same heading in Digest L.R.A. 1-10.) BEQUEST. See WILLS, III. BERTH. Duty to supply, to passenger, see CARRIERS, 22-24, 44; DAMAGES, 74. Statute giving occupant of lower berth con- trol of unoccupied upper berth, see CONSTITUTIONAL LAW, 448, 670, 684. 272 BERTILLON SYSTEM BIGAMY. BERTILLON SYSTEM. BICYCLES. For identification of criminals, see CRIM- INAL LAW, 122, 123. BEST AND SECONDARY EVIDENCE. See EVIDENCE, III. BETTERMENTS. See IMPBOVEMENTS. BETTING. Validity of gambling and wager contracts, see CONTBACTS, III. d. On horse race, see GAMING, 22-26. Petition in action to recover amount lost, see PLEADING, 385. As to gaming generally, see GAMING. 1. Betting on horse racing is not within a statute making criminal "betting anj money on any game of hazard or skill." State v. Vaughan, 7: 899, 98 S. W. 685, 81 Ark. 117. (Annotated) 2. Rooms where bets are made on horse racing are common nuisances at common law, although betting on horse races is not prohibited by statute. State v. Vaughan, 7: 899, 98 S. W. 685, 81 Ark. 117. BEVERAGE. Manufacturer's liability for injury from swallowing broken glass in bottle, see NEGLIGENCE, 59. BIAS. As ground for injunction against superin- tendent's revocation of teacher's li- cense, see INJUNCTION, 319. Disqualification of judge by, see JUDGES, 8, 9, 16-19. Effect of, on competency of jurors, see JURY, 64-71. Of referee, see REFERENCE, 2. Impeachment of witness by showing, see WITNESSES, 1, 140, 143. BIBLE. Admissibility in evidence of entries in, see APPEAL AND ERROR, 1166. Reading of, in schools, see CONSTITUTIONAL LAW, 760, 761; PUBLIC MONEYS, 17; SCHOOLS, 64, 65. Digest 1-52 L.R.A.(N.S.) Contributory negligence of person riding, see AUTOMOBILES, 64. Riding of, on sidewalk, see HIGHWAYS, 206, 207; NEGLIGENCE, 179. Duty to keep street safe for use of, see HIGHWAYS, 182, 183. Proximate cause of injury to rider by de- fect in highway, see PROXIMATE CAUHE, 116. Negligence of bicycle rider at railroad crossing, see RAILROADS, 220, 283. 1. Permission of a municipal ordinance is not justification for violating a statutory law prohibiting the riding of bicycles on a sidewalk. Millett v. Princeton, 10: 785, 7J> N. E. 909, 167 Ind. 582. BID. Assumpsit to recover amount of, see As- SUMPSIT, 18, 21. At auction, see ASSUMPSIT, 18; AUCTIONS. Suppression of bidding at judicial sale, see CANCELATION OF INSTRUMENTS, 17. Acceptance of, with notice of mistake as to subject-matter, see CONTRACTS, 125: NOTICE, 13. Validity of contract to affect, see CON- TRACTS, 482, 483, 615; JUDICIAL SALE. 7. For public contract, see CONTRACTS, VII. b. At judicial sale, necessity of compliance with, see JUDICIAL SALE, 12-14. BIGAMY. Intent as element of crime, see CRIMINAL LAW, 9. Presumptions and burden of proof, see EVI- DENCE, 140, 152. Sufficiency of proof in prosecution for, see EVIDENCE, 2402. Indictment for, see INDICTMENT, ETC., 68. 1. 'A marriage contract at a time when the husband is married to another person, followed by cohabitation after his former wife secures a divorce from him, without further contract, and without knowledge on the woman's part of the former marriage or the divorce, is void, and will not render the husband guilty of bigamy in case he aban- dons the woman and marries another. Mc- Combs v. State, 9: 1036, 89 S. W. 1017, 50 Tex. Crim. Rep. 490. 2. That, at the time one accused of bigamy contracted his alleged bigamous marriage, he had been credibly informed that his first wife had obtained a divorce, and that he had reasonable cause to and did rely thereon in good faith, constitutes a good defense to the crime charged. Baker v. State, 27: 1097, 126 N. W. 300, 86 Neb. 775. (Annotated) !.v rf BILLBOAHDS BILLS AND NOTES. 273 BILLBOARDS. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 320. As violation of restrictive covenants, see COVENANTS AND CONDITIONS, 83, 84. Forbidding maintenance of, within city limits, see EMINENT DOMAIN, 220. Contributory negligence in falling over bill- board in highway, see HIGHWAYS, 352. Municipal regulation of generally, see MU- NICIPAL Coin OKATIONS, 104, 105. Billboard license, see MUNICIPAL CORPORA- TIONS, 44. Traveling salesman's authority to contract for placing posters on, see PRINCIPAL AND AGENT, 41. BILLIARDS. Who may question validity of ordinance forbidding maintenance of billiard tables, see ACTION OB SUIT, 52. Constitutionality of ordinance regulating keeping of billiard tables for hire, see CONSTITUTIONAL LAW, 243, 424, 692. Declaring billiard rooms a nuisance, see COURTS, 161: MUNICIPAL CORPORA- TIONS, 151. BILL OF EXCEPTIONS. On appeal, see APPEAL AND ERROR, IV. o. BILL OF PARTICULARS. See PLEADING, I. i. BILL OF SALE. Acknowledgment of, see ACKNOWLEDGMENT, 2. Production of, by one accused of stealing property, see APPEAL AND ERROR, 927. Parol evidence as to intention of parties to, see EVIDENCE, 966, 981, 982. BILL POSTING. As offensive trade within meaning of re- strictive covenant, see COVENANTS AND CONDITIONS, 84. As to billboards, see BILLBOARDS. BILLS. Sufficiency of proof of sending of, to cus- tomers, see EVIDENCE, 2307. Digest 1-52 L.R.A.(N.S.) Presentation of telephone bills, see TELE- PHONES, 6. See also STATUTES. BILLS AND NOTES. I. Nature; requisites and validity, 1 64. a. In general, 111. b. Validity generally; delivery, 1219. c. Consideration, 2O37. d. Negotiability, 3864. 1. In general, 384:9. 2. Certainty as to maturity and amount, SO 64. II. Acceptance, 6567. III. Indorsement and transfer, 6891. a. In general, 6875. b. Liability of indorser, 7692. 1. In general, 7687. 2. Indorsement at or before delivery, 8891. 3. Restrictive indorsements, 92. c. Discharge of indorser, 9395. d. Transfers without indorse- ment, 96, 97. IV' Presentment; demand; notice; protest, 98112. a. In general; necessity, 981O8. b. Sufficiency, 1O9, 11O. c. Notice of protest; certificate. d. Damages for nonacceptance , nonpayment and protest, 111, 112. V. Rights and liabilities of transfer- ees, 113195. a. Extent of rights and protec- tion generally, 113158. 1. In general, 113137. 2. Of bona fide holders, 138 158. ft. Who are protected as bona fide purchasers, 158a195. 1. In general, 158a166. 2. Knoivledge; notice; facts putting on inquiry, 167 187. 3. Taken as collateral securi- ty or for antecedent debt, 188-195. VI. Actions and defenses; maturity; extension and renewal, 196 222. a. In general; right of indorser to sue. ft. Maturity; extension; renewal, 196 2O2. c. Defenses, 2O3222. Statement of amount of principal and in terest due on note as account stated, see ACCOUNTS, 5, 6. Alteration of, see ALTERATION OF INSTRU- MENTS, II. Guaranty of, see APPEAL AND ERROR, 1317; GUARANTY. 18 274 BILLS AND NOTES. Right of maker to recover from payee amount paid bona fide purchaser, see ASSUMPSIT, 5. Draft with bill of lading attached, see ASSUMPSIT, 36; BILLS OF LADING; CONFLICT OF LAWS, 112, 113; COURTS, 301; EVIDENCE, 1158; PARTIES, 8; SALE, 22. Provision in, for attorney's fees, see ATTOR- NEYS' FEES. Authority of bank officers as to note given by bank, see BANKS, 21. Promise by cashier to one signing note without consideration, see BANKS, 24. Authority of cashier to extend time of pay- ment of note due bank, see BANKS, 30. Payment out of bank deposits, see BANKS, 72. Loan by bank of customer's money on a note, see BANKS, 72. Taking money for draft by bank when in- solvent, see BANKS, 205-208. Money received by insolvent banker as pay- ment on, as trust fund, see BANKS, 210. As to checks, see BANKS, IV. a, 3 ; CHECKS. As to certificate of deposit, see BANKS, IV. a, 4. Collection of, see BANKS, IV. b. Preference by bankrupt to one executing accommodation paper, see BANK- RUPTCY, 77. Bills of lading as commercial paper, see BILLS OF LADING, 1. Bond to protect another against loss by reason of nonpayment of commercial paper, see BONDS, 1. Validity of chattel mortgage securing un- signed note, see CHATTEL MORTGAGE, 1. Compromise by giving of, see COMPROMISE AND SETTLEMENT, 5. Conflict of laws as to, see CONFLICT OF LAWS, I. b, 2. Agreement to indemnify surety on note, against loss, see CONTRACTS, 53. Sufficiency of consideration for promise not to sue on, see CONTRACTS, 59. Consideration for agreement to pay past due note of another, see CONTRACTS, 97. Indebtedness arising from promissory notes as "outstanding and open account," see CONTRACTS, 373. Construction of agreement to pay draft, see CONTRACTS, 368. Contract by holder of note to sell to maker at specified time before maturity at a discount, see CONTRACTS, 406. Recovery from payee of amount paid to bona fide holder of invalid note, see CONTRACTS, 675. Recovery from payee of amount paid bona fide holder of note because of failure of consideration, see INSURANCE, 434. Modification of contract by parties to, see CONTRACTS, 705. Power of corporation as to, see CORPORA- TIONS, 73-75. Liability of corporate officers on, see CORPO- RATIONS, 16fl. Digest 1-52 L.R.A.(N.S.) Payment by note, see CORPORATIONS, 210, 218; EVIDENCE, 535; JUDGMENT, 316; PAYMENT, 3-6; SUBROGATION, 10. Note executed by president of corporation to pay his own debt, see CORPORATIONS, 154, 155. Damages for refusal of purchaser to execute note for purchase price, see DAMAGES, 175. Ratification of note execution of which is secured by duress, see DURESS, 4. Effect of treating as chattel mortgage in suit for payment by receiver, see ELECTION OF REMEDIES, 25. Jurisdiction of equity to cancel, see EQUITY, 84. Jurisdiction of equity of suit by payee against parties loaning money on note contrary to instructions, see EQUITY, 29. Retention of jurisdiction in suit to secure cancelation of notes, see EQUITY, 110. Estoppel by representations as to validity, see ESTOPPEL, 61, 168, 1G9. Estoppel as to, by negligence, see ESTOPPEL, 184-191. Estoppel to deny agent's authority as to, see ESTOPPEL, 102. Estoppel to look to bank for reimbursement by attempting to collect from forger of indorsement, see ESTOPPEL, 132. Estoppel to apply payment to interest in- stead of to principal, see ESTOPPEL, 87. Estoppel to treat note as existing for one purpose and repudiate it for another, see ESTOPPEL, 217. Necessity that transferee of warehouse re- ceipts should prove that he obtained them bona fide, see EVIDENCE. f>91. Presumption and burden of proof as to, see EVIDENCE, 111, 136, 535, 580-591, 604, 639, 670. Presumption of agency to receive payment of, see EVIDENCE, 131. Evidence hi action by receiver to enforce note that it was delivered on condi- tion, see EVIDENCE, 1026. Expert evidence as to meaning of terms in, see EVIDENCE, 1136. Evidence of declarations of payee to im- peach validity of note, see EVIDENCE, 1456. Evidence as to nonexecution, see EVIDENCE, 2452. As evidence, see EVIDENCE, IV. m. Parol evidence as to, see EVIDENCE, VI. f. Forgery of, see FORGERY. Fraud as to, see FRAUD AND DECEIT, VI. Right, before payment of note, to maintain action for fraud in securing its execu- tion, see FRAUD AND DECEIT, 75. Effect of statute precluding recovery of money loaned for purpose of gaming, see GAMING, 14, 15. Gift of, pee GIFT, 8-10. Guaranty of, see GUARANTY. When guardian's duty as to draft for ward's share commences, see GUARDIAN AifD WARD, 17. By married woman, see HUSBAND AMD WIFE, 34-36, 40, 42. BILLS AND NOTES, I. a. 275 Joint notes of husband and wife, see HUS- BAND AND WIFE, 91. Wife's right of action on note executed by husband, see HUSBAND AND WIFE, 197. Effect of marriage on notes made by man to his intended wife, see HUSBAND AND WIFE, 58. By incompetent person, see INCOMPETENT PERSONS, II. Indictment for securing note by false pre- iv rises, see INDICTMENT, ETC. 86. Injunction against trover to recover paid note, see INJUNCTION, 297. Premium notes, see INSURANCE, 331-392, 413, 424-426, 479, 480, 489, 567, 601; TAXES, 67. Giving of note to injured employee as pay- ment of judgment against employer, see INSURANCE, 928. Interest on, see INTEREST, 13, 14, 56. Conclusiveness in other state of judgment on, see JUDGMENT, 285, 292. Relief against judgment on, see JUDGMENT, 334, 335. Note made on Sunday, see JUDGMENT, 334. Attachment of note, see LEVY AND SEIZURE, 17. Rights under mortgage securing, where ac- tion on note is barred, see LIMITATION OF ACTIONS, 86, 87, 135. Effect of payment of interest on barred note to revive mortgage securing it, see LIMITATION OF ACTIONS, 328. Lost note, see LOST INSTRUMENTS. Effect of taking judgment on note alone when secured by mortgage, see MORT- GAGE, 76.' Merger of note in judgment thereon, see MORTGAGE, 83. Construing together provisions in mort- gage and in note secured thereby, see MORTGAGE, 93. Draft drawn in fictitious name, see NAME, 2. Notice to surety of broker that customer's notes taken as collateral security were executed in gaming transactions, see NOTICE, 6. Notice of forgery of, see NOTICE, 28. Right of one paying draft against bill of lading for goods shipped to another to maintain action against carrier, see PARTIES, 8. Right of bank to maintain suit to recover notes pledged by agent, see PARTIES, 65. Cancelation of, in partition suit, see PAR- TITION, 19. Power of partners as to, see PARTNERSHIP, 19-24; TRIAL, 878, 1017. Effect of accepting note of one partner for partnership debt, see PARTNERSHIP, 30. Liability of retiring members of partner- ship on firm note, see PARTNERSHIP, 81. Acceptance of check in payment, see PAY- MENT, 9, 10. Pleading as to, see PLEADING, 244-249. Collateral security for, see PLEDGE AND COL- LATERAL SECURITY, 14, 15. Pledge of notes, see PLEDGE AND COLLATEK- AL SECURITY, 15, 17, 21, 27. Digest 1-52 L.R.A.(N.S.) Cancelation for fraud of notes held as col- lateral, see PLEDGE AND COLLATERAL SE- CURITY, 17. Power of agent as to, see PRINCIPAL AND AGENT, 54-59, 86. Wrongful transfer of, by agent to bona fide purchaser, see PRINCIPAL AND AGENT, 71. Surety on, see PRINCIPAL AND SURETY. Detinue for recovery of, see REPLEVIN, 13, 14. Effect of taking notes on conditional sale, see SALE, 43. Effect of indorsing purchase money note as collateral to third person on condition- al sale contract, see SALE, 44. Refusal of vendee to execute notes for pur- chase price of property, see SALE, 124. For purchase price of chattel; liability where property is destroyed while in seller's hands, see SALE, 147. Subrogation of one paying, see SUBROGA- TION. Construction of negotiable instruments law, t see STATUTES, 209. Conflict between negotiable instruments law and statutes defining rights and liabilities of sureties, see STATUTES, 335. Taxation of premium notes, see TAXES, 67. Where taxable, see TAXES, 138-141. Succession tax on notes held by nonresident, see TAXES, 340-341a, 344. Sufficiency of draft as tender for rent, see TENDER, 13. Intent of payee in adding clause to note as question for jury, see TRIAL, 285. Question for jury whether mortgage was intended to secure, see TRIAL, 288. Authority of agent to take notes in pay- ment, see TRIAL, 311. Trover to obtain paid note, see -TROVER, 11. Individual liability of one signing note as trustee, see TRUSTS, 120. Usury in, see USURY. Secured by vendor's lien, see VENDOR AND PURCHASER, II. Probate of note as will, see WILLS, 12. I. Nature; requisites and validity, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. Those who execute negotiable paper and set it afloat are chargeable with a much higher degree of diligence and caution than is chargeable to those who purchase such paper in due and regular course of business. Vaughn v. Johnson, 37: 816, 119 Pac. 879, 20 Idaho, 669. 2. One signing a promise to sign a speci- fied note with another will be held liable in equity as though he had in fact affixed his signature to the note. Petty v. Hacking, 33: 175, 133 S. W. 832, 97 Ark. 217. (Annotated) 3. An indorsement of a fictitious pay- ment on the back of a note before delivery to reduce it to the amount which the dis- BILLS AND NOTES, I. b. counting bank is willing to advance upon it occurs before execution of the note, for the purpose of determining its effects upon the instrument. Washington Finance Corp. v. Glass, 46: 1043, 134 Pac. 480, 74 Wa^h. 653. 4. A writing in the form of a promis- sory note, in which the blank for the amount payable is not filled, is incomplete, and will not sustain an action at law, al- though an amount is written in words and figures in the margin. Chestnut v. Chest- nut, 2: 879, 52 S. E. 348, 104 Va. 539. (Annotated) 5. A written agreement modifying the terms of an accepted bill of exchange, and securely glued thereto, is a part thereof, and cannot !;. lawfully detached therefrom without the maker's const- 1 it. Bol;* 11 v. Schweitzer, 22: 263, 120 N. W. 1129, 84 Neb. 271. 6. A draft drawn in the ordinary form does not constitute an equitable assign- ment pro tanto of funds in the hands of the drawee to the credit of the drawer, before such draft has been accepted or pre- sented for payment. First Nat. Bank v. School Dist. No. 4, 39: 655, 120 Pac. 614, 31 Okla. 139. Wliat are. Certificate of stock as a negotiable instru- ment, see CORPORATIONS, 222. 7. Postoffice money orders are not ne- gotiable instruments, subject to the privi- leges permitted by the law merchant to bona fide holders for value. Bolognesi v. United States, 36:143, 189 Fed. 335, 111 C. C. A. 67. (Annotated) 8. A written instrument by which the maker acknowledges an indebtedness, and agrees to pay it "as soon as he can," con- stitutes a promissory note, payable within a reasonable time. Benton v. Benton, 27: 300, 97 Pac. 378, 78 Kan. 366. (Annotated) Note payable to fictitious person. See also infra, 117. 9. Where a check is drawn by a real drawer, who designates an existing person as the payee and intends him to receive the proceeds, the payee is not "a fictitious per- son" within the meaning of a statute (bills of exchange act 1882, 7, subs. 3) provid- ing that where the payee is a fictitious or nonexisting person, a bill may be treated as payable to bearer ; and therefore one who, induced by the fraud of another, has drawn a check to the order of a third person, actu- ally existing, intending him to be the payee, is entitled to recover the amount of the check from a bank which, receiving the check with a forged indorsement of the payee's name, has collected it from the drawer's bank. North and South Wales Bank v. Macbeth, 3 B. R. C. 748 [1908] A. C. 137. Also Reported in 77 L. J. K. B. N. S. 464, 98 L. T. N. S. 470, 24 Times L. R. 397, 13 Com. Cas. 219, 52 Sol. Jo. 353, 354. (Annotated) Memorandum on. 10. The printing on a blank on which a draft is drawn, of the word "cotton," does not make such reference to bills of lading Digest 1-52 L.R.A.(N.S.) attached to the draft as to make the draft conditional on the genuineness of the bills. Springs v. Hanover Nat. Bank, 52: 241, 103 N. E. 156, 209 N. Y. 224. Note payable to officers of corporation. 11. A note naming the payee as follows, ''I promise to pay to the order of directors of F. U. Gin & Mill Co. of Stratford, I. T.," the same being a corporation, is in law made payable to the corporation, and the title to same may be passed by an indorse- ment thereon of the name of the corpora- tion, by the secretary and treasurer thereof, in obedience to a resolution of its board of directors. First Nat. Bank v. Walker, 50: 1115, 13G Pac. 408, 39 Okla. 620. ( Annotated > 6. Validity generally; delivery. (See also same h 1-10.) X. W. 999, 129 Iowa, 597. (Annotated) 164. A bona fide holder of negotiable paper who, after pledging it as collateral for his own debt, receives it back upon pay- ing his debt, or purchases it from the pledgee, is entitled to the protection as in- nocent holder which he originally possessed. Miles v. Dodson, 50: 83, 144 S. W. 908, 102 Ark. 422. Bank crediting note on depositor's account. 165. A bank does not become a purchaser in due course, for value, by crediting a note upon the payee's account, if the credit is not absorbed by antecedent indebtedness or exhausted by subsequent withdrawals. McKnight v. Parsons, 22: 718, 113 N. W. 858, 136 Iowa, 390. 166. A bank which discounts a note and places the proceeds to the credit of the payee's account is not deprived of the rights of a bona fide holder by the fact that the funds in the account at the time of the dis- count of the note and at the time of its maturity exceed the amount of the note, if in the interim, and before the bank loams BILLS AND NOTES, V. b, 2. 289 of any defense to the note, the entire payee to be patented, takes subject to all amount of the deposit is drawn out. North- defenses between the original parties, if at fiolrJ \To f Tio n lr ir A vrn^l- T ft O/- 1 1 O XT \\T -f 1i/* -f i ni *t *-vF li I ..,,,-. 7 ... K ~ 1. ~ - I i _ _i _. _ field Nat. Bank v. Arndt, 12: 82, 112 N. W. 451, 132 Wia. 383. 2. Knowledge; notice; facts putting on inquiry. (See also same heading in Digest L.R.A. 1-10.) Transferee of check, see CHECKS, 42, 43, 47. Burden of proving lack of notice of defect, see EVIDENCE, 198. Evidence of declarations of payee to im- peach validity of note, see EVIDENCE, 1456. Imputing knowledge of payee of infirmi- ties to bank of which he is president, see NOTICE, 57. Sufficiency of evidence to take question of ^bad faith to jury, see TRIAL, 119. Correctness of instructions as to, see TRIAL, 1019. See also supra, 46; infra, 200, 201. 167. One who purchases negotiable paper without inquiry, when the circumstances are such as would excite the suspicion of a prudent and careful man, does not stand in the position of a bona fide holder. Pier- son v. Huntington, 29: 695, 74 Atl. 88, 82 Vt. 482. 168. A purchaser of a note with actual notice of suspicious circumstances sufficient to put a prudent person on inquiry as to its validity is charged with notice of all facts which such inquiries would have elicited. Mee v. Carlson, 29: 351, 117 N. W. 1033, 22 S. D. 365. 169. Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a pru- dent man, or of circumstances sufficient to put Jiim upon inquiry, will not defeat the title of an indorsee of a negotiable promis- sory note; that result can be produced only by had faith on his part. McPherrin v. Tittle, 44: 395, 129 Pac. 721, 36 Okla. 510. (Annotated) 170. A statute which provides that, to constitute notice of an infirmity in a ne- gotiable instrument, the person to whom it is negotiated must have had actual notice of the infirmity, or knowledge of such facts that his action in taking the instrument amounted to bad faith, does not change the rule- that, to constitute bad faith on the part of the purchaser of a negotiable promissory note for value before maturity, he must have acquired it with knowledge of the infirmities occurring in the original transaction, or with a belief, based on the circumstances known to him, that there was a defense to the instrument, or the evidence must show that he acted in bad faith or dishonestly. Benton v. Sikyta, 24: 1057, 122 N. W. 61, 84 Neb. 808. 171. The indorsee for value before ma- turity, of a promissory note given in con- sideration of a right to make, use, or vend the time of his purchase he has knowledge of the consideration, and none of tlie parties through whom he claims were in ignorance of that fact, even though the note was not indorsed, "Given for a patent right," as required by statute. Benton v. Sikyta, 24: 1057, 122 N. W. 61, 84 Neb. 808. (Annotated) 172. A negotiable promissory note is not dishonored by reason of a failure to pay interest prior to maturity of the principal, in the absence of a stipulation in the note to that effect; but the fact that interest is due and unpaid is a material circumstance bear- ing on the question of whether the pur- chaser acquired the note in good faith and without notice of prior equities or infirm- ities in the title. McPherrin v. Tittle, 44: 395, 129 Pac. 721, 36 Okla. 510. 173. Knowledge by an assignee in due course of a negotiable note, that it was given for the purchase price of a specified quantity of land at a specified price per acre, is not a notice to him of failure of title or shortage in quantity. Dollar Sav. & T. Co. v. Crawford, 33: 587, 70 S. E. 108'J, 69 W. Va. 109. 174. The fact that a bank which has pur- chased notes from a horse dealer has had more than twenty suits to collect the notes, the defenses usually being that the horses were not satisfactory, is not sufficient to defeat the bona fides of its purchase of another note, so as to let in the defense of fraud in favor of the maker. Citizens' Trust & Sav. Bank v. Stackhouse, 40: 454, 74 S. E. 977, 91 S. C. 455. 175. A bank to which is offered a note payable to a nonresident whom it knows to be practising medicine in the state, which he is not permitted to do without a license, and who has offered it many similar notes, is bound to inquire into the consideration for the note, and in case it fails to do so, and the note was in fact given for pro- fessional services and the payee was un- licensed, it cannot enforce payment of the instrument. State Bank v. Lawrence, 42: 326, 96 N. E. 947, 177 Ind. 515. 176. A joint maker of a note is not, as against the holder, a surety for the co- maker to the extent of the hitter's portion of the note, so that, in case the joint maker is a partnership, the holder will be charge- able with notice of the suretyship, and therefore of the lack of authority to sign the note. Union Nat. Bank v. Neill, 10: 426, 149 Fed. 711, 79 C. C. A. 417. 177. Mere knowledge that a note is given in consideration of an executory agreement is not sufficient to deprive the indorsee of the rights of a bona fide holder. McKniglit v. Parsons, 22: 718, 113 N. W. 858, 136 Iowa, 390. 178. The fact that the president of a state bank docs not actively participate in the management of the bank does not re- lieve him from notice imputed to him by virtue of his position, of infirmities in an a patented article, or one claimed by the instrument which he purchased from the Digest 1-52 L.R.A.(N.S.) 19 290 BILLS AND NOTES, V. b, 3. bank, so that the defense of a lack of con- sideration is not available to the maker of the instrument. McCarty v. Kepreta, 48: 65, 139 N. W. 992, 24 N. D. 395. ( Annotated ) 179. A bank which directs the indorse- ment of a fictitious payment upon a note to reduce it to the amount which it is willing to advance upon it before discounting it is not a holder in due course, so as not to be affected by the alteration, under the ne- gotiable instruments act. Washington Fi- nance Corp. v. Glass, 46: 1043, 134 Pac. 480, 74 Wash. 653. Indorsement "without recourse." 180. The fact that a note is assigned without recourse casts no suspicion upon the holder's title. Dollar Sav. & T. Co. v. Crawford, 33: 587, 70 S. E. 1089, 69 W. Va. 109. 181. The offer for sale by a comparative stranger residing out of the state, to an in- dividual, of a note indorsed by him "with- out recourse," which had been procured from the maker by fraud, at a place other than that of the residence of the maker, in whose vicinity are several banks, is a cir- cumstance calculated to arouse suspicion in the mind of a prudent person, so that his purchase without inquiry may destroy his bona fides, and prevent his enforcing the note against the maker. Mee v. Carl- son, 29: 351, 117 N. W. 1033, 22 S. D. 365. ( Annotated ) 182. The purchaser of a note from an indorser who indorses "without recourse" may be found not to have fulfilled his duty in merely inquiring as to its validity from his indorser, so as to entitle him to hold the maker thereon, where the instrument was obtained from the maker by fraud, and he obtained it at a tempting discount. Mee v. Carlson, 29: 351, 117 N. W. 1033, 22 S. D. 365. Taken from trustee. 183. The indorsement by a trustee, de- scribing himself as such, of interest-bear- ing certificates of deposit payable to him as trustee, prima facie and presumptively fixes a purchaser with actual knowledge of the trustee's want of authority to dispose of the paper for his own benefit, within the meaning of the section of the negotiable instruments law which provides that, to constitute notice of infirmity in the instru- ment or defect in the title, there must be actual knowledge of such infirmity or de- fect, at least where the certificates are not due, and the interest is payable only at maturity. Ford v. Brown, i: 188, 88 S. W. 1036, 114 Tenn. 467. (Annotated) 184. The word "trustee," added to the payee's name in a written instrument, is sufficient to put a purchaser upon inquiry as to all the terms and conditions under which it may have been executed, and, in the absence of such inquiry, knowledge thereof will be presumed. McLeod v. De- spain, 19: 276, 90 Pac. 492, 49 Or. 536. Taken, from officer of corporation. 185. One taking the note of a corpora- tion, executed by its president to his own Digest 1-52 L.R.A.(N.S.) order, and used in payment of his individual debt, is not a bona fide holder, and cannot enforce it against the corporation. Kenyon Realty Co. v. National Deposit Bank, 31: 169, 130 S. W. 965, 140 Ky. 133. (Annotated) For maker's accommodation. 186. One discounting a draft for the ac- ceptor is charged with notice that it was drawn for his accommodation. Cook v. American Tubing & Webbing Co. 9: 193, 65 Atl. 641, 28 R. I. 41. 187. That drafts accepted by a firm were indorsed and deposited by one of the part- ners does not relieve the bank of notice that they were drawn for accommodation, where it had notice that the discount was for the benefit of the firm, and the proceeds were drawn on firm account. Cook v. American Tubing & Webbing Co. 9: 193, 65 Atl. 641, 28 R. I. 41. 3. Taken as collateral security or 'for antecedent debt. (See also same heading in Digest L.R.A. 1-10.) See also supra, 123, 165. 188. A payee who takes a note for past indebtedness, in which a blank has been wrongfully filled out, is not a holder in due course, within the meaning of the section in the negotiable instruments law requiring blanks to be filled according to instructions, but providing that, if such an instrument, after completion, is negotiated to a holder in due course, he may enforce it as if it had been filled up strictly in accordance with the authority given. Vander Ploeg v. Van Zuuk, 13: 490, 112 N. W. 807, 135 Iowa, 350. (Annotated) Taken as collateral security. 189. One taking negotiable paper as col- lateral for a newly incurred or pre-existing indebtedness is entitled to protection as an innocent holder. Miles v. Dodson, 50: 83, 144 S. W. 908, 102 Ark. 422. 190. The indorsee before maturity of a promissory note as collateral security for an existing debt is entitled to the rights of a holder for value. Exchange Nat. Bank v. Coe, 31 : 287, 127 S. W. 453, 94 Ark. 387. (Annotated) 191. The holder of a negotiable note ex- ecuted as collateral security for an ante- cedent debt, which has been extended on account of the giving of such collateral, re- tains the same unaffected by equities be- tween the original parties of which he had no notice. Farmers' Nat. Bank v. McCall, 26: 217, 106 Pac. 866, 25 Okla. 600. 192. One who renews his note to a bank without requiring a surrender of the old one, which has been pledged by the bank as collateral, may be compelled to pay both notes if the new one is pledged to another bank which takes it without notice. Citi- zens' Bank v. Weakley, n: 598, 103 S. W. 249, 126 Ky. 169. 193. One taking negotiable paper as a BILLS AND NOTES, VI. a, b. 291 substitute for other securities held as col- 1 lateral for a debt which he surrenders at the time is a holder for value. Voss v. Cham- i berlain, 19: 106, 117 N. W. 269, 139 Iowa, 569. 194. One taking a pledge of negotiable pa- per from a bank official as collateral for his own debt is not bound to show diligence in ascertaining the official's right to the paper as against the payee who has in- dorsed it in blank and left it in a recep- tacle in the bank for safe-keeping, under a statute providing that the rule that, when it is shown that the title of any person who has negotiated such paper was defect- ive, the burden is on the holder to prove title acquired in due course, does not apply in favor of a person who became bound on the instrument prior to the acquisition oi defective title. Voss v. Chamberlain, 19: 106, 117 N. W. 269, 139 Iowa, 569. 195. The substitution by a bank of prom- issory notes of a third person as security for the debt of its customer, in lieu of other collateral, which it releases to the customer, renders it a purchaser for value. Zollman v. Jackson Trust & Sav. Bank, 32: 858, 87 N. E. 297, 238 111. 290. VI. Actions and defenses; maturity; extension and renewal. a. In general; right of indorse)' to sue. (See also same heading in Digest L.R.A. 1-70. j First objecting on appeal to form of action, see APPEAL AND ERROR, 756. Waiver of objection to pleading, see APPEAL AND ERROR, 821. Complaining for first time on appeal of fail- ure to prove presentment and notice, see APPEAL AND ERROR, 772. Common counts in action against indorser, see ASSUMPSIT, 6. Authority of attorney to enter retraxit in suit on, see ATTORNEYS, 49. Limitation of time for suit on, see CON- FLICT OF LAWS, 149, 151, 152; LIMI- TATION OF ACTIONS. Foreign corporation's right to sue on, see CORPORATIONS, 443. Including attorney's fees provided for in note in determining amount in contro- versy, see COURTS, 236, 237. Injunction to restrain action on note in other state, see COURTS, 288. Presumption and burden of proof, see EVI- DENCE, 197, 274, 279-281, 315. Presumption from taking new note, see EVI- DENCE, 585, Presumption of ownership from production of non-negotiable note at trial, see EVI- DENCE, 631. Evidence in action on note, see EVIDENCE, 1204, 1248, 1257, 1268, 1663, 1816, 1934. Prejudicial error in exclusion of evidence, see APPEAL AND ERROR, 1225. Variance between pleading and proof in ac- tion on, see EVIDENCE, 2468. Digest 1-52 L.R.A.(N.S.) Effect of decree in injunction suit to pre- vent collection of notes on right to bring action at law, see JUDGMENT, 87. Confession of judgment on, see JUDGMENT, 7, 8. Conformity of judgment to proof in action on, see JUDGMENT, 45. Who is real party in interest entitled to sue on promissory note, see PARTIES, 54. Action by agent on notes, see PARTIES, 63. Assignee's right to sue on note, see PARTIES, 99, 100. Effect of assignment on indorser's right to sue, see PARTIES, 101, 102. Necessary parties to cross petition by mak- er for seller's breach of warranty, see PARTIES, 168. Joint judgment against maker and indor- sers of paper, see PARTIES, 196. Pleading in action on, see PLEADING, 8, 13, 61, 131, 163, 170, 223, 244-249. Defendant's pleading, see PLEADING, 479, 480. Right of maker to maintain cross bill in action on, see PLEADING, 541. Set-off in action on, see SET-OFF AND COUN- TERCLAIM, I. a, 3, 25, 26, 34, 37. Estoppel to plead set-off in suit on note, see ESTOPPEL, 108. Proving genuineness of, in rebuttal, see TRIAL, 31. Sufficiency of evidence to go to jury, see TRIAL, 114, 119. Questions of law and fact, see TRIAL, 30 ', 307. Direction of verdict, see TRIAL, 737-740. Demurrer to evidence, see TRIAL, 791. Instructions in action on, see TRIAL, 847, 848, 942, 1017-1019. Prejudicial error in refusal of instruction, see APPEAL AND ERROR, 1417. Conflict of findings as to time of payment of, see TRIAL, 1138. Competency of witnesses, see WITNESSES, 42, 62. b. Maturity; extension; renewal. (See also same heading in Digest L.R.A. 1-70.) Effect of uncertainty as to maturity on ne- gotiability, see supra, I. d, 2. Rights of one taking assignment of note after maturity, see supra, 126-130. 196. A note payable on demand is due within a reasonable time after its date. McAdams v. Grand Forks Mercantile Co. 47: 246, 140 N. W. 725, 24 N. D. 645. 197. Sixty-four days is not an unreason- able time within which to elect to declare the maturity of notes for default in pay- ment of interest which is payable semi- annually. Lovell v. Goss, 22: mo, 101 Pac. 72, 45 Colo. 304. Extension and renewal. Consideration for, see supra, 34-36. Acceptance by bank of qualified indorse- ment on renewal of note, see BANKS, 23. 292 BILLS AND NOTES, VI. c. Estoppel in suit on renewal note to set up forgery of original, see ESTOPPEL, 230. Failu.'e to recover on renewal note set out in one count as bar to recover on orig- inal set out in another, see PLEADING, 8. Plea of mutual mistake in giving renewal note, see PLEADING, 635. Effect of, to release pledge, see PLEDGE AND COLLATERAL SECURITY, 14. Loss of collateral by treating note secured as itself collateral for new note for same debt, see PLEDGE AND COLLATERAL SECURITY, 14. Ratification by payee of act of agent in ob- taining renewal note, see PRINCIPAL AND AGENT, 86. Extension of time for payment of note as discharging sureties, see PRINCIPAL AND SURETY, 43-56. Renewing notes as affirmance of contract, which will preclude defense of fraud, see SALE, 217. Usury in renewal note, see USURY, 26. See also infra, 210. 198. The character of a debt represented by a note given without authority is not changed by renewals of the note. Luther v. Wheeler, 4: 746, 52 S. E. 874, 73 S. C. 83. 199. The giving of a renewal note has no effect, in the absence of an agreement there- for, to discharge either the makers or in- dorsers of the original obligation, if for any reason not chargeable to the wrong or fraud of the holder, the renewal proves to be in- valid. Farmers' Sav. Bank v. Arispe Mer- cantile Co. 23: 889, 117 N. W. 672. 139 Iowa, 246. 200. An agent who takes up a past-due note with money furnished by the maker cannot give such note validity, as a nego- tiable instrument, by indorsing thereon an extension of time, so as to render one to whom it has been fraudulently reissued by such agent a bona fide holder. Thiel v. Butker, 28: 1065, 51 So. 500, 125 La. 473. 201. The maker of a promissory note which has been fraudulently reissued after maturity by an agent, after payment thereof with funds furnished by the maker, is not liable on the dishonored paper, provided he has acted in good faith. Thiel v. Butker, 28: 1065, 51 So. 500, 125 La. 473. 202. A conditional vendor of chattels who reserves title until payment of the purchase money waives it in favor of an intervening mortgage from the vendee, who had paid enough to give him an interest to mortgage, by taking a renewal note for the unpaid purchase money without reserving title at the time he does so. Thornton v. Findley, 33: 491, 134 S. W. 627, 97 Ark. 432. (Annotated) c. Defenses. (See also same heading in Digest L.R.A. 1-70.) Intoxication as defense, see supra, 13-16. As to consideration, see supra, I. c. Digest 1-52 L,.R.A.(N.S.) As to discharge of indorser, see supra, III. c. As to notes transferred or assigned, see xupra, V. Who may set up defense in action on, see ACTION OR SUIT, 45. Alteration of, see ALTERATION OF INSTRU- MENTS, II. Plea of nan est factum, see APPEAL AND ER- KOK, 1380. Power to assign note free from defense in hands of original holder, see ASSIGN- MENT, 33. Validity of note given for services of un- licensed person, see CONTRACTS, 421. Defense of duress, see DURESS, 8. Effect of statute forbidding deficiency judg- ment on note secured by mortgage, see ELECTION OF REMEDIES, 2. Estoppel by negligence, see ESTOPPEL, 184- 191. Estoppel in suit on renewal note to set up forgery of original note, see ESTOPPEL, 236. Burden of proof as to mortgage securing several, see EVIDENCE, 670. Breach of parol warranty as defense to ac- tion on note, see EVIDENCE, 94.1. Evidence of contemporaneous parol agree- ment in action on, see EVIDENCE, 949. Secret advantage to one of several joint purchasers as defense in action on note, see FRAUD AND DECEIT, 28. Right of accommodation maker of note to defeat action against himself because judgment has been taken against co- maker, see JUDGMENT, 207. To action on judgment of other state, see JUDGMENT, 285, 292. Allowance of counterclaim against one of several notes as preventing use of same counterclaim in defense of action on another note, see JUDGMENT, 189. When statute of limitations begins to run, see LIMITATION OF ACTIONS, 124, 131. When action is barred by statute of limita- tions, see LIMITATION OF ACTIONS, 310, 315, 317-324, 329. Effect of payment or promise on running of limitations, see LIMITATION OF AC- TIONS, 310, 315, 317-324, 350, 351. Supplemental pleading to set up defense, see PLEADING, 131. Necessity of pleading, see PLEADING, 479. Sufficiency of allegations as to, see PLEAD- ING, 525.. 529, 530. Sufficiency of plea as against uemurrer, see PLEADING, 635. Collateral security for, see PLEDGE AND COL- LATERAL SECURITY, 27. Defense of sureties, see PRINCIPAL AND SURE- TY. Making of, on Sunday, see SUNDAY, 22, 27. Usury as defense, see USURY, II. See also supra, 97, 201. 203. Delay in enforcing a note against one maker has no effect to release a co- maker, although he signed out of accommo- dation to the principal debtor. Petty v. Gacking, 33: 175, 133 S. W. 832, 97 Ark. 217. BILLS AND NOTES, VI. c. 293 204. The maker of a promissory note may defeat an action thereon by the original payee by showing that it was executed as a premium for a life insurance policy, and that neither policy nor note was to be valid unless the payee secured for the mak- er a loan upon the policy, which was not done. Smith v. Dotterweich, 33: 892, 93 X. E. 985, 200 N. Y. 299. 205. One not an officer or director of a national bank, who executes to it a note in furtherance of a scheme to deceive the bank examiner, will not be permitted, after tlie bank has passed into the hands of a re- ceiver, to set up in defense of his liability thereon an agreement that he should not be held liable. Lyons v. Benney, 34: 105, 79 Atl. 250, 230 Pa. 117. (Annotated) Fraud. As against transferees, see supra, 135, 146- 150, 181, 182. Fraud in inducing signing of note without reading, see CONTRACTS, 775. Affirmance of contract which will preclude defense of fraud, see SALE, 217. Sufficiency of evidence to take defense of fraud to jury, see TRIAL, 114. 206. One induced by fraud to- sign a promissory note which is represented to be merely a part of a contract of a different nature, which he intends to sign, and which is so concealed that its true character is not discovered, is not liable thereon, at least to one not a bona fide holder, in the absence of such negligence on his part as will estop him from asserting his defense. Hulett v. Marine Sav. Bank, 4: 1042, 106 N. W. 879, 143 Mich. 219. 207. Breach by the payee 9f an agreement not to negotiate a promissory note until the happening of a certain event is a fraud up- on the maker. McKnight v. Parsons, 22: 718, 113 N. W. 858, 136 Iowa, 390. 208. In the absence of any proof that the signer of a subscription note sued upon, is unable to read, an answer which admits the execution thereof, but alleges misrepresen- tations by the person procuring it concern- ing the conditions and the extent of the lia- bility to be incurred by the maker, does not constitute a sufficient defense, where the terms of the note are plain and unambigu- ous. Guthrie & W. R. Co. v. Rhodes, 21: 490, 91 Pac. 1119, 19 Okla. 21. 209. An agent of an insurance company who procures an illiterate person to take out a policy of insurance on his life, at the time representing that he would procure a policy of a particular kind, and who after- wards ob'tains tlie issuance of a policy vary- ing materially from the one promised and agreed upon, which substituted policy is received and retained by the holder for a period of five months before discovery of the fraud, but which is then promptly re- turned to the agent, cannot recover on the note given him for the premium on the policy contracted for, where the holder of the policy relied upon the representations and promises made at the time the contract for the policy was made. Summers v. Alex- ander, 38: 787, 120 Pac. 601, 30 Okla. 198. Digest 1-52 L.R.A.(N.S.) 210. The execution of renewal notes be- fore discovery that the execution of the original notes was induced by the fraud of the payee does not constitute a waiver of that fraud. Gilpin v. Nettograph Ma- chine Co. 29: 477, 108 Pac. 382, 25 Okla. 408. Payment or extinguishment. To whom payment may be made, see PAY- MENT, 16-18. Place of payment, see PAYMENT, 24. See also supra, 81. 210a. A stranger who pays the amount of a note and receives a delivery of it to him- self will be held to be a purchaser until an intention to the contrary appears. John- ston v. Schnabaum, 17: 838, 109 S. W. 1163, 86 Ark. 82. 211. Although a note reduced to judg- ment is merged therein, and cannot be made the basis of a subsequent action, the merger and extinguishment thereof neither discharges the debt nor extinguishes a mort- gage securing the note. Rossiter v. Merri- man, 24: 1095, 104 Pac. 858, 80 Kan. 739. Waiver of limitations. 212. No waiver of the right to reiy on the statute of limitations to bar a recov- ery on a note is shown by a written state- ment of nonintention to rely upon it, accom- panied by an offer of a new note to renew the obligation, if the holder refuses to ac- cept it. Gray v. Day, 43: 535, 84 Atl. 1073, 109 Me. 492. Want or failure of consideration. Effect of, on rights and liabilities of trans- feree, see supra, 133-137, 146. Burden of proving consideration, see EVI- DENCE, 279. Burden of proving absence or failure of con- sideration, see EVIDENCE, 588, 589. Admissibility of evidence on question of, see EVIDENCE, 1663, 1934. Necessity of pleading failure of considera- tion, see PLEADING, 479. Sufficiency of allegations as to, see PLEAD- ING, 529. 213. Want of consideration is a defense to the enforcement of a note by the payee against the maker, although it purports on its face to have been given for value re- ceived. State Bank v. Forsyth, 28: 501, 108 Pac. 914, 41 Mont. 249. 214. Payment of a promissory note can- not be avoided on the ground of failure of consideration, where the answer and proofs admit that there was not a total failure of consideration and that the maker in fact received and retains a part of the agreed consideration. Daniels v. Englehart, 39: 938, 111 Pac. 3, 18 Idaho, 48. (Annotated) 215. The maker of a note as to which there has been a parfial failure of consid- eration, in order to obtain relief, must either rescind the contract and return the consideration received, or claim damages for breach of the contract, or pursue some remedy whereby the holder of the note may be enabled to receive just compensation for the part of the consideration which actu- 294 BILLS OF DISCOVERY BILLS OF LADING. ;illy passed. Daniels v. Englehai":, 39: 938, 111 Pac. 3, 18 Idaho, 548. 216. The maker of a negotiable note exe- cuted in consideration of an executory contract for the ' sale of goods may defeat or limit, on the theory of failure of con- sideration, in whole or in part, the amount of the recovery thereon in an action brought against him by the payee after maturity, by proving, in case the title to the prop- erty purchased passed, a total unexcused nonperformance on the part of the vendor of his contract to deliver the property, or loss on the part of the vendee of the benefit of the contract, occasioned by want of title in the vendor; or, where the title did not pass at the time of making the contract, by proving a refusal of the vendee to accept the property, and notice of his intention not to do so, before the title passed. Acme Food Co. v. Older, 17: 807, 61 S. E. 235. 64 W. Va. 255. 217. One who. to release an attachment of his automobile for a repair bill gives his promissory note for the amount of the bill, cannot, in a suit on the note, set up a failure of consideration because the re- pairs were not properly made. Kendall v. Rossi, 45: 985, 87 Atl. 186, 35 R. I. 451. 218. In case a note is given for the good will of a business and the agreement of the sellers not to compete for a certain time with the buyer, the consideration is severa- ble ; and a breach by entering into a compet- itive business does not destroy a right of action on the note. Bradford v. Montgom- ery Furniture Co. 9: 979, 92 S. W. 1104, 115 Tenn. 610. 219. Enforcement cannot be had of a note given for the purchase price of realty, "subject to the clearing of the title" to lots which were held by tax deed, although the grantor had a good title, if an action to quiet the title failed as to one of the lots. Pease v. Globe Realty Co. 42:6, 119 X. W. 975, 141 Iowa, 482. 220. No recovery can be had by the payee upon a note given for the purchase price of a patent right, if the patented article is not reasonably suited to the uses for which it was made. Nettograph Machine Co. v. Brown, 34: 737, 114 Pac. 1102, 28 Okla. 436. Illegal consideration. As against transferees, see supra, 154-156. Estoppel to set up illegal consideration, see ESTOPPEL, 168, 169. Parol evidence as to, see EVIDENCE, 990, 991. Evidence of admission as to nature of con- sideration, see EVIDENCE, 1248. Sufficiency of allegations as to, see PLEAD- ING, 525. 221. One advancing money upon a note is not estopped to recover upon the note by the fact that the money was used to corrupt voters at an election, if he did not know that the money was to be so used. Hale v. Har- ris, 5: 295, 91 S. W. 660, 28 Ky. L. Rep. 1172. 222. A note given for the purchase price of fertilizer sold without inspection and registration cannot be enforced by the Digest 1-52 L.R.A.(N.S.) payee where the statute makes a sale of fertilizer, under such circumstances, a mis- demeanor. Florence Cotton Oil Co. v. An- gliii, 43:1109, l.->2 S. W. 295, 105 Ark. 672. ( Annotated ) BILLS OF DISCOVERY. See DISCOVERY AND INSPECTION. BILLS OF EXCEPTION. On appeal, see APPEAL AND EKROB, IV. o. BILLS OF EXCHANGE. Payment by bank of forged bill of exchange, see BANKS, 113. Parol evidence to show relation of parties to, see EVIDENCE, 1000. In general, see BILLS AND NOTES. BILLS OF LADING. Charging more than amount fixed by, see CARRIERS, 874-876. Penciled memorandum on, that horses are to be unloaded for feeding at certain places, see CARRIERS, 888. Rights of holder of, against carriers, see CARRIERS, III. Parol evidence to vary terms of, see EVI- DENCE, 922. Effect of mailing of bill of lading as a de- livery of goods sold, see SALE, 33. Instruction in action for losses due to is- suance of fictitious bills of lading, see TRIAL, 1009. Recovery back of amount paid on draft attached to, see ASSUMPSIT, 36. Effect of paying draft, with bill of lading attached on forged indorsement, see BILLS AND NOTES, 75. With draft attached, place of sale of prop- ertv shipped under, see CONFLICT OF LAWS, 112, 113. With draft attached, opinion evidence as to seller's intention, see EVIDENCE, 1158. Garnishment of proceeds of draft attached to bill of lading for goods sold, see GARNISHMENT, 1, 56. Criminal liability of collector of draft at- tached to bill of lading for liquor, see INTOXICATING LIQUORS, 97. With draft attached, reservation of title in consignor, see SALE, 22. Attached to draft, see also BILLS AND NOTES, 10. 1. A bill of lading does not occupy the position of a bill of exchange or other com- mercial paper. Franklin Trust Co. v. Phi la- BILLS OF LADING. 205 delplua, B. W. & R. Co. 22: 828, 70 Atl. 949, 222 Pa. 90. Negotiability and transfer. 2. Under an agreement by which a bank is to discount drafts for the purchase price of commodities sold, to which are attached the bills of lading, credit the seller with a certain percentage of the price, and retain the balance to cover interest and expenses, crediting the unused balance to the seller, the title to the property covered by the bill of lading passes to the bank wlit-u the discount occurs and the bill of lading is transferred, so that it is no longer subject to attachment for the seller's debts. Ameri- can lliresherman v. De 1 amble Motors Co. 49: 644, 141 N. W. 210, 154 Wis. 366. (Annotated) 3. The drawee in a draft against a bill of lading which has been credited by a bank to the drawer upon transfer of the bill of lading to the bank, and checked against, cannot, upon paying it and receiv- ing the bill of lading, attach the proceeds for the recovery of a claim against the drawer, since the title thereto is in the bank. Ladd & Tilton Bank v. Commercial State Bank, 49: 657, 130 Pac. 975, 64 Or. 486. ( Annotated ) 4. A state statute providing that "all . . . bills of lading . . . issued . . . by any . . . railroad . . . company shall be negotiable by written in- dorsement thereon and delivery in the same manner as bills of exchange and 'promis- sory notes," enacted in a state in which such bills of lading are already negotiable in the sense of being transferable by in- dorsement and delivery so as to enable an assignee to sue in his own name, makes such bills of lading negotiable in the stricter meaning of the term, so that a railroad company is bound by such a bill of lading which has passed into the hands of an innocent purchaser, although no goods were in fact received by it. Sealy v. Missouri, K. & T. R. Co. 41: 500, 114 Pac. 1077, 84 Kan. 479. Rights and liabilities of transferee. Validity of statute making statements in, conclusive in favor of bona fide holder, see COMMERCE, 75; CONSTITUTIONAL LAW, 626. Change of rule as to liability of assignee of bill of lading as security for draft, see COUBTS, 301. Burden of explaining alterations in, see EVIDENCE, 603. Garnishment of proceeds of draft with bill of lading attached, see GARNISHMENT, 1. Right of transferee who is to be notified of arrival of goods consigned to anoth- er to maintain action against carrier, see PARTIES, 8. 5. A railroad company cannot escape the effect of a statute making the acknowledg- ment of the receipt of property for trans- portation, contained in a bill of lading, conclusive evidence of the fact in favor of bona fide holders thereof, by placing upon such bills the statement that the weights Digest 1-52 L.R.A.(N.S.) are subject to correction. Yazoo & M. V. R. Co. v. Bent, 22: 821, 47 So. 805, 94 Miss. 681. 6. The rule that a railroad company is bound by a bill of lading which has passed into the hands of an innocent purchaser, although no goods were in fact received by it, is not altered by the fact that a statute makes it a criminal offense for any agent of a railroad company to issue a bill of lading unless the goods have ac- tually been received. Sealy v. Missouri, K. & T. R. Co. 41:500, 114 Pac. 1077, 84 Kan. 479. (Annotated) 7. A bill of lading issued by a carrier which actually receives goods from the shipper is conclusive in favor of the con- signee to whom it is transferred for value, that the carrier received the quantity called for therein. Thomas v. Atlantic C. L. R. Co. 34: 1177, 64 S. E. 220, 67 S. E. 908, 85 S. C. 537. (Annotated) 8. An assignee of a bill of lading as col- lateral security for a draft upon the con- signee of property represented by it, which he discounts, is not liable for breach of war- ranty by the consignor in the sale of the property. Mason v. Nelson, 18: 1221, 62 S. E. 625, 148 N. C. 492. (Annotated) 9. That the holder of a bill of lading which he has taken as collateral security for a draft on the consignee of the property, which he has discounted, refus'es to permit the consignee to examine the goods without paying the draft, does not bring him under the obligations of the contract, so as to render him liable for breach of warranty in the sale. Mason v. Nelson, 18: 1221, 62 S. E. 625, 148 N. C. 492. 10. Where the seller of goods ships them and makes a draft upon the purchaser, with the bill of lading attached, one who buys the draft and receives payment thereof from the drawee is not liable for the return of any portion of the proceeds on account of any defect in the quality of the goods; and it is immaterial that the draft was bought in reliance upon a written guaranty of its payment, in which the bill of lading was described as covering goods of a designated quality. Central Mercantile Co. v. Okla- homa 'State Bank, 33=954, U2 Pac. 114, 83 Kan. 504. 11. The purchase of a draft attached to a bill of lading does not transfer title to the goods, so as to render the purchaser of the draft responsible upon the contract in accordance with which the property was shipped. Lewis v. W. H. Small & Co. 6: 887, 96 S. W. 1051, 117 Tenn. 153. 12. A bank which purchases a draft with bill of lading attached making the goods deliverable to the order of the consignor assumes the obligation of the seller to de- liver, according to contract, the property represented by the bill of lading, to the drawee of the draft. Haas v. Citizens' Bank, i: 242, 39 So. 129, 144 Ala. 502. (Annotated) 13. Payment of a draft which is drawn for the price of goods, and attached to the bill of lading, to the bank which has .pur- 296 BILLS OF PARTICULARS BISHOP. chased it, does not absolve the bank from its duty to deliver the property represented by the bill of lading. Haas v. Citizens' Bank, i: 242, 39 So. 129, 144 Ala. 562. 14. The mere fact that a bank, in pur- chasing draits with bills of lading attached, stamped upon some of them a clause absolv- ing itself from liability for the property covered by the bills of lading, does not indi- cate an intention to assume such liability as to drafts not so stamped. Lewis v. W. 11. Small & Co. 6: 887, 96 S. W. 1051, 117 Tenn. 153. 15. One who pays a draft draAvn upon him with his authorization, in the belief that a forged bill of lading attached thereto is genuine, must bear the loss, and is not entitled to recover the amount of the draft from a bank which discounted it and then forwarded it for collection. Varney v. Mon- roe Nat. Bank, 13:337, 44 So. 753, 119 La. 943. 16. A bank that receives, without notice or suspicion of wrongdoing, a draft from the drawer for collection, and, after obtaining payment of it from the drawee, pays the proceeds over to the drawer in good faith, is not liable to the drawee in damages, al- though the latter made payment without consideration and in reliance upon a forged bill of lading which the drawer had attached to and caused to be forwarded with the draft. Nebraska Hay & G. Co. v. First Nat. Bank, 9: 251, 110 N. W. 1019, 78 Neb. 334. 17. A bank which discounts a draft with bill of lading attached is not, in the absence of bad faitn, answerable to the drawee ior the performance of the consignor's contract. HawKins v. Alfalfa Products Co. 44: 600, 153 S. W. 201, 152 Ky. 152. 18. A bank which, as indorsee and inno- cent holder for value of a draft with bill of lading attached, but not mentioned in the draft, collects the same from the drawee, is not bound to return the proceeds if the bill of lading proves to be forged, although the drawee relies more or less upon it in making the payment. Springs v. Hanover Nat. Bank, 52: 241, lOb N. E. 156, 209 N. Y. 224. (Annotated) 19. A bank which cashes a draft in its favor, with bill of lading attached, is not liable to the consignee who pays the draft upon presentation, for shortage or inferior- ity of quality in the shipment. Cosmos Cotton Co. v. First Nat. Bank, 32: 1173, 54 So. 621, 171 Ala. 392. (Annotated) BILLS OF RIGHTS. See CONSTITUTIONAL LAW. BILLS OF PARTICULARS. See PLEADING, I. i. BILLS OF REVIEW. See REVIEW. Digest 1-52 L.R.A.(N.S.) BINDING. Statute requiring all county binding to be done within county, see COMMERCE, 7; CONSTITUTIONAL LAW, 454; CON- TRACTS, 802. Mandamus to compel award of state bind- ing to bidder, see MANDAMUS, 28. BINDING SLIP. Effect of false representations in applica- tion for insurance on binding slip, see INSURANCE, 314. BIPARTISAN COMMISSION. "Validity of statute providing for, see CON- STITUTIONAL LAW, 173, 174. BIRDS. See GAME AND GAME LAWS. BIRTH. Evidence on question of, see APPEAL AND EBROB, 1166. Validity of statute as to registration of, see CONSTITUTIONAL LAW, 638. Equitable jurisdiction to cancel certificate of, see EQUITY, 82, 83. Proof of, by general repute, see EVIDENCE, 2212. Injunction against use of fraudulent cer- tificate of, see INJUNCTION, 103, 174. Revocation of will by birth of child, see WILLS, 56, 57. BIRTH CERTIFICATE. Injunction against wrongful use of, see INJUNCTION, 103, 174. BISHOP. Liability of bishop having spiritual au- thority over school from which child is kidnapped, for refusal to coerce confes- sion from school authorities, see AB- DUCTION AND KIDNAPPING, 4. BITCH BLASTING. 297 BITCH. Actionability of charge of being, see LIBEL AND SLANDER, 39. BLACKBOARDS. Blackboard announcements as to trains, see CARRIERS, II. n. In bucket shop as gambling device, see CON- TRACTS, 594. BLACKLISTING. Presumption of injury from, see EVIDENCE, 321. Evidence in action for, see EVIDENCE, 1367, 2322. Charge of, as libel, see LIBEL AND SLANDER, 20. Libel by, see LIBEL AND SLANDER, 121. Liability for, of persons subsequently com- ing into business, see PARTNERSHIP, 32. As to extortion, see EXTORTION. See also MASTER AND SERVANT, 899. 1. The provision of Minn. Rev. Laws 1905, 5097, declaring it unlawful for two or more employers of labor to combine or confer together for the purpose of prevent- ing any person from procuring employment, applies to employers as a class, operates equally upon all, and therefore is not ob- noxious to constitutional principles. Joyce v. Great Northern R. Co. 8:756, 110 N. W. 975, 100 Minn. 225. 2. If one employer by conference with another employer prevents, without excuse or justification and with a malicious motive or purpose, a third person from procuring employment with such other employer, he is liable for damages under Minn. Rev. Laws 1905, 5097, providing that it shall be un- lawful for any two or more employers to combine or confer together for the purpose of preventing any person from obtaining em- ployment. Joyce v. Great Northern R. Co. 8: 756, 110 N. W. 975, 100 Minn. 225. 3. The acts of a railroad company whereby another company is induced to re- fuse employment to a track repairer, except upon the condition that he release the form- er company from all claim for damages on account of an injury sustained, are in vio- lation of Minn. Rev. Laws 1905, 5097, forbidding employers of labor from combin- ing or conferring together for the purpose of preventing any person from procuring employment, and, if unexplained by matters in justification, constitute an actionable tort. Joyce v. Great Northern R. Co. 8: 756, 110 N. W. 975, 100 Minn. 225. 4. The blacklisting of discharged em- ployees by a combination of employers is not actionable without proof of damage. Willner v. Silverman, 24: 895, 71 Atl. 962, 109 Md. 341. 5. The circulation of a letter by an Digest 1-52 L.K.A.(N.S.) employer who has discharged an employee, through the instrumentality of an organiza- tion of employers of which the employer is a member, which does not state the cause of the discharge with strict accuracy, but which requests the association to refuse employment to the discharged employee, "as we would like to make an example of him," is actionable if damage results therefrom. Willner v. Silverman, 24: 895. 71 Atl. 962, 109 Md. 341. BLACKMAIL. As to extortion, see EXTORTION. BLANKET BALLOT. Discrimination in, see ELECTIONS, 37. BLANKS. Necessity of reacknowledgment after filling blank in deed, see ACKNOWLEDGMENT, 9. Alteration of instrument by filling blanks, see ALTERATION OF INSTRUMENTS. 7, 8, 21, 22. In notes, see BILLS AND NOTES, 4, 118, 188; EVIDENCE, 828. Filling blanks in bond, see BONDS, 4. Presumption of authority to fill, see EVI- DENCE, 169. In sealed instrument, presumption as to intent to fill, see EVIDENCE, 229. In mortgage, see MORTGAGES, 19. Right of innocent purchaser as against one executing deed in blank, see RECORDS AND RECORDING LAWS, 45. BLASPHEMY. As to profanity, see PROFANITY. BLASTING. Action on the case for injuries to buildings by, see CASE, 22. Punitive damages for injury by, see DAM- AGES, 67. Death resulting from fright caused by, see DEATH, 41. Injury to property by, as a taking for pub- lic use, see EMINENT DOMAIN, 183, 187. Destruction of well by, see EVIDENCE, 1073; PROXIMATE CAUSE, 29; TRIAL, 87. Relevancy of evidence as to negligence in, see EVIDENCE, 1808. Injuries resulting from fright t caused by, see FRIGHT, 4. Negligence aa to, causing injury on high- way, see HIGHWAYS, 205. 298 BLINDNESS. Wife's right of action .for injury to prop- erty and health by, see HUSBAND AND WIFE, 174. Injunction against, see INJUNCTION, 175. Injury from discharge of automatic fire extinguisher caused by, see INSURANCE, 685. Duty of master to inspect after blasting, see MASTER AND SERVANT, 441. Injury to servant by, see MASTER AND SERVANT, 233, 234, 457, 511, 516, 563, 564, 787, 792; TRIAL, 498, 528. Liability for negligence of independent con- tractor in, see MASTER AND SERVANT, 998, 1014-1016. Liability of municipality for damages caused by, see MUNICIPAL CORPORA- TIONS, 345-348. As nuisance, see NUISANCES, 53. Question for jury as to negligence in, see TRIAL, 127, 473. Injury to person or property on ad- joining land. 1. Negligence need not be shown to ren- der one who uses upon hisj own premises such heavy charges of explosives in blast- ing that he destroys his neighbor's well, liable for the injury. Patrick v. Smi^h, 48: 740, 134 Pac. 1076, 75 Wash. 407. 2. That persons who destroyed a neigh- bor's well by blasting were engaged in con- structing a roadbed for a railroad does not relieve them from liability for the in- jury, if it does not appear that the grading operations necessarily interfered with the water which supplied the well. Patrick v. Smith, 48: 740, 134 Pac. 1076, 75 Wash. 407. 3. One engaged in blasting on his own property is not liable for injury to a black- smith employed on neighboring property, by the plunging of a horse which he is at- tempting to shoe when frightened by a blast, of which the blacksmith had not been notified, although upon his request the for- mer had been accustomed to notify him when a blast was to be exploded, so that he might protect himself. Hieber v. Central Kentucky Traction Co. 36: 54, 140 S. W. 54, 145 Ky. 108. (Annotated) 4. Negligence need not be shown to ren- der one blasting in a tunnel liable for in- juries to the buildings on neighboring prop- erty through vibration caused by the blasts, although no material is thrown upon the property, so that there is no actual break- ing of the close. Hickey v. McCabe, 27: 425, 75 Atl. 404, 30 R. I. 346. (Annotated) 5. The casting by blasting operations necessary for the construction of a rail- road, of debris upon the remaining land of one from whom the corporation lias ac- quired a right of way, renders it liable in damages for the trespass, regardless of the negligence or skill with which it did the work. Langhorne v. Turman, 34: 211, 133 S. W. 1008, 141 Ky. 809. (Annotated) 6. That one attempting to use dynamite in blasting without smothering the blasts cannot foresee the exact consequences of his act does not absolve him from liability for an injury to an occupant of neighboring Digest 1-52 L.R.A.(N.S-) property, where the neighborhood is popu- lous, and he ought, in the exercise of ordi- nary care, to know that he is subjecting the occupants of the dwellings in the vicin- ity to danger. Kimberly v. Ilowland, 7: 545, 55 S. E. 778, 145 N. C. 398. 7. One engaged in blasting on his own property is not liable for injuries to a neigh- bor from mere concussion of the air, sound, or otherwise, unless the work was done neg- ligently, and the injury was the result of the negligence. Bessemer Coal, Iron, & Land Co. v. Doak, 12: 389, 44 So. 627, 152 Ala. 166. (Annotated) 8. A railroad company is not relieved from liability for injuries to adjoining property and the health of its occupants by blasting for its right of way, by the fact that it is a quasi public corporation authorized by the legislature to condemn, take, and use land for railroad purposes and works of public improvement, even if the work can be and is done without negli- gence. Gossett v. Southern R. Co. i : 97, 89 S. W. 737, 115 Tenn. 376. (Annotated) 9. Blasting which causes loud noises and unusual and unpleasant concussions of air, and renders adjoining property un- tenantable by reason of the fact that its occupants are inconvenienced, frightened, and made restless and that their health is affected, is a nuisance. Gossett v. South- ern R. Co. 1:97, 89 S. W. 737, 115 Tenn. 376. Criminal liability. 10. It is not necessary for a member of a partnership which is conducting a quar- rying business, to assent in his partnership capacity to the firing of a blast in viola- tion of a municipal ordinance, to render himself criminally liable for such violation. Spokane v. Patterson, 8: 1104, 89 Pac. 402, 46 Wash. 93. 11. Liability for violating a municipal ordinance against firing uncovered blasts is not avoided by the fact that the blast was intended for a spring shot rather than a blast proper, if the shot burst from the hole, hurling pieces of rock to a great dis- tance. Spokane v. Patterson, 8: 1104, 89 Pac. 402, 46 Wash. 93. 12. A person engaged in the general su- pervision of blasting is criminally liable for the firing of blasts contrary to the pro- visions of a municipal ordinance, although they are fired by his agent, contrary to his orders, at a time when he is not ac- tually present. Spokane v. Patterson, 8: 1104, 89 Pac. 402, 46 Wash. 93. BLINDNESS. Duty of carrier to blind passenger, see CAB- RIERS, 459-460b, 475. Exemption from taxation of institution for the blind, see TAXES, 96. Validity of statute providing for payment to blind persons of money raised by taxation, see TAXES, 36. BLINDS BOARDS OF EDUCATION. BLINDS. i BOARDS. 299 Injunction against erection of, for shooting purposes, see INJUNCTION, 49, 50; NUISANCES, 75. BLOODHOUNDS. Evidence of trailing with, see EVIDENCE, 1984-1988. Sufficiency of evidence that bloodhounds trailed from scene of crime to accused, to support his conviction, see EVIDENCE, 2356, .2357. Instructions on evidence of trailing of criminal by, see TRIAL, 941. BLOOD POISONING. Death of insured by, see INSURANCE, 746- 749. 755-763. Master's liability to servant for blood poi- soning resulting from injury, see MAS- TER AND SERVANT, 323. BOAR. Injury by, while trespassing, see ANIMALS, 25. Opinion evidence as to propensity to become vicious after certain age, see EVIDENCE, 1202. BOARD BILL. Imprisonment of one absconding without paying, see IMPRISONMENT FOR DEBT, 6. BOARDING HOUSE. Police power as to, see CONSTITUTIONAL LAW, 676, 681. Forbidding soliciting of business by, at rail- road stations, see CONSTITUTIONAL LAW. 688. Power of brewing corporation to construct boarding house, see CORPORATIONS, 54, 90. Homestead in property used for, see HOME- STEAD, 34. Liability of keeper of, for guest's property, see INNKEEPERS, 16. Liability of owner of building leased for, to occupants of rooms, see LANDLORD AND TENANT, 134. Rates for water supply to, see WATERS, 404, 405. Digest 1-52 L.R.A.(N.S.) Of freeholders, see BOARDS OF FREEHOLD- ERS. Of pardons, see BOARDS OF PARDONS. Of trade, see BOARDS OF TRADE. Of underwriters, see BOARDS OF UNDER- WRITERS. Of port commissioners, see BONDS, 11. Of county commissioners, see COUNTIES, II. d. Of dental examiners, see COURTS, 51; IN- JUNCTION, 312. Of medical examination, conclusiveness of findings of, on courts, see COURTS, 52. Of education, see BOARDS OF EDUCATION. Of health, see HEALTH, I. Of review of taxes, see TAXES, III. c. Exempting municipal boards from necessity for furnishing appeal bond, see APPEAL AND ERROR, 141. Statute authorizing action without notice by administrative board acting by con- sent, see CONSTITUTIONAL LAW, 583. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 4. Validity of contract to pay for services in selling goods to public board, see CON- TRACTS, 513. Discretion of board of excise, see INTOXI- CATING LIQUORS, II. b. Exercise of city's police power through, see MUNICIPAL CORPORATIONS, 43. Implied repeal of statute providing for board of public safety, see STATUTES, 338. Power of board of supervisors to fix situs of debt for purpose of taxation, see TAXES, 145. 1. A member of a state board of phar- macy is not liable for damages resulting from the refusal of the board to register and grant a certificate to a pharmacist, where such action was taken under legal advice and without malice, since the re- fusal is that of the board, and not of the individuals composing it. Monnier v. God- bold, 5: 463, 40 So. 604, 116 La. 165. ( Annotated ) 2. A statute permitting a board of ex- aminers to fix the time for the examination of applicants for plumbing licenses, and to provide an examination that shall test the practical knowledge of plumbing, house drainage, and plumbing ventilation of the applicant, and requiring it to issue a li- cense if satisfied of the competence of the applicant, is not invalid as conferring ar- bitrary powers upon the board. Douglas v. People ex rel. Ruddy, 8: 1116, 80 N. E. 341, 225 111. 536. BOARDS OF EDUCATION. Bribery of member of, see BRIBERY, 2. Injunction against, see INJUNCTION, 321. In general, see SCHOOLS, III. 300 BOARDS OF EQUALIZATION BONA FIDE HOLDER. BOARDS OF EQUALIZATION. Interference by court with, see COURTS, 76. Mandamus to members of, see MANDAMUS, 31. 32. In general, see TAXES, III. c. BOARDS OF FREEHOLDERS. Validity of contract to pay member of, for advice furnished to it, see COX- TRACTS, 519. BOARDS OF PARDON. See CRIMINAL LAW, 247, 256, 292, 296, 303. BOARDS OF TRADE. President's right to appeal, see APPEAL AND ERROR, 83. Validity of contract not to supply quota- tions to bucket shop, see CONTRACTS, 454. As illegal combination, see MONOPOLY AND COMBINATIONS, 62, 63. Taxation of membership in, see TAXES, 34, 49, 50. Compelling telegraph company to furnish quotations of, see TELEGRAPHS, 2. See also EXCHANGES. 1. A membership in a board of trade, the value of which is considered by the board of trade in determining the assets of its members, and which is used as col- lateral at the bank and passes by will or descent and by insolvency or bankruptcy, is property although the right to alienate or transfer it is subject to the right of the board to disapprove the sale. Re Personal Property Taxes, 50: 255, 145 N. W. 108, 124 Minn. 398. BOARDS OF UNDERWRITERS. Validity of rules of, see MONOPOLY AND COMBINATIONS, 78. BOAT. Negligence in use of, see MASTER AND SERV- ANT, 274, 275. BODILY VIOLENCE. As ground for divorce, see DIVORCE AND SEPARATION, III. a. Digest 1-52 L.R.A.(N.S.) BOGUS CHECK. Obtaining money by use of, see FALSE PRE- TENSES, 14.' BOISTEROUS CONDUCT. As nuisance, see NUISANCES, 48. *-- BOMB. Negligence as to, see EVIDENCE, . 1527 ; EX- PLOSIONS AND EXPLOSIVES, 2. BONA FIDE HOLDER. Of check, see BANKS, 101; CHECKS, IV. Of note, see .\ssr. MI-SIT, 5; BILLS AND NOTES, V.; INSURANCE, 434. Of bill of lading, see BILLS OF LADING; CARRIERS, 753. Of railroad aid bonds, see JEviDENCE, 540, 541; TRIAL, 1109. Of municipal bonds, see BONDS, III. b, 5. Of junior chattel mortgage, see CHATTEL MORTGAGE, 50. Of rented property, lease of which is not recorded, see CONFLICT OF LAWS, 118. Of corporate stock, see CORPORATIONS, 233, 238, 241, 244, 247, 248, 293; ESTOPPEL, 203. Of land pending suit, see Lis PENDENS, II. Of mortgage, see MORTGAGE, 57. Of land, see RECORDS AND RECORDING LAWS, III.; VENDOR AND PURCHASER, III. Of personalty, see SALE, III. d. Of trust property, see TRUSTS, 145. Rights of, as against prior chattel mort- gage, see CHATTEL MORTGAGE, 41. Right to have title quieted, see CLOUD ON TITLE, 6. Right to enforce negative covenant against, see COVENANTS AND CONDITIONS, 115, 121. Corporation purchasing assets of other com- pany as, see CORPORATIONS, 31. Estoppel to assert title as against, see ES- TOPPEL, 85. Estoppel of bank to refuse to pay check, see ESTOPPEL, 88. Presumption and burden of proof as to, bona fides, see EVIDENCE, 197, 198, 274- 281. Sufficiency of evidence to show notice to purchaser, see EVIDENCE, 2219. Estoppel to set up fraud, see FRAUD AND DECEIT, 69. Protection of, against lien, see LIENS, 9. Title acquired by, under exercise of power of sale in mortgage after order nisi for foreclosure, see MORTGAGE, 112. Who is, as against attempt to set aside fraudulent sale under deed of trust, se MORTGAGE, 140. BOXA VACANTIA BONDS. 301 Effect of agent's fraud or wrong on rights of, see PRINCIPAL AND AGENT, 71, 77. Lien on money in hands of, see SPECIFIC PERFORMANCE, 124. Question for jury as to, see TRIAL, 305-307. One buying land from devisee as, see WILLS, 385. See also FRAUDULENT CONVEYANCES, IV. BONA VACANTIA. See CORPORATIONS, 390; ESCHEAT. BOND FOR TITLE. Obligation of grantee in deed by holder of, see CONTRACTS, 223. Effect of testator's giving, to cause proceeds of hind to pass as personalty, see WILLS, 405. Suit by personal representative to recover land from one claiming under bond for title from decedent, see WITNESSES, 41. BONDHOLDERS. Rights of, on mortgage, see MORTGAGE, I. Right to bid at foreclosure sale, see MORT- GAGE, 122. In general, see BONDS. BONDS. 7. In general; for private obligations, -i ft j. , ~. II. For indemnity and security, 371. a. In general, 334. b. For fidelity of employees or corporate officers, 3544. c. By public officers, 4568. 1. In general, 4568. 2. Liability for money lost or stolen. d. By public depository, 6971. III. Commercial and municipal, 72 1O6. a. Corporate bonds, 72. I). Municipal bonds, 731O6. 1. In general; poicer to issue generally, 7377. 2. For u-hfit purpose, 7884. 3. Authorizing; elections, 85 97. 4. Form; conditions and reg- ulations of issue, 981O1. 5. Who are, and rights of, bona fide holders, 1O2 1O4. 6. Estoppel as to; ratifica- tion. Digest 1-52 L.R.A.(N.S-) ///. continued. 7. Payment; time and place of, 1O5. 8. Actions and defenses; remedies, 1O6. IV. State bonds, 1O7111. Statutory, effect of failure to file, on right of action, see ACTION OR SUIT, ]. On appeal, see APPEAL AND ERROR, III. g; X. Time for appeal by bonding company from judgment against it, see APPEAL AND ERROR, 136. Instruction as to interest in action on, see APPEAL AND ERROR, 1362. On attachment, see ATTACHMENT, III. b. Bail bonds, see BAIL AND RECOGNIZANCE. Of warehouseman, see BAILMENT, 1 ; TRIAL, 736. Conversion of, by bankrupt brokerage firm, see BANKRUPTCY, 23. To release property of bankrupt, see BANK- RUPTCY, 140. In injunction suit, see BANKRUPTCY, 156, 157, 591-593; INJUNCTION, 430-440. Requiring bond as condition of payment of savings bank deposit, see BANKS, 234. Liability on peace bond, see BREACH OF PEACE, 3. Failure of town board to require bond upon making contract, see CONTRACTS, 40. Bond to indemnify bail, see CONTRACTS, 448; FRAUDULENT CONVEYANCES, 52. To replace bridge, what excuses from obli- gation of, see CONTRACTS, 635. Contract giving right to return bonds taken in payment and receive cash for them, see CONTRACTS, 731; LIMITATION OF ACTIONS, 125. Coupons on, see COUPONS. Duty to give bond to dissolve attachment in order to keep down damages, see DAM- AGES, 26. Damages on, see DAMAGES, III. a, 2. Taking possession of property condemned without payment by filing of bond, see EMINENT DOMAIN, 256. Estoppel by, see ESTOPPEL, II. b. Presumption of payment of, see EVIDENCE, 637. Parol evidence as to, see EVIDENCE, 910, 979, 980. Opinion as to value of particular bonds, see EVIDENCE, 1123. Of personal representative, see EXECUTORS AND ADMINISTRATORS, 48, 50, 76-79; VENUE, 3. Of guardian, see GUARDIAN AND WARD, III. Of guardian of incompetent, see INCOMPE- TENT PERSONS, 37. Injunction against enforcement of, see IN- JUNCTION, 271, 272. Interest on, see INTEREST, 11, 12, 39, 41, 42, 45, 47, 55. Joint liability of creditors giving indemni- fying bond to levying officer, see JOINT CREDITORS AND DEBTORS, 4. Effect of judgment against principal, see JUDGMENT, II. e, 4. For release of levy or seizure, see LEVY AND SEIZURE, IV. 302 BONDS, I., II. a. Requiring life tenant to give security for protection of remainderman, see LIFK TK.XANTS, 5. Relative rights of life tenant and remain- dermen in, see LIFK TENANTS, 25. Mortjja^e to secure performance of bond for support and burial, see MORTGAGE, S6. Kiglit of bondholder to bid at foreclosure sale, see MORTGAGE, 122. Detached coupons as within protection of clause in mortgage securing bonds, see MORTGAGE, 145. Ne exeat bonds, see Ne EXEAT. Trustee in mortgage to secure bonds as rep- resentative of bondholder, see PASTIES, 181, 182. Pleading in action on, see PLEADING, 241. Replevin bond, see PLEADING, 555; RE- PLEVIN, 24-31. Liability and release of surety generally, see PRINCIPAL AND SURETY. Of tenant, see PRINCIPAL AND SURETY, 6, 15-19, 38, 61. Performance of condition precedent, see PRINCIPAL AND SURETY, 7-11. Effect of failure of part of obligors to sign, see PRINCIPAL AND SURETY, 12, 13. Effect of giving bond to release vessel for which receiver has been appointed, see RECEIVERS, 2. Priority of receivers' certificates over, see RECEIVERS, 38. Subrogation of surety, see SUBROGATION, VI. Taxation of United States bonds, see TAX- ES, 2, 335. Usury on loan or sale of, see USURY, 11-14. Title bond, see VENDOR AND PURCHASER, 89 ; WITNESSES, 41. Provision in contract requiring purchaser of property to redeem bonds given in part payment therefor, see WITNESSES, 26. I. In general; for private obligations. (See also same heading in Digest L.R.A. 1-10.) Oral evidence that bond was not to be de- livered without principal's signature, see EVIDENCE, 979. Defense, by obligor on bond, against execu- tion by co-obligor who has paid judg- ment, see EXECUTION, 3. Effect of failure of part of obligors to sign, see PRINCIPAL AND SURETY, 12, 13. 1. One obligating himself by bond to protect another against loss by reason of the nonpayment at maturity of commercial paper made or indorsed by another, and pur- chased by the obligee, assumes no obliga- tion with respect to notes given in renewal of papers so purchased, and not paid at ma- turity. American Trust Co. v. Louderback, 16: 775, 69 Atl. 673, 220 Pa. 197. (Annotated) 2. A bond purporting to be the obliga- tion of one as principal and of others as sureties, but which has been executed only by the sureties, does not, upon its face, show any obligation on the part of the sureties. Digest 1-52 L.R.A.(N.S.) School Dist. No. 80 v. Lapping, 12: 1105, 110 N. W. 849, 100 Minn. 139. (Annotated) //. For indemnity and security, a. In general. (See also same heading in Digest L.R.A. 1-10.)' Prematurity of action on, see ACTION OR SUIT, 21. Condition precedent to suit on, see ACTION OF SUIT, 28. Prejudicial error in admission of evidence in action on, see APPEAL AND ERROR, 1118. Prejudicial error in exclusion of evidence in action on, see APPEAL AND ERBOB, 1221. Increasing penalty of bond in prosecution for abandonment by husband, see CON- STITUTIONAL LAW, 35. Securitv for costs, see COSTS AND FEES, 10- 12. Forthcoming bond, see LEVY AND SEIZURE, 34. Interruption of limitation of action on, see LIMITATION OF ACTIONS, 330, 331. Giving of bond to secure release of lien as a novation of the original obligation, see NOVATION, 5. 3. Delivery of an indemnity bond is shown by evidence that it was executed by the insurer and sent by him to the agent of the assured, and that shortly afterwards the premium was paid to and accepted by the insurer. Title Guaranty & S. Co. v. Bank of Fulton, 33: 676, 117* S. W. 537, 89 Ark. 471. 4. In the case of a statutory bond in a judicial proceeding, where places for dates are left blank with the knowledge of the sureties and the understanding that they are to be filled in at the proper time, and that the bond is to be then filed and used as such in the case, in the absence of fraud in filling in the blanks, such bond is a valid and binding obligation after its filing and approval by the proper officer. Harper v. Pierce, 44:' 1144, 132 Pac. 667, 37 Okla. 457. 5. Where the legislature has not pre- scribed a standard policy, a guaranty in- surance bond which is fairly open to two constructions, or as to the terms of which aft ambiguity exists, should be strictly con- strued against the insurer; but if the terms of the contract be clear, and not fairly sus- ceptible of two constructions, an ambiguity cannot be assumed and the plain intention of the parties nullified by constructions. George A. Hormel & Ce. v. American Bond- ing Co. 33: 513, 128 N. W. 12, 112 Minn. 288. 6. Mere fear or suspicion on the part of the lessor that a lessee intends to sell in- toxicating Hquor on the leased premises without authority of law will not avoid a bond by which the lessee undertakes to hold the lessor harmless from any expenditure or costs because of the unlawful sale of liquor BONDS, II. a. 303 upon the promises. Harbison v. Shirley, 19: 662, 117 N. VV. 963, 139 Iowa, 605. (Annotated) To stop prosecution for seduction. Petition for cancelation of, see EQUITY, 117. 7. It is no ground to cancel a bond exe- cuted under Penal Code 1895, 388, to stop a prosecution for seduction, that the man had subsequently discovered proof exoner- ating him of the crime. Griffin v. Griffin, 16: 937, 61 S. E. 16, 130 Ga. 527. Contractor's bond. Prematurity of suit on, see ACTION OR SUIT, 9. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 365, 456 ; STATUTES, 22. Burden pf proving notice of claim to surety on bond of building contractor, see EVIDENCE, 543. Parol evidence to show intention of sureties on, see EVIDENCE, 9RO. Interest on bond to indemnify surety on, see INTEREST, 47. Individual liability of public officers for failure to take bond from contractor, see OFFICERS. 109, 110. Who may maintain action on contractor's bond, see PARTIES,. 85-88. Liability and release of surety on, see PRINCIPAL AND SURETY, 9, 10, 20-23, 39, 40. Contribution between sureties on con- tractor's bond, see PRINCIPAL AND SURETY, 73, 74. Reasonableness of time of giving notice stipulated for in bond, see TRIAL, 200. 8. Express statutory authority is not necessary to enable trustees of a public building to take a contractor's bond for the benefit of persons furnishing material for its construction. Smith v. Bowman, 9: 889, 88 Pac. 687, 32 Utah, 33. 9. The trustees charged with the duty of securing the construction of a state build- ing have implied power to take a bond from the contractor to secure payment of sub- contractors, laborers, and materialmen. National Surety Co. v. Hall-Miller Decorat- ing Co. 46: 325, 61 So. 700, 104 Miss. 626. ( Annotated ) 10. Statutory authority to contract for the construction of county buildings au- thorizes a county to bind the contractor to pay the claims of laborers and material- men, although such contract is for their benefit. United States Gypsum Co. v. Glea- son, 17: 906, 116 N. W. 238, 135 Wis. 539. 11. A board of port commissioners which is a state agency, is not liable as a surety for failing to exact from contractors employed to construct a building, a bond for the payment of materialmen, subcon- tractors, etc., under a statute as to build- ing contracts, which provides for the taking of a bond from the contractors for the pro- tection of subcontractors, workmen, me- chanics, and materialmen, and imposes on an owner who fails to take and record such a bond a personal liability as surety, but which does not in terms apply to public corporations. Barrett Mfg. Co. v. Board Digest 1-52 L.R.A.(N.S.) of Commissioners, 50: 469, 63 So. 505, 133 La. 1022. (Annotated) 12. Recovery on a bond given by a con- tractor for a public improvement to pay subcontractors and materialmen cannot be defeated on the theory that it was not re- quired by the contract, if it was executed at the same time with it and as part of the entire transaction. National Surety Co. v. Hall-Miller Decorating Co. 46: 325, 61 So. 700, 104 Miss. 626. 13. A bond by a contractor for a public improvement to pay subcontractors and materialmen cannot be defeated for want of consideration, where its execution was necessary to secure an award of the con- tract. National Surety Co. v. Hall-Miller Decorating Co. 46: 325, 61 So. 700. 104 Miss. 626. 14. A compensated surety upon the bond of an ash collector, who undertakes that his principal shall comply with the require- ments of his contract, which binds him to collect ashes for a period of two years, is not, without his consent, liable for the principal's refusal to perform during an extended term which the public authorities have attempted to impose upon him under the provision of his contract that they shall have the privilege of renewing the contract for a specified additional period at their option. United States use of District of Columbia v. Bayly, 41: 422, 39 App. D. C. 100. (Annotated) 15. Dealers who have furnished material for the construction of a sewer need not show, in an action to recover upon the con- tractor's bond, that the material delivered by them actually entered into the construc- tion of the sewer. Bell v. Kirkland, 13: 793, 113 N. W. 271, 102 Minn. 213. 16. Sureties on the bond of one who con- tracted to construct a sewer for a mu- nicipality are liable to dealers who fur- nished material to the contractor in reliance on the bond, although the contract for the construction of the sewer is ultra vires as to an inconsiderable part of the work, by reason of irregular exercise of the power of the municipality. Bell v. Kirkland, 13: 793, 113 N. W. 271, 102 Minn. 213. (Annotated) 17. The recital of a valid and subsisting contract for the construction of a sewer, in the bond of the contractor, is binding upon the sureties thereto, and precludes them from thereafter asserting that the contract was ultra vires. Bell v. Kirkland, 13: 793, 113 N. W. 271, 102 Minn. 213. 18. Where the condition of a bond is "to pay all claims for labor and material contracted in the erection of a county jail building to each and all persons entitled thereto, and which claims might be the basis of liens on said lots and buildings," etc., the obligation of the bond extends only to such claims as may "become liens," and the sureties are not liable on account of claims that are not and could not be- come liens, because the building involved ia a county jail. Hutchinson v. Krueger, 41: 315, 124 Pac. 591, 34 Okla. 23. 304 BONDS, II. a. 10. Sureties on a bond of a contractor for a public building, which is for the bene- fit, also, of all persons who may become en- titled to liens, are not liable for the payment for materials furnished for the construction of the building, where, under the statute. such buildings are not subject to lien. Smith v. Bowman, 9: 889, 88 Pac. 687, 32 I tah, 33. (Annotated) 20. The insertion in a contractor's bond of the clause that the contractor shall dis- charge all indebtedness incurred in carrying out the contract does not render the sureties iable to materialmen for supplies furnished, where the bond provides that the liability of the sureties shall be to the owner of the building and those entitled to liens thereon, where, under the statute, no lien can attach for such materials. Smith v. Bowman, 9: 889, 88 Pac. 687, 32 Utah, 33. 21. A statutory bond of a contractor for public work, conditioned that he will pay for labor and materials used in the work, does not cover materials furnished to the contractor's partner and charged to him individually, although they were used in the work. School Dist. No. 6 use of Cen- tral Door & Lumber Co. v. Smith, 43: 65, 127 Pac. 797, 63 Or. 586. (Annotated) 22. The bond of a contractor for. a street improvement conditioned to pay the con- tractor's obligations for labor and mate- rials used in the improvement does not cov- er a claim for repairs upon a machine leased by the contractor and used in the work. Standard Boiler Works v. National Surety Co. 43: 162, 127 Pac. 573, 71 Wash. 28. (Annotated) 23. A provision in a paving contract ob- ligating the contractor to maintain, repair, and replace the pavement for a period ol years upon notice, and during the perform- ance of the work to indemnify the city for any injury resulting from negligence in such performance, does not render the contractor liable to indemnify the city for a recovery by a traveler against the city because of its failure promptly to make repairs when no- tified to do so. New York v. Sicilian Asphalt Paving Co. 46: 893, 101 N. E. 696, 208 N. Y. 45. 24. The bond of a road contractor con- ditioned "for the prompt, proper, and ef- ficient performance of the contract," does not impose a liability for injury to a trav- eler on the highway through negligence of the contractor in allowing the road to get in bad repair and in an unsafe condition, at least, where no liability is imposed upon the county, under the law for the negligent acts of its overseers and agents in failing to construct, or keep in repair, the public highway. Redditt v. Wall, 34: 152, 55 So. 45, Miss. . (Annotated) 25. A bond given by a building contrac- tor to the owner, by which he undertakes to protect the obligee from damages arising from accidents to persons employed in the construction of the work, does not apply to an injury to the contractor's workman by the negligence of the owner's servant after the owner has taken possession of the build- Digest 1-52 L.R.A.(N.S.) ing and the contractor is replacing certain work rejected by the architect. Perry v. Payne, n: 1173, 66 All. 55ii, 217 Pa. 252. (Annotated) 26. An undertaking by the surety of a building contractor who has contracted to furnish all labor and material for a build- ing, that the principal shall save harmless the obligee from any pecuniary loss result- ing from breach of any conditions of the contract, renders him liable to make good any loss arising from payment by the own- er of mechanics' liens on the building, which result from the contractor's failure to pay for labor or materials used in the building. Stoddard v. Hibbler, 24: 1075, 120 \. \V. 787, 156 Mich. 335. (Annotated) 27. Lumber furnished for a.id used in the making of forms for a concrete structure, as provided in a contract and specification for its erection, and which is largely con- sumed and rendered valueless by such use. is material within the meaning of a bond given by a surety company, the obligation of which is that the contractor will "pay all indebtedness incurred for labor and ma- terial furnished and used in and about that contract work, or which might become the basis of a lien." Chicago Lumber (. o. v. Douglas, 44: 843, 131 Pac. 563, 89 Kan. 308. zS. A surety company cannot escape la- bility upon a bond for material furnished to and used by a contractor in a building, on the ground that money received from the owner and paid to the materialman was ap- plied by the latter in discharge of an earlier indebtedness of the contractor for material used on other buildings; no direc- tion having been given by the contractor as to the application of the payment at the time it was made. Chicago Lumber Co. v. Douglas Co. 44: 843, 131 Pac. 563, 80 Kan. 308. 29. A guaranty insurance bond securing the performance of a building contract which reserves the right to have changes made and extra work done without limit, on the written order of the owner or archi- tect, is not released by the giving of oral orders for changes and extras, where the architect audits and allows the amount thereof before paymeni. George A. Hor- mel & Co. v. American Bonding Co. 33: 513, 128 N. W. 12, 112 Minn. 288. 30. The bond of a corporation organized for the purpose of engaging for profit in the business of guarantying the fidelity or contracts of a third party, given to in- demnify the owner of property against loss from the failure of a contractor to per- form the conditions of a building contract, while in form resembling a contract of sure- tyship, is in effect a contract of insurance, to which the rules governing ordinary con- tracts of insurance are applicable. George A. Hormel & Co. v. American Bonding Co. 33: 513, 128 N. W. 12, 112 Minn. 288. (Annotated) 31. The requirement of a bond insuring the performance of a contract to erect a building, that the owner should immediately after knowledge of the occurrence of any breach by the contractor, or of any act on BONDS, II. b. 305 his part which might involve a loss for which the surety would be liable, give writ- ten notice thereof to the surety company, does not require that notice be given in- stantly upon learning of a default, but that it sheuld be given within a reasonable time under all the circumstances. George A. Hormel & Co. v. American Bonding Co. 33: 513, 128 N. W. 12, 112 Minn. 288. Liquor bond. Abatement of cause of action on, see ABATE- MENT AND REVIVAL, 5. New trial because of excessive judgment, see APPEAL AND ERROR, 162\ Contract by brewing company to indemnify surety on bond of retailer, see COX- TRACTS, 447; CORPORATIONS, 60, 93. Damages on, see DAMAGES, 124. Estoppel to contest validity of, see ES- TOPPEL, 170. Who may mainta'in action on, see PARTIES, 91, 92. Release of surety on, see PRINCIPAL AND SURETY, 35. Effect on liability on, of partial invalidity of statute under which given, see STAT- UTES, 56. See also INTOXICATING LIQUORS, 187. 32. A liquor tax certificate issued by a state te one intending to conduct a liquor business on a military reservation which is the property of the Federal government is a nullity, and furnishes no consideration for a bond conditioned for the proper con- ducting of the business. Farley v. Scherno, 47: 1031, 101 N. E. 891, 208 N. Y. 269. (Annotated) 33. That a liquor dealer, before selling to an intoxicated person, did all that a reasonably prudent man should do under the circumstances to determine whether or not the customer was intoxicated, will not relieve him from liability under a provision in his bond that he will pay to the state the damages occasioned by his sale of liquor to an intoxicated person. State v. Du- bruiel, 25: 801, 74 Atl. 1048, 75 N. H. 369. (Annotated) 34. The surety on the bond of a saloon- keeper is liable, under the civil damage act, for successive recoveries for injuries caused by his principal's illegal sale of liquor, un- til he has paid the face of the bond, and the amount which has been paid by the princi- pal in former actions against them jointly is immaterial. Squires v. Michigan Bond- ing & Surety Co. 43: 76, 138 N. W. 1062, 173 Mich 304. (Annotated) b. For fidelity of employees or corpo- rate officers. (See also same heading in Digest L.R.A. 1-10.) Deposit of cash bond with employer by em- ployee, see ACCORD AND SATISFACTION, 18. Demand as condition precedent to suit on, see ACTION OR SUIT. 28. Liability for false statement resulting in withdrawal of surety from bond," see CASE, 6. Suppression of evidence by one accused of causing surety to withdraw from bond, see EVIDENCE, 307. Admissibility of evidence in action for se- curing withdrawal of surety from bond, see EVIDENCE, 803. Evidence as to rule of employer in action on bond indemnifying against nearli- gence of employer, see EVIDENCE, 1758. Evidence of admissions of principal in ac- tion on, see EVIDENCE, 1259. Pleading and proving defense in action on, see EVIDENCE, 542. Release of surety on bond of insurance agent, see PRINCIPAL AND SURETY, 41. Question for jury as to negligence of em- ployee in suit on bond indemnifying against his negligence, see TBIAL, 539. 35. An employer cannot enlarge the lia- bility of one undertaking to insure him against loss through the negligence of his employee as fixed by the terms of the bond, by establishing rules for the conduct of his business. Great Northern Express Co. v. National Surety Co. 31: 775, 129 N. W. 127, 113 Minn. 162. (Annotated) 36. A fidelity insurance bond issued by a corporation in consideration of a premium paid need not be signed by the principal to render it valid, in the absence of any stip- ulation in the instrument or elsewhere which requires such signature. Title Guaranty & S. Co. v. Bank of Fulton, 33: 676, 117 S. W. 537, 89 Ark. 471. 37. A clause in a fidelity insurance bond which requires a statement from the em- ployer as to habits and accounts of the employee whose fidelity is to be insured, and provides that said statement shall con- stitute part of the basis and consideration of the contract, does not make the state- ment a warranty so as to avoid the policy in case it is incorrect through mere mis- take. Title Guaranty & S. Co. v. Bank of Fulton, 33: 676, 117 S. W. 537, 89 Ark. 471. (Annotated) 38. A provision in a surety bond as to the frequency with which the principal's books shall be inspected, supersedes a state- ment in the application as to the frequency with which it shall be done. United Amer- ican F. Ins. Co. v. American Bonding Co. 40: 661, 131 N. W. 994, 146 Wis. 573. 39. The failure of the obligee in ; fidelity bond to communicate to the sureties, at the time of its execution, the fact that the principal was indebted to the obligee for money embezzled, will relieve the sureties from liability on the bond ; although they made no inquiry upon that subject, and no communication took place between obligee and sureties about the bond the execution of which was secured by the principal, and the bond purported to cover past, as well as future, obligations. Hebert v. Lee, 12: 247, 101 S. W. 175, 118 Tenn. 133. (Annotated) Officers of corporation or association. 40. The verification of an oliicer's ac- Digest 1-52 L.R.A .(N.S.) 20 306 BONDS, II. c, 1. counts, required by his fidelity bond, is not satisfied by accepting as true the amount which he has in bank as shown by his bank pass book, without taking any steps to as- certain from the bank whether or not it rep- resents the true state of the account. Uni- ted States Fidelity & G. Co. v. Downey, 10 : 323, 88 Pac. 451, 38 Colo. 414. (Annotated) Cashier. Liability for false statement resulting in withdrawal of surety from bond of, see CASE, 6. 41. The employment of a bank cashier for a period of one year, after appointing him to the office for a period to continue at the pleasure of the trustees, is a new appointment, and will terminate the lia- bility of the sureties on the bond given after his first appointment. Wapello State Sav. Bank v. Colton, n: 493, 110 N. W. 450, 133 Iowa, 147. (Annotated) 42. A policy of insurance undertaking to indemnify a bank for loss through the dis- honesty of its assistant cashier who owns merely a few shares of its stock ceases to operate when he acquires a majority of the stock, becomes a director, and is pronioted to the cashiership, although the policy per- mits him to perform duties other than those mentioned in the bond. Farmers & Merchants State Bank v. United States Fi- delity & G. Co. 36: 1152, 133 N. W. 247, 28 S. D. 315. Other bank employees. 43. In an action against a surety com- pany to recover on the bond of a defaulting bank president, statements and representa- tions in writing, made by the assistant cash- ier of the bank, relative to the conduct, du- ties, employment, and accounts of the pres- ident, which by the terms of the bond are made a part of the bond itself, form part of the contract, and upon the construction of the statements and bond as a whole the rights and liabilities of the parties thereto must depend. Willoughby v. Fidelity & D. Co. 7: 548, 85 Pac. 713, 16 Okla. 546. 44. A receiver of a bank cannot be heard, in an action against a surety company on the bond of the defaulting president of the bank, to repudiate or question the authority of the assistant cashier to bind the bank by his statements and representations concern- ing the conduct, duties, employment, and accounts of the president, where the bond was issued by the surety company and ac- cepted by the bank upon the faith of such statements and representations. Willough- by v. Fidelity & D. Co. 7: 548, 85 Pac. 713, 16 Okla. 546. (Annotated) c. By public officers. 1. In general. (See also same heading in Digest L.R.A.. 1-10.) Right of bank which has credited a fraud- ulent county warrant received from Digest 1-52 L.R.A.(N.S.) city treasurer for collection, to charge it off as against surety on bond, see BANKS, 1S2. Agreement with surety on bond to devote fees of office to payment of certain ob- ligations, see CONTRACTS, 436. Measure of damages for breach of, see DAM- AGES, 31, 123. Jurisdiction of equity of suits on, see EQUITY, 10. Presumption as to when shortage in ac- counts of officer occurred, see EVIDENCE, 659. Parol evidence to explain ambiguity in, see EVIDENCE, 953. Sufficiency of proof of shortage, see EVI- DENCE, 2287. Interest on, see INTEREST, 12, 45, 55. Conclusiveness of judgment in action on, see JUDGMENT, II. e, 4. Running of limitations in favor of surety on, see LIMITATION OF ACTIONS, 126, 127, 278. Liability of municipality for tort by olliccr from whom no bond was taken, see Mr- NICIPAL CORPORATIONS, 384. Who may maintain action on, see PARTIES, 37, 89, 90. Pleading in action on, see PLEADING, 241. Raising by demurrer question of considera- tion for, see PLEADING, 586. Right of surety on, to recover from other officer for loss through latter's neglect, see PRINCIPAL AND SURETY, 68, 69. Subrogation of surety, see SUBROGATION, 32, 33. Liability of officers generally, see OFFICERS, II. c. 45. In an action upon the official bond of a county auditor, wherein both the auditor and his sureties are made defend- ants, the terms of the bond define and de- termine the extent of the auditor's liabil- ity, which is no greater and no less than that of his sureties; the liability of both being measured by the terms of the bond, reasonably, but strictly, construed. Foster v. Malberg, 41:967, 137 N. W. 816, 119 Minn. 168. 46. The common-law liability of a coun- ty auditor and the sureties on his official bond is not enlarged by a statute providing that the bond shall be security to all per- sons severally for the official delinquencies against which it is intended to provide, and that any person injured by such delin- quencies may sue on the bond in his own name, so as to make them liable to a purchaser at a tax sale for the loss caused by the officer's failure to give the statu- tory notice of the sale, which rendered it void, for which the purchaser has no remedy in the absence of statute. Foster v. Mal- berg, 41: 967, 137 N. W. 816, 119 Minn. 168. 47. The acts of a public official who has certified refunding tax warrants in favor of fictitious persons, in representing that they are genuine and valid for the amounts called for, while negotiating them to a bank to which he sells them, and not his original act in certifying them, are the cause of the BONDS, II. c, 1. 307 bank's loss in case they prove worthless in its hands; and therefore the bank cannot look to his bond for reimbursement under a statute providing that his bond is to be construed as security to all persons sever- ally for official delinquencies, and action may be brought thereon for the use of a person injured by his misconduct in office. National Surety Co. v. State Sav. Bank, 14: 155, 156 Fed. 21, 84 C. C. A. 187. 48. A bank which purchases from a dep- uty county auditor non-negotiable refunding tax warrants which he has certified in favor of fictitious payees cannot hold the auditor or his surety liable for a loss resulting from their proving worthless in its hands. Na- tional Surety Co. v. State Sav. Bank, 14: 155, 156 Fed." 21, 84 C. C. A. 187. 49. Where a certified check is given by a defendant against whom a criminal charge is pending, in lieu of a deposit of ' the sum of money mentioned in the order admitting to bail, as authorized by 6108, Okla. Rev. Laws 1910, and said check is cashed by the officer and the proceeds em- bezzled, the fact that the statute does not authorize the acceptance of a certified check as the equivalent to bail is immaterial, in an action brought against the sureties on the officer's bond by the drawer of the check. Ahsmuhs v. Bowyer, 50: 1060, 135 Pac. 413, 39 Okla. 376. 50. An undertaking by sureties on a bond of one whose anticipated appointment is not received, that he shall render due ac- count of his office "to the proper authority" and that he shall pay the money that comes to his hands by virtue of his office, cannot be enforced by the county treasurer, who is named in the bond aa obligee and to whom the bond is delivered, merely because he deposits funds with the principal which he has to make good to the county because of the principal's insolvency. Kuhl v. Cham- berlain, 21:766, 118 N. W. 776, 140 Iowa, 546. Validity; bond not required by law. 51. Failure of the principal to sign his official bond does not render it void in favor of the surety, where the statute provides that no irregularity shall render such bond void, if it is delivered as the official bond of the officer and serves as such, and it is joint and several in form. Adams v. Wil- liams, 30: 855, 52 So. 865, 97 Miss. 113. 52. The official bond of the treasurer of a levee board which has the conditions pre- scribed by law is not rendered void by the insertion of an additional condition reliev- ing the surety from liability for loss of money deposited in the bank, such condi- tion being merely surplusage and void. Adams v. Williams, 30: 855, 52 So. 865, 97 Miss. 113. 53. A bond voluntarily issued by a dis- trict clerk naming the state of Oklahoma as obligee, conditioned for the faithful per- formance of his official acts, and for the ac- counting and paying over of all moneys by him received as such officer, is a valid and binding obligation, though not required to be given by statute, if it is supported by Digest 1-52 L.R.A.(N.S.) a valid consideration and is not repugnant to the letter or policy of the law, and the sureties on the bond are bound thereby. Ahsmuhs v. Bowyer, 50: 1060, 135 Pac. 413, 39 Okla. 376. (Annotated) Defalcations prior to date of bond. 54. Sureties of an officer who has suc- ceeded himself cannot maintain a bill in equity, after his death, to correct his official reports so as to show that he did not in fac^ have on hand funds with which he charged himself at the time they became his sureties, and thereby relieve themselves from liability for a shortage in his accounts. Cowden v. Trustees of Schools, 23: 131, 85 N. E. 924, 235 111. 604. (Annotated) Of postmaster. 55. A postmaster who innocently obeys the direction of the Postoffice Department to appoint a clerk in his office who is to perform duties at Washington, and who draws checks for his salary, is liable to make good the amount thereof on his bond, under the statute providing that it shall not be lawful to detail clerks from any branch of the postal service to any of the offices of the Department at Washington. United States v. Moore, 24: 309, 168 Fed. 36, 93 C. C. A. 458. (Annotated) 56. That a clerk paid by one in charge of a local postoffice was actually on duty in the Department at Washington does not render the postmaster liable on his bond to refund the amount so paid, if he was ignorant as to the place of his service, and the clerk was appointed and his payment directed by the proper authorities. United States v. Warfield, 24: 312, 170 Fed. 43, 95 C. C. A. 317. Marshal. 57. Failure of town authorities to make a record of the execution and acceptance of the marshal's bond will not prevent its en- forcement if it was in fact properly exe- cuted, accepted, and placed on file. Grow- barger v. United States Fidelity & G. Co. 11: 758, 102 S. W. 873, 126 Ky. 118. 58. The unjustifiable killing, by an of- ficer, of a person whom he has arrested, is within the provision of his bond by which the surety undertakes that he shall well and truly discharge all the duties of his office. Growbarger v. United States Fidel- ity & G. Co. ii : 758, 102 S. W. 873, 126 Ky. 118. (Annotated) 59. The sureties on a marshal's bond are liable for his act in shooting a bystander whom he believes intends to interfere in an arrest which he is attempting to make. Martin v. Smith, 29:463, 125 S. W. 249, 136 Ky. 804. (Annotated) Sheriff. Presumption as to amount of damage in suit on, see EVIDENCE, 656. Pleading in action on, see PLEADING, 241. 60. A statute providing that an official bond shall be for the benefit of all persons who may be injured or aggrieved by the wrongful act or default of the officer in his official capacity must, in its application to the bond of a sheriff, be read in connection with the conditions of the bond obligating 308 BONDS, II. c, 2, d. him well and truly to perform his duties as slier in", and refers, therefore, only to such liabilities as arise within the fair intend- iiient and meaning of the obligation itself. McPhee v. United States Fidelity & G. Co. 21 : 535, 100 Pac. 174, 52 Wash. 1*54. 01. The bond 'of a sheriff is not liable, because- of his negligently permitting the es- cape of a prisoner properly in his custody, to one who, having been instrumental in the 'upture of the prisoner, is thereby depriVed ot a reward offered by a third person for his capture and conviction. McPhee v. United States Fidelity & G. Co. 21:535, 100 Pae. 174, 52 Wash. 154. (Annotated) 62. The bond of a sheriff conditioned that he shall faithfully perform and execute the duties of his office is not liable for an in- jury inflicted upon a bystander by the dis- charge of a revolver negligently dropped by his deputy after it had been taken from a prisoner, if the prisoner was not lawfully arrested, or it was not necessary to relieve him of the revolver, so as to make it part of the official duty of the deputy to have possession of the weapon. People use of Tamplin v. Beach, 37: 873, 113 Pac. 513, 49 Colo. 516. 63. A sheriff is liable on his official bond for shooting one guilty of a simple misde- meanor to prevent his escaping arrest, al- though he merely fires his pistol in his di- rection to cause him to halt. State use of Johnston v. Cunningham, 51: 1179, 65 So. 115, Miss. . (Annotated) 64. No action will lie upon the official bond of a sheriff because of a false return of service in a divorce proceeding which results in a decree of divorce, if, after learn- ing of the decree, defendant, instead of pro- ceeding to have the decree set aside, ne- gotiates with her former husband for a more favorable allowance than is provided for in the decree. Morgan v. Williams, 38: 292, 120 Pac. 106, 66 Wash. 649. (Annotated) Deputy sheriff. 65. The sureties upon the official bond of a deputy sheriff, who undertake that he shall faithfully and impartially dis- charge the duties of his office, are liable for any unlawful or oppressive act done by such officer under color or by virtue of his office. Lee v. Charmley, 33: 275, 129 N. W. 448, 20 N. D. 570. 66. A deputy sheriff who, falsely claim- ing to have a warrant for the arrest of a person not charged with crime of any kind, goes to his house in the nighttime, and, under guise of the authority of his of- fice, arrests and takes such person into custody, has committed an unauthorized and unlawful act under color of his office, for which the sureties upon his official bond are liable in a proper action. Lee v. Charm- ley, 33: 275, 129 N. W. 448, 20 N. D. 570. (Annotated) Constable. 67. The sureties on a constable's bond are liable for an assault by him upon the wife of an execution debtor, made when she attempts to view property which he has Digest 1-52 L.R.A.(N.S.)" M'i/cd and is proceeding to remove under the execution, to aid her husband in mak- ing a schedule of the property for the pur- pose of claiming an exemption, the assault being made for the purpose of preventing the making of the schedule. Greenberg v. People use of Balaban, 8: 1223, 80 N. E. 100, 225 111. 174. (Annotated) 68. The bond of a constable is not sub- ject to forfeiture, thereby subjecting the sureties to liability thereon, for failure to return to the defendant, upon the success- ful termination of an attachment suit, the amount of the plaintiff's claim, which the defendant paid to the officer at the time of the levy, to secure the release of the goods attached, and which the officer paid to the plaintiff's attorney, as this act was not performed in furtherance of the duty of such officer. Jersey City use of Elliott v. Schoppe (N. J. Err. & App.) ^9: 577, 82 Atl. 913 ; 82 N. J. L. 697. (Annotated) 2. Liability for money lost or stolen. (See also same heading in Digest L.R.A. 1-70.) Statute releasing from liability for loss of public funds through bank failure, see CONSTITUTIONAL LAW, 770; TAXES, 14. Liability of officers generally, see OFFICERS, 111-114. d. By public depository. (See also same heading in Digest L.R.A. 1-10.) Pledge of assets by bank receiving state moneys, see BANKS, 198. Estoppel of surety as to extent of liability under bond, see ESTOPPEL, 38. Admissibility of books of account in action on, see EVIDENCE, 796. 69. A surety company furnishing a bond to the state for a state depository cannot resist liability thereon on the ground that the state treasurer had connived with the depository to deposit funds therein contrary to law. United States Fidelity & G. Co. v. State, 26: 865, 106 Pac. 1040, 81 Kan. 660. (Annotated) 70. A bond executed and delivered to a county treasurer as a statutory bond of a public depository, which does not become effective because the principal does not re- ceive the anticipated appointment and 'the bond is not presented to and approved by the supervisors as required by statute, can- not be enforced by the treasurer as a com- mon-law bond in case he deposits county funds with the principal which he is com- pelled to make good because of the prin- cipal's insolvency. Kuhl v. Chamberlain, 21 : 766, 118 N. W. 776, 140 Iowa, 546. (Annotated) 71. -The bond of a custodian of public money is liable to account for the interest iO- : j BONDS, III. a, b, 1. which he receives upon it, where the stat- ute makes him liable to safe-keep, account for, and pay over all money that may come into his custody in his official capacity, and all other money for which he is properly accountable as such officer, although the statute makes it unlawful for him to use such money for his own benefit. Adams v. Williams, 30: 855, 52 So. 865, 97 Miss. 113. ( Annotated ) III. Commercial and municipal, a. Corporate bonds. (See also same heading m Digest L.R.A. 1-70.) Control by public service commission of issue of, see APPEAL AND ERROR, 82; COMMERCE, 46; EVIDENCE, 518; PUBLIC SERVICE COMMISSION, 7-9. Attachment of, see ATTACHMENT, 24, 31, 47. Market value of bonds of railroad company as criterion of value of property for purpose of fixing rates, see CARRIERS, 1039. Power of railroad company to guaranty dividends on bonds for constructing summer hotel, see CORPORATIONS, 61. Sufficiency of vote creating bonded indebt- edness of corporation, see CORPORA- TIONS, 174. Fraud in sale of, by promoters, see CORPO- RATIONS, 182; EVIDENCE, 1672-1674. Investments by committee of lunatic in, see INCOMPETENT PERSONS, 33, 34. What property subject to levy under judg- ment in action on past-due coupons, see LEVY AND SEIZURE, 4. Levy on registered bonds of foreign corpo- ration belonging to nonresident, see LEVY AND SEIZURE, 9. Effect of acceleration provision in, to start running of limitations, see LIMITATION OF ACTIONS, 138. Stockholder's liability on, see LIMITATION OF ACTIONS, 151. Stipulation in, for maturity of debt on de- fault in payment of interest, see MORT- GAGE, 94. Who may maintain action on past-due coupons, see PARTIES, 43. Set-off of judgment against stockholder in action by him on corporate bonds, see SET-OFF AND COUNTERCLAIM, 33. Usury in, see USURY, 12-14. Lapse of bequest of stock by exchange there- of for bonds, see WILLS, 392. 72. A stipulation in bonds of a corpo- ration that there shall be no recourse to the stockholders for payment of the bonds, is valid, and will prevent resort, even to unpaid stock subscriptions, for the satis- faction of the bond. Grady v. Graham, 36: 177, 116 Pac. 1098, 64 Wash. 436. Digest 1-52 I*R.A.(N.S.) b. Municipal bonds. 1. In general; power to issue gen- erally. (See also same heading in Digest L.R.A. 1-10.) Impairing contract rights by declaring in- validity of, see CONSTITUTIONAL LAW, 804. Right of persons to whom municipality has agreed to deliver bonds under unauthor- ized contract, see CONTRACTS, 566. As to county warrants, see COUNTIES, II. b. Necessity of notice of intention to retire bonds before maturity in order to stop interest, see INTEREST, 39. Interest after maturity on public improve- ment bonds to be paid by special assess- ment, see INTEREST, 41, 42. Limitation of actions on, see LIMITATION OF ACTIONS, 213. Contract to deliver to one advancing money with which to purchase water system, see MUNICIPAL CORPORATIONS, 238. Municipal warrants, see MUNICIPAL CORPO- RATIONS, 261. Including bonds of school district in de- termining amount of city indebtedness, see MUNICIPAL CORPORATIONS, 269. As debt within meaning of constitutional limitation of municipal indebtedness, see MUNICIPAL CORPORATIONS, 271. Issue of, in excess of authorized indebt- edness, see STATE, 8, 9. Plurality of subjects in statute authorizing issuance of, see STATUTES, 147. Act legalizing school bonds, see STATUTES, 178. Taxation of, see TAXES, 70, 71, 84. Tax on money and interest bearing securi- ties in sinking fund accumulated by municipality to retire bonds, see TAXES, 119. Enforcement by bondholder of taxing dis- trict of tax lien, see TAXES, 266. 73. The mere facts that a city might have issued warrants for a certain purpose, and might have refunded its indebtedness, do not validate negotiable bonds issued by it in the first instance without authority, and which it has never ratified. Swanson v. Ottumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. 74. A municipality has power to provide for the payment of annual interest on bonds to be issued by it, although the law author- izing the issue of such bonds does not ex- pressly authorize it to make provision for the payment of such bonds, or annual inter- est thereon. Vallelly v. Grand Forks Park Comrs. 15: 61, 111 N. W. 615, 16 N. D. 25. 75. A state does not, by authorizing the issuance of bonds for the making of an im- provement, and providing that they shall be paid from assessments on property bene- fited, enter into a contract that the method provided for raising the funds shall be fol- lowed, so that it will be liable thereon if the officers charged with the duty of col- 310 BONDS, III. b, 2, 3. lecting the funds fail to do so, and it per- mits itself to be sued on its contracts. Union Trust Co. v. State, 24: mi, 99 Pac. 183, 154 Cal. 716. Amount. Effect of laches on right of taxpayers to protest against illegality of city bonds, see LIMITATION OF ACTIONS, 63. Necessary parties to action on public im- provement bonds issued in excess of authorized amount, see PARTIES, 171. 76. When the power of a municipal cor- poration to issue water bonds is derived from a statute which imposes the condition precedent that any issuance of bonds for such purpose must first be submitted to, and authorized by, the voters, the voters cannot delegate to the city council the power to fix the amount of the bonds. Stern v. Fargo, 26: 665, 122 N. W. 403, 18 N. D. 289. 77. An overissue of public-improvement bonds will not invalidate all those issued, if the statute contemplated that bonds might be issued at different times until the aggregate issue equaled the authorized amount, but only those issued after the limit is passed. Meyer v. San Francisco, 10 : no, 88 Pac. 722, 150 Cal. 131. 2. For what purpose. (See also same heading in Digest L.R.A. 1-10.) Constitutionality of statute as to, see CON- STITUTIONAL LAW, 366, 401. For acquiring ice plant, see CONSTITU- TIONAL LAW, 366, 401; MUNICIPAL COR- PORATIONS, 311. Purposes for which public money may be used generally, see PUBLIC MONEY, II. 78. That a harbor impr /ement for which bonds are voted by a county is to be made upon plans devised by improvement districts does not make them aid bonds for the benefit of such districts so as not to be within the authority of a statute permitting the county to undertake the harbor improvement. Elaine v. Hamilton. 35= 577, H6 Pac. 1076, 64 Wash. 353. 79. Bonds to erect, construct, and "equip" a school are authorized by statu- tory power to issue them to erect, con- struct, and "complete" schools. Maxcy v. Oshkosh, 31:787, 128 N. W. 899, 1136, 144 Wis. 238. Railroad aid bonds. Effect of purchase by bank, of railroad-aid bonds, and placing amount of bid to credit of railroad company, see BANKS, 58. Presumption as to bona fide character of holder of, see EVIDENCE, 540, 541. Who may enforce tax levied to pay, see TAXES, 266. 80. Statutory authority to purchase land to be donated to a railroad company for de- pot purposes does i.ot impliedly authorize a municipal corporation to issue its negotiable bonds for the purchase price. Swanson v. Ottumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. Digest 1-52 L.R.A.(N.S.) 81. The construction of the road upon a certain route through the county, and the expenditure of the subscription therein, is not a condition precedent to the issuance of county bonds in aid of a railroad under a vote upon a submission of the question whether or not bonds in aid of the sub- scription should be issued upon condition that the company so locate and construct the road and expend tlio money. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A. 537. 82. The exoneration of a county from its former subscription to the stock of another cotporation is a condition precedent to the issuance of bonds in aid of a subscription to railroad stock, where the order for the election contained th,e condition that bonds in aid of the subscription should not be is- sued until the county was fully and com- pletely exonerated from the payment of the capital stock voted and authorized to be issued to the former company. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A. 537. 83. A statute providing for the forma- tion of railroad districts and the voting of bonds for the purchase or construction of railroads by such districts, and for the operating or leasing thereof, violates a con- stitutional provision prohibiting counties or other subdivisions of the state from lend- ing their credit, either directly or indirect- ly, to any business enterprise in aid of any individual, association, or corporation, since the building of a railroad is not within it- self an exercise of governmental power, but is a business enterprise. Atkinson v. Board of County Commissioners, 28: 412, 108 Pac. 1046, 18 Idaho, 282. (Annotated) For teachers' training school. 84. The maintenance of a training school for teachers is within the scope and pur- pose of a county government, for which it may authorize the issuance of bonds. Cox v. Pitt County, 16: 253, 60 S. E. 516, 146 N. C. 584. 3. Authorizing; elections. (See also same heading in Digest L.R.A. 1-10.) 85. An appropriation authorized by the voters is not invalid because the proposal on which it was submitted mentioned ob- jects in the disjunctive, where the disjunc- tive propositions are but details which may arise in carrying out the enterprise, as where the proposed object is the acquisi- tion of sites for wharves and docks and of the rights and interests necessary to be ac- quired in aid of said improvement, "or of securing the drainage or commercial pub- lic facilities and benefits to be derived therefrom." Elaine v. Hamilton, 35: 577, 116 Pac. 1076, 64 Wash. 353. 86. The test of whether a proposition for issuance of public bonds is single, so that it cannot be submitted to the voters in combination with others, is not its ability to stand alone, but whether or not BONDS, III. b, 3. 311 the several parts of a project are so re- lated that, united, they form in fact but one rounded whole. Elaine v. Hamilton, 35: 577, H6 Pac. 1076, 64 Wash. 353. 87. Bonds for the improvement of the harbor facilities of a county are not in- valid because the proposition to issue them was submitted to vote as a single one, while the total sum is, by the resolution for sub- mission, divided into separate amounts for excavation of a canal connecting two bodies of water, for improving the channel of a river, for diverting the waters of another river, and for the acquisition of sites for wharves and docks and other necessary rights and interests in aid of the improve- ment, if the separate items provided for are so naturally and necessarily related that they are in fact a single project consisting of interdependent parts. Elaine v. Hamil- ton, 35: 577, 116 Pac. 1076, 64 Wash. 353. 88. A proposition attempting to refer to the qualified property taxpaying voters of a city the question whether the city shall be allowed to become indebted for "fire department improvements," under a constitutional provision conferring power upon municipal corporations to become in- debted in an amount exceeding 5 per cent of the valuation of the taxable property for the purpose of purchasing, construct- ing, or repairing "public utilities" to be owned exclusively by the city when au- thorized by a majority of the qualified property taxpaying voters thereof, is too general, as it does not apprise the voters of the nature of the specific utility the city wishes to purchase, construct, or re- pair, and therefore renders void an elec- tion held for the purpose of voting on such general proposition. Coleman v. Frame, 31: 556, 109 Pac. 928, 26 Okla. 193. Notice of election. 89. The issuing and sale of municipal bonds which have previously been confirmed and validated in a proper proceeding under a statute conferring power upon the courts to determine whether a given municipality seeking to issue bonds had complied with all of the constitutional prerequisites cannot be enjoined by tax- payers upon the ground that the consti- tutional prerequisites as to notice of elec- tion, and as to submission of the ques- tions of issuing bonds for different pur- poses, so that the bonds for each specific purpose could be voted for or against sepa- rately, were not complied with. Holton v. Camilla, 31: 116, 68 S. E. 472, 134 Ga. 560. 90. As the duties of a city auditor in issuing notice of a municipal bond 'issue election are purely ministerial, such notice must follow the terms and conditions of the resolution authorizing the election. Stern v. Fargo, 26: 665, 122 N. W. 403, 18 N. I). 289. 91. A resolution of a city council pro- viding for the issuance of $100,000 in bonds, or such part thereof as may be required for the construction of a waterworks pumping station and electric light plant, and a notice Digest 1-52 L.R.A.(N.S.) of an election to vote on such issuance, in the same language as the resolution, do not state the amount of the bonds to be voted upon, within the meaning of a statute re- quiring such notice to state the amount of the bonds to be issued, as thereunder voters are entitled to know definitely what is proposed in the way of increasing the mu- nicipal indebtedness; and an election held pursuant to such defective notice is invalid. Stern v. Fargo, 26: 665, 122 N. W. 403, 18 N. D. 289. 92. A resolution of a city council pro- viding for a bond issue election, and a notice of such election, under a statute requiring that the question of issuing bonds for the construction of waterworks shall be submit- ted to the voters of the city after notice stating the purpose for which the bonds are to be issued, must both state the specific purpose for which the bonds are to be is- sued. Stern v. Fargo, 26: 665, 122 N. W. 403, 18 N. D. 289. 93. A resolution of a city council pro- viding for an election to vote on the issu- ance of bonds, and the notice by the city auditor of such election, which state the purposes of the bond issue to be for the construction of a waterworks pumping station and to install an electric light plant in connection therewith, state two in- dependent purposes in one proposition, by reason of which the voter must vote either for or against both, whereas he is entitled to vote for or against eithes, separately; and an election made pursuant to such resolution and notice is thereby rendered invalid. Stern v. Fargo, 26: 665, 122 N. W. 403, 18 N. D. 289. 94. The issuing of bonds by a city for the construction of waterworks and for an electric light plant being for different pur- poses, a resolution of the city council pro- viding for an election to vote on the issu- ance of bonds for the construction of a waterworks pumping station, and an elec- tric light plant in connection with such station, does not provide for the submission of the question of the issuance of bonds for a single purpose by the use of the phrase "in connection with," so as not to fall with- in the rule that two independent proposi- tions cannot be so submitted as to require a vote for or against both. Stern v. Fargo, 26 : 665, 122 N. W. 403, 18 N. D. 289. (Annotated) Who entitled to note. 95. Women entitled to vote "at any dis- trict meeting or school election" may law- fully vote on the question of the issuance of school bonds. Olive v. School Dist. No. 1, 27: 522, 125 N. W. 141, 86 Neb. 135. (Annotated) Two-thirds vote. 96. The submission to the voters of a municipal corporation, of the question of issuing bonds for a public improvement, is not invalid because the statute author- izing it does not require approval by a two-thirds majority of the voters as re- quired by the Constitution, since the stat- ute need not repeat the requirements of 312 BONDS, III. b, 4 IV. that instrument. Render v. Louisville, 32: 530, 134 S. W. 458, 142 Ky. 409. 97. Ballots rejected a unintelligible or illegal should not be counted in determin- ing the total vote cast upon a proposition to issue bonds, under a statute requiring its adoption by three fifths of the qualified voters of the town or city voting at the election. State ex rel. Short v. Clausen, 45: 714, 130 Pac. 479, 72 Wash. 409. (Annotated) 4. Form; conditions and regulations of issue. (See also same heading in Digest L.R.A. 1-10.) Conditions precedent to raising fund for erection of school building, see PUBLIC MONEYS, 1. 98. A heading "manual training school bond" of a certain city is sufficient as a name for a bond issued by the city to erect a certain memorial school of that char- acter, to comply with the statute requiring bonds to bear "an appropriate name indi- cating the purpose of their issue." Maxcy v. Oshkosh, 31:787, 128 N. W. 899, 144 Wis. 238. Providing means for paying. 99. A provision in an c-dinance au- thorizing a bond issue of a certain amount, for a tax levy to pay the principal and in- terest on the bonds is a sufficient compli- ance with a statute requiring a provision for a tax to pay the principal and interest within twenty years, where the bonds are to bear interest at a specified per cent, since the amount of the tax levy is ca- pable of easy calculation, and it is not necessary to specify the amount to be raised in dollars and cents. Maxcy v. Osh- kosh, 31: 787, 128 N. W. 899, 144 Wis. 238. 100. Under a statute requiring the system or plan proposed for the acquisition of a public improvement to be submitted to the vote of the people, the manner of payment of bonds should be submitted, as well as the question of their authorization. Hansard v. Harrington, 24: 1273, 103 Pac. 40, 54 Wash. 161. Negotiable bonds. 101. The words of negotiability cannot be ignored and recovery permitted as upon war- rants, in case a municipal corporation is- sues negotiable bonds without authority, so that the instruments are void. Swanson v. Ottumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. 5. Who are, and rights of, Itona fide holders. (See also same heading in Digest L.R.A. 1-70.) Presumption and burden of proof, see EVI- DENCE, 540, 541. Findings by court in suit on county aid bonds, see TRIAL, 1109. Digest 1-52 L.R.A. (N.S.) 102. Purchasers of municipal bonds are charged with notice of the authority and power of the municipality to issue them as conferred by statute. Swanson v. Ot- tumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. 103. r lhe incidental benefit to a municipal corporation through the location within its limits of a railroad depot will not author- ize a recovery against it upon a quantum meruit by purchasers of bonds which it is- sued without authority and donated to the railroad company to pay for the needed land, where the company paid for the land out of its own funds, and sold the bonds to reimburse itself for the outlay. Swanson v. Ottumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. 104. Bonds issued by a county in aid of a railroad company are not invalidated in the hands of a bona fide holder for value by the failure of the company to comply with a condition on which they were issued, that the road should be located and constructed upon a certain route through the county, and that the money received from the bonds should be expended therein. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A: 537. (Annotated) 6. Estoppel as to; ratification. (See same heading in Digest L.R.A. 170.) 7. Payment; time and place of. (See also same heading in Digest L.R.A. 1-70.) 105. A general judgment cannot be en- tered against a municipal corporation upon improvement bonds which were issued un- der a statute which became a part of the contract, and provided that they should be paid only out of funds collected from special assessments upon the benefited property. Meyer v. San Francisco, 10: no, 88 Pac. 722, 150 Cal. 131. 8. Actions and defenses; remedies. (See also same heading in Digest L.R.A. 1-70.) 106. The holder of municipal bonds may maintain an action upon them against the municipality to prevent their being barred by the statute of limitations, although they are payable only out of funds to be raised by special assessment against property bene- fited. Meyer v. San Francisco, 10: no, 88 Pac. 722, 150 Cal. 131. IV. State bonds. Statute limiting time for presentation of, see CONSTITUTIONAL LAW, 817; LIMI- TATION OF ACTIONS, 5. Impairing contract right to use state bonds in payment for state lands, see CONSTI- TUTIONAL LAW, 817. BONUS BOOKS. 313 Repeal of statute authorizing tender in . payment for state lands, see STATUTES, : 332. Taxation of, see TAXES, 82, 83. 107. Under a statute authorizing the sale of state bonds for not less than par, the sale must be at the face value plus the amount of accrued interest, or the interest must run from date of sale. Smith v. State ex rel. McNeil, 35: 789, 56 So. 179, 99 Miss. 859. (Annotated) 10iS. 'iliat state officials sold state bonds for the amount of the principal under the promise that they would carry accrued in- terest, in good faith, acting under the mis- taken belief that they would in fact do so, does not entitle the purchaser to enforce payment of such interest contrary to the provisions of the statute. Smith v. State ex rel. McNeil, 35:789, 56 So. 179, 99 Miss. 859. 109. State officials cannot be compelled to issue warrants for the payment of that portion of interest on state bonds which had accrued when the bonds were issued, where the statute prohibits sale of the bonds for less than par, and the sum re- ceived by the state for the bonds equaled the principal only. Smith v. State ex rel. McNeil, 35: 789, 56 So. 179, 99 Miss. 859. 110. The burning of the state capitol building creates an emergency for the se- curing of money with which to replace it, within the provision of a Constitution au- thorizing the submission to the voters of a proposition to issue bonds in case of un- foreseen emergencies. Church v. Hadley, 39: 248, 145 S. W. 8, 240 Mo. 680. 111. The fund commissioners may, after they have failed to sell the bonds by their own efforts, pfty a commission to brokers to dispose of them, under a statute provid- ing for the issuance of a certain amount of bonds to build a state capitol, which shall be sold for not less than par, and the pro- ceeds, which are estimated by the statute to equal the aggregate amount of bonds au- thorized to be issued, "more or less," ap- propriated to the construction of the build- ing. Church v. Hadley, 39: 248, 145 S. W. 8, 240 Mo. 680. (Annotated) BONUS. Illegal, to secure discharge of mortgage, see ASSUMPSIT, 49. Contract to pay bonus to electric railway, see CONTRACTS, 151, 357, 360; EVI- DENCE, 1003. Provision for bonus to corporate official executing contract for corporation, see CONTRACTS, 458. To purchasing agent to secure his business, see CONTRACTS, 598. Agreement to pay, on repurchase by corpo- ration of stock sold, see CORPORATIONS, 80. Digest 1-52 L.R.A.(N.S.) Issue of stock as bonus for use of names as directors, see CORPORATIONS, 213. Election to treat mortgage as due, prevent- ing mortgagee's recovery of, see ELEC- TION OF REMEDIES, 37. Evidence as to usury because of bonus to lender's agent, see EVIDENCE, 1802. Recovery of secret bonus paid to insurance agent, see INSURANCE, 30a. Right of life tenant to bonus paid for ex- tension of lease, see LIFE TENANTS, 6. To servant, see MASTER AND SERVANT, 80- 82. Compelling one joint owner to account to co-owners for bonus paid him, see TRUSTS, 119. Effect of agent's bonus to render loan usurious, see USURY, 27-29. BOOK ACCOUNTS. Manner of pledging, see PLEDGE AND COL- LATERAL SECURITY, 1. In general, see ACCOUNTS. BOOKKEEPING. Pres ribing uniform system of accounting and bookkeeping for carriers, see CON- STITUTIONAL LAW, 114, 442; INTER- STATE COMMERCE COMMISSION, 6-10. BOOK MAKING. See CONTRACTS, 583; GAMING, 22-26; LI- CENSE, 30, 42. BOOKS. Of account generally, see ACCOUNT BOOKS. Contempt in refusing to turn over corpo- rate books to receiver, see APPEAL AND ERROR, 103. Effect of failure to keep or produce, on right to discharge in bankruptcy, see BANK- RUPTCY, 152, 153. Contempt of officers for refusing to produce books, see CONTEMPT, 14, 36, 37. Right to inspect books of corporation, see CORPORATIONS, V. e, 3. Transfer of stock on books of corporation, see CORPORATIONS, 223-238. Compulsory production of books or docu- ments, see CRIMINAL LAW, 108-118; DISCOVERY AND INSPECTION, I. Secondary evidence of contents, see EVI- DENCE, 707. Provision in insurance policy as to keeping set of books, see INSURANCE, III. e, 1, d. Right to inspect books of partnership, see PARTNERSHIP, 57, 58. Right to inspect books of municipality, see MUNICIPAL CORPORATIONS, II. i. 314 BOOKSELLER BOUNDARIES, i. Inspection of, as unlawful search, see SEARCH AND SKI/I KM, 3. As baggage, see CARRIERS, 37-42, 702. Implied contract to furnish manuscript for, see CONTRACTS, 12. Copyright of, see COPYRIGHT. Damages for loss or destruction of manu- script, see DAMAGES, 450, 451. Books purchased by wife as a "necessary," see HUSBAND AND WIFE, 12. Injunction against publication of, see IN- JUNCTION, 99. Injunction against wrongful use of name of, see INJUNCTION, 395. Criticism of, as libel, see LIBEL AND SLANDER, 21. Fraud in sale of, see PRINCIPAL AND AGENT, 85. Sale of, on instalment plan, see SALE, 129. Rescission of contract of purchase, see SALE, 197, 218. In schools, see SCHOOLS, V. Question for jury whether book is obscene, see TRIAL, 263. BOOKSELLER. Liability of, on representations, see PRINCI- PAL AND AGENT, 87. BOOMS. Injury to water power caused by, see AC- TION OR SUIT, 93; LIMITATION OF ACTIONS, 80, 2C3; NUISANCES, 200. Right of riparian owner to maintain, see WATERS, 110. BOROUGH. See MUNICIPAL CORPORATIONS. BORROWING MONEY. Authority of bank cashier as to, see BANKS, 27, 29. Agent's authority as to, see PRINCIPAL AND AGENT, 42, 73. Power of private corporation as to, see CORPORATIONS, 86. Power of corporate officer as to, see CORPO- RATIONS, 143. Authority of county as to, see COUNTIES, II. b. Power of municipality as to, see MUNICIPAL CORPORATIONS, II. e. Authority of town officers as to, see TOWNS, 10-12. Digest 1-52 L.R.A.(N.S.) BOTTLE. Injury to patron at place of amusement by bottle dropped from grand stand, see AMUSEMENTS, 6. Placing labels on, as dangerous employ- ment, see MASTER AND SERVANT, 151. BOULDER. Injury to passenger by boulder rolling down mountain side, see CARRIERS, 215, 216. BOULEVARD. Prohibiting erection of advertising struc- ture near to, see CONSTITUTIONAL LAW, 320. BOUNDARIES. I. Of nation, state or municipality, 1 5. II. Of private property, 618. a. In general; rules for fixing, 6-9. 6. By highway or passageway, 10-14. c. By ivaters, 1518. Changing boundaries of school districts, see SCHOOLS, 42-45. /. Of nation, state or municipality. (See also same heading in Digest L.R.A.. 1-70.) Effect of change of boundary lines on domi- cil, see DOMICIL, 8. River as state bounndary. Jurisdiction of action arising over river forming boundary, see COURTS, 19. 1. If a navigable river dividing the ter- ritory of two states cuts a new channel when at flood stage, and by a sudden and violent eruption of the water, due to an ice gorge, visibly tears away and submerges lands upon one side, the state boundary re- mains stationary at its former location, and the titles and boundaries of private owners remain unchanged. Fowler v. Wood, 6: 162, 85 Pac. 763, 73 Kan. 511. 2. The dredging of a new channel by tne government in a river which forms the boundary between two states does not change the state boundary from the middle of the former main navigable channel to the newly formed channel. Whiteside v. Norton, 45: 112, 205 Fed. 5, 123 C. C. A. 313. 3. Under the concurrent jurisdiction over boundary rivers conferred upon a state by Congress, it may punish one for fishing with nets without its license, on the por- tion of the river within the territorial juris- diction of the neighboring state, although BOUNDARIES, II. a, b. 315 he has a license from the latter state. State v. Moyers, 41: 366, 136 N. W. 896, 155 Iowa, 678. (Annotated) 4. The boundary and jurisdiction of a state which has been along the main chan- nel of a stream is not changed by the con- struction by a railroad company, of a dam which throws the main channel to the other side of an island for the purpose of conven- ience in the construction of a bridge. State v. owen, 39: 200, 135 N. W. 494, 149 Wis. 203. (Annotated) Of municipality or township. Domicil of one through whose dwelling runs the boundary line between two munici- palities, see DOMICIL, 1. 5. A municipal corporation bounded by a navigable river has no jurisdiction over the sale of intoxicating liquor on a pa- vilion erected on spiles driven into the soil jf the river, and reached from the shore only by boat or a float fastened by ropes one of which is attached to a bulkhead on the shore. Treuth v. State, 47: 1161, 87 Atl. 663, 120 Md. 257. (Annotated) //. Of private property, a. In general; rules for fixing. (See also same heading in Digest L.R.A., 1-70.) Adverse possession beyond, see ADVERSE POSSESSION, I. b. Loss of title to property drifting over bound- ary line, see ADJOINING LANDOWNERS. Contract as to, without consideration, see CONTRACTS, 54. Easement in joint stairway on, see EASE- MENTS, 11, 49. Encroachment beyond, see ENCROACH- MENTS; INJUNCTION, 22, 34; MASTER AND SERVANT, 1012; PARTY WALL, 8. Jurisdiction of equity of actions affecting, see EQUITY, 9. Estoppel to assert true boundary lines, see ESTOPPEL, 58, 151, 172. Presumption and burden of proof as to, see EVIDENCE, 505, 619. Admissibility of evidence as to, see EVI- DENCE, 1453. Fences on boundary line, see FENCES, II. Rights as to trees on boundary line, see HIGHWAYS, 105; TREES, 1. Easement to maintain pipes on, see IN- JUNCTION, 178. Dismissal of suit to enjoin interference with construction of fence as bar to action to establish boundary, see JUDG- MENT, 115-117. Of mining location, see MINES, 8-12. Indication of, upon plat, see PLAT. Mistake of surveyor employed to locate, see SURVEYORS. Question for jury as to, see TRIAL, 619. 6. Where a well has been put down by adjoining owners on what they supposed to be the division line, but what proved to be a short distance therefrom, under an agree- Digest 1-52 L.R.A.(N.S.) ment between them and the well digger that the three were to own the well, and that the ownership "should remain as it was, regard- less of any change in the line," and an agreement in writing, drawn up, but not signed, and subsequently the adjoining own- ers purchase the interest of the well digger, and expend other sums in improving the well, the digging and location of the well is in no manner a settlement of the bound- ary line between the two lots. Johnson v. Bartron, 44: 557, 137 N. W. 1092, 23 N. D. 629. 7. A property owner is not entitled to rely on the erection of a fence by a neighbor as the establishment of a boundary line, where the fence existed only a comparative- ly short period of time, and the neighbor was honestly mistaken in erecting it, while the property owner had the means of know- ing that it was not on the true Jine. Cot- trell v. Pickering, 10: 404, 88 Pac. 696, 32 Utah, 62. 8. A railroad company is presumed, af- ter the lapse of twenty years, to have ac- quiesced in the fact that a fence placed along land dedicated for depot purposes, but not in fact needed for public use, represents the true boundary line, although neither it nor the adjoining owner is required by law to maintain the fence. Chicago, M. & St. P. R. Co. v. Hanken, 19: 216, 118 N. W. 527, 140 Iowa, 372. 9. The mere location by an abutting property owner of a fence for his own con- venience, without any reference to the boundary between his property and a pub- lic alley, will give the public no right to the inclosed space between the true bounda- ry and the fence. Weber v. Detroit, 36: 1056, 123 N. W. 540, 159 Mich. 14. &. By highivay or passageway. (See also same heading in Digest L.R.A. 1-10.) 10. The mere bounding of land on a private pass way does not carry title to the fee of the way, in the absence of any- thing to show an intention that it should do so. Seery v. Waterbury, 25: 681, 74 Atl. 908, 82 Conn. 567. 11. A deed of a tract of land giving the grantee the right to open and use a road between the land conveyed and that of a third person, and to extend such road be- tween the lot conveyed and that of another person specified, conveys all the land up to such road, although a slight bend occurs at the point of extension, and the boundary, as contained in the deed, is a specified course "with line of alleys." Clayton v. Gilmer County Court, 2: 598, 52 S. E. 103, 58 W. Va. 253. 12. A deed which calls for the line of a private road as a boundary of the tract by it conveyed, and gives to the grantee the right to open and use such road, does not pass to the grantee the title in fee to any part of the road. Clayton v. Gilmer Coun- ty Court, 2: 598, 52 S. E. 103, 58 W. Va. 253. 316 BOUNDARIES, II. c BRAKEMEN. 13. The bounding of a grant upon a private alley which the grantor lias c'ut ort" from one end of the property granted, and which is open and in use at the time of the grant, will carry title to the alley, in the absence of anything to indicate a con- trary intention. Saccone v. West End Trust Co. 24: 539, 73 Atl. 971, 224 Pa. 554. (Annotated) 14. Title to a private alley will not pass with a grant of land bounding thereon, if the lot is conveyed by metes and bounds, and the alley, as such, is not made a boundary. Brown v. Oregon Short Line 11. Co. 24: 86, 102 Pac. 740, 36 Utah, 257. c. By ii'aters. (See also same heading in Digest L.R.A. 1-10.) Boundary as between individual and pub- lic, see WATERS, I. c, 4. Boundary under grant by government of land' under water* see WATERS, 90-96. Change of, by accretions, see WATEKS, 112, 113, 152-159. Title to island as between individuals and public, see WATERS, 26, 91, 93, 95, 114- 116. Title to island as between individuals, see WATERS, 164. Effect of deposit of alluvion upon, see WATERS, 160-163. See also supra, 1. 15. The word "seashore,' in a convey- ance describing land granted as "situate on the seashore" and bounding it "on the west by the seashore," must be taken to mean the "foreshore" in its strict legal sense, i. e., the land situate between medium high and low water marks. Mellor v. Walmesley, 4 B. R. C. 728, [1905] 2 Ch. 164. Also Re- ported in 74 L. J. Ch. N. S. 475, 53 Week. Rep. 581, 93 L. T. N. S. 574, 21 Times L. R. 591. (Annotated) River. Referring to river as boundary in deed, see DEEDS, 40. Presumption as to, see EVIDENCE, 709. 16. A boundary in a state patent of land said to lie on the bank of a river, beginning at a tree on the east shore of the river, thence around the land to the river, and then "up and along the same" to the place of beginning, does not prevent the title from extending to the thread of the stream. Fulton Light, Heat, & Power Co. v. State, 37: 307, 94 N. E. 199, 200 N. Y. 400. Pond. 17. A call in a deed to a well-known and long-used pond stops at the edge of the pond, and does not carry title to the center. Patapsco Guano Co. v. Bowers-White Lum- ber Co. 13: 318, 59 S. E. 538, 146 N. C. 187. Meandered waters. 18. The section lines of the government surveys of land bordering on water courses maintain their course to the water's edge, and do not stop at the meander lines. Pe- Digest 1-52 L.R.A. (N.S.) oria v. Central Nat. Bank, 12: 687, 79 N. E. 296, 224 111. 43. BOUNDARY WALL. Effect of extending onto adjoining prop- erty beneath surface, upon right of ad- joining owner to use it, see PARTY WALL, 8. BOWLING ALLEY. As nuisance, see COURTS, 160; MUNICIPAL CORPORATIONS, 150; NUISANCES, 16. BOX CARS. Grant by railroad company of exclusive right to use box cars for advertising purposes, see CORPORATIONS, 53. BOYCOTT. As conspiracy, see CONSPIRACY, III. b. Injunction against, see CONSTITUTIONAL LAW, 754; INJUNCTION, 134, 137, 153- 162, 443. Power of minority stockholder to prevent directors of company from abandoning injunction suit against boycott, see CORPORATIONS, 258. .Charge of, as libel, see LIBEL AND SLANDER, 34. By insurance company, see MONOPOLY AND COMBINATIONS, 82. BOYS. See INFANTS. BRAKE. Carrier's liability for injury due to fellow passenger releasing set brake, see CAR- BIERS, 232. Injury to passenger as result of defect in, see CARRIERS, 303, 304. Servant's assumption of risk from defects in, see MASTER AND SERVANT, 540. BRAKEMEN. Authority of, to eject trespassers, see CAB- RIERS, 397-400. As fellow servants, see MASTER AND SERV- ANT, II. e, 5, a (2). , BRANCH RAILROAD BREACH OF PROMISE, II. 317 Master's liability for injury to, see MASTER AND SERVANT, II. a, 4, d. Contributory negligence of, see MASTEB AND SERVANT, II. c. BRANCH RAILROAD. Condemnation of land for, see EMINENT DOMAIN, 37, 90-102. BRANDS. State regulation as to misbranding food and drugs as interference with com- merce, see COMMERCE, 105-108. Admissibility of cattle brands in evidence, see EVIDENCE, 716, 1992. Opinion evidence as to inferences to be drawn from appearance of cattle brands, see EVIDENCE, 1181. Sale of articles described as of a particular brand, see SALE, 96. BREACH. Of contract, see CONTRACTS, IV. e. Of covenant, see COVENANTS AND CON- DITIONS, III. Of condition in pardon, see CRIMINAL LAW, 306-314. Of peace, see BREACH OF PEACE. Of promise, see BREACH OF PROMISE. BREACH OF PEACE. Ordinance punishing use of language calcu- lated to provoke, see MUNICIPAL COR- PORATIONS, 213; TRIAL, 1080. Ambiguity of statute for punishment ef, . see STATUTES, 42, 43. 1. Whooping, yelling, and uttering loud and vociferous language to the gross dis- turbance of the public peace is prohibited by a statute providing that "every person who wilfully and wrongfully commits any act . . . which grossly disturbs the pub- lic peace or health . . . although no punishment is expressly prescribed there- for by this Code, is guilty of a misdemean- or." Stewart v. State, 32: 505, 109 Pac. 243, 4 Okla. Crim. Rep. 564. (Annotated) 2. There is no right to display a red Hag in a procession where those composing the procession know that the natural and inevitable consequence will be to disturb the public peace and tranquillity, in viola- tion of a statute or ordinance. People v. Burman, 25: 251, 117 N. W. 589, 154 Mich. 150. (Annotated) 3. A conviction and fine for being dis- orderly, shooting a dog in a street, and in- sulting a citizen, does not forfeit a peace bond under statutory provisions that such Digest 1-52 L,.R.A.(N.S.) bond shall be required upon apprehension that the obligor will commit violence en- dangering human life, or a felony, or an offense against the person or property of another, and will be forfeited by conviction of a felony or an offense constituting a breach of the peace. Ball v. Com. 40: 186, 147 S. W. 953. 149 Ky. 260. (Annotated) 4. The habitual sale of pools on horse races at a track where many persons are assembled to witness the races is an act which grossly disturbs the public peace and openly outrages public decency, within the meaning of a statute providing for the punishment of such acts. State v. Ayers, 10 : 992, 88 Pac. 653, 49 Or. 61. BREACH OF PROMISE. /. In general, 1. II. Defenses; what will excuse breach, 2-5. Survival of right of action for, see ABATE- MENT AND REVIVAL, 13, 14. Effect of failure of court to define term "seduction," see APPEAL AND ERROR, 1429. Exemplary damages for, see DAMAGES, 44- 46. Measure of damages for, see COURTS, 302; DAMAGES, 29, 317-320. Mitigation of damages for, see DAMAGES, 718, 719. Aggravation of damages for, see DAMAGES, 729, 730. Evidence in action for, see EVIDENCE, 804, 1319, 1813, 2015, 2431. Pleading in action for, see PLEADING, 207. Preventing comments of counsel in action for, see TRIAL, 61. /. In general. (See also same heading in Digest L.R.A. 1-10.) 1. One who, having engaged to marry a woman, postpones the ceremony because of her ill health, undertakes to wait a rea- sonable time for her recovery. Travis v. Schnebly, 40: 585, 122 Pac. 316, 68 Wash. 1. //. Defenses; what will excuse breach. (See also same heading in Digest L.R.A. 1-10.) 2. A promise of marriage made by a man who, to the knowledge of the promisee, was at the time of making the promise married, is void as being against public policy, and therefore cannot be enforced by action after the death of the promisor's wife. Wilson v. Carnley, 1 B. R. C. 901, [1908] 1 K. B. 729. Also Reported in 77 L. J. K. B. N. S. 594, 98 L. T. N. S. 265, 24 Times L. R. 277, 52 Sol. Jo. 239. (Annotated) 3. A son of consumptive parents will 318 BREAD BRICK YARD. not render himself liable in damages for re- fusal to perform his promise to marry a woman afflicted with pulmonary consump- tion, although he knew at the time of mak- ing the promise that she was so afflicted, at least where such marriage would violate the spirit of the statute against the spread of such disease. Grover v. Zook, 7: 582, 87 Pac. 638, 44 Wash. 489. (Annotated) 4. A man is released from his promise of marriage if the other party to the con- tract becomes ill without fault of either party, after the promise is made, and fails to recover her health within a reasonable time thereafter. Travis v. Schnebly, 40: 585, 122 Pac. 316, 68 Wash. 1. (Annotated) 5. Where the defendant's breach of a contract for marriage is complete, and the plaintiff has thereafter signified intention to treat the contract as terminated ex- cept for action thereon, an offer by the de- fendant to renew and perform constitutes no defense to the action. Kendall v. Dunn, 43: 556, 76 S. E. 454, 71 W. Va. 262. BREAD. Regulating size and weight of loaves, see CONSTITUTIONAL LAW, 247, 500; MU- NICIPAL CORPORATIONS, 190-192. Unfair competition by copying size, shape, etc., of, see UNFAIB COMPETITION, 7-9. BREAKING. Sufficiency of, to constitute burglary, see BURGLARY, 5-8. BREWING COMPANY. Implied power of, to construct saloon and boarding house, see CORPORATIONS, 54, 90. Contract by brewing company to indemnify surety on bond of retailer, see CORPO- BATIONS, 60, 93. BRIBERY. Disbarment of attorney receiving bribe, see ATTORNEYS, 5. Attempt to bribe juror as contempt, see CONTEMPT, 7. Right of citizen who has undergone punish- ment for, to vote, see ELECTIONS, 8. Estoppel of one soliciting bribe as officer to deny his right to act as such officer, bee ESTOPPEL, 208. Admissibility of evidence to show, see EVI- DENCE, 834, 1640. Corroboration of testimony of accomplice, see EVIDENCE, 2367-2370. Charge of, as libel, see LIBEL AND SLANDER, 33. 1. The giving or taking by members of a labor union, of strike benefits, such as Digest 1-52 L.R.A.(N.S-) traveling expenses and allowance for main- tenance while on a strike, is not bribery. Everett Waddey Co. v. Richmond Typo- graphical Union No. 90, 5: 792, 53 S. E. 273, 105 Va. 188. 2. A member of a board of education of a city, who accepts money as a bribe to in- fluence his opinion, judgment, and action in favor of letting or causing to be let a con- tract for cleaning school buildings, has suf- ficient legal authority in that regard to ren- der him guilty of bribery under Kan. Gen. Stat. 1901, 2212, although the board has by resolution referred the matter of cleaning the buildings to the superintendent of build- ings, who is an employee, but not a member, of the board, where it appears that the member charged with the offense let the contract with the approval of the superin- tendent of buildings. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. 3. Acceptance of a gift for prior official action without corrupt private understand- ing is not bribery. State v. Coffey, 39: 704, 119 Pac. 901, 161 Cal. 433. 4. A coroner having the powers of a magistrate in a certain class of cases to is- sue warrants, hold examinations, and to commit or discharge the accused, is within the provisions of a statute providing for the punishment of a "judicial officer" who receives a bribe upon the understanding that his decision or other official action shall be influenced thereby. People v. Jack- son, 15: 1173, 84 N. E. 65, 191 N. Y. 293. 5. That a death occurred out of the county, and the coroner has never viewed the body, does not prevent his being pun- ishable under a statute providing that a judicial officer who receives a bribe upon an agreement that his action, decision, or oth- er official proceeding shall be influenced thereby shall be guilty of a felony, if the act which caused the death was committed within his jurisdiction, and, having assumed to act in the case, he issues a warrant for the apprehension of accused, signed by him- self as coroner, and, having the prisener in his custody, he accepts a bribe to release him. People v. Jackson, 15: 1173, 84 N. E. 65, 191 N. Y. 293. (Annotated) BRICK KILN. Mandamus to compel permit for, see MAN- DAMUS, 135. Prohibiting erection of, within city limits, see MUNICIPAL CORPORATIONS, 148. As nuisance, see NUISANCES, 37. BRICK YARD. Ordinance making yard within city limits a nuisance, see CONSTITUTIONAL LAW, 425; COURTS, 159; MUNICIPAL CORPO- RATIONS, 149. BRIDGE COMPANY; BRIDGES, I. 319 BRIDGE COMPANY. Diversion of funds of, by majority stock- holders, see CORPORATIONS, 309, 310; LIMITATION OF ACTIONS, 150. Agreement among railroads controlling bridge company to maintain excessive rates for use of bridge, see JUDGMENT, 196. ]. The accumulation and division of a fund by a bridge company among a portion of the railroads using it, by means of the exaction of excessive tolls, cannot be justi- fied as a valid act to postpone competition by the erection of rival bridges, where th only road on one side of the bridge is left out of the division which is secretly made among the oaher roads. Dodd v. Pittsburg, C. C. & St. L. 11. Co. 16: 898, 106 S. W. 78 /, 127 Kv. 762. BRIDGES. I. In general, 17. II. Defects; injuries on, 823. III. Toll bridges. Acceptance of warrant in payment for con- struction of, as accord and satisfaction, see ACCORD AND SATISFACTION, 19, 20. Admiralty jurisdiction as to, see ADMIRAL- TY, 2, 3. Injury by collision of vessel with, see AD- MIRALTY, 2, 3; APPEAL AND ERROR, 61; COLLISION, 6; RECEIVERS, 2. Change of channel of boundary stream by construction of, see BOUNDARIES, 4. What excuses from bond to replace bridge, see CONTRACTS, 635. Right of railroad to construct, at certain point, see CORPORATIONS, 33. Indictment of railway company for allow- ing bridge to become unsafe, see COR- PORATIONS, 125. Time when county becomes indebted for, see COUNTIES, 26. Negligence of county as to, see COUNTIES, 10, 11. As nuisance, see COUNTIES, 12; NUISANCES, 101, 103-105, 111, 173. Damages for injury to, see DAMAGES, 459, 672. Damages caused by construction of ap- proach to, see DAMAGES, 563. Abandonment of easement in, see EASE- MENTS, 84, 85. Construction of approach to, in street, see EMINENT DOMAIN, 200, 201; HIGH- WAYS, 126; JOINT CREDITORS AND DEBTORS, 15, 16. Flooding of land by, see EMINENT DOMAIN, 204; LIMITATION OF ACTIONS, 201. Interference with wharves by construction of, see EMINENT DOMAIN, 243. Building interfering with operation of drawbridge, see ESTOPPEL, 12; PAR- TIES, 103; WATERS, 106, 109. Estoppel to deny liability for building of, see ESTOPPEL, 14. Digest 1-52 !L.R.A.(N.S.) Right of property owner to erect platform on his lot to enable him to pass there- from to bridge, see HIGHWAYS, 28. Right to construct overhead bridge in street, see HIGHWAYS, 38. Right of municipality to erect bridge so as to raise surface of street to certain grade, see HIGHWAYS, 134. To carry street across railroad track, see HIGHWAYS, 407; RAILROADS, 36, 42. Injunction to protect, see INJUNCTION, 7, 104, 372, 373. Injunction against location of, at certain point, see INJUNCTION, 236. Agreement among railroads using, to main- tain excessive rates for use of, see JUDGMENT, 197. Running of limitations against right to re- cover for injury to, see LIMITATION OF ACTIONS, 98. Validity of adoption of charter amendment authorizing building of, see MUNICIPAL CORPORATIONS, 17. Right of private action for negligent de- struction of, see NUISANCES, 98. Special injury resulting from construction or proposed construction of, giving right to private action, see NUISANCES, 101, 103-105, 111. Injunction against construction of, see NUISANCES, 103-105; PARTIES, 125. Contributory negligence of one approaching bridge crossing railroad track, see RAILROADS, 245. Diversion or obstruction of waters by, see RAILROADS, 303; TRIAL, 1015; WATERS, 204. Obstruction of navigation by, see COUNTIES, 12; MUNICIPAL CORPORATIONS, 355; WATERS, 105, 111. See also BRIDGE COMPANY. 7. In general. (See also same heading in Digest L.R.A. 1-70.) 1. A bridge is a highway, under Idaho Rev. Stat. 1887, 850, and it is subject to the laws applicable to highways. Sandpoint v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. 2. In constructing and maintaining a bridge for public use, a county is not lim- ited in its duty by the ordinary business use of the structure, but is required to pro- vide for what may be fairly anticipated for the proper accommodation of the public at large in the various occupations which, from time to time, may be pursued in the lo- cality where it is situated. Kovarik v. Saline County, 27: 832, 125 N. W. 1082, 86 Neb. 440. 3. A county which refuses to pay for material used by a citizen in repairing a bridge without authority from the proper officer cannot prevent his removing it and applying it to other uses, if it can be re- moved without leaving the bridge in worse condition than before the repairs were made. Floyd County v. Allen, 27: 1125, 126 S. W. 124, 137 Ky." 575. 4. Authority from the state to place 320 BRIDGES, II. bridge piers upon the bed of a river which, belongs to it does not absolve the owner from liability for injury to abutting prop- erty by a current deflected by the piers. White v. Pennsylvania R. Co. 38: 1040, 7$ Atl. 1035, 229 Pa. 480. Cost of constructing and maintaining. As a local improvement for which abutting property may be assessed, see CASES i i KTIFIED, 1; PUBLIC IMPROVEMENTS, 32. Bridge to carry railroad tracks over water- way or street, see DAMAGES, 51(5; EMI- NENT DOMAIN, 208; RAILROADS, 30, 31, 36, 42. Right to collect tolls on, see ESTOPPEL, 13; TOLLS AND TOLL ROADS, 1. Agreement by city to bear part of expense of strengthening city bridge for rail- road purposes, see MUNICIPAL CORPO- RATIONS, 237, 245. 5. A drainage district organized under 23, art. 4, chap. 89, Neb. Comp. Stat. 1-911, witli the power to construct its ditches across highways, but charged with the duty of restoring a highway so crossed or inter- sected "to its former state as near as may be, or in a sufficient manner not to have im- paired unnecessarily its usefulness," is bound to maintain and keep in repair bridges which it has constructed across such a ditch. Richardson County ex rel. Sheehan v. Drainage Dist. No. 1, 43: 695, 139 N. W. 648, 92 Neb. 776. (Annotated) 6. Kemble, that where a new channel has been made by a drainage district for a stream which has been bridged by the pub- lic authorities, if the new channel and bridge relieve the county of the burden of maintaining the old 'bridge, the new bridge should be maintained by the public, and not by the drainage district. Richardson Coun- ty ex rel. Sheehan v. Drainage Dist. No. 1, 43: 695, 139 N. W. 648, 92 Neb. 776. 7. The owner of a private mill and race way constructed entirely on his own land cannot be compelled to maintain a bridge constructed by the county ovpr the race way at its intersection with a highway laid out subsequent to the con- struction of the mill race, under a stat- ute subsequently enacted providing that any mill owner who now owns or may hereafter own or operate any canal or ditch that crosses a highway shall make and keep in good repair sufficient crossings, including all bridges, that may be necessary within their right of way. Franklin County v. Wilt, 31: 243, 126 N. W. 1007, 87 Neb. 132. (Annotated) II. Defects; injuries on. (See also same heading in Digest L.R.A. 1-10.) Injury to passenger through fall of, see CARRIERS, 277 ; EVIDENCE, 349. Injury by electric wire on, see ELECTRICITY, 22-25, 28, 52, 72; MASTER AND SERV- ANT, 1004. Digest 1-52 L.R.A.(N.S.) Presumption of negligence from carrying away of railroad bridge by high water, see EVIDENCE, 437. Burden of proof where railroad bridge col- lapses, see EVIDENCE, 392. Opinion evidence as to safety of, see EVI- DENCE, 1150-1152. Evidence in action for injuries caused by fall of, see EVIDENCE, 1873. Sufficiency of proof that injury was due to defective condition of bridge, see EVI- DENCE, 2073, 2074. Injury on trolley bridge within limits of highway, see HIGHWAYS, 329. Liability of contractor for injuries result- ing from defects in, see MASTER AND SERVANT, 1058, 1059. Proximate cause of injury on, see PROXI- MATE CAUSE, IV. c. Injury on defective railroad bridge, see RAILROADS, 11, 12. Injury to animal by falling through rail- road bridge, see RAILROADS, 184. Question for jury as to negligence, see TRIAL, 412, 413. 8. The owner of a bridge is not liable for the death of one carried over its side by the horse he was riding, because of fail- ure to maintain a proper guard rail, if the horse was so frightened by thunder and lightning that the ordinary rail which he was bound to maintain would not have prevented the accident. Stout v. Valle Crucis, S. & E. P. Turnpike Co. 31:804, 69 S. E. 508, 153 N. C. 513. 9. Failure to maintain hand rails along the sides of a bridge or causeway 40 feet long and 13J feet high at the center is negligence as matter of law, although logs are maintained along the sides of the roadway to prevent vehicles running over the sides. Stout v. Valle Crucis, S. & E. P. Turnpike Co. 31: 804, 69 S. E. 508, 153 N. C. 513. 10. A railing on a bridge, made of light, unbraced pine posts, bolted at the bottom, may be found to be insufficient to meet the requirements which the law imposes upon the owner to render the bridge safe for teams which may be upon it. Dardanelle Pontoon Bridge & Turnp. Co. v. Croom, 30: 360, 129 S. W. 280, 95 Ark. 284. 11. The proprietor of a toll bridge is liable for the loss of a team which fulls from the bridge and is killed because of the failure of such proprietor to use rea- sonable and ordinary care to see that the guard rail was sufficient to withstand such pressure as might be imposed upon it by teams likely to be upon the bridge. Dar- danelle Pontoon Bridge & Turnp. Co. v. Croom, 30: 360, 129 S. W. 280, 95 Ark. 284. (Annotated) Liability of city, county, or town. Prejudicial error in instruction, see APPEAL AND ERROR, 1343. Constitutionality of statute regulating driving of traction engine across bridge, see CONSTITUTIONAL LAW, 159. BRIDGES, II. 321 Municipal liability for injury by operation of drawbridge, see EVIDENCE, 2491; MUNICIPAL CORPORATIONS, 435, 436. Lack of barriers, see HIGHWAYS, 231, 235. Liability for death of traveler at ford con- structed in place of bridge, see HIGH- WAYS, 240; PROXIMATE CAUSE, 122. Liability for injury to municipal employee on, see MASTER AND SERVANT, 22; MU- NICIPAL CORPORATIONS, 376; TRIAL, 255. Duty to protect travelers from dangers not within limits of bridge, see MUNICIPAL CORPORATIONS, 320, 321. Imputing negligence of driver to person in- jured, see NEGLIGENCE, 263. Pleading in action for injury, see PLEAD- Negligence as question for jury, see TRIAL, 412. Refusal of instruction in action for injury, see TRIAL, 819. See also infra, 20, 21. 12. The duty of a county, under a stat- ute making it liable for special damages happening to any person or property by reason of insufficiency or want of repairs of a highway bridge which the county is liable to keep in repairs, is to construct and maintain bridges of sufficient capacity to meet the present ordinary demands, neces- sities, and uses of the public. Kovarik v. Saline County, 27: 832, 125 N. W. 1082, 86 Neb. 440. 13. The mere fact that a bridge is nar- rower than the highway, and that the bar- riers extend from the side of the bridge at right angles instead of being at an acute angle with the stream, does not constitute a wrongful construction, within the mean- ing of a statute rendering the county board of chosen freeholders liable for injury result- ing from the wrongful neglect to erect, rebuild, or repair the bridges over which they have control. Halm v. Board of Chosen Free- holders (N. J. Err. & App.) 28: 946, 76 Atl 1014, 78 N. jr. L. 712. 14. Lighting a bridge by artificial light is not a part of its erection, rebuilding, or repairing, within the meaning of a statute rendering the county board of chosen free- holders liable for injury resulting from the wrongful neglect to erect, rebuild, or repair the bridges over which they have control. Halm v. Board of Chosen Freeholders (N. J. Err. & App.) 28: 946, 76 Atl. 1014, 78 N. J. L. 712. 15. County commissioners are bound, under a statutory duty to repair bridges, to strengthen them to meet the increased demands upon them by the class of ve- hicles in general use in the locality where they are situated, and do not perform their duty by merely maintaining them in the condition in which they were constructed, although they were adequate to meet the demands of traffic existing at that time. Gehringer v. Lehigh County, 35: 1127, 80 Atl. 987, 231 Pa. 497. 16. Where the duty to maintain county bridges is placed upon the county commis- sioners by statute, their neglect to perform Digest 1-52 L.R.A.(N.S.) 21 their duty, to the injury of a traveler, will render the county liable for the injury. Gehringer v. Lehigh County, 35: 1127, 80 Atl. 987, 231 Pa. 497. 17. When the timbers of a bridge have been in use so long that it may reason- ably be expected that decay has set in, it is negligence on the part of the authori- ties charged with the duty of maintaining the bridge to omit proper precautions to ascertain its condition." Gehringer v. Le- high County, 35: 1127, 80 Atl. 987, 231 Pa. 497. 18. One attempting to drive a traction engine across a bridge without using planks under the wheels, as required by statute, cannot, although the failure to use them does not contribute to the injury, hold the county liable for injuries caused by the fall of the bridge, under a statute making the county liable for injuries to persons law- fully using a bridge, because of its defective character, since he is not using the bridge lawfully. Jones v. Union County, 42: 1035, 127 Pac. 781, 63 Or. 566. (Annotated) Notice of defects or injuries. 19. The notice to a county of an injury because of a defective bridge need not set out the fact that the approach was less than the statutory width, in order to en- title plaintiff to rely on such cause of ac- tion, under a statute requiring written notice specifying the time, place, and cir- cumstances of the injury; and he will not be precluded from relying on such cause of action by setting out other grounds of negligence. Magee v. Jones County, 48: 141, 142 N. W. 957, 161 Iowa, 296. Contributory negligence. Allegation of freedom from, see PLEADING, 348. See also supra, 18. 20. One attempting to cross a public bridge with a traction engine and thresher such as is in common use at the time, and which of necessity must be moved from place to place, has, in the absence of notice to the contrary or facts sufficient to put him on inquiry, a right to assume that the bridge is reasonably safe for that purpose, notwithstanding the threshing outfits in use at the time of the construction of the bridge were much lighter, since it is the continuing duty of the county to construct and maintain bridges suitable and sufficient for the present ordinary demands and ne- cessities of the public. Kovarik v. Saline County, 27: 832, 125 N. W. 1082, 86 Neb. 440. 21. One is not negligent per se in driving a gentle horse on the highway, although it is blind, so as to preclude his holding the county liable in case he is thrown over the edge of an unguarded bridge when he suddenly loses consciousness, if he had not 1 lost consciousness before for a long series of years. Magee v. Jones County, 48: 141, 142 N. W 7 . 957, 161 Iowa, 296. (Annotated) 22. A traveler about to cross a draw- bridge must stop, look, and listen. Anne Arundel County v. State use of Stansbury, 14: 452, 68 Atl. 602, 107 Md. 210. 322 BRIDGES, III. BROKERS, I. 23. The negligence of one familiar with the operation and signal lights of a draw- bridge, who drove off it while the draw was open, at a time when, by attention, he would have seen from the light signals that the draw was open, and heard that a boat was passing through the draw, will, as matter of law, prevent holding the one maintaining the bridge liable for his death. Anne Arundel County v. State use of Stansbury, 14: 452, 68 Atl. 602, 107 Md. 210. III. Toll bridges. (See also same heading in Digest L.R.A. 1-10.) Right to collect tolls on, see ESTOPPEL, 13; TOLLS AND TOLL ROADS, 1. See also supra, 11. BRIDGE TENDER. * Municipal liability, for negligence of, see MASTER AND SERVANT, 22. BRIEFS. On appeal, see APPEAL AND ERBOB, IV. r. BRINGING STOLEN PROPERTY INTO STATE. Sufficiency of information for, see INDICT- MENT, INFOBMATION AND COMPLAINT, 63. 1. If a person in another state marks or brands, or alters the mark or brand, of any animal, the subject of larceny and the property of another, with intent to steal it or convert it to his own use, so that if the marking, branding, or alteration were done in the state of Kansas he would be guilty of the larceny defined by the Kansas crimes act, 83 (Gen. Stat. 1901, 2076), and then brings such animal into the state, he may be convicted of the offense of bring- ing stolen property into the state in viola- tion of 285 of the crimes act. State v. White, 14: 556, 92 Pac. 829, 76 Kan. 654. BROKEN GLASS. In bottle of beverage; liability of manufac- turer, see NEGLIGENCE, 59. BROKERS. I. Stock brokers, 13. II. Real-estate brokers, 479. a. In general; authority and lia- bility of, 4-19. Digest 1-52 L.R.A.(N.S-) //. continued. b. Compensation, 2O79. 1. In general, 2O61. 2. Failure to complete trans- action, 6279. Deposit by broker to his own account of proceeds of sale of customer's stock or property, see ASSIGNMENT FOB CREDITORS, 15. Proving claim in bankruptcy both against estate of brokerage firm and that of individual partner, see BANKRUPTCY, 23. Bank cashier's authority to employ, see BANKS, 39. Trust in deposit by, see BANKS, 73-76. Right to pay commission to brokers for disposing of state bonds, see BONDS, 111. Constitutionality of restrictions on right to engage in insurance brokerage busi- ness, see CONSTITUTIONAL LAW, 256. As to insurance brokers generally, see IN- SURANCE, I. d. Regulation of loan brokers, see CONSTITU- TIONAL LAW, 111, 257; LICENSE, 51, 65 V 66, 118; MUNICIPAL CORPORATIONS, 176; SEARCH AND SEIZURE, 2. Validity of marriage brokage contract, see CONTRACTS, 481, 604. Putting into broker's possession certificate of corporate indebtedness indorsed in blank, see ESTOPPEL, 86. As to factors, generally, see FACTORS. Distinction between factor and broker, Bee FACTORS, 1. Forgery by loan broker, see FORGERY, 7. Liability of one who, with knowledge of fraud, introduces impostor to money broker, see FRAUD AND DECEIT, 68. Employment of, by officer of joint stock company, see JOINT STOCK COMPANY, 7. Organization by jobbers of corporation to do brokerage business, see MONOPOLY AND COMBINATIONS, 20. As to pawnbrokers, see PAWNBROKERS. Authority to receive payment of loan ef- fected through him, see PAYMENT, 19. Agency, of, in making loan, see PRINCIPAL AND AGENT, 1. Pledge by broker of customer's securities to secure loan to himself, see SUBROGA- TION, 6. Ticket brokers, see TICKET BROKERS. Usury in loans by, see USURY, I. b. I. Stock brokers. (See also same heading in Digest L.R.A. 1-10.) Liability of broker receiving in good faith. money of bank from bank teller for purposes of speculation, see ASSUMP- SIT, 19. Brokerage contracts for buying and selling futures, as interstate commerce, see COMMEBCE, 100, 101. BROKERS, II. a. 323 Purchase of stock on margin, see CONFLICT OF LAWS, 132; CONTKACTS, 531-534, 590-594; EVIDENCE, 522. Demurrer to petition in action by, to re- cover amount of margins advanced, see PLEADING, 578. Negligence in recommending broker, see CONTRACTS, 18, 19, 57; DAMAGES, 100; PBOXIMATE CAUSE, 154. Implied agreement of, to carry stock until certain price is reached, see CON- TRACTS, 10. Requiring stock broker to permit examina- tion of private books and papers, by tax officer, see CRIMINAL LAW, 113; SEARCH AND SEIZURE, 3; STATUTES, 60. Conversion by stock broker, see DAMAGES, 457; TROVER, 17, 40. Binding effect on one ordering grain through, of rules of exchange from which orders are to be executed, see EXCHANGES, 3. Notice to surety of broker that customer's notes taken as collateral security were executed in gaming transactions, see NOTICE, 6. Right to maintain action against bank pay- ing check to borrower's order on forged indorsement, see PARTIES, 61. Priorities in funds in hands of receiver of, see RECEIVERS, 36. Constructive trust in proceeds of stock sold by broker for customer when broker is insolvent, see TRUSTS, 49. 1. That one who orders grain for future delivery intends the transactions to be mere wagers will not deprive the broker of his commissions where the latter buys in good faith, contemplating actual delivery. Hal- let v. Aggergaard, 14: 1251, 114 N. W. 696, 21 S. D. 554. 2. One who has employed a broker to sell stock for him does not waive the re- quirement of an actual sale to entitle the broker to a commission, by accepting an optional contract of purchase which makes the ultimate sale depend on the election of the purchaser to meet his deferred pay- ments. Warnekros v. Bowman, 43: 91, 128 Pac. 49, 14 Ariz. 348. 3. A broker employed to sell stock for a reasonable commission is not entitled to a commission on money paid by an option purchaser whose contract requires him to pay instalments, at specified dates at his option, and who defaults after making cer- tain payments, so that no stock is in fact transferred to him. Warnekros v. Bowman, 43: 91, 128 Pac. 49, 14 Ariz. 348. (Annotated) JJ. Real-estate brokers. a. In general; authority and liability (See also same heading in Digest L.R.A. 1-10.) Requiring contracts for procuring purchas- er for real estate to be in writing, see Digest 1-52 L.R.A. (N.S.) CONSTITUTIONAL LAW, 236, 237, 690; CONTRACTS, 257-260; EMINENT DOMAIN, 221. Entirety of contract with broker for sale of land, see CONTRACTS, 354. Liability for assisting promoters of corpo- ration to make secret profit, see COR- PORATIONS, 192. Validity of custom of, see CUSTOM, 8. Parol evidence to show agency, see EVI- DENCE, 1049. Evidence in suit against broker to recover proceeds of land sold, see EVIDENCE, 2036. Fraud by broker, see FRAUD AND DECEIT, 15, 29, 49. Disaffirmance by infant of brokerage agency, see INFANTS, 73, 74. License of, see LICENSE, 65. Accounting between partners, see PART- NERSHIP, 61, 62. Notice that broker acts as agent in making sale of property, see PRINCIPAL AND AGENT, 2. Right of broker to secure loan to pay mort- gage to become purchaser at foreclos- ure, see PRINCIPAL AND AGENT, 99, 100. Effect of exceeding authority in contract- ing to furnish warranty deed and ab- stract of title, see SPECIFIC PERFORM- ANCE, 106. Appointment ef broker on Sunday, see SUN- DAY, 26. Compelling one joint owner to account to co-owners for bonus paid him by brok- ers effecting' sale, see TRUST, 119. 4. The legislature cannot lawfully make it a misdemeanor to offer for sale the real estate of another without written authority. Frank L. Fisher Co. v. Woods, 12: 707, 79 N. E. 836, 187 N. Y. 90. (Annotated) 5. The sale of land by a real-estate agency with whom it has been listed, on any other terms and conditions than those au- thorized by the owner thereof, is not bind- ing on the latter. Larson v. Newman, 23: 849, 121 N. W. 202, 19 N. D. 153. 6. A real-estate' broker is without au- thority to execute a contract of sale which shall be binding upon one who places real estate in his hands for sale, unless such au- thority is specially conferred. Weatherhead v. Ettinger, 17: 210, 84 N. E. 598, 78 Ohio St. 104. (Annotated) 7. Authority conferred on a real estate broker to make a binding contract for the sale of land includes power to bind the grantor to execute covenants of general warranty and furnish an "abstract of title. Jasper v. Wilson, 23: 982, 94 Pac. 951, 14 N. M. 482. 8. Power to make a binding contract for sale of real estate is conferred on a broker by an owner residing in a foreign country, who intrusts to his discretion the subject- matter of the amount to be paid for the property, requesting him to do the best he can, and receive the purchase money and ap- ply it in satisfaction of the grantor's debts. Jasper v. Wilson, 23: 982, 94 Pac. 951, 14 N. M. 482. (Annotated) 324 BROKERS, II. b, 1. 9. That an agent commissioned to pur- chase property for his principal at the best price obtainable had, at the time, an option on it, does not prevent the principal from retaining the property, and compelling the agent to account for the difference between what he actually paid for the property 'and what he charged the principal for it. Watson v. Bayliss, 34: 1210, 113 Pac. 770, 62 Wash. 329. (Annotated) 10. A real-estate broker cannot, after accepting, in response to his request for price, the owner's offer to sell at a certain price less a commission to himself, enforce a conveyance to himself, if, to his knowl- edge, the property was worth more than the price named, of which fact he failed to in- form the owner. Rodman v. Manning, 20: 1158, 99 Pac. 657, 53 Or. 336. (Annotated) 11. A purchaser of real estate cannot re- cover damages from the broker for fraudu- lent representations as to its value, if he makes a personal investigation and relies upon his own judgment with respect to that matter. Bradley v. Oviatt, 42: 828, 84 Atl. 321, 86 Conn. 63. Authority to employ snbagent. Right of appellate court to hold that con- tract by broker to employ subagent was within statute of frauds, see AP- PEAL AND ERBOR, 349. Ratification of employment of subagent by broker where contract of employment is within statute of frauds, see CON- TRACTS, 257. 12. A real estate broker employed to sell land located near the place of his residence has no implied authority to employ a sub- agent, so as to entitle the latter to a com- mission from the owner in case he finds a purchaser. Sims v. St. John, 43: 796, 152 S. W. 284, 105 Ark. 680. (Annotated) 13. A real estate agent employed by a nonresident to sell land located in the state of the agent's residence, who assumes au- thority to grant options on the property, has no power to employ an assistant at the expense of his principal. Sorenson v. Smith, 51: 612, 129 Pac. 757, 131 Pac. 1022, 65 Or. 78. 14. A real estate owner does not, by making a sale to a customer introduced by an age'nt of his broker, render himself liable to such agent for his compensation, if the broker had no authority to employ an agent, and the agent reported his doings to the broker and never dealt with the owner di- rectly, although the owner knew that he had been employed. Sims v. St. John, 43:796, 152 S. W. 284, 105 Ark. 680. 15. The claim of a real estate agent to be acting under his general authority from his principal in employing an assistant does not show that he undertook to bind the principal to compensate the assistant for services. Sorenson v. Smith, 51:612, 129 Pac. 757, 131 Pac. 1022, 65 Or. 78. Ratification. Necessity of new consideration to support ratification of broker's contract, see CONTRACTS, 87. Digest 1-52 L.R.A.(N.S-) Ratification of employment of subagent, see CONTRACTS, 257. Parol evidence to show ratification of con- tract by principal, see EVIDENCE. 951. 16. Ratification of a contract for the sale of certain lands, which had been entered into by a real estate agent in excess of his authority, who in answer to an inquiry of such owner as to the prospects of a sale and as to how the crops were looking, sent a copy of the contract of sale and also a deed for signature, ia not shown by the answer of the owner to the agent, which did not state that he would consummate the sale, or that the deed sent had been ex- ecuted, or that he was satisfied with the contract, or that the agent was authorized to make it. Larson v. Newman, 23: 849, 121 N. W. 202, 19 N. D. 153. 17. A written statement by a principal when asked for a deed of property under an unauthorized contract of sale made by a broker, that the title cannot be transferred until he gets it, but that he would secure it as quickly as possible, ratifies the brok- er's contract. McLeod v. Morrison & Eshel- man, 38:783, 120- Pac. 528, 66 Wash. 683. Termination of authority. 18. Mere lapse of time will not, as matter of law, terminate the authority of a broker who has been commissioned to find a purchaser for real estate. Hartford v. McGillicuddy, 16: 431, 68 Atl. 860, 103 Me. 224. (Annotated) 19. The authority conferred upon a real- estate brokerage copartnership, in listing property with it for sale, is terminated upon the dissolution of the copartnership; and a contract for the sale of such property, made after such dissolution, by the continuing partner, is not binding upon the owner thereof unless ratified by him. Larson v. Newman, 23: 849, 121 N. W. 202, 19 N. D. 153. (Annotated) ft. Compensation. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Review on appeal of findings as to broker's right to commission, see APPEAL AND ERROR, 969. Consideration of note given* in payment of commission, see BILLS AND NOTES, 29. Consideration for promise to pay, see CON- TRACTS, 106, 116, 117. Construction of contract for commission, see CONTRACTS, 388, 389. Recovery on quantum meruit, see CON- TRACTS, 25. Right of unlicensed broker to recover for services, see CONTRACTS, 422, 423. Secret commission to, added to price of property sold to corporation, see COR- PORATIONS, 194. Parol evidence in action to recover secret profits, see EVIDENCE, 1049 i ri.y. >. /-...'.:..' : . .... BROKERS, II. b, 1. 325 Liability of community property for secre profits made by husband as broker, se HUSBAND AND WIFE, 84. Injunction by Federal court against suit in state court to recover compensation see COURTS, 279. Loss of profits as element of damages fo wrongful revocation of authoritv, se DAMAGES, 682, 683. Estoppel to sue brokers for commission re tained, see ELECTION OF REMEDIES, 30. Parol evidence as to commission, see Evi DENCE, 964. Nature of contract by which owner agrees to pay agent all over specified sum fo procuring sale, see HOMESTEAD, 49. Interpleader to determine which of twi brokers is entitled to commission for sale of property, see INTERPLEADER, 8 Bringing brokers into suit by cross bill for purpose of settling compensation, se< PLEADING, 538. Right to compensation from agent of un disclosed principal,' see PRINCIPAL AND AGENT, 109, 110. Liability of referee to sell real estate for partition for broker's commission, see REFERENCE, 5. See also supra, 14, 15. 20. A property owner who, with knowl- edge of the facts, deals with a customer oi one broker through the agency of another will be liable to the first for his commis- sion. Jennings v. Trummer, 23: 164, 96 Pac 874, 52 Or. 149. 21. The mere filing of an inventory of property to be sold, with a real-estate broker, is not a listing within the meaning of a clause in the contract that, if the property is withdrawn without sale, a commission will be paid in consideration of his having listed it, if he is accustomed to get out advertising matter containing lists of the property he had for sale. E. A. Strout Co. v. Gay, 24: 562, 72 Atl. 881, 105 Me. 108. (Annotated) 22. A broker is not deprived of his right to commissions for selling property because he is authorized by his principal to secure a sum for himself from the purchaser, which he does not do. Siler v. Perkins, 47: 232, 149 S. W. 1060, 126 Tenn. 380. 23. A real-estate agent employed to find a purchaser for land is not deprived of his right to compensation by the fact that the contract of sale entered into between the purchaser and seller could not be specifically enforced because some of its provisions were contrary to law. Manker v. Tough, 19: 675, 98 Pac. 792, 79 Kan. 46. 24. Real estate brokers who have a con- tract for the sale of an entire tract of land are not entitled to recover upon a pro rata basis upon introducing a prospec- tive purchaser to the owner to whom a sale is made of a part of the tract, where the owners do not prevent full perform- ance and the contract is not modified. Bent- ley v. Edwards, 51: 254, 146 N. W. 347, 125 Minn. 179. (Annotated) 25. A broker employed to sell land who Digest 1-52 L.K.A.(N.S-) withholds from the principal, at the sug- gestion of a prospective purchaser, informa- tion that such customer is ready and will- ing to pay the price asked and permits him in silence to endeavor to purchase the property directly from the principal at a lower figure, thereby forfeits any claim for commissions, even though the principal ob- tain the full price originally asked. Carter v. Owens, 25: 736, 50 So. 641, 58 Fla. 204. (Annotated) 26. A broker to sell real estate who, after securing from the principal a blank executory contract upon informing him that he has secured a purchaser, inserts his own name therein, which is ratified by the principal, forfeits his right to commis- sion or compensation; his relation to the principal having been changed from that of broker to purchaser. Christiansen v. Mille Lacs Land & Loan Co. 31: 536, 129 N. W. 150, 113 Minn. 120. (Annotated) Time within which broker must act. 27. It cannot be said that real estate brokers who have an agency for a large tract of land, specifying no time for its duration, have acted within a reasonable time so as to entitle them to commissions, in securing a purchaser in about eighteen months, to whom the owner refused to con- vey, claiming that he had withdrawn the lands from the market, but to whom he did convey about eighteen months thereafter. Alexander v. Sherwood Co. 49: 985, 77 S. E. 1027, 72 W. Va. 195. Secret profits. 28. An agent who undertakes to manage and dispose of real property for one half the net profits forfeits his right to compen- sation by taking a secret rebate on repairs and charging his principal more than he pays for legal services. Little v. Phipps, 34: 1046, 94 N. E. 260, 208 Mass. 331. 29. A real-estate broker who, to secure the terms on which he is authorized to sell, ffects an intermediate sale to one who for a bonus is willing to comply with the own- r's terms and hold the property subject bo such terms as the true purchaser can meet, thereby securing a commission of which his principal is ignorant, is bound to account to him for it. Easterly v. Mills, 28: 952, 103 Pac. 475, 54 Wash. 356. 30. When a real estate agent has prop- erty listed with him for sale, and finds a mrchaser ready, willing, and able to buy >n the terms on which the property is listed, ,he fact that he has an i.^ /cement with the mrchaser that, after the purchase is com- peted, he may subdivide the property, and ell it as town lots for a contingent commis- ion, will not defeat his right to recover a ommission against his original client, vhich has been earned. Gilliland v. Jaynea, 6: 129, 129 Pac. 8, 36 Okla. 563. Acting for both parties; compensa- tion from both. Burden of proof as to, see EVIDENCE, 175. 31. The mere listing of property with a roker for sale does not necessarily con- titute him the owner's agent, so as to ren- .er it improper for him to act as the agent 326 BROKERS, II. b, 1. of a purchaser. Johnson v. Hay ward, 5: 112, 103 N. W. 1058, 74 Neb. 157. 32. That a real-estate broker was em- ployed by each party to a contract for the purchase and sale of real estate, without the knowledge of the other, to keep him in- formed as to the condition of the property, does not render his employment contrary to public policy so as to deprive him of his right to the compensation which each had promised him. McLure v. Luke, 24: 659, 154 Fed. 647, 84 C. C. A. 1. (Annotated) 33. One undertaking to procure a pur- chaser for a tract of land at a certain price per acre does not lose his right to the agreed commission by taking a com- mission from the purchaser also. Tasse v. Kindt, 31: 1222, 128 N. W. 972, 145 Wis. 115. Sufficiency of broker's services. Estoppel of owner to set up defense in suit for commission, see ESTOPPEL, 98. Sufficiency of proof as to, see EVIDENCE, 2273. Judgment on pleadings in action for com- missions, see PLEADING, 66. Sufficiency of allegations in actions for com- missions, see PLEADING, 238. See also infra, 77. 34. A broker employed to sell land can- not recover commissions unless he has pro- duced to his principal a purchaser ready, able, and willing to buy on the terms speci- fied in his contract of employment. Carter v. Owens, 25: 736, 50 So. 641, 58 Fla. 204. i 35. A real estate agent, in order to re- cover commission for the sale of real es- tate, must not only produce a purchaser who is ready, willing, and able to buy upon the terms and conditions agreed upon, but must procure from such purchaser an en- forceable contract in writing binding him to take the land according to the terms and conditions agreed upon. Reynolds v. Ander- son, 46: 144, 132 Pac. 322, 37 Okla. 368. 36. In order for a real estate agent to recover his commission for making a sale which has not been completed, it is neces- sary for him to have a purchaser who is ready, willing, and able to buy; and, pro- vided the seller and purchaser have not come together, to have procured from such purchaser a written agreement to buy which will be enforceable against him if accepted and signed by the seller. Gilliland v. Jaynes, 46: 129, 129 Pac. 8, 36 Okla. 563. ( Annotated ) 37. A broker who has brought to his principal one ready, able, and willing to take the property on the terms offered is not deprived of his right to commissions because, after being informed that there was nothing more he could do, he was not present when the deal was consummated, and some changes were made in the details of the trade during the final negotiations. Siler v. Perkins, 47: 232, 149 S. W. 1060, 126 Tenn. 380. 38. As a general rule, the entire duty of a broker employed to assist in the sale of property is to find and introduce or re- port to his employer a person who is willing Digest 1-52 L.R.A.(N.S.) and able to purchase at the price and upon the terms which the employer has desig- nated, although this rule is to be applied as abridged or extended in any specific case by the terms of the contract of employment. Yoder v. Randol, 3: 576, 83 Pac. 537, 16 Okla. 308. 39. A purchaser of land was not procured by real-estate brokers so as to entitle them to a commission, when his attention was first called to the property by one of the owners, and he had decided to inspect it more than a month before meeting the brokers, who later unnecessarily gave him a letter of introduction to such owner, and he concluded his purchase with one of the owners for a less price than that for which the brokers were authorized to offer the land. Spotswood v. Morris, 6: 665, 85 Pac. 1094, 12 Idaho, 360. 40. An agent employed to sell land under a contract providing for a schedule of commissions on sales made by him, or with his assistance, or ilnder his advice, is enti- tled to the reasonable value of services ren- dered by him to his principal in bringing about a consolidation of the interests of his employers and an irrigation company, by which the employers secured irrigation for the land, and thus promoted its sale, al- though the arrangement between his em- ployers and the irrigation company did not amount to a sale entitling him to the com- missions provided for by his contract. Close v. Browne, 13: 634, 82 N. E. 629, 230 111. 228. 41. A real-estate agent authorized by express contract to sell property at a cer- tain price cannot recover on a quantum meruit for the value of his services in find- ing a purchaser who pays less than that sum, where the owner receives no benefit from the agent's services, although the agent is present and assists in the sale, and the owner changes the price. Ball v. Dolan, 15: 272, 114 N. W. 998, 21 S. D. 619. (Annotated) 42. One does not waive the provision in a contract requiring his broker to secure a certain price for his property to be entitled to a commission, by selling it for less than that amount to one introduced by the agent, who will not pay more, when he sells openly, and without objection by the aroker, at a time when another purchaser :ould not be found within the time limit. Ball v. Dolan, 15:272, 114 N. W. 998, 21 S. D. 619. 43. An owner of real estate who sells his property to one induced to purchase it by the efforts of an agent with whom it had been listed for sale for a definite price, but who was not given an exclusive agency, is not liable for the commission agreed to be paid for the production of a purchaser ready, able, and willing to buy, where the owner acted in good faith and in ignorance of the efforts of the agent, and sold the property for a price less than that named to the agent. Quist v. Goodfellow, 8: 153, 110 N. W. 65, 99 Minn. 509. (Annotated) 44. A real-estate broker who has pro- cured a purchaser ready and willing to pur- A .>!..: tr i .i BROKERS, II. b, 1. 327 chase on the terms proposed, or who has otherwise done all required of him by his contract of employment, is entitled to re- cover the stipulated commission, unless limited by express provisions in his con- tract. Hugill v. Weekley, 15: 1262, 61 S. E. 360, 64 W. Va. 210. 45. A real estate broker does not earn his commission by producing a customer willing and able to* pay the required price in cash for the property, where his author'' y is to sell for a certain price, payable a cer- tain amount down, and the remainder in yearly instalments, with interest. Jepsen v. Marohn, 21: 935, 119 N. W. 988, 22 S. D. 593. (Annotated) 46. A broker for the sale of property who notifies the owner of the fact that he has a customer, and gives his name, is en- titled to the credit of bringing the parties together, although he does not actually in- troduce them to each other, which service is performed by another broker. Jennings v. Tmmmer, 23: 164, 96 Pac. 874, 52 Or. 149. (Annotated) 47. An agent employed to sell land for another, upon whom no authority to execute a contract of sale or to execute an instru- ment of conveyance is conferred, is required merely, in order to entitle him to compen- sation, to find a purchaser ready, willing, and able to make the purchase at the price and on the terms prescribed by the seller to the agent. Manker v. Tough, 19:675, 98 Pac. 792, 79 Kan. 46. 48. The securing by a customer intro- duced by a real estate broker of an option upon the property for a specified time makes time of the essence of the contract, so that the agent's commission is not earned if the sale is not consummated with- in the time specified. Sorenson v. Smith, 51: 612, 129 Pac. 757, 131 Pac. 1022, 65 Or. 78. 49. A real-estate broker need not neces- sarily close a contract for the sale of land to entitle him to a commission therefor un- der a centract whereby the owner agreed to pay a commission on sale at a given price, but is entitled to his commission when he has produced a purchaser able and willing to take the property at the terms named. Beougher v. Clark, 27: 198, 106 Pac. 39/81 Kan. 250. 50. A broker who merely asks an owner the price of his house, and introduces to him a customer who subsequently purchases it, is not entitled to a commission on the sale, unless he was employed by the owner to make the sale, although he may have to some extent influenced the sale. Geier v. Howells, 27: 786, 107 Pac. 255, 47 Colo. 345. (Annotated) 51. That a customer introduced by a broker who is authorized to sell property for a certain net price, after refusing to pay such price, purchases from the owner for a less sum, does not entitle the broker to a commission. Gilmore v. Bolio, 34: 1050, 131 N. W. 105, 165 Mich. 633. (Annotated) Digest 1-52 L.R.A.(N.S.) Transactions effected without brok- er's aid. 52. One who has given a broker au- thority to sell his property during a speci- fied time cannot himself make a sale within that time without being liable to the broker for breach of contract. S. Bluthenthal & Co. v. Bridges, 24: 279, 120 S. W. 974, 91 Ark. 212. (Annotated) 53. Where a prospective purchaser has been introduced to the owner of land by a broker with whom it had been listed, the owner cannot, while the negotiations with the first broker are, to his knowledge, still pending, avoid liability to him for commis- sion by completing the purchase at the price named in the listing agreement, although upon slightly different terms of payment, through another broker, with whom the property had also been listed. Beougher v. Clark, 27: 198, 106 Pac. 39, 8l Kan. 250. 54. An offer of a specified commission for the sale of real estate at a certain price, within a specified time, does not give the broker the exclusive agency for that period, but the owner may effect a sale him- self within that time without becoming liable for the commission, although before its expiration the broker produces a cus- tomer able and willing to comply with the terms of the sale. Hammond v. Mau, 40: 1142, 124 Pac. 377, 69 Wash. 204. (Annotated) 55. A broker who introduces to the own- er's agent a prospective purchaser for prop- erty, and secures from the agent an agree- ment for division of the commission in case of sale, has no right of action against him in case a sale is effected through another broker whose offer on behalf of the same customer is accepted by the owner, although the offer is less than the lowest price which the unsuccessful broker was led to believe would be accepted for the property. Dalke v. Sivyer, 27: 195, 105 Pac. 1031, 56 Wash. 462. (Annotated) 56. A broker receiving exclusive author- ity to sell real estate by a writing which he does not sign cannot recover commissions in case the property is sold by the owner without aid from him, if he fails to show that, prior to the sale, he had used ordi- nary diligence in endeavoring to make a sale of the property, resulting in the ex- penditure of time, money, or effort under the contract. Schoenmann v. Whitt, 19: 598, 117 N. W. 851, 136 Wis. 332. ( Annotated ) 57. A broker who fails to produce a pur- chaser able and willing to take the prop- erty at the specified price, within the time limited by the owner in a written contract between them, is not entitled to his commis- sion in case the owner subsequently makes a sale to a customer introduced by the broker within the time limited, at a price less than that at which the broker was authorized to sell. Brown v. Mason, 21: 328, 99 Pac. 867, 155 Cal. 155. (Annotated) 58. The mere fact that, after negotia- tions with a real-estate broker were broken off, the partner of the negotiating person 328 BROKERS, II. b, 2. negotiated unsuccessfully with the owner for the property, will not deprive the broker of his commissions if negotiations subse- quently renewed with him result success- fully. Hartford v. McGillicuddy, 16: 431, 68 Atl. 860, 103 Me. 224. Effect of principal's fraud. 59. A property owner will be liable for the commission of a broker to whom he has given the right to sell the property, after receiving notice that he has a cus- tomer, if such owner afterwards induces an- other broker to effect the sale, by acquaint- ing him with the facts. Jennings v. Trum- mer, 23: 164, 96 Pac. 874, 52 Or. 149. 60. An owner of property, who, after agreeing to pay a broker a certain sum to sell it at a certain price and receiving through him an offer for most of the prop- erty at a slightly less price, fraudulently informs the broker that he will keep the property, and settles for his services for a nominal consideration, after which he nego- tiates a sale with the customer for a sum which, together with that received for the balance of the property, brings more than the stipulated amount, is liable for the sum promised the broker. Bowe v. Gage, 12: 265, 112 N. W. 469, 132 Wis. 441. Amount of compensation. 61. -A real-estate broker who procures a purchaser for property pursuant to a con- tract which fails to fix his rate of compen- sation is entitled to a fair and reasonable compensation for the services rendered. Scully v. Williamson, 27: 1089, 108 Pac. 395, 26 Okla. 19. 2. Failure to complete transaction. 62. A contract between a real-estate agent and a landowner, that, if the agent should find a purchaser for the land, he should have, as compensation for his serv- ices, the amount the land might sell for above a certain price, is not a joint venture, in which neither may profit to the exclusion of the other, but is a contract of agency merely, and the agent is entitled to his com- pensation where he finds a satisfactory pur- chaser for the land, although the contract is subsequently canceled by the mutual agree- ment of the seller and purchaser, without the consent of the agent. Manker v. Tough, 19: 675, 98 Pac. 792, 79 Kan. 46. Default of principal; revocation of authority. 63. Where a contract of agency to sell lands at a price net to the owner specifies no time for performance, and a reasonable time elapses without a sale, the owner may in good faith, without design to avoid pay- ment of commissions, revoke the agency and afterwards sell and convey to a person with whom the agent had negotiated, without in- curring any liability for commissions. Alexander v. Sherwood Co. 49: 985, 77 S. E. 1027, 72 W. Va. 195. (Annotated) 64. That a vendor is mistaken in the identity of land which he places in the hands of a broker for sale, so that he can- not make title to it, does not deprive the Digest 1-52 L.R.A.CN.S.) broker of his right to commissions if he finds a purchaser ready and willing to take the property offered. Arnold v. National Bank, 3: 580, 105 N. W. 828, 126 Wis. 362. 65. Real-estate brokers who agree "to make all the effort possible to make sale of the property, for which they are to receive 5 per cent commission for their services out of the first payment," are entitled to recov- er the stipulated commission, although the purchaser refuses to complete the sale, or to pay any part of the purchase money, be- cause of alleged misrepresentations by the vendor. Hugill v. Weekley, 15: 1262, 61 S. E. 360, 64 W. Va. 210. (Annotated) 66. A broker who has performed his con- tract of employment for the sale of real estate cannot be deprived of his commis- sion, although for some reason not involv- ing culpability on his part, but due to the misrepresentations of the seller, the con- tract of sale has failed of execution. Hugill v. Weekley, 15: 1262, 61 S. E. 360, 64 W. Va. 210. 67. A real-estate broker is entitled to his commission when he produces a pur- chaser ready, willing, and able to complete the purchase on the authorized terms, al- though the owner refuses to transfer the property. Hartford v. McGillicuddy, 16: 431, 68 Atl. 860, 103 Me. 224. 68. A real-estate broker is not deprived of the right to his commissions by the fact that the sale fails because the vendor cannot give a marketable title. Little v. Fleishman, 24: 1182, 101 Pac. 984, 35 Utah, 566. (Annotated) 69. Where an agent employed to effect a loan has diligently performed services un- der the employment, but is prevented from an attempt to complete the transaction by the refusal of his employer to accept the loan, he is entitled to recover the reason- able value of his services, even if he has not carried the matter far enough to have fully earned his commissions. Little v. Liggett, 40: 39, 121 Pac. 1125, 86 Kan. 747. Default of other party; financial in- ability. 70. The right of a real-estate broker to recover his stipulated commission is not af- fected by the fact that the customer pro- cured by him failed to carry out a valid contract of sale which he entered into with the vendor. Hugill v. Weekley, 15: 1262, 61 S. E. 360, 64 W. Va. 210. 71. Failure of a contract for the sale of real estate because of inability of the purchaser to perform will deprave the brok- er who undertook to procure a purchaser of his right to a commission, although the defaulting party had bound himself by con- tract to complete the purchase, and had paid a portion of the contract price. Riggs v. Turnbull, 8: 824, 66 Atl. 13, 105 Md. 135. 72. A broker with whom land is listed for sale, who is to be paid "when the prop- erty is sold," is not entitled to commissions although he has procured one who said he was willing to purchase at the price asked, and who has paid to the broker a sum to be applied on the purchase price, which sum BROTHER BUILDING AND CONSTRUCTION CONTRACTS. 329 has been turned over to the owners, where no written contract of purchase was made, and possession was not taken by the pur- chaser, who afterwards, through no fault of the owners, refused to complete the pur- chase by making an enforceable contract, since the condition as to when commissions were payable was not complied with. Pfanz v. Humburg, 29: 533, 91 N. E. 863, 81 Ohio St. 1. (Annotated) 73. A broker who has fully performed his undertaking by producing a person ready, willing, and able to purchase his em- ployer's property at the price and upon the terms stipulated, which purchaser has been accepted by the landowner, who has en- tered into a binding and enforceable con- tract with him, is entitled to his commis- sion; and his right thereto is not defeated by the fact that the purchaser refuses to consummate the transaction because of a defect in the title to the landowner's prop- erty, where knowledge of such defect was not communicated by the employer to the broker at the time of entering into the con- tract of employment with him. Yoder v. Randol, 3: 576, 83 Pac. 537, 16 Okla. 308. (Annotated) 74. A broker who, pursuant to his con- tract of employment, has in good faith pro- duced a purchaser, which purchaser has been accepted by the property owner, who has entered into an enforceable contract with him, is entitled to compensation for his services, notwithstanding it subsequent- ly turns out that the purchaser is not able to comply with his contract and, on that account, the sale is not consummated by a transfer of the property. Scully v. Wil- liamson, 27: 1089, 108 Pac. 395, 26 Okla. 19. 75. Lack of pecuniary responsibility on the part of the purchaser procured by a real-estate broker, who actually entered in- to a contract with the vendor, will not de- prive the broker of his right to claim a stipulated commission. Hugill v. Weekley, 15: 1262, 61 S. E. 360, 64 W. Va. 210. 76. The financial inability of the pur- chaser to perform his contract to purchase real estate does not deprive the broker ot his commission where a binding contract for sale is effected through his agency, in the absence of fraud or warranty, on his part, of the customer's financial ability. Moore v. Irvin, 20: 1168, 116 S. W. 602, 89 Ark. 289. (Annotated) 77. Announcing the terms of sale to a broker who has inquired for them does not; require him to consummate the sale to earn his commission; but it is sufficient if he furnishes a customer ready, willing, and able to purchase on the terms announced, although the one giving the terms proves to be unable to meet the requirements neces- sary to close the deal. Jones v. Ford, 38: 777, 134 N. W. 569, 154 Iowa, 549. 78. A broker is entitled to commissions for procuring a loan to be secured by mort- gage of real estate, although it is not com- pleted because the lender, who is to be fur- 1 nished with marketable title, demands an in- 1 demnity bond against mechanics' liens, the Digest 1-52 L.R.A.(N.S.) time for filing which has not elapsed, and refuses to take an inadequate cash deposit and written evidence that no liens exist in lieu of the bond. Silberberg v. Chipman, 15: 187, 93 Pac. 1130, 42 Colo. 20. (Annotated) 79. An agent employed "to procure a loan" has ordinarily earned his commission when he has produced a person willing and able to make the loa*n upon the prescribed terms; and his claim to compensation will not' be defeated by the refusal of such person to complete the transaction, because it turns out that a material representation made by the employer is contrary to the fact. Little v. Liggett, 40: 39, 121 Pac. 1125, 86 Kan. 747. BROTHER. Implied contract to pay for services to, see CONTRACTS, 33, 34. Fiduciary relation between, see EVIDENCE, 115, 116. Right to letters of administration, see EXECUTORS AND ADMINISTRATORS, 13. Insurable interest in life of, see INSURANCE, 77. BUCKET SHOP. Validity of contract not to supply quota- tions to, see CONTRACTS, 454. Right to recover money lost in, see CON- TRACTS, 590-594. As place for gaming, see GAMING, 17. Mandamus to compel delivery of market quotations to, see' MANDAMUS, 8. BUDGET COMMISSIONERS. Power to change sum levied as tax, see TAXES, 154. BUILDING AND CONSTRUCTION CONTRACTS. Bonds of contractors, see ACTION OB SUIT, 9; BONDS, 8-13, 15, 31; CONSTITUTION- AL LAW, 456; EVIDENCE, 980; PARTIES, 85-88; PRINCIPAL AND SURETY, 9, 10, 20-23, 39, 40, 73, 74; TRIAL, 200. When action for instalments on, accrues, see ACTION OR Sun, 8. Conditions precedent to action on, see AC- TION OR SUIT, 7; CONSTITUTIONAL LAW, 455. Joinder of causes of action on, see ACTION OR SUIT, 113. Admissions by contractor, see ADMISSIONS. Provision in, for arbitration, see ARBITRA- TION, 3, 5, 14. 330 BUILDING AND LOAN ASSOCIATIONS. Liability of architect for negligence in cer- tifying performance of, see ARCHI- TECTS, 3. Assignability of balance due under con- tract for public work, see ASSIGNMENT, 26. Acceptance of bid by contractors, with notice of mistake as to subject-matter, see CONTRACTS, 125; NOTICE, 13. Definiteness of, see CO'NTRACTS, 157. Construction of generally, see CONTRACTS, II. d, 4. Recovery on quantum meruit, see CON- TRACTS, 17. Absene of provision as to priced for work, see CONTRACTS, 30. Recovery for extra work, see CONTRACTS, 622-625. Consideration for agreement to pay addi- tional compensation, see CONTRACTS, 110-113. Oral contract to become surety for building contractor, see CONTRACTS, 233. Payment by property owner of claims against Contractor, see EVIDENCE, 644. Owner's promise to pay subcontractor where contractor fails to pay him, see CONTRACTS, 225. Excuse for failure of performance, see CON- TRACTS, 626, 636, 637. Excuse for delay in performance, see CON- TRACTS, 638-641. Right of recovery on part performance, see CONTRACTS, 646-65>. Sufficiency of performance, see CONTRACTS, 654-658, 660. Effect of destruction of building before com- pletion of contract, see CONTRACTS, 652, 653. Certificate of performance of, see CON- TRACTS, IV. d. Arbitrary withholding of architect's certifi- cate, see TRIAL, 597. Effect of absence of final estimate by engi- neer on completion of work, see CON- TRACTS, 670. Waiver of objections to performance of, see CONTRACTS, 665-668. Waiver of time clause in, see CONTRACTS, 704. . Misrepresentations as te> ability of archi- tect and probable cost of structure, see CONTRACTS, 664; FRAUD AND DECEIT, 8, 9. Effect of breach of, see CONTRACTS, 698-700. Trespass on the case to recover damages for breach of, see CASE, 13. Parol modification of, see CONTRACTS, 707, 708. Authority of architect to change plans, see CONTRACTS, 703. Materiality of architect's good or bad faith in failing to pass on plans and draw- ings for changes in work, see CON- TRACTS, 638. Termination or repudiation of, see CON- TRACTS, 711, 712, 716, 728a. Right of action on, generally, see CON- TRACTS, 771, 772. Defense to action on, see CONTRACTS, 781, 782 Digest 1-52 L.R. A.(N.S.) Materiahnan's failure to deliver materials causing delay in execution of contract, see CONTRACTS, 639; DAMAGES, 23, 171, 172. Reasonableness of custom of architect *o retain plans and specifications, see CUSTOMS, 7. Measure of damages on, see DAMAGES, 116- 199. Stipulation in, for penalty in case of delay, see DAMAGES, 226-230. Damages for wrongful termination of, see DAMAGES, 688. Measure of damages where contractor has been delayed in collection of amount due him, see DAMAGES, 103. Presumption and burden of proof as to, see EVIDENCE, 644. Evidence in action on, see EVIDENCE, 1624, 1648. Sufficiency of proof as to damages resulting from breach, see EVIDENCE, 2272. Filing claim for labor on, against decedent's estate, see EXECUTORS AND ADMINIS- TRATORS, 106. As to mechanics' liens on building, see ME- CHANICS' LIENS. Liability of contractor for injury to em- ployee, see MASTER AND SERVANT, 1057-1064. Liability of subcontractor for tort of serv- ant causing injury to employee of gen- eral contractor, see MASTER AND SERV- ANT, 473-475. Owner's liability for negligence of contrac- tor generally, see MASTER AND SERVANT, III. b. Injury to contractor by defects in building existing at time he commenced work, see NEGLIGENCE, 96. Liability of state commissioners discharg- ing contractor employed to construct state building, see OFFICERS, 99. Personal liability to contractors of officer making contract, see OFFICERS, 101. Notice to materialman of shortage in quan- tity and defects in quality, see SALE, 135, 136. Relation created by written contract for construction work, see TRIAL, 224. Contracts for public work generally, see CONTRACTS, VII. Contracts for public improvements, see PUB- LIC IMPROVEMENTS. II. ./ BUILDING AND LOAN ASSOCIA- TIONS. J. In general, 13. II. Stock; advance dues, 4, 5. III. Loans; mortgages, 615. a. In general, 012. d. Premiums, 1315. c. Usury. d. Foreclosure. IV. Dues and fines. V. .Potcers generally, 1621. VI. Withdrawals, 22, 23. BUILDING AND LOAN ASSOCIATIONS, I. III. a. 331 VII. Termination; insolvency; wind- ing up, 24 3O. Till. Foreign associations, 31, 32. Gift of certificate of shares in, see GIFTS, 25. Evidence by officers of, as to terms of loan to married woman secured through husband since deceased, see WITNESSES, 58. I. In general. (See also same heading in Digest L.R.A. 1-10.) By-laws. Estoppel of member voting f->r amendment of, see ESTOPPEL, 110. See also infra, 23, 26. 1. A second auction of funds on the same evening is not prevented by a pro- vision of a by-law of a building and loan association to the effect that no loan shall be made to a second bidder on the same evening for a premium lower than the suc- cessful bid. Spithover v. Jefferson Bldg. & Loan Asso. 26: 1135, 125 S. W. 766, 225 Mo. 660. Power of officers. 2. The board of managers of a build- ing and loan association has no power to transfer to another association the con- tract of a borrowing stockholder. Cobe v. Lovan, 4: 439, 92 S. W. 93, 193 Mo. 235. (Annotated) 3. That the foreclosure of a building and loan association mortgage is ordered by its former president will not validate the proceeding if he is acting as agent of an- other association to which the former asso- ciation has attempted to transfer its assets. Cobe v. Lovan, 4: 439, 92 S. W. 93, 193 Mo. 235. //. Stock; advance dues. (See also same heading in Digest L.R.A. 1-10.) Taxation of preferred stock in, see TAXES, 65. 4. A certificate of shares in a building and loan association, assigned by indorse- ment in blank upon the back thereof by the person to whom it was issued, will prima facie, as between the parties themselves, constitute the vendee and holder thereof the owner of such certificate. Dewey v. Barnhouse, 29: 166, 109 Pac. 1081, 83 Kan. 12. Maturity of stock. 5. A guaranty by a building and loan association that only a certain number of payments on stock shall be necessary in or- der to mature it, even though ultra vires, is not illegal, and the association will not be heard to say, in a controversy with the borrowing member, that the guaranty is void because beyond its power. St. John v. Digest 1-52 L.R.A. (N.S.) Iowa Business Men's Bldg. & L. Asso. 15: 503, 113 N. W. 863, 136 Iowa, 448. (Annotated) ///. Loans; mortgages, a. In general. (See also same heading in Digest L.R.A. 1-70.) Estoppel of member by voting for amend- ment of by-laws as to, see ESTOPPEL, 110. See also infra, 27. 6. Suspension by a building and loan association of the payment of dues on its stock by its member^ for an unreasonable time, so as to work a material departure from its general plan and scheme of satis- fying loans made to its members of the ul- timate value of their shares of stock by maturing the stock, affords ground for dis- solution of the contractual relations exist- ing between it and a member to whom such loan has been made. Burkheimer v. Na- tional Mut. Bldg. & L. Asso. 4: 1047, 53 S. E. 372, 59 W. Va. 209. (Annotated) 7. A borrowing member of a building and loan association, whose loan was made prior to a statute providing that no associa- tion shall be allowed to collect from a bor- rower in premium and interest more than 8 per cent, that payments shall be credited on anniversary days, and payments on stock treated as payments on the mortgage, to con- form to which the association has amended its articles of incorporation, is not obliged to wait until sued in order to have an ac- counting and release of his mortgage upon the basis fixed by the statute and the amend- ed articles of incorporation. St. John v. Iowa Business Men's Bldg. & L. Asso. 15: 503, 113 N. W. 863, 136 Iowa, 448. 8. Where a building and loan associa- tion deposits the mortgage of a borrower with an officer of another state as part of a trust fund required by the statutes of that state, as a condition of doing business within it, for the protection of its citizens who should become members of the association, it ab- rogates, 06 initio, the contract between it and the borrowing member; and his debt will be liquidated as though the relation between the parties was merely that of debtor and creditor. Clarke v. Darr, 9: 460, 80 N. E. 19, 168 Ind. 101. (Annotated) Forfeiture; credits or default. 9. The character of a payment to a building and loan association as one in re- duction of the loan is not changed by the fact that, as a matter of bookkeeping, the credit is not in fact applied upon the loan, but is entered upon some other account. Butson v. Home Sav. & T. Co. 4: 98, 105 N. W. 645, 129 Iowa, 370. 10. In case of an advance by one loan association to take up a loan in another upon stock which has partly matured, the net amount of the loan is the sum still due, and not the face value of the loan, although the latter amount is charged on the books 332 BUILDING AND LOAN ASSOCIATIONS, III. b V. of the association, and a credit as of an ad vance payment thereon given for the with- drawal value of the stock in the other as- sociation. Butson v. Home Sav. & T. Co. 4: 98, 105 N. W. 645, 129 Iowa, 370. (Annotated) Computing amount due on default. See also infra, 28. 11. That an action to foreclose a mort- gage against a borrower from a buildin and loan association is brought by a re- ceiver does not deprive the borrower of the benefit of a statute providing that, when such association seeks to enforce one of its contracts, no greater recovery can be had than the net amount of principal actually received, with interest at not to exceed a certain rate on the nftt amount of the loan. Butson v. Home Sav. & T. Co. 4: 98, 105 N. W. 645, 129 Iowa, 370. 12. A member of a building and loan as- sociation who has borrowed from it the ultimate value of the stock subscribed by him, and who has the right to sever his rela- tions with the association by reason of the gross mismanagement of its affairs, and elects to do so, should be charged with the amount of the loan and legal interest there- on from the date on which he received the money, and be credited with the interest and premium paid until the date on which his right to withdraw accrued, and the value of his stock as of such date, as nearly as the same can be ascertained, making due de- ductions for his share of the expenses and losses sustained up to that date, and on the balance thus found to be due from him he should be charged with interest, and credit- ed with all payments thereafter made by him, whether on account of dues, interest, or premium; and in applying credits be- fore, on, and after said date, the rule gov- erning partial payments should be observed and followed. Burkheimer v. National Mut. Bldg. & L. Asso. 4: 1047, 53 S. E. 372, 59 W. Va. 209. Z>. Premiums. (See also same heading in Digest L.R.A. 1-10.) Constitutionality of statute limiting inter- est or premiums, see CONSTITUTIONAL LAW, 779. Special legislation as to, see STATUTES, 168. See also supra, 7. 13. A building and loan association con- tract of loan, stipulating for the payment of a monthly premium, limited to a certain number of payments, is not violative of the provision of W. Va. Code 1899, chap. 54, 26, relating to the premium in such con- tracts. Burkheimer v. National Mut. Bldg. & L. Asso. 4: 1047, 53 S. E. 372, 59 W. Va. 209. 14. Express assent by an existing mem- ber to the amendment cf the articles of in- corporation of a building and loan associa- tion to conform to an act limiting the amount of premium and interest to be Digest 1-52 L.R.A. (N.S.) charged borrowing members and providing for the application of payments is not nec- essary to entitle him to the benefit of such amendment, where he has not expressly dis- sented, but has allowed the association to proceed under the amended articles; as he will be deemed either to have impliedly as- sented or to be estopped from denying his assent; and, moreover, the amendment being beneficial, his assent will be presumed. St. John v. Iowa Business Men's Bldg. & L. Asso. 15: 503, 113 N. W. 863, 136 Iowa, 448. 15. A building and loan association which amends its articles of incorporation so as to conform to a statute which limits the interest and premiums to be charged members, provides for the application of payments, and declares, in effect, that any reduction in the rate of interest authorized by the amended articles of the association shall apply to members who had borrowed from the association prior to the passage of the act, cannot be heard to say that existing members may not take advantage of the amended articles, for the reason that they do not refer to existing contracts. St. John v. Iowa Business Men's Bldg. & L. Asso. 15: 503, 113 N. W. 863, 136 Iowa, 448. c. Usury. (See also same heading in Digest L.R.A. 1-10.) Special legislation as to, see STATUTES, 168. d. Foreclosure. (See also same heading in Digest L.R.A. 1-10.) Estoppel to deny validity of deed given on foreclosure of mortgage, see ESTOPPEL, 55. See also supra, 3. IV. Dues and fines. (See also same heading in Digest L.R.A. 1-10.) See supra, 6. V. Powers generally. (See also same heading in Digest L.R.A. 1-70.) See also supra, 5. To borrow money; rights of lender. 16. A building and loan association has no implied power to borrow money to pay a withdrawing stockholder. Standard Sav. & i. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. (Annotated) 17. One loaning money to a building as- sociation to satisfy the claims of withdraw- ing members, taking an assignment of mort- gages of borrowing members as security, cannot hold the mortgages against the claims of a receiver of the association, since BUILDING AND LOAN ASSOCIATIONS, VI., VII. 333 he is charged with knowledge of the want of power of the association to make the as- signment. Standard Sav. & L. Asso. v. Aid- rich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. 18. One loaning money for an illegal purpose, to an insolvent 'building associa- tion, may recover what remains in its hands, and what it has expended for legitimate purposes, on the theory that ex asquo et bono it ought not to retain it. Standard Sav. & L. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. 19. One lending money to a building as- sociation with knowledge that it was bor- rowed for the purpose of paying withdraw- ing members cannot compel a repayment on the ground of estoppel to deny the power to borrow. Standard Sav. & L. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. 20. One loaning money to a building as- sociation with knowledge that it was bor- rowing money and assigning securities for an illegal purpose cannot claim the stand- ing of an innocent party. Standard Sav. & L. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. 21. One lending money to a building as- sociation with knowledge of its intention to use it for an illegal purpose can recover the money only to the extent that he shows that the association has been benefited by it. Standard Sav. & L. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. VI. Withdrawals. (See also same heading in Digest L.R.A. 1-70.) Presumption on appeal as to giving notice of withdrawal, see APPEAL AND ERROB, 435. Estoppel to withdraw, see ESTOPPEL, 110. Burden of establishing member's right to withdraw, see EVIDENCE, 517. Burden of showing that rights on accept- ance of withdrawal become fixed be- fore insolvency, see EVIDENCE, 595. See also supra, 12, 16, 17; infra, 29. 22. A delinquent member of "a building and loan association is not entitled to with- draw from the association if the by-laws provide that only such shares can be with- drawn as are in good standing, with all dues, claims, and fines paid. Hoyt v. Harbor & Suburban Bldg. & Sav. Asso. 49: 1129, 90 N. E. 349, 197 N. Y. 113. ( Annotated ) 23. A waiver of the right to forfeit shares in a building and loan association for delinquency in payment, or of the right to assess fines for such delinquency, does not waive a provision of a by-law permitting withdrawals only by members in good standing. Hoyt v. Harbor & Suburban Bldg. & Sav. Asso. 49: 1129, 90 N. E. 349, 197 N. Y. 113. Digest 1-52 L.R.A.(N.S.) VII. Termination; insolvency; winding up. (See also same heading in Digest L.R.A. 1-10.) Presumption on appeal that notice to with- draw was not given until after insol- vency, see APPEAL AND ERROR, 435. Presumption and burden of proof as to pri- ority, see EVIDENCE, 595. Relief against decree fixing amount of in- debtedness of insolvent association, see JUDGMENT, 402. See also supra, 11, 17, 18. 24. The insolvency of a building and loan association suspends the power of the directors to apply funds to the payment of withdrawing shareholders. Standard Sav. & L. Asso. v. Aldrich, 20: 393, 163 Fed. 216, 89 C. C. A. 646. 25. Holders of stock in an insolvent building and loan association who do not appear in an action to obtain a declaration of the rights of the various classes of stock- holders cannot be denied the right to share in the assets, if the books had been de- stroyed so that it was not possible to make all stockholders parties to the proceedings. Pacific Coast Sav. Soc. v. Sturdevant, 49: 1142, 133 Pac. 485, 165 Cal. 687. 26. A provision in the by-laws of a building and loan association that matured shares shall be paid in the order of maturity does not give the holders of such shares priority over the holders of other classes in case of the insolvency of the association. Pacific Coast Sav. Soc. v. Sturdevant, 49: 1142, 133 Pac. 485, 165 Cal. 687. 27. A receiver appointed after insolvency of a building and loan association proceeds in like manner as the directors thereof might have done if insolvency had not su- pervened as to mortgage debts that become due and payable, not by the insolvency of the association, but according to the term* of such mortgages and under the by-laws of the association, by the default of the bor- rower himself, prior to the insolvency of the association. Re State Mut. Bldg. & Loan Asso. (N. J. Err. & App.) 19: 588, 71 Atl. 251, 74 N. J. Eq. 807. 28. The rule that the mortgagor, in the computation of the amount payable upon a mortgage made to a building and loan asso- ciation by one of its members, and which has become due by reason of the insolvency of the association, is entitled to have cred- ited upon the principal of the mortgage, all sums paid by him as premiums for the loan, does not apply to mortgage debts that be- come due, not by the insolvency of the as- sociation, but according to the terms of such mortgages and under the by-laws of the association, by the default of the borrower himself prior to the insolvency of the asso- ciation, since, in the latter case, the mere breach of the legal contract gives rise to no equitable considerations. Re State Mut. Bldg. & Loan Asso. (N. J. Err. & App.) 19: 588, 71 AtL 251, 74 N. J. Eq. 807. 334 'BUILDING AND LOAN ASSOCIATIONS, vin. BUILDINGS. 29. Notice of withdrawal of matured stock in a building and loan association at A time when the association was in fact in- solvent, but prior to the entry of the judg- ment declaring the insolvency, cloes not, in the abssnce of a by-law requiring it, entitle the owners of such stock to preference over the holders of other classes of stock in pay- ment out of the assets of the association. Pacific Coast Sav. Soc. v. Sturdevant, 49: 1142, 133 Pac. 485, 165 Cal. 687. (Annotated) Accounting when association is in- solvent. 30. One who purchases stock in a build- ing and loan association, for which he agrees to pay in instalments, and then borrows money from the association upon his note 'and mortgage, pledging the stock as addi- tional security, is not, where there is no provision for canceling the indebtedness (with the stock, entitled, in case the corpo- 'ration becomes insolvent, to have the pay- ments and credits on his stock credited on the note and mortgage, although the mort- gage gives the association the option to claim such credits in case default in his con- tract requires foreclosure of the mortgage. Groover v. Pacific Coast Sav. Soc. 43: 874, 127 Pac. 495, 164 Cal. 67. (Annotated) VIII. Foreign associations. {See also same heading in Digest L.R.A. 1-10.) 31. Failure of a foreign building and loan association to comply with the provi- sions of West Virginia Code of 1899, chap. 54, 30, requiring its articles of associa- tion and by-laws to be recorded in the office of" the secretary of state, does not preclude it from transacting business in the state. ! Burkheimer v. ^National Mut. Bldg. & L. 'Asso. 4: 1047, 53 S. E. 372, 59 W. Va. 209. Securities deposited by. See also supra, 8. i 32. A statute permitting, subject to the provisions of the act, building associations, in order to secure the right to do business in another state, to deposit securities with an officer of such state for the benefit of its members and creditors, does not contem- plate that a trust fund shall be created solely to indemnify members resident in that state, where the statute forbids the creation of preferred stock. Clarke v. Darr, 9: 460, 80 N. E. 19, 168 Ind. 101. (Annotated) BUILDING CONTRACTORS. See BUILDING AND CONSTRUCTION CON- TRACTS. BUILDING LINE. Covenant or condition in deed as to, see COVENANTS AND CONDITIONS, 50, 81, 96; EVIDENCE, 1524. Constitutionality of regulations as to, see CONSTITUTIONAL LAW, 518, 663. BUILDING INSPECTOR. Mandamus to, see MANDAMUS, J35. Digest 1-52 L.R.A. (N.S.) BUILDING MATERIALS. As fixtures, see FIXTURES, 1. In street, see HIGHWAYS, 77, 120, 237, 271, 296. Lien for, see MECHANICS' LIENS. Failure to deliver, causing delay in execu- tion of contract, see CONTRACTS, 639; DAMAGES, 23, 171, 172. BUILDING PERMIT. See BUILDINGS, 10, 12, 13; CONSTITUTIONAL LAW, 661; EVIDENCE, 662. BUILDINGS. /. Statutory and municipal regula- tions, 146. a. In general, 128. ft. Fire escapes, 2946. II. Private rights. Defense to suit to secure removal of, from land, see APPEAL AND ERROR, 741. As to building contracts, see BUILDING AND CONSTRUCTION CONTRACTS. Right of architect in plans for, see ARCHI- TECT, 2. What necessary to constitute binding con- tract to employ superintendent for con- struction of, see COUNTIES, 35. Measure of damages for injury to, or de- struction of, see DAMAGES, III. k, 2. Injunction against erection of, see DAM- AGES, 591; INJUNCTION, 200, 439. Easement for support of, see EASEMENTS, 52. Duty of owner of lower portion to keep walls in repair, see EASEMENTS, 69. Injury by electric wires in moving build- ing through street, see ELECTRICITY, 38, 39. Elevators in, see ELEVATORS. Regulating piling of lumber near, see CON- STITUTIONAL LAW, 197 ; MUNICIPAL CORPORATIONS, 208. Building encroaching on adjoining prop- erty, see EJECTMENT, 2; ENCROACH- MENTS; INJUNCTION, 34; MASTER AND SERVANT, 1012. Retaining equitable jurisdiction to prevent wrongful removal of. see EQUITY, 122. Estoppel of one permitting erection of building on his land through mistake, see ESTOPPEL, 113. BUILDINGS, I. a. 335 Removal of building interfering with draw- bridge, see ESTOPPEL, 12; WATERS, 106, 109. Presumption that building was located on land of another without authority, see EVIDENCE, 629. Opinion evidence as to damage to, see EVI- DENCE, 1131. Opinion evidence as to time necessary to restore injured building, see EVIDENCE, 1144. Evidence as to safety of chimneys left standing during demolition of, see EVI- DENCE, 1767. Right of tenant to remove, see EVIDENCE, 867, 939; LANDLORD AND TENANT, 125. Injury to person by fall of object from, see EVIDENCE, 1872; HIGHWAYS, 269, 270, 291-295, 310, 314-316, 382, 385. Injury by fall of, see EVIDENCE, 2443; LANDLORD AND TENANT, 160; MASTER AND SERVANT, 294, 489, 490; NEGLI- GENCE, 96; PROXIMATE CAUSE, 149. Right of devisee to completion of, at ex- pense of estate, see EXECUTORS AND ADMINISTRATORS, 45. Fixtures in, see FIXTURES, 6-8, 18. In street, see HIGHWAYS, 78, 219, 220. Projection of steps of, into highway, see HIGHWAYS, 81. Materials for, in highway, see HIGHWAYS, 77, 120, 237, 271, 296. Interference with telephone wires in mov- ing building on street, see HIGHWAYS, 62, 68-70; INJUNCTION, 112, 438. Compelling removal of wall by injunction, see INJUNCTION, 22. Mandatory injunction to compel alteration of, see INJUNCTION, 43. Injunction against removal of, from prem- ises, see INJUNCTION, 207. Liability of landlord for injury by defects in, see LANDLORD AND TENANT, III. c. Landlord's liability for injury to tenant's property by fall of, see LANDLORD AND TENANT, 160. Lateral support for, see LATERAL SUPPORT, II. License to build on land, see LICENSE, 1, 7. Lien for money advanced to lessee for erec- tion of, see LIENS, 47. Laches in demanding that use of wall for support of, be discontinued, see LIMI- TATION OF ACTIONS, 33. Negligence in tearing down and removal of, see MASTER AND SERVANT, 21, 990. Liability for injury caused by excavating under, see MASTER AND SERVANT, 1007. Liability of contractor for injuries result- ing from defects in, see MASTER AND SERVANT, 1057-1064. Liability of municipality which raises building to conform to street grade for injury to stranger by its collapse, see MASTER AND SERVANT, 1064. Lien on, see MECHANICS' LIENS. Power of municipality to provide for ap- pointment of deputy building inspector, see MUNICIPAL CORPORATIONS, 32, 33. Contract by munioipality to move, see MU- NICIPAL CORPORATIONS, 230, 231. Digest 1-52 L.R.A.(N.S.) Liability of municipality for destruction of, see MUNICIPAL CORPORATIONS, 437. Destruction of building infected with small- pox, see MUNICIPAL CORPORATIONS, 153, 154. Erection on property of pole by means of which access is obtained by burglar to house of neighbor, see NEGLIGENCE, 95. Negligence as to condition of, generally, see NEGLIGENCE, I. c; LANDLORD AND TEN- ANT, III. c. Injury to, by explosions, see NEGLIGENCE, 273. Destruction of building which constitutes a nuisance, see NUISANCES, 168, 169. As to walls, see PARTY WALL; WALLS. Demurrer to allegation that owner of build- ing had failed to provide means for extinguishment of fire, see PLEADING, 584. As to public buildings, see PUBLIC BUILD- INGS. Loss of, by fire after contract of sale, see VENDOR AND PURCHASER, 21-25. On railroad right of way, injury to occu- pants by derailment of, see RAILROADS, 57. Requirement of covenant against, in decree for specific performance, see SPECIFIC PERFORMANCE, 126. To whom listed for taxation, see TAXES, 168. Damage to, by fall of adjoining building; question for jury as to proximate cause, see TRIAL, 177. Question for jury as to negligence as to, see TRIAL, 562. Conversion of, see TROVER, 26. /. Statutory and municipal regulations, a. In general. (See also same heading in Digest L.R.A. 1-70.) Denial of equal protection of law by build- ing regulations, see CONSTITUTIONAL LAW, 178, 179. Due process in regulation of, see CONSTITU- TIONAL LAW, 518. Police power as to, see CONSTITUTIONAL LAW, C60-663. Constitutionality of ordinance establishing building line, see CONSTITUTIONAL LAW, 663. Constitutionality of restrictions as to lo- cation of retail store, see CONSTITU- TIONAL LAW, 660. Forbidding occupation of, for purpose of dealing in rags, see MUNICIPAL CORPO- RATIONS, 198. Injunction against erection of, for viola- tion of ordinance, see NUISANCES, 133, 141. Property owner's right to compel strict conformity with building regulations, see PARTIES, 110. 1. A provision, in a municipal ordi- nance regulating the construction of build- ings within the city, declaring that it shall 336 BUILDINGS, I. a. be unlawful to erect a gas tank or holder therein without the written consent of the owners of all the property within a radius of 1,000 feet from the site of such build- ing, is void. State ex rel. Omaha Gas Co. v. Withnell, 8: 978, 110 N. W. 680, 78 Neb. 978. (Annotated) 2. A vote of a special town meeting au- thorizing a property owner to repair and put in habitable condition his house does not authorize a violation of an ordinance forbidding the raising, roofing, or enlarging of buildings with wood. Houlton v. Tit- comb, 10: 580, 66 Atl. 733, 102 Me. 272. 2a. A municipal corporation cannot make the erection of frame buildings within its limits dependent upon obtaining the con- sent of owners of brick or stone buildings within a certain distance of the proposed structure. Tilford v. Belknap, n: 708, 103 S. W. 289, 126 Ky. 244. 3. A municipal corporation has no au- thority inherently, or under the general welfare clause of rts charter, to require owners of property on residence streets to secure the consent of a majority of the neighboring property owners before erect- ing a business block thereon, nor to require buildings to be erected with respect to lines established some distance from the street. Willison v. Cooke, 44: 1030, 130 Pac. 828, 54 Colo. 320. ('Annotated) 4. A municipal corporation may, under constitutional authority to make and en- force within its limits such police, sani- tary, and other regulations as are not in conflict with general laws, compel a school district organized by the legislature within its territory to comply with its Building Code, notwithstanding the school district is organized by a general law, and its trus- tees are invested with power to control and manage all school property within the dis- trict. Pasadena City School Dist. v. Pasa- dena, 47: 892, 134 Pac. 985, 166 Cal. 7. (Annotated) Regulating height. Delegating to commission power to deter- mine height of, see CONSTITUTIONAL LAW, 91, 92. Discrimination in statute as to, see CON- STITUTIONAL LAW, 178, 179. Police power as to, see CONSTITUTIONAL LAW, 662. Questioning validity of statute limiting height, on mandamus to compel issu- ance of building permit, see MANDA- MUS, 129. 5. The legislature, in regulating the height of buildings in a city, may permit them to be higher in the sections where there is a call for office space than in the residential portions, although the streets in the former may be narrower than in the latter. Welch v. Swasey, 23: 1160, 79 N. E. 745, 193 Mass. 364. 6. The prohibition of the erection of a building of greater height than 80 feet in the residential portion of a city unless the width on the street shall be at least one half its height is not so unreasonable as to make the regulation invalid. Welch v. Digest 1-52 L.R.A.(N.S.) Swasey, 23: 1160, 79 N. E. 745, 193 Mass. 304. 7. The legislature may limit the height of buildings in a section of a city which is devoted to fine residences, public buildings, and works of art, for the purpose of pro- tecting such buildings and works from the ravages of fire. Cochran v. Preston, 23: 1163, 70 Atl. 113, 108 Md. 220. 8. A building erected in steps or ter- races with a series of front walls running up one behind the other to a height exceed- ing that permissable for the front wall of that portion of the building which abuts upon the street violates a statutory pro- vision against the erection of any building the height of which shall exceed the dis- tance of the front or nearest external wall of such building from the opposite side of the street. Attorney General v. Metcalf, 1 B. R. C. 135, [1908] 1 Ch. 327. Also Reported in 77 L. J. Ch. N. S. 261, 97 L. T. N. S. 737, 72 J. P. 97, 24 Times L. R. 53. 9. Where a portion of a building is set back from the general line of the front- age it does not necessarily follow that that portion may be treated as a separate build- ing entitled to have its height measured according to a different standard from that applied to the building regarded as a whole. Attorney General v. Metcalf, 1 B. R. C. 135, [1908] 1 Ch. 327. Also Reported in 77 L. J. Ch. N. S. 261, 97 L. T. N. S. 737, 72 J. P. 97, 24 Times L. R. 53. 10. The question, what constitutes a "front or nearest external wall" of a build- ing within the meaning of a statutory pro- vision that no building shall be erected without the consent of the proper authority "so that the height of such building shall exceed the distance of the front or nearest external wall from the opposite side of the street," is a question of fact to be dealt with in each individual case. Attorney General v. Metcalf, 1 B. R. C. 135, [1908] 1 Ch. 327. Also Reported in 77 L. J. Ch. N. S. 261, 97 L. T. N. S. 737, 72 J. P. 97, 24 Times L. R. 53. 11. In determining whether a building which is not of uniform height contra- venes a statutory provision regulating the height of buildings, it is a question of fact in each case whether the building under consideration shall be treated as a whole or whether it may be regarded as several distinct buildings, the height of which may be measured according to different stand- ards. Attorney General v. Metcalf, 1 B. R. C. 135, [1908] 1 Ch. 327. Also Reported in 77 L. J. Ch. N. S. 261, 97 L. T. N. S. 737, 72 J. P. 97, 24 Times L. R. 53. Building permits. Due process of law as to, see CONSTITUTION- AL LAW, 379. Police power as to, see CONSTITUTIONAL LAW, 661. Presumption, from lapse of time, of appli- cation for permit for erection of build- ing, see EVIDENCE, 662. 12. A permit for a building, issued under a misconception of the facts in contra- vention of the building regulations of the BUILDINGS, I. a. 337 city, may be revoked, even after building operations have begun, especially by a board having supervision of the action of the official who granted it. O'Bryan v. Highland Apartment Co. 15: 419, 108 S. W. 257, 128 Ky. 282. 13. A section of a municipal ordinance forbidding the erection of a building within the city limits without a permit must be read in connection with another section au- thorizing the erection of wooden buildings of certain dimensions, for certain purposes, without the fire limits, so that a permit is required even for the latter class of build- ings. O'Bryan v. Highland Apartment Co. 15: 419, 108 S. W. 257, 128 Ky. 282. Fire limits. Taking of property by statute as to, see CONSTITUTIONAL LAW, 380, 381. Review by courts of ordinance as to, see COURTS, 166. Grant of permission to erect building with- in fire limits on certain conditions, see ESTOPPEL, 241. Restraining municipality from removing wooden building erected within fire limits, see INJUNCTION, 313. Injunction against preventing erection of wooden building, see INJUNCTION, 346. Acquittal in criminal prosecution as res judicata in. civil suit, see JUDGMENT, 194. Violation of ordinance as to fire limits, see MUNICIPAL CORPORATIONS, 220. Injunction against erection of wooden building within fire limits, see NUI- SANCES, 141; PARTIES, 35. Abatement of building erected within fire limits, see NUISANCES, 168. Who may maintain action to compel con- formity with building regulations, see PARTIES, 110. See also supra, 13. 14. One constructing within specified limits a building entirely of wood except that it is covered on the outside with sheets of corrugated iron is not subject to fine and imprisonment under an ordinance providing that all buildings within such limits shall be constructed of brick, stone, or other in- combustible material and covered with tin or metallic or other fireproof roofing, and providing for the punishment of any person who shall erect or attempt to erect "any wooden building" in violation of such ordi- nance. Sylvania v. Hilton, 2: 483, 51 S. E. 744, 123 Ga. 754. 15. A building constructed by erecting a wooden frame, and covering it on the out- side with sheets of corrugated iron, the in- terior, including the flooring, ceiling, etc., being entirely of wood, does not meet the requirements of a municipal ordinance which declares that within certain fire limits all buildings shall be constructed of brick, stone, or other incombustible material, and covared with tin, or metallic, or fireproof roofing. Sylvania v. Hilton, 2:483, 51 S. E. 744, 123 Ga. 754. (Annotated) 16. A municipal ordinance is a reason- able and constitutional exercise of the police power, which absolutely forbids the erection Digest 1-52 L.R.A.(N.S.) of any frame structure within the "fire lim- its," and permits the construction of wooden structures for certain specified uses, and of certain dimensions, without the "fire lim- its," only when they are to be erected on the rear of a lot abutting on a public alley, and not within 60 feet of any permanent build- ing, and a permit therefor has been secured from the city building inspector. O'Bryan v. Highland Apartment Co. 15: 419, 108 S. W. 257, 128 Ky. 282. 17. One who has stipulated, in considera- tion of being permitted to place a wooden building within the fire limits of a city, that it may be torn down at his expense in case he fails to remove it at the ex- piration of the stipulated period, cannot object to the city acting under the stipu- lation after he has failed to obey a notice to remove the building, if he cannot show any extension of the time for its removal. Clark v. Deadwood, 18: 402, 117 N. W. 131, 22 S. D. 233. 18. The imposition of a license fee upon a business carried on in a wooden building within the fire limits of the city for sev- eral months after expiration of the time fixed for removal of the building under the contract permitting its erection is not suffi- cient to show an extension of time for such removal. Clark v. Deadwood, 18: 402, 117 N. W. 131, 22 S. D. 233. 19. In determining whether or hot a wooden building injured by fire has suffered such injury in proportion to its value as to be subject to removal from the fire limits of the city, the value of the concrete fire-proof base on which it stands should not be taken into consideration. Davison v. Walla Walla, 21:454, 100 Pac. 981, 52 Wash. 453. 20. The removal of a building erected within the fire limits of a city contrary to its ordinance is merely an exercise of the police power, which does not require a ju- dicial proceeding to determine whether or not the building was subject to removal. Davison v. Walla Walla, 21:454, 100 Pac. 981, 52 Wash. 453. 21. A municipal corporation has power to require the removal of a wooden building located within its fire limits, when it is damaged by fire to the extent of 30 per cent of its value, under charter authority to make regulations for the prevention of accidents by fire, and to prohibit the erec- tion, within certain designated limits, of buildings whose outer walls are not con- structed of brick, stone, or iron. Davison v. Walla Walla, 21:454, 100 Pac. 981, 52 Wash. 453. (Annotated) 22. A city ordinance establishing fire limits, and prohibiting the erection of any wooden building within such limits, does not conflict with a statute requiring rail- roads to permit the construction of ele- vators upon the right of way, where the statute makes no provision as to the ma- terials of which the elevators are to be con- structed. Red Lake Falls Milling Co. v. Thief River Falls, 24: 456, 122 N. W. 872, 109 Minn. 52. 338 BUILDINGS, I. b. 23. A city ordinance establishing fire limits, and declaring it unlawful to erect or attempt to erect any wooden building with- in euch limits, prohibits the moving of an already constructed wooden building from a point outside to a location within such limits. Red Lake Falls Milling Co. v. Thief River Falls, 24: 456, 122 N. W. 872, 109 Minn. 52. (Annotated) 24. A municipal ordinance declaring it unlawful to construct any wooden building within the fire limits of the city is not violated by a repairing or remodeling of a wooden building, unless it is done to the extent of substantially erecting a "new building" as that word is commonly under- stood. Mayville v. Rosing, 26: 120, 123 N. W. 393, 19 N. D. 98. (Annotated) 25. To violate a municipal ordinance de- claring it unlawful to construct any wooden building within the established fire limits of a city, the acts must be brought within the terms of the ordinance, or synonymous terms, or terms included within the terms of the ordinance; and the words "repairing" and "remodeling" are not synonymous, or included within the meaning of the word "building." Mayville v. Rosing, 26: 120, 123 N. W. 393, 19 N. D. 98. 26. No conviction can be had under a municipal ordinance declaring it unlawful to construct any wooden building within the established fire limits of the city, solely on the fact that the acts complained of are within the spirit or purpose of the ordi- nance. Mayville v. Rosing, 26: 120, 123 N. W. 393, 19 N. D. 98. 27. The changing of a wooden building 42 feet long, 24 feet wide, and 10 feet high at the highest point outside of a skylight about 17 feet high at its highest point, the sides of which building were of unequal height, by the removal of the roof and skylight, and the raising of the building, except at the front, 3J feet on one side and 7i feet on the other, thereby making the sides of equal height; and the building of an addition on the rear 16 feet of the upper part, which addition contains four rooms and has a peaked roof, the peak of which' is 17 feet and the base 12 feet from the ground; the front of the building not being changed as to height or appearance, and the only change in the appearance of the sides being that made by the increased height. does not constitute a violation of a mu- nicipal ordinance declaring it unlawful to construct a wooden building within the fire limits of the city. Mayville v. Rosing, 26: 120, 123 N. W. 393, 19 N. D. 98. 28. A municipal ordinance requiring all repairs to roofs within the fire limits to be of noninflammable material does not pro- hibit the replacing of a few wooden shingles with new ones of the same material, since the fire risk is not thereby materially in- creased. Seneca v. Cochran, 26: 124, 66 S. E. 288, 84 S. C. 279. (Annotated) Digest 1-52 L.R.A.(N.S.) 6. Fire escapes. (See also same heading in Digest L.R.A.. 1-70.) Submission of question as to, see AGBEED CASE, 2. Liability of charitable institution for in- jury by fall of, see CHARITIES, 69. Liability of charitable corporation for fail- ure to maintain, see CHARITIES, 73. Right of owner of easement to construct, as against fee owner, see EASEMENTS, 75. Negligence of independent contractor plac- ing fire escapes on, see MASTER AND SERVANT, 1024, 1025; TRIAL, 602. Assumption of risk of lack of fire escapes, by minor employee, see MASTER AND SERVANT, 610. 29. The general police power conferred upon a municipality does not include power to compel the placing of fire escapes on an eleemosynary institution for the blind which belongs to, and is entirely under the control and management of, the state. Kentucky Institution for Education of Blind v. Louis- ville, 8: 553, 97 S. W. 402, 123 Ky. 767. 30. A certificate of approval of a fire escape granted to the owner of a building operates in favor of his successor in title. Bombright v. Schoettler, i: 1091, 127 Fed. 320, 64 C. C. A. 212. 31. A provision in an action amending a statute requiring the placing of fire escapes on buildings, that nothing in the act shall interfere with fire escapes now in use, ap- proved by the proper authorities, saves from the operation of the statute fire escapes which had been officially approved under the former statute. Bonbright v. Schoettler, i: 1091, 127 Fed. 320, 64 C. C. A. 212. 32. Under a provision in a statute requir- ing the placing of fire escapes on buildings, that it shall be the duty of certain officers to test escapes, and, if they prove satis- factory, to give a certificate of approval, such certificate, when properly issued, must be taken as conclusive evidence of com- pliance with the law. Bonbright v. Schoet- tler, i: 1091, 127 Fed. 320, 64 C. C. A. 212. (Annotated) 33. Compliance with an ordinance requir- ing construction of fire escapes gives no vested right to the continuance of such es- capes, and does not prevent the municipal- ity from requiring them to be replaced by others of a different pattern. Seattle v. Hinckley, 2: 398, 82 Pac. 747, 40 Wash. 468. (Annotated) 34. Existing buildings are included in an ordinance providing that all buildings of certain kinds above a certain height shall be provided with a certain kind of, fire es- cape. Seattle v. Hinckley, 2: 398, 82 Pac. 747, 40 Wash. 468. Liability of owner generally. 35. The provision of a statute requiring fire escapes on buildings, that a certificate by the proper official approving a particular fire escape shall relieve the owner of the f.a.VI/./i ri ;. :,;../ > - BUILDINGS, II. 339 building from liability for the penalty pro- vided for noncompliance with the statute, without any mention of civil liability, does not prevent its also relieving him from the latter. Bonbright v. Schoettler, i: 1091, 64 C. C. A. 212, 127 Fed. 320. 36. An order of a factory inspector to place fire escapes on a factory is not neces- sary to make it the duty of the owner to do so, under a statute providing that such fire escapes as may be deemed necessary by the factory inspector shall be provided on the outside of every factory, and describing their form, location, and method of con- struction. Arnold v. National Starch Co. 21 : 178, 86 N. E. 815, 194 N. Y. 42. 37. The owner of a building who fails to place the fire escapes thereon which are re- quired by statute, cannot escape liability for injury by fire to an occupant of the building, on the theory that other sufficient means of escape were provided, if one con- sisted of a stairway which was blocked and useless by panic stricken persons seeking to escape from the building, and the other was a mere ladder to the roof, which can- not be regarded as an efficient means of es- cape from a fire burning below. Arnold v. National Starch Co. 21: 178, 86 N. E. 815, 194 N. Y. 42. (Annotated) 38. The owner of a building who has failed to place thereon the fire escapes re- quired by statute cannot escape liability for injury to an occupant burned by a fire started in the building, if the detention of the injured person for an unnecessary time by reason of the absence of the fire escape caused or contributed to the injury. Ar- nold v. National Starch Co. 21: 178, 86 N. E. 815, 194 N. Y. 42. Liability of landlord. Presumption of tenant's knowledge of ab- sence of fire escape, see EVIDENCE, 190. Effect of landlord's failure to equip build- ings with fire escapes on right to re- cover rent, see LANDLORD AND TENANT, 180, 181. Absence of fire escape as proximate cause of injury, see PROXIMATE CAUSE, 28. Question for jury as to knowledge of ab- sence of fire escapes, see TRIAL, 297. 39. The owner of a building, and not of the business, is referred to in a statute re- quiring the owner, proprietor, lessee, or keeper of certain kinds of buildings to place fire escapes thereon. Yall v. Snow, 10: 177, 100 S. W. 1, 201 Mo. 511. (Annotated) 40. That a building was not constructed to be used for a hotel does not relieve the owner from the statutory duty of placing fire escapes on it if he leases it for that pur- pose, and knows that it is so used. Yall v. Snow, 10: 177, 100 S. W. 1, 201 Mo. 511. (Annotated) 41. That a building is under lease at the time of the passage of a statute requiring the owner, lessee, or keeper of certain kinds of buildings to provide them with fire es- capes does not relieve the owner of the duty thereby imposed. Yall v. Snow, 10: 177, 100 S. W. 1, 201 Mo. 511. (Annotated) 42. Mere length of time of occupancy, un- Digest 1-52 L.R.A.(N.S-) accompanied by some affirmative act or cir- cumstance on the tenant's part, showing an intent to relieve the landlord from the consequences that might result to the ten- ant from the landlord's failure to perform the statutory duty imposed upon him of pro- viding fire escapes, cannot relieve the land- lord from responding in damages, in case a fire breaks out and the tenant suffers injury by reason of the absence of such fire escapes. Cittadino v. Shackter (N. J. Err. & App.) 43: 80, 85 Atl. 174, 83 N. J. L. 593. 43. A tenant in an apartment house owes no duty to the landlord to examine and as- certain whether any fire escapes have been provided, but may reasonably assume that the landlord has performed the duty im- posed upon him by statute in this regard. Cittadino v. Shackter (N. J. Err. & App.) 43: 80, 85 Atl. 174, 83 N. J. L. 593. 44. Even though a tenant has discovered that the landlord has failed to perform his statutory duty of providing fire escapes, she may reasonably assume that he will per- form that duty at any time and not con- tinue to disregard the law. Cittadino v. Shackter (N. J. Err. & App.) 43: 80, 85 Atl. 174, 83 N. J. L. 593. 45. A property owner who has provided statutory fire escapes and rented certain stores above the second story in the build- ing to firms engaged in a legitimate manu- facturing business is not bound to exercise supervision over the portions of the build- ing rented, so as to insure that the passages or entrances to the fire escapes arc at all times kept open. West v. Inm-in, 39: 744, 74 S. E. 527, 137 Ga. 822. (Annotated) 46. A property owner who has provided statutory fire escapes and rented stores above the second story in the building to firms engaged in legitimate manufacturing business is not liable in damages to an em- ployee in the building working on a floor above the second, who suffers injuries from fire in consequence of obstructions placed in the passageway to the fire escape by a tenant who had rented that portion of the building around and about the escape. West v. Inman, 39: 744, 74 S. E. 527, 137 Ga. 822. II. Private rights. ''See also same heading in Digest L.R.A. 1-70.) Notice of restrictions to purchaser at auc- tion sale, see AUCTIONS, 6-8. Oral statements by grantor as to building restrictions on other lots in tract, see CONTRACTS, 267, 322. Restrictions in covenant generally, see COVENANTS AND CONDITIONS, 28, 45- 51, 53, 72-84, 91-98, 109, 110. Who may enforce, see COVENANTS AND CON- DITIONS, 92, 93, 96-98. Equitable relief for violation of oral assur- ance by grantor as to building restric- tions, see EQUITY, 63. Power of executor to insert restrictive cov- enants in deeds, see EXECUTORS AND ADMINISTRATORS, 57. 340 BULK SALES BURIAL. Injunction against breach of restrictive covenants, see INJUNCTION, 80, 81. Injunction to compel modification of build- ing so as to comply with building re- strictions, see INJUNCTION, 44. BULK SALES. See ASSIGNMENT FOB CREDITORS, 1; AT- TACHMENT, 43; CHATTEL MORTGAGE, 4; CONSTITUTIONAL LAW, 249, 250, 530, 631, 747, 748; CONTRACTS, 412; FRAUD- ULENT CONVEYANCES, 13-22, 30, 38, 39; HUSBAND AND WIFE, 150. BULL FIGHTING. As nuisance, see NUISANCES, 12, 148. BURDEN OF PROOF. Instruction as to, see APPEAL AND ERROR, 858; TRIAL, 942, 943. On application for bail, see BAIL AND RE- COGNIZANCE, 15. In general, see EVIDENCE, II. BURGLARY. Instructions in prosecution for, see AP- PEAL AND ERROR, 333, 1420; TRIAL, 1095. Failure to instruct on circumstantial evi- dence of intent, as reversible error, see APPEAL AND ERROR, 1437. Kleptomania as defense, see CRIMINAL LAW, 36. Sentence for, see CRIMINAL LAW, 228. Liability for killing another under miatak- en belief that he was a burglar, see DEATH, 39. Presiimption of, from possession of recently stolen property, see EVIDENCE, 697, 698. Evidence in prosecution for, see EVIDENCE, 651, 1896. Sufficiency of evidence to sustain conviction, see EVIDENCE, 2385, 2386. Variance in prosecution for, see EVIDENCE, 2511. Civil liability for killing in making ar- rest for burglary, see EVIDENCE, 2003. Habeas corpus to secure release of one con- victed of, see HABEAS CORPUS, 44. Homicide in perpetration of, see HOMICIDE, 39. Indictment for, see INDICTMENT, ETC., 19, 93, 94. Insurance against, see INSURANCE, 944, 945. Erection on property of pole by means of which access is obtained by burglar to house of neighbor, see NEGLIGENCE, 95. Injury to would-be burglar by spring gun, see NEGLIGENC" 112. Digest 1-52 L.R.A.(N.S.) Question for jury as to reasonableness of belief that person killed was attempt- ing burglary, see TRIAL, l'J7. Liability of warehouseman for loss by theft, see WAREHOUSEMEN, 5. 1. Nitroglycerin fuse and a detonating cap are within a statute making unlawful the possession of a machine, tool, or imple- ment designed and adapted for cutting through, forcing, or breaking open any building, room, or vault, safe, or other de- pository with intent to use or employ the same therefor, in order to steal therefrom. State v. Boliski, 50: 825, 145 N. W. 368, 78 Wis. 156. (Annotated) 2. That a store is open for business at the time a person forcibly opens its back door with intent to steal does not consti- tute such an invitation to him to enter as to prevent his prosecution for burglary. Collins v. Com. 38: 769, 143 S. W. 35, 146 Ky. 698. 3. Entering in the nighttime with in- tent to commit a felony, a piazza which is attached to a dwelling house, and is in- closed with a low railing not for the pro- tection of the dwelling, but to keep dogs and chickens off the piazza, is not bur- glary. State v. Puckett, 46:999, 78 S. E. 737, 95 S. C. 114. (Annotated) 4. One who unlawfully, wilfully, ma- liciously, and forcibly breaks and enters a mill building, with the intent to steal prop- erty of any value, is guilty of burglary, although there is no personal property in the building. Schultz v. State, 34: 243, 130 N. W. 105, 88 Neb. 613. (Annotated) What constitutes a breaking. 5. Opening a screen door held shut by springs, with the intent to commit larceny, is a breaking within the meaning of the law of burglary. State v. Henderson, 17: noo, 110 S. W. 1078, 212 Mo. 208. (Annotated) 6. There is a sufficient breaking to con- stitute burglary if one open an unlocked screen door fitted so closely into the frame as to require strength to open it, with felonious intent. Collins v. Com. 38: 769, 143 S. W. 35, 146 Ky. 698. (Annotated) 7. Pushing up a window which is held down by its own weight only, and has been left open enough to admit the insertion of a hand under it, so as to form an aperture large enough to admit one's body, and en- tering the building through the aperture so made, is a sufficient breaking to constitute burglary. People v. White, 17: 1102, 117 N. W. 161, 153 Mich. 617. (Annotated) 8. Pushing open a car door found ajar sufficiently to effect an entrance, and the entering into the car to commit larceny, is a sufficient breaking to constitute bur- glary. State v. Lapoint, 47: 717, 88 Atl. 523, 87 Vt. 115. (Annotated) BURIAL. Regulation of burial of corpse, gee CONSTI- TUTIONAL LAW, 352. ' BURIAL GROUND BUSINESS DIRECTORY. 341 Contract to furnish burial at death, see CONTRACTS, 408; INSURANCE, 5, 64, 303, 825. Expense of, see FUNERAL EXPENSES. Of ani.nal in cemetery, see INJUNCTION, 41. Mortgage to secure bond for, see MORTGAGE, 86. See also CEMETERIES; CORPSE. BURIAL GROUND. See CEMETERIES. BURIAL LOT. Rights in, see CEMETERIES, 4, 5. Effect of including cost of maintaining in gift for establishing hospital, see CHAR- ITIES, 10. Interference with bodies in, see CORPSE, 10 17. Ejectment for, see EJECTMENT, 14. BURIAL PERMIT. See CORPSE, 1. BURIAL VAULT. Right of administrator to credit for ex- pense of, see EXECURORS AND ADMINIS- TRATORS, 115. BUSINESS. Business block, see BUSINESS BLOCK. Business colleges, see BUSINESS COLLEGES. Business directory, see BUSINESS DIREC- TORY. Right of action for wrongful interference with, see CASE, 18-21. Loan of credit by state to, see BONDS, 83. Competition by municipality with, see CON- STITUTIONAL LAW, 384/385. Requiring payment in cash of value of trade inducements offered to purchas- ers, see CONSTITUTIONAL LAW, 420. Equal protection and privileges in regula- tion of, see CONSTITUTIONAL LAW, II. a, 5. Due process of law as to, see CONSTITUTION- AL LAW, II. b, 4. Police power over, see CONSTITUTIONAL LAW, II. c, 4. Construction of contract to refrain from, see CONTRACTS, 366, 367. Validity of agreement to refrain from, see CONTRACTS, III. e, 2. What constitutes breach of contract to re- frain from, see CONTRACTS, 691, 692. Termination of contract not to compete in business, see CONTRACTS, 721, 722. Digest 1-52 L.R.A.(N.S.) Measure of damages for breach of covenant not to engage in, see DAMAGES, 120, 233. Injunction against breach of contract not to engage in competing business, see INJUNCTION, 70-78. What constitutes carrying on, see CORPO- RATIONS, 415-423. Right of foreign corporation to engage in, see CORPORATIONS, 423-429. Charitable home as business within mean- ing of restrictive covenant, see COV- ENANTS AND CONDITIONS, 73; DAMAGES, 111. kk. Measure of damages for breach of contract to establish business, see DAMAGES, 112, 686. Continuance of, by personal representative, see EXECUTORS AND ADMINISTRATORS, 47-50, 67, 68. Evidence of custom or habit in, see EVI- DENCE, 1522-1526. Injunction against interference with, see INJUNCTION, 105. Effect of suspension of, on insurance policy, see INSURANCE, 264. Charges injurious to, see LIBEL AND SLAN- DER, II. c. Privileged character of communications in course of, see LIBEL AND SLANDER, II. e, 3. License of right to do, see LICENSE, II. Municipal regulation of, see MUNICIPAL CORPORATIONS, II. c. 4, d. Sufficiency of complaint in action for in- terference with, see PLEADING, 189, 4J37. On Sunday, see SUNDAY, III. Mistake in business telegram, see TELE- GRAPHS, II. a, 3. Unfair competition, see UNFAIR COMPE- TITION. BUSINESS BLOCK. Requiring consent of property owners on residence street for construction of business block, see BUILDINGS, 3. BUSINESS COLLEGES. Persons attending, as "school children" en- titled to reduced fare on street rail- ways, see CARRIERS, 3030. Exemption of, from taxation, see TAXES, 100. BUSINESS DIRECTORY. Injunction against omission of name from, see ACTION OR SUIT, 127; INJUNCTION, 8, 126. 342 BUSINESS ENTERPRISE CANALS. BUSINESS ENTERPRISE. Loan of credit by state to, see BONDS, 83. Competition by municipality with, see CON- STITUTIONAL LAW, 384, 385. BUSINESS TELEGRAM. Mistake in, see TELEGRAPHS, II. a, 3. BUTTER. Requiring marking of weight on packages of, see CONSTITUTIONAL LAW, 501. BY-LAWS. X Of associations generally, see ASSOCIATIONS. Of bank, see BANKS, 233-237. Of board of trade, see EXCHANGES, 5. Of benefit society, see BENEVOLENT SOCIE- TIES, III. Of building and loan association, see BUILD- ING AND LOAN ASSOCIATIONS, 1, 23, 26. Of corporation, see COKPOEATIONS, 141, 291. Of insurance companies, see APPEAL AND EBROB, 1089. Of insurance company, see INSURANCE, 93- 114, 430, 431; PARTIES, 45. Of loan association, see ESTOPPEL, 110. Of social clubs, see CLUBS, 4. Of stock exchange, see BANKRUPTCY, 136. BYSTANDER. Injury to bystander in making arrest, see BONDS, 59, 62. Homicide in killing, while shooting at an- other, see HOMICIDE, 40, 59. o CABOOSE. Duty to passenger riding in or on, see CAR- RIERS, 295, 296. Negligence of passenger in riding on top of, see CARRIERS, 337, 338. Injury to insured person while riding in, see INSURANCE, 722. CABS. See HACKS. See CORPSE. CADAVER. _.:.- CAFE. Liability for serving unfit food, see FOOD, 20. Liability of waiter in, obtaining liquor for guest, see INTOXICATING LIQUORS, 145. CALLS. For boundaries, see BOUNDARIES, II. On paid-up stock, see CORPORATIONS, 311- 316. On unpaid subscriptions to stock, see COR- PORATIONS, 347, 366. As condition to enforcement of stockhold- er's liability, see CORPORATIONS, 366. Of pastor, see RELIGIOUS SOCIETIES, IV. Digest 1-52 L.R.A.(N.S.) CAMEL. Injury to servant by vicious camel, see MASTER AND SERVANT, 142, 862. CAMPAIGN FUND. Contribution of corporate funds to, as lar- ceny, see LARCENY, 10. CANADIAN CRIMINAL CODE. Effect of adoption of, on common law, see COMMON LAW, 1. Section 213, see CORPORATIONS, 125. CANALS. Contract to make basin connected with canal as consideration for transfer of property, see CORPORATIONS, 65 ; COVE- NANTS AND CONDITIONS, 105. Covenant of grantee of water rights to build, see COVENANTS AND CONDITIONS, 134. Exercise of eminent domain in aid of con- struction of, for purpose of creating electric power, see EMINENT DOMAIN, 80, 103, 104. Requiring railroad company to construct bridge over canal laid across its right of way, see EMINENT DOMAIN, 208; RAILROADS, 31. CANCELATION CANDY. 343 Injunction against obstruction of, see IN- JUNCTION, 237, 238; NUISANCES, 164. Injunction against irrigation canal com- pany, see INJUNCTION, 215. Easement for maintenance of, see VENDOR AND PURCHASER, 106. Canal as navigable stream, see WATERS, 3-5. Right to have water flow from, for irrigat- ing purposes, see WATERS, 298. Prescriptive right to maintain, see WATERS, 323. 1. There is no right, without statutory authority, to obstruct a navigable canal constructed by the state, although it lias not been maintained in a state of efficiency and no commerce is actually carried on up- on it, especially where the Constitution de- clares that all navigable waters shall for- ever remain public highways. State ex rel. Lyon v. Columbia Water Power Co. 22: 435, 63 S. E. 884, 82 S. C. 181. 2. A municipality acting under a con- tract with a corporation to which a navi- gable canal has been conveyed by the state with the obligation of keeping it open for navigation can acquire no rights with re- spect to the obstruction of the canal not pos- sessed by the corporation. State ex rel. Lyon v. Columbia Water Power Co. 22: 435, 63 S. E. 884, 82 S. C. 181. CANCELATION. Of instruments generally, see CANCELATION OF INSTRUMENTS. Of order for goods, see CONTRACTS, 190- 192. Of license to use patent, see PATENTS, 9. Of tax assessment, see TAXES, 196. CANCELATION OF INSTRUMENTS. Of bond, see BONDS, 7. Of contracts, generally, see CONTRACTS, V. c. Of contract by corporation, see CORPORA- TIONS, 100. Of deed, see ACCOUNTING, 4; ACTION OR SUIT, 128; APPEAL AND ERROR, 1519, 1570; CONTRACTS, V. c; COURTS, 36; EVIDENCE, 1361; INFANTS, 92, 93. Of fraudulent conveyance, see FRAUDULENT CONVEYANCES, 11, 12. Of instrument as cloud on title, see CLOUD ON TITLE, 4, 5, 25-28. Of insurance policy, see INSURANCE, III. c. Of liquor license, see INTOXICATING LI- QUORS, II. d. Of minor's deed, see INFANTS, 92, 93. Of mortgage, see CLOUD ON TITLE, 4; DU- RESS, 11; INJUNCTION, 275. Of notes held as collateral, see PLEDGE AND COLLATERAL SECURITY, 17. Of oil and gas lease, see MINES, II. b, 4, b. Of patent for public land, see PUBLIC LANDS. 15. Digest 1-52 L.R.A.(N.S.) Of sheriff's deed, see JUDICIAL SALE, 17. Of stock subscription, see CORPORATIONS, 206-209. Of will, see WILLS, I. c. In partition suit, see PARTITION, 19. For fraud, see FRAUD AND DECEIT, 32. Compelling accounting upon trial of suit for, see ACCOUNTING, 4. Multifariousness of bill to cancel instru- ment and obtain accounting, see ACTION OB SUIT, 128. Review of judicial discretion, see APPEAL AND ERROR, 567. Prejudicial error in action for, see APPEAL AND ERROR, 1519. Cancelation on appeal, see APPEAL AND ERROR, 1570. Jurisdiction to cancel deed of land located in foreign country, see COURTS, 36. Jurisdiction of suit for, see EQUITY, I. f. Parol evidence of mistake justifying, see EVIDENCE, 1021. Evidence in action for, see EVIDENCE, 1361. Sufficiency of evidence to justify, see EVI- DENCE, 2276. Right to jury trial in action for, see JURY, 21, 22. Surplusage in allegation, see PLEADING, 141. Duplicity of petition in action for, see PLEADING, 164. Necessity of obtaining decree canceling re- lease before repudiating it, see RE- LEASE, 3. Verdict of jury as advisory to court in suit to cancel trust deed, see TRIAL, 118. As to reformation of instruments, see REF- ORMATION OF INSTRUMENTS. CANCER. Cancer hospital as nuisance, see NUISANCES, 41. Proximate cause of, see PROXIMATE CAUSE, 109. *-- CANDIDATES. In general, see ELECTIONS, IV. Libel of candidate for public office, see LI- BEL AND SLANDER, II. d; II. e, 5. Libel of candidate for office in voluntary association, see LIBEL AND SLANDER, 59. CANDY. Adulteration of, see CONFLICT OF LAWS, 101. Requiring candies exposed for sale to be protected from flies and dust, see MU- NICIPAL CORPORATIONS, 193. 344 CANNERIES. CANNERIES CARCASS. CAPITAL PUNISHMENT. Exempting from statute limiting hours of women's labor, see CONSTITUTIONAL LAW, 309. CANOEING. In high water as voluntary exposure to danger, see INSUBANCE, 771. CANVASS. Of vote, see ELECTIONS, III. c. CAPACITY. . ' , ' iII"/3 &#H .'ln't id >i ):jj; || Judicial notice as to capacity of young child, see EVIDENCE, 57. Presumption and burden of proof as to, see EVIDENCE, II. e, 5. Opinion evidence as to, see EVIDENCE, VII. e. CAPIAS. Effect of delay in issuing, see CRIMINAL LAW, 229. Issue of, to take accused into custody after expiration of term, see CRIMINAL LAW, 284. CAPITA. Distribution by, under will, see WILLS, 306-308. CAPITAL. Of corporation, see CORPORATIONS, V. As to county seat, see COUNTIES, 1. As distinguished from income, see LIFE TENANTS, II. b. CAPITAL OFFENSE. Sufficiency of briefs on appeal in prosecu- tion for, see APPEAL AND ERROR, 289. Right to bail of person charged with, see BAIL AND RECOGNIZANCE, 14-16. Waiver of rights by one accused of, see CRIMINAL LAW, 127, 128. Necessity of indictment for, see CRIMINAL LAW, 137. Plea of guilty on prosecution for, see CRIMINAL LAW, 149-152. In general, see HOMICIDE. Digest 1-52 L.R.A.(N.S-) Right of governor to set aside law impos- ing, see CRIMINAL LAW, 248. Stay of execution of death sentence, see CRIMINAL LAW, 288. Execution for crime as risk insured against, see INSURANCE, 702-704. Scruples against, as disqualifying juror, see JURY, 62, (>;*. Sufficiency of title of statute as to, see STATUTES, 149. CAPITOL. Issue of bonds to build state capitol, see BONDS, 110, 111. CAPTAIN. Of revenue cutter, judicial powers of, see SALVAGE, 6. CAPTION. Of indictment, see INDICTMENT, ETC., 27. CARBIDE. Injury to child by explosion of, see NEGLI- GENCE, 151. CARBOLIC ACID. As an "instrument" used to disfigure an- other within meaning of statute, see MAYHEM. CARBONATED BEVERAGE. Placing labels on bottles of, as dangerous employment, see MASTER AND SERVANT, 151. Negligence in bottling of, see TRIAL, 125, 126. CARBON COPIES. Admissibility in evidence, see EVIDENCE, 720. CARCASS. Of animal, ordinance as to disposal of, see CONSTITUTIONAL LAW, 195, 525. Damages for failure to remove from rail- road track carcasses of animals killed by train, see DAMAGES, 40. Pollution of water by burying near spring, see TRIAL, 642; WATERS, 209. CAR DESPATCHER CARRIERS. CAR DESPATCHER. CARRIERS. 345 As fellow servant, see MASTER AND SERV- ANT, 852. CARD PLAYING. Larceny by obtaining money by fraud in card game, see LABCENY, 26, 27. Forbidding playing in place of business, see MUNICIPAL CORPORATIONS, 204. As to gambling, see GAMING. CARD TABLES. Prohibiting keeping for sale in place of business, see MUNICIPAL CORPORATIONS, 204. CARE. Presumption of, see EVIDENCE, II. h. Evidence of character or reputation as to, see EVIDENCE, 1577-1580. Sufficiency of proof of, see EVIDENCE, XII. d. CAR INSPECTORS. Admissibility, in evidence, of reports of car inspectors as to defective condition of coupler, see EVIDENCE, 826. CARMACK AMENDMENT. See CARRIERS, 718, 932, 936, 937, 979, 980; COMMERCE, 85-87; CONSTITUTIONAL LAW, 447, 460; STATUTES, 238. CARNAL INTERCOURSE. See ADULTERY; PROSTITUTION; RAPE; SE- DUCTION. CAR REPAIRER. Contributory negligence of, see MASTER AND SERVANT, 710, 711. CARRIAGES. Discrimination of carrier between, see CAR- RIERS, 1007-1013. Digest 1-52 L.R,A.(N.S.) /. Who are common carriers; rela- tion to public, 112. II, Carriers of passengers and other persons, 1374O. a. In general, 1344. b. Rules and regulations, 4552. c. Who are passengers, 53121. 1. Employee of carrier, 53 59. 2. Other persons, 6O87. 3. When relation commences, 88-1O1. 4. Termination of relation, 1O2-12 1. d. Abuse of passenger; insult, 122-126. e. Assault on passenger, 127 149. f. Arrest; false imprisonment, ISO 162. g. Measure of care required,' negligence generally, 163-381. 1. Of carrier, 163 3O4. a. In general, 163 27O. b. As to tracks, roadbed, etc., 271277. c. As to vehicle, or place of riding gen- erally, 278-3O4. 2. Contributory negligence of passenger ; assump- tion of risk, 3O5 381. a. In general, 3O5353. b. Riding on platform, steps, or footboard, 354-379. c. Riding in wrong car, 38O, 381. h. Ejection of passenger or tres- passer, 382447. 1. In general, 382 4O2. 2. Grounds for, 4O3445. a. In general; mis- behavior; disease, 4O3-4O6. b. Nonpayment of fare, or defective ticket, 407-445. 3. At what place, 446, 447. i. Leaving at destination, stop- over, 448458a. j. Disabled or incompetent pas- sengers, 459475. 1. Duty or negligence of car- rier, 459474. a. In general, 459469. b. Duty to receive, 47O 474. 2. Contributory negligence, 475. fc. Getting on or off, 476-575. -. 1. Duty or negligence of car- rier, 476-543. 2. Contributory negligence, 544-575. a. In getting on, 544 551. 346 CARRIERS. II. k, 2 continued. b. In getting off, 552 575. I. Stations, approaches, and plat- forms, 576-622. 1. In general, 576612. a. Carrier's duty or neg- ligence, 576-6O6. b. Contributory negli- gence, 6O7612. 2. Platforms generally, 613 617. 3. Duty to keep open and light, 618-622. t. Tickets; conditions; fare, 623-670. 1. In general, 623631. 2. Excursion or round trip tickets, 632636. 3. Passes, 637643. 4:. Extra fare, 644. 5. On street cars, 645 66O. 6. Limitation of liability, 661-67O. * n. Blackboard announcements as to trains. o. Baggage or property of pas- senger, 671732. 1. In general, 671698. 2. What is baggage, 699 7O9. 3. Taking parcels on train or street car, 71O. 4. Liability of sleeping car company, 711718. 5. Limitation of liability, 719-732. p. Corpse, 732a. q. Connecting carriers, 733 74O. III. Carriers of freight, 741-982. a. In general; powers of agents, 741767. b. Duty to receive and transport, 768-787. c. Loss of, or injury to, prop- erty, 788 82O. d. Delivery by carrier; delay, 821873. 1. In general; refusal to de- liver, 821-835. 2. Notice of arrival; term- ination of liability, 836 859. 3. Misdelivery; \vrongful de- livery, 86O. 4. Time; delay, 861873. e. Liability and lien for freight charges; rates, 874885. f. Carrying live stock and other animals, 886914. g. Stipulations as to liability, 915-955. 1. In general, 915924. 2. As to negligence, 925 931. 3. As to amount, 932946. 4. As to time of giving notice or commencing suit, 947-955. 5. Excepted perils. h. Contract or duty to furnish cars, 956964. Digest 1-52 L.R.A.(N.S.) I II. con linu ed. i. Demurrage on cars, 965, 966. j. Connecting carriers, 967982. 1. In general, 967981. 2. Selection of route, 982. k. Criminal transportation. IV. Governmental control; rates; dis- crimination ; duty as to stop- ping places; siding facilities, 983-1089. a. In general, 9831O01. b. Compulsory connection and interchange of business; dis- crimination between carriers, hackmen, etc. ; through rates, 1OO2-1O15. c. Bates; discrimination between passengers or shippers ; rebates; passes, 1O16 1076. 1. In general, 1O161O27. 2. Poiver to fix rates; mile- age tickets, 1O281O32. 3. Reasonableness of rates, 1O33-1O46. 4. Discrimination; rebates; passes, 1047-1O76. d. Duty as to depots, agents, and facilities; stopping trains; duty to run trains, 1077-1089. Variance in action against, see APPEAL AND EBKOR, 788. Injury by automobile to passenger alight- ing from street car, see AUTOMOBILE, 32-37, 65, 66. As to bills of lading, see BILLS OF LADING. Accumulation and division by bridge com- pany, among portion of railroads using it, of fund resulting from excessive tolls, see BRIDGE COMPANY. Attaching cars of foreign railroad company, see COMMERCE, 21-24; LEVY AND SEIZ- URE, ]5, 16, 29. Ordinance limiting speed of trains on in- terstate railway within corporate limits, see COMMERCE, 63. Transporting liquor from depot to buyer's residence as interstate commerce, see COMMERCE, 121. Interstate business of, see COMMERCE, II. Contract giving exclusive right to use cars for advertising, see CONFLICT OF LAWS, 11. Conflict of laws as to contracts of, see CON- FLICT OF LAWS, I. b, 4. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 3. Police power as to, see CONSTITUTIONAL LAW, 683-686. Forbidding drumming or soliciting business at railroad stations, see CONSTITUTION- AL LAW, 688, 785; MUNICIPAL CORPO- RATIONS, 181, 185. Regulating time of payment of employees, see CONSTITUTIONAL LAW, 314, 487, 490. Regulating hours of labor of railroad em- ployees, see CONSTITUTIONAL LAW, 720; EVIDENCE, 37. CARRIERS, I. 347 Matters as to servants of carrier generally, see MASTER AND SERVANT. Contract to establish station and stop trains, see CONTRACTS, 368, 507-509, 628; PARTIES, 42; PLEADING, 195, 654. Agreement to maintain spur track and depot at certain place, see CONTRACTS, 369; INJUNCTION, 59; SPECIFIC PER- FORMANCE, 65, 66, 68. Agreement to maintain siding for private use, see CONTRACTS, 369, 510; COVE- NANTS AND CONDITIONS, 131. Hight to maintain advertisements on ex- terior of stages or carriages, see CORPO- KATIONS, 34. Contract by superintendent of dining car department, see CORPORATIONS, 149. Power of railroad company to own and operate public warehouse, see CORPO- RATIONS, 52. Agreement to furnish medical attention to injured person or to perform medical or surgical services, see CORPORATIONS, 66, 67. Statute forbidding drinking intoxicating liquors on trains, see COURTS, 215; IN- JUNCTION, 171. Conveyance to railroad in consideration of agreement to erect and maintain depot on land conveyed, see COVENANTS AND CONDITIONS, 8. Covenant by railroad to leave cars at spur track, see COVENANTS AND CONDITIONS, 129. Damages in action against, see DAMAGES, II. b; III. c, d. Elevators as carriers, see ELEVATORS. Exercise of eminent domain to secure rail- road siding to private ^ plant, see EMI- NENT DOMAIN, 101, 102. Escheat of property of, see ESCHEAT, 8. Judicial notice as to, see EVIDENCE, 32-38, 52, 53. Liability as warehouseman, see EVIDENCE, 452. Presumption and burden of proof as to con- tracts of, see EVIDENCE, 525-529. Admissibility of declarations by carrier's agent, see EVIDENCE, 1428-1432. Sufficiency of proof of negligence of, see EVIDENCE, 2145-2154. Proof that agent in charge of railroad sta- tion was also agent of telegraph com- pany, see EVIDENCE, 2249. Admissibility of records and papers of, see EVIDENCE, IV. 1. Liability for false imprisonment of one other than passenger, see FALSE IM- PRISONMENT, 11, 21, 24, 25. Presentation to, of forged order for intoxi- cating liquors, see FORGERY, 16. Garnishment of nonresident general agents of nonresident steamship line for debt of carrier, see GARNISHMENT, 15. Covenant to run trains to and from track of covenantee, see INJUNCTION, 24. Platform at depot as public highway within meaning of accident insurance policy, see INSURANCE, 719. Injury to insured person while riding in caboose attached to freight train, see INSURANCE, 722. Digest 1-52 L.R.A.(N.S.) Conclusiveness of decree in chancery against lessor and lessee railroad, as to lia- bility of lessor in subsequent action at law, see JUDGMENT, 86. License of, see LICENSE, 57-60. Mandamus to, see MANDAMUS, 74-77, 124, 125. Injury to employee, see MASTER AND SERV- ANT. Injury to express messenger by defective car, see MASTER AND SERVANT, 310. Injury to employee on circus train through negligence of train operatives, see MASTER AND SERVANT, 479. Liability for act of station agent in in stituting wrongful search, see MASTER AND SERVANT, 949. Illegal combination of, see MONOPOLY AND COMBINATIONS, II. d. Destruction by mob of railroad car, see MUNICIPAL CORPORATIONS, 352, 471; TRIAL, 635. Injury to children near railroad track by fall of material from car, see NEGLI- GENCE, 137. Imputing negligence of carrier to passenger, see NEGLIGENCE, 259. Right of steamboat line to maintain action for damages resulting from construc- tion of bridge, see NUISANCES, 111. Pleading as to contracts of, see PLEADING, 263-268. Proximate cause of loss or injury by, see PROXIMATE CAUSE, III. Railroad and other public service commis- sions, see PUBLIC SERVICE COMMIS- SIONS. Governmental control of issue of securities, see PUBLIC SERVICE COMMISSIONS, 7-9. Requiring railroad to operate warehouse, see RAILROADS, 26, 27. Matters peculiar to ships, see SHIPPING. Repeal of statute as to liability of carrier for death of Pullman car conductor, see STATUTES, 368. Duty of motorman in approaching car dis- charging passengers at street crossing, see STREET RAILWAYS, 26, 27, 72, 93. As to teJegraph companies, see TELEGRAPHS, 2. /. Who are common carriers; relation to public. (See also same heading in Digest L.R.A. 1-10.) Owner of elevator as, see ELEVATORS, 3, 5, 11, 17. Question for jury as to, see TRIAL, 233. See also infra, 783, 973. 1. Acceptance or exercise by a railroad corporation of the rights of a common car- rier, granted to it by the state, imposes upon it the duty of providing and operat- ing all facilities necessary to meet ade- quately all reasonable reqiiirements, wheth- er the grants be mandatory or merely per- missive. State ex rel. Ellis v. Atlantic Coast Line R. Co. 13: 320, 44 So. 213, 53 Fla. 650. 348 CARRIERS, II. a. 2. While a discretion is allowed a com- mon-carrier corporation in the means and manner of the discharge of the duties it owes to the public, such discretion must be exercised in good faith and with reasonable regard for the requirements of the public service. State ex rel. Ellis v. Atlantic Coast Line R. Co. 13: 320, 44 So. 213, 53 Fla. 650. 3. A failure to exercise the care and diligence due from railroad companies as common carriers is negligence, without any legal distinction as being gross or ordinary. Summerlin v. Seaboard Air Line R. Co. 19: 191, 47 So. 557, 56 Fla. 687. 4. The ownership of the means of trans- portation is not necessary to constitute one a common carrier. J. H. Cownie Glove Co. v. Merchants' Despatch Transp. Co. 4: 1060, 106 N. W. 749, 130 Iowa, 327. 5. The mere fact that one holding him- self out as a common carrier discriminates between patrons, accepting some and reject- ing others, does not absolve him from lia- bility as a common carrier for the loss of goods which he undertakes to transport. Lloyd v. Haugh & K. Storage & T. Co. 21: 188, 72 Atl. 516, 223 Pa. 148. (Annotated) 6. A common carrier of goods which transports live stock is, as to the latter property, also a common carrier. Central R. Co. v. Hell, 4: 898, 52 S. E. 679, 124 Ga. 322. 7. A railroad company, by receiving live stock and undertaking to transport the same for hire, assumes the relation of a common carrier, and becomes chargeable with the duties and obligations incident to that relation, except so far as such duties and responsibilities may legally be modified by special contract. Summerlin v. Sea- board Air Line R. Co. 19: 191, 47 So. 557, 56 Fla. 687. 8. A railroad company does not lose its character of common carrier by a special contract to transport over its road the mes- sengers and packages of a particular express company, although it could not have been compelled to undertake such transportation, since a special arrangement with respect to a particular class of business does not de- stroy the general character of the company. Davis v. Chesapeake & 0. R. Co. 5: 458, 92 S. W. 339, 122 Ky. 528. (Annotated) 9. One who undertakes to transport property from its location in one city to another city, for a through rate less than the published rates of the railroad com- pany for broken lots, which it is enabled to do by accumulating property for the given destination until a car can be filled, which is billed to its own agent there, as- sumes, while holding the property for ac- cumulation, the liability of a common car- rier. Kettenhofen v. Globe Transfer & Storage Co. 42: 902, 127 Pac. 295, 70 Wash. 645. (Annotated) Draymen or truckmen. 10. Those engaged in the business -of draymen or truckmen, for transportation of goods and merchandise within a city, are Digest 1-52 L.R.A.(N.S.) common carriers. Lawson v. Connolly, 45: 1152, 141 N. W. 623, 175 Mich. 375. Owner of excursion boat. 11. The owner of an excursion boat who contracts to carry a society on an excursion for a lump sum, taking only those who had tickets purchased from the society, owes a ticket holder the duty of a common carrier, and his liability is not limited to that of a mere bailee. McBride v. McNally, 52: 259, 89 Atl. 1131, 243 Pa. 206. (Annotated) Ferry company. 12. A ferry company which maintains a pleasure resort on its own property for a particular class of persons whose patronage it invites and for whose accommodation it runs a boat devoted exclusively to their transportation is not, so far as that enter- prise is concerned, a common carrier; and it may exclude from the boat persons who will be undesirable to its patrons, or de- stroy the success of its undertaking. Meis- ner v. Detroit, B. I. & W. Ferrv Co. 19: 872, 118 N. W. 14, 154 Mich. 545. II. Carriers of passengers and other persons. a. In general. (See also Carriers, II. a, 1, in Digest L.R.A.. 1-10.) Who are common carriers, see supra, I. Nature of action for damages for breach of carrier's duty, see ACTION OB SUIT, 74- 78. Right of carrier sued jointly with con- ductor who injured passenger to com- plain of exoneration of conductor, see APPEAL AND ERROR, 525. Duty to restore passage money on rescind- ing contract, see CONTRACTS, 735. Damages for failure to furnish drawing room to passenger, see DAMAGES, 725. Punitive damages for failure in duty to pas- senger, see DAMAGES, II. b. Measure of damages generally for breach of duty to passenger, see DAMAGES, III. c, 1. Recovery for mental anguish, see DAMAGES, III. o, 2, c. Measure of damages for delay in transpor- tation, see DAMAGES, 257, 662. Effect of dismissal as to chair car com- pany sued jointly with carrier, see DIS- MISSAL AND DISCONTINUANCE, 16. Admissibility of evidence on question of liability for breach of transportation contract, see EVIDENCE, 855. Proving contract between carrier and pas- senger by parol evidence, see EVIDENCE, 923, 924. Requiring Indians going to meet relatives to keep away from entrance to cars, see INDIANS, 2, 3. Judgment in favor of sleeping car company as bar to action against railroad com- pany, see JUDGMENT, 211. { ^.Vn.A.JT.vT CARRIERS, II. a. 349 Offense committed by passenger who re- mains on train after station to which fare paid has been passed, see MA- LICIOUS MISCHIEF, 5. Liability of carrier for malpractice of phy- sician furnished to injured passenger, see PHYSICIANS AND SURGEONS, 51. Running of trains on Sunday, see SUNDAY, 17. Refusal of telegraph company to transmit message informing superintendent of railroad that there is no fire in sta- tion, see TELEGRAPHS, 10. Necessity and propriety of instructions in action on special contracts, see TRIAL, 854, 870. Venue of action, see VENUE, 12, 13. 13. The officers of a vessel, who have permitted a person who is unprepared for a long voyage, and will be subjected to con- siderable injury if compelled to take one, to come on board to visit passengers, while the vessel is at a stopping place, are bound, if practicable, to return to the wharf and per- mit him to land, notwithstanding he is negligent in failing to respond to signals to leave, and does not present himself for that purpose until the vessel has swung away from the wharf. Pacific Coast Co. v. Jenkins, 10: 969, 150 Fed. 537, 80 C. C. A. 279. (Annotated) 14. To bind a railroad company by a custom of conductors to carry persons on their trains in consideration of the rendition of services, it must be shown to have been known by the officers who conduct the af- fairs of the company, or to have been so general and long continued that they must be presumed to have had notice of it. St. Louis, I. M. & S. R. Co. v. Jones, 37: 418, 132 S. W. 636, 96 Ark. 558. 15. The conductor of a railroad com- pany has no such control of the passengers in a sleeping car of another corporation, which becomes a part of his train without any compensation to the railroad company except the ordinary fares collected from its occupants and the advantage to the company of its being part of its train, that he can require a colored passenger therein who holds a sleeping car ticket when he enters the state, to leave the car and enter a compartment set apart for colored pas- sengers, and render the railroad company liable to punishment for his failure to do so. Com. v. Illinois C. R. Co. 32: 801, 133 S. W. 1158, 141 Ky. 502. 16. A railroad company is not punish- able for hauling the sleeping car of another corporation, which is not provided with compartments for colored persons and does not bear any indication of the race for which it is set apart, or having no addi- tional separate sleeping car for colored pas- sengers, under a statute providing for the punishment of any railroad company run- ning or operating railroad cars or coaches, which does not furnish separate coaches or cars for the transportation of white and colored passengers, and have each respective coach or compartment marked with appro- Dig.jst 1-52 I,.R.A.(N.S.) priate words in plain letters indicating the race for which it is set apart, where it receives no compensation for hauling the car except the regular fare for transporta- tion of persons occupying it and the ad- vantage of its being a part of its train. Com. v. Illinois C. R. Co. 32: 801, 133 S. W. 1158, 141 Ky. 502. (Annotated) Putting white person in coach for negroes. Punitive damages for, see DAMAGES, 76, 77. 17. A railroad company is not liable in damages for compelling a white person to enter a coach for colored people merely be- cause, in the exercise of ordinary care, it mistook the race to which he belonged. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. (Annotated) 18. If a brakeman, in requiring a pas- senger to leave a car for white passengers, and enter the car for colored passengers, does not in good faith believe, or, in the ex- ercise of reasonable care, does not have a right to believe, that he is a person of color ; or if he is insulting, the passenger has a right to recover damages from the railroad company, otherwise not. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. 19. A railroad company is liable for the mistake of its conductor in assigning pas- sengers to the coaches provided for white and colored passengers respectively. Louis- ville & N. R. Co. v. Ritchel, 41:958, 147 S. W. 411, 148 Ky. 701. (Annotated) 20. No recovery can be had for requiring a white woman to ride in a coach set apart for colored passengers, if the conductor acted in good faith believing, and in the exercise of reasonable care having the right to believe, that she was colored, and was not insulting to her. Louisville & N. R. Co. v. Ritchel, 41: 958, 147 S. W. 411, 148 Ky. 701. 21. A street car company is liable in damages for a mistake of, or abuse of dis- cretion by, its servants in complying with the provisions of a statute requiring the as- signment of white and colored passengers to- different compartments. May v. Shreveport Traction Co. 32:206, 53 So. 671, 127 La. 420. Duty as to sleeping accommodations. Constitutionality of statute as to, see CONSTITUTIONAL LAW, 448. Damages for breach of contract by sleeping car company, see DAMAGES, 253, 264, 277. '.'/' Sufficiency of pleading in action for cut- ting out sleeping car, see PLEADING, 267. See also infra, 44. 22. It is the duty of a steamship com- pany running a night boat to supply berths to unobjectionable passengers in the order of application. Patterson v. Old Dominion S. S. Co. 5: 1012, 53 S. E. 224, 140 N. C. 412. (Annotated) 23. One purchasing a ticket for passage on a night steamboat should, if he asks for information, be so informed if no berths are 350 CARRIERS, II. a. available. Patterson v. Old Dominion S. S. Co. 5: 1012, 53 S. E. 224, 140 N. C. 412. 24. A sleeping car company is not liable in damages for breach of its contract to furnish a passenger with sleeping-car accom- modations to destination by reason of the act of the railroad company in detouring the car at an intermediate station so that the passenger had to continue her journey in an ordinary coach, at least not for more than the difference in price of a ticket to the respective points. Louisville & N. R. Co. v. Fisher, n: 926, 155 Fed. 68, 83 C. C. A. 584. Powers of agents. As to freight, see infra, 752-755. Error in reception of evidence as to cus- tom of agents, see APPEAL AND ERROR, 1113. Power of agent to contract for advertising, see CORPORATIONS, 134. Contract by superintendent of dining car department, see CORPORATIONS, 149. Proof of agency of railroad selling through tickets over other road, see EVIDENCE, 2247. Authority of claim agents, see EVIDENCE, 183; MASTER AND SERVANT, 6. Conductor's authority to employ physician, see MASTER AND SERVANT, 9. See also infra, 425, 447, 458a, 633, 735, 736. 25. Those in charge of the train of a log- ging company have no authority, by virtue of their employment alone, to carry passen- gers on the train. Harvey v. Deep River Logging Co. 12: 131, 90 Pac. 501, 49 Or. 583. 26. The agent who sells a ticket which, by its terms, must be used on the day of sale or be void, has no implied authority to bind the carrier by agreeing, after it has expired, that it may be used on a subse- quent day. Pennington v. Illinois C. R. Co. 37: 983, 97 N. E. 289, 252 111. 584. 27. That the ticket agent of a railroad company who sold a ticket for through transportation over several lines was also agent for an immigrant association of which one of the roads is not a member is imma- terial upon the question of its liability upon the ticket, if the railroad company whose agent sold the ticket was to any extent its agent in so doing. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. 28. A city passenger and ticket agent of a railroad company has implied author- ity to guarantee connections by one of its regular trains, which is necessary to permit an intending passenger to reach its desti- nation at a specified time. Hayes v. Wa- bash R. Co. 31:229, 128 N. W. 217, 163 Mich. 174. (Annotated) 29. A railroad company is liable for the proximate injuries resulting from misdi- rections given by its ticket agent when ap- plied to by an intending passenger for in- formation as to the best route by which to reach his destination, and furnishing a ticket in accordanc2 with such directions. St. ( Louis Southwestern R. Co. v. White, 2: no,] 89 S. W. 746, 99 Tex. 359. (Annotated) Digest 1-52 L.R.A.(N.S.) 30. An excursion party wishing to visit a neighboring town and return home on the same day may rely on the agreement of the agent of the railroad company in- trusted with the sale of tickets at its sta- tion, that a returning train not scheduled to stop at their station will do so on the day in question, and in case they purchase their tickets and make the outward jour- ney in reliance thereon, they may hold the carrier liable for breach of the agreement, if they had no knowledge that the agent had no authority to make the agreement, and their tickets do not contain conditions in conflict therewith. Louisville & N. R. Co. v. Scott, 34: 206, 133 S. W. 800, 141 Ky. 538. 31. The holder of a nontransferable mileage ticket which is exchangeable for transportation tickets, who has signed an agreement that no agent has power to al- ter, modify, or waive any conditions or stipulations, may rely on the statement of a ticket agent that mileage coupons may be exchanged for a ticket for his wife, where, on the mileage book, is a statement that coupons will be honored in exchange for tickets in accordance with special tar- iffs and circulars of instruction; and there- fore damages may be recovered for the re- fusal of a conductor to honor a ticket so issued. Smith v. Southern R. Co. 34: 708, 70 S. E. 1057, 88 S. C. 421. 32. A station agent of a carrier, who cus- tomarily receives and checks baggage, has no implied right to receive and check the baggage of the purchaser of a mileage ticket, in opposition to the written contract en- tered into by the purchaser and the carrier in the purchase and sale of the ticket. Southern R. Co. v. Dinkins & D. Hardware Co. 43: 806, 77 S. E. 147, 139 Ga. 332. 33. The custom of various agents of a carrier in receiving and checking baggage contrary to the provisions of a contract be- tween the carrier and the purchaser of a ticket is insufficient to waive the contract, where it is not shown that the custom of such a"gents was expressly or impliedly known to, and acquiesced in by, the govern- ing officials of the carrier. Southern R. Co. v. Dinkins & D. Hardware Co. 43: 806, 77 S. E. 147, 139 Ga. 332. 34. The authority of a ferry ticket col- lector to represent his company in the col- lection of ferriage at its entrance gates is limited to the collection from each pass- enger of either cash, or its equivalent, t. ., a ticket valid upon its face for ferry pass- age; and where the statements of the pass- enger as to the use of his ticket conflict with its face marks, the collector is not au- thorized to either inquire into or decide up- on the truth of such statements, but must be governed solely by the intrinsic effect of the ticket as expressed on its face at the time of its tender for passage. Wilson T. West Jersey & S. S. R. Co. (N. J. Err. & App.) 43: 1148, 85 Atl. 347, 83 N. J. L. 755. Route. Of freight, see infra, III. j, 2. CARRIERS, II. a. 351 Damages for misdirection by agent as to route, see DAMAGES, 255. See also supra, 15, 29; infra, 736. 35. A carrier's agent selling a passage ticket is not bound to volunteer informa- tion unsought with respect to the route over which it must be used. McKinley v. Louis- ville & N. R. Co. 28: 611, 127 S. W. 483, 137 Ky. 845. 36. A ticket agent at a union junction point at which a passenger changes cars is not, when asked by him when a train leaves for his destination, bound to ascertain which route his ticket requires him to take, and see that he takes the right train; but performs his duty, in the absence of any special request, by stating the times at which trains leave over the several routes which reach the passenger's destination. McKinley v. Louisville & N. R. Co. 28: 611, 127 S. W. 483, 137 Ky. 845. 37. A street railway company cannot be held liable for damages on account of its failure to operate along the usual route, as indicated by a sign thereon, a car which was one of a number waiting to accommo- date an unusual concourse of people and which was announced by the conductor to be going to the city, the trailer attached to which was boarded by a passenger who, not hearing the announcement, supposed that he would be carried without change of cars to his destination. O'Connor v. Halifax Tramway Co. 1 B. R. C. 427, 37 Can. S. C. 523. (Annotated) Duty to transport; failure to stop train. Duty to receive sick or intoxicated person, see infra, 470-474. Form of action for breach of contract to transport, see ACTION OB SUIT, 78; AP- PEAL AND EBBOK, 1039. Separate appeals where two actions are tried together, see APPEAL AND EBBOB, 123. Damages for failure to transport, see DAM- AGES, 259-261, 664. Evidence in justification of carrier's refusal of passenger, see EVIDENCE, 1647. Evidence as to breach of contract to trans- port, see EVIDENCE, 1951. Demurrer to complaint for failure to stop train at flag station, see PLEADING, 601, 611, 631. Failure to stop as proximate cause of in- jury, see PBOXIMATE CAUSE, 80. Directing verdict for carrier in action for refusal to transport, see TBIAL, 742. See also infra, 183, 405. 37a. A railroad company is bound to stop its passenger trains in response to proper signals at a flag station at which it is in the habit of stopping trains of that character. Southern R. Co. v. Wallis. 30: 401, 66 S. E. 370, 133 Ga. 553. 37b. In the absence of a statute prohib- iting a carrier from running a passenger train on Sunday, or prohibiting it from entering into contracts of carriage on that day, a railroad company cannot excuse its failure to stop its passenger trains in re- sponse to proper signals at a flag station Digest 1-52 L,.R.A.(N.S.) at which it is in the habit of stopping trains of the kind signaled, on the ground that it is under no duty to stop its pas- senger trains on Sunday at any particular station to receive passengers, nor to enter into a contract of carriage on Sunday. Southern R. Co. v. Wallis, 30: 401, 66 S. E. 370, 133 Ga. 553. (Annotated) 37c. One for whom a train fails to stop on signal, according to schedule, may re- cover the actual damages thereby caused by the railroad company, although he sues in tort, and those in charge of the train failed to see his signals through mere neglect in not keeping a proper lookout. Williams v. Carolina & N. W. R. Co. 12: 191, 57 S. E. 216, 144 N. C. 498. 38. That a steamboat company which holds itself out as a carrier of passengers and freight is running a special excursion does not entitle it to refuse to carry anyone who presents himself for passage. Reasor v. Paducah & I. Ferry Co. 43: 820, 153 S. W. 222, 152 Ky. 220. 39. Failure of an intending passenger to comply with the directions of a noti- fication blank, to give the company notice of the date of his intended sailing a cer- tain number of days beforehand, does not absolve the company from liability for re- fusing to accept him as a passenger when he attempts to embark, where the purpose of the notice as stated in the blank is to secure reservation of berth. Zabron v. Cunard S. S. Co. 34: 751, 131 N. W. 18, 151 Iowa, 345. 40. That one presenting himself for pas- sage on the boat of a common carrier had, on a previous occasion, been guilty of mis- conduct on the boat, in being drunk and disorderly, does not justify his exclusion from the boat if at the time he presents him- self he is sober, and is conducting him- self in a decent and orderly manner. Reasor v. Paducah & I. Ferry Co. 43: 820, 153 S. W. 222, 152 Ky. 220. (Annotated) 41. Neither the owner of an amusement park, nor special groups of persons desir- ing to patronize it, can compel a railroad company to furnish special trains for the use of such persons, although special trains are furnished for persons desiring to pat- ronize another amusement park in the same vicinity. Atchison, T. & S. F. R Co. v. Tiedt, 40: 848, 196 Fed. 348, 116 C. C. A. 168. 42. The mere fact that, at the instance of a railroad company, a person fitted up an amusement park, will not require the court to compel the railroad company to furnish special trains to convey patrons to the park. Atchison, T. & S. F. R. Co. v. Tiedt, 40: 848, 196 Fed. 348, 116 C. C. A. 168. 43. A custom to furnish special trains to transport patrons to an amusement park under contract will not impose the duty upon the railroad company to furnish simi- lar service^ without contract. Atchison, T. & S. F. R. Co. v. Tiedt, 40: 848, 196 Fed. 348, 116 C. C. A. 168. 352 CARRIERS, II. b, c, 1. Contract to transport in first class car. 44. A railroad company does not break its contract to carry a passenger to a cer- tain point in a first-class car by requiring her, about two hours before her destination is reached, because of a wreck on the road, to change from the sleeper in which she started to a day coach which is going to her destination, while, for the accommoda- tion of through passengers, it detours the sleeper to avoid the blockade, where the railroad company did not contract to carry her in a sleeper. Louisville & N. R. C0. v. Fisher, n: 926, 155 Fed. 68, 83 C. C. A. 584. ft. Rules and regulations. (See also Carriers, II. a, 2, a, in Digest L.R.A. 1-70.) Ejection for refusal to obey rules, see infra, 403. Rule of freight carriers, see infra, 777, 781, 824, 825. Right to separate passengers on account of race, see CIVIL RIGHTS, 3. Admissibility of rules in evidence, see EVI- DENCE, 1786, 1788. Necessity of specially pleading violation of rule as defense to action for ejection, see PLEADING, 502. See also infra, 356, 488. 45. A rule of a railroad company forbid- ding passengers to turn seats so as to ride backwards is reasonable. Chesapeake & O. R. Co. v. Spiller, 50: 394, 162 S. W 815, 157 Ky. 222. (Annotated) 46. A rule of a sleeping car company not to admit to its cars persons afflicted with contagious disease is reasonable. Pullman Co. v. Krauss, 4: 103, 40 So. 398, 145 Ala. 395. (Annotated) 47. A regulation of a street car com- pany requiring passengers transferring to a particular line to make the transfer at a point where it may be made more conven- iently and safely than at another, which is usually overcrowded, is not unreasonable. Shortsleeves v. Capital Traction Co. 8: 287, 28 App. D. C. 365. (Annotated) As to tickets or fare. As to making change on street car, see infra, 648, 649. As to extra fare, see infra, II. m, 4. Making violation of rules as to street car transfers a crime, see CONSTITUTIONAL LAW, 76. See also infra, 414, 427. 47a. A rule of a sleeping car company not to sell single seats in sleeping cars between 10:30 P. M. and 7 A. M., although two per- sons by taking a berth together might se- cure the seat rates, is not unreasonable. Doherty v. Northern P. R. Co. 36: 1139, 115 Pac. 401, 43 Mont. 294. 48. A provision in a railroad ticket that, in case of dispute between passenger and conductor as to the right to transportation under it, the passenger must pay his fare Digest 1-52 L.R.A.(N.S.) and apply to the company for redress, is un- reasonable, and not binding on a passenger having a valid contract for transportation. Cherry v. Chicago & A. R. Co. 2: 695, 90 S. W. 381, 191 Mo. 489. (Annotated) 48a. A provision in a railway ticket that, in cases of dispute between passenger and conductor, the passenger should pay the rate which the conductor demands, get a receipt from him, and report to the general office, where the same will receipt prompt atten- tion, is void for unreasonableness. Illinois C. R. Co. v. Gortikov, 14: 464, 45 So. 363, 90 Miss. 787. (Annotated) 48b. A condition upon a railroad ticket that, in case of controversy with a con- ductor and his refusal to accept it, the pas- senger agrees to pay the regular fare and apply for reimbursement at the office of the company, is unreasonable and void. For- rester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 49. A rule of a street car company re- quiring conductors to collect fare from ev- ery passenger on their cars is reasonable when applied to a passenger who, having paid his fare on the motor car, passes from it onto the trailer 1 y alighting from one to the ground and boarding the other, the cars being in charge of separate conductors. Birmingham R. L. & P. Co. v. McDonough, 13: 445, 44 So. 960, 153 Ala. 122. (Annotated) 50. A railroad company is not forbidden to make possession of a ticket a condition precedent to entering its train, by a statute requiring nonticket holders to be transport- ed at the regular fare charged for tickets. St. Louis & S. F. R. Co. v. Blythe, 29: 299, 126 S. W. 386, 94 Ark. 153. (Annotated) As to place to ride. Admissibility of rule in evidence, see EVI- DENCE, 1728. See also infra, 226. 51. A passenger on a street car who re- fuses to obey a rule forbidding riding on the platform loses his rights as a passen- ger, including that to a transfer to another car. Kirk v. Seattle Electric Co. 31:991, 108 Pac. 604, 58 Wash. i83. 52. The carrier waives its notice and rule that "passengers are not allowed to stand on the platform" when its conductor receives and carries passengers thereon after the train is so crowded that the cars cannot reasonably be entered. Norvell v. Kanawha & M. R. Co. 29: 325, 68 S. E. 288, 67 W. Va. 467. c. Who are passengers. 1. Employee of carrier. (See also Carriers, II. a, 2, b (1) (b) in Digest L.R.A. 1-70.) Relation of carrier and passenger between employer and servant riding on ele- vator, see MASTER AND SERVANT, 288. Duty towards employee of mine riding on train to and from work, see MASTEB AND SERVANT, 866. .Hf i '::' I * CARRIERS, II. c, 2. 353 Ratification of superintendent's agreement | mine, his manufacturing establishment, and to give free transportation, see PKIN- shipping terminals, are, while so in process CIPAL AND AGENT, 90. See also infra, 69, 76. 53. A servant, employed to labor by the day in the power house of a railway com- pany, and who is furnished with a free pass, under a rule of the company, which entitles him to ride on any of the com- pany's cars at any time, and about his own business, during the continuance of his em- ployment, is a "passenger" when riding either to or from his place of labor, and not a fellow servant of the motorman in charge of the car, and is entitled to the same rights as a passenger for hire. Har- ris v. City & E. G. R. Co. 50: 706, 70 S. E. 859, 69 W. Va. 65. 54. A railroad flagman who receives as compensation for his services a certain sum and fourteen transportation tickets to car- ry him to and from his home per week is, after his day's work is done, and he has boarded a car for home, being required to pay a ticket for his transportation, a pas- senger, and not a fellow servant with those engaged in operating the car. Enos v. Rhode Island Suburban R. Co. 12: 244, 67 Atl. 5, 28 R. I. 291. 55. An employee of a railroad company engaged in track construction sustains to it the relation of servant, and not that of pas- senger, when, after the defendant's work is finished, he is being transported without payment of fare on a special car from the place of his work to his home. Kilduff v. Boston Elev R. Co. 9: 873, 81 N. E. 191, 195 Mass. 307. 56. The rights of a section man on a street railway, who is injured while riding to his work from his home, on the company's car, without paying fare, in accordance with a custom of the company to carry such em- ployees free upon their displaying badges furnished to them, are not those of a pas- senger, but merely of an employee. Bir- mingham R. L. & P. Co. v. Sawyer, 19: 717, 47 So. 67, 156 Ala. 199. (Annotated) 57. A street railway company is liable for injury to an employee of its power house while riding to or from his work on a pass, by the negligence of the motorman in charge of the car. Harris v. City & E. G. R. Co. 50: 706, 70 S. E. 859, 69 W. Va. 65. (Annotated) 58. An employee of a street car com- pany when riding on a regularly scheduled car of his employer, in accordance with the terms of his contract entitling him to free transportation to and from work, is a passenger, and a provision on the ticket furnished him as evidence of his right, at- tempting to relieve the carrier from lia- bility for injuring him, is void. Klinck v. Chicago City R. Co. 52: 70, 104 N. E. 669, 262 111. 280." 59. Employees in a mine who are gratui- tously carried by the mine owner between their homes and place of work on a rail- road which he operates as a private road to transport coal and supplies between the Digest 1-52 L.R.A.(N.S.) 23 of transportation, employees, and not pas- sengers; and the employer is therefore not liable for their injury through the negli- gence of other employees in failing to set derailing devices, and in putting standing cars in motion so that they run down an incline and'collide with the miners' train. Dayton Coal & Iron Co. v. Do -id, 37: 456, 188 Fed. 597, 110 C. C. A. 395. 2. Other persons. (See also Carriers, II. a, 2, b (1), (a) and (c) in Digest L.R.A. 1-10.) On elevator, see ELEVATORS, 8. Sufficiency of evidence to show acceptance of person as passenger, see EVIDENCE, 2253. Sufficiency of allegations as to, see PLEAD- ING, 33, 264. See also supra, 51. 60. One upon the premises of a railroad company to purchase the return coupon of an excursion ticket from some incoming ex- cursionist, for passage over its lines on a train scheduled to depart eight hours later, intending in the meantime to remain in the city of purchase, and not upon the premises of the company, and therefore not under its care or control, is not a "passenger," within the proper meaning of the term. Kidwell v. Chesapeake & 0. R. Co. 43: 999, 77 S. E. 285, 71 W. Va. 664. (Annotated) 61. A person is not a passenger, and entitled to consideration and protection as such, who, after waiting all day in a sta- tion for a train, and discovering that he will be unable to reach his destination in time for the accomplishment of the pur- pose of his journey, leaves the station and goes to a hotel for supper, and then returns to such station for the purpose of sending a telegram, announcing the fact that he will be unable to make the journey, and that it is his intention not to attempt to do so. Galehouse v. Minneapolis, St. P. & St. Ste. M. R. Co. 47: 965, 135 N. W. 189, 22 N. D. 615. 62. One who goes to a railroad station to inquire as to the possibility of securing passage on a freight train, which he knows, by the rules of the company, is not allowed to carry passengers, and to secure passage thereon if possible, is not entitled to the rights of a passenger, but is a mere tres- passer. Neice v. Chicago & A. R. Co. 41: 162, 98 N. E. 989, 254 111. 595. (Annotated) 63. A person on a railroad train holding a first-class ticket is entitled to the rights of a passenger, although the ticket was in fact issued to another and delivered by the latter to him. Denver & R. G. R. Co. v. Berry, 27: 761, 108 Pac. 172, 47 Colo. 584. 64. A person desiring to travel between two stations on the line of road of a car- rier, who, at the suggestion of the ticket agent, purchases a ticket to a station mid- 354 CARRIERS, II. c, 2. way between the two points, intending there to purchase a ticket for the balance of the journey, and catch a through train which does not stop at the first station, is not a passenger at the midway station until he has purchased his ticket, although he re- mained for several hours at the station, awaiting his train, before thus purchasing the ticket. Barnett v. Minneapolis & St. L. R. Co. 48: 262, 143 N. W. 263, 123 Minn. 153. 65. A passenger who boards a train after telegraphing for a reservation on a certain Pullman car which is not attached to that train, but will be picked up a few miles down the road, and is allowed to remain in a Pullman car pending the arrival of the one on which his reservation is, is not a passenger of the Pullman company, and it is not liable for negligence of its conductor which results in his missing his car. Cin- cinnati, N. O. & T. P. R. Co. v. Raine, 19: 753, 113 S. W. 495, 130 Ky. 454. 66. A person stepping upon the running board of a moving street car does not be- come a passenger unless he is recognized by the servants of the company as such. Lock- wood v. Boston Elevated R. Co. 22: 488, 86 N. E. 934, 200 Mass. 537. 67. One who is attempting to board a train of one of several railroad companies using common tracks through a station, for the purpose of taking passage thereon, is a passenger as to all roads using those tracks, in determining the measure of care which they owe him. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 68. A person may be found not to have become a passenger on a street car where, having swung himself onto the step while the car was in motion, the conductor re- fused to accept him as a passenger unless he got inside the car. Hogner v. Boston Elev. R. Co. 15: 960, 84 N. E. 464, 198 Mass. 260. (Annotated) 69. A railroad tie inspector in the em- ploy of one railroad company, who is trans- ported from place to place without charge by another company which is engaged in transporting ties for the former, to enable him in the performance of his duties to inspect the ties to be transported, has the rights of a passenger while on its trains in the performance of his duties. St. Louis & S. F. R. Co. v. Kitchen, 50: 828, 136 S. W. 970, 98 Ark. 507. 70. A carrier cannot escape liability for negligently injuring one whom it has ac- cepted as a passenger, although he claimed transportation under a contract which vio- lated the provisions of the Constitution against free passes. Bradburn v. Whatcom County R. & Livhile approaching the train upon which he is to be carried, a passenger. Pere Mar- quette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. 95. One who, although intending to board a car, is 125 yards from the station when the car arrives, cannot complain that it does not wait a sufficient time to enable passengers to embark before it proceeds on its journey, since, not being at the sta- 356 CARRIERS, II. c, 4. tion, the carrier owes him no duty. Mitch- ell v. Augusta & A. R. "Co. 31: 442, 69 S. E. 664, 87 S. C. 375. (Annotated) 96. One who goes to a railroad station a few minutes before the arrival of his train is entitled to the rights of a passenger, al- though his intention is merely to leave his hand baggage and depart again to trans- act some personal business before train time, where by statute the railroad com- pany is required to keep its station open at least an hour before the arrival of trains; and he may therefore hold the rail- road company liable for an injury due to the unsafe condition of the premises. Met- calf v. Ya/oo.& M. V. R. Co. 28: 311, 52 So. 355, 97 Miss. 455. (Annotated) After entering train. 97. Where one intending to become a passenger, and while the work of preparing the train on which he intends to take pas- sage is going on, necessitating dangerous switchings and coupling of the cars, of which he has notice, and at a point where the carrier is not accustomed to receive passengers, and without notice to, or in- vitation by, any officer or agent of the car- rier with authority, enters one of t:ie coach- es, and, in attempting to go from one coach to another, is injured by a jolt or impact given to the coaches in making such switoh- es or couplings, the carrier is not liable to him in damages for his injuries thus sus- tained. Raines v. Chesapeake & 0. R. Co. 33= 583, 70 S. E. 711, 68 W. Va. 694. ( Annotated ) Before entering street car. 98. One attempting to board a street car which has slowed up to receive him at a regular stopping place is entitled to the rights of a passenger. Klinck v. Chicago City R. Co. 52: 70, 104 N. E. 669, 262 111. 280. 99. One attempting to pass in front of a standing street car to take passage thereon is not a passenger within the rule that car- riers must furnish reasonably safe appli- ances for the accommodation of passengers in getting on and off trains; and a presump- tion of negligence on the part of the com- pany does not therefore arise in case he falls over a proper fender properly adjusted on the front of the car, to his injury, at a time when the fender is plainly visible. Jaquette v. Capital Traction Co. 25: 407, 34 App. D. C. 41. (Annotated) 100. One who attempts to use a plank placed to facilitate access to a standing street car for the purpose of entering the same as a passenger is entitled to the rights of a passenger, although he has not been expressly accepted as such by an employee of the car or paid fare or purchased a ticket. Messenger v. Valley City Street & I. R. Co. 32: 881, 128 N. W. 1023, 21 N. D. 82. 101. One who in good faith, and for the purpose of taking passage, signals an ap- proaching electric car in the manner pre- scribed by the carrier, the motorman re- sponding to that signal by sounding the whistle or setting the brakes, thereby be- Digest 1-52 L.R.A.(N.S.) comes a passenger; and the question wheth- er or not he is guilty of contributory negli- gence in crossing the track for the purpose of boarding the car must be considered with reference to his character as a passenger. Karr v. Milwaukee .Heat, Light, & Trac- tion Co. 13: 283, 113 N. W. 62, 132 Wis. 662. (Annotated; 4. Termination of relation. (See also Carriers, II. a, 2, b (3) in Digest L.R.A. 1-10. ) Question for jury as to, see TRIAL, 235. See also infra, 134, 737. 102. From the time a passenger places himself under the charge of the carrier, as he begins his journey, until he is afforded the opportunity to leave the premises of the carrier, at its termination, he is "a pas- senger being transported" within Cob. (Neb.) Anno. Stat. 1903, chap. 47, p. 2876. 1039, unless, by some act not attributable to the carrier, the relation ceases. Fremont, E. & M. Valley R. Co. v. Hagblad, 4: 254, 101 N. W. 1033, 72 Neb. 773. (Annotated) 103. Failure of a passenger, who is asleep when the train reaches his destination, to waken and leave the train immediately upon its coming to a stop, does not termi- nate his relation as passenger and the car- rier's duty of protection, if those in charge of the train, knowing the facts, fail to waken him and acquaint him with the fact that he should alight. Bass v. Cleveland, C. C. & St. L. R. Co. 2: 875, 105 N. W. 151, 142 Mich. 177. (Annotated) 104. A passenger does not lose his char- acter as such by going upon the platform of a moving train, contrary to a conspicu- ously posted notice forbidding him to do so, as the train approaches his station, in the absence of express notice that such con- duct will have that effect or other special circumstances, so as to destroy a statu- tory right of action for his death on be- half of his next of kin, which is intended as a penalty to punish the carrier for negli- gence in causing the passenger's death. Renaud v. New York, N. H. & H. R. Co. 38: 689, 97 N. E. 98, 210 Mass. 553. 105. The duty which a railway company owes to a passenger, to exercise the highest degree of care for his safety which is rea- sonably practicable, does not cease until the passenger has reached his destination, and left the train. Chicago, R. I. & P. R. Co. v. Wimmer, 4: 140, 84 Pac. 378, 72 Kan. 566. 106. The relation of a passenger to a railroad company ceases when he has alighted from the train upon the platform at his destination, and proceeded far enough towards the exit from the company's property to be out of danger from the move- ment of the train, and necessity for further relation with the servants of the company has ceased. Berryman v. Pennsylvania R. Co. 30: 1040, 77 Atl. 1011, 228 Pa. 621. 107. A passenger alighting from a railroad train has a right to remain in the railroad CARRIERS, II. c, 4. 357 waiting room a reasonable time, awaiting the arrival of friends who are to meet him, without losing his rights as a passenger. Powell v. Philadelphia & R. R. Co. io: 1019, 70 Atl. 268, 220 Pa. 638. (Annotated) 108. A passenger who, upon alighting from a train, goes to the station, which is some distance from the place where he left the train, simply to await the arrival of a street car upon which he intends to become a passenger, and which could have been boarded from points less distant, cannot claim the rights of a passenger if injured by the negligence of the railroad company. Powell v. Philadelphia & R. R. Co. 20: 1019, 70 Atl. 268.. 220 Pa. 638. 109. The mere use, by a passenger who has alighted from a train, of a pub'lic crossing, in getting to a station on the opposite side of the track, which is nearest his destina- tion, does not per se terminate his relation to the carrier. Powell v. Philadelphia & R. R. Co. 20: 1019, 70 Atl. 268, 220 Pa. 638. 110. A passenger does not lose his rela- tion as such, when, after leaving the train and while proceeding towards the exit from the carrier's premises, he learns of the shooting of his brother, a fellow passenger, by a servant of the carrier, and in good faith and without intention of engaging in any difficulty, returns to the relief of his brother, and he is entitled to protection by the carrier from assault by its agents. Layne v. Chesapeake & 0. R. Co. 31: 414, 69 S. E. 700, 68 W. Va. 213. 111. One who, in going from a railroad car to a street, after passing a certain dis- tance along the walk provided by the rail- road company, turns aside and attempts to walk across the tracks of the company, can- not claim the protection from the company which is due to a passenger. Legge v. New York, N. H. & H. R. Co. 23: 633, 83 N. E. 367, 197 Mass. 88. (Annotated) 112. One who failed to secure entrance to a train which he intended to board, to take passage thereon, because the vestibule doors were closed at all entrances which he reached, does not lose his rights as a pas- senger while returning to the station to wait for the next train. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 113. A passenger terminates his relation as such to the carrier, as matter of law, where, upon reaching his destination, he vol- untarily loiters in the station house in quest of pleasure and to enjoy the society of friends for ten or fifteen minutes; and therefore, in subsequently attempting to leave the station grounds, he cannot rely on the duty of the carrier to keep its grounds safe for passengers. Glenn v. Lake Erie & W. R. Co. 2: 872, 75 N. E. 282, 165 Ind. 659. (Annotated) 114. A passenger does not retain his rights as such where, for a period of two hours after reaching his destination, he re- mains at the station to secure shelter Digest 1-52 L.R.A.(N.S.) from a storm. Bays v. Louisville & N. R. Co. 34: 678, 134 S. W. 450, 142 Ky. 400. 115. One in transit from one car to another, substituted therefor because of an obstruction, remains a passenger, and en- titled to the protection that the highest degree of care on the part of the carrier can afford under the circumstances. Killmeyer v. Wheeling Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. 116. Where an obstruction prevents fur- ther passage of a car, and another is, by the carrier, substituted therefor beyond the ob- struction, the duty imposed by law upon a carrier for the safety of passengers is not thereby suspended, but continues unaffected while, without negligence on his part, and in exercise of ordinary care for his safety, a passenger is engaged in an immediate effort to reach the substituted car. Killmeyer v. Wheeling Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. (Annotated) 117. A passenger holding a through ticket does not lose his relation to the carrier by the fact that, upon arriving at a junction point where he is to change cars, he is ush- ered by the carrier's employees to a sleeping car which is standing in the yard waiting to be attached to a train on which he is to con- tinue his journey, rather than into the sta- tion building. Denver & R. G. R. Co. v. Berry, 27: 761, 108 Pac. 172, 47 Colo. 584. 118. The relation of a passenger on a street car to the carrier continues until he has had a reasonable opportunity to leave the roadway of the carrier after the car has reached the station or stopping place to which he is entitled to be carried. Melton v. Birmingham R. L. & P. Co. 16: 467, 45 So. 151, 153 Ala. 95. 119. A passenger on a street car, who, be- ing entitled to a transfer to another line, which is not given him before the transfer point is reached, continues to demand it aft- er he has reached the ground at the transfer point in obedience to the conductor's com- mand to get off the car and out of the way, has not lost his rights as a passenger, so as to absolve the company from liability for an assault upon him by the conductor, grow- ing out of the altercation. Blomsness v. Puget Sound Electric R. Co. 17 : 763, 92 Pac. 414, 47 Wash. 620. (Annotated) 120. A passenger on a crowded street car does not cease to be such by momentarily stepping to the ground to enable other passengers to leave the car. Tompkins v. Boston Elevated R. Co. 20: 1063, 87 N. E. 488, 201 Mass. 114. 121. The relation between a street car company and its passenger has not ceased so as to make inapplicable the doctrine of res ipsa loquitur in case of injury to him, although he has reached the surface of the street, if, in alighting without negli- gence on his part, his feet have become entangled in a rope attached to the car, so that he is injured by the starting of the car. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 358 CARRIERS, II. d, e. d. Abuse of passenger; insult. {See also Carriers, II. a, 3, 6, in Digest L.R.A. 1-70.) Punitive damages for, see DAMAGES, 91. Instructions as to duty to protect pas- senger from insult, see TRIAL, 871. Uncertainty of instruction that passenger is entitled to courteous treatment, see TRIAL, 1018. 122. A carrier of passengers is as much bound to protect them from humiliation and insult aa from physical injury. May v. Shreveport Traction Co. 32: 206, 53 So. 671, 127 La. 420. By employee. Evidence of insulting remark by brake- man, see EVIDENCE, 1428. Damages for, see DAMAGES, 262-265, 665, 666. See also infra, 134. 123. A carrier cann.ot escape liability for insults addressed by its conductor to a pas- senger, on the ground that it did not au- thorize or ratify them. Bleecker v. Colorado & S. R. Co. 33: 386, 114 Pac. 481, 50 Colo. 140. 124. Objectionable remarks addressed by a street car conductor to a patron of the road while on the car, referring to her per- sonal appearance, which mortify and hu- miliate her, are actionable, and the car company will be held in damages therefor. Haile v. New Orleans R. & L. Co. 51: 1171, 65 So. 225, 135 La. 229. 125. A railroad company is liable for any indignities offered by its conductors to a passenger who, because of its fault in not having an agent at a terminal point w';ere the passenger is to exhibit an order for a ticket, attempts to pursue his journey upon the order without 1-*e ticket, and is in- sulted and threatened with ejection by the conductor. Cincinnati, N. 0. & T. P. R. Co. v. Harris, 5: 779, 91 S. W. 211, 115 Tenn. 501. (Annotated) 126. Applying the term "negro" to a white person, or suggesting that he belongs in the negro compartment of a street car, when done by the conductor of the car, will render the company liable in damages to such person. May v. Shreveport Trac- tion Co. 32: 206, 53 So. 671, 127 La. 420. (Annotated) e. Assault on passenger. (See also Carriers, II. a, 3, c, in Digest L.R.A. 1-10.) Evidence in action for, see EVIDENCE, 1866. By fellow passenger or stranger. Damages for, see DAMAGES, 409, 614. Proximate cause of, see PROXIMATE CAUSE, 85. See also infra, 227, 228. 127. A common carrier is bound to exer- cise the utmost diligence in maintaining order and in guarding its passengers against Digest 1-52 L.R.A.(N.S.) assaults by other passengers, which might reasonably be anticipated or naturally ex- pected to occur. Jansen v. Minneapolis & St. L. R. Co. 32: 1206, 128 N. W. 826, 112 Minn. 496. (Annotated) 128. Although the duty of enforcing a statute requiring the separation of white and colored passengers is imposed upon con- ductors of trains, a railroad company may be held liable for injury inflicted upon a passenger of one race by a member of the other who is allowed to be in the wrong compartment without the knowledge of the conductor, if a subordinate employee, upon discovering his presence there, fails, as soon as practicable and within a reasonable time, to notify the conductor of that fact. Louis- ville & N. R. Co. v. Renfro, 33: 133, 135 S. W. 266, 142 Ky. 590. 129. A railroad company cannot be held liable for the killing of a negro passenger by a white person permitted to be in the negro compartment of a train, contrary to the provisions of the statute, if the shooting was done in necessary self-defense. Louis- ville & N. R. Co. v. Renfro, 33: 133, 135 S. W. 266, 142 Ky. 590. 130. A railroad whose conductor fails as soon as practicable, and within a reasonable time after discovering a white passenger in a negro compartment, to require him to leave it, is, where the statute provides a penalty for permitting passengers to occu- py compartments set apart for the other race and charges the conductor with the enforcement of the law, liable in damages for the unprovoked shooting by him of a negro. Louisville & N. R. Co. v. Renfro, 33: 133, 135 S. W. 266, 142 Ky. 590. (Annotated) 131. The liability or nonliability of the carrier of passengers for hire for an injury inflicted upon a passenger carried, by rea- son of a third person making an unpro- voked assault -upon him, depends upon the presence or absence of evidence showing the employees of the carrier either knew, or by the exercise of due care should have known, from all the attendant facts and circum- stances of the particular case, that injury to the passenger carried was threatened or impending, and which injury, by the exer- cise of that high degree of care which the law requires of a carrier of passengers for their safety and protection, thus being fore- seen, might have been guarded against. Brown v. Chicago, R. I. & P. R. Co. 2: 105, 139 Fed. 972, 72 C. C. A. 20. (Annotated) By employees. Punitive damages for, see DAMAGES, 78-81, 90. Recovery for mental suffering, see DAMAGES, 613. Abusive language as justification for kill- ing passenger, see DEATH, 43. Presumption of ratification of employee's act, see EVIDENCE, 188. Evidence in action for generally, see EVI- DENCE, 1966. Evidence in mitigation of damages for, see EVIDENCE, 2012. CARRIERS, II. e. 359 Assault on consignee of freight by delivery clerk, see MASTER AND SEBVANT, 959. As to killing of bj r standr by drunken con- ductor shooting at passenger, see MAS- TEB AND SEKVANT, 975. Liability of manager of company for kill- ing of intending passenger by servant, see MASTER AND SERVANT, 1043. Sufficiency of defendant's pleading in action for, see PLEADING, 466. Question for jury in action for, see TRIAL, 289. Question for jury as to carrier's liability for killing passenger, see TRIAL, 247. Cross-examination of witnesses in action for, see WITNESSES, 86. See also supra, 110, 119 ; infra, 218, 219. 132. A railroad company is liable for an assault by its station agent upon a passen- ger waiting in the station to take a train, although it grew out of a discussion con- cerning business in which the railroad com- pany was hi no way interested. Neville v. Southern R. Co. 40: 995, 146 S. W. 846, 126 Tenn. 96. (Annotated) 133. A railroad company is liable to the extent of compensatory damages for in- juries inflicted upon a passenger by an in- sane conductor in charge of the train on which the passenger is riding. Chesapeake & O. R. Co. v. Francisco, 42: 83, 148 S. W. 46, 149 Ky. 307. 134. A carrier is not liable for an assault on a former passenger after he has left the car, by its conductor, for what had tran- spired on the car, or for insults offered after the passenger had left it. Jackson v. Old Colony Street R. Co. 30: 1046, 92 N. E. ?25, 206 Mass. 477. 135. A carrier is liable in damages for as- sault and battery where its brakeman and station agent assist in making an unjusti- fied arrest of a passenger, and removing him from the train. Hull v. Boston & M. R. Co. 36: 406, 96 N. E. 58, 210 Mass. 159. 136. An assault by the conductor upon a passenger who is leaving the car at his command without resistance is unjustifi- able, and will render the carrier liable for the consequences of it. Jackson v. Old Colony Street R. Co. 30: 1046, 92 N. E. 725, 206 Mass. 477. 137. A railroad company is not liable for the unprovoked shooting, without justifica- tion, of a passenger while in the act of leaving the train and station, by a police- man in its employ and on duty at the sta- tion. Berryman v. Pennsylvania R. Co. 30: 1049, 77 Atl. 1011, 228 Pa. 621. 138. A railroad company is not liable for the act of its police officer in wilfully and maliciously inflicting injury upon one whom he is attempting to arrest for a justifiable cause, while he is in the act of leaving the company's train. Berryman v. Pennsyl- vania R. Co. 30: 1049, 77 Atl. 1011, 228 Pa. 621. 139. Offensive language addressed by a passenger, whom the carrier is bound to protect, to its conductor, is no justifica- tion for an assault on him by the conduc- tor which will absolve the carrier from lia- Digest 1-52 L.R.A.(N.S-) bility for the consequences of the assault. Jakson v. Old Colony Street R. Co. 30: 1046, 92 N. E. 725, 206 Mass. 477. 140. The mere fact that a conductor is angered by words or conduct of a passen- ger does not absolve the carrier from lia- bility for his assault upon him, if the words were not sufficient to justify the act, but, if the passenger's conduct is such as to justify the assault, the carrier is not liable; and, if jt was sufficient to mitigate the con- ductor's act, the mitigation inures to the benefit of the carrier. Mason v. Nashville, C. & St. L. R. Co. 33: 280, 70 S. E. 225, 135 Ga. 741. (Annotated) 141. A carrier is not liable for an assault upon one passenger by pushing another against him if, without provocation, the one pushed assaulted the conductor, who, using no more force than was or reason- ably appeared to be necessary, repelled the attack, and in so doing pushed him against the complaining passenger. Chesapeake & O. R. Co. v. Robinett, 45: 433, 152 S. W. 976, 151 Ky. 778. 142. A railroad company is not liable for the act of a station porter who boards a train and makes an assault on a through passenger traveling thereon, for the pur- pose of satisfying a personal grudge, where its other servants are not negligent in failing to anticipate and prevent the as- sault. Houston & T. C. R. Co. v. Bush, 32: 1201, 133 S. W. 245, 104 Tex. 26. (Annotated) 143. A railroad company is not liable for an assault by the crew of a freight train upon one who had been a trespasser upon it but had left it, and who was not attempting to return to it, incited by the fact that they thought he had undone a coupling, so as to break the train in two, requiring it to stop. Cincinnati, N. O. & T. P. R. Co. v. Rue, 34: 200, 134 S. W. 1144, 142 Ky. 694. (Annotated) 144. The conductor of a street car may lay hands on the person of one attempting to board the car, to become a passenger, after it is in motion, and use sufficient force to prevent his doing so. Sullivan v. Boston Elev. R. Co. 21 : 36, 84 N. E. 844, 199 Mass. 73. 145. The conductor of a street car may use such force as is reasonably necessary to prevent persons boarding, to become passen- gers thereon, a car which is not running for the accommodation of passengers, but is merely going to the barn. Sullivan v. Bos- ton Elev. R. Co. 21 : 36, 84 N. E. 844. 199 Mass. 73. (Annotated) 146. A street car company is not liable for an assault by its motorman upon a pas- senger who has left the car to stop a fight between the conductor and a person who has been ejected from the car. Zeccardi v. Yonkers R. Co. 17: 770, 83 N. E. 31, 190 N. Y. 389. 147. A street car company is liable for the act of one employed to care for its cars, who unlawfully assaults a passenger while attempting to eject him from the car at the express or implied request of the conductor, 360 CARRIERS, II. f. but not if his act is of his own volition, and beyond the scope of his employment. Mills v. Seattle, R. & S. R. Co. 19: 704, 96 Pac. 520, 50 Wash. 20. 148. A street railway company is liable for the death of a boy whom the motorinan in charge of the car has received for trans- portation to the police station, where he refuses to permit him to leave the car, and in attempting to restrain him from doing so the boy falls under the wheels and is killed, since the boy, being a passenger, is entitled to treatment as such, and to have the car stopped at his request to give him an opportunity safely to alight. Lewis v. Bowling Green R. Co. 39: 929, 144 S. W. 377, 147 Ky. 460. 149. One who fails to secure a, transfer on a street car, to which he considers him- self entitled, cannot recover damages from the company for assault, for injuries in- flicted upon him by the company's em- ployees in ejecting him from the connect- ing car by the use of no more than neces- sary force, for refusal to pay fare or leave the car upon request. Kirk v. Seattle Elec- tric Co. 31 : 991, 108 Pac. 604, 58 Wash. 283. /. Arrest; false imprisonment. (See also Carrier, II. o, 3, d, in Digest L.R.A. 1-70.) Duty of passenger to submit to arrest, see OBSTRUCTING JUSTICE, 8. By employees. Exemplary damages for, see DAMAGES, 82. Evidence on question of damages for, see EVIDENCE, 1744. Evidence as to authority of conductor to cause arrest, see EVIDENCE, 2018. Arrest of one other than passenger, see FALSE IMPRISONMENT, 11, 21. General denial in action for, see PLEADING, 486. Instructions in action for, see TRIAL, 871, 1027. See also supra, 135, 138. 150. A carrier is liable for false im- prisonment, which detains an injured pas- senger against his will and prevents his being taken immediately where he can se- cure relief, in order to secure from him a statement, although the result is pro- duced merely by wrongfuly telling him that the law requires the statement to be made. Whitman v. Atchison, T. & S. F. R. Co. 34: 1029, 116 Pac. 234, 85 Kan. 150. 151. A railroad company is liable for false imprisonment, if its conductor, when directing officers to arrest a disorderly pas- senger, causes him to lock up another pas- senger who merely witnessed the disorder, as a witness against the guilty party. New York, P. & N. R. Go. v. Waldron, 39: 502, 82 Atl. 709, 116 Md. 441. (Annotated) 152. Express authority to a conductor to cause the arrest and detention of a witness to disorderly conduct on the train is not necessary to render a railroad company lia- ble for such arrest and detention of a pas- senger, as a witness against a passenger Digest 1-52 L,.R.A.(N.S.) whom the conductor, while acting wiLhin the line of his duty, caused to be arrested. New York, P. & N. R. Co. v. Waldron, 39: 502, 82 Atl. 709, 116 Md. 441. 153. A railroad company is not liable for the wrongful arrest by its conductor, with authority to arrest persons intoxicated or raising a disturbance on trains, and its special agent, with authority to arrest per- sons committing wrongs against its prop- erty, of a person stealing a ride on a train whom they suspect of having murdered a person whose body was found on the track after the train had passed. St. Louis, I. M. & S. R. Co. v. Sims, 44: 1156, 152 S. W. 985, 106 Ark. 109. 154. A railroad company is liable for the arrest of a passenger on a false charge of larceny of a watch fob, by the auditor in charge of its train, whether he was acting in the scope of his authority in securing the arrest or not, since its obligation to- wards the passenger includes protection from intentional ill treatment from the agents in charge of its train. Moore v. Louisiana A. R. Co. 34: 299, 137 S. W. 826, 99 Ark. 233. (Annotated) 155. A passenger who, upon notification by the conductor of a rule requiring him to place a dog in his possession in the baggage car and pay fare for it, refuses to do so, does not subject himself to arrest without warrant, under a statute permitting such arrest of passengers who refuse to pay fare. Hull v. Boston & M. R. Co. 36: 406, 96 N. E. 58, 210 Mass. 159. 156. A carrier is answerable for the ar- rest without justification of a passenger by its conductor, whether he acted as its serv- ant or as a special police officer. Hull v. Boston & M. R. Co. 36:406, 96 N. E. 58, 210 Mass. 159. 157. A passenger conductor who caused the arrest of a person a few moments after he alighted from a train and while still at the railroad station, by virtue of a statute making it a crime publicly to drink or offer to another any intoxicating beverage upon a passenger train, and conferring po- lice powers upon every passenger conductor, and making it his duty while thus engaged ;o arrest any person violating the provisions of the statute, is in so doing acting for the state and not for the railroad com- pany, and therefore the company is not liable for his act; and it is immaterial whether or not at the time of the arrest ;he status of the person as a passenger had eased. Houston v. Minneapolis St. P. & S. Ste. M. R. Co. 46: 589, 141 N. W. 994, 29 N. D. 469. 158. A railroad company is not liable for ;he acts of a special police officer appointed as provided by the Nebraska statute, and n its pay, in wrongfully arresting and prosecuting a person for the alleged shoving of such officer's wife while she was engaged n conversation at the company's station, where the arrest was not directed or in- stigated by it, and in no way affected its rights or property, although the plaintiff was rightfully in the station, having a ticket and awaiting the arrival of a train. McKain CARRIERS, II. g. 1. v. Baltimore & O. R. Co. 23: 289, 64 S. E. 18, 65 VV. Va. 233. By police officer. Liability of officer arresting passenger, see ARREST, 2, 12. Special poli'ce officer as servant of railroad, see MASTER AND SERVANT, 37-41. Arrest of passenger without warrant as an unlawful seizure, see SEARCH AND SEIZURE, 13. See also supra, 156, 157, 158. 159. A railroad company is not liable in damages to one arrested by a police officer while a passenger on its train, because the conductor pointed him out to the officer and did not attempt to interfere with the arrest, where the officer had apparent au- thority to make the arrest. Mayfield v. St. Louis, I. M & S. R. Co. 32: 525, 133 S. W. 168, 97 Ark. 24. (Annotated) 160. A street railway company is liable in damages for a wrongful arrest due to the act of its conductor, who mistakenly point- ed out a respectable passenger as a pick- pocket to a police officer, under La. Civ. Code, art. 2324, declaring that one who causes another person to do an unlawful act, or assists or encourages the commission of it, is responsible in solido with that person for the damages occasioned by the act. Schmidt v. New Orleans R. Co. 7: 162, 40 So. 714, 116 La. 311. (Annotated) 161. Neither the failure of a street rail- way company to give its conductors full and specific instructions, nor the placing of re- strictions upon the extent of their authority, nor enjoining them to perform their duties cautiously, prudently, and well, will relieve it from liability for the wrongful arrest of a passenger, made at the instance of a con- ductor who mistakenly pointed out a re- spectable person as a pickpocket. Schmidt v. New Orleans R. Co. 7: 162, 40 So. 714, 116 La. 311. (Annotated) 162. The Pullman sleeping car company is not guilty of actionable negligence in fail- ing to make any objection to, or take any action to prevent, the arrest of a negro in- terstate passenger and his removal from one of its coaches upon the entry of the train containing the coach into a state having a separate coach law, which, however, can have no application, because the negro was an interstate passenger, by officers of that state who had been notified by the con- ductor of the train, to the knowledge of the Pullman conductor, that the negro was riding in the car set apart for whites. Thompkins v. Missouri, K. & T. R. Co. 52: 791, 211 Fed. 391, 128 C. C. A. 1. (Annotated) fir. Measure of care required; negli- gence generally. 1. Of carrier. a. In general. (See also Carriers, II. a, 4, a (1) in Digest L.R.A. 1-10.) Fault of passenger as defense in action for injury, see ACTION OB SUIT, 40. Digest 1-52 I*R.A.(N.S.) Joint action against owner of track and other company using track under license, see ACTION OR SUIT, 118. Appeal in action for injury to passenger, see APPEAL AND ERROR, 525. Right of carrier to contribution from ex- press company primarily responsible for accident, see CONTRIBUTION AND IN- DEMNITY, 17. Report to carrier by agent as to accident as confidential communication, see DIS- COVERY AND INSPECTION, 14. Passenger's right to sue in tort for in- juries, see ELECTION OF REMEDIES, 14. Measure of care required in operating ele- vator, see ELEVATORS. Skidding of vehicle as evidence of carrier's negligence, see EVIDENCE, 343. Judicial notice of failure to provide ade- quate accommodations for passengers, see EVIDENCE, 39. Presumption and burden of proof as to negligence, see EVIDENCE, II. h, 1, b (1) Admissibility of evidence in action for in- juries, see EVIDENCE, 823, 1086, 1521, 1875. Error in admission of evidence, see APPEAL AND ERROR, 1105. Sufficiency of proof of negligence, see EVI- DENCE, 2145-2149. Sufficiency of evidence to justify inference as to cause of accident, see EVIDENCE, 2059. Variance between pleading and proof in action for injury to passenger, see EVI- DENCE, 2479, 2498-2501. Release by passenger from liability for injury, see EVIDENCE, 2088. Injury to patron in dining car, by unfit food, see FOOD, 21. Husband's right of action for injury to wife, see HUSBAND AND WIFE, 152, 153. Injury to person being conveyed to pest house under contract between carrier and county court, see PARTIES, 57. Pleading in action for injury, see PLEAD- ING, 33,' 34. Relief under pleadings, see PLEADING, 82, 83. Allegations as to negligence, see PLEADING, 290-295. Proximate cause of injury, see PROXIMATE CAUSE, III. Liability to passenger for negligence of lessor of railroad, see RAILROADS, 13. Excluding from evidence lease of road in action against carrier for injury, see EVIDENCE, 791. Question for jury as to cause of injury to passenger, see TRIAL, 174, 175. Sufficiency of evidence to take case to jury, see TRIAL, 139, 140. Question for jury as to negligence, see TRIAL, II. c, 8, b ( 1 ) . Direction of verdict in action for injury, see TRIAL, 786, 769. Necessity or propriety of instructions gen- erally, see TRIAL, 902-905. Error in refusal of instruction, see APPEAL AND ERROR, 1413, 1414. Correctness of instructions as to, generally, see TRIAL, 1050-1054. 362 CARRIERS, It. g. 1. Prejudicial error in instructions, see AP- PEAL AND ERROR, 1321, 1346, 1347. Correctness of verdict in action for injury to passenger, see TBIAL, 1125. See also infra, 305. 163. A carrier of passengers is not an insurer of their safety, but is bound only to exercise reasonable care and diligence. East Indian R. Co. v. Mukerjee, 3 B. R. C. 420, [1901] A. C. 396. Also Reported in 70 L. J. P. C. N. S. 63, 84 L. T. N. S. 2.10, 17 Times L. R. 284. 164. If a duty of protecting a passenger on board of a railway train arises, either in the ordinary course of business or under special circumstances, the measure of dili- gence required to be exercised by the car- rier is extraordinary care. Central of Georgia R. Co. v. Madden, 31: 813, 69 S. E. 165, 135 Ga. 205. 165. A passenger on a railroad train may recover damages for inconvenience and in- jury suffered by failure of the carrier to ex- ercise toward her that degree of care which is due to a passenger. Gulf, C. & S. F. R. Co. v. Overton, 19: 500, 110 S. W. 736, 101 Tex. 583. 166. A railroad company owes to a pas- senger, approaching a train which he in- tends to board, the duty of exercising only reasonable care for his protection. Pere Marquette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. 167. A street railway company is not an insurer of its passengers, nor bound to do everything that can be done to insure their safety, but it fulfils its obligations in that regard when it exercises the utmost skill, diligence, and foresight consistent with the practical conduct of the business in which it is engaged. Omaha Street R. Co. v. Boesen, 4: 122, 105 N. W. 303, 74 Neb. 764. (Annotated) 168. A street car company is not bound to exercise towards passengers the utmost care and diligence in guarding against those injuries which can be avoided by human foresight, but only the highest degree of care which is consistent with the practical carry- ing on of its business. Pitcher v. Old Colony Street R, Co. 13: 481, 81 N. E. 876, 196 Mass. 69. 169. In order to render a street railway company liable for injuries received by a person traveling upon one of its cars, the negligence of its servants, either alone or in concurrence with the negligence or wrong- ful act of other persons, must be the prox- imate cause of the injuries. Bevard v. Lincoln Traction Co. 3: 318, 105 N. W. 635, 74 Neb. 802. 170. A street car company which under- takes to give a convention of women dele- gates visiting the city a free ride over its lines by the use of its cars under the con- trol of its servants is bound to use at least ordinary care, and is liable for injuries re- sulting to them from its failure to do so. Indianapolis Traction & T. Co. v. Lawson, 5: 721, 143 Fed. 834, 74 C. C. A. 630. (Annotated) Digest 1-52 L.R.A.(N.S.) 171. An electric railway company is not answerable for injury to a passenger of un- usual size, due merely to the conductor's assent to the proposition and failure to warn him when he announces his intention to change his seat by means of the running board of a moving car, of the danger from trolley poles located so near the track that the passenger's body cannot pass between them and the car, although the passenger is not familiar with the road, if that fact is not known to the conductor. Tietz v. In- ternational R. Co. 10: 357, 78 N. E. 1083, 186 N. Y. 347. 172. A street car company may be liable for injury to a passenger encumbered with a small child, who is prevented from leav- ing the car at the terminal by a boisterous crowd surging into the car, and injured by the turning of a seat against her, where the employees, although having notice of the probability of a rush to board the car, make no attempt to protect her; and it is imma- terial that the terminal is in a public street rather than in its own station. Glen- nen v. Boston Elevated R. Co. 32: 470, 93 N. E. 700, 207 Mass. 497. (Annotated) 173. A railroad company which, for pur- poses of its own, runs a passenger train beyond a station where passengers are to alight, into its yards, is bound to inform them of its intention to return and give them an opportunity to alight at the sta- tion, and is liable for all damages proxi- mately caused to them by its failure so to do. Natchez, C. & M. R. Co. v. Lambert, 37: 264, 54 So. 836, 99 Miss. 310. 174. The rule requiring a carrier to ex- ercise the utmost care and diligence to pro- tect passengers from injury applies to render him liable for injury to a passenger by the breaking of a window pane by a mis- sile thrown in sport by the conductor of another car at the motorman in charge of the one upon which the passenger is riding. Hayne v. Union Street R. Co. 3: 605, 76 N. E. *219, 189 Mass. 551. (Annotated) 175. The conductor is not bound to stop a car between stations in a subway to per- mit a passenger to alight to recover prop- erty accidentally dropped from the car, where , to do so would involve risk of col- lision and place the passengers in peril. Bursteen v. Boston Elevated R. Co. 39: 313, 98 N. E. 27, 211 Mass. 459. (Annotated) 176. A conductor who has been instructed by the carrier to obtain statements from injured passengers acts within the scope of his authority in wrongfully detaining a passenger, to get a statement, so as to render the carrier liable for the injury re- sulting therefrom. Whitman v. Atchison, T. & S. F. R. Co. 34: 1029, 116 Pac. 234, 85 Kan. 150. 177. A carrier whose conductor induces an injured person to remain fifteen or twenty minutes to make a statement which he wrongfully informs him the law requires him to get, before being taken to a place where he can receive attention, is liable for the damages necessarily and proximate- ly resulting therefrom. Whitman v. Atchi- CARRIERS, II. g, 1. 363 son, T. & S. F. R. Co. 34: 1029, 116 Pac. 234, 85 Kan. 150. 178. The operator of a scenic railway is bound to use the highest degree of care and caution for the safety of its patrons, and do all that human care and foresight can reasonably do, consistent with the mode of conveyance and the practical operation of the railway, to prevent accidents to patrons while riding in its cars. O'Callaghan v. Dell- wood Park Co. 26: 1054, 89 -N. E. 1005, 242 111. 336. (Annotated) 179. One who goes upon a railroad car merely for the purpose of meeting and ereeting friends or relatives, or seeing strangers who are passengers on the train, with no idea or purpose of rendering assist- ance to them, is, if he acts under permis- sion from the carrier, a mere licensee, to whom the carrier owes no affirmative duty of care. Arkansas & L. R. Co. v. Sain, 22: 910, 119 S. W. 659, 90 Ark. 278. (Annotated) 180. A boy about eleven years of age who is sent by his father to deliver a package to a passenger on a train which is expected to stop at the station is rightfully on the premises of the railroad company, and en- titled to be protected at least by the exer- cise of ordinary care while engaged in de- livering the package and returning to the station platform. Atchison, T. & S. F. R. Co. v. McElroy, 13: 620, 91 Pac. 785, 76 Kan. 271. 181. A boy who goes upon the platform of a car as a trespasser cannot hold the com- pany liable for injuries due to a sudden movement of the train, merely because his presence was known to the railroad employ- ees, if, at the time they knew of his pres- ence, he was not in peril, and they did not discover his peril, which arose from the movement of the cars, in time to avoid in- jury to him. Arkansas & L. R. Co. v. Sain, 22: 910, 119 S. W. 659, 90 Ark. 278. 182. One who goes upon a railroad car to transact business of his own with a passenger is a mere trespasser, to whom the railroad company owes merely the duty not wilfully or wantonly to injure him, or negligently to do so after discovering that he is in peril. McElvane v. Central of Georgia R. Co. 34: 715, 54 So. 489, 170 Ala. 525. (Annotated) 184. A railroad company is under no duty to stop a train which is leaving a station, to enable a person who has tres- passed upon it to get off. McElvane v. Central of Georgia R. Co. 34: 715, 54 So. 489, 170 Ala. 525. Person riding in locomotive cab. 185. One riding on the engine of a train under circumstances such that his presence there could not reasonably be anticipated by the employees or officers of the road other than those in charge of the engine cannot hold the railroad company liable for injuries received through a head-on collision due to unintentional acts of those in charge of another train, although per- mitting the collision may have been neg- ligent towards passengers on the train on Digest 1-52 L.R.A.(N.S.) which he was riding, since they owed him no duty, and therefore were not negligent toward him. Garland v. Boston & M. R. Co. 46: 338, 86 Atl. 141, 76 N. H. 556. (Annotated) 186. A switching crew is not guilty of wantonness or recklessness towards a pas- senger riding in an engine cab because it leaves a car on a switch, which does not clear the main track, where it does not know of his presence in the cab; nor are those in charge of the engine guilty of such negli- gence toward him when they do not know that the car does not clear the track, so as to render the railroad company liable in case he is injured by the engine coming in contact with the car. Clark v. Colorado & N. W. R. Co. 19: 988, 165 Fed. 408, 91 C. C. A. 358. Guidance to train. 187. A railroad company is not bound to guide a passenger from the waiting room to his train, even at night, where he is a mature, normal man of experience, and the platform is in good condition, lying between the waiting room and the train, and he discloses no circumstances requiring guid- ance. Pere Marquette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. (Annotated) 188. An attempted guidance of passengers to a train by a station master, who, with a light in his hand, takes a proper place on the platform and calls to the passengers to come to him, is not rendered negligent by the fact that one of the passengers thinks that the call comes from the other side of the track, and is injured in attempting to cross it. Pere Marquette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. 189. Directions by an employee of a car- rier in charge of a car, to the passengers, as to the route to be taken in passing an ob- struction to reach another car, which is to take them to their destination, are within the apparent scope of the authority of such employee. Killmeyer v. Wheeling Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. 190. Where a passenger acted upon the direction of the employees in charge of a car as to the route to be taken in passing an obstruction to reach another car which was to take him to his destination, and in so doing, was injured without fault on his part, the railroad company is liable in dam- ages for such injury. Killmeyer v. Wheel- ing Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. 191. A carrier which, in transferring its passengers from car to car around an ob- struction, on a dark night, provides neither light nor guide, but directs the passengers into a dark path, where they grope their way over railroad tracks, piles of ore, and other obstructions, is guilty of negligence. Killmeyer v. Wheeling Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. Failure to give passenger necessary information. 192. A carrier is liable to a passenger who holds a through ticket over its road but who must make a change of trains to 364 CARRIERS, II. g, 1. reach her destination, for the failure and refusal of its employees to inform such pas- senger, upon her repeated requests for in- formation, of the place where such change is to be made, by reason of which failure the passenger is carried past her destina- tion, and is required to take passage upon another railroad and to expend an addition- al sum for fare, and is caused to suffer a loss of time and certain inconveniences. Lilly v. St. Louis & S. F. R. Co. 39: 663, 122 Pac. 502, 31 Okla. 521. (Annotated) Abandoning trip; delay. 193. In the absence of a special contract, all that a passenger can require of a carrier is that due diligence be used so that he shall not be delayed for an unreasonable time, and that, when the journey hat, been once commenced, the carrier shall exercise the same diligence in prosecuting the journey with reasonable despatch according to the mode of conveyance and the particular circumstances of each case. Central of Georgia R. Co. v. Wallace, 49: 429, 80 S. E. 282, 141 Ga. 51. (Annotated) 194. A carrier is not liable in damages for so negligently operating its train that a passenger does not reach his destination in time to be able to vote at a general elec- tion. Morris v. Colorado Midland R. Co. 31: 1106, 109 Pac. 430, 48 Colo. 147. (Annotated) 195. A carrier cannot escape liability to a passenger for laying off the train, by rea- son of which he is delayed on the road, on the theory that it is necessary to prevent working the hands more than sixteen con- secutive hours, in violation of the act of Congress, if the delay which prevented its reaching its destination within the sched- uled time and exhausted the allowable hours of labor en route was due to its own negligence. Black v. Charleston & W. C. R. Co. 31: 1184, 69 S. E. 230, 87 S. C. 241. (Annotated) Person boarding train at closed ves- tibule door. 200. A railroad company owes no duty to one who, in violation of law, attempts to board a moving train at a closed vestibule door, until his position of danger is made known to employees in charge of the train. Graham v. Chicago & N. W. R. Co. 7: 603, 107 N. W. 595, 131 Iowa, 741. (Annotated) 201. No actionable negligence on the part of a railroad company is shown by the fact that those in charge of a vestibule train, upon receiving notice that an intending pas- senger was outside of a closed door of the moving train, attempted to rescue him by going the length of the car and opening the door, rather than by operating the emer- gency brakes. Graham v. Chicago & N. W. R. Co. 7: 603, 107 N. W. 595, 131 Iowa, 741. Injury by dog. 202. A street car company is liable for in- juries inflicted upon a passenger by a dog permitted to be in a coach set apart for pas- sengers. Westcott v. Seattle, R. & S. R. Co. 4: 947, 84 Pac. 588, 41 Wash. 618. (Annotated) Digest 1-52 L.R.A.(N.S.) Fall of car window. Presumption of negligence from fall of win- dow, see EVIDENCE, 357, 358. 203. The mere fall, shortly after the car has begun to move, of a car window, not shown to have been opened by railroad employees, to the injury of a passenger, is not, in the absence of any evidence of de- fect in the window sash or fastening de- vice, evidence of negligence on the part of the carrier, sufficient to charge it with lia- bility for the injury. Boucher v. Boston & M. R. Co. 34: 728, 79 Atl. 993, 76 N. H. 91. Fall of baggage from rack. See also infra, 252. 204. That hand baggage placed by its passengers in overhead racks provided for it by the railroad company is not under the immediate control of the carrier does not relieve it from liability for injury caused by the fall of the baggage by operat- ing the train in such a way as to render the use of the racks in the manner in which they were intended to be used unsafe. Ros- enthal v. New York, N. H. & H. R. Co. 51: 775, 89 Atl. 888, 88 Conn. 65. 205. If the overhead racks provided by a railroad company for baggage are so con- structed that it is not safe to place one suit case on top of another in them, which fact is not apparent to the ordinary pas- senger, the carrier, to avoid liability for injury to a passenger by the fall of a case so placed, must give warning as to the danger in such use of the rack. Rosenthal v. New York, N. H. & H. R. Co. 51: 775, 89 Atl. 888, 88 Conn. 65. Baggage in aisle. Evidence of custom af passengers to place baggage upon floor, see EVIDENCE, 1535. 206. A railroad company may be liable for injury to a passenger who, in attempting to reach a seat after entering the car at a station, falls over a valise projecting into the aisle, if the light in the car is so dim that the obstruction could not be seen. Bei- ser v. Cincinnati, N. 0. & T. P. R. Co. 43: 1050, 153 S. W. 742, 152 Ky. 522. Exposure to cold or inclement weath- er. 207. An electric railway company is not liable in damages for failure to place pas- sengers in a place where they will be pro- tected from the cold when its car becomes stalled by a snowstorm. Prospert v. Rhode Island Suburban R. Co. n: 1142, 67 Atl. 522, 28 R. I. 367. (Annotated) 208. A railroad company is liable for in- juries caused by exposure to inclement weather to one whose passage to a station to take a train is obstructed for an unrea- sonable time by standing cars. Louisville & N. R. Co. v. Daugherty, 15: 740, 108 S. W. 336, 32 Ky. L. Rep. 1392. (Annotated) 209. A snowstorm and wind which so drifts the snow over the switches in a rail- road yard that they cannot be operated from the tower, and cannot be dug out by the available men, so that the use of the yard has to be abandoned to such an ex- tent that an incoming train cannot ap- CARRIERS, II. g, 1. 365 proach nearer to the station than 600 feet therefrom, is an act of God which will relieve the carrier from liability for detain- ing passengers at that point, although they are thereby compelled to remain in the cold over night. Cormack v. New York, N. H. & H. R. Co. 24: 1209, 90 N. E. 56, 196 N. Y. 442. (Annotated) Collision. Question for jury as to whether collision caused injury, see TEIAL, 174. Direction of verdict in action for injuries caused by collision, see TRIAL, 768. 210. A common carrier, being the owner of its track, is liable to its passenger for an injury received in a collision between its car and the car of another carrying com- pany which it admits to the joint use of its track, though the collision may result whol- ly from the negligence of the latter com- pany. Maumee Valley R. & L. Co. v. Mont- gomery, 26: 987, 91 N. E. 181, 81 Ohio St. 426. (Annotated) 211. With respect to a passenger on the car, a motorman cannot assume, as matter of law, that one driving near the track ahead of the car will, without warning, maintain his course, and not attempt to drive across the track. Strong v. Burling- ton Traction Co. 12: 197, 66 Atl. 786, 80 Vt. 34. 212. A motorman in charge of a street car is not negligent to a passenger, as matter of law, merely because he fjyls to sound his gong to warn of the approach of the car, one driving on the highway, who turns his horse across the path of the car causing a collision and the injury of the passenger. Strong v. Burlington Traction Co. 12: 197, 66 Atl. 786, 80 Vt. 34. ( Annotated ) 213. An electric railway company cannot relieve itself from liability for injury to a passenger through collision between its cars, merely by showing that the collision was caused by an obstruction of the track caused by an agency over which it had no control, without showing further that it could not, by the exercise of the highest degree of care and diligence consistent with the practical operation of the road, have discovered and removed the obstruction in time to avoid the accident. Walters v. Seattle, R. & S. R. Co. 24: 788, 93 Pac. 419, 48 Wash. 233. Boulder rolling clown mountain. 215. A railroad company is not liable for injury to a passenger by a boulder rolling down a mountain side, if ft is not shown to have come from the company's right of way, and no negligence is shown on the part of the company. Northern P. R. Co. v. Le Deau, 34: 725, 115 Pac. 502, 19 Idaho, 711. 216. A railroad company will not be held liable for an injury inflicted on a passen- ger by reason of a stone rolling down the mountain side and striking the passenger, unless it is shown that the company had either actual notice of the danger, or that the place or immediate locality from which Digest 1-52 L.R.A.(N.S.) the rock fell was so obviously dangerous as to impute notice of the danger to the railroad company, and charge v it with neg- ligence in failing to take reasonable pre- cautions to prevent an injury from such cause. Northern P. R. Co. v. Le Deau, 34: 725, 115 Pac. 502, 19 Idaho, 711. Fright of passenger. 217. A railroad company is not liable for injury to a pregnant woman from sight of a lunatic in the car who was acting strange- ly, where its employees had no knowledge of her condition, and there was nothing in the conduct of the lunatic to apprise a person of ordinary prudence that danger to other passengers was to be anticipated. Louisville & N. R. Co. v. Brewer, 39: 647, 143 S. W. 1014, 147 Ky. 166. (Annotated) 218. A carrier which, in wrongfully eject- ing a passenger from the train, knocks or throws him against his daughter to her in- jury, is liable for the injury and fright which may result to her therefrom. Chesa- peake & 0. R. Co. v. Robinett, 45: 433, 152 S. W. 976, 151 Ky. 778. 219. A carrier is not liable for fright of a passenger by wrongfully assaulting her father, and ejecting him. from the train, in her presence, and leaving her to pursue her journey alone, Chesapeake & 0. R. Co. v. Robinett, 45: 433, 152 S. W. 976, 151 Ky. 778. (Annotated) Leaving car windows open. 220. A railroad company does not break its contract to carry a passenger in a first- class car by permitting windows to be open in the car in which she is carried. Louis- ville & N. R. Co. v. Fisher, u: 926, 155 Fed. 68, 83 C. C. A. 584. (Annotated) Quarantine. 221. When a railroad company is fully ad- vised of a quarantine which will make the uninterrupted journey of a passenger im- possible, and undertakes through its con- ductor to inform him on the subject of quar- antine, it will be liable for the consequences of failing to inform him of the one which will interfere with his journey. Hasseltine v. Southern R. Co. 6: 1009, 55 S. E. 142, 75 S. C. 141. (Annotated) Derailment. Presumption of negligence from fact of de- railment, see EVIDENCE, 344-348. See also infra, 248, 275. 222. That a passenger goes upon the car platform preparatory to alighting, as the car slackens speed when approaching his station, does not prevent holding the car- rier liable for his death by the derailment of the train, if he is found not to have been negligent in so doing, notwithstanding notices forbidding passengers to ride on car platforms or to leave their seats while the train is in motion were posted in the cars, and a statute provides that in case any passenger is injured on a platform in violation of the printed regulations, the carrier is not liable for the injuries. Pruitt v. San Pedro, L. A. & S. L. R. Co. 36:331, 118 Pac. 223, 161 Cal. 29. 366 CARRIERS, II. g, 1. Injury to one passenger in ejecting another. See also supra, 218, 219. 223. A passenger cannot recover damages for injury inflicted upon her by the push- ing against her by the train hands of her father, in an attempt to eject him from the train, using no more force than was necessary, if, because of his intoxication, refusal to surrender his ticket, and abuse, he rendered himself subject to ejection, and his resistance thereto caused the impact with the person injured. Chesapeake & 0. R. Co. v. Robinett, 45: 433, 152 S. W. 976, 151 Ky. 778. 224. A street car company is liable for injury to a passenger who is dragged from his seat and thrown from the car in an attempt to eject an intoxicated passenger from the car, if its employees engaged in ejecting the passenger do not exercise rea- sonable care to avoid injury to other passen- gers by their undertaking. Thayer v. Old Colony Street R. Co. 44: 1125, 101 N. E. 368, 214 Mass. 234. (Annotated) Communication of disease. 225. A carrier cannot be held liable for in- jury to a passenger from a contagious dis- ease contracted on the train from another passenger, unless the conductor knew that the latter was afflicted with a contagious disease, and failed promptly to exercise ordinary care to prevent contagion to oth- er passengers, such as the circumstances would admit of in view of its duty to the afflicted passenger and others on the train. Bogard v. Illinois C. R..Co. 36: 337, 139 S. W. 855, 144 Ky. 649. (Annotated) Injury by stranger. Assault by stranger on passenger, see su- pra, 131. Question for jury as to whether act of stranger was proximate cause of in- jury, see TRIAL, 188. 226. The wrongful act of a stranger is not sufficient to make a carrier liable, unless it might reasonably have been foreseen and guarded against by it. Bevard v. Lincoln Traction Co. 3: 318, 105 N. W. 635, 74 Neb. 802. (Annotated) 227. That the motorman of a street car sees a person with something in his hand near the track at a place where the car is not required to stop for passengers, making violent motions toward the car, does not charge him with notice that his failure to stop the car will result in the throwing of a missile at himself which may strike and injure a passenger, and charge him with the duty of protecting the passenger, so as to render the company liable for injury to the passenger by his neglect so to do. Woas v. St. Louis Transit Co. 7: 231, 96 S. W. 1017, 198 Mo. 664. (Annotated) Injury by other passenger. Assault by other passenger, see supra 127 131. Proximate cause of injury, see PKOXIMATE CAUSE, 87. Correctness of instruction in action for in- jury, see TBIAL, 1053. See also supra, 217 ; infra, 311. Digest 1-52 L.R.A. (%) i n Digest L.R.A. 1-10.) Negligence as to, as question for jury, see TRIAL, 385. See also supra, 171, 222. 271. A street railway company does not perform its duty to its passengers with re- spect to the safety of a culvert crossed by its tracks in a village street, by relying upon the town and its officers to perform their duty with respect to the safety of culverts, and H may therefore be liable for injury to a passenger through the washing out of the culvert, if it failed to take pre- cautions to keep it clear of obstructions. Sawin v. Connecticut Valley Street R. Co. 43: 72, 99 N. E. 952, 213 Mass. 103. ( Annotated ) 272. A street railway company is negli- gent in maintaining the tracks used by cars running in opposite directions so close to- gether that the natural sway of the cars in motion, emphasized by an uneven condition of the track which it permits to exist, brings passing cars within 3 to 6 inches of each other, without taking any precautions to prevent injury to passengers who, because of the crowded condition of the cars, may project some portion of the body beyond the sides of the cars. La Barge v. Union Elec- tric Co. 19: 213, 116 N. W. 816, 138 Iowa, 691. 273. It is gross negligence for a street car company to run open cars past each other on tracks which leave only 3 inches between the cars, with a running rail placed where passengers would naturally rest their arms on the side next the passing car. Georgetown & T. R. Co. v. Smith, 5: 274, 25 App. D. C. 259. 274. An ordinance requiring motorman in charge of street cars to keep a vigilant watch for persons on or near the tracks does not absolve them from the duty to see that there is no obstacle on the track which may cause an injury to passengers. O'Gara v. St. Louis Transit Co. 12: 840, 103 S. W. 54, 204 Mo. 724. 275. A street car company cannot es- cape liability for the injury of a passenger through derailment of a car because the car was derailed by a brick placed on the track by a stranger, if, by the exercise of the high degree of care and diligence which such corpora-tions must exercise towards their passengers, the motorman could have seen the brick in time to avoid running up- on it. O'Gara v. St. Louis Transit Co. 12: 840, 103 S. W. 54, 204 Mo. 724. and approaches is liable for injuries to per- Digest 1-52 L.R.A.(N.S-) 24 (Annotated) 370 CARRIERS, II. g, 1. 276. A street car company is negligent in maintaining a trolley pole so close to the track that a passenger who happens to be on the running board when the car passes the pole may be injured by it. Cameron v. Lewiston, B. & B. Street R. Co. 18: 497, 70 Atl. 534, 103 Me. 482. Open switch. 276a. The leaving open of a switch leading to a side track at a time when a passenger train may be expected momentarily, with- out ascertaining the location of the train, is gross negligence, where the statute de- fines such negligence to be the want of Blight care and diligence. Walther v. Southern Pacific Co. 37: 235. H6 Pac. 51 > 159 Cal. 769. Bridges. Burden of proof in case of injury to pas- senger, see EVIDENCE, 349. Setting aside verdict for passenger injured by fall of carrier's bridge, see I^EW TRIAL, 29. 277. A carrier is not liable for injury to a passenger through the fall of a bridge caused by the breaking of an imperfect weld in a cord, which could not have been detected by the utmost scrutiny, where the bridge was constructed by a thoroughly reputable, com- petent, and reliable builder. Roanoke R. & El. Co. v. Sterrett, 19: 316, 62 S. E. 385, 108 Va. 533. c. As to vehicle, or place of riding gen- erally. (See also Carriers, II. a, 4> a (S) in Digest L.R.A. 1-10.) Fall of car window, see supra, 203. As to overcrowding cars, see supra, 244. Failure to heat car, see supra, 257-259. Contributory negligence, see infra, 328, 330, 332, 336-339, 364-381. Aggravation of damages, see infra, 725. Measure of damages for injury, see DAM- AGES, 424. Sufficiency of proof of negligence, see EVI- DENCE, 2145. Instruction as to burden of proof in case of injury to passenger, see TRIAL, 1051. See also supra, 185, 186, 203; infra, 499. 278. Carriers operating mixed trains for carrying passengers are under practically the same duty in regard to the safety of their cars as where they carry the passen- gers upon passenger trains. Morgan v. Ches- apeake & O. R. Co. 15: 790, 105 S. W. 961, 127 Ky. 433. 279. A railroad company is answerable to its passengers in the same degree for the safe condition of the cars of other compa- nies used in its trains, as for its own, not- withstanding it is required by law to take cars of connecting carriers and haul them on equal terms with its own. Morgan v. Chesapeake & 0. R. Co. 15: 790, 105 S. W. 961, 127 Ky. 433. 280. A railroad company is liable for in- jury to a passenger caused by the breaking of an axle by reason of a sand hole if the Digest 1-52 L.R.A.(N.S.) defect could have been discovered by the builder of the car by the exercise of the utmost human skill and foresight. Morgan v. Chesapeake & O. R. Co. 15: 790, 105 S. S. W. 961, 127 Ky. 433. (Annotated) 281. The exercise of reasonable care with respect to the condition of its decks as to their slipperiness is the measure of duty which a steamship company owes a pas- senger, and the court cannot be required to instruct the jury that it must exercise the greatest care. Pratt v. North German Lloyd S. S. Co. 33: 532, 184 Fed. 303, 106 C. C. A. 445. (Annotated) 282. A street railway company is not re- lieved from the responsibility of using due care for the safety of passengers invited upon a crowded car by the fact that such passengers assume the inconveniences re- sulting from the crowded condition. Lob- ner v. Metropolitan Street R. Co. 21 : 972, 101 Pac. 463, 79 Kan. 811. 283. A street car company is not negligent in using open cars with wheel guards pro- jecting into the running boards along the* sides so as to be liable for injuries to a passenger whose foot strikes and slips from the guarding when he is attempting to alight from the car, thereby throwing him from the car and injuring him, if cars of this type are in common use, and it is not shown to be feasible to dispense with guards or use safer ones. Adduci v. Boston Ele- vated R. Co. 45: 969, 102 N. E. 315, 215 Mass. 336. Passenger rightfully riding on plat- form. See also supra, 244, 246, 247, 276. 284. A carrier which negligently and un- reasonably fails to provide sufficient cars, so that passengers are compelled to ride on the platform, and then accepts passengers for carriage in such hazardous place, is, in the absence of contributory negligence, liable in damages for injuries to one who, while so riding, fell therefrom. Norvell v. Kanawha & M. R. Co. 29: 325, 68 S. E. 288, 67 W. Va. 467. 285. The carrier owes to a passenger in- voluntarily, necessarily, and rightfully riding on the platform the high degree of care commensurate with the circumstances and its act in undertaking to carry him there. Norvell v. Kanawha & M. R. Co. 29: 325, 68 S. E. 288, 67 W. Va. 467. 286. A carrier is not liable to one injured by falling from the platform of its car upon which he was excusably riding, where it used reasonable diligence to provide cars for his safe carriage, and with fair excuse for failing to provide them, exercised the increased care demanded by the passenger's enforced position on the platform. Norvell v. Kanawha & M. R. Co. 29:325, 68 S. E. 288, 67 W. Va. 467. 287. A street car company which by ordi- nance is bound to maintain gates upon the sides of car platforms next to parallel tracks is liable for injury to a passenger crowded off the platform and injured by a passing car, although the gate was opened by a fellow passenger. Elliott v. Seattle, CARRIBRS, II. g, 1. 371 R. & S. R. Co. 39: 608, 122 Pac. 614, 68 Wash. 129. 288. Where a passenger is permitted to stand on the front platform of a motor car, he has the right to assume that if there is any danger to him, requiring the closing of the gates of the platform, that they will be closed, and the same duty of closing these gates, when it is necessary for the protection of a passenger, rests upon an interurban railroad as upon a strictly city railroad. McMahon v. New Orleans R. & L. Co. 32: 346, 53 So. 857, 127 La. 544. (Annotated) Platforms of vestibuled cars. Negligence as question for jury, see TRIAL, 379. 289. Although a sleeping-car company is not required to have its cars vestibuled, yet, where it has done so, and has led passengers to believe that the doors of the vestibule will be kept closed between stations, it is liable for an injury due to negligently leav- ing the doors open. Crandall v. Minneap- olis, St. P. & S. Ste. M. R. Co. 2: 645, 105 N. W. 185, 96 Minn. 434. (Annotated) 290. A railroad company is not negligent in leaving the platform of the rear vestibule of a train standing at a station open, with- out light in the vestibule, so as to be liable for injury to a passenger who goes there merely because the car is hot and uncom- fortable, and falls down the uncovered steps. Clanton v. Southern R. Co. 27: 253, 51 So^ 616, 165 Ala. 485. (Annotated) 291. Notice to a railroad company of a custom of passengers to use the rear plat- form of a vestibuled train as an observation platform is not of itself sufficient to impose the duty of keeping the platform down over the steps while the train is standing at a station. Clanton v. Southern R. Co. 27: 253, 51 So. 616, 165 Ala. 485. Freight trains. Contributory negligence, see infra, 337, 338, 548. Presumption of negligence from injury to passenger, see EVIDENCE, 361. Evidence to show diligence by carrier, see EVIDENCE, 1787. Theory on which case may be given to jury, see TRIAL, 140. See also supra, 242; infra, 911-914, 981. 292. A passenger upon a freight train as- sumes the extra inconvenience and danger necessarily attending that mode of convey- ance. St. Louis & S. F. R. Co. v. Gosnell, 22: 892, 101 Pac. 1126, 23 Okla. 588. 293. A railroad company which carries passengers for hire on its freight trains must exercise the same degree of care in the operation thereof as is required in the op- eration of its regular passenger trains. St. Louis & S. F. R. Co. v. Gosnell, 22: 892, 101 Pac. 1126, 23 Okla. 588. 294. A common carrier of passengers on a freight or mixed train is required to ex- ercise the highest degree of care consist- ent with the practical operation of such a train. Campbell v. Duluth & N. E. R. Co. 22: 190, 120 N. W. 375, 107 Minn. 358. 295. The mere fact that a conductor saw a Digest 1-52 L.R.A.(N.S.) passenger on top of the caboose while the train was standing at a station does not tend to show that he consented to his riding there after the train started, especially where he had informed passengers that they were not allowed to ride in the caboose. McLean v. Atlantic C. L. R. Co 18: 763, 61 S. E. 900, 1071, 81 S. C. 100. 296. The use of a four-wheeled caboose in a freight train is not such wilful miscon- duct towards a passenger for whose use a regular passenger car is provided as to ren- der the railroad company liable for his death by the derailment of the caboose, up- on which he has taken his place, notwith- standing the conductor has instructed pas- sengers not to ride in the caboose. McLean v. Atlantic C. L. R. Co. 18: 763, 61 S. E. 900, 1071, 81 S. C. 100. Ice, snew, or filth on floors, steps, or car platforms. Negligence as question for jury, see TKIAL, 384. See also infra, 375. 299. The mere fact that the steps and platform of a car are slippery with ice will not render a railroad company liable for the death of a passenger who went upon the platform when the train approached, but before it reached, his station, and fell from the car, where there is nothing to show what was the cause of the fall. Louis- ville, H. & St. L. R. Co. v. Gregory, 35: 317, 133 S. W. 805, 141 Ky. 747, 136 S. W. 154, 143 Ky. 300. 300. A carrier of passengers for hire is legally responsible for injuries happening to a passenger for such an accumulation of ice upon its car steps as to cause a pas- senger, using ordinary care, to slip and fall, if sufficient previous opportunity has been had to remove the source of danger, although it may have charged servants with the duty of keeping the steps in a safe condition, and the accident is due to the neglect of duty of the servants. Murphy v. North Jersey Street R. Co. (N. J. Err. & App.) 35: 592, 80 Atl. 331, 80 N. J. L. 706. (Annotated) 301. A street car company is not liable for injuries to a passenger who slips upon snow and ice accumulated during a storm upon a step after the car has started upon a trip. Riley v. Rhode Island Co. 15: 523, 69 Atl. 338, 29 R. I. 143. (Annotated) Defective brake. 302. A street car company is not liable for injury to a passenger who falls from the step of a car which is slippery because of tobacco juice which has been expecto- rated there, if there is nothing to show that it had been there any length of time, and the conductor is not shown to have been negligent in failing to discover it before the accident happened. Hotenbrink v. Bos- ton Elevated R. Co. 39: 419, 97 N. E. 624, 211 Mass. 77. (Annotated) Defective brake. 303. The mere accidental breaking of the air hose on a railroad train, which brings the train to a stop on a trestle between stations, will not render the company liable 372 CARRIERS,- II. g, 2. for the death of a passenger who went on- to the platform and fell from the car, al- though the statute requires the train to be equipped with air brakes, which shall at all times be kept in good condition. Louisville, H. & St. L. R. Co. v. Gregory, 35: 317, 133 S. W. 805, 141 Ky. 747, 136 S. W. 154, 143 Ky. 300. 304. That the motorman made no efforts to have a defective brake remedied after discovering its condition, although lie passed the car barn several times thereaft- er, is negligence upon which a passenger injured by the failure of the brake to work may rely, in an action against the company for his injury. Enos v. Rhode Island Sub- urban R. Co. 12: 244, 67 Atl. 5, 28 R. I. 291. 2. Contributory negligence of passen- ger; assumption of risk. a. In general. (See a Isd* Carriers, II. a, 4> b (1) * Digest L.R.A. 1-70.) Negligence in failing to discover mistake in ticket, see infra, 437, 439, 440. Contributory negligence of disabled or in- competent passenger, see infra, II. j, 2. In getting on or off train, see infra, II. k, 2. On approaches and platforms, see infra, II. 1, 1, b. As to baggage, see infra, 680, 681. Of passenger injured by automobile when alighting from car, see AUTOMOBILES, 65, 66. Presumption and burden of proof, see EVI- DENCE, 475-477. Admissibility of evidence as to custom of passengers to change cars while train is moving, see EVIDENCE, 1538. Relevancy of evidence as to, see EVIDENCE, 1795. Question for jury as to, see TRIAL, II. c, 8, b (2). See also supra, 292. S05. A carrier of passengers is bound to exercise the utmost practicable care and dili- gence to secure the safety of the passenger, but a duty of reasonable care for his own safety as well rests upon the passenger him- self. Interurban R. & Terminal Co. v. Han- cock, 6: 997, 78 N. E. 964, 75 Ohio St. 88. 306. One bearing the relation of passen- ger to a railroad company is not relieved of the duty of exercising ordinary care for his own safety. Wright v. Atlantic Coast Line R. Co. 25: 972, 66 S. E. 848, 110 Va. 670. 307. The care which a passenger on a rail- road train must exercise for his own safety is not the same as the carrier must exercise in providing safe appliances, but ordinary care is sufficient. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 308. The duty of a woman whose way to a carrier's depot is obstructed by trains for an unreasonable time, to use ordinary care to obtain shelter from the weather, docs not require her to seek refuge in a place of bad Digest 1-52 L.R.A.(N.S-) character. Louisville & N. R. Co. v. Daugh- erty, 15: 740, 108 S. W. 336, 32 Ky. L. Rep. 1392. 309. A passenger is not negligent in at-N tempting to board a train on the side next to the station, although the carrier has made provisions to receive its passengers on the platform on the other side, where he follows the regular practice of the travel- ing public, and no notice has been given him of the exception which the carrier has attempted to make in the particular case. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 310. One attempting to signal a train ap- proaching a flag station is negligent in re- maining on the track in front of an ap- proaching engine until it is too late to avoid being hit by it. Wright v. Atlantic Coast Line R. Co. 25: 972, 66 S. E. 848, 110 Va. 670. 311. A passenger is guilty of contribu- tory negligence which will prevent his holding the carrier liable for injury from a stray bullet fired by another passenger, if the danger of such injury could have been apprehended by him, and he did not turn out of his way or make any effort to avoid it, although the conductor who knew of the danger failed to give him warn- ing. Penny v. Atlantic C. L. R. Co.. 32: 1209, 69 S. E. 238, 153 N. C. 296. ( Annotated ) 312. A street car company is not liable for injury to a passenger standing in the door of a crowded car, because the tone in which the conductor tells her to make way for passengers seeking to leave the car, is such that she becomes frightened and falls from the car. McCumber v. Boston Elevated R. Co. 32: 475, 93 N. E. 698, 207 Mass. 559. 313. The act of crossing from one car platform to another on a moving train is not per se negligence, in the absence of a rule or notice warning the passengers from such act. Auld v. Southern R. Co. 37: 518, 71 S. E. 426, 136 Ga. 266. 314. It is not necessarily negligence per se for a passenger to rest his hand on the door jamb while attempting to leave a car, so as to prevent his holding the carrier lia- ble in case the door slams shut, catching and crushing his fingers. Christensen v. Ore- gon S. L. R. Co. 20: 255, 99 Pac. 676, 35 Utah, 137. 315. A passenger is not exercising due are in standing near an open door without supporting himself by his hands while the car is passing over a cross-over switch of which he knows, and which is necessary be- cause of repairs in progress on the track. Foley v. Boston & M. R. Co. 7: 1076, 79 N. E. 765, 193 Mass. 332. 316. It is not negligence per * for a street car passenger to leave hia seat as the car approached his stop and stands at the door with a firm hold thereon awaiting the stop, although he knows that the car is moving at high speed with unusual sway- ing and must pass over a switch before reaching the stopping place. Young v. CARRIERS, II. g. 2. 373 Eoston & X. Street R. Co. 50: 450, 100 N. E. 541, 213 Mass. 267. (Annotated) 317. A passenger is not, in the absence of a warning not to do so, negligent per se in standing in a car as it moves out of the station, although there may be an unoc- cupied seat in the car, so as to prevent his holding the carrier liable in case he is in- jured by a violent impact of the two sec- tions of the train after it has broken in two. Louisiana & N. W. R. Co. v. Willis, 50: 441, 158 S. W. 114, 108 Ark. 477. (Annotated) 338. A passenger on an open street car cannot be said, as matter of law, to be neg- ligent if, when compelled to stand because of the crowded condition of the car, he leans -against a side post, and in the act of laugh- ing throws his head back a few inches be- jond the post, so that it comes in contact with a car passing in the opposite direc- tion. La Barge v. Union Electric Co. 19: 213, 116 N. W. 816, 138 Iowa, 691. 319. Danger of being hit by a passing car is riot such a peril as a passenger on a street car is bound to anticipate. Georgetown & T. R. Co. v. Smith, 5: 274, 25 App. D. C. 259. 320. That one injured on a street car had been in the habit of passing over the road does not charge him with knowledge that at the point of the accident particular cars come within 3 inches of each other in pass- ing. Georgetown & T. R. Co. v. Smith, 5: 274, 25 App. D. C. 259. 321. One who takes passage on a street car so crowded that he is compelled to stand in the door assumes the risk of being pushed off the car, to his injury, by pas- sengers attempting to force a passage out of it. McCumber v. Boston Elevated R. Co. 32: 475, 93 N. E. 698, 207 Mass. 559. (Annotated) Reliance on employees for guidance. 322. A passenger may, without being chargeable with negligence, act upon the direction of the employees in charge of a car as to the route to be taken in passing an obstruction to reach another car, which is to take him to his destination, unless it is apparent that to do so will imperil his safety. Kilhneyer v. Wheeling Traction Co. 48: 683, 77 S. E. 908, 72 W. Va. 148. 323. A passenger in a Pullman car may rely on the porter for assistance and guid- ance as to his conduct, as the representative of the railroad company. Gannon v. Chi- cago, R. I. & P. R. Co. 23: 1061, 117' N. W. 966, 141 Iowa, 37. Caretaker of stock. See also infra, 341, 380, 381. 324. A traveler on a stock pass does not assume the risk of the wrecking of the train through the negligent operation of the air brakes. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. 325. One who is accompanying live stock in shipment, and has occasion to walk at night between his train a.nd a depot, cannot be said, as a matter of law, to be guilty of negligence if, in attempting to walk in the safe space between two tracks, he in- advertently gets close to one of them, so Digest 1-52 L.R.A.(N.S.) that he is struck by an approaching train. Losey v. Atchison, T. & S. F. R. Co. 33: 414, 114 Pac. 198, 84 Kan. 224. 326. Failure of a shipper of stock, walk- ing between the train and station in a rail- road yard, to carry a lantern, as required by his contract, will not prevent holding the carrier liable for killing him by a train running backward, without sufficient watch or signal. Losey v. Atchison, T. & S. F. R. Co. 33: 414, 114 Pac. 198, 84 Kan. 224. 327. A cattle shipper using free transpor- tation to accompany his stock, who agrees to remain in a safe place in the caboose attached to the train while it is in motion, to get on and off the caboose only while the train is stationary, and not to get on or be on any freight car at any time, must regu- late his conduct at stopping places by his contract, and at such places is obliged to ascertain and know whether he has time to examine his stock and return to his place in the caboose before the train proceeds on its journey before attempt-ing to do so. Les- lie v. Atchison, T. & S. F. R. Co. 27: 646, 107 Pac. 765, 82 Kan. 152. 328. The jury may find that one trans- ported by a railroad company to attend stock en route was justified in using the hasp designed to fasten the door to assist himself in entering the car, where his du- ties required him to leave the car when it was not at a platform, and the distance from the ground was such that some means of assistance was necessary, while none oth- er was provided, it appearing that similar hasps had been used by him and railroad employees on other occasions for a similar purpose. Blatcher v. Philadelphia, B. & W. R. Co. 16: 991, 31 App. D. C. 385. Passenger on logging train. 329. One permitted to ride on a logging train is not negligent per se in riding on a logging truck; nor does he assume the risk of injury by collision with another train. Harvey v. Deep River Logging Co. 12: 131, 90 Pac. 501, 49 Or. 583. 330. Where one is warned that the po- sition which he has taken upon a logging train is a very dangerous and insecure one, and he is thrown off by the sudden jolting of the train in coming to an emergency stop, and killed, the owner of the train will not be held responsible. Johnson v. Louisiana R. & Nav. Co. 36: 887, 56 So. 301, 129 La. 332. Projection from window. Question for jury as to, see Trial, 386. 331. A passenger traveling on a rapidly moving car, who intentionally and needless- ly projects his arm, or a part of it, between horizontal bars guarding the lower part of the car window, so that his arm is struck and fractured by a car passing upon an adjoining track, is guilty of contributory negligence, and cannot recover for the in- jury sustained. Interurban R. & Terminal Co. v. Hancock, 6: 997, 78 N. E. 964, 75 Ohio St. 88. 332. The mere fact that an open window- in a railroad car falls soon after the car 374 CARRIERS, II. g, 2. starts is not sufficient to charge a passenger with knowledge that the catch is defective so as to charge him with negligence in pro- truding his arm through the window after raising it until the catch is latched. Cleve- land, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 333. A passenger is not guilty of contribu- tory negligence, as matter of law, in raising a window in a rapidly moving car, and pro- truding his arm through it so that it is injured by the fall of the window. Cleve- land, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 334. To extend the hand beyond the guard rail of an open car to flick the ashes from a cigar, with knowledge that there are trees near the track, without looking to see if the car is in proximity to one, is negligence as matter of law which will pre- clude holding the carrier liable for injury resulting therefrom. Malakia v. Rhode Is- land Co. 50: 42, 89 Atl. 337, 36 R. I. 149. (Annotated) Falling over fender. 335. A street car company is not liable for injury to a former passenger who, after alighting from the car, is injured by falling over the rear fender, which has become loose from the fastenings intended to keep it up while the car is running in the opposite di- rection, and has fallen into the position which it should occupy if it were in front of the car, where the company does not know that it is down, and the passenger might discover that fact by proper atten- tion, although the accident occurs after dark. Powers v. Connecticut Co. 26: 405, 74 Atl. 931, 82 Conn. 665. (Annotated) Riding on top of car. Proximate cause of injury, see PROXIMATE CAUSE, 91. Question for jury as to, see TRIAL, 398. 336. No recovery can be had for the death of one thrown by a jerk from the top of a car, on which he was riding in pref- erence to riding with the crowd within, in the absence of anything to show that the jerk was so violent as to show want of proper care in the operation of the train. Patterson v. Louisville & N. R, Co. 30: 425, 128 S. W. 1068, 138 Ky. 648. ( Annotated ) 337. The mere suggestion of a brakeman that a passenger on a freight train ride on top of the caboose does not relieve him from the charge of gross negligence in attempt- ing to do so. McLean v. Atlantic C. L. R. Co. 18: 763, 61 S. E. 900, 1071, 81 S. C. 100. 338. It is negligence for a passenger to ride on top of a caboose on a freight train in the absence of any emergency rendering it necessary. McLean v. Atlantic C. L. R. Co. 18: 763, 61 S. E. 900, 1071, 81 S. C. 100. Riding in cab of locomotive. 339. One who, without paying fare, volun- tarily attempts to ride in the cab of a loco- motive at the invitation of those in charge of the train, assumes the known hazards in- cident to such exposed position, and cannot hold the railroad company liable for inju- ries caused by the collision of the cab with Digest 1-52 L.R.A.(N.S.) a car negligently left on a side track so as not to clear the main track, where the neg- ligence was not wanton, and no injury oc- curred to anyone else on the train. Clark v. Colorado & N. W. R. Co. 19: 988, 165 Fed. 408, 91 C. C. A. 358. Crossing track. Proximate cause of injury, see PBOXIMATE CAUSE, 74. After alighting from street car, see STREET RAILWAYS, 72, 94. Negligence as question for jury, see TRIAL, 394-396. 340. One who, after leaving a railroad car, for his own convenience voluntarily leaves the walk provided by the company for access to the street, and steps upon the railroad track, in full view of an approaching train, without taking the slightest precaution for his own safety, cannot hold the company liable for injuries caused by a collision with the train. Legge v. New York, N. H. & H. R. Co. 23: 633, 83 N. E. 367, 197 Mass. 88. 341. One accompanying stock as a pas- senger on a freight train, in passing between the train and a depot, must look and listen when about to cross an intervening track, his obligation in that respect being greater than that of persons passing between a de- p'ot and a passenger train that has stopped to receive and discharge passengers. Atchi- son, T. & S. F. R. Co. v. Coon, 27: 1013, 108 Pac. 85, 82 Kan. 311. 342. If a street railway company owes an especial duty to a passenger who has just alighted from its car, that duty does not diminish the obligation of the passenger to take reasonable care to prevent injury by a car approaching from the other direction, on an adjoining track. Eagen v. Jersey City, H. & P. Street R. Co. (N. J. Err. & App.) i?:: *os8, 67 Atl. 24, 74 N. J. L. 699. 343. One who alights from a trolley car in which he has been a passenger, and, pass- ing behind it, proceeds to cross the adjoin- ing track without looking for cars approach- ing thereon, except from a point where his view is obstructed by the car from which he has alighted, is chargeable with negli- gence contributing to the injury received, when struck by a car which is not running at excessive speed. Eagen v. Jersey City, H. & P. Street R. Co. (N. J. Err. & App.) ii : 1058, 67 Atl. 24, 74 N. J. L. 699. 344. A passenger who, after alighting from an electric car onto a platform pro- vided by the carrier, attempts to pass be- hind the car along a path, also provided by the carrier, which leads through a fence be- tween the tracks and connects with the street, and steps upon the other track in front, of, and is injured by, a car coming from the opposite direction, which can be plainly seen for 250 feet, will be held either not to have looked for the car, or to have taken the risk of passing in front of it; and therefore he cannot hold the carrier liable for the injury. Yevsack v. Lacka- wanna & W. V. R. Co. 18: 519, 70 Atl. 837, 221 Pa. 493. 345. One who has assumed the relation of a passenger to the carrier, and crosses the CARRIERS, II. g. 2. 375 track upon the implied invitation of th carrier for the purpose of boarding a car, i not necessarily guilty of contributory neg ligence in failing to look and listen for an approaching car. Karr v. Milwaukee Heat Light, & Traction Co. 13: 283, 113 N. W 62, 132 Wis. 662. 346. A passenger who is required to cross the track on which his train is approachin^ in order to board it, may ordinarily ref on the invitation of the station agent tc cross at a particular time, as an assurane that it may be done in safety. Dieckmani v. Chicago & N. W. R, Co. 31: 338, 121 N W. 676, 145 Iowa, 250. 347. The fact that a passenger who is re quired to cross in the night to board a train, the track by which it is approach ing, undertakes io do so after the train is announced and in sight, is not negligence per se, at least where he follows or accom- panies across the track the agent who made the announcement. Dieckmann v. Chicago & N. W. R. Co. 31: 338, 121 N. W. 676, 145 Iowa, 250. 348. It is not negligence per se for a pas- senger who is required to cross a track of a railroad company to reach his train on an other track, to fail to stop, look, and listen for trains on that track, when his attempt to cross is made at the very time that the train he is to take is scheduled to stop at the station. Illinois C. R. Co. v. Daniels, 27: 128, 50 So. 721, 96 Miss. 314. (Annotated) 349. A passenger at a railroad station for the purpose of boarding a train is not bound, as matter of law, to look and listen for approaching trains before crossing in- tervening tracks. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 350. The ordinary rule of "look and listen" is not applicable to passengers and other persons rightfully about a train which has stopped at a station, on a side track so situated that other tracks are between it and the depot platform; but they have a right to assume that they will be protected from danger by the company. Atchison, T. & S. F. R. Co. v. McElroy, 13: 620, 91 Pac. 785, 76 Kan. 271. 351. A passenger cannot hold the railroad company liable for his injury, because of its failure properly to light its platform, if, be- ing a stranger and going from the waiting room onto a safe platform, he approaches- the track, half facing the approaching train, and, with the headlight in full view, need- lessly attempts to cross the track directly in front of the engine under the erroneous impression that it had stopped. Pere Mar- quette R. Co. v. Strange, 20: 1041, 84 N. E. 819, 171 Ind. 160. After ejection. 352. A passenger negligently expelled, be- cause of failure to produce his ticket, from a train at a flag station where there is no shelter and with the surroundings of which he is not familiar, after dark on a cold and stormy night, is not per se negligent in at- cently passed, by walking along the rail- road track, rather than by seeking a high- way. Tilburg v. Northern C. R. Co. ": 359, 66 Atl. 846, 217 Pa. 618. (Annotated) When put off at wrong- place. 353. A passenger induced by the negligent act of the conductor to leave a street car at a point remote from her destination is under no legal duty to apply for shelter at house* in the vicinity of the place where she alights, rather than to attempt to reach her desti- nation on foot, over a highway which is in a reasonably safe condition for travel by pedestrians. Georgia R. & E. Co. v. Mc- Allister, 7: 1177, 54 S. E. 957, 126 Ga. 447. b. Riding on platform, steps, or foot- board. (See also Carriers, II. a, 4, b (2) in Digest L.R.A. 1-10.) Rule as to standing- on platform, see supra, 51, 52. Duty to person rightfully on platform, see supra, 244-246, 247, 256, 276, 284-288. Compelling passenger to ride on platform, see supra, 266, 267. Sufficiency of evidence to show that con- ductor of street car directed passenger to front platform, see EVIDENCE, 2312. As proximate cause of injury, see PROXI- MATE CAUSE, 92. As question for jury, see TRIAL, 390, 397, 400-402. 354. One voluntarily and unnecessarily riding on the platform of a rapidly moving railroad car is guilty of contributory negli- gence barring recovery for injury caused by falling therefrom while so riding. Norvell v. Kanawha & M. R. Co. 29: 325, 68 S. E. 288, 67 W. Va. 467. 355. A passenger on a mixed train is negligent, as matter of law, in riding upon the platform when there is plenty of room in the car, merely because the weather is warm and he prefers to ride there. Wagner v. Atlantic Coast Line R. Co. 19: 1028, 61 S. E. 171, 147 N. C. 315. 356. The fact that the rules of a railroad :ompany provide that passengers may stand on the platform only when there are no seats in the car will not preclude a pas- senger from obtaining damages for the icgligence of the car crew, because there were seats in the car, where the passenger was riding on the platform with the sane- ion of the employees of the railroad com- )any. McMahon v. New Orleans R. & L. Jo. 32: 346, 53 So. 857, 127 La. 544. 357. The front platform of a street car is not so imminently dangerous as to render he act of a passenger in occupying it at he direction of the conductor negligence yer se. Mittleman v. Philadelphia R. T. Co. 8: 503, 70 Atl. 828, 221 Pa. 485. 358. A workman who, in attempting to ward a street car when encumbered with ools and materials to be used in his work tempting to reach shelter at a station re- which may be objectionable to other pas- Digest 1-52 L.R.A.(N.S-) 376 CARRIERS, II. g, 2. sengers and obstruct the ingress and egress to and from the car, is told by the con- ductor to occupy the front platform, is not negligent per se in obeying the order. Mit- tleman v. Philadelphia R. T. Co. 18: 503, 70 Atl. 828, 221 Pa. 485. 359. One who undertakes to ride on the running board of a street car. outside of the lower bar, is negligent per se, and cannot recover for injuries incident to his position, whether he could have gotten a safer posi- tion or not. Harding v. Philadelphia Rapid Transit Co. 10: 352, 66 Atl. 151, 217 Pa. W). ( Annotated ) 360. A passenger injured by collision with a trolley pole while riding on the running board of a street car cannot hold the car- rier liable for the injury if he knew of the danger and could have avoided it by the ex- ercise of reasonable care. Burns v. Johns- town Pass. R. Co. 2: 1191, 62 Atl. 564, 213 Pa. 143. (Annotated) 361. Freedom from contributory negli- gence cannot be declared as matter of law where a passenger injured by a train going into a washout voluntarily rode on the plat- form of the fast-moving train when there was room inside the car, in the nighttime, in the midst of or soon after a severe rain storm, and no one inside the car was in- jured. Miller v. Chicago, St. P. M. & 0. R. Co. 17: rs8, 115 N. W. 794, 135 Wis. 247. (Annotated) 362. A fireman riding free on a street car, who, contrary to known rules of the company requiring him to ride on the rear platform, and forbidding persons to ride on the running boards of cars which are next to the parallel track, takes his position on such running board, is a mere licensee, and cannot hold the company liable for in- juries negligently inflicted upon him while there; and it is immaterial that the con- ductor assented to his remaining there, since he had no authority to waive the rules of the company. Twiss v. Boston Elevated R. Co. 32: 728, 94 N. E. 253, 208 Mass. 108. 363. A custom on the part of a street rail- way company to permit passengers to ride in the vestibules of cars is immaterial on the question of due care of a passenger in refusing to obey a direction of the con- ductor to go inside the car, in accordance with a rule of the company, since, upon no- tice of intention to enforce the ,rule, the custom ceases to operate. Liversidge v. Berkshire Street R. Co. 36: 993, 96 N. E. 665, 210 Mass. 234. Of crowded car. Presumption and burden of proof as to, see EVIDENCE, 476. As question for jury, see TBIAL, 400, 401. 364. It is not negligence to ride on a railroad car platform when the train is so crowded that one cannot reasonably enter the car, and the carrier acquiesces in the use of such accommodation by collecting fare or some other indicative act. Norvell v. Kanawha & M. R. Co. 29: 325, 68 S. E. 288, 67 W. Va. 467. (Annotated) 365. The mere riding on the platform of a Digest 1-52 L.R.A.(N.S.) crowded street car, on the invitation of the railway company, does not constitute con- tributory negligence per se. Lobner v. Met- ropolitan Street R. Co. 21:972, 101 Pac. 463, 79 Kan. 811. (Annotated) 366. A passenger does not, by boarding a car so crowded that the only available space is on the steps, assume the risk of injury from riding in that position by a negligent operation of the car. South Cov- ington & C. Street R. Co. v. Hardy, 44: 32, 153 S. VV. 474, 152 Ky. 374. 367. It is not negligence as matter of law to ride upon the platform of a street car, notwithstanding a notice that it is danger- ous to do so, and the fact that at the time there is room within the car, where the company customarily so overloads its cars that passengers must of necessity ride up- on the platforms. Capital Traction Co. v. Brown, 12: 831, 29 App. D. C. 473. (Annotated) 368. One voluntarily becoming a passenger on a street car so crowded that he is com- pelled to ride in the vestibule, with knowl- edge of a rule that persons riding on plat- forms do so at their own risk, assumes the risk of injury from being compelled tem- porarily to alight to enable other passen- gers to leave the car, including that of hav- ing the car negligently started before he resumes a safe position. Tompkins v. Bos- ton Elevated R. Co. 20: 1063, 87 N. E. 488, 201 Mass. 114. 369. One who has paid his fare and been received as a passenger on a crowded street car has not, as matter of law, a right to ride in the vestibule against the order of the conductor, until he can, with reason- able diligence, gain admission inside the car,, but he must comply with the request either to go inside or to get off the car. Liversidge v. Berkshire Street R. Co. 36: 993, 96 N. E. 665, 210 Mass. 234. ( Annotated ) 370. One who, after giving up his place in a street car to a woman, is forced to ride upon the platform, where he is injured by contact with a passing wagon, in order to hold the street car company liable for the injury, has the burden of showing that it was negligent in exposing him to known and avoidable danger, since he has forfeit- ed the advantage of the presumption that the accident happened through its negli- gence. Paterson v. Philadelphia Rapid Transit Co. 12: 839, 67 Atl. 616, 218 Pa. 359. 371. A passenger on a street car cannot be said to have voluntarily remained on the steps so as to assume the risk of injury from maintaining that position, if he could not have reached a position on the platform or in the car without pushing or shoving through passengers who have already crowded the only other available standing places. South Covington & C. Street R. Co. v. Hardy, 44: 32, 153 S. W. 474, 152 Ky. 374. 372. A recovery against a street railway company for the death of a man who was struck by the beam of a bridge while riding outside of a car having a closed vestibule, CARRIERS, II. h, 1. 377 which was not opened to allow his entrance because of its crowded condition, is not pre- cluded by the fact that before the car left the station at which the person got upon it, an employee of the company warned him of the danger of his position and tried to persuade him to get off the car, and even used physical force, without avail, where the conductor of the car was guilty of wan- 'ton negligence in running the car without stopping, or even slackening speed, past a station and onto the bridge, with knowl- edge that the man was on the steps and that he must necessarily be struck by the pillars of the bridge. Harbert v. Kansas City Elevated R. Co. 50: 850, 138 Pac. 641, 91 Kan. 605. 373. A street car company which has pro- vided 22 inches in the clear between cars running in opposite directions on its tracks holds to a passenger who voluntarily as- sumes a position upon the inside running board of a car the duty of exercising only ordinary care to prevent his injury by a passing car, although that is the only posi- tion available to him because of the crowd- ed condition of the car. Gregory v. Elmira Water, L. & R. Co. 18: 160, 83 N. E. 32, 190 N. Y. 363. (Annotated) Preparatory to alighting. Question for jury as to, see TRIAL, 402. See also supra, 104, 222. 374. A passenger who, without necessity, leaves a car having ample accommodation, as the train approaches his destination, but before it begins to slacken speed, and takes his position on the platform, cannot hold the carrier liable in case he is injured by the train coming into collision with another standing at the station, where no injury results to passengers who retain their seats inside the car. Chicago G. W. R. Co. v. v. Mohaupt, 18: 760, 162 Fed. 665, 89 C. C. A. 457. 375. A railroad company cannot be held liable for injuries to a passenger who falls from a train before it has reached his sta- tion, because it left the vestibule doors open so that sleet froze on the platform and rendered it slippery, where he left the car and stood on the platform con- trary to the directions of the conductor. Louisville, H. & St. L. R. Co. v. Gregory, 35: 317, 133 S. W. 805, 141 Ky. 747, 136 S. W. 154, 143 Ky. 300. 'While changing cars or seat. As question for jury, see TRIAL, 397. 376. A street car company is not liable for injury to a boy who, upon being harshly told by the conductor to show him his father, who the boy asserts has paid his fare, at- tempts to go to the other end of the car, along the running board, and falls off to his injury, where there is nothing to lead the conductor to anticipate such action by the boy, who might have pointed out his father without changing his position. Good- fellow v. Detroit United R. Co. 20: 1123, 119 N. W. 900, 155 Mich. 578. (Annotated) 377. A notice in a street car, "Avoid acci- dents; wait until the car stops," does not impose upon passengers the risk of attempt- Digest 1-52 L.R.A.CN.S.) ing to change seats by the use of the run- ning board while the car is in motion. Cam- eron v. Lewiston, B. & B. Street R. Co. 18: 497, 70 Atl. 534, 103 Me. 482. 378. A street-car passenger is not negli- gent per se in failing to anticipate that the carrier may maintain a trolley pole so close to the running board of the car that he cannot step upon the board to change seats while the car is in motion without danger of collision with the pole, or in making the attempt to do so, which results in a collision with the pole. Cameron v. Lewiston, B. & B. Street R. Co. 18: 497, 70 Atl. 534, 103 Me. 482. 379. A passenger on an uncrowded street car assumes the risk of injury from col- lision with objects near the track for which the carrier is not responsible, by stepping onto the running board alongside of the car, for the purpose of changing his seat, while the car is in motion. Capital Trust Co. v. Central Kentucky Traction Co. 49: 135, 160 S. W. 767, 156 Ky. 30. (Annotated) c. Riding in wrong car. (See also Carriers, II. a, 4, b (3) in Digest L.R.A. 1-10.) Question for jury as to, see TRIAL, 399. 380. Acquiescence on the part of a rail- road company for several day- in the occu- pation by a stock owner of the car with the stock is equivalent to his assignment to that place, in determining the question of his negligence in being there. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 33.5. 381. An owner of stock, who has contract- ed to protect the property from the dangers of travel, is not to be accounted a wrongdoer because he elects, without objection from the carrier, to remain in ths car with the stock. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. h. Ejection of passenger or trespasser. 1. In general. (See also Carriers, II. a, 5, a, in Digest L.R.A. 1-10.) Assault in ejecting, see supra, 147, 149. Contributory negligence of passenger after ejection^ see supra, 352. Ejection of passenger from station, see infra, 618, 619. Survival of cause of action for, see ABATE- MENT AND REVIVAL, 16. Reversible error in instructions in action for, see APPEAL AND ERROR, 1311, 1345, 1371. Damages for threat to expel passenger, see APPEAL AND ERROR, 1361 ; DAMAGES, 264, 265. Punitive damages for ejection, see APPEAL AND ERROR, 1371; DAMAGES, 83-91. Measure of damages for, generally, see DAM- AGES, III. c, 2. 378 CARRIERS, 11. h, 1. New trial for excesssive damages in action for, see APPEAL AND ERROR, 1622. Mitigation of damages for ejection, see EVIDENCE, 2009. Recovery for mental anguish Because of, see DAMAGES, 667-670. Evidence in action for, see EVIDENCE, 1363, 1429-1431, 1645, 1805, 1867, 1878, 2009. Reversible error as to evidence in action for, see APPEAL .AND ERROR, 1145. Right of action for ejection as asset which will support appointment of adminis- trator, see EXECUTORS AND ADMINIS- TRATORS, 5. Conclusiveness of judgment in action for, see JUDGMENT, 258. Pleading in action for, see PLEADING, 107, 176, 265, 266. Necessity of specially pleading defense in action for, see PLEADING, 502. Ratification of ejection by agent, see PRINCIPAL AND AGETSTT, 93. Proximate cause of sufferings of ejected passenger, see PROXIMATE CAUSE, 95. Sufficiency of evidence to go to jury, see TRIAL, 138. Question for jury in action for, see TRIAL, 175, 301, 380. Impeachment of motorman in action for, see WITNESSES, 183. See also supra, 218, 219, 223, 224; infra, 476, 382. A passenger expelled from a train in violation of the terms of his contract may hold the carrier liable for full damages, notwithstanding a clause in his ticket re- quiring him, in case of dispute, to pay his fare and present his claim lo the company. Cherry v. Chicago & A. R. Co. a: 695, 90 S. W. 381, 191 Mo. 489. 383. That a carrier has chartered a train and given the charterers the sole privilege of collecting fares and fixing their amount does not exempt it from liability for the ejection of a passenger therefrom, since the charterers in so doing are the agents of the carrier, which cannot by contract relieve it- self from liability for their wrongful a'cts. Kirkland v. Charleston & W. C. R. Co. 15: 425, 60 S. E. 668, 79 S. C. 273. (Annotated) 384. A common carrier which, by mis- take, ejects a passenger who has in no way forfeited his rights as such, is liable there- for, although its servants acted in good faith in ejecting him, such good faith be- ing available only to defeat a recovery of punitive damages. Seaboard Air Line R. Co. v. O'Quin, 2: 472, 52 S. E. 427, 124 Ga. 357. (Annotated) 385. A carrier which undertakes, through its servants, to exercise its right to eject from its cars passengers who have been guilty of disorderly conduct, acts at its peril in determining their identity. Seaboard Air Line R. Co. v. O'Quin, 2: 472, 52 S. E. 427, 124 Ga. 357. 386. A railroad company is liable for the act of a brakeman in its employ who ejects from a train a passenger who is entitled to Digest 1-52 I,.R.A.(N.S.) ride. Lindsay v. Oregon Short Line R. Co. 12: 184, 90 Pac. 984, 13 Idaho, 477. 387. A passenger wrongfully expelled from a train may recover damages al- though the employee expelling him was guilty of only ordinary negligence, and not of a wilful wrong. Lindsay v. Oregon Short Line R. Co. 12: 184, 90 Pac. 934, 13 Idaho, 477. 388. One who, in obedience to the com- mand of the captain and a police officer under his direction, leaves a boat on which he has taken passage, is ejected therefrom within the rule rendering a carrier liable for wrongful ejection of passengers. Rea- sor v. Paducah & I. Ferry Co. 43: 820, 153 S. W. 222, 152 Ky. 220. 389. One holding a street car ticket en- titling him to transportation to any one of several points at different distances along the line from the starting point, who boards a car plainly marked as going only as far as the nearest stop t which the ticket enti- tles him to ride, is not entitled to damages in case the car stops at that point and goes back, and he is ejected therefrom without undue force after being refused a transfer to another car. Mills v. Seattle, R. & S. R. Co. 19: 704, 96 Pac. 520, 50 Wash. 20. (Annotated) 390. A railroad company is liable in tort for using more force than necessary in eject- ing from its traip a person wliom it has a right to eject. Virginia & S. W. R. Co. v. Hill, 6: 899, 54 S. E. 872, 105 Va. 729. 391. A passenger whose right upon a train has terminated cannot hold the car- rier liable for injury and insult due to his wrongful refusal to leave the car at the command of the conductor, which renders forcible ejection necessary. Virginia & S. W. R. Co. v. Hill, 6: 899, 54 S. E. 872, 105 Va. 729. 392. A high degree of care should be exer- cised before a passenger ill and without money is expelled from a train at a way station, hundreds of miles from his destina- tion. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. Of trespasser. Contributory negligence of ejected tres- passer, see infra, 575. Damages for use of excessive force, see DAMAGES, 272. Question for jury as to liability for, see TRIAL, 769. See also infra, 419, 420, 444. 393. If, in ejecting a trespasser or li- censee from one of its passenger trains, the servants and employees of the company use more force than is reasonably necessary, or if, after he is ejected, they wantonly and wilfully injure him, the company is liable for such injury. Chicago, R. I. & P. R. Co. v. Evans, 51:608, 138 Pac. 804, 41 Okla. 411. 394. A street car company cannot eject a trespasser from its car while the car is in motion, so as to endanger life or limb, or wilfully or unnecessarily assault him. Mills v. Seattle, R. & S. R. Co. 19: 704, 96 Pac. 520, 50 Wash. 20. <;/.. . ' ' !. CARRIERS, II. h. 2. 379 395. A conductor is bound to exercise or- dinary care in putting a trespasser oft' a moving train, and is charged with what he knows, and what, in the exercise of ordinary care, he should know, of the danger of such proceeding. Doggett v. Chicago, B. & Q. R. Co. 13: 364, 112 N. W. 171, 134 Iowa, 90. (Annotated) 396. A railroad company is not liable for the act of its conductor in compelling a crippled trespasser to leave a moving train from which a person of ordinary capacity might have alighted in safety, unless he knew of the crippled condition; and the fact that, in the exercise of ordinary care, he might have known of it, is immaterial. Doggett v. Chicago, B. & Q. R. Co. 13: 364, 112 N. W. 171, 134 Iowa, 690. (Annotated) 397. A rule of a railroad company that "brakemen will not eject any person from a train except by special direction of the conductor and in his presence" does not, as matter of law, absolve it from liability for injury to a trespasser through his wanton ejection by a brakeman from a freight train, where there is evidence tending to show that the brakeman's act was done in the course of his employment, with a view to the furtherance of the company's business, and within the scope of his agency. Barrett v. Minneapolis, St. P. & S. Ste. M. R. Co. 18: 416, 117 N. W. 1047, 106 Minn. 51. 398. A brakeman on a freight train has no implied authority to remove trespassers therefrom, so as to charge the railroad com- pany with liability for injuries inflicted in the performance of the act. Harrington v. Boston & M. R. Co. 45: 813, 100 N. E. 606, 213 Mass. 338. (Annotated) 399. A railroad company is responsible for the tort of its brakeman in throwing from a moving passenger train, to his in- jury, a minor who was really, although not apparently, a trespasser thereon, ir- respective of any authority to the servant, either express or implied, to determine the question whether or not the injured person was a trespasser, or to expel or not to expel him. Penas v. Chicago, M. & St. P. R. Co. 30: 627, 127 N. W. 926, 112 Minn. 203. 400. A brakeman on a freight train is prima facie presumed to have authority to eject trespassers therefrom, so as to obviate the necessity of proving such authority in the first instance, in an action to hold the railroad company liable for an injury caused by a wrongful ejection by him. Golden v. Northern P. R. Co. 34: 1154, 104 Pac. 549, 39 Mont. 435. 401. A baggageman with express author- ity to notify the conductor of trespassers upon the train, and, upon request, to aid him in expelling them, may be found to be acting within the scope of his authority in expelling one without reporting him to the conductor, so as to render the railroad company liable in case he causes injury by the use of excessive and unusual violence in so doing. Daley v. Chicago & N. W. R. Co. 32: 1164, 129 N. W. 1062, 145 Wis. 249. (Annotated) Digest 1-52 I,.R.A.(N.S.) From sleeping car berth.. 402. A representation by an agent of a sleeping car company when selling accom- modation in its car, that the purchaser may have his transportation authenticated at a more remote point than that called for by it, does not constitute a guaranty that he will be carried to the remote point in case the ticket is not authenticated, so as to charge it with liability in damages in case he is ejected from the train. Calhoun v. Pullman Co. 16: 575, 159 Fed. 387, 86 C. C. A. 387. 2. Grounds for. a. In general; misbehavoir ; disease. (See also Carriers, II. a, 5, b (1) in Digest L.R.A. 1-10.) See also infra, 644. Refusal to obey rule. Necessity of specially pleading violation of rule, see PLEADING, 502. 403. A passenger may be ejected for re- fusing to obey a rule forbidding the turning of seats so as to face the rear of the car. Chesapeake & 0. R. Co. v. Spiller, 50: 394, 162 S. W. 815, 157 Ky. 222. Drunkenness. See also supra, 40, 385; infra, 469. 404. Train men have the right to remove from the train a person who has boarded it after the conductor has refused, because of his intoxicated condition, to receive him as a passenger, although he has a ticket entitling him to transportation. Chesapeake & O. R. Co. v. Selsor, 33^165, 134 S. W. 143, 142 Ky. 163. Disease. 405. One who, suffering from cancer and the effects of a recent surgical operation, so that he will need medical attention dur- ing the voyage, purchases a steamship tick- et, and enters the vessel without notifying the carrier of that fact and arranging for the necessary care, cannot complain if the carrier refuses to accept him, and puts him ashore before the vessel begins its voyage. Connors v. Cunard Steamship Co. 26: 171, 90 N. E. 601, 204 Mass. 310. Order of board of health. 406. A passenger cannot maintain an ac- tion against a railroad company on the ground that he was wrongfully expelled from its train, which he left, in obedience to the order of a quarantine or health of- ficer, before reaching his destination, al- though the conductor pointed him out to the health officer, and after knowledge of such officer's order did not interfere to pre- vent its execution. Baldwin v. Seaboard Air Line R. Co. 13: 360, 58 S. E. 35, 128 Ga. 567. (Annotated) 380 CARRIERS, II. h, 2. b. Nonpayment of fare, or defective ticket. (See also Carriers, II. a, 5, b (2) in Digest L.R.A. 1-10.) Parol evidence to show passenger's interpre- tation of contract, see EVIDENCE, 924. Right of ejected passenger to testify that he was joking when he refused to pay fare, see EVIDENCE, 1613. Pleading in action for, see PLEADING, 266. Necessity of pleading refusal to pay fare as justification for arrest, see PLEADING, 486. Sufficiency of tender by passenger of fare, see TENDER, 9. Instructions in case of, see TRIAL, 869. See also infra, 469. 407. A purchaser of a railroad ticket which on its face is good over one of two roads may hold the railroad company liable in damages in ease he is ejected from the train to which he is directed by the ticket agent, if he himself was ignorant as to which train followed the route called for by the ticket, although the conductor did nothing wrongful in ejecting him because his ticket was not good on the train taken. Mace v. Southern R. Co. 24: 1178, 66 S. E. 342, 151 N. C. 404. (Annotated) 408. The conductor of a train must, be- fore expelling a passenger holding a ticket which he thinks was issued in violation of the rules of the road, heed the reason- able explanation of the passenger as to how he obtained possession of the ticket. Smith v. Southern R. Co. 34: 708, 70 S. E. 1057, 88 S. C. 421. 409. Where a passenger presents to the conductor a ticket issued by authority of the railroad company, claiming a right to ride thereon, the language of which ticket is ambiguous and of doubtful import, it should be construed most strongly against the carrier and in favor of the purchaser. Ann Arbor R. Co. v. Amos, 43: 587, 97 N. E. 978, 85 Ohio St. 300. 410. Although a railroad conductor has power to expel from the cars persons who refuse to pay fare, if he expels one who is entitled to the rights of a passenger the company is liable to such person in dam- ages, even though such expulsion is done through an error of judgment on the part of the conductor in charge. Cincinnati Northern Traction Co. v. Rosnagle, 35: 1030, 95 N. E. 884, 84 Ohio St. 310. 411. A passenger who is expelled from the car upon his tender of a good but bat- tered coin in payment of fare may recover damages from the company, although the conductor acted in good faith in the be- lief that the coin was not good. Cincin- nati Northern Traction Co. v. Rosnagle, 35: 1030, 95 N. E. 884, 84 Ohio St. 310. (Annotated) 412. A street-car passenger who attempts to make a transfer to another car at a point other than that stated in the transfer check, and who, upon refusal of the conductor to Digest 1-52 L.R.A.(N.S.) accept the check because of that fact, refuses to pay his fare, forfeits his right to remain upon the car, even though he is then past the transfer point upon the route covered by the transfer, and may lawfully be eject- ed therefrom. Shortsleeves v. Capital Trac- tion Co. 8: 287, 28 App. D. C. 365. 413. A street car company may refuse to honor a transfer tendered by a passenger who boarded the car 200 yards from the point fixed by its rules for transfer, and eject the holder upon his refusal to pay a cash fare upon demand. Taylor v. Spar- tanburg Railway, G. & E. Co. 52: 908, 82 S. E. 404, 98 S. C. 206. (Annotated) 414. An electric railway company is not guilty of wilful disregard of duty to a pas- senger, which will render it liable to him in damages, in enforcing a rule of which he had no notice, that it would not change $5 bills tendered in payment of 5-cent fares, and compelling him to leave the car because of nonpayment of fare. Funderburg v. Au- gusta & A. R. Co. 21 : 868, 61 S. E. 1075, 81 S. C. 141. 415. A conductor has the right to eject a passenger from a car when the station to which his ticket reads is passed, and he re- fuses to pay additional fare, notwithstand- ing his contract called for a ticket to a more distant point, and the ticket held by him was issued by mistake. Virginia & S. W. R. Co. v. Hill, 6: 899, 54 S. E. 872, 105 Va. 729. 416. A street car passenger who insists upon remaining on a car which turns back before his destination is reached, without paying the return fare, may be ejected as a trespasser, although he was not warned, when boarding the car, that it would not go to the point to which his contract en- titled him to be carried. Wright v. Orange & P. V. R. Co. (N. J. Err. & App.) 23: 571, 73 Atl. 517, 77 N. J. L. 774. (Annotated) 417. A passenger on a street car who is entitled to transfer on payment of fare cannot make the simultaneous issuance of the transfer a condition of paying the fare, and in case he attempts to do so, and re- fuses to pay his fare without receiving his transfer, he may be ejected from the car, although experience has shown that, if the transfer is not issued when the fare is paid, but after the conductor has finished collect- ing all fares in the car, he will reach his transfer point before receiving the transfer. Louisville R. Co. v. Hutti, 33: 867, 133 S. W. 200, 141 Ky. 511. 418. A passenger who accepts from a car- rier's agent a ticket for interstate pas- sage at a through rate which, under the rules of the Commission, does not allow stop-over privileges, cannot hold the carrier liable in damages for his expulsion from the train in case he attempts to exercise such privileges, although the marks neces- sary to show the limited character of the ticket are not placed upon it. Melody v. Great Northern R. Co. 30: 568, 127 N. W. 543, 25 S. D. 606. 419. A carrier is liable in damages for the use of excessive force by trainmen in eject- CARRIERS, II. h, 2. 381 ing from the car one who has become a trespasser by the refusal to pay, or make a proper tender of, his fare. Louisville & N. R. Co. v. Cottengim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. 420. A person who enters a passenger train at a station, without ticket or money to pay fare, for the purpose of collecting an account from a passenger on such train, and remains on the train after it leaves such station, is not a passenger, and the company, through its servants and em- ployees, may eject him from the train at a proper place for failure to produce a ticket or to pay fare, or on account of boisterous conduct, and the company is not liable for injury resulting to such passen- ger when only such force is used as is rea- sonably necessary to eject him under the circumstances. Chicago, R. I. & P. R. Co. v. Evans, 51: 608, 138 Pac. 804, 41 Okla. 411. Refusal to pay fare of child. 420a. Where a person purchases a ticket over three connecting lines of railroad, and an agent of the intermediate line, in ex- changing the ticket, carelessly and negli- gently makes an error, and, without the knowledge of the passenger, marks the des- tination of such passenger on the ticket, given in exchange, at a station on tne last of the connecting roads some miles short of the true destination, such last connecting carrier, whose conductor, when the passen- ger insists on riding to her destination, wires the general passenger agent for in- structions and is instructed to collect the fare, is liable for ejecting such passenger, who then offers to pay her fare, which is refused because of her refusal to pay full fare for a child with her for whom she holds a ticket similar to her own except that the true destination is marked in the contract part thereof. Ann Arbor R. Co. v. Amos, 43: 587, 97 N. E. 978, 85 Ohio St. 300. Mistake in transfer slip. Sufficiency of pleading in action for, sec PLEADING, 176. 421. Tort may be maintained against a street car company for the negligence of its conductor in preparing a transfer so that it could not be used on the connecting car, which resulted in the ejection there- from of the holder. Montgomery Traction Co. v. Fitzpatrick, 9: 851, 43 So. 136, 149 Ala. 511. (Annotated) 422. A street-car passenger who is given an invalid transfer check upon paying his fare and asking for a transfer, to which he is entitled, cannot, upon refusal by the con- ductor of the connecting car to honor it, re- fuse to pay his fare, thereby rendering nec- essary forcible ejection, and hold the carrier liable for the assault; but his remedy is confined to damages for the breach of con- tract, including reasonable compensation for the indignity put upon him through the fault of the company. Little Rock R. & E. Co. v. Goerner, 7: 97, 95 S. W. 1007, 80 Ark. 158. (Annotated) Expired ticket. See also infra, 636. Digest 1-52 L.R.A.(N.S.) 423. The owner of a twenty-trip railroad ticket, who without the knowledge of the company, has broken the agreement under which it was issued by letting others ride on it, cannot recover damages for being put off a train on the wrongful ground that the ticket has expired. Baltimore & 0. S. W. R. Co. v. Evans, 14: 368, 82 N. E. 773, 169 Ind. 410. (Annotated) 424. The expulsion from a railway train of a passenger who refuses to pay to the con- ductor any fare other than the tender of a limited ticket that on its face has expired is not actionable, although the passenger, who has paid for such ticket the full rate for which the railway company should have giv- en him an unlimited ticket, communi- cates this fact to the conductor. Shelton v. Erie R. Co. (N. J. Err. & App.) 9: 727, 66 Atl. 403, 73 N. J. L. 558. 425. A carrier is not liable in tort for ex- pelling from its train a passenger who pre- sents for passage, after the day of its issu- ance, a ticket limited because of reduced fare, to such date, although the agent who sells it assures him that it is good, when he is about to board the train. Pennington v. Illinois C. R. Co. 37: 983, 97 N. E. 289, 252 111. 584. Refusal to pay second fare; ticket wrongfully taken up. See also infra, 438. 426. A passenger whose ticket has been taken up by the conductor is not bound to borrow money to avoid ejection from the train when fare is demanded from him a second time. Light v. Detroit & M. R. Co. 34: 282, 130 N. W. 1124, 165 Mich. 433. (Annotated) 427. A passenger need not have known ot a rule of a street car company requiring conductors to collect fare from every pas- senger before boarding the car, to warrant its enforcement against him, in case, after paying fare on the motor car, he passes into the trailer, where, before his ejection from the latter, he is given the option to return to the former. Birmingham, R. L. & P. Co. v. McDonough, 13: 445, 44 So. 960, 153 Ala. 122. Defective ticket. See also supra, 418, 420a; infra, 446, 636. 428. Where a mistake is made by an in- termediate carrier in exchanging tickets good over connecting lines, for* a woman passenger and her son, and an erroneous destination marked in the coupons and con- tract part of one ticket and the correct dstination marked in the contract part of the other, and such passenger exhibits both tickets to the conductor, who wires to the general passenger agent for instructions, the question becomes one between the car- rier itself and the passenger, and it is liable for ejecting such passenger. Ann Arbor R. Co. v. Amos, 43: 587, 97 N. E. 978, 85 Ohio St. 300. 429. A passenger who applies for trans- portation on a freight train has a right to rely on the evidence furnished him as his right thereto, and may recover damages from the carrier if he is ejected from the ,382 CARRIERS, II. h, 2. train because of a mistake in such evidence, without fault or negligence on his part. Olson v. Northern P.*R. Co. 18: 209, 96 Pac. 150, 49 Wash. 626. 430. One holding a return trip railroad ticket which must be validated at the in- termediate terminal to be good for return, who applies to the proper officer for valida- tion, and is referred to another official in another city, who refuses to validate the ticket because of alleged want of authority, informing the ticket holder that the ticket will not be honored, is not deprived of the right to hold the railroad company liable for his ejection from the train by present- ing a local ticket to pass the gate keeper, who refuses to pass him on his invalidated ticket; and it is immaterial that the gate- keeper's refusal to honor the ticket was a breach of the carriage contract giving a right of action. Atchison, T. & S. F. R. Co. v. Lucas, 39: 512, 144 S. W. 1126, 105 Tex. 82. 431. A carrier, by issuing and honoring for the going passenger a round-trip ticket without requiring the purchaser to sign it, as required by a provision printed on the face thereof, waives such requirement so as to render wrongful the ejection of the passenger from the company's train for refusal to pay hia return fare, after refusal of the company's servant to accept the un- used portion of the tendered unsigned ticket. Chicago, R. I. & P. R. Co. v. New- burn, 30: 432, 110 Pac. 1065, 27 Okla. 9. ( Annotated ) 432. Improper mutilations put upon a railroad ticket by an agent of the carrier without the consent of the rightful owner constitutes no defense to the carrier for refusing to honor it. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 433. Superfluous limitation marks upon a railroad ticket do not justify its confisca- tion by the train agent if they indicate no limitation time which had expired between the date of its issuance and the time of ita confiscation. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 434. The holder of a ferry ticket which bears upon its face the marks of having been canceled, but which the holder claims was not used, cannot maintain an action in damages against the proprietor of the ferry for wrongful ejection, where the ticket col- lector, acting according to his orders, re- fuses to accept the ticket and ejects the holder from the ferry. Wilson v. West Jersey & S. S. R. Co. (N. J. Err. & App.) 43: 1148, 85 Atl. 347, 83 N. J. L. 755. 435. When doubt arises as to a special touring railroad ticket, the conductor must listen to and accept any reasonable explana- tion offered by the holder, or take the chances of rendering the company liable for his illegal expulsion from the train. Illinois C. R. Co. v. Gortikov, 14: 464, 45 So. 363, 90 Miss. 787. 436. A carrier is not justified in ejecting from its train a passenger traveling on a Digest 1-52 L.R.A.(N.S.) limited return ticket, who was properly de- scribed by the agent who issued it, and who satisfactorily identified himself to the agent at the intermediate terminal, because the ticket is inadvertently punched as having been issued to a female. Illinois C. R. Co. v. Gortikov, 14: 464, 45 So. 363. 90 Miss. 787. 437. Mere failure of an intending passen- ger to read his contract before entering the train is not conclusive evidence of negli- gence on his part in failing to discover a mistake of the carrier's agent in issuing it. Olson v. Northern P. R. Co. 18: 209, 96 Pac. 150, 49 Wash. 626. 438. A railroad company is liable for put- ting a passenger off the train because he tenders for a return trip the wrong part of the round-trip ticket, where on the out- going trip he gave the whole ticket to the conductor, who negligently kept the wrong part. Louisville & N. R. Co. v. Fi&h, 43: 584, 127 S. W. 519, Ky. . 439. A passenger is not negligent in fail- ing to observe that the conductor to whom he delivers a round-trip ticket retains the wrong coupon, so that the part returned to him does not entitle him to make the re- turn trip. Louisville & N. R. Co. v. Fish, 43: 584, 127 S. W. 519, Ky. . (Annotated) 440. A passenger who has purchased a summer tourist ticket which calls for an exchange by an intermediate carrier is not guilty of negligence in failing to examine the ticket, after the exchange, to determine whether or not it is correct. Ann Arbor R. Co. v. Amos, 43: 587, 97 N. E. 978, 85 Ohio St. 300. Effect of subsequent offer to pay. 441. Tender of fare on behalf of a pas- senger on a street car is not good after an attempt has been begun to eject him from the car. Kirk v. Seattle Electric Go. 31: 991, 108 Pac. 604, 58 Wash. 283. (Annotated) 442. That the ejection of a passenger from a train for refusal to pay fare is a-t a regular station does not entitle him to re- enter the train and become a passenger upon tender of the full fare from the point where he first entered the train to destina- tion. Phillips v. Atlantic C. L. R. Co. 38: 1151, 73 S. E. 75, 9t) S. C. 187. 443. A statute requiring railroad com- panies to stop trains at regular stations long enough to receive and let off passen- gers does not entitle a passenger ejected at a station for nonpayment of fare to re- enter the car upon making a tender of the fare due. Phillips v. Atlantic C. L. R. Co. 38: 1151, 73 S. E. 75, 90 S. C. 187. 444. One who has become a trespasser upon a train by his persistent refusal to pay his fare unless the conductor would first give him the change representing the differ- ence between an amount tendered and the correct fare cannot, in the absence of an ac- tual new tender, restore his rights as a pas- senger by a mere spoken offer to pay fare while the trainmen are ejecting him. Louis- (.2.'" CARRIERS, II. h, 3, i. 383 villa & N. R. Co. v. Cottengim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. Tender of fare by stranger. 445. One who repudiates a stranger's offer to pay his fare to avoid his ejection from a street car cannot take advantage of the tender to put the company in the wrong, in action to hold it liable in dam- ages for ejecting him. Kirk v. Seattle Electric Co. 31: 991, 108 Pac. 604, 58 Wash. 283 3. At what place. (See also Carriers, II. a, 5, c, in Digest L.R.A. 1-70.) See also supra, 392. 446. A railroad company is not liable for ejecting from its train a woman whose ticket was not good on its road, and who refused to pay fare, about a mile from the station at which she embarked in a city in the night, where she made no request to be put off at any other place, except to be returned to the embarking point, if the place of ejection is as convenient to her as any place along the line, unless she should be returned to the embarking point or car- ried to destination. McKinley v. Louisville & N. R. Co. 28: 611, 127 S. W. 483, 137 Ky. 845. (Annotated) 447. One who, before purchasing a tick- et, is told by the agent that a specified train stops at a given place and is given a time-table showing that such train Is sched- uled to stop, has, by the contract, a right to have the train stop a,t such place, and his ejection at the last preceding station is wrongful. McDonald v. Central R. Co. (N. J. Err. & App.) 2: 505, 62 Atl. 405, 72 N. J. L. 280. (Annotated) i. Leaving at destination; stop-over. (See also Carriers, II. a, 6, in Digest L.R.A.. 1-10.) Nature of action for failure to put passen- ger off at proper station, see ACTION OK SUIT, 73. Nominal damages for carrying passenger beyond station, see DAMAGES, 7. Punitive damages for failure to stop at sta- tion, see DAMAGES, 92-97; TRIAL, 108. Measure of damages for discharge at wrong stopping place, see DAMAGES, 254, 266. Measure of damages for carrying passenger beyond destination, see DAMAGES, 266; TRIAL, 660. Carrying passenger beyond station as proxi- mate cause of illness, see PROXIMATE CAUSE, 83. Power of court to reduce amount of general verdict, see TRIAL, 1165. See also supra, 447; infra, 570, 571. 448. In the running of trains, it is the duty of a carrier of passengers to discharge passengers aboard the train at the regular- ly appointed place or station, and for a Digest 1-52 L.R.A.(N.S.) failure or neglect to do so, it is liable to the party aggrieved for all damages sus- tained. Ft. Smith & VV. R. Co. v. Ford, 41: 745, 126 Pac. 745, 34 Okla. 575. Flag station. Punitive damages for refusal to stop train at flag station, see DAMAGES, 96. See also supra, 30. 449. Where the point of destination of a passenger on a railroad train is a flag station, to which the carrier sold hirn a ticket, and his presence on the train ia known to the conductor, the carrier is charged by law with the duty of stopping the train at such station and affording a reasonable opportunity to the passenger to get off; and a failure to perform such duty is not only a breach of contract, but a tort, for which an action is maintainable. Ft. Smith & W. R. Co. v. Ford, 41 : 745, 126 Pac. 745, 34 Okla. 575. 450. The mere purchase of a ticket for a flag station is not notice to the railroad company that a particular train _ must be stopped there. Rock Island, A. & L. R. Co. v. Stevens, 16: 1132, 105 S. W. 1032, 84 Ark. 436. 451. A passenger desiring to leave the train at a flag station, where the train stops only on notice, must notify some em- ployee of the train of such desire, and, in case the train is crowded, so that it becomes evident that the employee will not reach him in the regular discharge of his duties before the station is reached, he must seek him. Rock Island, A. & L. R. Co. v. Stevens, 16: 1132, 105 S. W. 1032, 84 Ark. 436. (Annotated) 452. A railroad company selling a ticket for a particular train to a flag station is bound to take notice of the passenger's de- sire to stop there, and is liable for carrying him past, although the conductor has not time to reach him before the train reaches the station, in the absence of a rule known to the passenger requiring him to notify the conductor of hrs intended destination. Louisville & N. R. Co. v. Fuqua, 52: 668, 65 So. 396, Ala. . (Annotated ) Duty to notify sleeping passengers of arrival at destination. Punitive damages for failure to notify pas- senger of arrival at destination, see DAMAGES., 73. 453. It is the duty of a sleeping car com- pany, although it is not a common carrier, to notify a passenger of her arrival at her destination. Pullman Co. v. Lutz, 14: 907, 45 So. 675, 154 Ala. 517. (Annotated) 454. A railroad company is liable for the act of a porter of a Pullman car in putting off a passenger at the wrong station, where it relies upon him to notify sleeping pas- sengers of the approach of the train to their stations. Campbell v. Seaboard A. L. R. Co. 23: 1056, 65 S. E. 628, 83 S. C. 448. (Annotated) Passenger on street car. Presumption and burden of proof, see EVI- DENCE, 368, 369. Proximate cause of injury, see PROXIMATE CAUSE, 93. 384 CARRIERS, II. j. 1. 455. The alighting, by a passenger, from a street car which has run past the original stopping place, cannot be said to be volun- tary, where he did not know that fact when he alighted, although, after he was on the ground, the conductor offered to carry him on to the next stop, which would have been as convenient for his purpose as was the stopping place passed. Melton v. Birnmig- ham R. L. & P. Co. 16: 467, 45 So. 151, 153 Ala. 95. 456. It is negligence for a street car com- pany, after a passenger has signaled to be put off at a certain crossing on a dark night, to run past the stopping place and put the passenger off at a place where the roadbed is ballasted with slag, and is very rough. Melton v. Birmingham R. L. & P. Co. 16: 467, 45 So. 151, 153 Ala. 95. (Annotated) 457. A street-car company which carries a passenger beyond his announced destina- tion, in a strange place, on a dark night, and refuses to carry him back, but compels him to leave the car, takes the risk of his injury in attempting to follow the direc- tions of the conductor to walk back along the track, which course will take him past obstructions from which injury may result to him. Kentucky & I. Bridge & R. Co. v. Buckler, 8: 555, 100 S. W. 328, 125 Ky. 24. Stop over. Injunction against actions Tinder statute as to, see INJUNCTION, 251. 458. The penalty provided by a statute for refusal by a railroad company to fur- nish persons desiring passage on its cars tickets with stop-over privilege cannot be enforced by persons who do not desire to become passengers with such privilege, but who wish to receive a refusal of the privi- lege for the purpose of enforcing the pen- alty. Southern P. Co. v. Robinson, 12: 497, 64 Pac. 572, 132 Cal. 408. (Annotated) 458a. One who purchases a continuous trip ticket is not entitled to stop over, and is subject to forfeiture of his ticket in case he attempts it, although it is ex- changed for a conductor's check which states that it must be used to destination before midnight on the date punched, which is interpreted by conductors and station agent to mean that he may stop over if he uses the ticket within the time limited, and he acts upon their advice. Sanden v. Northern P. R. Co. 34: 711, 115 Pac. 408, 43 Mont. 209. (Annotated) j. Disabled or incompetent passengers. i. Duty or negligence of carrier. a. In general. (See also Carriers, II. a, 7, a (1) in Digest L.R.A. 1-70.) Proximate cause of injury to, see PROXI- MATE CAUSE, 94. See also supra, 392, 396. Digest 1-52 L.R.A.(N.S.) Blind passenger. 459. A railroad company which accepts a blind person without an attendant as a pas- senger must use, at least, reasonable care and diligence for his safety. Denver & R. G. R. Co. v. Berry, 27: 761, 108 Pac. 172, 47 Colo. 584. 460. The porter of a railroad company who, upon being asked by a blind passenger for assistance into the car, places him upon the step, is negligent in permitting him to advance without further attention on his part, and turn in the wrong direction at the top of the steps, so that he walks off of the car instead of into it. Denver & R. G. R. Co. v. Berry, 27: 761, 108 Pac. 172, 47 Colo. 584. 460a. While generally it is no part of the duty of the employees of a railway com- pany in charge of a passenger train physic- ally to assist passengers to alight there- from, the duty of rendering assistance may arise from special circumstances, such as blindness of an unattended passenger, which is known to the conductor. Georgia R. & Bkg. Co. v. Rives, 38: 564, 73 S. E. 645, 187 Ga. 376. (Annotated) 460b. A railroad company is liable for in- jury to a blind passenger whom the con- ductor refuses to assist from the train, where, under the conductor's directions and the guidance of a stranger, he attempts to pass through the side door of the baggage car to an adjoining platform, and because of the slippery condition of the platform and the open space between it and the car door, he falls into the space to his injury. Georgia R. & Bkg. Co. v. Rives, 38: 564, 73 S. E. 645, 137 Ga. 376. Sick passenger. Ejection of sick passenger, see supra, 392, 405. Recovery for mental anguish of passenger caused by carrier's negligence toward other person, see DAMAGES, 663. Evidence to show knowledge of physical condition of passenger, see EVIDENCE, 1583. Negligence of carrier as question for jury, see TRIAL, 378. Instructions in action for failure in duty to, see TRIAL, 905, 1052. See also infra, 517. 461. If a passenger on a railway train becomes ill in transit, and this is known to the servants of the carrier in charge of such train, or is so apparent that they are charged with knowledge of it, it is their duty to give him such care and protection beyond that demanded under ordinary cir- cumstances as is reasonably practicable with the facilities at hand, and consistent with the safe and proper conduct of the business and the safety and comfort of the other passengers. Central of Georgia R. Co. v. Madden, 31: 813, 69 S. E. 165, 135 Ga. 205. (Annotated) 462. A carrier which accepts an unat- tended invalid as a passenger, and attempts to render her assistance in boarding the train, is liable for injuries inflicted on her by its negligence in so doing. Williams v. CARRIERS, II. J, 1 k, 1. 385 Louisville & N. R. Co. 10: 413, 43 So. 57G, 150 Ala. 324. Intoxicated passenger. Proximate cause of injury, see PROXIMATE CAUSE, 89. See also supra, 236. 463. Mere knowledge on the part of those in charge of a passenger train that a pas- senger has been drinking, and is to some extent intoxicated, does not require them to use greater care for his safety than they owe to other passengers, where he is apparently able to care for himself; and therefore the railroad company cannot be held liable for his death because, when the train unexpectedly stopped on a trestle, and passengers coming to the exit under the belief that the train had reached the station were warned that it had not done so, they left him standing on the plat- form, from which he fell to his death. Louisville, H. & St. L. R. Co. v. Gregory, 35: 317, 133 S. W. 805, 141 Ky. 747, 136 S. W. 154, 143 Ky. 300. 464. Trainmen who attempt to assist an intoxicated passenger from the train are bound to use ordinary care to leave him where he will be reasonably safe in view of his condition. Black v. New York, N. H. & H. R. Co. 7: 148, 79 N. E. 797, 193 Mass. 448. 465. A railroad company is not liable for the death of a passenger who, although under the influence of liquor, was not so intoxicated that it would have been justi- fied in refusing to accept him as a passen- ger, merely because, after placing him in a place of safety at a junction where a change of cars was necessary, it failed to main- tain a guard over him, so that he wandered onto the track and was killed by the in- coming train. Thixton v. Illinois C. R. Co. 8: 298, 96 S. W. 548, 29 Ky. L. Rep. 910. (Annotated) 466. A railroad company is not negligent in failing to back an excursion train from which an intoxicated passenger has fallen, to pick him up, where his absence is not dis- covered until the train has proceeded several miles and the attempt to go back would be dangerous to the passengers on board. Yazoo & M. V. R. Co. v. Smith, 49: 917, 64 So. 158, Miss. . 467. No liability attaches to a railroad company for turning an intoxicated tres- passer out of its station on an extremely cold night, if its agent offered him shelter which, with an understanding of the offer, he declined. Adams v. Chicago G. W. R. Co. 42: 373, 135 N. W. 21, 156 Iowa, 31. (Annotated) 468. A railroad company which compels a trespasser whom it knows to be intox- icated to such an extent that he cannot care for himself, to leave its depot building on an extremely cold night, without thought as to where he will find shelter, fails to exercise ordinary prudence, and will be liable for injury inflicted upon him by the cold. Adams v. Chicago G. W. R. Co. 42: 373, 135 N. W. 21, 156 Iowa, 31. 469. A railroad company cannot, in the absence of wilfulness or wantonness, be Digest 1-52 I*R.A.(N.S.) 25 heAd liable for ejecting from its train at a station a passenger intoxicated, but not helpless, who refuses to pay fare, where the statute expressly authorizes it to do so. 'Adams v. Chicago G. W. R. Co. 42: 373, 135 N. W. 21, 156 Iowa, 31. b. Duty to receive. (See also Carriers, II. a, 7, a (2) in Digest L. R. A. 1-10.) See also supra, 46. 470. A common carrier is bound to accept as a passenger one who is ill, provided it can furnish the necessary accommoda- tions, and the passenger is willing to pay for what he demands. Connors v. Cunard Steamship Co. 26: 171, 90 N. E. 601, 204 Mass. 310. (Annotated) 471. An ocean passenger carrier has a right to refuse to receive as an ordinary pas- senger a person in need of medical attention during the voyage. Connors v. Cunard Steamship Co. 26: 171, 90 N. E. 601, 204 Mass. 310. 472. Neither a statute requiring passen- ger vessels to carry a duly qualified medical practitioner, nor the presence of such per- son on the vessel, changes the carrier's right to refuse to receive as an ordinary passenger a person in need of medical attention during the voyage. Connors v. Cunard Steamship Co. 26: 171, 90 N. E. 601, 204 Mass. 310. 473. The conductor of a passenger train may refuse to receive as a passenger a per- son so far intoxicated as to affect his con- duct. Chesapeake & O. R. Co. v. Selsor, 33: 165, 134 S. W. 143, 142 Ky. 163. Person having contagions disease. 474. A sleeping car company may refuse to admit to its car a person having a con- tagious disease, although he has purchased a ticket for passage thereon. Pullman Co. v. Krauss, 4: 103, 40 So. 398, 145 Ala. 395. (Annotated) 2. Contributory negligence. (See also Carriers, II. a, 1, b, in Digest L. R. A. 1-10.) As question for jury, see TRIAL, 392, 393. See also infra, 550, 575. 475. A blind person who has asked the porter of a car to assist him to enter it is not negligent, after the porter has put him upon the first step, in advancing, under the belief that the porter would watch him to see if he made the right turn to enter the car. Denver & R. G. R. Co. v. Berry, 27: 761, 108 Pac. 172, 47 Colo. 584. fc. Getting on or off. 1. Duty or negligence of carrier. (See also Carriers, II. a, 8, a, in Dige L. R. A. 1-10.) Defense in action for injury while alight- ing from car, see ACTION OB SUIT, 40. 386 CARRIERS, II. k, 1. Reversible error as to instruction in action for injury, see APPEAL AND ERROR, 1413. Right of carrier held liable for death of passenger boarding train to recover from third party primarily responsible therefor, see CONTRIBUTION AND INDEM- NITY, 17. Measure of damages for injury, see DAM- AGES, 256. Presumption of negligence of carrier, see EVIDENCE, 365-369. Amendment of declaration as affecting limi- tation of action, see LIMITATION OF ACTIONS, 300. Pleading as to, see PLEADING, 292. Proximate cause of injury, see PROXIMATE CAUSE, 87, 88, 90. Question for jury as to, see TRIAL, 367. See also supra, 121, 233, 234, 243, 256, 283, 299-302. 476. One who induces a conductor to per- mit him to ride for less than the regular fare cannot hold ' he railroad company lia- able for the act of the conductor on compel- ling him to leave the train in a reckless and negligent manner. Grahn v. International & G. N. R. Co. 5: 1025, 93 S. W. 104, 100 Tex. 27. (Annotated) 477. A street car company may be held responsible for negligence in stopping its car and inviting passengers to enter it at a place made dangerous by temporary repairs upon the street, although the work is being done by the city, and the company has no control over it. Haas v. Wichita R. & Light Co. 48: 974, 132 Pac. 195, 89 Kan. 613. (Annotated) 478. A street car company may be held liable for injuries to a passenger resulting while attempting to enter the car at a place made dangerous by temporary repairs upon the street, over which the street car com- pany had no control, if proper care re- quired the company to stop its car to receive and discharge passengers at a con- venient point outside the limits of danger, or to provide a step to furnish assistance, or otherwise provide for the safety of pas- sengers. Haas v. Wichita R. & Light Co. 48: 974, 132 Pac. 195, 89 Kan. 613. 479. A street car company does not free itself from liability for injury to a pas- senger who becomes entangled, to his in- jury, in the trolley rope, one end of which was lying on the floor when he attempted to alight from thr; car, by showing that the rope was fastened in the proper place when the conductor last changed the trolley at the end of the route. Denver City Tram- way Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 480. The fact that an electric street car will start with more or less of a jerk is one of the risks assumed by passengers, so that the mere fact that a car starts with a sudden movement or jerk, and that a pas- senger is thrown to the floor and hurt, do not make out a case of negligence which will render the company liable for the in- jury; but to render it liable the stait must Digest 1-52 L.R.A.(N.S.) be shown to have been unusually sudden and violent. Boston Elev. R. Co. v. Smith, 23: 890, 168 Fed. 628, 94 C. C. A. 84. (Annotated) 481. A street car company is not bound to anticipate that passengers will leave their seats and approach the exit when the car slackens speed upon approaching their stat- ed destination, and operate the car with a view to their safety, so as to render it neg- ligent, in the absence of actual notice of peril, in making sudden changes in the speed of the car, which would have been proper had the passengers remained in their seats. Schultz v. Michigan United R. Co. 27: 503, 123 N. W. 594, 158 Mich. 665. 482. A carrier is not negligent in failing to warn a passenger who has gone upon the platform that the train is still in mo- tion, and that it is dangerous to attempt to alight therefrom. Morris v. Illinois C. R. Co. 31: 629, 53 So. 698, 127 La. 445. 483. A carrier is not bound to prevent a normal passenger from attempting to jump from a moving train as it approaches his station. Morris v. Illinois C. R. Co. 31: 629, 53 So. 698, 127 La. 445. 484. A railroad company may be held liable for the death of a passenger where, being on a night train in which, according to custom, the lights are turned down and pillows furnished for passengers desiring to sleep, he was not awakened until the train was leaving his station, and then in a dazed condition was assisted by the porter to the platform, with the knowledge of the con- ductor, and permitted to attempt to step off the moving train in the dark, which resulted in his death. Hanson v. Chicago, R. I. & P. R. Co. 31: 624, 112 Pac. 152, 83 Kan. 553. (Annotated) 485. A railroad company which, with knowledge that a passenger has alighted from the train for exercise at the station, starts the train without reasonable warning and opportunity for him safely to re-enter the train, is liable for injuries inflicted upon him in consequence of such act. Gannon v. Chicago, R. I. & P. R. Co. 23: 1061, 117 N. W. 966, 141 Iowa, 37. 486. Where a train is stopped at a sta- tion a reasonable time to permit passengers to alight, those in charge of it may assume that they have done so, and are not guilty of negligence in starting the train without ascertaining whether or not they have in fact alighted, unless the circumstances in- dicate, or cause them to suspect, in the exer- cise of reasonable diligence, that someone had not reached a place of safety ; so as to be in danger if the train is started. Chi- cago, B. & Q. R. Co. v. Lampman, 25: 217, 104 Pac. 533, 18 Wyo. 106. (Annotated) 487. A street car company which has re- duced the speed of %. car at a regular stop- ping place, with the apparent intent to receive passengers, cannot avoid liability for injury to one who attempts to board the car, because it did not know that he intended to do so. Klinck v. Chicago City R. Co. 52: 70, 104 N. E. 669, 262 111. 280. CARRIERS, II. k, 1. 38', Disobedience of rule. 488. Failure of train hands to obey a rule requiring them to look through the cars to see that all movement of passengers has ceased before starting the train, is not neg- ligence if the train is stopped a sufficient time for passengers, in the exercise of rea- sonable care, to alight in safety, unless there is something in the circumstances known to those in charge of the train to indicate, or which would cause them, by the exercise of reasonable diligence, to surmise that someone would be injured by start- ing it. Chicago, B. & Q. R. Co. v. Lamp- man, 25: 217, 104 Pac. 533, 18 Wyo. 106. Duty to children. See also NEGLIGENCE, 135. 489. The failure of a street car conductor to exercise the highest degree of care pos- sible to prevent a girl thirteen years of age and unaccustomed to riding upon the cars, from alighting from the moving car while frightened and frenzied by reason of having been carried past her announced destination, will render the company liable in damages for the injuries sustained by her. Kruger v. Omaha & C. B. Street R. Co. 17: 101, 114 N. W. 571, 80 Neb. 490. (Annotated) 490. The mere fact that a thirteen-year- old boy who is accustomed to riding be- tween his home and school on a railroad train knows that there is possibility of in- jury is jumping from the train while it is moving does not relieve the carrier from lia- bility for his injury in attempting to jump when the train is passing the school, if, to the knowledge of the carrier, boys had been in the habit of doing so without any attempt on its part to prevent it. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . 491. A railroad company having knowl- edge that boys riding to school on its trains are in the habit of jumping from the train while it is passing the schoolhouse, to avoid walking back from the station, is bound to take active measures to prevent their doing / so. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . 492. A railroad company, whose duty is to restrain a boy from leaving a moving train, is liable for injury to him in so leav- ing, if, because of his youth and inexperience he was not negligent in so doing, notwith- standing he knew that there was a possi- bility of his being injured, and voluntarily ^ assumed the risk of such injury. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . 493. A conductor in charge of an open street car is not guilty of wilful and wanton conduct which will render the company lia- ble therefor, who, upon seeing a newsboy on the running board of the car next the par- allel track, and outside the protecting bar, gets opposite him on the other side of the car and waves his hand at him, commands him to get off the cars, and steps between the seats as though to reach him, in conse- quence of which the boy jumps off when the car is going 7 or 8 miles an hour, to his in- Digest 1-52 L.R.A.(N.S.) jury. Lebov v. Consolidated R. Co. 26: 265, 89 N. E. 546, 203 Mass. 380. (Annotated) 494. A railroad company is not required to maintain in populous communities a look- out for children who are in the habit of jflhiping on and off its cars while in mo- tion, and provide against injuries to them. Swartwood v. Louisville & N. R. Co. 19: 1 1 12, 111 S. W. 305, 129 Ky. 247. Trespasser or licensee. See also supra, 493. 495. The conductor is not negligent in failing to prevent a trespasser frOm at- tempting to alight from a train going only 2 miles an hour. McElvane v. Central of Georgia R. Co. 34: 715, 54 So. 489, 170 Ala. 525. 496. A carrier owes no duty to one who accompanies a passenger onto a train mere- ly to visit, except to refrain from wilfully or wantonly injuring him. Whaley v. Louis- ville & N. R. Co. 52: 179, 65 So. 140, 186 Ala. 72. (Annotated) 497. Wilful or wanton injury to one at- tempting to leave a train which has begun to move after he has entered it to visit with a passenger is not shown by evidence that a trainman saw the attempt, if there was nothing to suggest danger of injury, or to show opportunity to stop the train in order to avoid it. Whaley v. Louisville & N. R. Co. 52: 179, 65 So. 140, 186 Ala. 72. 498. A railroad company owes no duty not to start its cars with a jerk, to one who, in accordance with a practice carried on with- out its objection, has entered a car to pur- chase fruit of one not in the employ of the railroad company; nor is it bound, in the absence of knowledge of his presence, to give a signal that the train is about to start. Peterson v. South & W. R. Co. 8: 1240, 55 S. E. 618, 143 N. C. 260. (Annotated) Height of steps. 499. A railroad company is liable for in- jury to a woman in attempting to board a train, because the steps were so unrea- sonably high from the ground that they were not reasonably safe. Louisville & N. R. Co. v. Dyer, 48: 816, 153 S. W. 194, 152 Ky. 264. Crowding. 500. Where it appears that there is usual- ly a large crowd at a particular station to take a particular train, and that there has been on many occasions surging and strug- gling to get upon the cars, the jury may find the carrier negligent in failing to an- ticipate such occurrences and take precau- tions to protect intending passengers from injury therefrom. Kuhlen v. Boston & N. Street R. Co. 7: 729, 79 N. E. 815, 193 Mass. 341. (Annotated) 501. A railroad company which makes no effort to control the pushing and surging of the crowd attempting to board its cars which is customary at a particular sta- tion is liable for injury to an intending passenger by being crowded between a standing car and the station platform. Collins v. Boston Elevated R. Co. 51: 1154, 105 N. E. 353, 217 Mass. 420. .388 CARRIERS, II, k, 1. 502. A carrier is not liable for injury to a passenger who is crowded onto a car and over a suit case standing in the door, by a boisterous crowd at the station, eager to board the train, if it had no notice, from previous experience or information impart- ed to it, that a throng of impatient passen- gers 'would simultaneously attempt to board the car at that station. Jackson v. Boston Elevated R. Co. 51: 1152, 105 N. E. 379, 217 Mass. 515. (Annotated) 503. To entitle a passenger injured while attempting to alight from a street car to hold the company liable for the injury be- cause of the crowded condition of the car, such condition must be shown to have had some connection with the injury. Gary v. Los Angeles R. Co. 27: 764, 108 Pac. 682, 157 Cal. 599. Waiting for passenger to reach seat. Refusal of misleading instruction, see TRIAL, 904. See also supra, 251. 504. It is not negligence to start a street car before an incoming passer^ei has reached a seat, where there is nothing in his ap- pearance to indicate that he needs unusual care and precaution for his protection. Ben- nett v. Louisville R. Co. 4: 558, 90 S. W. 1052, 122 Ky. 59. (Annotated) 505. In the absence of special circum- stances, it cannot be said to be negligence as matter of law to start a street car without any unusual jerk after a passenger has reached the platform and is in the act of stepping through the door into the car. Birmingham R. L. & P. Co. v. Hawkins, 16: 1077, 44 So. 983, 153 Ala. 86. 506. Negligence on the part of a street car conductor is not shown by his giving the signal to start the car as soon as a heavy woman passenger is safely inside the vesti- bule, where there are no extraordinary or exceptional circumstances making it his duty to exercise special care to wait until she is seated before starting. Boston Elev. R. Co. v. Smith, 23: 890, 168 Fed. 628/94 C. C. A. 84. 507. A street car company is negligent in starting the car with a passenger standing on the running board, and with no reason- able opportunity to reach a place of safety, at a time when a wagon is in such relation to the car that the movement of the car is likely to bring the passenger into collision with it, or if the motorman, in the exercise of due diligence, should have foreseen that it was dangerous to go ahead. Lockwood v. Boston Elevated R. Co. 22 : 488, 86 N. E. 934, 200 Mass. 537. Announcing stations. Negligence as to, as proximate cause of in- jury, see PROXIMATE CAUSE, 92,- 93. 508. Announcement of the name of the station which a train is approaching is not an invitation to passengers to alight from the train before it is safe to do so. Morris v. Illinois C. R. Co. 31:629, 53 So. 698, 127 La. 445. 509. An announcement of the next station, as required by statute, a few minutes be- fore a passenger train stops on a trestle after dark before reaching the station, with- Digest 1-52 L.R.A.(N.S.) out warning the passengers to keep their seats, does not constitute negligence, so aa to make the carrier liable for the death of passengers unaccustomed to railway travel, who leave the train and fall from the tres- tle, since such an announcement is not a call for a station at which the train is in the act of stopping, and neither the an- nouncement, nor the stopping of the train following it, amounts to an invitation to alight. Diggs v. Louisville & N. R. Co. 14: 1029, 156 Fed. 564, 84 C. C. A. 330. 510. The neglect of a railroad company to announce the arrival of a train at the sta- tion where a passenger wishes to alight is immaterial upon the question of liability for injury to the passenger, where he testi- fies that he knew that the train had reached his destination, and attempted to alight, so that failure to announce the station did not contribute to the injury. Chicago, B. & Q. R. Co. v. Lampman, 25: 217, 104 Pac. 533, 18 Wyo. 106. Assistance to passenger. Authority of Pullman car porters to assist passengers in entering and' leaving trains, see EVIDENCE, 36. Refusal to assist as proximate cause of in- jury, see PROXIMATE CAUSE, 94. Instruction as to duty to assist passenger, see TRIAL, 905, 1052. See also supra, 460, 460b, 462, 464. 511. As a general rule, it is not the duty of the employees of a railway company in charge of a passenger train to physically assist passengers in alighting therefrom, but to furnish reasonable opportunity and facilities for leaving the train; but the duty of rendering assistance may arise from special circumstances. Central of Georgia R. Co. v. Madden, 31: 813, 69 S. E. 165, 135 Ga. 205. 512. Where a passenger obtains a ticket entitling him to transportation over a rail- way between two designated points, no duty exists on the part of the carrier to afford him opportunities to leave the train before reaching his destination, or to assist him in so doing. Central of Georgia R. Co. v. Madden, 31:813, 69 S. E. 165, 135 Ga. 205. 513. Where a railroad car is stopped at a platform prepared and used by the com- pany for the purpose of passing to and from the train, and access to the car is not difficult, and no special circumstance ex- ists demanding additional care, no duty de- volves upon the carrier to station an em- ployee at the entrance of the car or train for the purpose of assisting passengers off and on. St. Louis & S. F. R. Co. v. Lee, 46: 357, 132 Pac. 1072, 37 Okla. 545. 514. It is not generally the duty of the employees of a railroad company to assist passengers in alighting; but such duty may arise under special circumstances. McGov- ern v. Interurban R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 517. Railroad employees in charge of a passenger train are not bound to anticipate the need of assistance of a woman in feeble health, encumbered with a young child and CARRIERS, II. k, 1. a valise, so as to render the carrier liable in case she falls while attempting to carry her burdens off the train without assistance. Illinois C. R. Co. v. Cruse, 8: 299, 96 8. W. 821, 123 Ky. 463. (Annotated) 518. A railroad company is not negligent in failing to assist a woman passenger to plight from the train, in the absence of any- thing to indicate that she needed assist- ance. Chicago, B. & Q. R. Co. v. Lamp- man, 25: 217, 104 Pac. 533, 18 Wyo. 106. 519. A carrier is not negligent in failing voluntarily to assist a woman with a baby in her arms to board a car having an un- usually high step, if she is accompanied by adult male relatives. Louisville & N. R. Co. v. Dyer, 48: 816, 153 S. W. 194, 152 Ky. 264. (Annotated) 520. No duty devolves upon a railroad company to assist a woman carrying a child to board a train, where she is attended by friends and there is a smooth cinder plat- form on a level with the tracks where the train is standing, and a stool upon which to mount to the first step of the car. St. Louis, I. M. & S. R. Co. v. Green, 14: 1148, 107 S. W. 168, 85 Ark. 117. 521. A carrier volunteering to assist a woman to board a train at a station where no unusual difficulties are present is bound to use only ordinary care in the discharge of that service. St. Louis, I. M. & S. R. Co. v. Green, 14: 1148, 107 S. W. 168, 85 Ark. 117. 522. A railroad company is responsible for the injury of a. passenger due to the negligent performance, by its conductor, of a gratuitous act in assisting the passenger from the car to the station platform. Han- Ion v. Central R. Co. of N. J. 10: 411, 79 N. E. 846, 187 N. Y. 73. ' (Annotated) Duty to person assisting passenger. Contributory negligence of one assisting passenger, see infra, 559. Variance between pleading and proof, see EVIDENCE, 2501. Proximate cause of injury, see PROXIMATE CAUSE, 88. 523. The fact that there was no agent or employee of a railroad company at or near a car at the time one entered to assist a passenger thereon, after which he intend- ed to alight, BO that no opportunity was given him to notify the company of his in- tention so to alight, does not impose a duty upon the railroad company to hold the train until he has had an opportunity to alight. St. Louis & S. F. R. Co. v. Lee, 46: 357, 132 Pac. 1072, 37 Okla. 545. 524. A railroad company does not owe to one who enters a train for the pur- pose of assisting a passenger on the train, the duty of folding the train until he has had an opportunity to alight, in the ab- sence of knowledge on its part that he so intends to alight. St. Louis & S. F. R. Co. v. Lee, 46: 357, 132 Pac. 1072, 37 Okla. 545. 525. A railroad company owing no duty beyond ordinary care, which was given, to a person assisting a passenger on one of its trains, intending thereafter to alight therefrom, is not liable to such person who Digest 1-52 L.R.A.CN.S.) is injured while alighting from the train. St. Louis & S. F. R. Co. v. Lee, 46: 357, 132 Pac. 1072, 37 Okla. 545. (Annotated) 526. A railroad company is not liable for the death of one who entered a car for the purpose of assisting passengers to get aboard, and who, in attempting to alight after the train had started without any warning signal having been previously given, was, by a sudden jerk of the train, thrown under it and killed, although it is the custom of the railway company to al- low persons to get into its cars for the purpose of assisting passengers, and to give certain signals before starting the train, where neither the conductor nor any other employee of the company had notice of the purpose of t^e deceased in boarding the train, or of his intention or attempt to alight therefrom. Hill v. Louisville & N. R. Co. 3: 432, 52 S. E. 651, 124 Ga. 243. (Annotated) 527. One entering a train to assist chil- dren who are to become passengers is bound to time his acts with reference to his knowl- edge of the customary stop of the train, or notify the trainmen of his intention to leave the train before it starts, or request them to render the necessary assistance to the chil- dren. Louisville & N. R. Co. v. Wilson, 8: 1020, 100 S. W. 290, 120 Ky. 846. 528. The mere fact that a person in charge of children to be placed on a train does not buy a ticket for herself when se- curing theirs, and that she states that she is sending them to their mother, is not no- tice that she intends to accompany them into the train and return, so as to require the railroad company to give her notice before starting the train after she has en- tered it. Louisville & N. R. Co. v. Wilson, 8: 1020, 100 S. W. 290, 120 Ky. 846. Allowing time to alight. Presumption of negligence, see EVIDENCE, 363. Judgment non obstante veredicto, see JUDG- MENT, 56. Failure to allow time to alight as proxi- mate cause of injury, see PROXIMATE CAUSE, 88. Question for jury as to, see TRIAL, 203, 684. Correctness of instruction, see TRIAL, 1053. See also supra, 234, 486, 488, 523, 524, 528; infra, 560, 569. 529. The failure of a carrier fully to stop a train at the destination of a passenger, and afford him an opportunity to alight with safety, is culpable negligence. Wal- ters v. Missouri P. R. Co. 28: 1058, 109 Pac. 173, 82 Kan. 739. 530. A street car company is liable to a passenger injured while attempting to alight from a car by the sudden and negligent starting of the car. Donovan v. New Or- leans R. & L. Co. 48: 109, 61 So. 216, 132 La. 239. 531. A railroad company is liable for in- jury to a passenger by the jerking of the train in starting, while he is standing on the platform, awaiting an opportunity to alight, after the train has stopped at his station, 390 CARRIERS, II, k, 2. with cars standing and moving on parallel tracks so close to his train that any attempt to use the passageway between them is not unlikely to result in injury. Smith v. Nor,th Carolina R. Co. 17: 179, 61 S. E. 266, 147 N. C. 448. (Annotated) 532. Street car conductors are not bound, as matter of law, to ascertain that a pas- senger who has signaled a desire to leave the car is safely off before starting the car, if they use the highest care with reference to the matter consistent with the transac- tion of the business. Millmore v. Boston Elev. R. Co. ii : 140, 80 N. E. 445, 194 Mass. 323. (Annotated) 533. A passenger injured by the sudden starting of a street car while he is in the act of alighting therefrom need not show the particular act of negligence which caused the car to start, in order to hold the car- rier liable for the injury. Paducah Trac- tion Co. v. Baker, 18: 1185, 113 S. W. 449, 130 Ky. 360. 534. A street car company may be found negligent if, after a signal for a stop has been given and a passenger has been seen going towards the exit and the car has slackened speed, the speed is suddenly ac- celerated with unusual force and violence, without any attempt to determine whether or not the passenger is in a place of danger. Heinze v. Interurban R. Co. 21: 715, 117 N. W. 385, 139 Iowa, 189. 535. Reasonable care under the circum- stances, and not great care, is the phrase to be used to measure the duty of a street car company to ascertain a passenger's desire to alight from a car where it stops prepara- tory to crossing a railroad track. T.ay- mond v* Portland R. Co. 3: 94, 62 Atl. 602, 100 Me. 529. (Annotated) 536. The conductor of a street car may be guilty of gross negligence in starting a car with notice that an intending passenger, who is crippled, is upon the step at the door on the wrong side of the car, seeking ad- mission, before giving him an opportunity to alight after admission through such door has been refused, where the starting of the car will cause him to fall from the car into the street. Yancy v. Boston Elevated R. Co. 26: 1217, 91 N. E. 202, 205 Mass. 162. (Annotated) 537. The conductor of a street car may be found to be negligent if he signals the car to start before the intending passenger has an opportunity to alight again in safety, when he refuses to admit a cripple who, at- tempting to board the car by the wrong door, has mounted the car steps. Yancy v. Boston Elevated R. Co. 26: 1217, 91 If. E. 202, 205 Mass. 162. Stopping at unusual or dangerous place. See also supra, 455-457. 538. A railroad company is responsible for injury to a passenger whom its conductor and brakeman permit to leave a moving train in the dark under the erroneous im- pression that the train has reached his destination and stopped. Baltimore & O. Digest 1-52 L.R.A.(N.S.) S. W. R. Co. v. Mullen, 2: 115, 75 N. E. 474, 217 111. 203. 539. A contract by an interurban railroad company to carry a passenger to a desig- nated country highway crossing implies the duty to furnish the passenger a safe place to alight at such crossing. McGovern v. Interurban R. Co. 13: 476, 111 N. W. 412 136 Iowa, 13. (Annotated) 540. It is the duty of an interurban rail- road company stopping a. car for the accom- modation of a passenger who desires to alight at a highway crossing to exercise at least reasonable care to enable her to alight with as little danger as practicable; and, if the car is stopped, and she is invited to alight at a place more hazardous than that at which the car might have been conven- iently stopped, the carrier is negligent. Mc- Govern v. Interurban R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 541. A passenger on an interurban car does not assume the risk involved in stop- ping the car for her to alight at a country crossing at a more dangerous place than that at which it is usually stopped for such crossing. McGovern v. Interurban R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 542. A passenger does not assume the risk from the failure of an interurban rail- way company to provide a safe place for passengers to alight at a country crossing, because she knows that it had not previous- ly been discharging its duty in that respect as to herself or other passengers stopping at such crossing. McGovern v. Interurbau R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 543. A street car company is not negli- gent in stopping its cars where the ground slopes toward a sewer pocket, so that at the point where passengers must alight it is 2 or 3 inches below the ordinary level, where the street is in good repair, and it has per- mitted passengers to alight at such point for years without any complaint that it is unsafe to do so. Morrison v. Rhode Is- land Co. 45: 988, 87 Atl. 199, R. I. . 2, Contributory negligence. a. In getting on. (See also Carriers, II. a, 8, b (1) in Digest L.R.A. 1-10.) Consideration on appeal of question of contributory negligence, see APPEAL AND ERROR, 917. Question for jury as to, see TRIAL, 403, 422. See also supra, 475. 544. A woman is not negligent in attempt- ing to board a train by the use of an unusually high step at a way station where it stops only momentarily to receive and discharge passengers. Louisville & N. R. Co. v. Dyer, 48: 816, 153 S. W. 194, 152 Ky. 264. 545. One is not negligent as matter of law in passing behind a wagon moving in the direction the car is going, and stepping up- on the running board of a street car, al- CARRIERS, II. k, 2. 391 though the starting of the car is likely to bring him into collision with the wagon. Lock wood v. Boston Elevated R. Co. 22: 488, 86 N. E. 934, 200 Mass. 537. 546. One is negligent as matter of law in attempting to board a street car when the vestibule doors are closed and it is in mo- tion, so that all that he can do is to stand on the step and maintain his position by clinging to the hand-holds. Sigl v. Green Bay Traction Co. 39: 65, 135 N. W. 506, 149 Wis. 112. 547. One who was injured in attempting to enter a street car at a place unsafe be- cause of temporary repairs in the street is not necessarily guilty of contributory negli- gence, if persons of ordinary prudence in the same or similar situation, and with like means of knowledge, would have boarded the car as such passenger did. Haas v. Wichita R. & Light Co. 48: 974, 132 Pac. 195, 89 Kan. 613. 548. A passenger on a freight train noti- fied that he would have time at the next stopping place to go back to the car carry- ing his live stock is chargeable with contrib- utory negligence as matter of law, where he alighted when the train stopped at a junc- tion outside of the town and at a point on a high fill near a cut, which was not used for the discharge of passengers or freight, and while getting into his own car was thrown off by a sudden jerk of the train and in- jured. Farrell v. Chicago Great Western R. Co. 9: 1113, 111 N. W. 388, 100 Minn. 361. 549. A passenger who, having alighted from the train for exercise, attempts to re- enter it, with the aid of the Pullman porter, after it has started, is not per se negligent, although the statute makes it a crime for one not employed on the train to get upon a car while it is in motion, without the consent of the one having the same in charge. Gannon v. Chicago, R. I. & P. R. Co. 23: 1061, 117 N. W. 966, 141 Iowa, 37. Attempt to enter at wrong entrance. 550. A cripple is not per se negligent in mounting the steps in attempting, contrary to a rule of the company, to enter a street car on the wrong side, where the door is closed, where he is ignorant that he will not be admitted on that side, and he is seen by the conductor. Yancy v. Boston Elevated R. Co. 26: 1217, 91 K E. 202, 205 Mass. 162. Getting into crowd. 551. An intending passenger is not negli- gent as matter of law, in entering a crowd attempting to board a train, by the fact that she narrowly escaped injury at the same place by doing so on former occasions. Kuhlen v. Boston & N. Street R. Co. 7: 729, 79 N. E. 815, 193 Mass. 341. b. In getting off. (See also Carriers, II. a, 8, b (2) in Digest L.R.A. 1-10.) Of passenger injured by automobile when alighting from street car, see AUTO- MOBILES, 65, 66. Digest 1-52 L.R.A.(N.S.) Doctrine of last clear chance, see NEGLI- GENCE, 284. Question for jury as to, see TRIAL, 387, 389, 402-406. See also supra, 374, 375, 542. 552. A passenger on an interurban car which has stopped for her to alight at a highway crossing may reasonably assume that she is invited to alight at the point where the car stopped, unless warned of danger; and is not conclusively negligent in accepting the invitation to alight at that place, although it is in fact unsafe. Mc- Govern v. Interurban R. Co. 13: 476, 111 N. W. 412, 136 Iowa, 13. 553. A woman passenger on a street car is not negligent per se in leaving her seat and approaching the door as the car slack- ened its speed when approaching the point where she had signified her intention to stop. Schultz v. Michigan United R. Co. 27: 503, 123 N. W. 594, 158 Mich. 665. At place other than station. 554. A passenger on a railroad train, who is notified that the next station at which the train will stop is his destination, has a right, unless notified to the contrary, to assume that the car will stop at the proper place for him to get off. Baltimore & O. S. W. R. Co. v. Mullen, 2: 115, 75 N. E. 474, 217 111. 203. (Annotated) 555. A passenger intending to alight from the train at the next station is not justified in leaving it when it first stops, if the sur- roundings are such as to preclude a reason- able belief on his part that he is getting oil where the company expected him to alight. Farrell v. Chicago Great Western R. Co. 9: 1113, 111 N. W. 388, 100 Minn. 361. (Annotated) From moving street car. 556. A street car passenger is not negli- gent per se because, after signaling for a stop and the car has begun to slacken speed as his destination is approached, he takes a position on the step preparatory to alight- ing when the car stops. Heinze v. Interur- ban R. Co. 21 : 715, 117 N. W. 385, 139 Iowa, 189. , (Annotated) 557. That one injured by attempting to alight from a street car moving at the rate of 6 miles an hour was a foreigner, re- cently arrived in this country, and that he did not understand English, and was in- experienced in street car travel, but had seen other passengers leave moving cars, does not relieve him from the charge of contributory negligence in making the at- tempt. Fosnes v. Duluth Street R. Co. 30: 270, 122 N. W. 1054, 140 Wis. 455. (Annotated) From moving train generally. Burden of disproving negligence, see EVI- DENCE, 475. As proximate cause of injury, see PROXI- MATE CAUSE, 88. As question for jury, see TRIAL, 404, 405. Verdict for plaintiff as violation of instruc- tions as to contributory negligence, see TRIAL, 1125. See also supra, 495. 392 CARRIERS, II. k, 2. 558. In the absence of negligence on the part of railroad employees, one who, having entered a train to assist a passenger, is in- jured by attempting to jump from it after it has started, cannot hold the railroad company liable for the injury. Louisville & N. R. Co. v. Wilson, 8: 1020, 100 S. W. 290, 120 Ky. 846. 559. A passenger cannot hold the carrier liable for injuries caused by his alighting from a moving train if, with every reason- able opportunity to ascertain whether or not the speed is slackened sufficiently to permit him to alight in safety, he fails to do so. Morris v. Illinois C. R. Co. 31: 629, 63 So. 698, 127 La. 445. 560. Negligence of a railroad company in failing to stop its train long enough at a station to permit passengers to alight will not absolve a passenger from negligence in attempting to alight from the train after it has again been put in motion. Farley v. Norfolk & W. R. Co. 27: mi, 67 S. E. 1116, 67 W. Va. 350. 561. A passenger who, in the dark and when encumbered by baggage, after standing on the steps of a railroad train long enough to ascertain the speed at which it is moving, attempts, in the exercise of his own judg- ment, to alight from the train when it is moving from 6 to 10 miles an hour, is neg- ligent as matter of law. Hunter v. Louis- ville & N. R, Co. 9: 848, 43 So. 802, 150 Ala. 594. 562. That the train is moving slowly when a passenger reaches the platform for the purpose of alighting -does not render negligent per se his act in going down upon the car steps. Chicago, B. & Q. R. Co. ' v. Lampman, 25: 217, 104 Pac. 533. 18 Wyo. 106. 563. A woman passenger on a railroad train who, upon reaching the platform for the purpose of alighting, finds the train moving very slowly, is guilty of negligence in going down the car steps and attempting to alight, if the act was such that under the circumstances an ordinarily careful, cautious, and prudent person would have apprehended danger therefrom. Chicago, B. & Q. R. Co. v. Lampman, 25: 217, 104 Pac. 533, 18 Wyo. 106. 564. A railroad company is not liable for injury to a passenger who falls from a train in consequence of the attempt of its brake- man to prevent his alighting from it after it is in motion. Chesapeake & 0. R. Co. v. Bell, 28: 773, 68 S. E. 398, 111 Va. 41. 565. A passenger seventy-three years of age who, after a railroad train has made a usual stop at a station, gets off after the train has started and is moving at such a rate of speed that he holds to the railing for several steps, and is thrown under the train, is guilty of contributory negligence barring recovery. Hoylman v. Kanawha & M. R. Co. 22: 741, 64 S. E. 536, 65 W. Va. 264. (Annotated) 566. Whether or not a thirteen-year-old boy was negligent in attempting to leave a train while it was in motion must be de- termined by ascertaining whether or not Digest 1-52 L.B.A.(N.S.) the ordinary boy of his age and experience, and with his knowledge of the situation and its dangers would have done what he did. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . 567. A boy who does not know that it is the duty of a railroad company to prevent him from jumping from its train does not consent to its failure to do so, so as to make applicable the maxim Volenti non fit injuria to an injury received by him in so doing. Kambour v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, N. H. . 568. An intelligent, smart boy, nearly fif- teen years old, is negligent in jumping from a train moving at the rate of 30 miles an hour, which will prevent holding the rail- road company liable for the resulting in- jury. Baker v. Seaboard A. L. R. Co. 29: 846, 64 S. E. 506, 150 N. C. 562. (Annotated) 569. A person who is not given a reason- able time to alight from a train before it continues on its journey is bound to mini- mize the possible loss to the company be- cause of its wrongdoing by staying on the train, and not attempting to leave it after it is in motion, to the peril of his life and limb, with the view of holding the company liable in ease of injury. Chesapeake & '}. R. Co. v. Bell, 28: 773, 68 S. E. 398, 111 Va. 41. Failure to stop at station. 570. One thrown by a sudden jerk of the train from the steps of a moving car from which he was attempting to alight to avoid being carried beyond his destination is not precluded from recovering damages, unless guilty of negligence proximately causing the injury sustained by him. Turley v. Atlanta, K. & N. R. Co. 8: 695, 56 S. E. 748, 127 Ga. 594. 571. A passenger who went upon the plat- form of the car when his station was called, so as to be ready to alight, is not charge- able with negligence, as matter of law, where, when the train slowed down, but failed to stop, he attempted to alight to avoid being carried beyond his destination, and was thrown to the ground by a sudden jerk of the train, and injured. Turley v. Atlanta, K. & N. R. Co. 8: 695, 56 S. E. 748, 127 Ga. 594. Order or advice of employees. Question for jury as to, see TRIAL, 405. 572. A passenger who, at the imperative direction of the conductor, alights in the nighttime from a passenger train as it is passing his destination at a speed of 3 or 4 miles an hour, is not negligent as matter of law, where the conductor directed him as to the manner of alighting, and it was not so dark as to prevent the passenger from seeing where he was stepping. Walters v. Missouri P. R. Co. 28: 1058, 109 Pac. 173, 82 Kan. 739. 573. A passenger who attempts to alight from a moving railroad train, when he knows it is dangerous to do so, and is in- jured thereby, is guilty of such negligence as will preclude recovery, notwithstanding he may have been directed or told by the CARRIERS, II. 1, 1. 393 conductor to get off. Farley v. Norfolk & W. R. Co. 27: mi, 67 S. E. 1116, 67 W. Va. 350. 574. A railroad company is not liable for the act of its agent or conductor in negli- gently directing a passenger to jump from a moving train, when the circumstances show that the danger was obvious to the passenger himself, and when no force or threats were used to eject him. Farley v. Norfolk & W. R. Co. 27: mi, 67 S. E. 1116, 67 W. Va. 350. 575. Upon the question whether or not a crippled trespasser was guilty of contribu- tory negligence in obeying the instructions of the conductor to get on' a moving train, the jury may take into account his crippled condition. Doggett v. Chicago, B. & Q. R. 'Co. 13: 364, 112 N. W. 171, 134 Iowa, 690. I. Stations, approaches, and platforms. 1. In general. a. Carrier's duty or negligence. (See also Carriers, II. a, 9, a (1) in Digest L.R.A.. 1-10.) Ejection of drunken person from station, see supra, 467, 468. Duty to maintain depots, etc., see infra, 1077-1084. Governmental regulations as to depot, see infra, IV. d. Evidence on question of negligence, see EVI- DENCE, 1521. Sufficiency of allegations, see PLEADING, 293. Proximate cause of injury to one crossing track, see PROXIMATE CAUSE, 74. Negligence as question for jury, see TRIAL, 372-377. Correctness of instructions as to carrier's duty, see TRIAL, 1054. See also supra, 501, 502. 576. It is the duty of a common carrier to provide reasonably safe approaches to its cars, and to provide such approaches with lights at night. Messenger v. Vally City Street & I. R. Co. 32: 881, 128 N. W. 1023, 21 N. D. 82. (Annotated) 577. A carrier is not bound to improve and maintain in a safe condition every cross or short cut over neighboring property which individuals may adopt in reaching its sta- tion or landing place, although the use is sufficient to create a visible path, if it does nothing to induce the public to believe that it has provided the path, or holds it out as safe. Woods v. White Star Line, 27: 992, 125 N. W. 396, 160 Mich. 540. 578. Where a railroad company prepares a strip of land upon which it discharges passengers, in front of its depot, which strip of land has been used by the public for years as the proper approach to and the recognized way of departure from its cars, it is under obligation te- one who has busi- ness to transact with or on the train of the company to use a reasonable degree of care to keep said strip of land in a safe Digest 1-52 L.R.A.(N.S.) condition. Bell v. Houston & S. R. Co. 43: 740, 60 So. 1029, 132 La. 88. 579. The rights of persons having business with a train which has stopped at a station, on a side track so situated that other tracks are between it and the depot platform, are the same as if all the intervening space between the depot and the train constitu- ted the platform. Atchison, T. & S. F. R. Co. v. McElroy, 13: 620, 91 Pac. 785, 76 Kan. 271. 580. A railroad company which requires passengers to cross tracks in the night to board a train must provide a reasonably safe way for the crossing to be made, and exercise the highest degree of care to pro- tect them from injury in making the pas- sage. Dieckmann v. Chicago & N. W. R. Co. 31 : 338, 121 N. W. 676, 145 Iowa, 250. (Annotated) 581. A railroad company is liable to a pas- senger who, because of obstructions on the path providing egress from its station, is compelled to walk so close to tracks used by trains that, without negligence on h^s part, he is struck by a train passing along the track. Powell v. Philadelphia & R. R. Co. 20: 1019, 70 Atl. 268, 220 Pa. 638. 582. A railroad company which custom- arily permits an employee of a newspaper publisher to take the papers from the station gate to the mail car at a time when passen- gers are hurrying to and fro on the plat- form is liable for his negligent use of the truck on which they are carried, which re- sults in injury to a passenger. Mangum v. North Carolina R. Co. 13: 589, 58 S. E. 913, 145 N. C. 152. (Annotated) 583. The duty of a railway company to maintain a suitable and safe place for the delivery of baggage to passengers at their destination on the carrier's line, in so far as it affects the safety of passengers in the delivery of their baggage, cannot be dele- gated to another, whether it be a separate and independent corporation or a mere em- ployee, so as to relieve the carrier of its legal liability for injury to a passenger caused by the negligence of those engaged in delivering baggage on the premises used by the carrier for that purpose. Johnson v. Florida East Coast R. Co. 50:561, 63 So. 713, 66 Fla. 415. (Annotated) 584. The mere fact that a railroad com- pany which provides a subway for passen- gers to pass from one side of its tracks to the other, with signs directing them to it, does not enforce its order not to let them cross over standing trains, because it is impossible to distinguish between those wishing to embark on such trains and those wishing to cross the tracks, does not amount to an invitation to them to cross the train, within the rule governing the care which is due to invitees. Hillman v. Boston Ele- vated R. Co. 32: 198, 93 N. E. 653, 207 Mass. 478. (Annotated) 585. A union depot company which under- takes to provide common terminal facili- ties for the passenger-carrying railroads en- tering a city owes to passengers and their attendants the duty of keeping the station ^ 394 CARRIERS, II. 1, 1. and its facilities in a proper condition for their safety. Union Depot & R. Co. v. Lon- doner, 33:^433, 114 Pac. 316, 50 Colo. 22. Toward whom duty owed. Negligence in turning intoxicated tres- passer out of station, see supra, 467, 468. Duty toward person assisting passenger on or off train, see supra, 523-528. 586. Accommodations of a carrier of pas- sengers should be ample and suitable to meet the reasonable requirements of passen- gers and those who rightfully accompany them, as well as others who have a right to go into the depots, on business or other- wise, and to use the facilities. Louisville & N. R. Co. v. Burr, 44: 189, 58 So. 543, 63 Fla. 491. 587. A railroad company owes only ordi- nary care to persons impliedly invited upon its platform who are not passengers. Fre- mont, E. & M. Valley R. Co. v. Hagblad, 4: 254, 101 N. W. 1033, 72 Neb. 773. 588. In order to bring a person within the station house or upon the platform of a railroad station within the protection of the legal duties owing by a common carrier to its passengers, a person intending to become a passenger must go to the station at a reasonable time before the time fixed for the departure ot the train upon which he in- tends to. take passage, in a proper manner, and there, either by the purchase of a tick- et or in some other manner, indicate to the carrier his intention to take passage, and thus place himself in the carrier's charge. Fremont, E. & M. Valley R. Co. v. Hagblad, 4: 254, 101 N. W. 1033, 72 Neb. 773. 589. A railroad company is not bound to keep its station safe as for invited guests, for a mere friend or acquaintance of an intend- ing passenger who resorts to it to see him begin his journey. Galveston, H. & S. A. R. Co. v. Matzdorff, 20: 833, 112 S. W. 1036, 102 Tex. 42. (Annotated) 590. A railway company is bound to exer- cise ordinary care for the safety of a per- son who is upon its premises for the pur- pose of meeting an incoming passenger, and is liable to such person for injuries sus- tained on account of the railway company's failure to exercise such care. Cogswell v. Atchison, T. & S. F. R. Co. 20: 837, 99 Pac. 923, 23 Okla. 181. 591. A railway company is liable to a person who goes to its depot to meet an incoming passenger for the purpose t>f con- tinuing, after meeting him, a business nego- tiation between them, for injuries received by him because of the negligence of the com- pany in permitting its station platform to remain in a dangerous condition, on account of which such person falls and is injured. Cogswell v. Atchison, T. & S. F. R. Co. 20: 837, 99 Pac. 923, 23 Okla. 181. ( Annotated ) 592. A person who is at a railroad depot for the purpose of mailing a letter on the mail car is neither a trespasser nor a li- censee; and the railroad owes to him the same obligation of safe passage to and from the train as it owes to a passenger. Bell Digest 1-52 L.R.A.(N.S.) v. Houston & S. R. Co. 43: 740, 60 So. 1029, 132 La. 88. 593. It is the duty of a railroad com- pany which carries mail under contract with the United States, by whose regula- tion postal clerks on mail trains are re- quired to receive mail matter on the mail car while stopping at its regular stations, to use reasonable care to keep in a reasonably safe condition a recognized way over its ground to its station platform; and a fail- ure so to keep it, resulting in personal in- jury to one passing along such way for the purpose of mailing a letter on a mail train upon its arrival, is actionable negligence. Atchison, T. & S. F. R. Co. v. Jandera, 24: 535, 104 Pac. 339, 24 Okla. 106. (Annotated) 594. A newsboy whose custom it was, to the knowledge of the employees of a rail- road company and without objection from them, to frequent a depot of said company for the purpose of getting his papers from passing trains and selling them to patrons of the railroad and others assembled there, is not a mere trespasser, and the railroad company owes him a higher duty than not to wilfully or wantonly injure him. Ingram v. Kansas City, S. & G. R. Co. 50: 688, 64 So. 146, 134 La. 377. (Annotated) 595. A railroad company through whose negligence a baggage truck was placed too close to an incoming train, by which it was struck and thrown, striking a newsboy and injuring him so that he died, is liable for damages to his parents for such injury. Ingram v. Kansas City, S. & G. R. Co. 50: 688, 64 So. 146, 134 La. 377. Failure to heat station. Damages for injury resulting from failure to heat station, see DAMAGES, 612. 596. A railroad company carrying pas- sengers is obliged reasonably to heat its stations in winter for the accommodation of passengers, but it owes such duty only to passengers. Barnett v. Minneapolis & St. L. R. Co. 48: 262, 143 N. W. 263, 123 Minn. 153. 597. A railroad company is liable to one who has purchased a ticket for passage over its road for damages arising from a cold station, where common prudence does not require the passenger to depart from the station. Barnett v. Minneapolis & St. L, R. Co. 48: 262, 143 N. W. 263, 123 Minn. 153. Injury by object thrown from train. 598. A railroad company is not liable for injury to a passenger waiting on a station platform for a train, by a brake bar which becomes detached from a passing freight train and is hurled against him, if the car was inspected a few hours before the acci- dent and found to be in good order, so that the loosening of the bar must be regarded as a mere accident, without negligence on the part of the carrier. Bradley v. Lake Shore & M. S. R. Co. 44: 1148, 86 Atl. 200, 238 Pa. 315. (Annotated) Excavation. 599. A railroad company owes no duty to light or guard an excavation on its prop- a CARRIERS, II. 1, 1. 395 erty near a pathway on its right of way which has to its knowledge been used by the public generally for many years, so as to render it liable to one who, after alight- ing from its train on a dark night, at- tempts to follow such pathway, and falls into the excavation, to his injury, if the excavation is some distance from the depot grounds. Louisville & N. R. Co. v. Hobbs, 47: 1149, 159 S. W. 682, 155 Ky. 130. (Annotated) Running train through station with- out warning. Sufficiency of evidence to show duty to give warning of approach of train, see EVI- DENCE, 2149. 600. To run a train through unlighted station grounds after dark, without warn- ing or headlight, past a platform where persons may reasonably be expected to be, is evidence of such wantonness as to render the railroad company liable for injuries to a trespasser on the platform who is struck by the train. Neice v. Chicago & A. R. Co. 41: 162, 98 N. E. 989, 254 111. 595. 601. A railroad company cannot be re- lieved from liability for injury to a pas- senger at a station, due to its running a train past it at excessive speed, without warning, on the theory that the engineer could not anticipate that, with a clear view of the track, the injured person would step in front of the train. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 602. Sufficient warning of the rapid ap- proach of a train which is to pass through a station without stopping is not given by the mere sounding of the whistle, where another train is standing at the station, re- ceiving and discharging passengers. Chica- go, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 603. A railroad company is not relieved from liability for injury to a passenger at a station, due to its running its train at excessive speed without signals, by the fact that it was operating under the direction of a train despatcher of another company, whose track it was using. Chicago, R. I. & P. R. Co. v. Stepp, 22: 350, 164 Fed. 785, 90 C. C. A. 431. 604. A railroad company which causes a passenger train to stop on a side track, leaving other tracks between it and the depot platform, is negligent if it permits another train to pass between the passenger train and the depot at a high rate of speed, without sounding bell or whistle or giving other warning, while business is being trans- acted with the standing train; and the com- pany is liable to any person rightfully on the premises, who is injured by the passing train. Atchison, T. & S. F. R. Co. v. Mc- Elroy, 13: 620, 91 Pac. 785, 76 Kan. 271. (Annotated) Passageway. 605. A carrier is not liable for injury to a passenger walking in daylight, with ample opportunity to observe his surroundings, by tripping over a board laid over fresh con- crete in a passageway where repairs were Digest 1-52 L.R.A.(N.S.) in progress, barriers being placed in the immediate vicinity around uncompleted por- tions of the work. Woodbury v. Maine C. R. Co. 43: 682, 85 Atl. 753, 110 Me. 224. Flag station. 606. A railroad company is not negligent in -placing, in the daytime, a few ties neces- sary for repairing its tracks along the path between the car exit and the highway at a flag station. Fulghum v. Atlantic C. L. R. Co. 39: 558, 74 S. E. 584, 158 N. C. 555. (Annotated) b. Contributory negligence. (See also Carriers, II. a, 9, a (2) in Digest L.R.A. 1-10.) Doctrine of last clear chance, see NEGLI- GENCE, 286. As proximate cause of injury, see PROXI- MATE CAUSE, 74. As question for jury, see TRIAL, 394, 395. See also supra, 340; infra, 616, 617. 607. One who sat on the rail against the wheel of one of a string of freight cars on a switch, while waiting for a passenger train to arrive, to meet a passenger, was negligent, so as to bar recovery for in- juries by an engine backing the car against him. Hammers v. Colorado Southern, N. 0. & P. R. Co. 34: 685, 55 So. 4, 128 La. 648. 608. A passenger, in attempting to reach the highway from a car exit along a path upon which ties have been placed for re- pair purpose, is negligent in stepping upon one which is wet and slippery, and is lying in an inclined position, when he might have stepped over it, or gone around it in safety, and cannot therefore hold the railroal com- pany liable for a resulting injury. Fulghum v. Atlantic C. L. R. Co. 39: 558, 74 S. E. 584, 158 N. C. 555. 609. One who is at a railroad station for the purpose of mailing a letter on a mail train is not guilty of contributory negli- gence in leaving the station by a dark path between the house and main tracks, the usu- al path and th'e only one from the station except through a colored waiting room which the person has no invitation to use. Bell v. Houston & S. R. Co. 43:740, 60 So. 1029, 132 La. 88. 610. A carrier is not liable for injuries received by a passenger who, in passing through its station in the daytime, opened an unlocked door leading to the basement, and, without looking, entered and fell, where he had been through the station before, and the door was not marked for the use of passengers, i*nd was unlike externally, as to size, shape, and appearance, the doors for the use of passengers, all of which were labeled. Speck v. Northern P. R. Co. 24: 249, 122 N. W. 497, 108 Minn. 435. (Annotated) At flag station. 611. One desiring to take a train at a flag station at night is negligent in attempt- ing to walk down the track to board it 396 CARRIERS, II. 1, 2, 3. when it passes the station before stopping, and is slowly backing to the regular stop- ping place, which will preclude his holding the carrier liable for injury due to collision with the train in the dark. King v. Tennes- see Central R. Co. 51: 618, 164 S. W. 1181, 129 Tenn. 44. 612. One who after dark goes to a flag station intending to flag an approaching train with burning paper to become a pas- senger on it cannot hold the carrier liable for his injury in case he fails to light the paper soon enough to permit the train to stop at the station and it strikes him in passing. Bruff v. Illinois C. R. Co. 24: 740, 121 S. W. 475, Ky. . (Annotated) 2. Platforms generally. (See also Carriers, II. a, 9, b, in Digest L.R.A. 1-10.) Negligence in permitting crowd on platform as question for jury, see TBIAL, 382. See also supra, 598. 613. A carrier is liable to a passenger who is himself free from contributory negligence, for injuries caused by his being struck, while standing on the step of a moving pas- senger car, by an express truck which was left at night upon an unlighted depot plat- form, within 5 inches of such passing train, notwithstanding the truck was placed in such position by an express company which was permitted to use the platform for its own purposes. Irvin v. Missouri P. R. Co. 26: 739, 106 Pac. 1063, 81 Kan. 649. 614. A railroad company is not bound to use the utmost care and foresight to pre- vent injuring a person standing on its plat- form waiting to take a train, by striking an animal on the track with an engine and throwing it against him. St. Louis, I. M. & S. R. Co. v. Woods, 33: 855, 131 S. W. 869, 96 Ark. 311. (Annotated) 615. A railroad company is liable for in- juries to a passenger who, upon his arrival at his destination in the depot of an in- dependent terminal company used by the railroad company, went to the baggage plat- form and there sustained injuries through the falling of a trunk from a pile of trunks negligently left piled upon the platform by the employees of the terminal company, although the terminal company is a sepa- rate and independent corporation engaged in receiving and delivering baggage, and the railroad company has no control over the employees of such terminal company, and is not engaged in any way in its man- agement, and the terminal company is not the agent or servant of the railroad com- pany except for the purpose of storing and delivering baggage discharged from its train. Johnson v. Florida East Coast R. Co. 50: 561, 63 So. 713, 66 Fla. 415. Contributory negligence. 616. A passenger on a railroad train who leaves the train at an intermediate station for a temporary purpose must ex- ercise ordinary care in crossing the sta- Digest 1-52 L.R.A.(N.S-) tion platform in looking upon the platform to avoid collision with any object usually or necessarily thereon which may impede his progress and do him injury, and if without any sufficient reason he neglects to do so and receives injury by coming in contact with such an obstruction he is guilty of contributory negligence and can- not recover damages from the railroad company for the injury. Wetherla v. Mis- souri P. R. Co. 51:899, 136 Pac. 221, 90 Kan. 702. (Annotated) 617. A passenger is guilty of contributory negligence which will bar his recovery for injuries received by a fall from a station platform, where, having been provided by the carrier with a well-lighted car in which to await the arrival of his train, he leaves it on a very dark night to walk, merely for exercise, on an unlighted platform, know- ing that the slope of the land is such that some portions of the platform must be some distance above the ground. Abbot v. Ore- gon R. & Nav. Co. 1:851, 80 Pac. 1012, 46 Or. 549. 3. Duty to Jceep open and light. (See also Carriers, II. a, 9, c, in Digest L.R.A. 1-70.) Keeping open. 618. Notice to a railroad station agent that a woman is in no condition to face a storm is sufficient to place on the company the risk of injury in forcing ner to do so, although the nature of her indisposition is not stated. Texas M. R. Co. v. Geraldou, 29: 799, 128 S. W. 611, 103 Tex. 402. 619. A railroad company is liable for in- jury to a woman who has gone to its depot to take passage on a train, by the act of its agent in turning her out into a storm, with notice that she is in no condition to encounter it, although the reasonable time fixed by the company for closing the build- ing has arrived. Texas M. R. Co. v. Geral- don, 29: 799, 128 S. W. 611, 103 Tex. 402. (Annotated) Lights. Effect of passenger's contributory negli- gence, see supra, 351. Question for jury as to time to keep plat- form lighted" see TRIAL, 204. See also supra, 576, 600; infra, 1082. 620. A carrier is not liable for injury to one who goes to its station after the last train has passed and the lights are out for the night, to inquire for freight, and falls from an unlighted and unguarded platform. Sherman v. Maine C. R. Co. 43: 1134, 85 Atl. 755, 110 Me. 228. (Annotated) 621. A railroad company is not bound to have its platforms or station so lighted that all passengers attempting to leave its cars may clearly see its steps and platform ; it being sufficient to have them so lighted that the ordinary traveler can see sufficiently to alight in safety. Illinois C. R. Co. v. Cruse, 8: 299, 96 S. W. 821, 123 Ky. 463. 622. A railroad company is liable for in- ; '"'. '' t -\.fi.,.i .; " - . CARRIERS, II. m, 1. 397 jury to a passenger through failure to light the path providing egress from its station sufficiently to enable the passenger to avoid collision with a train on an adjoining track. Powell v. Philadelphia & R. R. Co. 20: 1019, 70 Atl. 268, 220 Pa. 638. m. Tickets; conditions; fare. 1. In general. (See also Carriers, II. a, 10, a, in Digest L.R.A. 1-10.) Authority of ticket agent as to, see supra, 26-31, 34. Rules and regulations as to, generally, see supra, 47a-50. Provision for stopover, see supra, 458, 458a. Ejection of passenger for nonpayment of fare or defective ticket, see supra, II. h, 2, b. As to limitation of liability, see infra, II. m, 6, o, 5. Tickets over connecting lines, see infra, II. q. Confining sale of tickets to agents, see in- fra, 1000. Penalty for exacting excessive fare, see infra, 1025-1027. Discrimination between passengers, see in- fra, 1059-1068. As to regulation of rates, see infra, IV. c. Due process in prohibiting transfer of, see CONSTITUTIONAL LAW, 504. Injunction against traffic in non transferable railroad tickets, see CONTEMPT, 43-; IN- JUNCTION, 46. Burden of proving amount received for transportation, see EVIDENCE, 667. Proving contract by parol evidence, see EVI- DENCE, 923, 924. 623. The inability of an intending pas- senger to obtain a ticket at a station be- cause he does not arrive there until his train is in, and after that time until its departure, the agent was otherwise en- gaged, does not entitle him to use upon the train scrip which he has purchased from the company under the agreement that it shall not be used except from stations where tickets are not obtainable. Kosminsky v. Oregon S. L. R. Co. 24: 758, 104 Pac. 570, 36 Utah, 454. (Annotated) 624. A mistake of a sleeping car porter in admitting only an odd number of persons to the car at a station, where there were seats for an even number, does not entitle the one who is not paired to secure a seat at the seat rate, rather than the berth rate, during the hours when seat rates are not in force, although the party desires seats on- ly, and each two persons occupying a single seat are charged only for one berth, which gives them individually the seat rate. Doherty v. Northern P. R. Co. 36: 1139, 115 Pac. 401, 43 Mont. 294. Digest 1-52 L.R.A.(N.S.) Limitations in tickets generally. Reasonableness of provision in ticket, see supra, 48-48b. Evidence in action for breach of contract for transportation contained in limited ticket, see EVIDENCE, 1951. 625. One who accepts and uses a railroad- ticket assents to its terms and conditions as fully as if he had signed it. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. 626. In determining the right of a passen- ger to travel upon a railroad ticket ten- dered by him to the conductor in payment of his fare, conclusive force is to be given to limitations printed upon the face of the ticket. Shelton v. Erie R. Co. (N. J. Err. & App.) 9:727, 66 Atl. 403, 73 N. J. L. 558. 627. One accepting a coupon ticket to carry him over several railroads, each cou- pon of which provides that it is good for one continuous passage, merely binds him- self that, when he once begins his journey on any of the lines, he will pursue it over that road continuously, without interrup- tion. Brian v. Oregon Short Line R. Co. 25^ 459, 105 Pac. 489, 40 Mont. 109. Limitations as to time of using. Agreement of ticket agent as to, see supra, 26. Burden of showing that time limitation was so ghort as to be unreasonable, see EVI- DENCE, 529. See also supra, 424, 425; infra, 734. 628. That the date of purchase of a ticket is not plainly stamped upon it does not affect a provision that it is good only on date of sale, and the conductor may refuse to honor it on a future day if it carries intelligence to him that it has expired. Pennington v. Illinois C. R. Co. 37: 983, 97 N. E. 289, 252 111. 584. 629: A provision in a limited railroad ticket that it is good for ninety days from its date, not to be later than a date speci- fied, prevails over the time limit punched by the agent upon the ticket. Illinois C. R. Co. v. Gortikov, 14: 464, 45 So. 363, 90 Miss. 787. 630. Merely beginning the journey before the time specified on the ticket is not suffi- cient where a railroad ticket provides that it will not be accepted unless used to desti- nation before midnight of -a specified date. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. Mileage or commutation books. Ejection of passenger offering expired com- mutation ticket, see supra, 423. See also supra, 31. 631. Forfeiture of a twenty-trip railroad ticket by permitting its use by others con- trary to the contract is not waived by the carrier's subsequently recognizing the right of the holder to ride on it in ignorance of the wrongful use. Baltimore & O. S. W. R. Co. v. Evans, 14: 368, 82 N. E. 773, 169 Ind. 410. 398 CARRIERS, II. m, 2, 3. 2. Excursion or round trip tickets. (See also Carriers, II. o, 10, b, in Digest L.it.A. 1-70.) See also supra, 431._ 632. A provision of a railroad ticket, that it shall be good returning until the date punched on the margin, is not affected by a provision that the ticket issued on an ex- change order from an intermediate station to destination and return shall be good for continuous passages only. Cherry v. Chi- cago & A. R. Co. 2:695, 90 S. W. 381, 191 Mo. 489. 633. Notice to railroads represented in a passenger association, of the action of the roads of the association with reference to the issuance of tickets on a particular oc- casion, will justify all the ticket agents of the roads to act under it. Cherry v. Chi- cago & A. R. Co. 2: 695, 90 S. W. 381, 191 Mo. 489. 634. A contract with a passenger as to the duration of his ticket cannot be affected by the failure of the carrier to file with the Interstate Commerce Commission its accept- ance of the agreement by the passenger as- sociation to establish the limit named there- in. Cherry v. Chicago & A. R. Co. 2: 695, 90 S. W. 381, 191 Mo. 489. 635. Authority by a member of a passen- ger association, to the chairman, to Cast its vote with the majority, upon a proposition as to duration of excursion tickets to be issue'd on a particular occasion, is sufficient to bind it by the action taken, without the necessity of r. subsequent formal accept- ance of it. Cherry v. Chicago & A. R. Co. 2: 695, 90 S. W. 381, 191 Mo. 489. 636. A passenger traveling on a limited return-trip ticket is not bound by the mis- takes of the agent who issued the ticket in punching the description of the buyer and the time limit upon it. Illinois C. K. Co. v. Gortikov, 14: 464, 45 So. 363, 90 Miss. 787. 3. Passes. (See also Carriers, II. a, 10, c, in Digest L.R.A. 1-70.) Persons riding free as passengers, see su- pra, 69-73. Injury to person riding on stock pass, see supra, 324, 327. Right to issue pass, see infra, 1059, 1061- 1065, 1067, 1068.. Appeal in action for injury to passenger carried gratuitously, see APPEAL AND ERROR, 515. Prejudicial error in defining gross negli- gence, see APPEAL AND ERROR, 1346. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 367, 791. Effect of statute invalidating contract to give passes, see CONTRACTS, 633, 634, 766. f Prohibiting officer from riding on free pass, see OFFICERS, 83. Digest 1-52 L,.R.A.(N.S.) Departure from pleading in case of injury to gratuitous passenger, see PLEADING, 83. 637. Where by statute a carrier is re- quired to transport a gratuitous passenger which it has accepted, one is not prevented from holding the carrier liable for injury to him by failure to use the care which the law requires in case of gratuitous passen- gers, by the fact that he was traveling on a pass which the carrier was prohibited, under penalty, from giving. John v. North- ern P. R. Co. 32:85, 111 Pac. 632, 42 Mont. 18. 638. An employee in the railway mail service who, in good faith and with the consent of the carrier, accepts when off duty a free passage in interstate trans- portation, does not forfeit his right to the benefit of a rule of the local law which charges a carrier with the duty to exer- cise care for the safety of gratuitous pas- sengers because his gratuitous carriage may have been forbidden by the Hepburn act of June 29, 1906, since that statute itself fixed the penalty for violations of its prohibitions by declaring that the carrier and passenger shall, in such cases, be deemed guilty of a misdemeanor punishable by fine. Southern P. Co. v. Schuyler, 43: 901, 33 Sup. Ct. Rep. 277, 227 U. S. 601, 57 L. ed. 662. ( Annotated ) 639. The possibility that the presence of police officers on street cars may tend to pre- serve peace and good order is not sufficient to constitute a valuable consideration for a pass, given by the carrier to such officer. Marshall v. Nashville R. & Light Co. 9: 1246, 101 S. W. 419, 118 Tenn. 254. Limitation of liability in. Limitation of liability generally, see infra, II. m, 6. 640. Wilful, reckless, or wanton neglect is necessary to render a carrier liable for in- juries to a person riding upon a pass in which he assumes the risk of injury. Mar- shall v. Nashville R. & Light Co. 9: 1246, 101 S. W. 419, 118 Tenn. 254. 641. That a carrier reserves the right to recall at any time the ticket furnished an employee as evidence of his right to free transportation upon the carrier's cars in going to and from work does not render the right a mere privilege which entitles the carrier to limit his liability for in- juries if the ticket does not constitute the contract. Klinck v. Chicago City R. Co. 52: 70, 104 N. E. 669, 262 111. 280. Conditions in pass held fey caretaker of stock. 642. The conditions in a free pass grant- ed by a carrier to one to permit him to a> in Digest L.R.A 1-70.) Enjoining carriers from delivering liquor brought into prohibition territory, see INJUNCTION, 11. 821. The fact that a carrier which has re- ceived goods for transportation turns them over to another carrier, either through mis- take or otherwise, will not relieve it from making delivery to the consignee to whom it has contracted to deliver. Chicago, R. I. & P. R. Co. v. Pfeifer, 22: 1107, 119 S. W. 642, 90 Ark. 524. 822: 1 The fact that a person to be notified of the arrival of goods consigned to ship- per's order takes them from the carrier's possession without its knowledge or con- sent, and detains them in his own ware- house, will afford no justification for the carrier's failure to comply with an order from the shipper diverting the consignment. Atchison, T. & S. F. R. Co. v. Schriver, 4: 1056, 84 Pac. 119, 72 Kan. 550. (Annotated) Refusal to deliver. Duty to redeliver horse to consignor decid- ing not to continue shipment, see infra, 974, 975. Accession justifying refusal to deliver, see ACCESSION AND CONFUSION, 1. Damages for, see DAMAGES, 280, 281. .Necessity of keeping good tender of freight charges where delivery is refused, see TENDER, 23. Question for jury as to, see TRIAL, 205, 613. Refusal to deliver, as conversion, see TRO- VER, 30-35. 823. The mere fact that the express agent at the place of destination had notice of the anticipated arrival of a dead body on a night train after office hours, and that the consignee was ready and willing to pay the transportation charges, does not render the carrier liable for failure to deliver the body from 'the train contrary to its rule, if no arrangement for such delivery was made /."*. ' J .'..'. . '.' " ': CARRIERS, III. d, 2. 415 with the agent. Adams Express Co. v. Hib bard, 38: 432, 141 S. W. 397, 145 Ky. 818. 824. An express company's rule not to deliver freight, including dead bodies, to consignees in the night at stations where no night office is maintained, is reasonable and such company cannot be held liable in damages for decomposition of a body car- ried to the nearest station maintaining a night office, and forwarded to destination by a day train, where, by prepayment of charges and express arrangements, night de- livery at destination might have been se- cured. Adams Express Co. v. Hibbard, 38: 432, 141 S. W. 397, 145 Ky. 818. 825. An express company accepting a dead body for transportation to a station where it maintains no night office, on a train which will arrive in the night, is not bound to notify the consignee of a rule not to deliver freight from night trains at such station except under special circumstances. Adams Express Co. v. Hibbard, 38: 432, 141 S. W. 397, 145 Ky. 818. (Annotated) 826. That a claimant of sacks in which a car load of flour has been shipped represents to the carrier that he expects to be able to arrive at an understanding with the shipper within a few days will not justify the car- rier in withholding delivery according to the shipper's order. Atchison, T. & S. F. R. Co. v. Schriver, 4: 1056, 84 Pac. 119, 72 Kan. 550. 827. It is the duty of a railway company which has received from the owner for car- riage a quantity of goods consigned to ship- per's order to deliver in accordance with such order, and only in accordance with such order; and a failure or refusal, with- out lawful excuse, so to deliver, will render the carrier liable in conversion for the value of the goods. Atchison, T. & S. F. R. Co. v. Schriver, 4: 1056, 84 Pac. 119, 72 Kan. 550. 828. A carrier, by wrongfully refusing to deliver goods upon demand made promptly after notice to the consignee to remove them, renders itself liable for their de- struction upon the following day by an un- precedented flood, as the carrier, because of the wrongful detention, held the goods at its own risk. Henry v. Atchison, T. &-S. F. R. Co. 28: 1088, 109 Pac. 1005, 83 Kan. 104. 829. A carrier which, contrary to instruc- tions, advances C. O. D. charges for other than carriage expenses, cannot withhold the property from the consignee to compel. pay- ment of such advances. Cleveland, C. C. & St. L. R. Co. v. Anderson Tool Co. 49: 749, 103 N. E. 102, 180 Ind. 453. 830. An express company which receives from a connecting company a package to be forwarded to destination, without ascer- taining the contract under which it is be- ing carried, is liable in damages in case it attempts to enforce an agreement different from that actually made, and may be hjeld in damages for refusing to deliver the pack- age without payment of the charge by the consignee, if by the original contract the government had undertaken to pay them. Digest 1-52 L.R.A.(N.S.) Alcorn v. Adams Express Co. 52: 858, 146 S. W. 747, 148 Ky. 352. Refusal of consignee to accept de- livery. Burden of showing inability to communi- cate with shipper where carrier sells goods without notice, see EVIDENCE, 665. Sale of goods by carrier as conversion, see TKOVEB, 26, 27, 43. See also infra, 862, 865, 877, 882. 831. A railroad company may sell perish- able property on account of the owner, and deduct its charges from the proceeds of sale, and will be liable for the balance only, where the owner, upon being notified of the danger of loss, gave notice' of his aban- donment of the property and his intention to claim its value, relying upon an un- authorized inspection, which the carrier had permitted a prospective purchaser to make, as constituting a conversion. Dudley v. Chicago, M. & St. P. R. Co. 3: 1135, 52 S. E. 718, 58 W. Va. 604. 832. Corn is perishable property, within the meaning of a statute directing the manner in which a carrier shall dispose of such property upon refusal of the consignee to receive it. Chesapeake & O. R. Co. v. Saulsberry, 12: 431, 103 S. W. 254, 126 Ky. 179. 833. A statute providing that whenever the property transported by a carrier is fruit/ and it is not delivered, the same may be sold at public outcry on twenty- four hours' notice of sale, does not protect a carrier who has given no notice of such sale. Alabama G. S. R. Co. v. McKenzie, 45: 18, 77 S. E. 647, 139 Ga. 410. 834. Where a carrier offers delivery of goods to a consignee, who refuses to accept them, the carrier is chargeable with the duty of notifying the shipper with reason- able promptness that the goods are held sub- ject to his order, and the perishable nature of the goods will not excuse the omission of the carrier to give this notice where it is practicable to do so, nor will it au- thorize the carrier to sell the goods. Ala- bama G. S. R. Co. v. McKenzie, 45: 18, 77 S. E. 647, 139 Ga. 410. (Annotated) Delivery forbidden by health officers. 835. A carrier is not liable for failure to deliver to the consignee a carload of fruit which it is forbidden by the municipal au- thorities to deliver, where the police depart- ment is at hand to enforce the order, al- though the fruit was not within the opera- tion of an ordinance quarantining against shipments from certain ports. Alabama & V. R. Co. v. Tirelli Bros. 21:731, 48 So. 962, 93 Miss. 797. (Annotated) 2. Notice of arrival; termination of liability. (See also Carriers, II. 6, 4, b, in Digest L.R.A. 1-70.) When liability for baggage ceases, see supra, 696-698. 416 CARRIERS, III. d, 2. Reasonableness of time allowed consignee for removal of goods, see TBIAL, 201. See also infra, 919. 836. A provision in a bill of lading, that "in all cases and under all circumstances the liability of the company shall absolute- ly cease when the goods are free of the ship's tackle, and thereupon the goods shall be at the risk, for all purposes and in every respect, of the shipper or consignee," is operative to protect the carrier from li- ability for the nondelivery of goods which were discharged from the ship's tackle in- to lighters sent by landing agents appoint- ed by the carrier, but which by fraud in which the landing agents participated, nev- er reached the consignee. Chartered Bank of India, Australia & China v. British In- dia Steam Nav. Co. 4 B. R. C. 222, [1909] A. C. 369. Also Reported in 78 L. J. P. C. N. S. Ill, 100 L. T. N. S. 661, 25 Times L. R. 480, 53 Sol. Jo. 446, 14 Com. Cas. 189. (Annotated) 837. The liability of an express company as carrier and insurer of a package carried to a point at which the established practice is to make deliveries at the express office or wareroom, on application for the goods pursuant to notice of their arrival, given by mail, does not terminate until a reasonable time for the removal of the property has elapsed, after notice given. Hutchinson v. United States Exp. Co. 14:393, 59. S. E. 949, 63 W. Va. 128. (Annotated) 838. The liability of an express company as an insurer of property intrusted to it as a common carrier is only incidental to the contract of carriage, and neither begins ear- lier nor continues longer than is necessary to secure faithful and efficient execution of the contract of carriage. Hutchinson v. United States Express Co. 14: 393, 59 S. E. 949, 63 W. Va. 128. 839. The general rule that an express com- pany must make delivery of goods or pack- ages carried by it, to the consignee in per- son, at his place of business or residence, or to some person authorized to receive the property, before its liability as a common carrier and insurer ceases, may be modified or .set aside by usage or special agreement, under which delivery may be made at the express office or agency. Hutchinson v. United States Exp. Co. 14: 393, 59 S. E. 949, 63 W. Va. 128. 840. The liability of a common carrier as such continues after the arrival of the goods at destination until the consignee has had a reasonable time after notice of their arrival to come for and remove them. United Fruit Co. v. New York & B. Transp. Line, 8: 240, 65 Atl. 415, 104 Md. 567. 841. A carrier whose liability for property in its possession has become that of ware- houseman is liable as a bailee for hire, un- less it notifies the owner that it will not insist upon its right to compensation, and will not longer hold the property as ware- houseman. Brunson v. Atlantic Coast Line R. Co. 9: 577, 56 S. E. 538, 76 S. C. 9. (Annotated) Digest 1-52 L.R.A.(N.S.) 842. That a railroad company has no bag- gage master at its station upon arrival of a train carrying a parcel of baggage for hire as freight will not change the rule that tlie liability of carrier changes to that of ware- houseman when the goods reach their des- tination, at least in the absence of any- thing to show that the goods might not, up- on application, have been obtained from other employees. Hicks v. Wabash R. Co. 8: 235, 108 N. W. 534, 131 Iowa, 295. ( Annotated ) 843. A delivery of the contents of a car by the carrier to the consignee is effected by placing the car on the delivery track, and its entry by the consignee for the purpose of removing the contents after the surren- der of the bill of lading, although the prop- erty has not in fact been taken from the car. Rothchild Bros. v. Northern P. R. Co. 40: 773, 123 Pac. 1011, 68 Wash. 527. (Annotated) 844. Where a railroad company places bulky freight shipped in carload lots, and to be unloaded by the consignee, at the point designated by the consignee as the place where he desires to unload it, and possession thereof is turned over to and taken by consignee, so that the company has no further duty to perform, its absolute liability as carrier terminates, and it is liable for subsequent damage to the proper- ty only when. such damage results from its negligence. Chicago, M. & St. P. R. Co. v. Kelm, 44: 995, 141 N. W. 295, 121 Minn. 343. 845. A consignee of a machine shipped in parts cannot refuse to accept a tender by the carrier of a portion of the parts, al- though the others are missing, go as to pre- vent the liability of the carrier from chan- ging from that of insurer to that of ware- houseman. Louisville & N. R. Co. v. Gay, 33: 303, 135 S. W. 400, 143 Ky. 56. 846. A carrier is not liable for injury to cattle by contagious disease which makes its appearance after the lapse of the re- quired number of days after their delivery at destination, in the absence of negligence on its part. Baltimore & O. R. Co. v. Dever, 26: 712, 75 Atl. 352, 112 Md. 296. (Annotated) Loss by fire. Proximate cause of loss by fire, see PBOXI- MATE CAUSE, 76. See also supra, 754, 828; infra, 858. 847. A consignee of proof spirits which accepts a delivery with a container leaking, and in removing the spirits from the cai exposes them to risk of fire, cannot hold the carrier liable for the loss due to a conse- quent conflagration. Rothchild Bros. v. Northern P. R. Co. 40: 773, 123 Pac. 1011, 68 Wash. 527. 848. A railroad company is not liable as an insurer for the car of a theatrical troupe, which it hauled from place to place, and which it had set out upon a siding for the benefit and convenience of the theatrical proprietor, for use as a hotel for his troupe, although, for the convenience of the railroad company, the car was moved from the place CARRIERS, III. d, 3. 417 where it was first located to another lo- cation, where it was destroyed by fire. Atchison, T. & S. F. R. Co. v. Homewood, 48: 990, 134 Pac. 856, 39 Okla. 179. ( Annotated ) 849. A property owner who shows failure of a carrier to surrender to him, after it ar- rived at destination, his property which was delivered to it for transportation, is en- titled to recover its value from the carrier, notwithstanding it has been destroyed by fire, unless the carrier shows that it was not liable as common carrier because a rea- sonable time for removal of the property had elapsed before its destruction, that it was not liable as warehouseman because it had exercised ordinary care, or that it was not liable as a gratuitous bailee because it had used slight care. Brunson v. Atlantic Coast Line R. Co. 9: 577, 56 S. E. 538, 76 S. C. 9. Necessity of notice. See also supra, 837. 850. One who 'delivers property to a car- rier to be transported to his own order at a town where he does not reside and has no representative or place of business, under a bill of lading requiring notice to be given him of its arrival, is bound to put himself in a position to receive the notice. St. Louis, I. M. & S. R. Co. v. Townes, 26: 572, 124 S. W. 1036, 93 Ark. 430. (Annotated) 851. A consignee who did not call for his mail and would not have received notice of the arrival of a package for him at an ex- press office at which deliveries were made only at the office, after notice by mail, can- not, because of failure to send such notice, hold the express company liable as carrier for the package, which arrived at 4:30 P. M. on Saturday, and remained in the office until the following Monday night, when it was stolen without fault or negligence on the part of the company. Hutchinson v. United States Express Co. 14: 393, 59 S. E. 949, 63 W. Va. 128. 852. An express company is liable as ware- houseman only, for the loss of a package concerning the arrival of which it had failed to mail the customary notice, where such neglect was not the proximate cause, of the consignee's delay in removing the package, and the loss would have occurred if it had been mailed, and sufficient time had elapsed, before the loss, for the receipt of a notice and the removal of the goods if one had been made. Hutchinson v. United States Exp. Co. 14: 393, 59 S. E. 549, 63 W. Va. 128. 853. If an express company neglects to give the customary notice, by mail, of the arrival of goods, and they are lost by reason of causes other than one of those for which the law makes an exception in favor of the carrier, the company is generally held to accountability as an insurer. Hutchinson v. United States Express Co. 14: 393, 59 S. E. 949, 63 W. Va. 128. 854. Notice to the consignee of the ar- rival of the goods, and a reasonable time to remove them, are necessary to reduce the liability of the carrier to that of warehouse- Digest 1-52 I*R.A.(N.S.) man. Poythress v. Durham & S. R. Co. 18: 427, 62 S. E. 515, 148 N. C. 391. (Annotated) Delay by consignee in removal. Question for jury whether consignee exer- cised reasonable diligence, see TRIAL, 220. See also supra, 849. 855. The liability of a carrier who retains goods at the request and risk of the con- signee after the lapse of a reasonable time for their removal is that of a warehouseman only. United Fruit Co. v. New York & B. Transp. Line, 8: 240, 65 Atl. 415, 104 Md. 567. 856. The test of the reasonable time for removal of goods which have reached their destination, which changes the liability of the carrier from that of insurer to that of warehouseman, is governed by whether or not the consignee exercised reasonable diligence to ascertain when the goods would arrive or had arrived, and reasonable diligence in their removal after he received, or, in exer- cise of reasonable care, should have received, notice of their arrival. Lewis v. Louisville & N. R. Co. 25: 938, 122 S. W. 184, 135 Ky. 361. (Annotated) 857. The lapse of one and one-half busi- ness days after notice to a consignee of the arrival of his goods terminates the liability of the carrier as such. United Fruit Co. v. New York & B. Transp. Line, 8: 240, 65 Atl. 415, 104 Md. 567. (Annotated) 858. A consignee who receives notice from the carrier that his goods will be ready for delivery at noon on a certain day and who does not remove them during the afternoon because it does not suit his convenience to do so cannot charge the carrier for their loss during the following night by fire not due to its negligence. North Yakinia Brew- ing & Malting Co. v. Northern P. R. Co. 16: 935, 95 Pac. 486, 49 Wash. 375. 859. A consignee did not, as matter of law, have a reasonable time in which to take goods shipped to him when he had received no bill of lading, and was notified of their arrival at 4 or 5 o'clock p. si. of the day they reached their destination, and it was customary for the carrier's office to close at 6 o'clock P. M., and the goods were burned in their car that night. McGregor v. Ore- gon R. & Nav. Co. 14: 668, 93 Pac. 465, 50 Or. 527. 3. Misdelivery; wrongful delivery. (See also Carriers, II. 6, 4, c, in Digest L.R.A. 1-10.) Measure of damages for, see DAMAGES, 290. See also infra, 949. 860. A shipper which for more than a year permits deliveries of goods to the con- signee without production of the bill of lading, without protest or notice to the carrier, cannot hold the carrier liable for the value of goods so delivered and not paid 27 for. Salberg v. Pennsylvania R. Co. 31: 1178, 77 Atl. 1007, 228 Pa. 641. 418 CARRIERS, III. d, 4. 4. Time; delay. (See also Carriers, II. b, 4, d, in Digest L.R.A. 1-10.) As to delay by consignee in removal of goods, see supaa, 855-859. Delay of connecting carrier in delivery, see infra, 976. Penalty for delay in tranportation of live stock, see infra, 893. Imposing penalty on carrier for detaining loaded cars, see infra, 996, 997. Presumption of negligence from derailment and wreck of freight train causing de- lay, see EVIDENCE, 390. Amendment of complaint in action for dam- ages for, see APPEAL AND EKUOB, 1078. Interest on amount recovered because of de- lay, see INTEREST, 24. Who may maintain action for, see PAETIES, 30, 31. Pleading in action for failure to make prompt delivery, see PLEADING, 263. Negligent delay as question for jury, see TBIAL, 552, 553. Refusal of instruction, see TBIAL, 821. 861. A common carrier receiving, during the month of June, threshing machines consigned to an implement dealer in an- other state, is chargeable with the knowl- edge of seed time and harvest, and the general customs relating thereto, and will be deemed to have notice that such ma- chines are for immediate sale, if not al- ready sold, and that a delay of delivery until the entire threshing season has passed will defeat the purpose of the shipment. Missouri P. R. Co. v. Peru-VanZandt Im- plement Co. 6: 1058, 85 Pac. 408, 73 Kan. 295. 862. The owner of goods in possession of a carrier for transportation cannot refuse to accept them because of delav in performance of the contract. Chicago, R. I. & P. R. Co. v. Pfeifer, 22: 1107, 119 S. W. 642, 90 Ark. 524. 863. A carrier which has not an equip- ment adequate to handle the average bus- iness tendered it cannot avoid liability for failure promptly to transport freight tend- ered, on the ground that the demand for transportation was at the time so great that it could not have been foreseen, antici- pated, or provided for. Yazoo & M. Valley R. Co. v. Blum, 10 : 432, 40 So. 748, 88 Miss. 180. (Annotated) 864. A carrier which accepted property for transportation cannot avoid liability for delay in delivery on the ground that its fa- cilities were overtaxed by an unusual press of business, where it knew of such condition when it accepted the shipment. Yazoo & M. Valley R. Co. v. Blum, 10: 432, 40 So. 748, 88 Miss. 180. (Annotated) 865. A consignee cannot refuse to receive a shipment, and throw it upon the hands of the carrier, merely because of the lat- ter's unreasonable delay in transportation. Chesapeake & O. R. Co. v. Saulsberry, 12: 431, 103 S. VV. 254, 126 Ky. 179. (Annotated) Digest 1-52 I*ll.A.(N.S.) Injuries due to delay. Limitation of liability for, see infra, 928, 929. Presumption and burden of proof as to dam- ages, see EVIDENCE, 529. Evidence as to, see EVIDEN-CE, 1783. Measure of damages for, see DAMAGES, 286- 288, 290a, 692-694. Failure promptly to deliver as proximate cause of loss by unprecedented flood, see PBOXIMATE CAUSE, 70. 866. A carrier whose negligent delay in transporting goods committed to him for that purpose subjects them to destruction by act of God cannot escape liability on the theory that such result could not have been anticipated. Green-Wheeler Shoe Go. v. Chicago, R. I. & P. R. Co. 5: 882, 106 N. W. 498, 130 Iowa, 123. 867. Failure of a railroad company for eleven days to forward property delivered to it for transportation prevents its escap- ing liability in case the property is de- stroyed by act of God which would not have resulted had the property been forwarded promptly. Alabama G. S. R. Co. v. Quarles, 5: 867, 40 So. 120, 145 Ala. 436. 868. The negligent delay of a carrier in moving goods intrusted to it for transpor- tation, not so unreasonable as to amount to a conversion, will not render it liable for the loss of such goods after they have been carried to their destination, if they are there destroyed by an act of God before de- livery. Rodgers v. Missouri P. R. Co. 10 : 658, 88 Pac. 885, 75 Kan. 22'?.-' 869. That the act of God which destroys property in a carrier's possession for trans- portation occurs after its delay in the trans- portation has ceased does not relieve the carrier from liability for the loss if the consignee has not had a reasonable time after arrival of the goods at destination within which to remove them. Alabama G. S. R. Co. v. Elliott, 9: 1264, 43 So. 738, 150 Ala. 381. 870. A railroad company which accepts freight without notifying the shipper of an anticipated excess in passenger traffic which will require the services of freight crews . to handle it, and cause delay in transportation of the freight, cannot avoid liability for loss caused by such delay, be- cause of the extraordinary demand on its service in transporting passengers. Da- oust v. Chicago, R. I. & P. R. Co. 34: 637, 128 N. W. 1106, 149 Iowa, 650. (Annotated) 871. The carrier has notice of the likeli- hood of special injury in case it fails to perform its contract upon receiving for transportation by express an engine shaft to be delivered to a furniture Manufactur- ing company. Harper Furniture Co. v. Southern Express Co. 30: 483, 62 S. E. 145, 148 N. C. 87. 872. A carrier will be liable for compen- satory damages in case it stops the opera- tion of a factory through neglect promptly to transport repairs needed by it, where it has notice that special injury will result from its neglect. Harper Furniture Co. v. CARRIERS. III. e. 419 Southern Express Co. 30: 483, 62 S. E. 145, 148 N. C. 87. 873. The liability of a carrier for suf- fering on the part of a sick person, due to its neglect promptly to transport and de- liver medicine for him, is not affected by the fact that the order was given without his knowledge or approval. Hendricks v. American Express Co. 32: 867, 128 S. W. 1089, 138 Ky. 704. e. Liability and lien for freight charges; rates. (See also Carriers, II, 6, 5, in Digest L-.R.A. 1-10.) Regulation of freight rates, see infra, IV. c. Illegal sale by carrier to enforce lien for freight as ground for reversal of judg- ment against shipper for balance of car- rier's charges, see APPEAL AND ERROR, 1577. Allowance for freight charges on property, sale of which was rescinded for fraud, see BANKRUPTCY, 127. Charges on interstate business, see COM- MERCE, 82-84. Necessity of keeping good tender of freight charges where delivery is refused, see TENDER, 23. When payment of freight charges is not required, see TROVER, 33-35. See also supra, 829, 830; infra, 976. 874. Dead freight is not freight at all, properly so called, but is in reality dam- ages for breach of contract, and therefore is not within the rule that where the freight mentioned in the charter party is more than that mentioned in the bill of lading, the in- dorsee of the latter, claiming as such, is, in the absence of special agreement to the contrary, only bound to pay the lesser freight; nor within the provision of the charter party that any difference between the freight mentioned in the charter party and that mentioned in the bill of lading shall be settled at the port of lading before the vessel sails. Kish v. Taylor, 3 B. R. C. 266, [1912] A. C. 604. Also reported in 81 L. J. K. B. N. S. 1027, 17 Com. Cas. 355, 106 L. T. N. S. 900, [1912] W. N. 144, 28 Times L. R. 425, 56 Sol. Jo. 518. 875. Since the effect of deviation is to dis- place the special contract of affreightment, a ship owner is debarred thereby from as- serting against the cargo owners a lien upon the cargo for dead freight conferred upon him by bills of lading. Kish v. Taylor, 2 B. R. C. 575, [1911] 1 K. B. 625. Also re- ported in 80 L. J. K. B. N. S. 601, 103 L. T. N. S. 785, 27 Times L. R. 174, 16 Com. Cas. 59, 11 Asp. Mar. L. Cas. 544. 876. An attempt to hold freight for charges exceeding those stated in the bill of lading is at the peril of the carrier. Beas- ley v. Baltimore & P. R. Co. 6: 1048, 27 App. D. C. 595. 877. In the absence of special contract, a shipper of coal in carload lots to a con- signee who declines to receive it is liable Digest 1-52 L.R.A.(N.S.) to the carrier for the freight, and also for demurrage accruing after he has notice of the consignee's refusal. Baltimore & 0. R. Co. v. Luella Coal & Coke Co. 52: 398, 81 S. E. 1044, W. Va. . Right to full rates. 878. That a shipper has for two years paid the freight rate for goods transported over a railroad, named to him by a high railroad official, in the absence of a public schedule, will not prevent the carrier re- covering from him the balance of the amount which should have been paid under the rates established by the Interstate Commerce Commission. Central R. Co. v. Mauser, 49: 92, 88 Atl. 791, 241 Pa. 603. (Annotated) 879. A carrier which accepts for transpor- portation as baggage, articles known by it to be freight, assumes the liability of a freight carrier, and may collect the regular transportation charge where the statute prohibits all discrimination in rates. St. Louis, I. M. & S. R. Co. v. Miller, 39: 634, 145 S. W. 889, 103 Ark. 37. Reasonableness of rates. 880. A contract fixing the value of prop- erty as a basis for freight rates is not un- reasonable, which establishes a certain rate for property of a certain value, and in- creases the rate 10 per cent for every rise of 100 per cent in value of the property. Don- Ion v. Southern P. Co. n: 811, 91 Pac. 603, 151 Cal. 763. 881. In determining whether or not an agreement fixing the valuation of property as a basis for freight rates is reasonable, the question whether or not it reasonably approximates the real value of the property is immaterial. Donlon v. Southern P. Co. ii : 811, 91 Pac. 603, 151 Cal. 763. Lien generally. As to lien for demurrage, see infra, III. i. Arrest of owner of goods taking them from carrier when subject to lien for freight, see FALSE IMPRISONMENT, 11. Fraudulent taking of goods by owner from carrier to defeat carrier's lien, as lar- ceny, see LARCENY, 32. See also supra, 875. 882. A carrier has a lien upon a ship- ment of coal which the consignee refuses to accept, for both freight and demurrage accruing after notice to the consignor of the consignee's refusal. Baltimore & 0. R. Co. v. Luella Coal & Coke Co. 52: 398, 81 S. E. 1044, W. Va. . 883. Waiver of a common carrier's lien for freight charges is not shown by recitals in a written contract for the transportation of the goods, that all prior agreements con- cerning facilities for shipment or the trans- portation or shipment of the goods are merged in the written contract, and that it contains all the terms, agreements, and pro- visions relating in any manner to the trans- portation of the goods. Atchison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 884. A written contract for the trans- portation of goods by a common carrier will not be deemed to waive the carrier's 420 CARRIERS, III. f. lien for the freight charges, unless it con- tains provisions inconsistent with the as- sertion of such a lien, or expressly or by clear implication indicates an intention to make such a waiver. Atchison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 885. A shipowner is not debarred from asserting against the cargo owner a lien for dead freight, to which he is entitled by the terms of the charter party and bill of lading, by the fact that upon the failure of the charterers to load a full cargo, the master, to minimize the loss, procured a cargo from other sources and overloaded the deck to such an extent as to render the ship unseaworthy, in consequence of which the ship was obliged to deviate from her course. Kish v. Taylor, 3 B. R. C. 266, [1912] A. C. 604. Also reported in 81 L. J. K. B. N. S. 1027, 17 Com. Cas. 355, 106 L. T. N. S. 900, [1912] W. N. 144, 28 Times L. R. 425, 56 Sol. Jo. 518. /. Carrying live stock and other animals. (See also Carriers, II. b, 6, in Digest L.R.A. 1-10.) Limitation of liability for injury, see infra, 920-922, 929, 930, 933, 939. Time for giving notice of injury to, see infra, 260, 953, 954. As to duty to furnish cars for shipment of live stock, see infra, 957, 958. Duty to redeliver horse to consignor decid- ing not to continue shipment, see infra, 974, 975. Amendment of complaint in action for dam- ages for delay, see APPEAL AND EBKOB, 1078. Conflict of laws as to carrier's liability, see CONFLICT OF LAWS, 76. Due process of law in regulations as to, see CONSTITUTIONAL LAW, 445, 565. Construction of provisions in live-stock shipping contract, see CONTRACT, 370. Duty of shipper to minimize amount of damages, see DAMAGES, 25. Damages for erroneously indicating that cattle are from infected district, see DAMAGES, 25. Damages for delay in furnishing cars, see DAMAGES, 282. Measure of damages generally, see DAM- AGES, 292-295. Judicial notice as to cars carrying cattle from quarantine district, see EVIDENCE, 35. Presumption of negligence, see EVIDENCE, 387, 389. Opinion as to probability of cattle freez- ing, see EVIDENCE, 1133. Opinion as to overloading of cars, see EVI- DENCE, 1J47. Evidence of admissions by shipper in action for injury to stock, see EVIDENCE, 1234. Evidence as to amount of damages for in- injury to cattle, see EVIDENCE, 1734. Admissibility of waybill, in action to re- cover for injury to horse, see EVIDENCE, 1937. Digest 1-52 I*R.A.(N.S.) Sufficiency of evidence to allow that death of horse was caused by delay, see EVI- DENCE, 2060. Sufficiency of evidence to show carrier's neg- ligence, see EVIDENCE, 2154. Conversion of stock by carrier, see EVI- DENCE, 2462; TROVER, 25. Permitting cattle to become infected with disease, see EVIDENCE, 1785 ; TBIAL, 554. Interest on amount recovered for injuries to stock, see INTEREST, 24. Departure in reply in action against carrier, see PLEADING, 554. Sufficiency of evidence to go to jury in ac- tion for negligence of carrier, see TRIAL, 141. Question for jury as to shipper's fraud, see TRIAL, 113. Negligence of carrier as question for jury, see TRIAL, 552-556. Question for jury as to contributory negli- gence of consignor, see TRIAL, 556. Refusal of instruction, see TRIAL, 821. See also supra, 6, 7, 755, 770. 886. A carrier which accepts stock for transportation, knowing that its facilities are so overloaded that loss will result to the shipper, is liable for the loss. St. Louis S. W. R. Co. v. Mitchell, 37: 54^, 142 S. \V. 168, 101 Ark. 289. 887. A provision of a contract for the transportation of live stock, that the rules, regulations, and conditions prescribed by the carrier shall be binding on the shipper, and that the signing of the contract by the ship- per shall be conclusive evidence of his agree- ment to them, is invalid. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 888. A pencil memorandum on a bill of lading of horses, that they are to be un- loaded for feeding at a certain place short of destination, does not require them to be routed through that place if another route is as safe and expeditious, so as to render the carrier liable in damages because the consignee wished to accept delivery of a part of the consignment at the place men- tioned, and is put to expense to have the animals returned there. Edwards v. Amer- ican Exp. Co. 42: 705, 84 Atl. 987, 109 _M-. 444. 889. A carrier which accepts for trans- portation a crated animal cannot avoid lia- bility for the escape of the animal, on the theory that the shipper was negligent with respect to the crating. Atlantic Coast Line R. Co. v. Rice, 29: 1214, 52 So. 918, 169 Ala. 265. 890. A railroad company which has taken an animal for transportation on a regular freight schedule is not liable for its loss be- cause it refuses to attach the car to a passenger train or otherwise hasten the shipment, upon receiving notice that the animal is ill, where the train carrying it is substantially on schedule time, and there is no faster freight train to which it could be attached. Pine Bros. v. Chicago, B. & Q. R. Co. 39: 639, 133 N. W. 128, 153 Iowa, j 1. (Annotated) 891. A railroad company is liable for in- CARRIERS, III. f. 421 jury to live stock in its possession for transportation through the derailment of the train by the sudden appearance of a cow upon the track in front of the locomo- tive under circumstances which it could not reasonably have anticipated, so that it was guilty of no negligence in the matter. Cin- cinnati, N. 0. & T. P. R. Co. v. Rankin, 45: 529, 156 S. W. 400, 153 Ky. 730, 157 S. W. 926, 154 Ky. 549. 892. One who ships a fat hog by express on a very hot and humid day assumes the risk of injury to' the animal by overheating. Winn v. American Exp. Co. 44: 662, 140 N. W. 427, 159 Iowa, 369. Minimum speed; penalty for delay. Unconstitutionality of statute as to others as defense to carrier in action to re- cover statutory penalty, see ACTION OR SUIT, 48, 49. Statute prescribing minimum rate of speed as interference with interstate com- merce, see COMMERCE, 77, 78. Class legislation as to, see CONSTITUTIONAL LAW, 211. Due process in regulations as to, see CON- STITUTIONAL LAW, 445. Police power as to, see CONSTITUTIONAL LAW, 686. Sufficiency of pleading in action to recover penalty for delay, see PLEADING, 194. 893. In an action to recover the statutory penalty for delay in transporting live stock, provided by a statute binding carriers by railroad, when carrying stock between in- trastate points, to maintain a minimum rate of speed from the initial point to the point of feeding or destination, or, if over a branch road of less than 125 miles in length, to the first division station, the carrier should not be charged with time consumed by un- loading the stock for feed, water, and rest at such a division point, or for failure promptly to continue the shipment from that point, where to do so would have com- pelled the carrier to operate its trains and deliver the stock on Sunday, in violation of law, although the statute itself provides no exceptions, and does not state what, if any, defenses may or may not be available in an action brought thereon, except that the time consumed in picking up and setting out, and loading or unloading stock at stations, shall not be included. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. Injury resulting from disposition or viciousness of stock. 894. The liability of a common carrier as an insurer does not extend to any damage resulting from an intrinsic cause against which care and foresight could not provide, such as damage resulting from the nature, disposition, or viciousness of live stock, un- dertaken to be transported, as such cause is within the principle which excuses com- mon carriers from loss or damage resulting from the act of God. Summerlin v. Sea- board Air Line R. Co. 19: xgi, 47 So. 557, 56 Fla. 687. Condition of stock yards. 895. It is the duty of a common carrier Digest 1-52 L.R.A.(N.S.) of live stock providing stock yards at its stations for the purpose of receiving cattle for shipment, Lo keep its yards in a reason- ably safe condition; and a failure to do so is negligence. St. Louis & S. F. R. Co. v. Beets, 10:571, 89 Pac. 683, 75 Kan. 295. (Annotated) 896. A shipper of cattle who arranges with a station agent for their transportation, and in pursuance of such arrangement places them in the railway company's stock pen, may recover for injuries sustained by the stock, which escaped when one entire side of the pen fell down because of the rotten condition of the posts supporting it. St. Louis & S. F. R. Co. v. Beets, 10: 571, 89 Pac. 683, 75 Kan. 295. (Annotated) Safety of cars. Admission of irrelevant evidence, see APPEAL AND ERROR, 1146. 897. A carrier cannot escape liability for suffocation of stock shipped in a box car, because of its failure to remove a few slats from the ventilation windows, which might have been done with slight effort, by pro- visions in the bill of lading requiring the shipper to pass upon the suitableness of the car, and absolving the carrier from liability for injury due to insufficiency or defective condition of the body of the car and in- juries by suffocation. Kime v. Southern R. Co. 43: 617, 76 S. E. 509, 160 N. C. 457. 898. A carrier cannot escape liability for permitting stock to suffocate in a car by failure to open ventilators which have been nailed shut, because it received the loaded car in that condition from a connecting car- rier. Kime v. Southern R. Co. 43: 617, 76 S. E. 509, 160 N. C. 457. (Annotated) 899. A common carrier is obliged to fur- nish reasonably safe and suitable cars for the transportation of horses tendered to it for shipment; and if a car offered a shipper can be made thus safe and suitable, only by the use of bedding, it is the duty of the carrier to furnish that bedding. Allen v. Chicago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. (Annotated) 900. A common carrier is not relieved of its duty to furnish the bedding required to make a car reasonably safe and suitable for the transportation of horses tendered for shipment, by the agreement of the shipper to load and unload the horses, and to feed, water, and care for them in transit. Allen v. Chicago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. 901. A common carrier is not relieved of its duty to furnish the bedding required to make a car reasonably safe and suitable for the transportation of horses tendered for shipment, by the fact that the shipper's agent accepted the car without proper bed- ding. Allen v. Chicago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. Caring for, during transit. See also infra, 930. 902. An interstate carrier of live stock is liable under the Federal statute for injuries to stock in its possession for transportation, which result from its failure to supply proper shelter and protection at a point 422 CARRIERS, III. g, 1. where the stock is unloaded to be fed and watered. Gilliland v. Southern R. Co. 27: 1 1 06, 07 S. K. 20, 85 S. C. 27. 903. A shipper of hogs is not bound to notify the carrier of the necessity of shower- ing them in hot weather, where it knew their condition, and that showering was necessary to protect them against excessive heat. Peck v. Chicago G. W. R. Co. 16: 883, 115 N. W. 1113, 138 Iowa, 187. 904. A shipper of hogs is not negligent as as matter of law in failing to secure water to shower them, when loading, from neigh- boring wells, where they are not heated in loading, and he reasonably expects that fa- cilities for showering them will be availa- ble en route. Peck v. Chicago G. W. R. Co. 16: 883, 115 N. W. 1113, 138 Iowa, 187. 905. A railroad company transporting hogs in hot weather, which, upon being no- tified by the shipper that they need shower- ing to keep them in condition, neglects to do so, is liable for loss of animals caused by overheating. Peck v. Chicago G. W. R. Co. 16: 883, 115 N. W. 1113, 138 Iowa, 187. (Annotated) 906. A clause in a contract for the car- riage of hogs, that the animals are to be loaded, watered, fed, and cared for by the shipper, does not impose upon him the duty of sprinkling them to keep down their tem- perature en route. Peck v. Chicago G. W. R. Co. 16: 883, 115 N. W. 1113, 138 Iowa, 187. 907. A shipper of hogs is not negligent as matter of law in permitting the carrier to incorporate them into a train on a connect- ing line immediately upon reaching the junc- tion, although they are thereby deprived of the chance of being showered, which could have been done had he waited for the next train, where he did not know when it would arrive, and those in charge of the train knew of the condition of the hogs. Peek v. Chi- cago G. W. R. Co. 16: 883, 115 N. W. 1113, 138 Iowa, 187. Sidetracking car containing. 908. A carrier which receives for trans- portation a carload of live stock, and places it on a side track awaiting the arrival of a train of which the car is to become a part, is bound to use only ordinary and reasonable care to avoid injury to the stock by cold, and is liable for injury to the stock through freezing only where common pru- dence would have required it to anticipate that freezing conditions were probable, and to provide against tliem by sheltering the animals. Colsch v. Chicago, M. & St. P. R. Co. 34: 1013, 127 N. W. 198, 149 Iowa, 176. (Annotated) Necessity of unloading during transit. 909. A carrier of live stock is not ab- solved from liability for loss due to its re- fusal to unload when necessary, by the fact that the owner, when informed of that fact, consented that the stock might be immedi- ately forwarded from the point where un- loading became necessary. St. Louis S. W. R. Co. v. Mitchell, 37: 546, 142 S. W. 168, 101 Ark. 289. 910. Where a carrier has established the Digest 1-52 L,.R.A.(N.S.) custom to unload stock at a particular place for their proper care and necessary preser- vation, a shipper, in delivering stock to the carrier without notice of change of custom, may rely on its being observed, and the carrier will be liable for loss resulting from its breach. St. Louis S. W. R. Co. v. Mitchell, 37: 546, 142 S. W. 108, 101 Ark. 289. Injury to caretaker. Shipper of stock as passenger, see supra, 83, 84. Conditions in pass given caretaker of stock, see supra, 642, 643. Limiting liability for injury to shipper, see supra, 070. Contributory negligence, see supra, 324-328, 341, 380, 381; TRIAL, 393, 395, 403. See also infra, 981. 911. Those in charge of a freight train are negligent in permitting a caretaker of stock who is compelled by illness to leave the train to do so in the dark, while the car is standing on an open trestle. Otto v. Chicago, B. & Q. R. Co. 31: 632, 127 N. W. 857, 87 Neb. 503. 912. A stock shipper riding on a freight train for the purpose of caring for his ship- ment of live stock is entitled to the highest degree of care and protection consistent with the proper and careful operation of the train, and with that means of trans- portation. Otto v. Chicago, B. & Q. R. Co. 31: 632, 127 N. W. 857, 87 Neb. 503. (Annotated) 913. That the crew in charge of a freight train at the time it was wrecked did not know of the presence of a stock owner in a stock car is immaterial on the question of the liability of the company for injury to him, if the company had notice of his pres- ence there. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. 914. A railway company is liable to a caretaker of stock for injuries sustained by falling from a walk constructed around the top of the railroad cattle pens and which gave way because of a decayed and defective support; while he was engaged in inspecting the cattle which were being fed and watered, where the defect was known to the company or was patent, and had ex- isted so long that notice of it might reason- ably be inferred. Atchison, T. & S. F. R. Co. v. Allen, 10: 576, 88 Pac. 966, 75 Kan. 190. (Annotated) g. Stipulations as to liability. 1. In general. (See also Carriers, II. 6, 7, a, in Digest L.R.A. 1-1/0.) As to passengers, see supra, II. m, 6. As to baggage, see supra, II. o, 5. Prohibition against, as interference with In- terstate commerce, see COMMERCE, 85- 87. Conflict of laws as to, see CONFLICT OF LAWS, 50, 52-55. CARRIERS, III. g, 2. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 447. Ratification by shipper of contract limiting liability, see CONTRACTS, 561, 562. Duress in obtaining signature to contract limiting liability, see DURESS, 7. Estoppel to deny validity of, see ESTOPPEL, 232. Burden of proving shipper's assent to, see EVIDENCE, 167. Burden of proving validity and reasonable- ness of, see EVIDENCE, 528. Necessity of pleading noncompliance by shipper with contract, see PLEADING, 465. Limitation of liability of vessel owner, see SHIPPING, I. By telegraph company, see TELEGRAPHS, II. Question for jury as to, see TRIAL, 609, 610. Right to establish defense of, on cross- examination of plaintiff, see WIT- NESSES, 90. See also supra, 797, 809a, 836. 915. A common-law doctrine holding a common carrier to the liability of an in- surer does not preclude the parties to the shipment from entering into a contract re- ferring to the carrier's liability. Summer- lin v. Seaboard Air Line R. Co. 19: 191, 47 So. 557, 56 Fla. 687. 916. Since the performance by a carrier of his implied undertaking not to deviate is a condition precedent to his right to avail himself of contractual limitations of his lia- bility, it is not necessary, in order to de- prive him of the benefit of such stipulations, to trace the loss which has occurred to the deviation. Joseph Thorley, Ltd. v. Orchis S. S. Co. Ltd. 2 B. R. C. 565, [1907] 1 K. B. 660. Also reported in 76 L. J. K. B. N. S. 595, 96 L. T. N. S. 488, 23 Times L. R. 338, 12 Com. Cas. 251. (Annotated) 917. The owners of a vessel which has de- viated from the voyage described in the bill of lading are not entitled to the benefit of a clause therein exempting them from lia- bility for loss arising from negligence of stevedores employed by them in discharging the ship. Joseph Thorley, Ltd. v. Orchis S. S. Co. Ltd. 2 B. R. C. 565, [1907] 1 K. B. 660. Also reported iji 76 L. J. K. B. N. S. 595, 96 L. T. N. S. 488, 23 Times L. R. 338, 12 Com. Cas. 251. 918. A contract limiting the liability of a carrier for property lost while in its pos- session is void, where the statute makes invalid any contract by the carrier for ex- emption from liability for such loss. Chesapeake & 0. R. Co. v. Beasley, 3: 183, 52 S. E. 566, 104 Va. 788. 919. A provision in a bill of lading that the property shall be at the risk of the own- er from the time of its arrival at destina- tion is inoperative under a constitutional provision that no common carrier shall be permitted to contract for relief from its common-law liability. Lewis v. Louisville & N. R. Co. 25: 938, 122 S. W. 184, 135 Ky. 361. 920. A carrier of live stock may, by special contract, so limit its liability for Digest 1-52 L.R.A.(N.S.) loss or damages that it will be liable only in the event tl.at it is guilty of gross negli- gence. Central R. Co. v. Hall, 4: 898, 52 S. E. 679, 124 Ga. 322. 921. A railroad company may, by special contract, limit its liability to the owner of stock intrusted to it for transportation, except as to limitations relating to its liability for negligence or misconduct. Mis- souri, K. & T. R. Co. v. Davis, 24: 866, 104 Pac. 34, 24 Okla. 677. 922. A shipper of cattle may rightfully refuse to sign a special contract limiting the carrier's cem-mon-law liability, if the preliminary negotiations relating to the shipment did not result in a valid agree- ment that it shall be made under such a contract, although he knows the custom of carriers to require written contracts and, in the course of long experience as a ship- per, had always signed written contracts, and, following the negotiations, intended to sign a contract of the kind he had been using for similar shipments, although he was not familiar with the terms thereof. St. Louis & S. F. R. Co. v. Gorman, 28: 637, 100 Pac. 647, 79 Kan. 643. Authority of shipper's agent to as- sent. 924. A shipper who by his authorized agent fills out a printed receipt blank which is tendered to, and the terms thereof ac- cepted by, the carrier, is bound by a clause therein limiting the carrier's liability, since, by himself preparing the receipt, the shipper made it his own contract, notwith- standing the blank form when furnished by the carrier already contained the liability clause. Perrin v. United States Express Co. (N. J. Err. & App.) 28: 645, 74 Atl. 462, 78 N. J. L. 515. (Annotated) 2. As to negligence. (See also Carriers, II. 6, 7, 6, in Digest L.R.A. 1-10.) Stipulation by telegraph company, see TELE- GRAPHS, II. d. Question for jury as to, see TRIAL, 555. See also infra, 942-946. 925. A common carrier of goods cannot legally stipulate for exemption from lia- bility for losses occasioned by its own negli- gence of that of its agents or servants, and all stipulations for exemption from negli- gence, whether gross or ordinary, are in- effectual. Summerlin v. Seaboard Air Line R. Co. 19: 191, 47 So. 557, 56 Fla. 687. 926. A carriage contract which exempts carrier from liability for loss occasioned by other than its gross negligence, in attempt- ing to relieve the company from all liability for loss from ordinary negligence, is against public policy, and void. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 927. Where degrees of negligence are not recognized, a contract by which a carrier undertakes to relieve itself from liability for injury, unless the same is the direct re- sult of wilful misconduct or actual negli- 424 CARRIERS, III. g, 3. gence on its part, is invalid as an attempt to relieve itself from liability for injury through ordinary negligence. Adams v. Colorado & S. R. Co. 36: 412, 113 Pac. 1010, 49 Colo. 475. 928. A provision in a carriage contract that the shipper assumes all loss and dam- ages sustained by reason of delay in trans- portation that does not result from wilful misconduct or actual negligence of the car- rier is void as an attempt to relieve the carrier of liability for negligent delay in transportation. Adams v. Colorado & S. R. Co. 36: 412, 113 Pac. 1010, 49 Colo. 475. 929. The pr&visions of a contract whereby a shipper of sheep assumes all the risk ol damage which may be sustained by reason of delay in the transportation, or loss or damage for any other cause or thing not re- sulting from wilful or gross negligence of the carrier; and all provisions exempting or limiting the liability for loss or damage re- sulting from the failure to exercise proper care, contravene public policy, and are void. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 930. Where, under a contract by a shipper of live stock to load, unload, feed, and care for the stock in transit, the carrier cannot relieve itself from liability for its own negligence, it cannot escape liability for injury due to its failure to provide a suitable place in which to unload and care for the stock. Gilliland v. Southern R. Co. 27: 1106, 67 S. E. 20, 85 S. C. 27. Assent by shippers; reduced rates. 931. While a common carrier cannot limit his legal liability by any notice given, either by publication, or by entry on receipts given, or tickets sold, he may, by special contract, relieve himself of his common- law liability as an insurer, and may* con- tract against liability arising from cer- tain losses which do not involve negligence on the part of himself or his servants; but he cannot, even by special contract, exempt himself from liability for loss of goods in- trusted to him, where the loss arises from such negligence. Central of Georgia Ry. Co. v. Hall, 4: 898, 52 S. E. 679, 124 Ga. 322. 3. As to amount. (See also Carriers, II. 6, 7, c, in Digest L.R.A. 1-10.) Prohibition against, as interference with interstate commerce, see COMMERCE, 85-87. Stipulation by telegraph company, see TELEGRAPHS, II. d. Question for jury as to, see TRIAL, 611. 932. Inquiry as to the actual value of an interstate shipment is not vital to the fair- ness, under the Carmack amendment of June 29, 1906, to the act of February 4, 1887, 20, of a stipulation in the carrier's receipt, limiting its liability to the agreed or declared value, where such receipt, as well as the published rates on file with the Interstate Commerce Commission, plainly Digest 1-52 L,.R.A.(N.S.) show that the rate charged was based upon value. Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. Assent of shipper; reduced rates. In case of negligence, see infra, 942, 943, 945, 946. Incorporating into contract of carriage ex- trinsic document showing valuation of property, see CONTRACTS, 336. Effect of contract limiting liability on measure of damages for injury, see DAMAGES, 294. Presumption of shipper's knowledge that rate was based upon value of shipment, see EVIDENCE, 205, 206. 933. The ordinary rule of damages will apply in case of injury by a carrier to live stock in its possession for transportation, if it secured the contract fixing its value by fraud or deceit. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 45: 529, 156 S. W. 400, 153 Ky. 730, 157 S. W. 926, 154 Ky. 549. 934. A railway company, in its capacity as a common carrier, may, as a basis for fixing 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 agree- ment as to the value of the property to be transported, and in case of its loss, damage, or destruction the shipper will be bound by the agreed valuation; but a mere general limitation as to the value, expressed in a bill of lading and amounting to no more than an arbitrary preadjustment of the measure of damages, will not, though the shipper assent in writing to the terms of the document, serve to exempt a negligent carrier from liability for the true value. Central of Georgia Ry. Co. v. Hall, 4: 898, 52 S. E. 679, 124 Ga. 322. 935. A"carrier could, at common law, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage, to an agreed value, made for the purpose of obtaining the lower of two or more rates, propor- tioned to the amount of the risk. Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. 936. A stipulation in a carrier's receipt limiting its liability to an agreed or de- clared value, made to adjust the rate, ia not forbidden by the provision of the Car- mack amendment of June 29, 1906, to the act of February 4, 1887, 20, that "no con- tract, receipt, rule, or regulation shall ex- empt such common carrier, railroad, or transportation company, from the liability hereby imposed." Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. 937. A contract between shipper and car- rier fixing the value of property to be trans- ported as a basis for carrier's charges, which shall be binding on the shipper in case of loss, is not forbidden by the provi- sion of the Carmack amendment of the Hep- burn act of Congress, that no contract shall exempt the carrier from liability for loss of property caused by itself or by any con- CARRIERS, III. g, 4. necting carrier. Bernard v. Adams Exp. Co. 28: 293, 91 N. E. 325, 205 Mass. 254. (Annotated) 938. The Hepburn act of Congress, mak- ing a common carrier liable to the holder of its bill of lading for any loss of property delivered to it for transportation, and for- bidding it to contract for exemption from liability, does not prevent the agreement upon a valuation of the property for the purpose of fixing rates of transportation, which shall be binding upon the shipper in case of loss of the property. Greenwald v. Barrett, 35: 971, 92 N. E. 218, 199 N. Y. 170. 939. If a carrier forwards a car of horses by a train other than that provided for by the contract, upon which a caretaker was to accompany them, he abrogates the car- riage contract, at the election of the ship- per, and deprives himself of the benefit of a provision therein which fixes the value of the horses for purposes of transportation. McKahan v. American Express Co. 35: 1046, 95 N. E. 785, 209 Mass. 270. (Annotated) 940. The acceptance by a snipper from the carrier of a receipt stating that the value of the property shall be considered for purposes of transportation as a sum specified, if no other has been given by the shipper, renders such valuation binding up- on the shipper, if he had knowledge of the provision. Greenwald v. Barrett, 35: 971, 92 N. E. 218, 199 N. Y. 170. 941. A contract fixing, for purposes of transportation, the value of an article de- livered to a carrier for that purpose, will not operate to relieve the carrier from lia- bility to pay the full value of the article if it was embezzled by its agent. Adams Express Co. v. Berry & Whitmore Co. 31: 309, 35 App. D. C. 208. (Annotated) In case of negligence. See also supra, 934. 942. While a common carrier cannot con- tract for immunity from liability for the loss or injury to property resulting from negligence, it may, by a special contract, in consideration of reduced charges or 'special concessions, agree upon the value of the thing shipped as the measure of damages, whether the loss results from negligence or not, provided the valuation agreed upon is not such as to render the contract unreason- able. Alabama G. S. R. Co. v. Knox, 49: 411, 63 So. 538, 184 Ala. 485. 943. A carrier cannot, by a contract fixing the value of the property carried in relation to the amount of freight paid, limit its lia- bility pro tanto for losses caused by its own negligence. Southern Exp. Co. v. Owens, 8: 369, 41 So. 752, 146 Ala. 412. 944. An agreement fixing, for all purposes of a carriage contract, the value of prop- erty to be transported by the carrier at the amount stated by the shipper, is not ob- noxious to a statute forbidding the carrier to contract to exonerate itself from liability for gross negligence, although the value so fixed is much less than the true value of the property; and the carrier therefore is Digest 1-52 L.R.A.(N.S.) not liable for a greater amount, even though loss occurs through its gross negligence. Donlon v. Southern P. Co. n: 811, 91 Pac. 603, 151 Cal. 763. 945. It is violative of public policy for a carrier, as a paid bailee, to limit the extent of its liability for the negligence of itself or its agents or servants by an agreed valua- tion upon consideration of reduced charges for carriage of goods, when such agreed val- uation is disproportionate to the real value of the goods, although the contents of the package, or its real value, were not disclosed to the carrier. Southern Exp. Co. v. Gibbs, 18: 874, 46 So. 465, 155 Ala. 303. 946. The approval by the state commis- sion of a freight rate based on limited valuation of the property does not, al- though the carrier is bound to transport at that rate, absolve it from liability for full value of the property if it is lost through its negligence. Everett v. Norfolk & S. R. Co. i: 985, 50 S. E. 557, 138 N. C. 68. (Annotated) 4. As to time of giving notice or com- mencing suit. (See also Carriers, II. 6, 7, d, in Digest L.R.A. 1-10.) Question for jury as to reasonableness of time for presentation of claim, see JURY, 206. Effect of failure to plead noncompliance with provision as to, see PLEADING, 465. Stipulation by telegraph company, see TELE- GRAPHS, 76-81. 947. A provision in a bill of lading as to notifying the carrier of injury to freight within a specified time after delivery does not apply if the carrier's agent is present when it is unloaded and receives full notice of the injury. Kime v. Southern R. Co. 43-: 617, 76 S. E. 509, 160 N. C. 457. 948. A stipulation in a bill of lading that claims for injury to the property carried must be made within thirty days after its delivery at destination is valid and enforce- able notwithstanding a statute which pro- vides that no contract shall exempt a com- mon carrier from its liability as such, which would exist had no contract been made. Liquid Carbonic Co. v. Norfolk & W. R. Co. 13: 753, 58 S. E. 659, 107 Va. 323. (Annotated) 949. A provision in a bill of lading that any claim for damages must be presented within a certain time is not available to the carrier in case he delivered the goods to the wrong person. Salberg v. Pennsyl- vania R. Co. 31: 1178, 77 Atl. 1007, 228 Pa. 641. (Annotated) 950. Stipulations in contracts between carrier and shipper, when fairly entered into and found to be reasonable under all the cir- cumstances, requiring the presentation of a claim for loss, are not in all cases against public policy, and, for that reason, ineffect- ual, merely because the claim pertains to a 426 CARRIERS, III. g, 5, h. loss occasioned by negligence. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 951. A stipulation in a carriage contract that, unless claims are presented within ten days, they shall be deemed to be waived, fol- lowing stipulations relieving the carrier from liability for loss not resulting from its wilful or gross negligence, refers to claims resulting from such negligence, and cannot be treated merely as dealing with the ques- tion of the presentation of claims arising from loss of all kinds, including those aris- ing from ordinary negligence, so as to give the contract the effect, not of exempting the carrier from liability for loss through its ordinary negligence, but as imposing a con- dition to the liability which the shipper must pbserve before he can enforce it. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. (Annotated) 952. A condition in a carriage contract re- quiring notice of loss within a specified time as a condition precedent to recovery for neg- ligence does not apply to damages resulting from loss due to the falling of the market. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 953. A carrier may be found to have waived a provision of the shipping contract requiring written notice of injury to live stock before it is unloaded and mingled with other stock, if, after it is so mingled, it directs the shipper to have the damages ap- praised by a veterinary surgeon and prom- ises to pay them, with which direction the shipper complies. Gilliland v. Southern R. Co. 27: 1106, 67- S. E. 20, 85 S. C. 27. 954. A railroad company is not absolved from liability for injuries to mules trans- ported by it, caused by the negligence of its employees, by a stipulation in the ship- ping contract that it shall not be liable unless written notice is given to the con- ductor of the train or to the nearest sta- tion or freight agent before the mules are mingled with other live stock or are re- moved from the pens at destination, al- though written notice was not given until the day following the arrival of the stock, which had, upon the day of arrival, been removed from the carrier's stockpens to the shipper's barn, which adjoined the rail- road right of way, and was nearer the depot than the stockpens, where the agent, after the mules had been placed in the shipper's barn, and before they had been mingled with other stock, inspected them and made memoranda, of the injuries, both on the day of arrival and on the following day after service of the notice, since, as such notice constituted a substantial compliance with the contract, it was sufficient. Missouri, K. & T. R. Co. v. Davis, 24: 866, 104 Pac. 34, 24 Okla. 677. (Annotated) Commencing suit. Power of agent to waive provisions as to, see supra, 755. 955. A carrier waives a provision in a car- riage contract limiting the time in which suit may be brought for its breach, by con- suming more than the specified time in in- Digest 1-52 I*R.A.(N.S.) vestigating the claim, and promising, be- fore the expiration of such period, that it would not take advantage of the limitation if the claim was rejected. Adams v. Colo- rado & S. R. Co. 36: 412, 113 Pac. 1010, 49 Colo. 475. 5. Exceptcd perils. (See Carriers, II. b, 7, e, in Digest L.R.A. 1-10.) h. Contract or duty to furnish cars. (See also Carriers, II. b, 8, in Digest L.R.A. 1-10.) Duty to receive and transport freight of- fered, see supra, III. b. Liability for loss because of failure to fur- nish proper cars, see supra, 808-810. Writ of error from United States Supreme Court in action to penalize carrier for failure to furnish cars, see APPEAL AND ERROR, 65. Penalty for failure to furnish as regulation of commerce, see COMMERCE, 88-93. Measure of damages for breach of duty, see DAMAGES, 282-284. Loss of profits as element of damages, see DAMAGES, 695. Exclusiveness of statutory remedy for fail- ure to furnish cars, see ELECTION OF REMEDIES, 11. Acceptance by company of requisition for cars as contract, breach of which gives a cause of action ex contractu, see ELECTION OF REMEDIES, 15. Evidence to show negligence in failing to furnish cars according to requisition, see EVIDENCE, 1784. Depriving employees of work by failure to deliver cars, see INJUNCTION, 250. Who may maintain action for carrier's fail- ure to deliver cars as promised, see PAR- TIES, 81. Allegations as to, see PLEADING, 421, 422. Refusal of instruction requested by carrier as to contract to furnish cars, see TRIAL, 850. See also supra, 752. 956. A railroad does not comply with its duty to provide itself with cars sufficient to transport the coal mined along its lines, by providing sufficient cars to transport all the coal mined should the transportation be equally distributed throughout the year, if they are totally inadequate to transport the coal tendered during the fall and- win- ter months, when the bulk of the traffic in that commodity occurs. Illinois C. R. Co. v. River & R. Coal & C. Co. 44: 643, 150 S. W. 641, 150 Ky. 489. (Annotated) 957. An oral contract whereby a railroad company undertakes, through a station agent, to furnish cars for a shipment of live stock at a specified station and at a specified time, is not avoided by a written contract, signed by the shipper, for the transporta- tion of the live stock, subsequent to a breach of the oral contract, unless there is some CARRIERS, III. i, j, 1. 427 consideration moving to the shipper as com- pensation for damages incurred by him in consequence of the breach of the oral con- tract. Clark v. Ulster & D. R. Co. 13: 164, 81 N. E. 766, 189 N. Y. 93. 958. An oral contract to furnish cars for a shipment of stock, resulting from the ship- per's request for a car and the station agent's assent thereto and promise to fur- nish the car, is not void for want of mutual- ity, since the shipper's request for the car carries with it, by implication of law, an agreement to make use of the car if his re- quest is complied with, and a correlative promise to pay the carrier, in the event of nonuser, whatever loss it may thereby in- cur. Clark v. Ulster & D. R. Co. 13: 164, 81 N. E. 766, 189 N. Y. 93. (Annotated) 959. A written request to an agent of a railroad company to furnish freight cars "at once" will be regarded as equivalent to "im- mediately" or "to-day," in an action to re- cover the statutory penalty imposed upon a railroad company failing to furnish cars within a certain time after they are applied for. Patterson v. Missouri Pacific Coal Co. 15: 733, 94 Pac. 138, 77 Kan. 236. 960. A railroad company which has ac- cepted a requisition from a fruit importer for cars to receive the cargoes of vessels to arrive during a certain week is not bound to keep someone on watch at places where notice of the arrival of vessels are reported, so as to know when cars will be needed. Di Giorgio Importing & S. S. Co. v. Pennsyl- vania R. Co. 8: 108, 65 Atl. 425, 104 Md. 693. 961. A railroad company which has obli- gated itself to furnish refrigerator cars te transport garden truck to market cannot escape liability for breach of that duty upon the ground that the crop was unusually large, if it was no larger than might reason- ably have been expected from the acreage planted, knowledge of which the railroad company either had, or had the means of obtaining. Atlantic C. L. R. Co. v. Geraty, 20: 310, 166 Fed. 10, 91 C. C. A. 602. 962. A railroad company which owns no refrigerator cars may be held liable for not furnishing them to shippers of garden truck, if it led them to expect that, if they raised the truck, the refrigerator cars nec- essary for its proper transportation would be furnished. Atlantic C. L. R. Co. v. Geraty, 20: 310, 166 Fed. 10, 91 C. C. A. 602. * (Annotated) 963. A railroad company cannot be held liable for the loss resulting from a few hours' delay in furnishing cars to receive the cargo of fruit steamers under a requisi- tion covering the entire week, where it was not notified that cars were needed until sev- eral hours after the arrival of one steamer and until a few minutes before the arrival of another, where the owner of the fruit had been kept posted of the progress of the vessels after they were first sighted, and therefore might have notified the railroad company of the exact time when the cars would be needed. Di Giorgio Importing & S. S. Co. v. Pennsylvania R. Co. 8: 108, 65 Atl. 425, 104 Md. 693. (Annotated) Digest 1-52 L.R.A.(N.S.) 964. To excuse a carrier from liability for damages because of its failure to fur- nish cars as requested by a shipper it must, if it has reason to anticipate its inability to do so, advise the shipper of that fact. Di Giorgio Importing & S. S. Co. v. Penn- sylvania R. Co. 8: 108, 65 Atl. 425, 104 Md. 693. i. Demurrage on cars. (See also Carriers, II. 6, 9, in Digest L.R.A 1-10.) Regulation by corporation commission of demurrage charges, see infra, 1018. Illegal sale of shipment to pay demurrage as ground for reversal of judgment against shipper for balance of carrier's charges, see APPEAL AND ERROR, 1577. Power of state as to demurrage charges on interstate shipments, see COMMERCE, 73, 74. Demurrage on vessel, see SHIPPING, 8-11. See also supra, 877. 965. A carrier has no lien on the cargo for demurrage for delay in unloading at destination. Nicolette Lumber Co. v. People's Coal Co. 3: 327, 62 Atl. 1060, 213 Pa. 379. (Annotated) 966. A shipper of carload lots which the carrier is not under duty to unload is not liable for demurrage upon the consignee's refusal to accept the consignment, until notice is given the shipper of such refusal. Baltimore & 0. R. Co. v. Luella Coal & Coke Co. 52: 398, 81 S. E. 1044, W. Va. j. Connecting carriers. 1. In general. (See also Carriers, II. c, 2, a, in Digest L.R.A. 1-10.) Compulsory connection and interchange of business, see infra, IV. b. Prejudicial error in admission of evidence in action against, see APPEAL AND ERROR, 1148. Reversible error in instruction as to which carrier's negligence was proximate cause of injury, see APPEAL AND ERROR, 1383. Interference with interstate commerce by statute regulating liability of, see COM- MERCE, 79-81. Equal protection of the laws as to, see CON- STITUTIONAL LAW, 220. Denial of due process by statute regulating liability of, see CONSTITUTIONAL LAW, 447. Infringement of freedom to contract by regulation of, see CONSTITUTIONAL LAW, 460. Costs in action against initial carrier for loss on connecting line, see COSTS AND FEES, 31. Presumption and burden of proof as to lia- bility, see EVIDENCE, 382, 526. 428 CARRIERS, III. j, 1. Sufficiency of evidence to show receipt of package for transportation by connect- ing carrier, see EVIDENCE, 2311. Proviso in Carmack amendment, see STAT- UTES, 238. Conversion by connecting carrier, see TROVER, 34. See also supra, 830, 898. 967. In the absence of a special contract a railroad company, by receiving goods for transportation over its own line and other lines therewith connected, is only bound to carry the goods er its own line, and de- liver them safely to the next connecting carrier. Roy v. Chesapeake & O. R. Co. 31: i, 57 S. E. 39, 61 W. Va. 616. (Annotated) 968. By accepting freight marked for a particular place, a carrier is prima facie bound to carry it to and deliver it at that place, although beyond the terminus of its own line. Wabash R. Co. v. Thomas, 7: 1041, 78 N. E. 777, 222 111. 337. 969. A common carrier who accepts goods for shipment to be delivered to a connecting carrier will be liable for any damages to the goods resulting directly from its negli- gence, although the loss may not actually occur until after the goods are delivered to the second carrier. Whitnack v. Chicago, B. & Q. R. Co. 19: ion, 118 N. W. 67, 82 Neb. 464. (Annotated) 970. In an action against both initial and terminal carrier for damages caused by neg- ligent delay, although the initial carrier had notice that prompt delivery was im- portant, and that loss of profits would re- sult from delay, where all the delay is shown to have been on the terminal line, then, in the absence of statute or contract to such effect, the initial carrier will not be held liable for any of the damages re- sulting, although it may have failed to deliver such special notice, unless it appears that such delay was the proximate result of the failure to deliver such notice. Atchison, T. & S. F. R. Co. v. St. Louis & S. F. R. Co. 48: 509, 135 Pac. 353, 41 Okla. 80. 971. To hold an initial carrier liable for injury to goods discovered upon their reach- ing their final destination, which were billed over the line of a connecting carrier to a specified place and lost en route, where an unsuccessful attempt to change the des- tination through the initial carrier was afterwards made, and after their arrival at the original destination they were for- warded by the connecting carrier, the owner must show that the injury occurred before the first destination was reached. Sheehy v. Wabash R. Co. 38: 1126, 135 N. W. 655, 169 Mich. 604. 972. A railroad company which undertakes to carry goods to destination over the track of another company, which it uses under an agreement that while its trains are on such track they are under the control and direction of the servants of the owner of such track, is liable for injury to the prop- erty caused by the negligence of such agents while the train is under their control. St. Digest 1-52 L,.R.A.(N.S.) Louis S. W. R. Co. v. Wallace, 22: 379, 118 S. \V. 412, 90 Ark. 138. (Annotated) 973. A connecting carrier which agrees, upon being indemnified by a shipper against loss or damage arising from or caused by its attempt to comply with his request, to act as his agent to stop certain goods in transit after they have left such carrier's lines, and return them to him, is not liable for loss of the goods or damage thereto, occurring on the return without its fault and not on its own line, on the ground that an implied contract safely to return the goods in consideration of the payment of return freight charges arose from the writ- ten contract, as, in such case, the carrier is not acting as a common carrier for the shipment back to the original point, but only as the agent of the shipper. Erie R. Co. v. Cappel, 22: 945, 88 N. E. 144, 80 Ohio St. 128. (Annotated) 974. It is the duty of a carrier which has transported a horse to a connecting point with another railroad over which the animal is consigned, to redeliver the horse to the consignor without unreasonable delay, on the payment of its charges, if the consignor de- cides not to ship farther. Wente v. Chicago, B. & Q. R. Co. 15: 756, 115 N. W. 859, 79 Neb. 179. 975. The consignor of a horse shipped by a route which requires the transportation of the animal over two connecting lines of rail- road may decline to ship further, if he so desires, on the arrival of the horse at the connecting point of the railroads, and, upon payment of the charge of the first carrier, is entitled to demand a redelivery of the horse. Wente v. Chicago, B. & Q. R. Co. 15: 756, 115 N. W. 859, 79 Neb. 179. (Annotated) 976. A terminal carrier is not liable to the consignee in damages for delay in de- livering machinery, when the failure to de- liver was due to the consignee's refusal to pay freight charges in a sum greater than that fixed in the bill of lading issued by the initial carrier, when the amount de- manded was not in excess of the legal and proper charges according to the fixed and usual rates, and no contractual relations existed between the terminal and initial carrier with reference to transportation charges, even though the goods were ulti- mately delivered to the consignee upon payment of the amount of freight set out in the bill of lading. Goodin v. Southern R. Co. 6: 1054, 54 S. E. 720, 125 Ga. 630. (Annotated) 977. A common carrier who undertakes during extreme cold weather, to carry two car loads of potatoes and deliver them to a connecting carrier, the contract providing that the shipper should furnish a caretaker to accompany the shipment, and keep fires in the cars, to prevent freezing, is liable for loss of potatoes which became frozen by reason of the cars becoming separated in transit on its lines, whereby the caretaker is prevented from attending to one car of the potatoes, even though they may not have become frozen until after they were CARRIERS, III. j, 2 IV. a. 429 delivered to the second carrier. Whitnack v. Chicago, B. & Q. R. Co. 19: ion, 118 N. W. 67, 82 Neb. 464. 978. The act of Congress making initial carriers liable for injury on connecting lines does not render the initial carrier liable for injury done after, without its notice, the point of destination has been changed and the property rerouted under a new bill of lading over the lines of a new combination of carriers. Parker-Bell Lum- ber Co. v. Great Northern R. Co. 41:1064, 124 Pac. 389, 69 Wash. 123. 979. A liability for some default in its common-law duty as a common carrier, and not liability as an insurer, is what is im- posed by the Carmack amendment of June 29, 1900, to the act of February 4, 1887, 20, under which a carrier receiving prop- erty for interstate transportation is re- quired to issue a receipt or bill of lading therefor, and is made liable to the holder for "any loss, damage, or injury to such property caused by it," or by any connect- ing carrier to whom the property may be delivered. Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. 980. The provision of the Carmack amend- ment of the interstate commerce act, ren- dering a carrier liable for loss or injury to property in its possession for transpor- tation, caused by it or a connecting carrier, does not relieve it from liability for loss caused by derailment of the train due to the sudden springing of an animal onto the track in front of the locomotive, the pres- ence of which could not have been reason- ably anticipated, so that no amount of care on the part of the carriers could have pre- vented the wreck. Cincinnati, N. 0. & T. P. R. Co. v. Rankin, 45: 529, 156 S. W. 400, 153 Ky. 730. Injury to caretaker of stock. 981. The initial carrier is liable for in- jury to one carried to look after stock which it has undertaken to transport, due to the defective condition of the car furnished, al- though the injury occurs after the car has left its line. Blatcher v. Philadelphia, B. & W. R. Co. 16: 991, 31 App. D. C. 385. 2. Selection of route. (See also Carriers, II. c, 2, b, in Digest L.R.A. 1-10.) 982. If a shipper does not route his ship- ment, the carrier may select the route, if there be more than one, but he must exer- cise the option of the selection reasonably under the circumstances, to the best inter- ests of the consignee and shipper, and not to their disadvantage, unless in good faith and under circumstances which seem to re- quire it. Alabama G. S. R. Co. v. McKen- zie, 45: 18, 77 S. E. 647, 139 Ga. 410. Digest 1-52 !L.R.A.(N.S.) fc. Criminal transportation. (See also Carriers, II. d, in Digest L.R.A. 1-10.) Violating liquor laws, see COMMERCE, 42; EVIDENCE, 2410; INDICTMENT, ETC., 33; INTOXICATING LIQUOKS, 115-119; TRIAL, 303. IV. Governmental control; rates; dis- crimination; duty as to stopping places; siding facilities. a. In general. (See also Carriers, III. a, in Digest L.R.A. 1-10.) Requirement of blackboard announcements as to trains, see supra, II. n. Appeal from order of corporation commis- sion, see APPEAL AND ERROR, 155, 702. Penalizing carrier for failure to furnish cars, see APPEAL AND ERROR, 65; COM- MERCE, 88-93. Failure of public service commission to serve copy of petition or complaint upon railroad company, see APPEAR- ANCE, 15. Regulation of interstate business of, see COMMERCE, II. Delegation of power over, to Interstate Commerce Commission, see CONSTITU- TIONAL LAW, 114. Delegation of power to railroad commission, see CONSTITUTIONAL LAW, 119-122. Equal protection and privileges in regula- tion of, see CONSTITUTIONAL LAW, II. a, 3, b. Due process of law in regulation of, see CONSTITUTIONAL LAW, 437, 440-448. Police power as to, see CONSTITUTIONAL LAW, 683-686, 688. Regulations as impairing contract obliga- tions, see CONSTITUTIONAL LAW, 785. Constitutionality of statute imposing pen- alty for refusal to pay claim within certain time, see CONSTITUTIONAL LAW, 332. Prescribing uniform system of accounting and bookkeeping for carriers, see CON- STITUTIONAL LAW, 114, 442. Arbitrarily fixing weight of standards of lumber cars, see CONSTITUTIONAL LAW, 446. Statute giving occupant of lower berth in sleeping car control of unoccupied up- per berth, see CONSTITUTIONAL LAW, 448, 670, 684. Forbidding drumming or soliciting business at railroad stations, see CONSTITU- TIONAL LAW, 688, 785; MUNICIPAL CORPORATIONS, 181, 185. Constitutionality of full crew law, see CON- STITUTIONAL LAW, 440. Review by courts of full crew bill, see COURTS, 102. Injunction against enforcement of full crew act, see INJUNCTION, 355. 430 CARRIERS, IV. a. Requiring express companies to receive at specified time and place all money ten- dered for transportation, see COURTS, 261. Sufliciency of evidence to establish un- reasonableness of order of railroad commission, see EVIDENCE, 2339, 2340. Enjoining carrier from complying with statute regulating shipment of cream, see INJUNCTION, 354. Control of Interstate Commerce Commission over, see INTERSTATE COMMERCE COM- MISSION. Right to jury upon review of order of corpo- ration commission, see JURY, 15. Regulations of railroad commissioners as denial of right to jury trial, see JURY, 54. Mandamus to compel carrier to perform duty as to equipment and operation of road, see MANDAMUS, 75-77, 124, 125. For regulations affecting carrier's duty and liability toward employees, see MASTER AND SERVANT. Requiring operators of street car to protect passengers from dust raised by cars, see MUNICIPAL CORPORATIONS, 131. Party plaintiff in action for fine imposed by railroad commissioner, see PARTIES, 6. Matters as to railroad and other public service commissions, see PUBLIC SERV- ICE COMMISSION. Governmental control of issue of securities, see PUBLIC SERVICE COMMISSION, 7-9. Requiring railroad company to operate warehouse, see RAILROADS, 26, 27. Partial invalidity of statute regulating, see STATUTES, 80. Construction of language of safety ap- pliance acts, see STATUTES, 419-424. 983. It is the duty of the carrier to anticipate the needs of the public, and to provide appropriate and reasonably ade- quate facilities and accommodations to meet the present and prospective demands for the safety, comfort, and convenience of the public, who have a right to use the facili- ties and accommodations. The reasonable requirements of a growing community or of an increasing business should be antici- pated by a carrier in the performance of its public duty. Louisville & N. R. Co. v. Burr, 44: 189, 58 So. 543, 63 Fla. 491. 984. As the carrier is the owner of its property and provides its facilities, and is liable in damages for injuries caused by its negligence in furnishing or using such facil- ities, governmental regulations should ac- cord to the carrier a primary discretion as to the character, dimensions, and details of the facilities required, unless the car- rier fails or refuses to properly exercise its rights. Louisville & N. R. Co. v. Burr, 44: 189, 58 So. 543, 63 Fla. 491. 985. In determining whether a rule or regulation of the railroad commissioners, in its terms or in its practical operation and effect, is unreasonable, and denies to the carrier its constitutional property rights, all the facts and circumstances affecting the rights of all interested parties should Digest 1-52 I*R.A.(N.S.) be considered. Louisville & N. R. Co. v. Burr, 44: 189, 58 So. 543, 63 Fla. 491. 986. The power and duty of a state to re- quire the property of a common-carrier cor- poration devoted to the public service with- in its borders to be maintained in a reason- ably safe and adequate condition, and to be properly operated for rendering the public service to which the property is devoted by its corporate owner, are inherent, and re- served in the state for the necessary pro- tection and benefit of the lives and property within its territory. State ex rel. Ellis v. Atlantic Coast Line R. Co. 13: 320, 44 So 213, 53 Fla. 650. 987. The courts may, by any legal method best suited to the case, determine whether or not the property devoted by a common- carrier railroad corporation to the public service which it is authorized to perform is adequate and is being operated in a reason- ably safe and convenient manner for the proper rendering of such public service, when the question is duly presented by the state through its proper official representative. State ex rel. Ellis v. Atlantic Coast Line R. Co. 13: 320, 44 So. 213, 53 Fla. 650. 988. In determining whether the roadbed, track, rolling stock, and other equipment of a common-carrier railroad corporation is reasonably sufficient, and is being main- tained and operated in a reasonably safe and adequate condition, and is being man- aged for the proper rendering of the public service that the corporation has undertaken to perform, the conditions under which the service is being rendered, the character and extent of the service, its reasonable require- ments, and the means, facilities, and meth- ods best suited to such service in common use, will be considered by the court, together with any other material and pertinent mat- ters available. State ex rel. Ellis v. Atlan- tic Coast Line R. Co. 13: 320, 44 So. 213, 53 Fla. 650. 989. Courts and commissions should not interfere to annul or modify the established rules and practice of transportation compa- nies on account of trivial troubles and inci- dental inconveniences, nor unless clear in- justice or substantial injury or the immi- nent threat of it has resulted from them. Platt v. Lecocq, 15: 558, 158 Fed. 723, 85 C. C. A. 621. 990. Express companies operating over railroads exercising a public franchise in a state are equally subject to state control and regulation with the railroad companies over whose lines they operate, within the limited field of the business of transporta- tion which they occupy. State v. Pacific Exp. Co. 18: 664, 115 N. W. 619, 80 Neb. 823. Free deliveries by express companies. Statute requiring express company to make free deliveries as interference with commerce, see COMMERCE, 32-34. 991. A state cannot compel an express company to make free delivery of parcels committed to its care, in violation of con- tracts made at the place where the parcels are received in another state, that delivery charges shall be paid by the consignee. CARRIERS, IV. a. 431 State ex rel. Railroad Commission v. Adams Exp. Co. 19: 93, 85 N. E. 337, 966, 171 lud. 138. Forbidding getting on or off engines or trains in motion. 992. A statute making it criminal for per- sons, not passengers or employees of rail- roads, to jnmp on or off of railway engines, cars, or trains, does not inhibit such conduct in an employee of a railroad company, whose duties are confined to work in its shops, and do not require him to go upon or about its engines, cars, or trains when in use on its tracks or yards. Diddle v. Continental Cas- ualty Co. 22: 779, 63 S. E. 962, 65 W. Va. 170. 993. Boarding a moving car in good faith to become a passenger thereon is not within the operation of a provision of a statute un- der a caption, "Riding on Freight Trains," which makes it a misdemeanor to get on any train or car while in motion, for the pur- pose of obtaining transportation thereon as a passenger. East v. Brooklyn Heights R. Co. 23: 513, 88 N. E. 751, 195 N. Y. 409. (Annotated) Penalty for delaying loaded cars. Discrimination in rule of railroad commis- sion as to, see CONSTITUTIONAL LAW, 196. 996. Under the power given a railroad commission to require common carriers to furnish all necessary facilities for the con- venient and prompt handling, transporta- tion, and delivery of all freight offered for transportation, and to provide and prescribe the rules and regulations necessary to se- cure the furnishing of such facilities and transportation and delivery of all freight, to direct and control all matters pertaining to railroads that shall be for the good of the public, and to do and perform any act or thing necessary to be done effectually to carry out and enforce the provisions of a railroad commission law, the commission- ers are authorized to adopt a rule making all railroads liable to a shipper in a charge of $1 per day per car for detaining cars properly loaded, with shipping instructions given, in violation of the commission rules, as such a charge is not a penalty, but is a monetary obligation incurred for breach of duty that may be enforced by the ship- per to which it is due. State v. Atlantic C. L. R. Co. 32: 639, 47 So. 969, 56 Fla. 617. 997. The liability or charge prescribed by the rule of a railroad commission making a carrier liable to a shipper in the sum of $1 per day per car for the unlawful deten- tion of loaded cars is a cumulative remedy in the nature of a charge or recompense for the inconvenience or detention resulting directly to the shipper from the act ' or omission of the carrier, in the payment of which the public is not interested, and is therefore not a penal liability for the fail- ure of payment of which a penal punish- ment can be imposed. State v. Atlantic C. L. R. Co. 32: 639, 47 So. 969, 56 Fla. 617. Transportation of state militia. 998. The importance of maintaining, in- structing, and disciplining a state militia, and providing adequate and efficient means Digest 1-52 L.R.A.(N.S.) for transporting the members thereof over the railways of the state, is such that the legislature may properly place them in a class when traveling under orders in dis- charge of their duties, and regulate the railway companies as to the mode of fur- nishing transportation and such regulation is not an unlawful interference with de- fendant's management of its own business. State ex rel. Simpson v. Chicago, M. & St. P. R. Co. 41:524, 137 N. W. 2, 118 Minn. 380. Sale of tickets over other road. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 563. 999. A statute which prohibits a common carrier from refusing to put on sale or to sell any ticket of any. other railroad com-, pany with which the same may be directly or indirectly connected, at the price or rate fixed by the railroad commission of the state, or refusing to put on sale with the agent of any other such railroad company tickets for any point upon its line of road, is not unconstitutional in that it inter- feres with and destroys the right of private contract, or compels the railroad company to become the debtor or agent of another railroad company, or to appoint another railroad company its agent and transact its business through the agents of such other company, against its consent. Stephens v. Central of Ga. R. Co. 42: 541, 75 S. E. 1041, 138 Ga. 625. Confining sale of tickets to agents. Forbidding sale of railroad tickets by brok- er as interference with commerce, see COMMERCE, 72. Unlawful delegation of power by statute as to, see CONSTITUTIONAL LAW, 74. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 218, 219. Due process of law as to, see CONSTITUTION- AL LAW, 391, 504. Impairment of contract obligations by stat- ute as to, see CONSTITUTIONAL LAW, 792. Sufficiency of title of statute as to, see STATUTES, 113. 1000. A statute prohibiting the sale of rail- road transportation by persons having no certificate of authority, which must be pro- vided by the railroads to their duly author- ized agents, prohibits the transaction of ticket brokerage business. State v. Thomp- son, 4: 480, 84 Pac. 476, 47 Or. 492. Siding facilities. Due process of law in statute as to, see CONSTITUTIONAL LAW, 443, 444. Agreement to maintain spur track or sid- ing, see CONTRACTS, 369, 510; COVE- NANT'S AND CONDITIONS, 131; INJUNC- TION, 59; SPECIFIC PERFORMANCE, 65, 66, 68. Damages for wrongful refusal to furnish, see DAMAGES, 307. Exercise of eminent domain to secure sid- ing, see EMINENT DOMAIN, 101, 102. Sufficiency of evidence to show demand up- on carrier for, see EVIDENCE, 2309. 432 CARRIERS, IV. b. Bar of judgment in action for damages for carrier's refusal to furnish, see JUDG- MENT, 86. Mandamus to compel construction and operation of side track and switch to private establishment, see MANDAMUS, 74. 1001. A railroad company is under no ob- ligation to furnish siding facilities to ad- joining landowners. Moser v. Philadelphia, H. & P. R. Co. 40: 519, 82 Atl. 362, 233 Pa. 259. ft. Compulsory connection and inter- change of 'business; discrimina- tion between carriers, hacTcmen, etc. ; through rates. (See also Carriers, III. 6, in Digest L.R.A. 1-70.) As to connecting carriers generally, see supra, III. j. 1002. A railway company has the right to exclude from its depots and warerooms persons who come there in an intoxicated condition, and who are turbulent and troublesome and disturb and interfere with the agents and employees of the company in the discharge of their work, and may also exclude therefrom those who are re- ported to be dishonest, and on account of whose past presence in and about its depots and warerooms freight had been removed without the company's consent, and for which it was compelled to pay the con- signee the value thereof. Chicago, R. I. & P. R. Co. v. Armstrong, 39: 126, 120 Pac. 952, 30 Okla. 134. 1003. The refusal of a railroad company rendering services as a common carrier to a corporation, whereby it is enabled to serve the public, to render similar services to another corporation lawfully authorized likewise to serve the public, constitutes, in the absence of a sufficient excuse, unjust discrimination, which the railroad commis- sioners have power, under the Constitution and laws of Florida, to make just and rea- sonable regulations to prevent. State ex rel. Ellis v. Atlantic C. L. R. Co. 12: 506, 41 So. 705, 52 Fla. 646. Discrimination between boat lines in use of wharf. 1004. Where a railroad company acquired 20 acres of station grounds under the pro- visions of the act of Congress of March 3, 1875, chap. 152, 18 Stat. 482 (U. S. Comp. Stat. 1901, p. 1568), for occupation and use as a common carrier, and such grounds are so situated as to abut upon a navigable lake or body of water, and such company con- structs thereon a dock or wharf for use in receiving and discharging freight and pas- sengers from boats and for forwarding through freight and passengers, and the same is in fact used both in carrying on through business and local business, such dock or wharf is a public "facility" for the transportation of freight and passengers within the purview and meaning of 6, Digest 1-52 I,.R.A.(N.S.) art. II, of Idaho Constitution, and such railroad company cannot make any undue or unreasonable discrimination between com- peting boat lines engaged in the same kind or class of business with such railroad com- pany. Coeur d'Alene & St. J. Transp. Co. v. Ferrell, 43:965, 128 Pac. 565, 22 Idaho, 752. 1005. A contract entered into by a railroad company, granting to a steamboat company the exclusive right to receive and discharge freight and passengers at a dock or wharf which is a part of and connected with its depot and station grounds, and which af- fords the only means and facility for ap- proaching the station grounds by means of the water highway, and excluding all the competitors of such steamboat company from like or similar privileges at any time or at all, is undue and unreasonable dis- crimination in favor of the one company and against its competitors, which is in viola- tion of the provisions of the Idaho Consti- tution, art. 11, 6, providing that "no un- due or unreasonable discrimination shall be made in charges or facilities for transporta- tion of freight or passengers of the same class, by any railroad, or transportation or express company, between persons or places within the state." Coeur d'Alene & St. J, Transp. Co. v. Ferrell, 43: 965, 128 Pac. 565, 22 Idaho, 752. (Annotated) 1006. A railroad company owning and maintaining a dock or wharf on its station grounds may adopt and enforce such rea- sonable rules and regulations as will pre- vent blocking and interfering with its busi- ness or with the public traffic; and so long as such rules and regulations are reason- able and do not amount to an undue or un- reasonable discrimination between compet- itors, the same may be enforced and observ- ance thereof required. Coeur d'Alene & St. J. Transp. Co. v. Ferrell, 43: 965, 128 Pac. 565, 22 Idaho, 752. Discrimination between transfer com- panies and hackmen. Injunction to prevent preferential privi- leges to hackman, see INJUNCTION. 111. 1007. A railroad company is not prevented from granting to a particular person en- gaged in transferring passengers and bag- gage the exclusive right to a representative on its trains to solicit patronage, by a stat- ute requiring such corporation to grant equal facilities for transportation of freight and passengers without discrimination. Dingman v. Duluth, S. S. & A. R. Co. 32: 1181, 130 N. W. 24, 164 Mich. 328. (Annotated) 1008. The rights of the public are not im- paired by the grant by a railroad company of the exclusive privilege to solicit patron- age for hacks and baggage transferring with- in its depot grounds, where the recipient of the privilege and the facilities furnished are subject to legislative regulation. Oregon Short Line R. Co. v. Davidson, 16: 777, 94 Pac. 10, 33 Utah, 370. 1009. That the depot grounds of a railroad company are dedicated to public use does not confer the right upon hack and express- CARRIERS, IV. c, 1. 433 men to use them for the purpose of solicit- ing business. Oregon Short Line R. Co. v. Davidson, 16: 777, 94 Pac. 10, 33 Utah, 370. 1010. A railroad company may confer upon selected hackmen or expressmen the right to solicit patronage within its depot grounds. Oregon Short Line R. Co. v. Davidson, 16: 777, 94 Pac. 10, 33 Utah, 370. (Annotated) 1011. A railroad company is not prevented from excluding cab drivers, hackmen, and expressmen from its grounds by a constitu- tional provision that all railroad companies shall receive and transport each other's pas- sengers and freight without discrimination or unnecessary delay. Oregon Short Line R. Co. v. Davidson, 16: 777, 94 Pac. 10, 33 Utah, 370. 1012. A railroad company cannot give to one hackman the right to occupy such a position on its grounds as necessarily to result in his securing by far the larger share of the business, and a contract by which it attempts to do so is void. Ander- son v. Palmer Transfer Co. 19: 756, 115 S. W. 182, 131 Ky. 217. 1013. A railroad company may justify the exclusion of a particular drayman from its premises, to the injury of his business, by showing that, if he was permitted upon the premises he would go about unattended, and that merchandise had disappeared for which the railroad was compelled to pay; while he was about the premises that he was frequently intoxicated; was quarrel- some and interfered with employees in the performance of their duties, and had been arrested for intoxication and theft. Chi- cago, R. I. & P. R. Co. v. Armstrong, 39: 126, 120 Pac. 952, 30 Okla. 134. (Annotated) In respect to specific and unusual service. Public policy as to grant of exclusive privi- lege to use box cars for advertising, see CONTRACTS, 429. 1014. A railroad company which as a com- mon carrfer voluntarily transports and de- livers between stations on its line employ- ees and freight for one incorporated public telegraph company, and refuses similar services to another telegraph company, is guilty of unjust discrimination, and may be compelled to perform like services for the latter for a reasonable compensation, al- though the service, being voluntarily ren- dered, is in pursuance of a contract. State ex rel. Ellis v. Atlantic C. L. R. Co. 12: 506, 41 So. 705, 52 Fla. 646. (Annotated) 1015. The provision of a contract giving exclusive rights of advertising on the box cars of a railroad company, by which it undertakes to transport without charge the material and employees of the other party to and from the points designated for af- fixing and removing signs, contravenes a statutory provision making it unlawful for any transportation company to give any undue preference to any person in any re- spect whatever. National Car Advertising Co. v. Louisville & N. R. Co. 24: 1010, 66 S. E. 88, 110 Va. 413. Digest 1-52 L.R.A.(N.S.) 28 c. Rates; discrimination between pas- sengers or shippers; rebate; pass- es. 1. In general. (See also Carriers, III. c, 1, in Digest L.RA. 1-10.) Charging extra fare in certain cases, see supra, II. m, 4. Fixing valuation of property as basis for rate, see supra, 931-946. Prematurity of suit to enjoin rates, see AC- TION OB SUIT, 18. Action by attorney general to enjoin car- riers from exacting unlawful rates, see ATTORNEY GENERAL, 7. Regulation of rates in interstate business, see COMMERCE, 82-84. Definiteness of promise by carrier to main- tain special rate, see CONTRACTS, 156. Criminal liability of carrier compelling agent to violate statute as to rates, see CRIMINAL LAW, 56. Who may bring action to recover excessive freight rates, see PARTIES, 33. Regulation of telephone rates, see TELE- PHONES, 17-23. 1016. The modern common law imposes up- on common carriers the duty of equality in freight rates to all shippers similarly cir- cumstanced, for the transportation of the same class of goods the same distance; and our statutes prohibiting such discrimina- tion are declaratory of the common-law rule. Sullivan v. Minneapolis & R. R. R. Co. 45: 612, 142 N. W. 3, 121 Minn. 488. 1017. A carrier which, through innocent mistake, quotes a rate on merchandise which is less than that on tile with the Interstate Commerce Commission, in response to a re- quest for a rate in order to fix a selling price at destination, is not liable for the loss occasioned by the shipper's being com- pelled to pay the correct rate to get posses- sion of his goods. Shenberger v. Union P. R. Co. 33: 391, 113 Pac. 433, 84 Kan. 79. ( Annotated ) 1018. A rule of a state ^corporation com- mission providing that ten^ days' free stor- age shall be allowed by railroad companies on less than car-load shipments when des- tined to consignees living at interior points 5 miles or more from the railroad station is within the meaning of a constitutional provision giving the commission paramount authority to prescribe the rates, charges, and classifications of transportation com- panies, and therefore renders inoperative a general act of the legislature, attempting to regulate the same subject-matter. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. Posting or filing rates. Injunction against filing schedules of rates with interstate commerce commission, see INTERSTATE COMMERCE COMMIS- SION, 3. 1019. The amended interstate commerce act of 1887 (act February 4, 1887, chap. 104, 434 CARRIERS, IV. c, 2. 24 Stat. at L. 379; U. S. Coinp. Stat. 1901, p. 3154) neither lays a tax or duty on ar- ticles exported from any state nor gives a preference to the ports of one state over those of another, within the meaning of U. S. Const, art. 1, 9, H 5, and is not obnox- ious thereto. Armour Packing Co. v. Unit- ed States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1020. The rates of transportation from places in the United States to ports of transhipment, and from ports of entry to places in the United States, of property in foreign commerce carried under through bills of lading, are required to be filed and published, by the amended interstate com- merce act of 1887 (act February 4, 1887, chap. 104, 24 Stat. at L. 379, U. S. Comp. Stat. 1901, p. 3154). Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1021. If foreign commerce is carried under an aggregate through rate which is the sum of the ocean rate and the rate from or to a place in the United States to or from the port of transhipment or of entry, the latter rate is required to be filed and published, by the amended interstate commerce act of 1887 (act February 4, 1887, chap. 104, 24 Stat. at L. 379; U. S. Comp. Stat. 1901, p. 3154). Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1022. The joint rate is required to be filed and published, by the amended interstate commerce act of 1887 (act February 4, 1887, chap. 104, 24 Stat. at L. 379; U. S. Comp. Stat. 1901, p. 3154), where foreign commerce is carried under a joint through rate by virtue of a common control, management, or arrangement of the inland and ocean car- riers. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1023. That a railroad company, when pub- lishing its rates for hauling cars from one point to another within the limits of a city, was under the mistaken impression that it was not beund to do a regular freight business between such points, does not entitle it to charge more than its pub- lished rates for handling such freight, and it cannot avoid this result by insisting that the rate was wily for switching service, where it had done both switching and trans- portation service at such rate. Higdon v. Lousiville & N. R. Co. 33: 442, 135 S. VV. 768, 143 Ky. 73." 1024. A carrier engaged in interstate com- merce cannot lawfully charge, collect, or receive anything but money for transporta- tion on its road since the enactment of the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1149), 6, prohibiting any carrier from demanding, collecting, or receiving "a greater or less or different compensation" for the transportation of persons or prop- erty, or for any service in connection there- with, than that specified in its published schedule of rates. Louisville & N. R. Co. v. Mottley, 34: 671, 31 Sup. Ct. Rep. 265, 219 I U. S. 467, 55 L. ed. 297. Digest 1-52 L.R.A.(N.S.) Penalty for overcharge. Constitutionality of statute imposing pen- alty for refusal to sell tickets of con- necting carrier at prescribed rates, see CONSTITUTIONAL LAW, 563. Pleading in action to recover penalty, see PLEADING, 440. 1025. A railroad company exacting fares for transportation in excess of those allowed by statute does not become subject to in- dictment where the statute provides a pen- alty against it, for so doing, recoverable for the benefit of the person injured, by the fact that such conduct is forbidden by one sec- tion of the statute, while the penalty is fixed by another section, especially where the agent disobeying the statute is made lia- ble to indictment for a misdemeanor. State v. Southern R. Co. 13: 966, 59 S. E. 570, 145 N. C. 495. 1026. A carrier is not liable for the statu- tory penalty provided for charging exces- sive fare, if after, through honest mistake, giving the passenger a ticket for a station short of the one called and paid for, iz re- fuses to honor the ticket past the point to which it reads, but compels payment ot ad- ditional fare from that point to destination. Chicago, R. I. & P. R. Co. v. McDermott, 44 : 281, 152 S. W. 983, 106 Ark. 170. ( Annotated ) 1027. Where a railroad company having an office or agency within the state has on sale tickets furnished by a connecting rail- road for the transportation of passengers over the latter, and refuses to sell such ticket to a prospective passenger who ap- plies to the agent of the initial carrier therefor, at the price fixed by the railroad commission of the state, the railroad com- pany so refusing is subject to the penalty provided by Georgia Code, 2755, for the refusal of a railroad company to put on sale or refuse to sell any ticket of any other railroad company with which the same may be directly or indirectly connect- ed, at the price or rate fixed by the railroad commission of the state. Stephens v. Cen- tral of Ga. R. Co. 42: 541, 75 S. E. 1041, 138 Ga. 625. 2. Power to fix rates; mileage tickets. (See also Carriers, III. c, 2, in Digest L.R.A. 1-70.) Interference with commerce by statute pre- scribing maximum rates, see COMMERCE, 82-84. Delegation of power as to fixing of rates, see CONSTITUTIONAL LAW, 120. Equal protection and privileges as to rates, see CONSTITUTIONAL LAW, 212-217, 493. Due process as to, see CONSTITUTIONAL LAW, 493-498. Imposing penalty for refusal to comply with regulations, see CONSTITUTIONAL LAW, 563, 564. Constitutionality of statute as to mileage tickets, see CONSTITUTIONAL LAW, 214. CARRIERS, IV. c, 3. 435 Judicial power to review rates fixed, see COURTS, 134. Jurisdiction of action to enforce or enjoin rates, see COURTS, 249-25]. Injunction by Federal court against en- forcement of state railroad rate law, see COUBTS, 285. Injunction against enforcement of rates fixed by statute generally, see INJUNC- TION, 353. Attorney general as proper party defend- ant to suit to restrain enforcement of statute as to rates, see PARTIES, 167. Suit by stockholders of company to enjoin it from complying with statute regu- lating rates, see PLEADING, 173. Jurisdiction of equity of proceeding to test validity of statute fixing rates, see EQUITY, 42. Presumption of validity of statute fixing rates, see EVIDENCE, 84, 85. Pleading in suit to enjoin carrier from com- plying with statute regulating rates, see PLEADING, 173. Reference on question of validity of rates, see REFERENCE, 17. When rates fixed by statute become effec- tive, see STATUTES, 14. See also supra, 999. 1028. The legislative assembly can, under North Dakota Constitution, 142, prescribe maximum rates for the transportation by common carriers of commodities between points within the state, provided the rates thus prescribed are reasonable. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. Special rate for state militia. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 212, 493. 1029. An act establishing a lower rate than the maximum passenger rate for the carriage of members of the state's military force upon railway lines within the state, when such members are required to so travel under orders in discharge of their military duties, is not an unlawful discrimination of which defendant may complain; the de- fense having been waived that such rate is not compensatory. State ex rel. Simpson v. Chicago, M. & St. P. R. Co. 41: 524, 137 N. W. 2, 118 Minn. 380. (Annotated) Rates on street cars. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 216, 217. Due process of law as to, see CONSTITU- TIONAL LAW, 496-498, 564. Public policy as to condition in franchise requiring certain persons to be carried free, see CONTRACTS, 511. Making violation of rule as to street car transfers a crime, see CONSTITUTIONAL LAW,. 76. 1030. Persons attending universities and business colleges are not within the meaning of a street railway franchise providing that school children going to and returning from school shall ride for half fare; especially where such construction has been acted upon by the contracting parties without^ question for a number of years. State ex rel. Seattle Digest 1-52 L.R.A.(N.S.) v. Seattle Electric Co. 43:172, 128 Pac. 220, 71 Wash. 213. (Annotated) 1031. A municipal corporation empowered by Oklahoma Const, art. 18, 6, to operate a street railway line, may require a street railway company to which it grants fran- chises, to carry policemen, firemen, United States mail carriers, and children under a certain age free, and to furnish transporta- tion to school children at a reduced fare, and such conditions are not invalidated by the provisions of Okla. Const, art. 9, 13, forbidding carriers to grant free transpor- tation. Oklahoma City v. Oklahoma R. Co. 16: 651, 93 Pac. 48, 20 Okla. 1 (Annotated) 1032. The provisions of Oklahoma Const., art. 9, 13, forbidding a street railway to furnish free transportation except in cer- tain specified cases, do not justify the rail- way company in refusing free transporta- tion to United States mail carriers, police- men, and firemen, or in refusing to trans- port school children at half fare, in accord- ance with provisions contained in the com- pany's franchise, although such persons are not designated in the constitutionally ex- cepted classes, since such transportation is not free, inasmuch as it formed part of the consideration for the granting of the fran- chise. Oklahoma City v. Oklahoma R. Co. 16: 651, 93 Pac. 48, 20 Okla. 1. 3. Reasonableness of rates. (See also Carriers, III. c, 3, in Digest L.R.A. 1-10.) Requirements as to extra fare, see supra, II. m, 4. Review of findings as to, see APPEAL AND ERROR, 972. Judicial power to review rates, see CONSTI- TUTIONAL LAW, 89; COURTS, 134. Confiscatory rates, see COURTS, 250. Presumption of validity of statute prescrib- ing, see EVIDENCE, 665. Rebuttal of presumption as to reasonable- ness, see EVIDENCE, 2049. Sufficiency of evidence to overcome pre- sumption of reasonableness, see EVI- DENCE, 2341-2343. Right to jury in determining validity of statute establishing rates, see JURY, 14. See also supra, 1028. 1033. Before the courts are called upon to adjudge an act of the legislature fixing maximum rates for express companies un- constitutional on the ground that they are unreasonable and confiscatory, they should be fully advised as to what is done with the receipts and earnings of the company; for, if so advised, it might clearly appear that a prudent and honest management within the rates prescribed would secure to the company a reasonable compensation for the use of its property and for conducting its business. State v. Adams Express Co. 42: 396, 122 N. W. 691, 85 Neb. 25. 1034. The legislative assembly of a state can reduce the intrastate freight rate upon a particular commodity below the cost of 436 CARRIERS, IV. c, 3. transportation thereof provided the carrier is still able to earn a fair profit upon their entire intrastate business. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. 1035. The test as to whether the rates for the intrastate transportation by common carriers of coal in carload lots as estab- lished by a state statute enacted under con- stitutional authority is reasonable or un- reasonable is not whether the rate fixed on a particular commodity is sufficiently high to enable the carrier to earn a fair compen- sation after allowing for the legitimate cost to the carrier of transporting the same, but whether, under such rates, it will be en- abled from its total freight receipts on all its intrastate traffic to earn a sum, above operating expenses reasonably necessary for such traffic, sufficient to yield a fair and reasonable profit upon its investment. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. (Annotated) 1036. Public-service corporations in Penn- sylvania are entitled to look for a rate of return, if their property will earn it, not less than the legal rate of interest; and a system of charges that yields no more in- come than is fairly requisite to maintain the plant, pay fixed charges and operating expenses, provide a suitable sinking fund for the payment of debts, and pay a fair profit to the owners of the property, is not unreasonable. Pennsylvania R. Co. v. Phil- adelphia County, 15: 108, 68 Atl. 676, 220 Pa. 100. 1037. A 2-cent passenger-rate act violates a constitutional provision forbidding the leg- islature to do injustice to the corporators of the railroad company by the alteration of rates, when, although not amounting to actual confiscation, it has an inevitable ten- dency thereto. Pennsylvania R. Co. v. Phil- adelphia County, 15: 108, 68 Atl. 676, 220 Pa. 100. 1038. In determining whether a 2-cent pas- senger rate is reasonable, the receipts from the passenger traffic may be treated as a separate subject of examination and regula- tion, and the other sources of revenue of the company excluded. Pennsylvania R. Co. v. Philadelphia County, 15: 108, 68 Atl. 676, 220 Pa. 100. (Annotated) 1039. The market value of the stocks and bonds representing the entire property of a railway company, which includes assets of considerable value which do not form part of the operating property of the car- rier, or that devoted to the public service, furnishes no criterion when testing the rea- sonableness of state regulation of rates by which to determine the value of the prop- erty on which the fair return essential to their validity is to be computed. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1040. The cost to a railway company of ac- quiring the land necessary for its terminals, yards, and right of way if the railway were not there, and the company should be called upon to reproduce its road, including the Digest 1-52 HR.A.(N.S.) estimated excess over the market value of contiguous or similarly situated property which it is conjectured that the railway company would be obliged to pay, and an allowance for consequential and severance damages, and for possible improvements that might be found on the property taken, is not the proper basis for valuing such property for the purpose of testing the reasonableness of state regulation of rates. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. (Annotated) 1041. Estimates of the value of the right of way, yards, and terminals of a railway company cannot properly be based, when testing the reasonableness of state regula- tion of its rates, upon their supposed value for railway purposes in excess of the fair market value of contiguous or similarly situated property. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1042. The fair present value of a railway company's right of way, yards, and ter- minals cannot be increased when testing the reasonableness of state regulation of its rates, by adding further sums calcu- lated on that value for engineering, super- intendence, legal expenses, contingencies, and interest during construction. Minneso- ta Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1043. The physical valuation of the prop- erty of a railway company on the basis of the cost of reproduction new for the pur- pose of testing the reasonableness of state regulation of its rates is incomplete, where depreciation is found in general terms to be more than off-set by appreciation, with- out showing the specific items of such ap- preciation and depreciation. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1044. A division of the value of the prop- erty of an interstate carrier within a state according to gross earnings derived respec- tively from its interstate and intrastate business in such state does net give a suffi- ciently accurate measure of the value of the use of its property in intrastate busi- ness to serve as the basis of a judicial hold- ing in a close case that the intrastate rates, as fixed by the state, are confiscatory. Min- nesota Rate Cases, 48: 1151, -33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1045. The total value of the property of an interstate carrier within a state, independ- ently of revenue, should be divided as be- tween its interstate and intrastate business in such state, when testing the reasonable- ness of , state regulation of its intrastate rates, according to the use that is made of the property, assigning to each business that proportion of the total value of the property which will correspond to the ex- tent of its employment in that business. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 1046. A state may not fix the intrastate rates of an interstate carrier so low that the carrier's entire revenue from all its CARRIERS, IV. c, 4. 437 business in the state, both interstate and intrastate, after paying only operating ex- penses and taxes, amounts to only about 4 per cent on the value of its property in the state. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 4. Discrimination; rebates; passes. (See also Carriers, III. c, 4> * Digest L.R.A, 1-70.) Duty to receive and transport generally, see supra, III. b. Recovery back of discriminatory freight rate, see ASSUMPSIT, 31; PLEADING, 157. Due process in regulations, as to, see CON- STITUTIONAL LAW, 441. Effect on jurisdiction of state courts of ac- tion for discrimination of 'Federal In- terstate Commerce Act, see COURTS, 293. Measure of damages for, see DAMAGES, 291. Evidence as to, see EVIDENCE, 1846, 2031, 2032. Injunction to restrain discrimination against shipper, see INJUNCTION, 409. Liability for interest on discriminatory rate exacted, see INTEREST, 2. Question for Interstate Commerce Commis- sion as to whether undue preference is given any locality by reason of opera- tion of intrastate rate, see INTERSTATE COMMERCE COMMISSION, 4. Construction of statutes in pari materia forbidding discrimination, see STAT- UTES, 234. Discrimination in rates by telephone com- pany, see TELEPHONES, 24-26. Question for jury as to, see TRIAL, 612. See also supra, 879. 1047. The common-law obligation of a car- rier by sea is to receive goods which it is able and accustomed to carry in the order of their tender, without discrimination as be- tween shippers of the same or of different commodities. Ocean Steamship Co. v. Savan- nah Locomotive Works & S. Co. 20: 867, 63 S. E. 577, 131 Ga. 831. 1048. Even though there be no common- law duty on the part of common carriers to maintain equality in rates, under a stat- ute prescribing the same and thus imposing a new obligation upon the carrier a shipper who has been discriminated against has a right of action in damages therefor, there being no civil remedy provided by the stat- ute. Sullivan v. Minneapolis & R. R. R. Co. 45: 612, 142 N. W. 3, 121 Minn. 488. 1049. The shipper's common-law right of action for damages for discrimination in rates is not taken away by rate-regulating statutes, which furnish no civil remedy to the shipper therefor. Sullivan v. Minneapo- lis & R. R. R. Co. 45: 612, 142 N. W. 3, 121 Minn. 488. (Annotated) 1050. The interstate commerce act does not prohibit the giving of all preferences and advantages or the production of all preju- Digest 1-52 L.R.A.(N.S.) dices and disadvantages, but only those that are undue and unreasonable. Gamble-Rob- inson Com. Co. v. Chicago & N. W. R. Co. 21 : 982, 168 Fed. 161, 94 C. C. A. 217. 1051. An interstate carrier docs not sub- ject a consignee to an undue or unreason- able prejudice or disadvantage, within the meaning of the interstate commerce act, by exacting, after due notice to it, the prepay- ment of charges for transportation of all property consigned to it, while it does not require such charges to be paid in advance j upon freight consigned to others similarly situated, even though such discriminations were made for the express purpose of injur- ing the business of such consignee, and it was the custom and usage of the carrier to transport and deliver the freight in such cases, and to give credit until any questions regarding the correctness of the charges had been adjusted, and then to collect the bills of the consignee. Gamble-Robinson Com. Co. v. Chicago & N. W. R. Co. 21: 982, 168 Fed. 161, 94 C. C. A. 217. (Annotated) 1052. A contract for carrying an inter- state shipment over connecting lines be- tween points for which no true rate is scheduled, for a rate which is less than the combined scheduled rates between the in- itial and terminal points and the junction, is void. Atchison, T. & S. F. R. Co. v. Bell, 38: 351, 120 Pac. 987, 31 Okla. 238. (Annotated) 1053. A contract between a carrier and a shipper to transport the latter's goods in interstate or foreign commerce at the then established rate, for a definite time, is in- valid. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1054. The shipping over a railroad of the products of a mill does not justify a dis- criminatory rate in favor of the logs shipped to the mill from which the product is made. Hilton Lumber Co. v. Atlantic Coast Line R. Co. 6:225, 53 S. E. 823, 141 N. C. 171. (Annotated) 1055. The word "contemporaneously," in a statute prohibiting discrimination in freight rates, does not mean that the shipment must have been made the exact day and hour, or necessarily month; but it means a period of time through which the shipments of goods or freight are made by the com- plaining party at one rate and by other shippers at another rate. Hilton Lumber Co. v. Atlantic Coast Line R. Co. 6: 225, 53 S. E. 823, Ul N. C. 171. 1056. A common carrier which has leased the track of a connecting carrier, and which delivers cars free of charge to elevators located on such leased track, is not guilty of discrimination in collecting a switching charge for the delivery of cars to another elevator located on the lines of the con- necting carrier beyond the leased portion of the track and at a point on the line in which the first carrier had no right what- ever except the right to deliver cars' upon payment of the switching charges, which are thus collected of the elevator owner, and such carrier is not liable to return 438 CARRIERS, IV. c, 4. the amount so collected. Banner Grain Co. v. Great Northern R. Co. 41: 678, 137 N. W. 161, 119 Minn. 68. (Annotated) 1057. Refusal by a carrier to permit a merchant to reship cars of freight con- signed to him to purchasers on the original waybill, all charges to be collected at destination, when such privilege is accord- ed to other shippers, is not within a statute making it unlawful for any carrier to make or give undue preferences or advantages to any particular shipper, or subject him to any undue or unreasonable disadvantage or prejudice. Brown & Brown Coal Co. v. Grand Trunk R. System, 29: 840, 124 N. W. 528, 159 Mich. 565. 1058. The practice of an express company, in conformity with its rules, to refuse to re- ceive packages of specie and currency on the day preceding that upon which the only trains carrying express matter start from the place of tender for the destinations of the packages, does not violate S. D. Rev. Pol. Code, 437, forbidding any common carrier to give any preference or advantage to any particular person, locality, or de- scription of traffic, where the rules and prac- tice are universal and apply to all cities and points within the state. Platt v. Lecocq, 15: 558, 158 Fed. 723, 85 C. C. A. 621. Between passengers; passes. Discrimination against colored persons, see CIVIL RIGHTS, 3. Invalidating carrier's contract for annual passes, see COMMERCE, 71. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 367, 495, 791. Provision in franchise as to carrying cer- tain persons free or at reduced rate, see CONTRACTS, 212. Enforcement of contract to give passes ren- dered illegal by subsequent passage of statute, see CONTRACTS, 633, 634, 766. Validity of agreement between carrier and citizens of municipality for issuance of special rate tickets, see. MONOPOLY AND COMBINATIONS, 7. Prohibiting officer from riding on free pass, see OFFICERS, 83. Retrospective effect of statute prohibiting contracts for free transportation, see STATUTES, 299. 1059. A statute prohibiting the issuance, acceptance, and use of free transportation is within the power of the state to regulate the business of common carriers by pre- venting unjust discriminations. State v. Martyn, 23: 217, 117 N. W. 719/82 Neb. 225. 1060. A particular minister of the Gospel whom a carrier refuses to carry for the customary reduced fare charged such per- sons has no right of action against the carrier because of the discrimination. Il- linois C. R. Co. v. Dunnigan, 24: 503, 50 So. 443, 95 Miss. 749. 1061. An interstate carrier cannot make a valid contract to issue annual passes for life in consideration of a release of a claim for damages since the enactment of the act of June 29, 1906, 6, expressly prohibit- ing any carrier from demanding, collect- [ ing, or receiving "a greater or less or dif- Digest 1-52 L.R.A.(N.S.) ferent compensation" for the transporta- tion of persons or property, or for any service in connection therewith, than that specified in its published schedule of rates. Louisville & N. R. Co. v. Mottley, 34: 671, 31 Sup. Ct. Rep. 265, 219 U. S. 467, 55 L. ed. 297. 1062. Transportation of stockholders of a railroad company to and from their annual meetings, without charge, in accordance with the provisions of a lease of the road, is not free, within the meaning of a statute, en- acted after the execution of the lease, for- bidding, under penalty, railroad companies to give free transportation. Emerson v. Boston & M. R. Co. 27: 331, 75 Atl. 529, 75 N. H. 427. 1063. A statute forbidding railroad compa- nies to give free transportation will not be construed to invalidate the provisions of an existing lease, requiring the lessee to transport stockholders of the lessor to and from their annual meetings, free of charge. Emerson v. Boston & M. R. Co. 27: 331, 75 Atl. 529, 75 N. H. 427. 1064. Under constitutional and statutory provisions forbidding discrimination in rates by carriers between the same classes of passengers, free transportation or special rates may be given to employees of the is- suing road and their families; doctors, nurses, and helpers being hurried to wrecks; soldiers and sailors going to or coming from institutions for their keeping; minis- ters of religion and persons engaged in charitable and religious work; and children and persons who, by reason of physical in- juries, defects, or deformities, or other mis- fortune, are unable to compete with man- kind in general. John v. Northern P. R. Co. 32: 85, 111 Pac. 632, 42 Mont. 18. 1065. The giving by railroad companies of passes even to employees of other railroad companies is prohibited by constitutional and statutory provisions that all individ- uals shall have equal rights to have persons transported on railroads, and no discrimi- nation in charges shall be made, and that it is unlawful for any carrier to charge any person any greater sum for a ticket than is charged another for a similar ticket of the same class. John v. Northern P. R. Co. 32: 85, 111 Pac. 632, 42 Mont. 18. 1066. A contract by a railroad company to furnish the proprietors of a newspaper, as requested, transportation at the statutory rate under certain limitations and restric- tions not required in ordinary tickets, in payment for advertising to be furnished "at agreed rates," which rates are not specified in the contract, but are to be set- tled by the parties themselves by another agreement, contravenes the statutes prohib- iting unjust discriminations, which seek to preserve to every individual an equal right to the transportation services of common carriers upon equal terms with every other individual. State v. Union Pacific R. Co. 31: 657, 126 N. W. 859, 87 Neb. 29. (Annotated) 1067. A pass issued to a physician who con- tracts to perform certain services for a rail- CARRIERS, IV. d. 439 road company in consideration of a certain sum per ' month and an annual pass is, in contemplation of law, a free pass, if the services do not require a major portion of the physician's time. State v. Martyn, 23: 217, 117 N. W. 719, 82 Neb. 225. 1068. A contract between a railroad com- pany and a physician, by the terms of which he is to receive for professional services to be rendered by him for the company, at its request, $25 per month and an annual pass over its lines, where the physician does not spend a major portion of his time in the employment of the company, is prohibited by a statute making it a penal offense for a railroad to give, or any person not ex- pressly excepted thereby to receive and use, free transportation, when the physician is not within the excepted class; and a physi- cian who accepts and uses such a pass vio- lates the statute. State v. Martvn, 23: 217, 117 N. W. 719, 82 Neb. 225. (Annotated) Against commodities. See also svipra, 1047. 1069. The carrier's common-law obligation indifferently to serve the public in the re- ceipt and transportation of goods does not inhibit a carrier by sea from making spe- cific arrangements in advance for the trans- portation of certain goods by a particular vessel, provided that privilege is indifferent- ly extended to all patrons, or if the grant of such privilege to shippers of that commodity does not interfere with the carrier's dis- charge of duty to the shippers of other com- modities with respect to the receipt and transportation of their goods. Ocean Steam- ship Co. v. Savannah Locomotive Works & S. Co. 20: 867, 63 S. E. 577, 131 Ga. 831. 1070. A common carrier by sea cannot law- fully reject lumber, a commodity which it professes to carry, and afterwards receive and transport cotton and other goods, where, at the time of the tender, there was room in the vessel for the rejected lumber, and the safety of the vessel would in no wise be im- periled. Ocean Steamship Co. v. Savannah Locomotive Works & S. Co. 20: 867, 63 S. E. 577, 131 Ga. 831. Discrimination by lessee. 1071. A railroad company is not liable for discrimination in siding facilities, made contrary to the provisions of a statute, by its lessee, against an adjoining mill owner, after the lease was executed, and the lessee had gone into possession of the property. Moser v. Philadelphia. H. & P. R. Co. 40: 519, 82 Atl. 362, 233 Pa. 259. (Annotated) Rebates. Jurisdiction of crime of receiving or giving rebate, see COURTS, 34. Criminal intent to violate interstate com- merce act, see CRIMINAL LAW, 11. Prosecution for inducing shippers to re- ceive, see CRIMINAL LAW, 220; EVI- DENCE, 843, 1890; INDICTMENT, ETC., 44, 57, 80, 81; MONOPOLY AND COMBINA- TIONS, 72, 73. By telephone company, see TELEPHONES, 24. 1072. An allowance to a packer of a certain sum per car for the use of his private track Digest 152 L.R.A.(N.S.) in hauling freight from his plant out to his property line, where the track joins that of a carrier forming part of an interstate system, which is in the form of a refund of terminal charges, is an illegal rebate un- der the Elkins act. Chicago & A. R. Co. v. United States, 26: 551, 156 Fed. 558, 84 C. C. A. 324. (Annotated) 1073. The giving or receiving of a rebate or concession, whereby property in inter- state or foreign commerce is transported at less than the established rate, is the essence of the offense denounced by the Elkins act (act February 19, 1903, chap. 708, 32 Stat. at L. 847; U. S. Comp. Stat. Supp. 1905, p. 599). Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1074. An unfounded belief on the part of a shipper } that by means of a contract with a carrier it can annul or evade the plain declaration of the Elkins act (act February 19, 1903, chap. 708, 32 Stat. at L. 84-7; U. S. Comp. Stat. Supp. 1905, p. 599), forbid- ding the giving or receiving of a rebate or concession from the established rate for the transportation of goods, is but an error of law, which constitutes no defense to a prose- cution for violating the provisions of the statute. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1075. The meaning of the clause "by any device whatever," in the Elkins act (act February 19, 1903, chap. 708, 32 Stat. at L. 847; U. S. Comp. Stat. Supp. 1905, p. 599), forbidding the giving or receiving of a re- bate or concession from the established rate, for the transportation of goods, is "directly or indirectly," or "in any way whatever." Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 1076. A rebate, or a concession, from a part of a single rate, whereby property is transported thereunder at a less rate than the established rate, is a concession from the entire rate, and renders all transportation thereunder illegal. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. d. Duty as to depots, agents, and fa- cilities; stopping trains; duty to run trains. As to safety of approaches and platform, see supra, II. 1. Grant of exclusive privilege to hacks, car- riages, etc., see supra, 1007-1013. Conveyance to railroad in consideration of agreement to maintain depot on land conveyed, see COVENANTS AND CONDI- TIONS, 8. Injunction against enforcement of order of railroad commission as to maintenance of depot, see INJUNCTION, 325. Injunction to prevent breach of covenant to run trains, see INJUNCTION, 24. Right to jury upon review of order of cor- poration commission as to depot facili- ties, see JURY, 15. Reasonableness of requiring railroad com- pany to run trains oA T er abandoned route, see PLEADING, 641. 440 CARRIERS, IV. d. Review by courts of order of public service commission, see PUBLIC SERVICE COM- MISSION, 10-19. Reasonableness of order of public service commission as to maintenance of depot, see PUBLIC SERVICE COMMISSION, 17, 18. 1077. An order of a state railroad com- mission directing a railroad company that already has a station at a certain town to "open its station . . . for the purpose of affording accommodations to the trav- eling public," is sufficiently definite to in- form the company as to what is required. Sewafd v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1078. An order of a state corporation com- mission, directing a railroad company to open its station and "provide suitable seats, fuel, and water for the comfort of the passengers," is not sufficiently definite to be enforceable. Scward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. W. 557. 1079. While it is the absolute duty of a railroad company to transport freight and passengers, it is only an incidental duty to provide depots, waiting rooms, station agents, and telephone and telegraph facili- ties. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1080. It not being the absolute duty of a railroad company to provide depots, wait- ing rooms, station agents, and telephone and telegraph facilities, when the railroad company is called upon to provide such facilities the question of expense becomes important in determining the reasonable- ness of such a requirement of the company. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1081. Under a constitutional provision au- thorizing the railroad commission to re- quire railway companies to maintain ade- quate depots, station buildings, agents, and facilities for the accommodation of pas- sengers and for receiving and delivering freight and express as may be reasonable and just, the commission, in determining what are adequate facilities, must take into consideration the volume of business, the revenue derived by the railroad therefrom, the number of people to be accommodated, the present facilities, and all the facts and circumstances, considering, on the one hand, the rights of the stockholders of the railroad, and, on the other, the rights of the public. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 1082. A statute authorizing railroad com- missioners to make and enforce lawful, just, and reasonable rules and regulations requiring railroad companies to establish and maintain passenger depots, facilities, and accommodations that are reasonably adequate and suitable for the safety, com- fort, and convenience of all who have a right to use such facilities, includes the right to require adequate waiting rooms, toilet rooms, baggage room, sheds, and lights. Louisville & N. R. Co. v. Burr, 44: 189, 58 So. 543, 63 Fla. 491. Digest 1-52 L.R.A.(N.S.) 1083. That a station ordered by a railway commission will not pay expenses does not render the order confiscatory in effect, where the revenue from the entire road in the state at least will not be relatively diminished to any great extent. Chicago, R. I. & P. R. Co. v. Nebraska State R. Com. 26: 444, 124 N. W. 477, 85 Neb. 818. (Annotated) 1084. The moving of a railroad station less than 400 feet for the better accommo- dation of the public is not an abandonment of the station, within the meaning of a statute requiring consent of the railroad commissioners to such abandonment. Louis- ville & I. R. Co. v. Callahan, 34: 412, 136 S. W. 1018, 143 Ky. 517. (Annotated) Stopping trains. Review of order requiring stopping of in- terstate trains, see APPEAL AND ERROR, 1018. Ordinance as to stopping of interurban cars, see CONSTITUTIONAL LAW, 685. Contracts or covenant to establish station and stop trains, see CONTRACTS, 368, 507-509; 628; COVENANTS AND CONDI- TIONS, 130, 131; PARTIES, 42; PLEAD- ING, 195, 654; SPECIFIC PERFORMANCE, 25. 1085. An order of a state railroad com- mission requiring a railroad company to stop another interstate train at a specified local town on its line whei3 proper and adequate passenger facilities r.re otherwise afforded is unreasonable. Missouri, K. & T. R. Co. v. State, 29: 159, 107 Pac. 172, 25 Okla. 325. (Annotated) 1086. It is within the power of a railroad commission to require a railroad company to stop one local train each way a day at a platform half way between two stations be- tween 7 and 8 miles apart for the accommo- dation of sixty-four families; and such an order is not so clearly unreasonable that courts will interfere with it when having power to vacate orders of the commission which are shown by clear and satisfactory evidence to be unreasonable. Minneapolis, St. P. & S. Ste. M. R. Co. v. Railroad Com. 17: 821, 116 N. W. 905, 136 Wis. 146. (Annotated) Telegraph and telephone facilities. Review on appeal of findings as to neces- sity of telephone at station, see APPEAL AND ERROR, 465, 1016. Review on appeal of findings as to necessity of keeping telegraph operator at sta- tion, see APPEAL AND ERROR, 1017. See also supra, 1079, 1080; PUBLIC SERVICE COMMISSION, 5. 1087. While a railway company, under the New Mexico Constitution, may be required to provide and maintain adequate facilities and may, upon a proper showing, be re- quired to maintain a telegraph station and agent for the accommodation of passengers and for receiving and delivering freight and express, it cannot, independent of its duties as a common carrier, be required to furnish telegraph facilities so that the pub- lic may commercially derive conveniences CARRYING ON BUSINESS; CARRYING WEAPONS. 441 therefrom. Woody v. Denver & R. G. R. Co. 47: 974, 132 Pac. 250, 17 N. M. 686. (Annotated) 1088. It is not reasonable to require the installation of telegraph service for the purpose of bulletining trains, where the cost of such service is out of proportion to the revenue derived from that portion of the traveling public benefited thereby. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 108Sa. A railway company cannot be rea- sonably and justly required by the state corporation commission to install and main- tain a telegraph operator at a station, un- less it is reasonably necessary for the safe- ty and expedition of the trcAn service, both freight and passenger, or either, and the convenience of the public in the conduct of the freight and passenger service, or either. Chicago, R. I. & P. R. Co. v. State, 24: 393, 103 Pac. 617, 24 Okla. 317. 1088b. A telephone is a facility and con- venience which a railroad company may be required to install, under Okla. Const, art. 9, 18, providing that the corporation com- mission shall require a public-service cor- poration to establish and maintain all such public service facilities and conveniences as may be reasonable and just, as it is an in- dispensable aid in the conduct of the busi- ness of a common carrier at any center of population. Atchison, T. & S. F. R. Co. v. State, 21 : 908, 100 Pac. 11, 23 Okla. 210. Station agent. See also supra, 1079-1081. 1089. It is unreasonable to require the maintenance of an agent at a railroad sta- tion where the yearly receipts are about $2,000, at a cost of about one half such receipts, and where there is no claim that an agent is necessary for the proper oper- ation of the trains run by the company for the safety of the traveling public, and the incoming freight is unloaded by the railroad employees and stored in a freight room where it is protected from pillage and the elements, and where only one person is complaining of the facilities. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. (Annotated) CARRYING ON BUSINESS. What constitutes, see CORPORATIONS, 415- 423. By personal representative, see EXECUTORS AND ADMINISTRATORS, 47-50, 67, 68. CARRYING "WEAPONS. Evidence as to reason for, in prosecution for homicide, see EVIDENCE, 1636. Forfeiture of weapons unlawfully carried, see FORFEITURE, 4. Digest 1-52 L.R.A.(N.S-) Effect of carrying weapon contrary to law on right to use it in self-defense, see HOMICIDE, 91. 1. The provision of 4 of the Kansas Bill of Rights, which declares that "the people have the right to bear arms for their defense and security," is a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia, or any other military organization provided for by law, but is not a limitation on legis- lative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons. Salina v. Blaksley, 3: 168, 83 Pac. 619, 72 Kan. 230. (Annotated) 2. The provisions of .Wilson's Okla. Rev. & Ann. Stat. of 1903, 2502, 2503, prohibit- ing the carrying of certain weapons not rec- 'ognized in civil warfare, are not repugnant to each other or violative of article 2, 26 of the Bill of Rights of the Oklahoma Con- stitution, granting citizens the right to keep and carry arms, subject to legislative control of the carrying of weapons, but are valid provisions under the enabling act and 2 of the schedule of the Constitution, extending territorial laws to the state of Oklahoma. Ex parte Thomas, 20: 1007, 97 Pac. 260, 21 Okla. 770,. 21 Okla. Grim. Rep. 210. (Annotated) 3. A constitutional right to bear arms is not infringed by forbidding the carrying of revolvers without a license. Strickland v. State, 36: 115, 72 S. E. 260, 137 Ga. 1. (Annotated) 4. Carrying in the hand a pair of sad- dlebags with the lids down, which contain a pistol, which is hidden from common ob- servation, is not a violation of a statute making it an offense to carry a pistol about the person, hidden from common observa- tion. Sutherland v. Com. 23: 172, 65 S. E. 15, 109 Va. 834. (Annotated) What weapons may be carried. 5. That a pistol has become defective, in that it has lost its hammer and main- spring, does not destroy its character as a pistol within the meaning of a statute im- posing a penalty for carrying such a weap- on concealed. Mitchell v. State, 34:1174, 55 So. 354, 99 Miss. 579. (Annotated) 6. A pistol filled with dirt and so rusty that it cannot be loaded or unloaded, opened or fired, is not within the law against carrying concealed weapons. Burnside v. State, 45: 780, 62 So. 420, 105 Miss. 408. 7. A razor is not within a statute mak- ing it an offense to carry concealed any toy pistol, glass, or metallic knuckles, slung shot, or other deadly weapon of like kind or description. Brown v. State, 46: 700, 62 So. 353, 105 Miss. 367. "What will justify carrying. 8. A deputy sheriff who, having a war- rant for the arrest of persons in his county, upon hearing they are in an adjoining county, goes there in search of them, has no authority to carry a weapon concealed about his person. Shirley v. State, 38:998, 57 So. 221, 100 Miss. 799. (Annotated) 442 CARS CASE, I. CARS. Attachment of foreign railroad cars, see ACTION OB SU-IT, 42; ATTACHMENT, 23; COMMERCE, 21-24; LEVY AND SEIZURE, 15, 16, 29. Carrier's duty to passenger as to, generally, see CARRIERS, II. g, c. Injury to passenger by fall of car window, see CARRIERS, 203. Carrier's liability for leaving windows of, open, see CARRIERS, 220. Carrier's duty to heat, see CARRIERS, 257- 259. Injury to caretaker of stock by defective car, see CARRIERS, 136, 328. Injury caused by defect in, to employee of consignee or shipper, see CARRIERS, 758-762. Loss of, or injury to, property by failure to furnish proper cars, see CARRIERS, 808- 810. Duty to furnish refrigerator cars, see CAR- BIERS, 811-813. For shipment of live stock, safety of, see CARRIERS, 897-901. Sufficiency of evidence to show negligence of carrier in furnishing defective car, see EVIDENCE, 148. Carrier's contract or duty to furnish, see CARRIERS, III. h. Penalty for failure to furnish, as regulation of commerce, see COMMERCE, 88-93. Damages for failure to furnish, or delay in furnishing, see DAMAGES, 282-284, 695. Election of remedy in case of carrier's failure to furnish, see ELECTION OF REMEDIES, 11. Allegation as to failure or refusal to fur- nish, see PLEADING, 421, 422. Demurrage on, see CARRIERS, III. i. Grant of exclusive privilege to use for ad- vertising, see CONTRACTS, 429. Duty of seller to furnish cars for shipment, see CONTRACTS, 381, 382; SALE, 139, 140. Effect of difficulty in obtaining, on seller's liability for delay, see SALE, 102. Injunction against storage of, in street, see INJUNCTION, 384. Insurance of private railroad cars, see IN- SURANCE, 658, 790. Failure to warn inspector of dangerous con- dition of car, see MASTER AND SERV- ANT, 238. ,ni . Duty of master to inspect foreign cars, see MASTER AND SERVANT, 449. Injury to employee by, generally, see MAS- TER AND SERVANT, II. a, 4, d, 3. Assumption of risk as to, see MASTER AND SERVANT, 539, 540, 560, 569, 570. Contributory negligence of employee as to, see MASTER AND SERVANT, 693-702. Discrimination between, by carrier, see CAR- RIERS, 1007-1013. License tax on wagons used by, see LICENSE, 116. CARTMEN. Liability of baggage transfer company, see CARRIERS, 682. Digest 1-52 I*R.A.(N.S.) CASE. J. In general, 123. II. Inducing breach of contract, 24 43. Right of action for unlawful combination, see CONSPIRACY. Damages for preventing person from se- curing contract, see DAMAGES, 3. Right of action for causing death, see DEATH. Presumption from suppression of evidence, see EVIDENCE, 307. Injuries by fright, see FRIGHT. Power of municipality as to wrongful dis- position of debtor's property, see MU- NICIPAL CORPORATIONS, 178. Liability of seller or manufacturer for in- jury due to defects, see NEGLIGENCE, I. b, 2. Trespass on the case against agent sign- ing principal's name to contract, see PRINCIPAL AND AGENT, 119. Liability for seduction, see SEDUCTION. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. The rightful use of one's own land may in some instances cause damage to another, and yet constitute no legal wrong nor entitle the person damaged to any reme- dy. Belle vue v. Daly, 15: 992, 94 Pac. 1030, 14 Idaho, 545. 2. No action lies for causing tho re- lapse of a convalescent woman by calling her over the telephone during her husband's known absence and with threatening and abusive language ordering her to -take charge of her husband's cattle, which had escaped from their inclosure, under penalty of a threatened visit to her home to avenge the speaker of the assumed wrong inflicted by failure to keep the cattle inclosed. Kramer v. Ricksmeier, 45: 928, 139 N. W. 1091, 159 Iowa, 48. 3. A petition in an action by a widow against the stockholders of a corporation to recover damages for the tortious homi- cide of her husband, it being alleged that the defendants, in pursuance of a conspiracy to bring about the death of her husband, had written a letter calling upon him ta resign his official position in the corpora- tion, of which the defendants were stock- holders and he was vice-president, and ad- vising him not to inquire into the reasons for the demand; that, owing to the nervous condition of the decedent and impaired mental and physical condition, this letter, which was delivered to and read by him, had the effect of causing him to take a CASE, I. 443 portion of some narcotic or drug, which caused his death ; and that the defendants knew that the letter would produce this effect and bring about the death, and in- tended that it should, does not state a cause of action. Stevens v. Steadman, 47: 1009, 79 S. E. 564, 140 Ga. 680. (Annotated) 4. A wife has an interest in and a right to the possession and quiet enjoyment of the homestead of herself and husband, although the legal title thereto is in him; and an unlawful invasion of the premises by tres- passers who, in her presence, ransack the house and interfere with her personal effects, is a legal wrong against her. Lesch v. Great Northern R. Co. 7: 93, 106 N. W. 955, 97 Minn. 503. 5. One who violates a penal statute for- bidding the assigning of a claim against a wage earner out of the state for collec- tion where employer and employee are both found in the state, and the wages are ex- empt from execution, is liable in a civil action for the damages thereby inflicted upon the wage earner. Markley v. Murphy, 47: 689, 102 N. E. 376, 180 Ind. 4. (Annotated) 6. One who makes false statements to a bonding company which result in its with- drawing from the bond of a bank cashier is liable for the damages caused thereby, which may be increased if he acted ma- liciously. McClure v. McClintock, 42: 388, 150 S. W. 332, 849, 150 Ky. 265, 773. (Annotated) 7. A person who has been convicted of a crime, and against whom the conviction stands unreversed, cannot maintain an ac- tion against a witness for negligently giv- ing false evidence which caused him to be wrongfully so convicted, even though the conviction is one from which there can be no appeal. Bynoe v. Bank of England, 3 B. R. C. 247, [1902] 1 K. B. 467. Also Re- ported in 71 L. J. K. B. N. S. 208, 50 Week. Rep. 359, 86 L. T. N. S. 140, 18 Times L. R. 276. (Annotated) 8. That an agreement may create a mo- nopoly, be. in restraint of trade, or opposed to public policy, gives third persons no right of action for damages for injury caused them by its enforcement, or to en- join threatened injury. National Fireproof- ing Co. v. Mason Builders' Asso. 26: 148, 94 C. C. A. 535, 169 Fed. 259. (Annotated) 9. In a civil action in which the de- fendant answers by a general denial, and verifies his answer, but asks no affirmative relief, and judgment is finally rendered against him in the action, he is not responsi- ble in another action for damages for ex- penses incurred in obtaining proof to sus- tain the allegations of the petition, al- though the defendant knew at the time he answered that the allegations were true, and that his verified denial would involve the plaintiff in considerable expense to es- tablish the truth thereof. Baxter v. Brown, 34: 1026, 111 Pac. 430, 83 Kan. 302. (Annotated) 10. As against a trespasser a malicious or intentional injury is actionable, while Digest 1-52 L.R.A.(N.S.) a merely negligent act will not form the basis of recovery, because the duty to ob- serve reasonable care is not owing to the trespasser. Hoberg v. Collins, L. & Co. (N. J. Err. & App.) 31: 1064, 78 Atl. 167, 80 N. J. L. 425. 11. Malicious evasion of a tender of money necessary to prevent a foreclosure of a land contract, by reason of which the pur- chaser loses the profits on a resale which he had negotiated, does not give a right of ac- tion for tort. Loehr v. Dickson, 30: 495, 124 N. W. 293, 141 Wis. 332. 12. A son-in-law has no right of action because he is maliciously excluded by his father-in-law from the latter's premises dur- ing the burial service of his child, the cus- tody of which was awarded to the mother in divorce proceedings, and which was taken by her to reside at her father's house. Rader v. Davis, 38: 131, 134 N. W. 849, 154 Iowa, 306. For breach, of contract. 13. Trespass on the case lies in favor of a property owner to recover unliquidated damages for the breach of a building con- tract. Bagaglio v. Paolino, 44: 80, 85 Atl. 1048, 1136, 35 R. I. 171. Shadowing person. Mitigation of damages for illegal shadow- ing, see DAMAGES, 714. Parties defendant in action for illegal shadowing, see PARTIES, 155. 14. Publicly and openly to follow and watch or shadow one for a period of time is an actionable wrong. Schultz v. Frank- fort Marine Acci. & Plate Glass Ins. Co. 43: 520, 139 N. W. 386, 151 Wis. 537. (Annotated) Preventing employment of person. Pleading in action for preventing plaintiff from obtaining employment, see PLEAD- ING, 404-406. 15. One protesting against the employ- ment of another, for the sole purpose of in- juring him, may be held liable for the dam- ages due to the consequent loss of employ- ment. Huskie v. Griffin, 27: 966, 74 Atl. 595, 75 N. H. 345. 16. A desire to promote his own welfare will not justify an employer's interfering with his employee's obtaining employment elsewhere, if his act constitutes an unrea- sonable interference with the employee's right to an open market. Huskie v. Grif- fin, 27: 966, 74 Atl. 595, 75 N. H. 345. 17. An employer who fraudulently repre- sents that an employee dishonorably left his employment, for the purpose of prevent- ing his securing work with a new employer, may be held liable for the damages caused by his failure to obtain the new situation because of such representation. Huskie v. Griffin, 27: 966, 74 Atl. 595, 75 N. H. 345. (Annotated) Injury to business. Right of third person to complain of rule of college which injures his business, see COLLEGES, 2. Conspiracy to injure business, see CON- SPIRACY, III. 444 CASE, II. Punitive damages for interference with business, see DAMAGES, 35. Measure of damages, see DAMAGES, 508. Evidence as to damages, see EVIDENCE, 1729. Sufficiency of complaint in action for in- terference with business, see PLEADING, 189, 408. See also infra, 28-30; MONOPOLY AND COM- BINATIONS, 15. 18. Malicious injury to the busines of another will give a right of action to the injured party. Southern R. Co. v. Cham- bers, 7: 926, 55 S. E. 37, 126 Ga. 404. 19. An action lies against one who wrong- fully enters another's place of business, and forbids the sale of the goods there exposed, threatening purchasers with prosecution, the result of which is to drive away the customers and stop the business. Sparks v. McCrary, 22: 1224, 47 So. 332, 156 Ala. 382. (Annotated) 20. One merchant cannot legally remove or interfere with cards furnished by his rival to consumers, and displayed by them on their premises as invitations or notices to their owner to call to furnish needed sup- plies. Dunshee v. Standard Oil Co. 36: 263, 132 N. W. 371, 152 Iowa, 618. .21. A wholesaler of oil who, when a cus- tomer in a particular city begins to pur- chase a portion of his stock from a rival, enters the retail business solely for the busi- ness of driving him out of trade, is liable in damages for the loss thereby inflicted upon him. Dunshee v. Standard Oil Co. 36: 263, 132 N. W. 371, 152 Iowa, 618. Injury to property. Right of action by person in possession for injury to property, see PARTIES, 18, 21, 22. See also supra, 4. 22. Case will lie to recover damages for injuries to buildings by blasting in a neigh- boring tunnel, although no negligence is proved. Hickey v. McCabe, 27: 425, 75 Atl. 404, 30 R. I. 346. 23. Case, and not trespass, is the proper form of action to recover for injuries to land from seepage from an irrigation ditch, in the absence of anything to show inten- tion in causing the injury. Fleming v. Lockwood, 14: 628, 92 Pac. 962, 36 Mont. 384. II. Inducing breach of contract. (See also same heading in Digest L.R.A. 1-10.) Conspiracy to induce breach of contract, ^ee CONSPIRACY, 13, 14. Damages for inducing breach of contract, see DAMAGES, 68. Injunction against attempt to induce breach of contract, see INJUNCTION, 122, 137-140, 144-146. Pleading as to, see PLEADING, 402, 403. 24. Procuring a breach of contract is an actionable wrong unless there be justifica- tion for interfering with the legal right. South Wales Miners' Federation v. Glamor- gan Coal Co. 1 B. R. C. 1, [1905] A. C. 239. Digest 1-52 L.R.A.(N.S.) Also Reported in 74 L. J. K. B. N. S. 525, 53 Week. Rep. 593, 92 L. T. N. S. 710, 21 Times L. R, 441. -5. The act of one who wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of the latter, is actionable. Thacker Coal & Coke Co. v. Burke, 5: 1091, 53 S. E. 161, 59 W. Va. 253. 25a. To render one liable for preventing the performance of a contract he must have had knowledge of it. McGurk v. Cronen- wett, 19: 561, 85 N. E. 576, 199 Mass. 457. 25b. A manufacture is liable to a con- sumer for injuries caused by compelling a jobber to break his contract to furnish sup- plies to the consumer by threatening to withdraw from the jobber the right to han- dle his product, on the right to do which his business success depends, for the pur- pose of securing to the manufacturer the direct trade of the consumer. Knicker- bocker Ice Co. v. Gardiner Dairy Co. 16: 746, 69 Atl. 405, 107 Md. 556. (Annotated) 26. One sued for inducing the breach of an agency contract cannot rely on the de- fense that plaintiff does not come into court with clean hands because he secured his contract by false representations, if no fraud is found in the case, the other con- tracting party did not attempt to rescind because of the fraud, and defendant did not confine himself to telling the other con- tracting party the truth regarding plain- tiff's statements, but entered into argument to induce the breach of contract. Beekman v. Marsters, n: 201, 80 N. E. 817, 195 Mass. 205. 27. The right of competition does not justify one in inducing a hotel company to break its contract to make another its exclusive agent, and divide the agency with the one offering the inducement. Beekman v. Marsters, u: 201, 80 N. E. 817, 195 Mass. 205. 28. One may be liable for wrongful inter- ference with contracts between a merchant and his customers, in the absence of a con- spiracy to effect that result. ' Dunshee v. Standard Oil Co. 36: 263, 132 N. W. 371, 152 Iowa, 618. 29. The display of a card furnished to consumers by a merchant, to be displayed when supplies are needed, is not an order, in the absence of any arrangement or agree- ment that it shall be such, so as to render another who, upon seeing the card, solicits the trade, liable for interfering with his rival's contracts. Dunshee v. Standard Oil Co. 36: 263, 132 N. W. 371, 152 Iowa, 618. 30. The sending, by a labor union, of no- tices to patrons of a concern against which a strike has been declared, notifying them that the concern is unfair, and that union men will not handle material furnished by it, which causes the patrons to cancel or- ders for materials to be furnished by the concern, is not without justification, so as to bring the union within the rule that one who, without justification, induces another to break his contract with a third person, CASE MADE. 445 is responsible in damages to the latter. J. F. Parkinson Co. v. Building Trades Coun- cil, 21:550, 98 Pac. 1027, 154 Cal. 581. 31. A physician chosen by employees from whose wages sums are deducted to estab- lish a hospital service to furnish the profes- sional services to them cannot maintain an action against the employer for damages for his refusal to pay the dues to him on the theory that the employer maliciously causes the employees to violate their contract with the physician. Banks v. Eastern R. & Lum- ber Co. ii : 485, 90 Pac. 1048, 46 Wash. 610. 32. No action lies to recover for the loss of his bargain by one who had contracted to purchase property, against another who in- duced the vendor to break his contract and transfer title to him, unless the vendor acted against his will or contrary to his purpose by coercion or deception. Swain v. Johnson, 28: 615, 65 S. E. 619, 151 N. C. 93. (Annotated) Inducing servant to leave employ- ment. Injunction against inducing breach of con- tract, see INJUNCTION, 138-140, 142, 144-147. Enticing servant, see MASTEB AND SERVANT, 124, 125; PARTIES, 192. Pleading as to, see PLEADING, 403. See also LABOR ORGANIZATIONS, 10. 33. An action may be maintained against one who maliciously entices a servant in actual service of a master, to desert and quit his service. Thacker Coal & Coke Co. v. Burke, 5: 1091, 53 S. E. 161, 59 W. Va. 253. (Annotated) Inducing discharge of servant. Conspiracy to induce discharge of em- ployees, see CONSPIRACY, 39, 42-46. Measure of damages, see DAMAGES, 309, 310. Evidence in action on case, see EVIDENCE, 1366, 1703. Master's liability for wrongful discharge, see MASTER AND SERVANT, 123. Pleading in action for interference with employment, see PLEADING, 404-407. Question for jury as to liability for, see TRIAL, 633. 34. A contract between an employer and a labor union obligating the employer to re- tain in his employ no one objectionable to the union for any cause does not of itself justify interference with a workman's em- ' ployment by the one who secured the con- tract on behalf of the union. Berry v. Dono- van, 5: 899, 74 N. E. 603, 188 Mass. 353. 35. One who causes another to be dis- charged from his employment by false and malicious statements as to the manner in which he performs his duties is liable to him in damages, although the employment was for an indeterminate period. Cham- bers v. Probst, 36: 1207, 140 S. W. 572, 145 Ky. 381. 36. A wrongful act affecting, and intend- ed to affect, a man's rights to secure and retain employment, embodies the ingredient of malice in law, and is actionable. Brennan v. United Hatters of N. A. (N. J. Err. & App.) 9: 254, 65 Atl. 165, 73 N. J. L. 729. Digest 1-52 jL.R.A.(N.S.) 37. The right of a member of a trade union to recover damages from the union for preventing him from retaining employment or securing new employment is not defeated by the fact that his purpose in joining the union was to participate in the monopoly of the labor market which it created. Brennan v. United Hatters of N. A. (N. J. Err. & App.) 9: 254, 65 Atl. 165, 73 N. J. L. 729. 38. The trial of a member of a trade union by a tribunal established within the association, and his conviction of the charge of violating its rules, do not justify the as- sociation or its officers in procuring his dis- charge from employment, where he was put on trial without the submission of written charges and without due notice, as required by the rules of the union. Brennan v. Unit- ed Hatters of N. A. (N. J. Err. & App.) 9: 254, 65 Atl. 165, 73 N. J. L. 729. 39. The act of a trade union which, in consequence of an unwarranted conviction of one of its members before a tribunal estab- lished within the association, withdraws his membership card, the natural, proximate and intended result of which is to procure his discharge from employment and prevent him from gaining a livelihood for himself and family, constitutes an actionable injury where actual damage has accrued therefrom, although such member had no binding con- tract of employment. Brennan v. United Hatters of N. A. (N. J. Err. & App.) 9:254, 65 Atl. 165, 73 N. J. L. 729. 40. The right of a laborer to recover damages for wrongful interference with his contract of employment is not affected by the fact that it was terminable at will, in- stead of ending at a stated time. Berry v. Donovan, 5: 899, 74 N. E. 603, 188 Mass. 353. 41. An officer of a corporation may be liable for maliciously inducing it to break its contract with its employee and discharge him from his employment. McGurk v. Cronenwett, 19: 561, 85 N. E. 576, 199 Mass. 457. ( Annotated ) 42. One who, having notified an em- ployer of an assignment of an employee's wages under a mistake in identity, persists in claiming the assignment after being notified of the mistake, which results in the discharge of the employee, is liable for the wages lost by him because of such discharge. Lopes v. Connolly, 38: 986, 97 N. E. 80, 210 Mass. 487. (Annotated) 43. One who for revenge secures the dis- charge of a person leaving his employment by another person he had contracted to serve, by threatening to withdraw patron- age from the latter unless he discharged the employee, is liable in damages to the employee for the loss suffered by him. Jones v. Leslie, 48: 893, 112 Pac. 81, 61 Wash. 107. (Annotated) CASE MADE. On appeal, see APPEAL AND ERROR, IV. n. 446 CASES CERTIFIED CATTLE. CASES CERTIFIED. 1. An agreed statement of facts may*be certified to the supreme court for its opin- ion as to whether or not a viaduct in a street is a local improvement for which abutting property may be assessed, under a statute permitting parties to any pro- ceeding to make an agreed case containing the points of law at issue between them to be certified to the appellate court, and pro- viding that the cause shall proceed in the same manner as if a fu41 record had been certified. Waukegan v. De Wolf, 45: 918, 101 N. E. 532, 258 111. 374. 2. The supreme court must hear and de- termine a cause certified to it because a judge of the intermediate appellate court, which decides it, deems the decisien to be in conflict with those of another court of similar jurisdiction, under a constitutional provision authorizing such certification if any one of the judges sitting shall deem the decision contrary to a previous decision of one of the other appellate courts, al- though it is not in fact so. Epstein v. Pennsylvania R. Co. 48: 394, 156 S. W. 699, 250 Mo. 1. 3. A question is of such doubt that it ought to be certified to the appellate court within the meaning of a statute permitting such certification only when, after care- ful consideration of a question necessarily to be decided, aided by arguments and re- searches of council, the judge is unable to reach a satisfactory conclusion. Tilling- hast v. Johnson, 41: 764, 82 Atl. 788, 34 R. I. 136. 4. The supreme court may, under a statute authorizing a trial judge to certify important or doubtful questions of law to it, upon proper certification, pass upon the question as to whether or not the evidence in a certain case tends to show or prove facts constituting an offense charged in the indictment. State v. Dumas, 41 : 439, 136 N. W. 311, 118 Minn. 77. 5. That questions reserved for the opin- ion of the supreme court involve incident- ally the construction of statutes passed to enforce the constitutional right of persons accused of crime to a speedy trial does not prevent their being within the statutory rule permitting only constitutional ques- tions to be reserved, where they involve pri- marily the alleged violation of the constitu- tional right of accused to a speedy trial. State v. Keefe, 22: 896, 98 Pac. 122, 17 Wyo. 227. 6. A question arising upon a pica of guilty is a question arising "on the trial," within a statute (11 & 12 Viet. chap. 78) which provides that when any person shall have been convicted the trial Judge may, in his discretion, "reserve any question of law which shall have arisen on the trial;" and the Court for the Consideration of Crown Cases Reserved has power to enter- tain a case reserving that question, and to make such order as justice may require. King v. Plummer, 4 B. R. C. 917, [1902] K. B. 339. Also Reported in 71 L, J. K. B. Digest 1-52 L.R.A.(N.S.> N. S. 805, 66 J. P. 647, 86 L. T. N. S. 836, 18 Times L. R. 659, 51 Week. Rep. 137, 20 Cox C. C. 243. CASH BAIL. Recovery of, see ASSUMPSIT, 24, 25. CASH DIVIDENDS. Relative rights of life tenant and remain- dermen as to, see LIFE TENANTS, 10- 15. CASHIER. Authority of, see BANKS, 22-39. Bond for fidelity of, see BO^DS, 41, 42. Prosecution for embezzlement, see EM- BEZZLEMENT, 5. Imputing knowledge of, to bank, see NO- TICE, 17, 18, 37, 41, 42, 59. CASHIER'S CHECK. See CHECKS, 1; PAYMENT, 11-13. CASH SURRENDER VALUE. Of insurance policy, see BANKRUPTCY, 32 38; INSURANCE, 174, 451. CASUALTY INSURANCE. See INSURANCE. CATHOLIC CHURCH. Review by courts of decisions of tribunal of, see COURTS, 193. CATHOLICS. Excluding from jury, see APPEAL AND ERROR, 1495; NEW TRIAL, 37. CATTLE. Transportation of, see CARRIERS, III. f. In general, see ANIMALS. CATTLE GUARDS CEMETERIES. 447 CATTLE GUARDS. Absence of, at crossing as proximate cause of injury to person who goes on track to drive back cattle, see PROXIMATE CAUSE, 97. Railroad's duty as to, see RAILROADS, 187, 188. CATTLE PASS. Right to maintain under highway, see HIGHWAYS, 21-23. CATTLE PENS. Injury to employee because of obstruction of railroad track by, see MASTER AND SERVANT, 395, 396, 702. CATTLE YARDS. Forbidding maintenance of, in residence district, see MUNICIPAL CORPORATIONS, 155. CAUCUS. See ELECTIONS, IV. CAUSA MORTIS. Gift, see GIFT, II. CAUSE. Hypothetical questions as to cause of ex- plosion, see EVIDENCE, 1064. Circumstantial evidence as to cause of fire, see EVIDENCE, 1841. Presumption and burden of proof as to, see EVIDENCE, II. g. Opinion evidence as to, see EVIDENCE, VII. c. Of loss, death or injury, see INSURANCE, VI. b. Proximate cause, see PROXIMATE CAUSE. Question for jury as to, see TRIAL, II. c, 2. CAVEAT. To probate of will, see WILLS, 87, 105. Effect of purchaser's inspection of property on right to recover damages for broker's fraudulent representations as to value, see BROKERS, 11. Digest 1-52 L,R.A.(N.S.) Custom of relieving customer from burden of doctrine of, see CUSTOM, 3. Application of rule to purchase at judicial sale, see JUDICIAL SALE, 10. Application of rule to tax sale, see PROXI- MATE CAUSE, 23; TAXES, 238. In general, see SALE. CELLARWAY. Maintenance of, in alley, see ALLEYS, 3. CELLULOID. Duty to warn servant of danger of ex- plosion of, see MASTER AND SERVANT, 230. CEMENT FACTORY. Injunction to restrain operation of, see APPEAL AND ERROR, 110. CEMETERIES. Bequest for purpose of keeping burial grounds in order, see CHARITIES, 26, 27. Due process in regulations as to, see CON- STITUTIONAL LAW, 517. Forbidding further interments in, see CON- STITUTIONAL LAW, 517, 668, 772; ESTOPPEL, 16. Consideration for contract requiring protec- tion of lateral support of cemetery in which kindred are buried, see CON- TRACTS, 64. Provision in deed that property shall not be used for, see COVENANTS AND CON- DITIONS, 6. Dedication of land for purpose of, see DEDI- CATION, 10, 42. Purchase of land with notice of public right of burial thereon, see DEEDS, 55. Right to compensation for location of, near property, see EMINENT DOMAIN, 258. Injunction against burial of animal in, see INJUNCTION, 41. Injunction against removal of corpse, see INJUNCTION, 114. Enjoining heir from interfering with, see INJUNCTION, 177. As nuisance, see NUISANCE, 39, 138; PLEAD- ING, 172; TRIAL, 643. Effect of reservation for burial ground on right to specific performance of con- tract to purchase property, see SPE- CIFIC PERFORMANCE, 94. Indefmiteness of trust by conveyance of land for burial place, see TRUSTS, 52. 1. Ground conveyed to an incorporated town, for the use of the town as a grave- 448 CENSUS CERTIFICATES. yard, and dedicated by the town to the public use as such, and so used by the pub- lic, is held in trust by the town for the public for burial of the dead. Ritter v. Couch, 42: 1216, 76 S. E. 428, 71 W. Va. 221. 2. Where ground conveyed to an in- corporated town, to be held by it for a burial place for the public, is accepted by the town, and devoted to public use for burial, and so used by the public, and many dead bodies interred therein, the town can- not, without express legislative authority, sell and convey the land and thus disable itself from executing the trust of maintain- ing such burial place. Ritter v. Couch, 42: 1216, 76 S. E. 428, 71 W. Va. 221. (Annotated) 3. The property rights of a lot owner in A cemetery set apart for the burial of the white race, and for burial purposes only, are violated by the burial of a dog in an adjoin- ing lot, and the fact that a physical nuisance is not thereby created is immaterial. Hertle v. Riddell, 15: 796, 106 S. W. 282, 127 Ky. 623. Rights as to burial lots. Loss of right to use property for burial purposes by adverse possession, see ADVERSE POSSESSION, 74. Prescriptive right to maintain burial lot in private grounds, see EASEMENTS, 32. Interference with bodies buried in, see CORPSE, 10-17. Ejectment for burial lot, see CORPSE, 11, 14. Nature of interest created by grant to fa- ther and son of burial lot, see COTEN- ANCY, 3. 4. Land devoted to burial purposes passes into the hands of assignees charged with a trust for that purpose, although no express reservation is made, and de- scendants of the one who established the trust may exercise the right of burial there when necessity arises, and of protecting the graves and beautifying the grounds. Hines v. State, 42: 1138, 149 S. W. 1058, 126 Tenn. 5. A cemetery company controlled by white persons cannot, by purchasing land surrounding a lot owned by a colored per- son, prevent his using his property for bur- ial purposes, or compel him to sell it. Richmond Cemetery Co. v. Walker, 7: 155, 97 S. W. 34, 29 Ky. L. Rep. 1252. (Annotated) Desecration of graves or burial lot. Injunction to prevent desecration of, see INJUNCTION, 113, 114. 6. The statutes providing for punish- ment of those desecrating burial grounds apply to ground set apart for private bur- ial and maintained as such. Hines v. State, 42: 1138, 149 S. W. 1058, 126 Tenn. 1. 7. The conveyance without restriction or establishment as a private burying ground, as provided by statute, of a parcel of land on which burials have taken place, destroys the right of the relatives of the deceased to protect the graves from dese- cration. Wooldridge v. Smith, 40: 752, 147 S. W. 1019, 243 Mo. 190. Digest 1-52 L.R.A.(N.S.) CENSUS. Census taker as necessary party to suit to set aside or correct alleged fraud- ulent enumeration made by him, see COSTS AND FEES, 3. Census returns as evidence, see EVIDENCE, 761. Right of private citizen to maintain action for redress of public wrong in padding census enumeration, see PARTIES, 107. CERTAINTY. Of charitable bequest, see CHARITIES, I. d. Of judgment suspending sentence, see CRIMINAL LAW, 270. See also DEFINITENESS. To;h:n.iu lo CERTIFICATE OF DEPOSIT. See BANKS, IV. a. CERTIFICATES. Of acknowledgment, see ACKNOWLEDGMENT. Of judge to record on appeal, see APPEAL AND ERROR, 189. Of deposit, see BANKS, IV. a, 4. Of approval of fire escape, see BUILDINGS, 30-32, 35. Of freedom from venereal disease, as con- dition of right to marry, see CONSTITU- TIONAL LAW, 190; MARRIAGE, 8. Of performance of contract, see CONTRACTS, IV. d. Of stock, see CORPORATIONS, V. Of nomination, see ELECTIONS, 35. Of election, see ELECTIONS, 57; MANDAMUS) 33, 82. Of birth, see EQUITY, 82, 83; INJUNCTION, 103. Of cause of death, see EVIDENCE, 702. Of insurance, see INSURANCE. Of receivers, see RECEIVERS, III. Of trust, see TRUSTS, VI. On appeal, see APPEAL AND ERROR, IV. 1. For sale of liquor, see INTOXICATING LI- QUORS, II. To establish right to registration as voter, see ELECTIONS, 16. Teachers' certificates, see SCHOOLS, 28-30. Tax certificate, see EVIDENCE, 578, 579; TAXES, 217, 222. Effect of absence of certificate that printed case contains all the evidence, see AP- PEAL AND ERROR, 450. Liability of architect for negligence in cer- tifying completion of work, see ARCHI- TECTS, 3. Assignment of nontransferable time certifi- cate, see ASSIGNMENT, 11. Admissibility of physician's certificate of cause of death, see EVIDENCE, 702. Admissibility of mutual benefit certificate in evidence, see EVIDENCE, 868. CERTIFICATION CERTIORARI, I. a. 449 Negligence of city officers in issuing dupli- cate paving tax certificates, see EVI- DENCE, 2481. Injunction against use in evidence of fraud- ulent certificate of birth, see INJUNC- TION, 174. Sufficiency of certificate as to record of mortgage servec 1 with notice of intent to redeem, see MORTGAGE, 168. Proximate cause of loss to bank accepting stolen paving tax certificates, see PROXIMATE CAUSE, 156. CERTIFICATION. Of questions to appellate court, see CASES CERTIFIED. Of checks, see CHECKS, III. CERTIFIED CHECK. See CHECKS, III. CERTIFIED COPY. As evidence, see EVIDENCE, 721-723, 729, 761, 768, 2266, 2267. Mandamus to compel delivery of, by public officer, see MANDAMUS, 7. CERTIFIED QUESTIONS. See CASES CERTIFIED. CERTIORARI. /. Jurisdiction; use of writ generally, 1-12. a. In general, 19. 6. Existence of other remedy, 1O-12. II. Procedure; hearing; determination, 13-19. Appeal in habeas corpus proceeding as in effect a certiorari, see APPEAL AND ERROR, 494. Effect of act authorizing review of facts on certiorari to permit review of find- ings on appeal, see APPEAL AND ERROR, 965. Power to have judgment reviewed on cer- tiorari as affecting right to relief in equity, see EQUITY, 56; INJUNCTION, 289. See also APPEAL AND ERROR, 179. Digest 1-52 L.R.A.(N.S.) /. Jurisdiction; use of writ generally, a. In general. (See also same heading in Digest L.R.A. 1-10.) Original jurisdiction of appellate court, see COURTS, II. a, 2. 1. An indictment may be found against one accused of murder, notwithstanding the pendency of certiorari proceedings to re- view the action of the committing magis- trate. People v. Friedman, 45: 55, 98 N. E. 471, 205 N. Y. 161. 2. Facts not appearing in the return to a writ of certiorari, nor in any other man- ner which would enable the court to take notice of them, are not to be considered in determining the propriety of the writ. United States Standard Voting Mach. Co. v. liobson, 7: 512, 109 N. W. 458, 132 Iowa, 38. 3. The filing of answers in an injunc- tion suit in which a restraining order has been issued to prevent the carrying out of a contract does not defeat the right of de- fendants to apply for a writ of certiorari to annul the injunction. United States Standard Voting Mach. Co. v. Hobson, 7; 512, 109 N. W. 458, 132 Iowa, 38. 4. Only judicial action is reviewable by the writ of certiorari, under W. Va. Code 1899, chap. 110, 2, 3, which does not alter the scope of the writ as it was by the com- mon law, in respect to the nature of the proceedings reviewable by it. Wheeling & E. G. R. Co. v. Triadelphia, 4: 321, 52 S. E. 499, 58 W. Va. 487. 5. Certiorari is the proper remedy to review the decision of the governor in re- moving a county official from office. State ex rel. Kinsella v. Eberhart, 39: 788, 133 N. W. 857, 116 Minn. 313. 6. Certiorari is a proper remedy to re- view the proceedings of a court-martial, for the purpose of determining whether it exceeded its jurisdiction. State ex rel. Poole v. Peake, 40: 354, 135 N. W. 197, 22 N. D. 457. 7. A judgment entered by a justice of the peace in excess of his jurisdiction may be quashed on certiorari. Gregg v. Hatcher, 27: 138, 125 S. W. 1007, 97 Ark. 54. Questions of fact. 8. The determination of trustees of a police pension fund that an injury was con- tracted by a policeman in the line of his duty is one of fact, which cannot be re- viewed by the courts on certiorari. State ex rel. McManus v. Board of Trustees, 20: 1175, 119 N. W. 806, 138 Wis. 133. 9. Certiorari will not lie to review ques- tions of fact to be determined by evidence outside the record, in a proceeding by mu- nicipal officers to acquire property by right of eminent domain. Hayford v. Bangor, n: 940, 66 Atl. 731, 102 Me. 340. 29 450 CERTIORARI, I. b CHAIRMAN. b. Existence of other remedy. (See also same heading in Digest L.R.A. 1-70.) Appeal or error. 10. The right to appeal from an order restraining performance of a contract for voting machines does not defeat the right to apply for a writ of certiorari to annul it on the ground that it was in excess of juris- diction and therefore void, where the elec- tion at which the machines were to be used would pass before the appeal could be heard. United States Standard Voting Mach. Co. v. Hobson, 7: 512, 109 N. W. 458, 132 Iowa, 38. 11. If the court attempts to enforce an order to allow an inspection of papers, the one against whom it is entered may appeal from the order imposing the punishment; and therefore a writ of certiorari will not lie to review an order of inspection, where the statute authorizes such writ only where no appeal is allowed. State ex rel. Seattle General Contract Co. v. Superior Court, 28: 516, 106 Pac. 150, 56 Wash. 649. 12. An order for inspection of books and papers in possession of defendant may be reviewed on appeal from the final judgment which may be entered in the case, and there- fore cannot be taken up under a writ of re- view, where the statute authorizes such writ only where no appeal is provided. State ex rel. Seattle General Contract Co. v. Su- perior Court, 28: 516, 106 Pac. 150, 56 Wash. 649. (Annotated) -fij lv. '.. II. Procedure; hearing; determination. (See also same heading in Digest L.R.A. Parties. 13. A consent decree in an action under the statute by a citizen to enjoin the main- tenance of a liquor nuisance, which permits acts contrary to the statute and prejudicial to the community, of which he fails or re- fuses to seek correction by appeal, may be reviewed under a writ of certiorari at the suit of any citizen, upon a proper showing of his qualifications. Hemmer v. Bonson, 19: 610, 117 N. W. 257, 139 Iowa, 210. (Annotated) 14. That the real motive of an interested person in applying for a writ of certiorari to review a decree in a suit to enjoin the maintenance of a liquor nuisance, which permits acts contrary to the statute and prejudicial to the community, is to compel the purchase of his property at an exorbi- tant price, cannot be considered by the court as a reason for denying the relief. Hemmer v. Bonson, 19: 610, 117 N. W. 257, 139 Iowa, 210. 15. The owner of property adjoining that on which is maintained a liquor nui- sance has sufficient interest to be entitled to seek a writ of certiorari to review a con- sent decree in a suit by a citizen to enjoin the maintenance of the nuisance, which per- Digest 1-52 L.R.A. (N.S.) mits acts contrary to the statute and prej- udicial to the community. Hemmer v. Bonson, 19: 610, 117 N. W. 257, 139 Iowa, 210. Nature and extent of review. 16. The supreme court in certiorari pro- ceedings can consider only questions of law; and those must be raised in the affi- davit for the writ. Booker v. Grand Rapids Medical College, 24: 447, 120 N. W. 589, 150 Mich. 95. 17. Neither the oral statements of a judge in entering a decree enjoining the maintenance of a liquor nuisance, which, by its terms, permits acts contrary to the statute and prejudicial to the community, nor the interpretation which the parties have put upon the decree, can be considered upon a petition for a writ of certiorari to correct the decree. Hemmer v. Bonson, 19: 610, 117 N. W. 257, 139 Iowa, 210. 18. The questions open upon certiorari to review the action of the board of medical examiners in revoking a physician's license are whether the board had jurisdiction, exceeded its jurisdiction, or greatly abused its discretion, or whether the statute under which it acted is constitutional. Chenoweth v. State Bd. of Medical Examiners, 51: 958, 141 Pac. 132, Colo. . 19. The question of the existence of the corporation seeking to exercise the right of eminent domain cannot be inquired into upon certiorari to review the condemnation proceedings if either the facts or the in- ferences to be drawn from them are in dis- pute. Sisters of Charity v. Morris R. Co. 50: 236, 86 Atl. 954, 84 N. J. L. 310. *-- CESS FOOL. Fraud in knowingly selling house located over, see FRAUD AND DECEIT, 21. Liability of landlord for injury resulting from, see LANDLORD AND TENANT, 133. CESTUI QUE TRUST. See TRUSTS. CHAIR CAR COMPANIES. Presumption as to discrimination in taxa- tion of, see EVIDENCE, 66. CHAIRMAN. I j Election of chairman of stockholders' meet- ing, see CORPORATIONS, 371. (.2.V1). Vo I CHALLENGE CHAMPERTY AND MAINTENANCE, II. 451 CHALLENGE. Of voters, see ELECTIONS, 20, 21. To panel of jurors, see JURY, 58, 59. CHAMBER OF COMMERCE. 1. A corporation which has not com- plied with the rules of a chamber of com- merce which prescribe the manner in which a corporation may acquire membership therein, and has not signed and filed an agreement to observe and be obligated by the regulations governing the members of the chamber, as required by such rules, cannot acquire a lien upon the membership of a member under the rules of the chamber. McCarthy Bros. Co. v. Chamber of Com- merce, 21 : 589, 117 N. W. 923, 105 Minn. 497. 2. The lien which is provided for under the rules of the Minneapolis chamber of commerce exists only for the benefit of the members of the chamber, and is security for the payment of claims of a certain nature and character arising out of transactions between members. McCarthy Bros. Co. v. Chamber of Commerce, ai: 589, 117 N. W. 923, 105 Minn. 497. 3. A corporation can acquire member- ship in the Minneapolis chamber of com- merce only by complying with the rules thereof; and the fact that a corporation which succeeded to the business of a firm which had complied with such rules con- tinued to transact business with the officers of the chamber without itself complying with the rules, and obligating itself to ob- serve the rules, usages, and customs of the chamber, does not estop the chamber from asserting that the corporation is not a mem- ber, and, as such, entitled to a lien upon the membership of a member with whom it has had business transactions. McCarthy Bros. Co. v. Chamber of Commerce, 21 : 589, 117 N. W. 923, 105 Minn. 497. 4. The board of directors of a chamber of commerce has no power to determine the validity of a claim to lien upon a member- ship therein without proper notice of hear- ing to the proposed transferee, and ac- tion taken without notice is of no effect. McCarthy Bros. Co. v. Chamber of Com- merce, 21:589, 117 N. W. 923, 105 Minn. 497, CHAMPERTY AND MAINTENANCE. I. In general, 15. II. Agreements between attorney and client, 68. III. Purchase of realty in third per- son's possession, 9. Public policy as to, see CONTBACTS, 466. Digest 1-52 L.R.A.(N.S.) I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. It is not maintenance to agree to indemnify a customer against any claim for breach of contract with a trade rival, in the defense of the indemnitor's own com- mercial interest. British Cash & Parcel Conveyors, Ltd. v. Lamson Store Service Co. Ltd. 1 B. R. C. 159, [1908] 1 K. B. 1006. Also Reported in 77 L. J. K. B. N. S. 649, L. T. N. S. 875. (Annotated) 2. An agreement by one having a claim against a decedent's estate, to do every- thing proper and legitimate to aid the heirs in recovering the estate, in consid- eration that they pay his claim, is not void as champerty or maintenance. Smith v. Hartsell, 22: 203, 63 S. E. 172, 150 N. C. 71. 3. A contract by one not acting as at- torney, for a specific consideration, to de- feat the probate of a will, is void as a spe- cies of champerty or maintenance. Cochra v. Zachery, 16: 235, 115 N. W. 486, 137 Iowa. 585. . (Annotated) 4. A corporation which has undertaken to furnish steam to the public for heating purposes cannot defeat an action to enjoin it from discontinuing service to a consumer, on the ground that the expenses of the suit would be paid by a rival corporation for the purpose of inducing the consumer to start litigation in order to harass and an- noy the defendant. Seaton Mountain E. L. H. & P. Co. v. Idaho Springs Invest. Co. 33: 1078, 111 Pac. 834, 49 Colo. 122. 5. A nonsuit cannot be granted in an action brought to recover possession of a contract interest in mining claims, because the owner of the interest had made a cham- pertous assignment of a portion of such in- terest to one who joined in the action, since defendants cannot take advantage of the champerty, and even though the partial as- signment might be void, it will not defeat all right of recovery against defendants. Prosky v. Clark, 35: 512, 109 Pac. 793, 32 Nev. 441. (Annotated) II. Agreements between attorney and client. (See also same heading in Digest L.R.A. 1-10.) Remedy on champertous contract with at- torney, see CONTRACTS, 611. 6. An agreement of a client to transfer certain property and pay his attorneys a lump sum to get him a divorce and settle his wife's claim for alimony in an action against him for the annulment of the mar- riage is champertous as speculating on the terms of settlement, and is against public policy as facilitating divorce. Donaldson v. Baton, 14: 1168, 114 N. W. 19, 136 Iowa, 650. For contingent fee. Effect of partial invalidity of contract, see CONTRACTS, 407. See also ATTORNEYS, 60; CONTRACTS, 611. 452 CHAMPERTY AND MAINTENANCE; III. CHARITIES. 7. A contract for an attorney's foe con- tingent upon the amount to be recovered by judgment or settlement is ordinarily valid; but when such contract contains a stipula- tion that the client shall not compromise or settle his claim without the consent of the attorney, it is champertous and voidable at the option of the client. Davy v. Fidelity & C. Ins. Co. 17: 443, 85 N. E. 504, 78 Ohio St. 256. For payment of costs and expenses by attorney. 8. A contract by an attorney to pay witness fees out of a contingent fee to be allowed him for successful services in a suit is champertous. Jjarngrover v. Pettigrew, 2: 260, 104 N. W. 904, 128 Iowa, 533. ///. Purchase of realty in third per- son's possession. (See also same heading in Digest L.R.A. 1-10.) 9. A conveyance of land by the right- ful owner, who has not been in possession of it, or in receipt of the rents and profits by himself or his grantors, for the space of a year prior thereto, is void as against one holding adversely, where the statute makes such conveyance a misdemeanor. Powers v. Van Dyke, 36: 96, 111 Pac. 939, 27 Okla. 27. CHANCERY. See EQUITY. CHANGE. Of destination, effect on liability of carrier, see CARRIERS, 971. Of domicil, see DOMICIL, 4-9. Of grade of railroad, condemnation of prop- erty from which to take materials for, see EMINENT DOMAIN, 86. Of position, estoppel by, see ESTOPPEL, 59- 61. Of testimony, on second trial, see EVIDENCE, 2052; NEW TRIAL, 63. Of possession, see FRAUDULENT CONVEY- ANCES, 41-46; PLEDGE AND COLLATERAL SECURITY, 2-10 ; SALE, I. b. Of grade, see HIGHWAYS, III. Of beneficiary, see INSURANCE, IV. b. Of use of insured premises, see INSURANCE, 246-253. Of judges, see JUDGES, IV. Of theory in libel case, see LIBEL AND SLAN- DER, 157. Of venue, see VENUE, II. Making change on street car, see CARRIERS, 414, 648-652. As essential to validity of conveyance as against creditors, see FRAUDULENT CONVEYANCES, 41-46. Digest 1-52 L.R.A. (N.S.) Of pledged property, see PLEDGE AND COL- LATERAL SECURITY, 2-10. Of personalty sold, see SALE, I. b. CHARACTER. Presumption as to character of accused, see EVIDENCE, 121, 122. Opinion evidence as to, see EVIDENCE, VII. e. Relevancy of evidence as to, generally, see EVIDENCE, XI. c. Libelous charges affecting, see LIBEL AND SLANDER, II. b. Instructions as to presumption of good character, see TRIAL, 907. Instructions as to effect of evidence of good character, see TRIAL, 1079. Competency of witness to testify to general reputation of person, see WITNESSES, 7, 8. Admissibility of evidence as to, to impeach witness, see WITNESSES, 151- J 64. CHARGES. For freight, see CARRIERS, III. e. Upon donee or land devised, see WILLS, III. k. As to rates, see RATES. CHARITABLE INSTITUTIONS. See CHARITIES. CHARITIES. /. Nature and validity, 157. a. In general, 1 4. b. What are charities, 527. c. Conditions; existence and ca- pacity of trustees or bene- ficiaries; acceptance by trus- tee, 28-41. d. Definiteness; discretion of trustee, 4257. II. Enforcement; control; forfeiture; liability, 57a-93. a. In general, 57a6O. b. Cy pres doctrine, 6164. c. Liability for damages, 6593. Compelling placing of fire escapes on elee- mosynary institutions, see BUILDINGS, 29. Free transportation to persons engaged in charitable work, see CARRIERS, 1064. Consideration for subscription to, see CON- TRACTS, 100-102. Oral promise of gift to, as within statute of frauds, see CONTRACTS, 208, 237. Duty of persons dealing with trustees of charitable corporation to take notice of their powers, see CORPORATIONS, 69. CHARITIES, I. a, b. 453 Charitable home as a business within mean- ing of restrictive covenant, see COVE- NANTS AND CONDITIONS, 73. Reversion to grantor of property upon dis- solution of charitable corporation, see DEEDS, 92. Right of grantor of property to, upon con- dition, to damages for property taken for public use, see EMINENT DOMAIN, 251. Estoppel to maintain action to recover pos- session of property sold under execu- tion, see ESTOPPEL, 125. Parol evidence to show that hospital is a charitable organization, see EVIDENCE, 1042. Evidence of admission of promise to donate money to, see EVIDENCE, 1231. Evidence as to subscription for, see EVI- DENCE, 1932, 1933. Appointment of amicus curice to except to executor's account where residuary legatee is trustee of charitable trust, see EXECUTORS AND ADMINISTRATORS, 129. Obtaining money as a charity by false representation, see FALSE PRETENSES, 7. Laches to bar proceeding to contest validity of charitable trust, see LIMITATION OF ACTIONS, 39. Running of limitations against trustee of charitable trust, see LIMITATION OP ACTIONS, 97, 101. Mechanics' lien on property of, see ME- CHANICS' LIENS, 58, 59. Sale of property of, under execution, see MECHANICS' LIENS, 58. Rule of perpetuity as to, see PERPETUITIES, IV. Use of public money for purpose of, see PUBLIC MONEYS, 13. Right of children of nonresident patents in charitable institution to school privileges, see SCHOOLS, 7. As to state university, see STATE UNIVER- SITIES. Works of, on Sunday, see SUNDAY, III. b. Exemption of, from taxation, see TAXES, I. f. 3. Special telephone rates to, see TELEPHONES, 25. Title of trustee of charitable trust, see TRUSTS, 82. Furnishing water to, free of charge, see WATERS, 424. Disqualification of member of committee for charity appointed by will as attest- ing witness, see WILLS, 36. Effect of specifying use of real estate in devise to religious societies, see WILLS, 270. Gift over to in case of violation of condition by first taker under will, see WILLS, 297. Equitable conversion in case of gift to char- ity, see WILLS, 374. Limitation on amount of charitable bequest, see WILLS, III. d. Digest 1-52 L.R.A.(N.S.) I. Nature and validity, a. In general. (See also same heading in Digest L.R.A.. 1-10.) Effect of provision in will that trustees need not report to court, see WILLS, 1. In the absence of statutory restric- tions, a person has an absolute right, as against his heirs, to will his property to charity. Hubbard v. Worcester Art Mu- seum, 9: 689, 80 N. E. 490, 194 Mass. 280. 2. A court will not refuse to sustain a charitable trust because the beneficiaries are not confined to residents of the state. Re Robinson, 37: 1023, 96 N. E. 925, 203 N. Y. 380. 3. A charitable trust will be liberally construed, that it may be rendered effectual. Re Sacrison, 26: 724, 123 N. W. 518, 19 N. D. 160. 4. Every reasonable intendment should be indulged in favor of a will creating a trust for charity, where the rights of the heirs having lawful claims upon the bounty of the testatrix are not involved, and where the surviving husband has been liberally provided for in accordance with the terms of an antenuptial contract. Re Appleby's Estate, 10 : 590, 111 N. W. 305, 100 Minn. 408. ft. What are charities. (See also same headvng m Digest L.R.A. 1-70.) 5. Money is devoted to purposes of pub- lic charity which is transferred to trustees of a permanent fund derived from gifts and bequests, and is under the exclusive con- trol of such trustees, to be used for paying death benefits and giving charitable assist- ance to members of a mutual benefit society, membership in which all connected with a certain business are entitled to obtain, al- though the benefit is limited to such mem- bers. Minns v. Billings, 5: 686, 66 N. E. 593, 183 Mass. 126. (Annotated) 6. A "reserve fund" directed to be ac- cumulated out of the income of property be- queathed to a trustee for a charitable pur- pose until it should reach a certain amount, any surplus in excess of which is to be used only "in case of dire need, such as loss of rent, depravation of property, payment of duties, or any other special circumstances," is devoted to a charitable purpose equally with the corpus of the bequest. Re Swaui, 2 B. R. C. 872, [1905] 1 Ch. 669. Also re- ported in 74 L. J. Ch. N. S. 354, 92 L. T. N. S. 715. Bequest for masses. 7. A bequest for masses for testator and certain specified relatives being, under the doctrine of the Catholic Church, for the benefit of all mankind, is a valid public charity, and not subject to statutory pro- 454 CHARITIES, I. b. visions governing the creation of private charities. Re Kavanaugh, 28: 470, 126 N. W. 672, 143 Wis. 90. 8. A bequest of a fund to be used for masses for the repose of all poor souls is a valid charitable trust under a Constitu- tion forbidding interference with the rights of conscience. Ackerman v. Fichter, 46: 221, 101 N. E. 493, 179 Ind. 392. For hospital. 9. A hospital supported mainly by char- ity does not lose its character as a chari- table institution by the fact that it makes a charge for the use of rooms to those who are able to pay for them. Jensen v. Maine Eye & Ear Infirmary, 33: 141, 78 Atl. 898, 107 Me. 408. 10. The validity of a bequest for the es- tablishment and maintenance of a hospital is not affected by the fact that the fund is charged with the cost of maintaining the burial lot of the donor, and with a small monthly payment to his relatives for life. Buchanan v. Kennard, 37: 993, 136 S. W. 415, 234 Mo. 117. 11. A devise to trustees and their succes- sors forever of property to establish and maintain a hospital for sick and injured persons without distinction of creed, under the auspices of a particular religious de- nomination or its successors, creates a valid public charity under the statute of Eliza- beth, although the benefit is not limited to poor persons. Buchanan v. Kennard, 37: 993, 136 S. W. 415, 234 Mo. 117. Home for working girls. 12. A corporation organized without cap- ital or stockholders, to provide, from con- tributed funds, a home for working girls, where they can obtain, for bare cost, shelter and maintenance, and also, free of expense, be provided with large opportunities for mental and moral improvement, and, if sick, with proper medical attendance, is a pub- lic charity. Thornton v. Franklin Square House, 22: 486, 86 N. E. 909, 200 Mass. 465. Parks. 13. A devise of property to a municipal corporation in trust to devote the income to the maintenance and improvement of its parks is a valid public charitable trust. Burr v. Boston, 34: 143, 95 N. E. 208, 208 Mass. 537. Prevention of cruelty to animals. 14. Gifts to aid the work of prevention of cruelty to animals are for a public char- ity. Minns v. Billings, 5: 686, 66 N. E. 593, 183 Mass. 126. Fire insurance patrol. 15. An association composed of insurance companies doing business in a certain city, having power to provide for and assist in the saving of life and property at fires, and which is supported by assessments lev- ied on all persons or companies engaged in the insurance business in such city, its pur- pose being to minimize the losses and pro- mote the pecuniary interests of its members, is a private, and not a public, corporation, nor is it a public charity, notwithstanding the statute under which it was organized prohibits it from charging for its services, Digest I r 52 L.R.A.(N.S.) or from distinguishing between insured and uninsured property. Coleman v. Fire Ins. Patrol, 21 : 810, 48 So. 130, 122 La. 626. Art museum. 16. A devise to an art museum the prop- erty of which is held in trust for the benetit of all the people of a city is for a general charitable purpose, which may be carried out cy prcs in case the charter of the dev- isee makes it incapable of taking and hold- ing the property. Hubbard v. Worcester Art Museum, 9: 689, 80 N. E. 490, 194 Mass. 280. Library. 17. An association incorporated by gen- eral law and treated by the legislature as a public charity for the maintenance of a li- brary and museum is a public charity, al- though it has a limited membership, where the membership is represented by the shares of stock, which are freely transfer- able, and the state officers are given free access to its privileges, which are also lib- erally extended to strangers. Minns v. Bil- lings, 5: 686, 66 N. E. 593, 183 Mass. 126. 18. A charitable trust attaches to prop- erty secured for its purposes by a corpora- tion organized to maintain a library for the benefit of the members and of the multitude of people who visit the city, where anyone contributing a certain amount towards the purposes of the enterprise may become a member, and the funds are secured by mem- bership fees and charitable contributions. Fordyce v. Woman's Christian Nat. Library Asso. 7: 485, 96 S. W. 155, 79 Ark. 550. Education. Medical college as charitable institution, see MANDAMUS, 94. 19. A corporation organized under a pri- .vate charter solely for educational purposes, to which all its funds must be applied, is a charitable institution, within the rule ex- empting such institutions from liability for he negligent acts of their servants; and the fact that tuition fees are charged is imma- terial. Parks v. Northwestern University, 2: 556, 75 N. E. 991, 218 111. 381. (Annotated) 20. A public charitable trust is created by a will devising property to trustees witii directions to erect a memorial manual training school to be perpetually main- tained, and after the building is erected, to turn the property over to a municipal corporation, the unexpended balance of the fund to be used for the maintenance of the school, in connection with tuition fees, with no provision for reverter in case of diver- Maxcy v. Oshkosh, 1136/144 Wis. 238. 21. An instrument of writing purporting to convey lands to trustees and their suc- cessors in perpetual trust to provide a home and school for the maintenance and educa- tion of the children of the deceased mem- bers of a secret society is not a gift for pur- poses of a public charity, and is void as against the rule prohibiting perpetuities of title in estates. Troutman v. De Boissiere Odd Fellows Orphans' Home & I. S. Asso. 5: 692, 64 Pac. 33, 66 Kan. 1. (Annotated) sion of the property. 31: 787, 128 N. W. CHARITIES, I. c. 455 22. Providing a fund for the specific education of the poor does not destroy the charitable nature of the gift. Re Robin- son, 37: 1023, 96 N. E. 925, 203 N. Y. 380. Care of widows and orphans. 23. That the benefits of a home for the support of widows and orphans are con- fined to those of members of a particular secret society does not deprive it of the character of a purely public charity within the meaning of a constitutional tax exemp- tion. Widows' & Orphans' Home v. Com. 16: 829, 103 S. W. 354, 126 Ky. 386. (Annotated) Church. 24. The maintenance of a church for the teaching and preaching of religious doc- trines is a public charity. People ex rel. Smith v. Braucher, 47: 1015, 101 N. E. 944, 258 111. 604. 25. A trust declared in a conveyance of property for public worship and instruction for the benefit of an indefinite number of persons according to Presbyterian faith and polity, with a further provision that, if certain conditions are not complied with, the property is to vest in a specified presbytery, for Presbyterian purposes, upon the same conditions, is good as a charity, in both its primary and secondary limi- tations. MacKenzie v. Trustees of Presby- tery of Jersey City (N. J. Err. & App.) 3: 227, 61 Atl. 1027, 67 N. J. Eq. 652. For graves. 26. A bequest for the purpose of keeping burial grounds in good order is a good chari- table gift, although the burial ground may be connected with the meeting house of, or for the benefit of members of, a particular religious community. Re Manser, 1 B. R. C. 923, [1905] 1 Ch. 68. Also reported in 74 L. J. Ch. N. S. 95, 53 Week. Rep. 261, 92 L. T. N. S. 79. (Annotated) 27. The validity of a bequest for the pur- pose of keeping burial grounds in good order as a charitable gift is not affected by the addition of the words, "in particular the grave of my late wife," as such words do not create a separate trust, but only an ancil- lary obligation. Re Manser, 1 B. R. C. 923, [1905] 1 Ch. 68. Also reported in 74 L. J. Ch. N. S. 95, 53 Week. Rep. 261, 92 L. T. N. S. 79. c. Conditions; existence and capacity of trustees or beneficiaries; accept- ance by trustee. (See also same heading in Digest L.R.A. 1-10.) Agreement of trustees of charitable corpo- ration that property may be subjected to mechanics' lien, see CORPORATIONS, 70. 28. A devise of real estate for the cele- bration of masses, being for a public charity, is not invalid, although title is not vested in anyone. Re Kavanaugh, 28: 470, 126 N. W. 672, 143 Wis. 90. Digest 1-52 L.R.A. (N.S.) 29. A statute requiring a devise of land to be made directly to the beneficiary, and not to a trustee, is not applicable to public charities or in cases where the will works conversion of the property into personalty. Re Kavanaugh, 28: 470, 126 N. W. 672, 143 Wis. 90. Conditions. Construction of provision in will as to con- dition of charitable bequest, see WILLS, 145, 146. 30. The expression by a testator in a will directing that his residuary estate be devoted to the establishment of a children's home in a foreign country, to be under the charge of the poor officers of a certain ter- ritorial municipality thereof, of a desire that his executor arrange with such officers that such municipality provide half the cost of the establishment and maintenance of such home, if possible, and also that the services of such authorities in the manage- ment of the home be without charge, does not make compliance with such desire a con- dition precedent to the carrying out of the trust, but is a mere recommendation of the testator. Re Sacrison, 2: 724, 123 N. W. 5'18, 19 N. D. 160. 31. A municipal corporation does not forfeit its rights under a will bequeathing property to trustees to construct a memo- rial school building, and directing that when a certain amount has been raised by the city, the property shall be turned over to the city, the balance of the funds to be mingled with the funds so raised perpetu- ally to maintain the school, by the fact that it devotes the fund raised by it to the construction of the building, which is the only lawful use it can make thereof, leav- ing the fund of testator to be appropriated to its maintenance. Maxcy v. Oshkosh, 31: 787, 128 N. W. 899, 1136, 144 Wis. 238. 32. The rule that official action influ- enced by a money inducement is void does not apply to avoid a gift to a municipal corporation of a fund to establish and maintain a public manual training school, on condition that the municipality contrib- utes a certain amount towards the enter- prise, and undertakes perpetually to main- tain the school, where the donor could reap no material benefit from its establishment. Maxcy v. Oshkosh, 31 : 787, 128 N. W. 899, 1136, 144 Wis. 238. 33. Absence of positive statutory au- thority does not deprive a municipal cor- poration having power to maintain a sys- tem of public schools, of the power to construct a building with public funds and bind itself forever to maintain it, to secure the benefit of a fund devised to aid in the establishment and maintenance of such a school. Maxcy v. Oshkosh, 31: 787, 128 N. W. 899, 1136, 144 Wis. 238. City or town as trustee. 34. A municipal corporation may accept and perpetually administer a trust, where the donation is made to aid some public purpose, charitable in its nature, which it is the legal duty of the municipality to support and provide for. Maxcy v. Osh- 456 CHARITIES, I. d. kosh, 31: 787, 128 N. W. 899, 1136, 144 Wis. 238. Unincorporated association. 35. Trustees of a charitable trust are not rendered incapable of taking because they do not represent an incorporated body. Ackerman v. Fichter, 46: 221, 101 N. E. 493, 179 Ind. 392. 36. A deviso to trustees of a fund the income of which shall be applied to pay- ment of tuition in a parish school of an unincorporated religious denomination is valid. Ackerman v. Fichter, 46: 221, 101 N. E. 493, 179 Ind. 392. 36a. A bequest to a church will not fail because the church is not incorporated, if it is part of an incorporated college which is, by law, authorized to take and hold prop- erty on behalf of the church. Gardner v. McNeal, 40: 553, 82 Atl. 988, 117 Md. 27. 37. A bequest in trust to purchase real estate and convey it to a voluntary unin- corporated association is invalid, as such association is incompetent to take or hold property. Mount v. Tuttle, 2: 428, 76 N. E. 873, 183 N. Y. 358. Effect of subsequent incorporation. 38. The courts cannot obviate a defect in a bequest for a charitable use, consist- ing of the incapacity of the beneficiary be- cause an unincorporated association, by di- recting the organization of a corporation to take ami hold the gift. Mount v. Tuttle, 2: 428, 76 N. E. 873, 183 N. Y. 358. Who may question capacity. 39. A devise to a corporation of property in excess of its charter authority to take and hold is not so far void that its validity can be questioned by testator's heirs. Hub- bard v. Worcester Art Museum, 9: 689, 80 N. E. 490, 194 Mass. 280. (Annotated) Acceptance by trustee. Lapsing of bequest to charity rejected by legatee, see WILLS, 393. 40. A fund bequeathed to a private in- stitution for charitable work does not vest if it is declined by the trustee, and title to it will not be affected by a decree adjudicat- ing the right to its assets. Read v. Wil- lard Hospital, 45: 574, 102 N. E. 95, 215 Mass. 132. 41. Where a charitable bequest is made to trustees in a foreign country, it will not be assumed that, should such trustees refuse to act, a foreign court will permit the trust to fail, but it will be assumed that it will appoint a trustee. Re Sacrison, 26: 724, 123 N. W. 518, 19 N. D. 160. d. Definiteness ,' discretion of trustee. (See also same heading in Digest L.R.A. 1-70.} 42. A testator may vest in his executor the widest possible latitude for the ex-ercise of his own best judgment in carrving out a charitable bequest, and it will not be held, on that ground, too vague, indefinite, and uncertain to be legally enforceable. Re Sac- rison, 26: 724, 123 N. W. 518, 19 N. D. 160. 43. That a will creating a charitable Digest 1-52 L.R.A.(N.S.) trust fails expressly to designate a trustee l>y name does not operate to defeat the trust, when by the language of the will, aided by extrinsic evidence, it can be deter- mined whom the testator intended. Re Sac- rison, 26: 724, 123 N. W. 518, 19 N. D. 160. 44. A testator who, in providing that his residuary estate be devoted to the estab- lishment of a children's home in Sweden, directs that such home, when established, shall be under the charge of the officers of a certain territorial municipality having su- pervision of the poor thereof, "but whose official designation is not known to me at this time, the selection of such officers being left to my executor, to be selected and des- ignated in accordance with the laws" of Sweden, thereby designates trustees with sufficient certainty to prevent defeat of the trust for want thereof, as such provision sufficiently expresses the intention on the part of the testator to designate as trustees of the fund such officers and their successors as have, under the laws of Sweden, super- vision of the poor in such territorial mu- nicipality, which designation is made with sufficient particularity to enable the exec- utor by the aid of extrinsic facts to deter- mine with absolute certainty the trustees intended. Re Sacrison, 26: 724, 123 N. W. 518, 19 N. D. 160. 45. A bequest for masses for certain specified purposes, to be used under direc- tion of specified persons, is not void for un- certainty. Re Kavanaugh, 28: 470, 126 N. W. 672, 143 Wis. 90. Certainty as to beneficiaries. Discretion as to beneficiaries, see infra, 57. 46. A charitable trust for the education of poor boys is not rendered invalid by the fact that the class is not restricted in any way by the capacity, color, or condition of the beneficiaries. Tincher v. Arnold, 7: 471, 147 Fed. 665, 77 C. C. A. 649. 47. That no provision is made by the donor for the selection of the beneficiaries of a trust for the education of boys not able to educate themselves does not invali- date the trust, since equity will appoint a trustee for that purpose. Tincher v. Arnold, 7: 471, 147 Fed. 665, 77 C. C. A. 649. 48. The existence of a public free-school system does not necessarily render invalid a trust for the benefit of boys unable to edu- cate themselves, on the theory that the trust has no field for operation, since, not- withstanding such system, there may be boys who, by reason of poverty or other circumstances, cannot avail themselves of it. Tincher v. Arnold, 7: 471, 147 Fed. 665, 77 C. C. A. 649. (Annotated) 49. A will whereby a testator provides that his residuary estate be devoted to the establishment of a children's home in his native country or district, known as Torrs- kog socken, Sweden, for the care of desti- tute children of that vicinity, directs that such home be under the charge of the poor officers of that district, and declares the ob- ject of the trust to be the amelioration of the condition of the poor children in Torrs- kog socken, is not void for uncertainty aa (.8.VO.A.H..I &<5 f igssld CHARITIES, II. a. 457 to the beneficiaries, on the ground that it was not confined to the destitute children in Torrskog socken, but included those resid- ing therein and in the vicinity thereof, as the term "of that vicinity" must be deemed to relate exclusively to the territory includ- ed within such socken. Re Sacrison, 26: 724, 123 N. W. 518, 19 N. D. 160. 50. The words, "and such other financial aid" to persons in need as may seem fitting and proper, in a will establishing a trust to provide shelter, necessaries of life, educa- tion, and such other financial aid, etc., with preference for elderly and disabled Christian persons of good moral character, members of Evangelical churches, will be construed as requiring aid of the same general character as the purposes specified, so as to come within the statute providing that no gift for religious, educational, charitable, or beneficent purposes shall be invalid by rea- son of the indefiniteness and uncertainty of the beneficiaries. Re. Robinson, 37: 1023, 96 N. E. 925, 203 N. Y. 380. 51. Provision for the selection of the ob- jects of a public charity is sufficiently defi- nite where the charity is the construction and maintenance of a hospital for sick and injured persons, without distinction of creed, under the auspices of a particular religious denomination, and "under such rules and regulations as the trustees and their suc- cessors" shall, from time to time, establish and maintain. Buchanan v. Kennard, 37: 993, 136 S. W. 415, 234 Mo. 117. 52. A trust by conveyance of land to an incorporated town for public use as buri- al place for the dead is not void because of indefiniteness as to the beneficiary. Ritter v. Couch, 42: 1216, 76 S. E. 428, 71 W. Va. 221. 53. A conveyance of land to trustees for the use and benefit of a religious sect or denomination, as a place of worship, is not void for uncertainty where there is but one local congregation of that sect, although the body as a whole has many scattered congregations, where a statute specifically authorizes and validates a conveyance to religious bodies for use as a place of wor- ship, and provides that such conveyance shall be construed to give the local con- gregation of such religious sect control thereof. Deepwater R. Co. v. Honaker, 27: 388, 66 S. E. 104, 66 W. Va. 136. Discretion as to purposes of gift. See also supra, 42. 54. A testator may empower his execu- tor to distribute the residue of his estate among such religious, charitable, and benev- olent objects as the executor may select. Re Dulles, 12: 1177, 67 Atl. 49, 218 Pa. 162. (Annotated) 55. A bequest to executors to distribute the property among benevolent objects is not too indefinite to be permitted to stand. Re Dulles, 12: 1177, 67 Atl. 49, 218 Pa. 162. 56. No trust for a charitable use which equity can enforce is created by a will which gives property to testator's wife on condition that the balance after certain dispositions "will be given to advance the Digest 1-52 L.R.A.(N.S.) J cause of religion and promote the cause of charity in such manner as my . . . wife may think will be most conducive to the carrying out of my wishes." Hadley v. Forsee, 14: 49, 101 S. W. 59, 203 Mo. 418. (AnHotated) Discretion as to beneficiaries. 57. A testator who, in bequeathing his residuary estate to establish a children's home, designates the beneficiaries as the 'destitute children," and in another place the "poor children" of Torrskog socken, Sweden, which home is to be in charge of the poor officers of that socken, impliedly vests in such officers the incidental power to select the individuals within the general class designated, who are to partake of his bounty. Re Sacrison, 26: 724, 123 N. W. 518, 19 N. D. 160. //. Enforcement; control; forfeiture; liability. a. In general. (See also same heading in Digest L.R.A. 1-70.) Parties in suit to prevent dissipation of funds of public charity, see STATE, 16. Power of trustee to sell, see TRUSTS, 96. 57a. Courts may enforce a trust devoting a definite sum to be expended annually for masses for the repose of all poor souls. Ackerman v. Fichter, 46: 221, 101 N. E. 493, 179 Ind. 392. 58. Since a trust for masses for the re- pose of all poor souls is for the benefit of both living and dead, living persons have an interest in its enforcement both for themselves and as kindred of the dead, so that the trust will not fail for lack of ben- eficiaries competent to enforce or invoke its enforcement. Ackerman v. Fichter, 46: 221, 101 N. E. 493, 179 Ind. 392. (Annotated) 59. The courts will not, in the absence of legal abuse, interfere with the exercise, by an executor, of discretion conferred upon him by the will to distribute the residue of the estate among religious, charitable, and benevolent purposes. De Dulles, 12: 1177, 67 Atl. 49, 218 Pa. 162. 60. The children and heirs at law of one who has conveyed property in trust for charitable uses are not entitled to main- tain a suit against a presbytery charged with the duties of trusteeship, to restrain it from making use of the property in al- leged violation of the terms of the trust, where the complainants have no standing in court by right of a reverter, or as being in themselves possible beneficiaries, or under the doctrine of visitation. Only the attorney general, by way of information, or the presbytery, can properly invoke the superintending power of the courts over tha administration of the trust. MacKenzie v. Trustees of Presbytery of Jersey City (N. J. Err. & App.) 3: 227, 61 Atl. 1027, 67 N. J. Eq. 652. (Annotated) 458 CHARITIES, II. b, c. 6. Cy 2'en doctrine. (See also same heading in Digest L.R.A. 1-10.) Delivering fund to other similar institu- tion where legatee refuses bequest, see WILLS, 393. See also supra, 16. 61. A trust declared in a conveyance of property for public worship and instruction for the benefit of an indefinite number of persons according to Presbyterian faith and polity, to be administered either by a specified church society, or, upon its failure to comply with certain conditions, by a specified presbytery, is enforceable in New Jersey, either exactly, or, under the doctrine of cy pres, approximately. Mac- Kenzie v. Trustees of Presbytery of Jersey City (N. J. Err. & App.) 3: 227, 61 Atl. 1027, 67 N. J. Eq. 652. 62. That the donor of a fund to be held in trust for the education of boys unable to educate themselves provides that, after the building is secured, the income of the fund shall be used to pay teachers, does not pre- vent the use of a part of it for the heating, lighting, and care of the building. Tincher v. Arnold, 7: 471, 147 Fed. 665, 77 C. C. A. 649. 63. The court cannot, upon the abandon- ment of the use of church property pur- chased by funds donated by members of the society, and its attempted sale by the sur- viving members of the congregation, re- quire the application of the proceeds cy pres, if no other organization or society exists which has the same purpose and re- ligious belief as the society to which the property belonged. People ex rel. Smith v. Braucher, 47: 1015, 101 N. E. 944, 258 111. 604. (Annotated) 64. In case, after a devise of a fund to an academy in trust to pay the tuition of worthy poor boys of a certain town, the academy is by law made a free high school for such town, the fund may be applied in establishing scholarships for such boys, rather than in relieving the taxpayers of the town of the burden of maintaining such school, or in aiding the academy in paying its general expenses. Pembroke Academy v. Epsom School B'ist. 37: 646, 75 Atl. 100, 75 N. H. 408. c. Liability for damages. (See also same heading in Digest L.R.A. 1-70.) Sufficiency of evidence to show negligence, see EVIDENCE, 2115. Liability of railroad relief association for negligence of surgeons and nurses, see MASTEB AND SERVANT, 179. See also supra, 19. 65. A failure to comply with a duty im- posed upon a master by statute to cover or guard dangerous parts of machinery, Digest 1-52 L.R.A. (N.S.) which is absolute and nondelegable, ren- ders a charitable association liable to its servants and employees who are injured in consequence of neglect to comply with the provisions of the statute. Mclnerivy v - St. Luke's Hospital Asso. 46: 548, 141 N. W. 837, 122 Minn. 10. 66. The property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. Fordyce v. Woman's Christian Nat. Library Asso. 7: 485, 96 S. W. 155, 79 Ark. 550. 67. A religious or charitable corporation is not immune from liability for injuries to persons coming upon its property to per- form services for it, because of the unsafe condition of the premises due to the negli- gence of its servants. Hordern v. Salvation Army, 32: 62, 92 N. E. 626, 199 N. Y. 233. (Annotated) 68. A charitable corporation like the Salvation Army is liable for injury to a pedestrian through the negligence of its servant in handling a team engaged in its charitable work, even though it is not lack- ing in care in the selection or retention of the servant. Basabo v. Salvation Army, 42: 1144, 85 Atl. 120, 35 R. I. 22. (Annotated) 69. A corporation conducting a working girls' home as a public charity is not liable for injury to an inmate by the fall of a fire escape on the premises, due to the neg- ligence of servants or agents properly se- lected. Thornton v. Franklin Square House, 22: 486, 86 N. E. 909, 200 Mass. 465. (Annotated) 70. A religious corporation is liable for injuries to one engaging in repairing its property through the negligence of its serv- ant in furnishing an unsafe scaffolding. Bruce v. Central M. E. Church, 10: 74, 110 N. W. 951, 147 Mich. 230. 71. The rule of respondent superior does not apply in case of trustees who are ad- ministering a fund created for the sole pur- pose of educating and maintaining indigent boys without recompense, who have exer- cised reasonable care to select competent servants; and therefore they are not liable for injury to one servant through negligent orders given him by another. Farrigan v. Pevear, 7: 481, 78 N. E. 855, 193 Mass. 147. ( Annotated ) 72. The fact that the charter of a char- itable corporation maintained for education- al purposes provides that it may sue and be sued does not render it liable for the torts of its officers and agents. Alston v. Walden Academy, n: 1179, 102 S. W. 351, 118 Tenn. 24. 73. A corporation founded and main- tained by charitable bequests, for educational purposes, is not liable for injury to a pupil because of failure to maintain fire escapes on the building, as required by statute and municipal ordinance, although pupils are required to pay tuition and board, where the damages would have to be paid out of the trust funds. Alston v. Walden Acad- *-../; A. Si.kT S?fl I * CHARITIES, II. c. 459 emy, u: 1179, 102 S. W. 351, 118 Tenn. 24. Reform school. Evidence in action for wrongful detention in reformatory, see EVIDENCE, 1644, 2025. 74. A charitable institution organized for reformatory purposes, which detains a girl within its precincts without lawful au- thority and against her will, cannot escape liability to her for the wrongful imprison- ment because it believed that it was for her best interests, and that she would be morally and financially benefited thereby. Gallon v. House of Good Shepherd, 24: 286, 122 N. W. 631, 158 Mich. 361. 75. A public charitable institution or- ganized for reformatory purposes is liable in damages to one whom it imprisons in its institution without lawful authority; and it cannot escape liability on the theory that it is not liable for the acts of its servants, since its duty with respect to such impris- onment is one which it cannot delegate. Gallon v. House of Good Shepherd, 24: 286, 122 N. W. 631, 158 Mich. 361. Hospitals. Measure of damages for injury, see DAM- AGES, 14, 423. Negligence as to elevator entrances, see ELEVATORS, 23. Evidence in action for negligence of phy- sician in charity hospital, see EVI- DENCE, 1817. Statement to nurse that operation is not to be made as notice to physician, see NOTICE, 15. See also HOSPITALS, 2-8. 76. That a hospital is founded by prop- erty given in trust for that purpose does not exempt it from liability for negligent injury to its employees. Hewett v. Wo- man's Hospital Aid Asso. 7: 496, 64 Atl. 190, 73 N. H. 556. 77. That a hospital is conducted as a public charity without expectation of profit does not render it immune from liability for negligent injuries to its servants. Hewett v. Woman's Hospital Aid Asso. 7: 496, 64 Atl. 190, 73 N. H. 556. 78. A charitable institution conducting a hospital solely for philanthropic and benevolent purposes is not liable to inmates for " the negligence of nurses. Duncan v. Nebraska Sanitarium & Benev. Asso. 41: 973, 137 N. W. 1120, 92 Neb. 162. 79. A charitable institution conducting a hospital does not, by accepting compen- sation from a patient who is able to pay for room, board, and care, incur liability to such patient for the negligence of nurses. Duncan v. Nebraska Sanitarium & Benev. Asso. 41: 973, 137 N. W. 1120, 92 Neb. 162. 80. A charitable institution conducting a hospital for benevolent purposes alone does not necessarily incur liability in dam- ages for the death of an insane patient who committed suicide when alone in a room, though pay for the patient's room and care was accepted under an oral agreement to keep a nurse in constant attention. Duncan Digest 1-52 L.R.A.(N.S.) v. Nebraska Sanitarium & Benev. Asso. 41: 973, 137 N. W. 1120, 92 Neb. 162. 81. A public charitable hospital, organ- ized as such and open to all persons, al- though conducted under private manage- ment, is not liable for injuries to a patient of the hospital, resulting from the negli- gence of a nurse employed by it. Taylor v. Protestant Hospital Asso. 39: 427, 96 N. E. 1089, 85 Ohio St. 90. ' 82. The fact that a public charitable hospital receives pay from a patient for lodging and care does not affect i ; char- acter as a "charitable institution," nor its rights or liabilities as such in relation to such a patient. Taylor v. Protestant Hos- pital Asso. 39: 427, 96 N. E. 1089, 85 Ohio St. 90. 83. A hospital conducted as a charity is not liable to a patient paying for board a sum less than the per capita cost of main- tenance, for an unauthorized operation upon him by physicians of its staff serving with- out pay from it, although the operation constitutes an assault for which the physi- cian may be personally liable, since the re- lation between it and the physician is not that of master and servant. Schloendorff v. .Society of New York Hospital, 52: 505, 105 N. E. 92, 211 N. Y. 125. (Annotated) 84. A hospital which is an adjunct of a medical school, and is conducted for profit, is not a purely public charity, so as to be exempt from liability for the negligence of its servants, although it takes some free patients. University of Louisville v. Ham- mock, 14: 784, 106 S. W. 219, 127 Ky. 564. 85. A corporation organized to conduct a hospital as a public charity is not liable for the negligence of its servant in failing to prevent a patient, in a private room en- gaged for his use, under the direction of his private physician, from falling from the window, although the use of the room in- cludes necessary care and attention by em- ployees of the hospital. Jensen v. Maine Eye & Ear Infirmary, 33: 141, 78 Atl. 898, 107 Me. 408. 86. One who at the request of a patient about to enter a hospital accompanies him to render reasonably necessary assistance is an invitee of the hospital, to whom it owes the duty of exercising ordinary care to have the premises reasonably safe. Hos- pital of St. Vincent of Paul v. Thompson, 51: 1025, 81 S. E. 13, 116 Va. 101. 87. A hospital conducted as a public charity is liable for negligent injuries to one who accompanied to its building an intending patient for the purpose of ren- dering necessary assistance to him, as such person is not a beneficiary of the charity. Hospital of St. Vincent of Paul v. Thomp- son. 51: 1025, 81 S. E. 13, 116 Va. 101. 88. A hospital maintained by a railroad for the benefit of its employees, to which they are required to contribute, is not a charitable institution within the rule which exempts such institutions from liability for negligence. Phillips v. St. Louis & S. F. R. Co. 17: 1167, 111 S. W. 109, 211 Mo. 419. 89. A railroad company which maintains 460 CHARIVARI CHATTEL MORTGAGE. for the benefit of its injured employees a hospital in which they are entitled to treat- ment, requiring them to contribute towards its expense and appointing the assistants, is liable for injury to an employee through its failure to exercise reasonable care in select ing competent and skilful assistants, al- though the hospital is operated under an in- dependent charter. Illinois C. R. Co. v. Buchanan, n: 711, 103 S. W. 272, 126 Ky. 288. 90. A railroad company which attempts to maintain a hospital service for injured employees with a fund secured !>y deducting a small amount monthly from the wages of each employee is not liable for the malprac- tice of physicians employed, if it uses ordi- nary care to select competent and skilful ones. Arkansas M. R. Co. v. Pearson, 34: 317, 135 S. W. 917, 98 Ark. 399. State hospital or asylum for insane. 91. A state hospital established to care for insane persons js not liable for torts committed by a person under its care who is permitted to assist in the work of the in- stitution, notwithstanding the statute pro- vides that it may sue and be sued. Leavell v. Western Kentucky Asylum for Insane, 4: 269, 91 S. W. 671, 122 Ky. 213. 92. The superintendent of a state lunatic asylum is not, under the doctrine of re- spondeat superior, responsible for injuries inflicted upon inmates of the asylum by employees whom he appointed. Ketterer v. Kentucky State Bd. of Control, 20: 274, 115 S. W. 200, 131 Ky. 287. 93. A state board having control of a lunatic asylum which is supported by state funds is not liable for injuries inflicted by its employee on an inmate of the asylum, although it knew, or might have known, that he was in the nabit of mistreating such inmates. Ketterer v. Kentucky State Bd. of Control, 20: 274, 115 S. W. 200, 131 Ky. 287. CHARIVARI. Members of, as mob for whose acts city is liable, see MUNICIPAL CORPORATIONS, 353. CHARTER. Of banks, see BANKS, I. Of benefit society, revocation of, see BENEVOLENT SOCIETIES, 6, 7. Of social club, see CLUBS, 5. Of corporations generally, see CORPO- RATIONS, III. Of municipality, see MUNICIPAL CORPO- RATIONS, I. d. Of railroad company, see RAILROADS, 43, 44. Admissibility in evidence, see EVIDENCE, 2043, 2432. Effect of, to repeal prior statute, see STAT- UTES, 343, 350, 371. Digest 1-52 L.R.A.(N.S.) CHARTERERS. Carrier's liability for ejection of passenger by charterers of train, see CARRIERS, 383. CHARTER PARTY. Construction of, see CARRIERS, 874. CHASTITY. Instruction as to presumption of, see AP- PEAL AND ERROR, 848. Presumption and burden of proof as to chastity in prosecution for rape, see EVIDENCE, 119, 120. Opinion evidence as to, see EVIDENCE, 1115, 1116. Want of, as defense to prosecution for kill- ing wife, see HOMICIDE, 62, 69, 72. Remarks or publications affecting, see LIBEL AND SLANDER, II. b. Fraudulent representations as to, see MAK- RIAGE, 34. Impeaching witness by showing that repu- tation for, is bad, see WITNESSES, 153. CHATTEL MORTGAGE. I. In general. II. Validity,- consideration, 138. a. Generally, 16. b. Description of property, 7, S. c. Property subject to mortgage; after-acquired property, & 21. d. Possession; power to sell, 22 3S. III. Filing; recording; renewing, 39 42. IV. Effect; rights of parties; priori- ties, 4349. a. In general, 4345. b. Priorities, 4649. V. Assignment; satisfaction; aban- donment; 'waiver, 5O57. VI. Enforcement, 5866. Defense to action by mortgagee for causing loss of lien, see ACTION OR SUIT, 34. Right of one who wrongfully took property subject to, and against whom judgment was recovered by real owner, to re- cover from third person whom he per- mitted to take proceeds of sale of prop- erty, see ASSUMPSIT, 16. Rights of attaching creditors to mortgaged personal property, see ATTACHMENT, 18. Of exemptions, see BANKRUPTCY, 106; CON- TRACTS, 430; EXEMPTIONS, 6, 21. Conflict of laws as to, see CONFLICT OF LAWS, I. i. * CHATTEL MORTGAGE, I. II. b. 461 Regulation and licensing of chattel mort- gage loan brokers, see CONSTITUTIONAL LAW, 111, 689; LICENSE, 51; MUNICI- PAL CORPORATIONS, 176; SEARCH AND SEIZURE, 2. Oral agreement by mortgagee to pay debt of mortgagor to avoid attachment of property, see CONTRACTS, 226. By cropper, see CROPPERS, 2, 3. Estoppel of one leaving chattels in another's possession to claim title as against mortgagee in good faith, see ESTOPPEL, 51. Controversy as to rights of mortgagee and vendee of chattels, see EVIDENCE, 568. Evidence in replevin suit to gain possession of mortgaged chattels, see EVIDENCE, 770. By husband or wife to third person, see HUSBAND AND WIFE, 108. Injunction against seizure of property un- der, see INJUNCTION, 275. Effect of, on insurance, see INSURANCE, 200, 234-230. Collusiveness of judgment as to, see JUDG- MENT, 262. Right to jury trial in trover to recover possession of mortgaged chattel, see JURY, 44. Ri^ht of constable of justice's court to levy fi. fa. issued upon foreclosure of chat- tel mortgage in superior court, see LEVY AND SEIZURE, 19. As equitable mortgage on land, see MOST- GAGE, 8, 9. Director of bank as agent of bank or of one giving chattel mortgage to bank, see PRINCIPAL AND AGENT, 5. Chattel mortgagee as party to replevin suit, see REPLEVIN, 32. Mortgaging chattel as waiver of purchaser's right to return, see SALE, 66. Prerequisite to action to recover property sold under, see TENDER, 20. Question for jury as to whether chattel mortgage is intended to secure note, see TRIAL, 288. Conversion by factor selling property sub- ject to chattel mortgage, see TROVER, 20. Unexercised power of sale under, as de- fense to action for conversion, see TROV- ER AND CONVERSION, 45. J. In general. (See same heading in Digest L.R.A. 1-10.) II. Validity; consideration. a. Generally. (See also same heading in Digest L.R.A. 1-10.) Necessity of recording, see infra, III. Validity of mortgage of exemptions as against trustee in bankruptcy, see BANKRUPTCY, 106. Preference to creditors by, see BANKRUPTCY, 62, 76, 85-87. Right of corporation to execute, see CORPO- RATIONS, 86, 87, 97. Digest 1-52 L.R.A.(N.S.) 1. A chattel mortgage purporting to secure payment of a promissory note is not invalid because the note was not signed, if the mortgage correctly describes the note except as to the signature, and states the amount of debt, and terms and conditions of payments. Lierman v. O'Hara, 44: 1153, 140 N. W. 1057, 153 Wis. 140. (Annotated) 2. An honest debt may be so used as to hinder, delay, and defraud creditors, and that it is a bona fide debt is a mere cir- cumstance bearing on the question of good faith, when the inquiry is whether there was fraud in the giving of a trust deed to secure such debt. Gilbert v. Peppers, 36: 1181, 64 S. E. 361, 65 W. Va. 355. 3. A chattel mortgage of stock in trade and other property not characterized by actual fraud as to creditors of the mort- gagor, may be constructively fraudulent as to them respecting the stock, and valid as to the other property. Eastman v. Parkinson, 13: 921, 113 N. W. 649, 133 Wis. 375. (Annotated) Mortgage on stock of goods in bulk. See also FRAUDULENT CONVEYANCES, 22. 4. A chattel mortgage is not within the meaning of a statute forbidding the sale, transfer, or assignment of a stock of goods in bulk without certain preliminary proceedings. Hannah- v. Richter Brewing Co. 12: 178, 112 N. W. 713, 149 Mich. 220. (Annotated) Consideration; affidavits of. 5. An affidavit of consideration an- nexed, in compliance with N. J. P. L. 1902, p. 487, 4, to a chattel mortgage owned by a corporation, may be made by an officer of the corporation, and is valid without a recital that he is the agent or attorney of the company, or that he is specifically au- thorized to make the affidavit. American Soda Fountain Co. v. Stolzenbach, 16: 703, 68 Atl. 1078, 75 N. J. L. 721. (Annotated) 6. An affidavit annexed to a chattel mortgage, securing the payment of notes given as the purchase price of a soda foun- tain apparatus, which states that the con- sideration is the apparatus, and describes it, is a substantial compliance with N. J. P. L. 1902, p. 487, 4, requiring the annex- ation to a chattel mortgage of an affidavit stating its consideration. American Soda Fovmtain Co. v. Stolzenbach, 16: 703, 6S Atl. 1078, 75 N. J. L. 721. b. Description of property. (See also same heading in Digest L.R.A. 1-10.) 7. The mortgage of the statutory ex- emptions from execution to which a mer- chant is entitled out of his stock in trade is sufficiently specific to be upheld where by statute he is entitled to claim as exempt merchandise to a specified value out of the stock. Re National Grocery Co. 30: 982, 181 Fed. 33, 104 C. C. A. 47. 8. A description of horses in a chattel mortgage thereof as "one span of bay geld- ings seven and eight years of age, weight 402 CHATTEL MORTGAGE, II. c. about 2,500 Ibs., named 'Charlie and John' . . . this day bought of Guy Scott," is a sufficient description of the property mortgaged, within the rule that a descrip- tion which will enable a third person aided by inquiry which the instrument itself sug- gests to identify the property is sufficient. Farmers' & M. State Bank v. Sutherlin, 46: 95, 141 N. W. 827, 93 Neb. 707. c. Property subject to mortgage; after- acquired property. (See also same heading in Digest L'.R.A. 1-70.) 9. A roller-top desk in the office of an elevator is not covered by chattel mortgage on the elevator, chutes, bins, machinery, and other appurtenances thereto belonging. Dixson v. Ladd, 46: 206, 142 N. W. 259, 32 S. D. 163. (Annotated) 10. A mortgage by a renter of crops to be grown during the year, and also of crops to be raised "each successive year," until the debt is paid, will not attach to crops grown in a subsequent year on land rented by him from a different landlord, in which he had no interest when the mortgage was executed. Windham v. Stephenson, 19: 910, 47 So. 280, 156 Ala. 341. (Annotated) After-acquired property. 11. The intent of the parties to a chat- tel mortgage of merchandise, as disclosed by the instrument, that additions made from time to time for the purpose of replenishing the stock, -which was being disposed of in the ordinary course of business at retail, should be included in and covered by the lien of the mortgage, will be given effect. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 12. A clause in a mortgage given by a manufacturing corporation upon all its property, real and personal, to secure its negotiable bonds, with the right of posses- sion and enjoyment in the mortgagor for its own use and benefit until default, which purports in terms to cover after-acquired personal property, is not good, as against a trustee in bankruptcy appointed in pro- ceedings commenced three days after the mortgagee, in consequence of a default in interest, had taken possession, as to shift- ing stock and material acquired after the execution of the mortgage, but on hand when possession was taken by the mortga- gee. Zartman v. First Nat. Bank, 12: 1083, 82 N. E. 127, 189 N. Y. 267. 13. A clause in a chattel mortgage pur- porting in terms to cover after-acquired personal property not yet in existence will be given effect by a court of equity so far as practicable, provided no interest is af- fected except that of the mortgagor or mortgagee; but equity will not grant re- lief if the interests of creditors are in- volved. Zartman v. First Nat. Bank, 12: 1083, 82 N. E. 127, 189 N. Y. 267. 14. A chattel mortgage is not good at law, as against subsequent creditors of the mortgagor, so far as it purports to cover Digest 1-52 L,.R.A.(N.S.) after-acquired property not in existence actually or potentially at the time of the execution of the mortgage, but which came into existence before the mortgagee had taken possession under the mortgage. Zartman v. First Nat. Bank, 12: 1083, 82 N. E. 127, 189 N. Y. 267. 15. A trustee in bankruptcy of a chattel mortgagor, appointed in proceedings com- menced after the mortgagee had taken pos- session upon default in the payment of in- terest, has the same right as a creditor armed with an attachment or execution, as to property acquired by the mortgagor after the execution of the mortgage, which purported to cover after-acquired property. Zartman v. First Nat. Bank, 12: 1083, 82 N. E. 127, 189 N. Y. 267. 16. A parol mortgage to secure a loan for the purchase of a stock of goods, which is to attach not only to the goods already in stock, but to such as might be added there- after, is valid as between the parties. Mower v. McCarthy, 7: 418, 64 Atl. 578, 79 Vt. 142. 17. A parol mortgage to one loaning money to purchase a stock of goods upon the stock, and additions to it, is valid; and possession taken under it by the mortgagee will relate to the date of the agreement, so as to preclude creditors of the purchaser from sharing in the proceeds of their sale. Mower v. McCarthy, 7: 418, 64 Atl. 578, 79 Vt. 142. (Annotated) Future earnings. 18. A chattel mortgage which purports to assign, to secure a specified debt, all the future earnings of a specified threshing ma- chine, also of any other threshing machines operated by the mortgagor and of the men and teams operating them, which may accrue for threshing during the then-ensuing two years within three designated townships, is void against creditors who had no actual notice thereof. Dyer v. Schneider, '20: 505, 118 N. W. 1011, 106 Minn. 271. (Annotated) Increase of animals. Burden of proving right to increase of ani- mals, see EVIDENCE, 569. See also infra, 43. 19. Where a chattel mortgage does not transfer title, such mortgage on cows does not cover their calves in gestation when the mortgage is executed, and born prior to its foreclosure, where they are not mentioned in the instrument. Demers v. Graham, 14: 431, 93 Pac. 268, 36 Mont. 402. (Annotated) 20. A legislative declaration that the in- crease of property pledged is pledged with the property indicates an intention that the rule is different in case of chattel mort- gages. Demers v. Graham, 14: 431, 93 Pac. 268, 36 Mont. 402. 21. A legislative declaration that a mortgage is a lien upon everything that would pass by a grant of the property will not be construed to apply to the natural in- crease by procreation of domestic animals subject to chattel mortgages. Demers v. Graham, 14: 431, 93 Pae. 268, 36 Mont. 402. CHATTEL MORTGAGE, II. d. 463 d. Possessison; power to sell. (See also same heading in Digest L.R.A. 1-10.) Mortgagee's right to take possession. 22. A stipulation in a chattel mortgage whic authorizes the mortgagee upon named contingencies to take possession of the mort- gaged property is valid. Martin v. Hol- loway, 25: no, 102 Pac. 3, 16 Idaho, 513. 23. It is immaterial whether the mort- pagee has good cause to believe that he is insecure if he in fact deemed himself to be *o, under a clause in a chattel mortgage pro- viding that he may take possession of the property if he deem himself insecure. Flem- ing v. Thorp, 19: 915, 96 Pac. 470, 78 Kan. 237. ( Annotated ) Permitting mortgagor to retain pos- session or to sell. Change of possession of pledge, see PLEDGE AND COLLATERAL SECURITY, 2-10. Change of possession of personalty sold, see SALE, I. b. See also infra, 31, 34, 35, 62. 24. A sale by a mortgagor of chattels, in whom is the legal title, with the con- sent of the first mortgagee, without notice to intermediate lien holders, does not fore- close their liens, although the sale is made for the full value of the property, and the proceeds are applied to the payment of the debt secured by the first mortgage. Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & L. Co. 45: 1137, 202 Fed. 692, 121 C. C. A. 102. (Annotated) 25. A provision in a chattel mortgage that the possession of the mortgaged prop- erty shall remain in the mortgagor, with power to dispose thereof and apply all or a part of the proceeds in payment of the mort- gage indebtedness, is valid as between the parties. Martin v. Holloway, 25: no, 102 Pac. 3, 16 Idaho, 513. 26. A deed of trust on a stock of mer- chandise, disclosing on its face intention to permit the debtor to remain in pos- session and sell and dispose of the prop- erty, replenishing the sold goods by new purchases, is fraudulent per se, and void as to both existing and subsequent credit- ors. Gilbert v. Peppers, 36: 1181, 64 S. E. 361, 65 W. Va. 355. (Annotated) 27. An agreement in a chattel mortgage permitting the mortgagor to sell for his own benefit renders the mortgage fraudu- lent, as matter of law, as to creditors rep- resented by a trustee in bankruptcy ap- pointed in proceedings commenced after the mortgagee had taken possession. Zartman v. First Nat. Bank, 12: 1083, 82 N. E. 127, 189 N. Y. 267. 28. A chattel mortgage upon a stock of merchandise, which contains a stipulation authorizing the mortgagor to sell the prop- erty in the ordinary course of business at retail, without requiring the net proceeds of the sales to be applied upon the mortgage indebtedness, is conclusively deemed to be fraudulent and void as to the creditors of Digest 1-52 I*R.A.(N.S.) the mortgagor. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 29. A chattel mortgage given to a cred- itor who has collateral security with which he is satisfied, for the purpose of enabling the mortgagor to force a settlement with another creditor, is void where the mort- gagor is permitted to continue his business without accounting to the mortgagee for sales which he makes of the mortgaged property. Greig v. Mueller, 46: 722, 133 Pac. 94, 66 Or. 27. 30. Where the mortgagee of certain cot- ton gave the mortgagor authority to sell the cotton and deposit the proceeds in a bank in the name of the mortgagor's bondsmen in a suit, and the same was done, the lien of the mortgage was discharged, and the funds, prior to reaching the mortgagee, were subject to garnishment at the instance of a creditor of the mortgagor. Carr v. Braw- ley, 43: 302, 125 Pac. 1131, 34 Okla. 500. (Annotated) Effect of mortgagee's taking posses- sion. Delivery of possession to mortgagee by corporate officers, see CORPORATIONS, 57. Effect of taking possession by pledgee, see PLEDGE AND COLLATERAL SECURITY, 22. 31. A mortgagee of a stock of merchan- dise who takes possession thereof, with the consent of the mortgagor, before any other right or lien attaches, acquires a right of possession under the mortgage, provided it is valid between the parties thereto, good as against everybody, notwithstanding a provision of the mortgage that the mort- gagor shall retain possession of the mort- gaged property, with power to dispose there- of in the ordinary course of business, ap- plying only a part of the proceeds in dis- charge of the mortgaged debt. Martin v. Holloway, 25: no, 102 Pac. 3, 16 Idaho, 513. . (Annotated) 32. Under a statute providing that if a chattel mortgagee receive and retain actual possession of the property mortgaged, he may omit the filing of his mortgage during the continuance of such actual possession, such possession is equivalent to the record- ing of the mortgage, and gives to the world the same notice that would be given by the recording thereof. Martin v. Holloway, 25: no, 102 Pac. 3, 16 Idaho, 513. 33. An attaching creditor of a mortgagor cannot challenge the mortgagee's right to possession of the mortgaged chattels, which has been taken with the consent of the mort- gagor, on the ground that there has been no default by the mortgagor which would en- title the mortgagee to take possession. Martin v. Holloway, 25: no, 102 Pac. 3, 16 Idaho, 513. 34. Where a chattel mortgage upon a stock of merchandise which is valid between the parties, contains a provision that the mortgagor shall retain possession and have power to dispose of the mortgaged property in the ordinary course of trade and apply one half the proceeds upon the mortgage debt, which provision is void as against attaching creditors, the taking of possession 464 CHATTEL MORTGAGE, III., IV. a. of the mortgaged property by the mortgagee, with the consent of the mortgagor, before any specific right or lien upon the property is acquired by a creditor, cures the mortgage of such void provision and gives such mort- gagee valid possession, which he may main- tain as against a subsequent attaching cred- itor. Martin v. Holloway, 25: no, K)2 Pac. 3, 16 Idaho, 513. 35. That a chattel mortgagee takes pos- session of the mortgaged merchandise for the purpose of foreclosure before any at- tempt to assert their rights ia made by creditors of the mortgagor, as to whom the mortgage was void because it permitted the mortgagor to sell the mortgaged merchan- dise at retail without requiring the net pro- ceeds of sales to be applied upon the mort- gage indebtedness, does not operate to val- idate the instrument, or in any manner af- fect the rights of the creditors. Madson v. Rutten, 13: 554, 113 N. W. 872, 18 N. D, 281. 36. A chattel mortgagee who fails to renew his lien as provided by statute may preserve it as against subsequently acquired interests, by taking possession of the prop- erty as provided in the instrument. Boyer v. M. D. Knowlton Co. 38: 224, 97 N. E. 137, 85 Ohio St. 104. 37. The doctrine that taking possession of after-acquired chattels according to the provisions of a mortgage covering them gives precedence of liens over a subsequent attachment is .not affected by a statute providing that no mortgage of chattels is valid against strangers, unless possession of such property is delivered to and retained by the. mortgagee, or the mortgage is re- corded. Burrill v. Whitcomb, i: 451, 61 Atl. 678, 100 Me. 286. 38. Taking possession of after-acquired stock in trade covered by a chattel mort- gage, according^ to its provisions, will give the mortgagee precedence on a subsequent attachment, although the property was not purchased with the proceeds of stock sold, and the mortgagor did not expressly assent to such possession after acquiring the prop- erty. Burrill v. Whitcomb, 1:451, 61 Atl. 678, 100 Me. 286. (Annotated) ///. Filing; recording; renewing. (See also same heading in Digest L.R.A. 1-70.) Necessity of filing. Invalidity of unrecorded chattel mortgage as against trustee in bankruptcy, see BANKRUPTCY, 85-87. Record of pledge, see PLEDGE AND COL- LATERAL SECURITY, 2, 9. Necessity of recording assignment of liquor license, see PLEDGE AND COLLATERAL SECURITY, 2-10. Effect of failure to comply with law as to recording of, in case of notes treated as mortgages, see RECEIVERS, 34. Filing contract of conditional sale, see SALE, 47-50. See also infra, 50. Digest 1-52 L.R.A.(N.S.) 39. An untiled chattel mortgage is good between the parties thereto, in the absence of actual fraud as to creditors of the mort- gagor; and if the mortgagee neglects to file the instrument until the mortgagor incurs indebtedness to third parties, and he is ad- judged a bankrupt before any of them ob- tain a lien on the property, the trustee ac- quires no better claim thereto than the mortgagor had, and cannot successfully im- peach the mprtgage in the interest of cred- itors. Eastman v. Parkinson, 13: 921, 113 N, W. 649, 133 Wis. 375. Sufficiency. 40. The filing of a chattel mortgage is accomplished in legal effect by delivering it to and leaving it with the proper public officer for that purpose, regardless of any failure of duty upon the part of such officer. Eastman v. Parkinson, 13: 921, 113 N. W. 649, 133 Wis. 375. 41. A mistake in the middle initial of a name signed to a chattel mortgage by one whose business signature consists of his surname and initials destroys the efficacy of its record as against subsequent bona fide purchasers. First Nat. Bank v. Hacoda Mercantile Co. 32: 243, 53 So. 802, 169 Ala. 476. Place. Necessity of recording in another state to which property is removed, see CON- FLICT OF LAWS, 116. 42. It ia not necessary for a chattel mortgagee, in order to preserve the lien of his valid recorded mortgage, to file it, or a copy thereof, for registry in the county to which the mortgagor has removed the chat- tels without the knowledge or consent of the mortgagee. National Bank of Com- merce v. Jones, 12: 310, 91 Pac. 191, 18 Okla. 555. IV. Effect; rights of parties; priorities, a. In general. (See also same heading in Digest L.R.A. 1-70.) Evidence to show intent in giving mortgage, see EVIDENCE, 1618. What constitutes fixtures as between mort- gagor and mortgagee, see FIXTURES. Replevin by mortgagee against administra- tor of mortgagor for goods of which the latter died possessed, see REPLEVIN, 43. A chattel mortgage on domestic ani- mals and their increase, which is executed during the period of gestation and is duly filed for record, creates a lien upon the in- crease when the same are born, which will continue so long as the mortgage lasts, not only as between the mortgagor and mort- gagee, but as against creditors and bona fide purchasers of the mortgagor. Holt v. Lucas, 17: 203, 96 Pac. 30, 77 Kan. 710. 44. If the dealings with a ship by the mortgagor are of such a character as to be inconsistent with the sufficiency of the secu- CHATTEL MORTGAGE, IV. b; V. 465 rity, the mortgagee may take possession, al- affidavit being filed. First State Bank v. though there has not been any actual default King & McCants, 47: 668, 133 Pac. 30, 37 on the part of the mortgagor under the mortgage, and although the mortgagee has not commenced any formal proceedings. The Manor, 4 B. R. C. 500, [1907] P. 339. Also Reported in 96 L. T. N. S. 871. (Annotated) 45. A mortgagee of a ship is not en- titled to unpaid freight which became due previously to the date of his taking posses- sion of the ship. Shillito v. Biggart, 4 B. R. C. 532, [1903] 1 K. B. 683. Also Re- ported in 72 L. J. K. B. N. S. 294, 51 Week. Rep. 479, 88 L. T. N S. 426, 19 Times L. R. 313, 8 Com. Cas. 137, 9 Asp. Mar. L. Cas. 396. (Annotated) &. Priorities. (See also same heading in Digest L.R.A. 1-10.) Statute postponing existing valid mortgage lien to subsequently created lien, see CONSTITUTIONAL LAW, 55. Priority in assets of partnership as be- tween chattel mortgage to secure indi- vidual debt and other creditors, see PARTNERSHIP, 41. Of funds in hands of receiver, see RE- CEIVERS, 34. See also supra, 36-38; infra, 50, 63. 46. The lien of a prior valid recorded chattel mortgage will take precedence over the subsequently acquired lien of a livery- stable keeper or agister upon animals placed in his charge, unless such animals were delivered to such lien holder to be kept and cared for by him with the con- sent of the mortgagee. National Bank of Commerce v. Jones, 12: 310, 91 Pac. 191, 18 Okla. 555. (Annotated) 47. The attachment of a mortgaged chattel as the property of the mortgagor pending a suit for strict foreclosure of the mortgage is subject to the determination of the foreclosure . It, even though the attachment was levied and the foreclosure suit begun when the property was tem- porarily in another state. North Carolina Land & Lumber Co. v. Boyer, 39: 627, 191 Fed. 552, 112 C. C..A. 162. 48. The declaration of a forfeiture and institution of a proceeding strictly to fore- close a mortgage on chattels vest title in the mortgagee which, when judicially estab- lished by judgment, takes precedence of an attachment levied against the property as that of the mortgagor after the foreclosure suit was begun. North Carolina Land & Lumber Co. v. Boyer, 39:627, 191 Fed. 552, 112 C. C. A. 162. 49. One who has taken a chattel mort- gage with knowledge of a valid subsisting lien on the property covered thereby does not become a subsequent encumbrancer in good faith for value, so as to give his lien priority over the first after the statutory period for the filing of a renewal affidavit Okla. 744. (Annotated) V. Assignment; satisfaction; abandon- ment; waiver. (See also same heading in Digest L.R.A. 1-10.) Assignment. 50. Even though the statute does not ex- pressly require the recording of an assign- ment of a chattel mortgage, failure to make the record will subordinate the assignees to the rights of a bona fide purchaser of a sec- ond mortgage upon the same property from the original mortgagee, who, after assigning the first mortgage, fraudulently cancels it of record and secures another in substitu- tion for it; and it is immaterial that the note secured by the second mortgage is not negotiable in form. Central Trust Co. v. Stepanek, 15: 1025, 115 N. W. 891, 138 Iowa, 131. (Annotated) Satisfaction; discharge. Review of verdict as to sufficiency of tender of amount due on, see APPEAL AND ERROR, 904. 51. Where a chattel mortgage is a mere lien, tender of the amount due at any time before sale under foreclosure discharges the lien. Thomas v. Seattle Brewing & Malting Co. 15: 1164, 94 Pac. 116, 48 Wash. 560. (Annotated) Abandonment; waiver. See also supra, 30. 52. Consent by a chattel mortgagee that the property shall be taken out of the state in which the mortgage was given is a waiver of the mortgage as against every person except the mortgagor. Jones v. North Pacific Fish & Oil Co. 6: 940, 84 Pac. 1122, 42 Wash. 332. (Annotated) 53. A chattel mortgagee does not waive the lien of his mortgage by causing a writ of attachment to be levied upon the mort- gaged property. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 54. The holder of a promissory note which is secured by a chattel mortgage does not waive or lose his mortgage security by attempting to collect the note by proceed- ings in attachment, or other recognized proc- ess provided by law for the collection of debts, since, as such remedies are all for the purpose of enforcing the same right, and all aid in the enforcement thereof, without con- flicting with each other, the remedies are not inconsistent. Kansas City Live Stock Com. Co. v. Bank of Hamlin, 24: 490, 101 Pac. 617, 79 Kan. 761. (Annotated) 55. A mortgagee of chattels does not lose his lien thereon by levying an attach- ment upon the property as that of the mort- gagor, either by estoppel or waiver, where by statute the equity of redemption is sub- ject to levy and sale under execution. Ex parte Logan, 51: 1068, 64 So. 570, 185 Ala. 525. ( Annotated ) 56. The lien of a chattel mortgage is not has expired as to the first lien without such waived by levying an attachment against Digest 1-52 I*R.A.(N.S.) 30 466 CHATTEL MORTGAGE, VI. CHAUFFEUR. the mortgaged property where the mortgage does not convey the legal title, and the attachment suit is dismissed without trial. Stein v. McAuley, 27: 692, 125 N. W. 336, 147 Iowa, 630. 57. The lien of a chattel mortgage is de- stroyed by the attaching of the property by the mortgagee. Johnson v. Jones, 48: 547, 135 Pac. 12, 39 Okla. 323. VI. Enforcement. (See also same heading in Digest L.R.A. 1-10.) Defense to enforcement of, who may set up, see ACTION OB SUIT, 44. Estoppel to foreclose, see ESTOPPEL, 201. 58. A statute requiring the filing of an affidavit of the proceedings when property is taken and sold under a chattel mortgage does not apply where the sale is with the consent of the mortgagor. Lierman v. O'Hara, 44: 1153, 140 N. W. 1057, 153 Wis. 140. 59. Allowing a desk to remain in an ele- vator at the time a chattel mortgage there- on is foreclosed and the property sold un- der the mortgage does not pass the title to the purchaser at the sale. Dixson v. Ladd, 46: 206, 142 N. W. 259, 32 S. D. 163. 60. A sale of mortgaged chattels by the mortgagee under a power of sale contained in the mortgage, in pursuance of an adver- tisement for sale duly made, is void and ineffectual to pass title to the purchaser, where it is at the time held by virtue of a seizure under an execution levied thereon by a third person. Fulghum v. J. P. Wil- liams Co. i: 1055, 40 S. E. 695, 114 Ga. 643. (Annotated) 61. A purchaser at foreclosure sale, for full value, of chattel -mortgaged property of which the mortgagee took possession in good faith, acquires a good title; and the creditors of the mortgagor cannot pursue the property in his hands, although as to them the mortgage was fraudulent and void. Madson v. Rutten, 13: 554, 113 N. W. 872, 16 N. D. 281. 62. That a purchaser at a mortgagee's sale leaves the property in possession of the mortgagor does not render the sale void as matter of law under a statute pro- viding that, if, in transfer of personal prop- erty, no delivery is made, followed by pos- session by the purchaser, the transfer shall be presumed to be fraudulent and there- fore void. Taylor v. Wooden, 36: 1018, 118 Pac. 372, 30 Okla. 6. (Annotated) 63. The fact that a mortgaged chattel is temporarily out of the state when a for- feiture is declared and proceedings for strict foreclosure instituted does not pre- vent the title from passing to the mort- gagee, which he can assert against subse- quent attachments of the property in the state where the property is found as that of the mortgagor. North Carolina Land & Lumber Co. v. Boyer, 39: 627, 191 Fed. 552, 112 C. C. A. 162. (Annotated) Digest 1-52 L.R.A.(N.S.) Power of sale. 64. The mortgagee of shares hag, in the absence of an express power of sale, an im- plied power to sell the shares on default by the mortgagor in payment of the amount due at the time appointed for payment, or, if no time be fixed, then on the expiration of a reasonable notice requiring payment on a day certain. Deverges v. Sandeman, 3 B. R. C. 902, [1902] 1 Ch. 579. Also Re- ported in 71 L. J. Ch. N. S. 328, 50 Week. Rep. 404, 86 L. T. N. S. 269, 18 Times L. R. 375. (Annotated) 65. A month's notice requiring payment on a day certain of an indebtedness for which no time of payment has been agreed upon, or even less time, may be a reasonable notice which will entitle a mortgagee of per- sonalty to exercise a power of sale. De- verges v. Sandeman, 3 B. R. C. 902, [1902] 1 Ch. 579. Also Reported in 71 L. J. Ch. N. S. 328, 50 Week. Rep. 404, 86 L. T. X. S. 269, 18 Times L. R. 375. 66. Sections 19 and 20 of the conveyanc- ing act 1881, which define the powers of a mortgagee, whether of realty or personalty, and provide that a power of sale is not to be exercised until notice requiring payment has been served upon the mortgagor, and default is made for three months after serv- ice, do not affect the power of sale which is implied in the case of a mortgage of shares not made by deed. Deverges v. Sandeman, 3 B. R. C. 902, [1902] 1 Ch. 579. Also Re- ported in 71 L. J. Ch. X. S. 328, 50 Week. Rep. 404, 86 L. T. N. S. 269, 18 Times L. R. 375. CHATTELS. Mortgage on, see CHATTEL MORTGAGE. Lien on, see LIENS. Sale of, see SALE. Creation by will of executory interest in, see WILLS, 305. CHATTELS REAL. Taxation of, see CONSTITUTIONAL LAW, 223; STATUTES, 221; TAXES, 26, 61, 62. Oil and gas lease as, see MIXES, 51.. CHAUFFEUR. Negligence of generally, see AUTOMOBILES, II. Admissibility of statements and conduct of, at time of accident, see EVIDENCE, 1412, 1413. Evidence in prosecution of, for homicide, see EVIDENCE, 1665. Libel in report of killing by, see LIBEL AND SLANDEE, 35, 96. Who is master of negligent chauffeur, see MASTER AND SERVANT, 36, 45-58. CHEATING CHECKS. 467 As fellow servant of person injured, see MASTER AND SERVANT, 788. As independent contractor, see MASTEB AND ' SERVANT, 1031. CHEATING. 87 means of false pretenses, see FALSE PRETENSES. CHECK ROOM. Loss f passenger's property while in rail- road check room, see CARRIERS, 688- 93, 732. CHECKS. I. In general; nature of, 18. II. Presentation, 929. III. Certification, 3O4O. IV. Bona fide holders, 4152. V. Forged paper, 5355. Accord and satisfaction by, see ACCORD AND SATISTACTION, 10-20. Recovery from payee where by mistake check is paid for larger amount than that called for, see ASSUMPSIT, 12. Assumpsit for amount of check issued by mistake, see ASSUMPSIT, 46. Guaranty of, by bank, see BANKS, 193-195. As to duties and liabilities of bank with respect to payment of, see BANKS, IV. a, 3. Collection of, see BANKS, IV. b. Collecting bank accepting check in pay- ment, see BANKS, 155, 177, 181. Protest of, see BILLS AND NOTES, 65, 66, 111, 112. Presumption of acceptance of, see BILLS AXD NOTES, 65, 66. Liability of indorser of, see BILLS AND NOTES, 76. Law governing validity of, see CONFLICT OF LAWS, I. b, 2. Consideration for, see CONTRACTS, 66. Rights of one who indorses check of owner f stolen property to secure its return, see CONTRACTS, 432. Given for purpose of obtaining money to gamble, see CONTRACTS, 589; TRIAL, 304. Embezzlement of, see EMBEZZLEMENT, 1, 9; INDICTMENT, ETC., 98. Estoppel of bank to deny right to pay check to bona fide purchaser, see ESTOPPEL, 89. Estoppel of payee who has commenced ac- tion against drawer, to intervene in action by other creditor of drawer, see ESTOPPEL, 218. Digest 1-52 L.R.A.(N.S.) Authority of agent to indorse, see EVIDENCE, 173; PRINCIPAL AND AGENT, 55. Payment by, see EVIDENCE, 636, 637, 1922; MORTGAGES, 148, 170; PAYMENT, 7-15. Evidence on question whether check was tendered in settlement of disputed claim, see EVIDENCE, 807. Admissibility in evidence of memoranda on stub of, see EVIDENCE, 842. Parol evidence of consideration for, see EVIDENCE, 1005. Evidence to establish husband's authority to sign checks for wife, see EVIDENCE, 3520. Evidence as to person to whom maker of forged check intended that money should be paid, see EVIDENCE, 1621. Laches by owner of check in making de- mand for proceeds on one who cashed it wrongfully, see EVIDENCE, 1757; LIMI- TATION OF ACTIONS, 53. Evidence in prosecution for giving check with intent to defraud, see EVIDENCE, 1884. Admissibility under pleadings of evidence in action on, see EVIDENCE, 2453. Admissibility in evidence, see EVIDENCE, IV. m. Obtaining money or property by means of, as false pretense, see EVIDENCE, 2415; FALSE PRETENSES, 10-14, 20. As false token, see FALSE PRETENSES, 20. Drawing postdated check with knowledge that there are no funds to meet it, see FRAUD AND DECEIT, 64. Giving false check in payment of purchase price of property, see FRAUD AND DE- CEIT, 66. Priority as between garnishing creditor and holder of check, see GARNISHMENT, 51. Gift of, see GIFT, 9, 17, 18, 23. Larceny of, see LARCENY, 7, 20, 40. Giving of, as acknowledgment of debt to toll statute of limitations, see LIMI- TATION OF ACTIONS, 343. Tender of check as redemption from mort- gage, see MORTGAGE, 148, 170. Effect of assignment on right of action on, see PARTIES, 101, 102. Powers of agent as to, see PRINCIPAL AND AGENT, 55-59. Stopping payment of, as rescission of sale, see SALE, 189. Effect of taking worthless check in payment of goods sold, see SALE, 228, 231, 234. Right of depositor receiving draft in pay- ment of his check on insolvent bank, see SUBROGATION, 4. Validity of check given on Sunday, see SUNDAY, 21. Delivery of, on Sunday, see SUNDAY, 29; TRIAL, 846. Taxation of checks drawn by United States Treasurer, see TAXES, 1. Tender by, see TENDER, 14. Sufficiency of finding as to ownership of, see TRIAL, 1127. Trover for, see TROVER, 10, 18. Coversion by inducing incompetent person to draw check, see TBOVEB, 19. 468 CHECKS, I., II. 7. In general; nature of. (See also same heading in Digest L.R.A 1-70.) 1. The provisions of the negotiable-in- struments act prescribing the nature of the implied liability in negotiating an instru- ment by delivery has no application to the delivery by a lender of a cashier's check to transfer the money loaned to the borrower. Dille v. White, 10: 510, 109 N. W. 909, 132 Iowa, 327. 2. A bank check is an instrument by which a depositor seeks to withdraw funds from a bank, and, as between the drawer and the payee, it is an evidence of indebted- ness, and, in commercial transactions, as well as in law, it is equivalent to the draw- er's promise to pay; and an action may be brought thereon, as upon a promissory note. Camas Prairie State Bank v. Newman, 21: 703, 99 Pac. 833, 15 Idaho, 719. (Annotated) 3. The payee of a bank check may maintain an action against the drawer to recover the debt evidenced by such check, upon the drawee refusing to pay the same. Camas Prairie State Bank v. Newman, 21: 703, 99 Pac. 833, 15 Idaho, 719. 4. That a bank to which a check has been indorsed by one who deposited it may have the right to charge the check to the depositor's account, if it should be dis- honored after due diligence has been exer- cised to collect it, does not affect the char- acter of the transfer, or render the bank any the less the owner of the check. Noble v. Doughten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. 5. If a bank, holding title to a check which has been indorsed to and deposited with it, indorse it to the order of its cor- respondent in the city where the drawee bank is located, \vith a guaranty of the pre- vious indorsement, and forward it with a de- posit slip attached for credit as a deposit to such correspondent, who accepts it on the terms proposed by the indorsement and the deposit slip, and undertakes to collect it, the title to the check, no further facts appear- ing, vests in the second indorsee. Noble v. Doughten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. 6. If the payee of a check drawn on a bank in a city other than that of his resi- dence indorse it and deposit it in his home bank in the usual and ordinary manner, and without any agreement or understanding in reference to the transaction other than such as the law implies, the check becomes the property of the indorsee. Noble v. Dough- ten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. 7. Where a depositor issues a check against his general account on deposit at a bank, such check is not an equitable assign- ment of the fund standing to his credit in the bank, notwithstanding the fact that he made the deposit for the purpose of pay- ing such check, and a garnishment of the bank in a suit against him before such check is presented creates a lien on the deposit superior to the right of the payee of the Digest 1-52 I*R.A.(N.S.) check. Kaesemeyer v. Smith, 43:100, 123 Pac. 943, 22 Idaho, 1. (Annotated) Action on lost check. \\ ho may sue on lost check, see PARTIES, 101, 102. 8. A suit in equity will lie to recover upon a lost check; and the court, in de- creeing a recovery, may protect defendant by a suitable provision for indemnity. Smith v. Nelson, 24: 644, 65 S. E. 261, 83 S. E. 294. //. Presentation. (See also same heading in Digest L.R.A. 1-10.) 9. The drawer of a check sent to a dis- tant place to be forwarded for presentation, by allowing his funds to remain in the drawee bank, and the payee, by accepting the check, evince belief in the solvency of the bank, and the former voluntarily takes the risk of its solvency during the reasona- ble period necessary for presentment of the check in the usual manner. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 10. The parties to a check drawn on a bank and sent to a distant place to be for- warded for presentation are deemed in law to have acted with ..nowledge ol the usual diligent method of making such presentment through a bank at the place to which it is sent, and to have agreed to suffer any rea- sonable delay incident to such mode of pre- sentment. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 11. The drawer, in delivering a check to an agent of the payee, having no authority to indorse it, at the place of business of the drawer, impliedly agrees to allow such addi- tional time for presentment as may be necessary for the transmission of the check to the principal of the agent. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 12. The transfer of a check to successive holders will not extend the time for pre- sentment, where it is drawn and delivered in the place where the drawee is located. Gordon v. Levine, 10: 1153, 80 N. E. 505, 194 Mass. 418. (Annotated) What is a reasonable time for. Question for jury as to, see TRIAL, 208, 209. 13. If the payee of the check and the drawee reside, or have their places of busi- ness, in the same city or town, presentment must be made before the expiration of busi- ness hours of the day next after the day of the receipt thereof. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 14. Neither the payee nor his agent re- ceiving a check drawn on a bank in another place is required to transmit it by the only, or last, mail of the day next after its re- ceipt, if such mail closes or departs at an hour so early as to render it inconvenient for the holder to avail himself of it. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. (Annotated) .r'i'.' . J'"l t }03*-a (.8.VO.A.H.J Sc-I JeoyiCI CHECKS, II. 469 15. If the person receiving a check and the bank on which it is drawn are in differ- ent places, it must be forwarded, for pre- sentment, by mail or other usual mode of transmission, on the next day .after the re- ceipt thereof at the place in which the payee resides or does business, if reasonably and conveniently practicable; and, if it is not so practicable, then by the next mail, or other similar means of conveyance, leaving after said date. Lewis, H. & Co. v. Mont- gomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. Necessity of. 16. The payee of a check, in the absence of any agreement to the contrary, and of any circumstances known to him, making it imprudent to do so, may indorse and deliver the check to a bank for collection, and while this does not extend ihe time within which it must be forwarded for present- ment, yet the bank is not required to for- ward it on the next day after its receipt by .the payee, if there be no reasonably convenient means of doing so, within the banking hours of that day. Lewis, H. & Co. v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 17. Failure to a present a check in due course for payment will discharge the in- dorser even though such presentment would have been unavailing, in the absence of af- firmative proof that he knew when he passed the check that there would be no funds in the bank to meet it. Start v. Tupper, 15: 213, 69 Atl. 151, 81 Vt. 19. (Annotated) 18. The holder of a bank check is re- lieved from the duty imposed upon him by law, of presenting the check for payment as an essential preliminary to a right of ac- tion against the maker, where the perform- ance of the duty has been rendered impos- sible by the loss of the instrument in transit after it has been mailed to the drawee bank for payment. First Nat. Bank v. McCon- nell, 14: 616, 114 N. W. 1129, 103 Minn. 340. (Annotated) 19. The owner of a bank check which was lost without his fault, before present- ment to the bank upon which it was drawn, may recover thereon against the drawer, upon filing a proper indemnity bond as pro- vided by Minn. Rev. Laws 1905, 4718. First Nat. Bank v. McConnell, 14: 616, 114 N. W. 1129, 103 Minn. 340. Mode of. 20. An indorser of a check drawn upon a bank in another town is not released by the fact that the check was sent directly to the drawee bank, instead of to an agent of the indorsee, for presentation and demand of payment, in the absence of any prejudice to the indorser by the adoption of the former course. Citizens' Bank v. First Nat. Bank, 13: 303, 113 N. W. 481, 135 Iowa, 605. 21. Negligence in the presentation of a check drawn upon a bank in another town, which will release an indorser, cannot be predicated upon the mere circumstance that the check was forwarded by mail instead of by messenger, even though the latter may have been the more expeditious course. Digest 1-52 L.R.A.(N.S.) Citizens' Bank v. First Nat. Bank, 13: 303, 113 N. W. 481, 135 Iowa, 605. Effect of delay. Effect of delay in collecting on right to charge maker's bank account in hands of assignees for creditors, see ASSIGN- MENT FOB CREDITOKS, 16. Effect of delay in presenting check for pur- chase price to pass title, see SAM, 186. Question for jury as to effect of delay in presenting, see TRIAL, 281. See also supra, 21. 22. A person receiving a check on a fund in the hands of a bank, for the amount of a demand against the drawer thereof, is bound to exercise reasonable diligence in making presentment thereof for payment, if he wishes to avoid risk of loss by insolvency of the drawee. Lewis, H. & Co. v. Mont- gomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 23. Failure to present a check does not fear recovery from the drawer, if the time intervening between delivery thereof and the failure of the bank is not sufficient for presentment by the exercise of such dili- gence as the law requires. Lewis, H. & Co v. Montgomery Supply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 24. The indorsee of a check, who mailed it to the drawee on Saturday, is not bound to give the indorser notice of the fact that it was delayed over Sunday in transmission at the railroad station nearest to the town in which the drawee did business. Citizens' Bank v. First Nat. Bank, 13: 303, 113 N. W. 481, 135 Iowa, 605. 25. The indorser of a check mailed in due course to the drawee is not released because it remained in the postoffice of the town in which the drawee did business from Mon- day afternoon until the following Tues- day morning, at which time it was deliv- ered and promptly presented for payment and protested for nonpayment, since pro- test on Tuesday would have been suffi- cient, even if the check had been delivered on Monday. Citizens' Bank v. First Nat. Bank, 13: 303, H3 N. W. 481, 135 Iowa, 605. 26. Failure to present a check for pay- ment will not, until the ^xpiration of the limitation period, relieve the drawer from liability thereon, unless he shows that he has suffered loss through the failure. Rosenbaum v. Hazard, 38: 255, 82 Atl. 62, 233 Pa. 206. (Annotated) Delay in presenting check taken in payment of other check. By collecting bank taking check in pay- ment, see BANKS, 177. 27. A local custom of banks to take up checks drawn upon them by their depositors with their own checks on other banks will not excuse holders from exercising the ut- most diligence in collecting the substituted checks. Noble v. Dough ten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. (Annotated) 28. No diligence in collecting a check is shown, where a bank to which it had been indorsed presented it and accepted from the drawee bank, before noon of a business day closing at 3 p. M., a substituted check, which. 470 CHECKS, III., IV. could have been collected within twenty min- utes, but which was held until the following day, when an attempt was made to collect it through the clearing house, where it was thrown out because of the failure of the drawer at 2:45 p. M. of that day. Noble v. Doughten, 3: 1167, 83 Pac. 1048, 72 Kan. 336. Necessity of notice of nonpayment. 29. The statement of the cashier of a bank on which a check was drawn that it would be paid if the drawer had sufficient balance to his credit at the time of its pres- entation, otherwise it would be refused, made in response to the statement of the cashier of an indorsee bank that the check had been mailed and his question whether it would be honored on its arrival, does not amount to a dishonor of the check, which will make it incumbent upon the indorsee to give the indorser immediate notice there- of in order to hold the latter. Citizens' Bank v. First Nat. Bank, 13: 303, 113 N. W. 481, 135 Iowa, 605. (Annotated) III. Certification. (See also same heading in Digest L.R.A. 1-10.) Procuring certification of check as accept- ance, see ACCORD AND SATISFACTION, 13. Effect of depositing certified check as a payment, see MINES, 81. 30. The certificate by a bank that a check is good is equivalent to acceptance, and raises an implication that it is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its sat- isfaction, and that they shall be so appliad whenever the check is presented for pay- ment. Blake v. Hamilton Dime Sav. Bank, 20: 290, 87 N. E. 73, 79 Ohio St. 189. 31. Under the negotiable instrument law, the oral assurance by a bank to one who is about to purchase a check drawn upon it, that the check is good, does not render the bank liable to such person upon its subse- quent refusal to pay the check when pre- sented. Ballen v. Kremlin Bank, 44: 621, 130 Pac. 539, 37 Okla. 112. Rights and liabilities of drawee. 32. The transfer of a certified check is an assignment of money to meet it; and the bank making the certification is liable there- for to the holder. Blake v. Hamilton Dime Sav. Bank, 20: 290, 87 N. E. 73, 79 Ohio St. 189. 33. A bank which has certified a check upon it cannot, in the absence of mistake, repudiate the certification after the payee has parted with value upon the faith of it. First Nat. Bank v. Currie, 9: 698, 110 N. W. 499, 147 Mich. 72. 34. A bank is not estopped by its cer- tification of a check so drawn as readily to permit of alteration, from asserting, as against an innocent holder for value, that the check has been fraudulently altered after certification. Imperial Bank v. Bank of Hamilton, 4 B. R. C. 578, [1903] A. C. 49. Digest 1-52 L.R.A.(N.S.) Also Reported in 72 L. J. P. C. N. S. 1, 51 Week. Rep. 289, 87 L. T. N. S. 457, 19- Times L. R. 56. (Annotated) . 35. No negligence is imputable to a bank in cashing a certifred check without examin- ing the drawer's account, so as to impose upon it the loss arising from the fraudulent alteration of the check after certification. Imperial Bank v. Bank of Hamilton, 4 B. K. C. 578, [1903] A. C. 49. Also Reported in 72 L. J. P. C. N. S. 1, 51 Week. Rep. 28t>-:)Y'>b iOfl ! -- CHURCH. Exception of, in statute limiting height of building, see CONSTITUTIONAL LAW, 178. Operation of railroad trains so as to dis- turb religious service in, as a taking of the church property, see EMINENT DOMAIN, 184. Sale of intoxicating liquors near, see IN- TOXICATING LIQUORS, 137, 182. Requirement that water be furnished to, free of charge, see WATERS, 364. Condition in will as to attendance at, see WILLS, 294-297. In general, see RELIGIOUS SOCIETIES. CIDER. Forbidding keeping of, for sale, see CONSTI- TUTIONAL LAW, 511. Unlawful sale of, see INTOXICATING LI- QUORS, 81, 102. Requiring license for sale of, see LICENSE, 44, 120. CIGARETTES. Sale of tobacco containing coupon for ciga- rette paper as interstate commerce, see COMMERCE, 111. Right to hold in original package, see COM- MERCE, 130. , Ordinance prohibiting smoking of, see MU- NICIPAL CORPORATIONS, 212. 1. A statute making it unlawful to keep or own cigarettes does not apply to the act of smoking cigarettes, or f having them in possession for the sole purpose of smoking Digest 1-52 L.R.A.(N.S-) them, at least where the title states that the act is to regulate, and, in certain cases, prohibit, the use of cigarettes; and the words "keep" and "own" are preceded by those governing the manufacture, sale, and giving away of such articles. State v. Lowry, 4: 528, 77 N. E. 728, 166 Ind. 372. 2. The sale by a retailer of a sealed package of tobacco put up by the manufac- turer, which contains a coupon entitling the purchaser to cigarette papers when pre- sented by him to the manufacturer, will support a conviction of the former under a statute forbidding the sale or giving way, directly or indirectly, of such paper. State v. Sbragia, 23: 697, 119 N. W. 290, 138 Wis. 579. CIGARS. Placing inferior cigars in trade mark boxes as legal malice, see DAMAGES, 37. CIGAR STAND. Enjoining police from stationing officers near, see INJUNCTION, 327. CINDERS. As nuisance, see NUISANCES, 31, 32, 37, 98, 153, 195. CINEMATOGRAPH. See MOVING PICTURES. CIRCUIT COURT OF APPEALS. Appellate jurisdiction of, see APPEAL, II. b. CIRCUMSTANCES. Evidence of, see EVIDENCE, VI. k, XI. j. CIRCUMSTANTIAL EVIDENCE. Admissibility of, see EVIDENCE, VI. k, XI. j. Sufficiency of, to sustain judgment, see EVI- DENCE, 2206. CIRCUS. Liability of railroad company moving cir- cus train, see CARRIERS, 662; MASTBI AND SERVANT, 479. License tax on, see LICENSE, 23, 24. 474 CITATION CIVIL LIBERTY. CITATION. On appeal, see APPEAL AND EBBOR, III. e. CITIES. See MUNICIPAL CORPORATIONS. CITIZENS. Abridging privileges and immunities of, see CONSTITUTIONAL LAW, II. a. Right to inspect books and records of mu- nicipality, see MUNICIPAL CORPORA- TIONS, II. i. Natural rights of, see NATURAL RIGHTS. See also ALIENS; CITIZENSHIP. CITIZENSHIP. As affecting jurisdiction, see COURTS, III. d. As affecting right to removal of cause, see REMOVAL OF CAUSES, I. b. Presumption of, see EVIDENCE, 124-126. Admissibility of statements of deceased person to show, see EVIDENCE, 1376. 1. A child born a citizen of the United States, and removed by its parents to a foreign country during its early life, re- sides in the United States, within the mean- ing of a statute providing that children of citizens of the United States are themselves citizens. State ex rel. Phelps v. Jackson, 8: 1245, 65 Atl. 657, 79 Vt. 504. 2. A child born in Canada of parents who are citizens of the United States is, under the act of Congress of February 10, 1855, chap. 71, himself a United States citi- zen, if his father had ever resided in the United States and he elects to claim his citi- zenship here. State ex rel. Phelps v. Jack- son, 8: 1245, 65 Atl. 657, 79 Vt. 504. 3. The father of a child born in the United States, of American parentage, can do nothing to deprive him of his citizen- ship. State ex rel. Phelps v. Jackson, 8: 1245, 65 Atl. 657, 79 Vt. 504. CIVIC LEAGUE. Statute as to report of, upon candidate for public office, see CONSTITUTIONAL LAW, 756. CIVIL AUTHORITY. Insurance against loss caused by order of, see INSURANCE, 679, 680. CIVIL DAMAGES. See INTOXICATING LIQUORS, IV. b. CIVIL DEATH. 1. A person convicted of a felony is not devested of all rights whatever and rendered absolutely civiliter mortuus, but may contract with an attorney to obtain a parole, and this, in the absence of an express statute to the contrary or some express provision for the management of his estate, carries with it the right to dis- pose of his property in order to employ counsel, notwithstanding a statute making all persons capable of contracting except persons "deprived of civil rights" and an- other statute providing that a sentence of imprisonment in the penitentiary for any term less than life "suspends all the civil rights of the person so sentenced" during the term of such imprisonment. Byers v. Sun Savings Bank, 52: 320, 139 Pa'c. 948, 41 Okla. 728. (Annotated) 2. The suspension of the civil rights of a person sentenced to the penitentiary for a term less than life begins at the date of his imprisonment under the sentence. Harmon v. Bower, 17: 502, 96 Pac. 51, 78 Kan. 135. (Annotated) CITY AUDITOR. VC * .-. Capacity in which proposal for charter amendment is filed with, see MUNICIPAL CORPORATIONS, 18. CITY TREASURER. Rights of, as to public money, see PUBLIC I CIVIL ENGINEERS. Damages for negligent injury to engineer'! transit, see DAMAGES, 449. CIVILITER MORTUUS. See CIVIL DEATH. CIVIL LIBERTY. MONEYS. Digest 1-52 L.R.A.(N.S-) ' See CONSTITUTIONAL LAW. ai CIVIL RIGHTS; CIVIL SERVICE. 475 with such dangers to life and limb that children ought not to be required to attend it denies to such children equal educational facilities, and the action of the board in requiring them to attend such school, and denying them admission to any other, is an abuse of discretion. Williams v. Board of Education, 22: 584, 99 Pac. 216, 79 Kan. ( Annotated ) 202. In barber shop. 7. A barber shop is not a place of public accommodation within the meaning of a civil rights act, notwithstanding barbers must secure licenses and their shops are sub- ject to sanitary inspection and regulation. Faulkner v. Solazzi, 9: 601, 65 Atl. 947, 79 Conn. 541. (Annotated) Segregation of races as to residence. See also MUNICIPAL CORPOHATIONS, 62, 86, 210. 8. No unconstitutional discrimination between races occurred in prohibiting white and colored persons from moving into blocks occupied exclusively by members of the other race. State v. Gurry, 47: 1087, 88 Atl. 546, 121 Md. 534. 9. An ordinance which (Annotated) prohibits a CIVIL RIGHTS. Effect of deprivation of, on validity of deed executed by convict while execution of judgment of conviction is stayed, see DEEDS, 21. 1. A merchant who leases space in a pure food show for demonstration or adver- tising purposes, at which to permit patrons of the show to sample his wares, and who is in no way interested in the management of the show or the profits therefrom, does not, in refusing to serve negroes at the booth, violate the statute entitling all per- sons to full and equal enjoyment of the privileges of inns, restaurants, eating nouses, lunch counters, and other places where refreshments are served, theaters and all other places of amusement. Brown v. J. H. Bell Co. 27: 407, 123 N. W. 231, 124 N. W. 901, 146 Iowa, 89. In places of amusement. Statute as to penalty and costs for exclud- ing negro from place of amusement, see COSTS, 20. 2. A roller skating rink which the pub- lic is invited to patronize for an admission fee is within the terms of a statute impos- ing a penalty for exclusion on account of color of any person from the privilege of inns, restaurants, saloons, barber shops, eating houses, public conveyances on land or water, or any other place of public accom- modation or amusement. Jones v. Broadway Holler Rink Co. 19: 907, 118 N. W. 170, 136 VVis. 595. (Annotated) In cars. Wrongful arrest of negro interstate pas- senger under the provisions of state separate coach law, see CARRIERS. 162. 3. A railroad company may adopt rules requiring interstate colored passengers to occupy coaches set apart exclusively for the use of colored persons while within the lim- its of a particular state. Chiles v. Chesa- peake & O. R. Co. ii : 268, 101 S. W. 386, 125 Ky. 299. (Annotated) In schools. Dismissal of negro from college, see COL- LEGES, 3. Who may attack validity of statute pro- viding for separation of races in schools, see STATUTES, 30. See also SCHOOLS, 11. 4. Congress may constitutionally pro- vide for the separation of white and colored children in the public schools of the Dis- trict of Columbia. Wall v. Oyster, 31 : 180, 36 App. D. C. 50. 5. A negro is denied no constitutional right by being excluded from a private in- corporated institution of learning. Booker v. Grand Rapids Medical College, 24: 447, 120 N. W. 589, 156 Mich. 95. (Annotated) 6. Although a board of education of a city of the first class may, under Kan. Gen. Stat. 1901, 6290, provide separate schools for white and colored children in certain grades, provided equal educational facilities are furnished, the location of a school for tial assistants or laborers, as to whom colored children where access to it is beset competitive examinations shall be found Digest 1-52 L.R.A.(N.S.) white or colored owner of property in a block wholly occupied by members of the other race, and every other member of his race, from moving into it, is such an un- reasonable interference with vested prop- erty rights that it cannot be presumed that power to pass it was conferred upon the municipality by the general welfare clause of its charter. State v. Gurry, 47: 1087, 88 Atl. 546, 121 Md. 534. CIVIL SERVICE. Delegation of power to civil service commis- sion, see CONSTITUTIONAL LAW, 115. Constitutionality of civil service act, see CONSTITUTIONAL LAW, 172. Mandamus to compel appointment of veter- an to office, see MANDAMUS, 84. Certification of person by civil service com- mission as an appointment, see OFFI- CERS, 58. Partial invalidity of civil service law, see STATUTES, 64. 1. Arbitrary power sufficient to invali- date the statute is not conferred upon a civil service commission to extend the ex- empt class, where they are directed to in- clude only offices as to which they in fact find that examinations are impracticable on account of the temporary duties of the employment, or for special reasons satis- factory to the commission. State ex rel. Buell v. Frear, 34: 480, 131 N. W. 832, 146 Wis. 291. (Annotated) 2. The discretion of the appointing of- ficer in making appointment to office is not unduly restricted by a statute which limits him to a choice among three names from an eligible list, except in case of confiden- 476 CLAIM AGENTS CLERKS, I. impracticable. State ex rel. Buell v. Frear, 34: 480, 131 N. W. 832, 146 Wis. 291. CLAIM AGENTS. Authority of, see MASTEB AND SERVANT, CLAIM AND DELIVERY. See REPLEVIN. CLAIMS. Against county, see ACCORD AND SATIS- FACTION, 6, 7; COUNTIES, 19-21; MAN- DAMUS, 43. Against bankrupt estate, see BANKRUPTCY, IV. Against carrier, time of giving notice of, see CARRIERS, III. g. 4. Against decedent's estate, see EXECUTORS AND ADMINISTRATORS, IV. Against insolvent estate generally, see IN- SOLVENCY, V. Against city, presentation of, see MUNICI- PAL CORPORATIONS, II. g, 5. Against city collection of, see MUNICIPAL CORPORATIONS, II. gg. For injury by defective highway, see HIGH- WAYS, IV. d, 2. For mechanics' lien, see MECHANICS' LIENS, 93-99. Adverse claim to deposit, see BANKS, 69. Validity of statute imposing penalty for refusal to pay within certain time, see CONSTITUTIONAL LAW, 332, 566, 567, 800. Construction of contract for collection of, see CONTRACTS, 358. Effect of allowing claim for services of de- tective, see COUNTIES, 34. CLASS. Appointment by court of person to repre- sent, see JUDGMENT, 219. CLASSIFICATION. Of members of benefit society, see BENEVO- LENT SOCIETY, 9. Of freight, see CARRIERS, 816-819. Of counties for purpose of elections upon local matters, see ELECTIONS, 18. Of business for purpose of occupation tax, see LICENSE, II. d. Of mail, see POSTOFFICE, 2. Of property for taxation, see TAXES, I. c. For purpose of water rates, see WATERS, 402. By statute, see CONSTITUTIONAL LAW, II. a; STATUTES, I. g. Digest 1-52 L.R.A.(N.S.) CLASS LEGISLATION. See CONSTITUTIONAL LAWS, 6. LAW, II. a; GAME. CLEARANCE CARD. Duty of master to give, see CONSTITUTIONAL LAW, 724, 758. CLEARING HOUSE. Business of, see BANKS, IV. d. Effect on payee of bank's failure to com- ply with rules of, see BANKS, 89. CLEARING LAND. By life tenant as waste, see LIFE TENANTS, 8. CLERGYMAN. Libel of, see LIBEL AND SLANDER, 54. Necessity of, to solemnization of marriage, see MARRIAGE, 3. Special telephone rates to, see TELEPHONES, 25. In general, see RELIGIOUS SOCIETIES, IV. CLERKS. /. Of United States court. II. Of state court, 1, 2. Recovery from clerk of auction money paid on bid because of breach of war- ranty, see ASSUMPSIT, 18. Recovery back of fees wrongfully exacted by county clerk, see ASSUMPSIT, 30. Power to take bail bond, see BAIL AND- RECOGNIZANCE, 17. Bonds of, see BONDS, 49, 53; PARTIES, 90; SUBROGATION, 32. Delegating to, power to issue warrants of arrest, see CONSTITUTIONAL LAW, 137. Druggist's liability for negligence of clerk, see DRUGS AND DRUGGISTS, 5. Sale of liquor by, see INTOXICATING LI- QUORS, III. c. Duty of clerk or judge to issue execution, see JUDGES, 2. Mandamus to compel one usurping office of clerk to turn over papers, see MAN- DAMUS, 13. Of school district, see OFFICERS, 24. /. Of United States court. (See same heading in Digest L.R.A. 1-10.) :,:.- i. CLERKS, II. CLOUD ON TITLE. 477 II. Of state court. (See also same heading in Digest L.R.A. 1-10.) Limitation of time for action against clerk for making erroneous record, see LIMI- TATION OF ACTIONS, 185. 1. An arbitrary standard for the meas- urement o& the value of services of the clerk of the probate court according to the value of the estate to be administered can- not be adopted by the legislature. State ex rel. Nettleton v. Case, i: 152, 81 Pac. 554, 39 Wash. 177. 2. A state statute placing clerks, of state courts upon a salary and requiring them to turn over to the county all fees received by them does not apply to fees allowed them by the Federal statute for services in the naturalization of aliens. Fields v. Multnomah County, 44: 322, 128 Pac. 1045, 64 Or. 117. CLOSED SEASON. See GAME AND GAME LAWS; JURY, 36. CLOSED SHOP. Conspiracy to maintain, see CONSPIRACY, 43, 47. CLOTHING. Admission of, in evidence, see APPEAL AND ERROR, 1127, 1128. Admissibility of photograph of, see EVI- DENCE, 891. Evidence admissible under pleading in action for injury to, see EVIDENCE, 2440. Liability for injury to, see NEGLIGENCE, 77. CLOUDBURST. As act of God, see ACT OF GOD, 3, 4. CLOUD ON TITLE. I. When action lies, 125. a. In general, 111. T>. What are clouds, 1214. c. Who may sue; title or posses- sion of complainant, 1525. II. Defenses; counterclaims, 2628. III. Conditions, 29. IV. Cross ~bill, 3O. Digest 1-52 L.R.A.CN.S.) Suit to determine rights of appropriators of water as one to quiet title, see ACTION OR SUIT, 57. Joining statutory action to quiet title with common-law action to recover damages for trespass, see ACTION OR SUIT, 122. Multifariousness of bill to clear title, see ACTION OR SUIT, 128. Questions reviewable on appeal, see APPEAL AND ERROR, 403. Ruling upon complaint in action for specific performance of contract to devise prop- erty as law of case on cross complaint to quiet title to property, see APPEAL AND ERROR, 1662. Contract to clear title, see CONTRACTS, 386. Condition precedent to suit against county, see Counties, 19. Equitable jurisdiction to remove, see EQUITY, 48, 49, 93, 111. Estoppel to contest purchaser's suit to quiet title, see ESTOPPEL, 172. Burden of proof, see EVIDENCE, 560. Evidence in action to quiet husband's title to property of deceased wife, see EVI- DENCE, 976, 1309. Injunction against redemption, under void order, of lands forfeited for taxes, see INJUNCTION, 5. Injunction against cutting of timber in exercise of jurisdiction to remove cloud, see INJUNCTION, 211. Quieting title to easement, see JUDGMENT, 29. Validity of default decree quieting title as against partnership described by firm name only, see JUDGMENT, 128. Conclusiveness of dismissal of bill to set aside tax deed as, see JUDGMENT, 111. What matters concluded by judgment, see JUDGMENT, 165. Who concluded by decree, see JUDGMENT, 217, 256. Conclusiveness, in action to remove, of judgment rendered in ejectment, see JUDGMENT, 171. Vacation of judgment in suit to quiet title, see JUDGMENT, 325, 330. Laches as bar to suit to quiet title, see LIMITATION OF ACTIONS, 24. Application of statute of limitations to action to remove, see LIMITATION OF ACTIONS, 103. Effect of action to remove cloud to suspend running of limitations against mort- gage, see LIMITATION OF ACTIONS, 282. Mandamus to secure removal of, see MAN- DAMUS, 41. Action to quiet title against mortgagee in possession, see MORTGAGE, 31. Effect of tender on right to removal of mortgage from record as cloud on title, see MORTGAGE, 67. Purchaser's right to maintain bill for re- moval of, see PARTIES, 23, 24. Pleading in action to quiet title, see PLEAD- ING, 110, 544. Set-off in action to quiet title, see SET-OFF AND COUNTERCLAIM, 4. Suit to set aside tax deed as, see TAXES, 212. 476 CLAIM AGENTS CLERKS, I. impracticable. State ex rel. Buell v. Frear, i 34: 480, 131 N. W. 832, 146 Wis. 291. CLAIM AGENTS. Authority of, see MASTER AND SERVANT, 6. CLAIM AND DELIVERY. See REPLEVIN. CLAIMS. Against county, see ACCORD AND SATIS- FACTION, 6, 7; COUNTIES, 19-21; MAN- DAMUS, 43. Against bankrupt estate, see BANKRUPTCY, IV. Against carrier, time of giving notice of, see CARRIERS, III. g. 4. Against decedent's estate, see EXECUTORS AND ADMINISTRATORS, IV. Against insolvent estate generally, see IN- SOLVENCY, V. Against city, presentation of, see MUNICI- PAL CORPORATIONS, II. g, 5. Against city collection of, see MUNICIPAL CORPORATIONS, II. gg. For injury by defective highway, see HIGH- WAYS, IV. d, 2. For mechanics' lien, see MECHANICS' LIENS, 93-99. Adverse claim to deposit, see BANKS, 69. Validity of statute imposing penalty for refusal to pay within certain time, see CONSTITUTIONAL LAW, 332, 566, 567, 800. Construction of contract for collection of, see CONTRACTS, 358. Effect of allowing claim for services of de- tective, see COUNTIES, 34. CLASS. Appointment by court of person to repre sent, see JUDGMENT, 219. x*> 9tl) bfi'>txv oi i wvtaa Ii/ CLASSIFICATION. Of members of benefit society, see BENEVO- LENT SOCIETY, 9. Of freight, see CARRIERS, 816-819. Of counties for purpose of elections upon local matters, see ELECTIONS, 18. Of business for purpose of occupation tax, see LICENSE, II. d. Of mail, see POSTOFFICE, 2. Of property for taxation, see TAXES, I. c. For purpose of water rates, see WATERS, 402. By statute, see CONSTITUTIONAL LAW, II. a; STATUTES, I. g. Digest 1-52 L.R.A.(N.S.) CLASS LEGISLATION. See CONSTITUTIONAL LAW, II. a; GAME. LAWS, 6. CLEARANCE CARD. Duty of master to give, see CONSTITUTIONAL LAW, 724, 758. CLEARING HOUSE. Business of, see BANKS, IV. d. Effect on payee of bank's failure to com- ply with rules of, see BANKS, 89. .Li . +~* CLEARING LAND. By life tenant as waste, see LIFE TENANTS, 8. CLERGYMAN. Libel of, see LIBEL AND SLANDER, 54. Necessity of, to solemnization of marriage, see MARRIAGE, 3. Special telephone rates to, see TELEPHONES, 25. In general, see RELIGIOUS SOCIETIES, IV. CLERKS. /. Of United States court. II. Of state court, 1, 2. Recovery from clerk of auction money paid on bid because of breach of war- ranty, see ASSUMPSIT, 18. Recovery back of fees wrongfully exacted by county clerk, see ASSUMPSIT, 30. Power to take bail bond, see BAIL AND- RECOGNIZANCE, 17. Bonds of, see BONDS, 49, 53; PARTIES, 90; SUBROGATION, 32. Delegating to, power to issue warrants of arrest, see CONSTITUTIONAL LAW, 137. Druggist's liability for negligence of clerk, see DRUGS AND DRUGGISTS, 5. Sale of liquor by, see INTOXICATING LI- QUORS, III. c. Duty of clerk or judge to issue execution, see JUDGES, 2. Mandamus to compel one usurping office of clerk to turn over papers, see MAN- DAMUS, 13. Of school district, see OFFICERS, 24. I. Of United States court. (See same heading in Digest L.R.A. 1-10.) g-i T> CLERKS, II. CLOUD ON TITLE. 477 //. Of state court. (See also same heading in Digest L.R.A. 1-70.) Limitation of time for action against clerk for making erroneous record, see LIMI- TATION OF ACTIONS, 185. 1. An arbitrary standard for the meas- urement ot the value of services of the clerk of the probate court according to the value of the estate to be administered can- not be adopted by the legislature. State ex rel. Nettleton v. Case, i: 152, 81 Pac. 554, 39 Wash. 177. 2. A state statute placing clerks, of state courts upon a salary and requiring them to turn over to the county all fees received by them does not apply to fees allowed them by the Federal statute for services in the naturalization of aliens. Fields v. Multnomah County, 44: 322, 128 Pac. 1045, 64 Or. 117. CLOSED SEASON. See GAME AND GAME LAWS; JURY, 36. CLOSED SHOP. Conspiracy to maintain, see CONSPIRACY, 43, 47. CLOTHING. Admission of, in evidence, see APPEAL AND ERROR, 1127, 1128. Admissibility of photograph of, see EVI- DENCE, 891. Evidence admissible under pleading in action for injury to, see EVIDENCE, 2440. Liability for injury to, see NEGLIGENCE, 77. CLOUDBURST. ' ' . .-' As act of God, see ACT OF GOD, 3, 4. CLOUD ON TITLE. J. When action lies, 125. a. In general, 111. T). What are clouds, 1214. c. Who may sue; title or posses- sion of complainant, 1525. II. Defenses; counterclaims, 2628. III. Conditions, 29. IV. Cross bill, 3O. Digest 1-52 L.R.A.(N.S.) Suit to determine rights of appropriators of water as one to quiet title, see ACTION OR SUIT, 57. Joining statutory action to quiet title with common-law action to recover damages for trespass, see ACTION OR SUIT, 122. Multifariousness of bill to clear title, see ACTION OB SUIT, 128. Questions reviewable on appeal, see APPEAL AND ERROR, 403. Ruling upon complaint in action for specific performance of contract to devise prop- erty as law of case on cross complaint to quiet title to property, see APPEAL AND ERROR, 1662. Contract to clear title, see CONTRACTS, 386. Condition precedent to suit against county, see Counties, 19. Equitable jurisdiction to remove, see EQUITY, 48, 49, 93, 111. Estoppel to contest purchaser's suit to quiet title, see ESTOPPEL, 172. Burden of proof, see EVIDENCE, 560. Evidence in action to quiet husband's title to property of deceased wife, see EVI- DENCE, 976, 1309. Injunction against redemption, under void order, of lands forfeited for taxes, see INJUNCTION, 5. Injunction against cutting of timber in exercise of jurisdiction to remove cloud, see INJUNCTION, 211. Quieting title to easement, see JUDGMENT, 29. Validity of default decree quieting title as against partnership described by firm name only, see JUDGMENT, 128. Conclusiveness of dismissal of bill to set aside tax deed as, see JUDGMENT, 111. What matters concluded by judgment, see JUDGMENT, 165. Who concluded by decree, see JUDGMENT, 217, 256. Conclusiveness, in action to remove, of judgment rendered in ejectment, see JUDGMENT, 171. Vacation of judgment in suit to quiet title, see JUDGMENT, 325, 330. Laches as bar to suit to quiet title, see LIMITATION OF ACTIONS, 24. Application of statute of limitations to action to remove, see LIMITATION OF ACTIONS, 103. Effect of action to remove cloud to suspend running of limitations against mort- gage, see LIMITATION OF ACTIONS, 282. Mandamus to secure removal of, see MAN- DAMUS, 41. Action to quiet title against mortgagee in possession, see MORTGAGE, 31. Effect of tender on right to removal of mortgage from record as cloud on title, see MORTGAGE, 67. Purchaser's right to maintain bill for re- moval of, see PARTIES, 23, 24. Pleading in action to quiet title, see PLEAD- ING, 110, 544. Set-off in action to quiet title, see SET-OFF AND COUNTERCLAIM, 4. Suit to set aside tax deed as, see TAXES, 212. 478 CLOUD ON TITLE, I. a, b. Ground for nonsuit in action to remove, see TBIAL, 693. Suit for injunction against diversion of water from river as one to quiet title to real estate, see VENUE, 9. Service of process in suit to remove, see WBIT AND PBOCESS, 12, 13, 64. I. When action lies, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. An action to quiet title to real estate must be prosecuted and maintained in the jurisdiction in which the res or subject-mat- ter is situated. Taylor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. 2. Although equity will not enforce a forfeiture, it may remove a lease as a cloud on title after it has been declared for- feited, and the aid of the court is sought to prevent a threatened continuous trespass upon the property, which will tend to its destruction. Big Six Development Co. v. Mitchell, i: 332, 70 C. C. A. 569, 138 Fed. 279. 3. Independently of any statute con- ferring jurisdiction, equity may remove cloud from title to land within its juris- diction at the suit of the owner thereof in possession under good legal title, by a decree binding only in rem. Tennant v. Fretts, 29: 625, 68 S. E. 387, 67 W. Va. 569. 4. A court of equity will not cancel a real-estate mortgage securing a just debt, which concededly has not been paid, at the suit of the mortgagor, or one standing in his shoes, when the only ground urged for such relief is that the statute of limitations is available as a defense against its fore- closure. Tracy v. Wheeler, 6: 516, 107 N. W. 68, 15 N. D. 248. (Annotated) 5. Equity has no jurisdiction of a suit by one out of, against one in, possession of real estate, to cancel a void instrument and remove a cloud from the title, where he also seeks to recover possession and mesne profits and damages, although he prays for addi- tional relief within the jurisdiction of that court. Johnston v. Corson Gold Min. Co. 15: 1078, 157 Fed. 145, 84 C. C. A. 593. 6. A bona fide purchaser for value with- out notice may have her title quieted against one who has a prior contract of purchase executed by one assuming without authority to act for the vendor. McCullough v. Con- nelly, 15: 823, 114 N. W. 301, 137 Iowa, 682. 7. Equity will entertain a bill to quiet title where one having title to premises sells them to another, who takes posses- sion, but refuses to pay the purchase mon- ey because of the outstanding adverse title which plaintiff seeks to remove. Heppen- stall v. Leng, 12: 652, 66 Atl. 991, 217 Pa. 491. Digest 1-52 L.R.A. (N.S.) 8. Although one in actual possession of land under a superior title may maintain ejectment, that fact will not deprive a court of equity of jurisdiction to remove a cloud on his title, arising from a olaim in- terposed by one holding under an inferior and adverse title. Whitehouse v. Jones, 12: 49, 55 S. E. 730, 60 W. Va. 680. (Annotated) 9. If the claimant of an adversary ti- tle, notwithstanding judgment, has been rendered against him in an action of eject- ment, still interposes a claim to the prem- ises, and disquiets the actual possession of the successful owner, the latter may go in- to a court of equity for injunctive and oth- er relief to quiet and give peace to his ti- tle and possession. Whitehouse v. Jones, 12:49, 55 S. E. 730, 60 W. Va. 680. 10. A court of equity is not deprived of jurisdiction to remove a cloud on title by failure of those in possession under a su- perior title to appear in a proceeding brought by the state for the sale of a por- tion of the tract forfeited for taxes, and in which a decree allowing redemption was sought, where they had no notice of the proceeding, which was instituted and com- pleted in a single day. Whitehouse v. Jones, 12: 49, 55 S. E. 730, 60 W. Va. 630. 11. Equity has no jurisdiction of a suit to quiet title to an island in a navigable river the naked title to the bed of which is in the state, since the riparian owner may, where the state law gives him title to such islands, recover possession by an ac- tion of ejectment. Whiteside v. Norton, 45: 112, 205 Fed. 5, 123 C. C. A. 313. 6. What are clouds. (See also same heading in Digest L.R.A. 1-10.) Cancelation of tax sale to state as, see STATE, 19. 12. A mortgage which includes a strip of land the title to which is in a third person for right of way, but which the mortgagor has the right to fence in, is a cloud on the title of the true owner, which entitles him to equitable relief. Pritchard v. Lewis, i : 565, 104 N. W. 989, 125 Wis. 604. 13. The ineffective levy of an attachment upon real estate will not sustain a suit to remove a cloud on title, since the invalid- ity would appear upon any attempt to en- force a right under it. Beardslee v. In- graham, 3: 1073, 76 N. E. 476, 183 N. Y. 411. 14. A taxpayer is not entitled to a de- cree that the estate is free from any claim for a tax merely because there is no legal method of collecting it, where the right to- the tax is vested under the statute. Trip- pet v. State, 8: 1210, 85 Pac. 1084, 149 CaL 521. S8-I CLOUD ON TITLE, I. c III. 479 e,, Who may sue; title or possession of compla ina n t . (See also same heading in Digest L.R.A. 1-10.) Right of guardian of insane person to main- tain suit to quiet title, see INCOMPE- TENT PERSONS, 29. 15. An action to quiet title may be brought by a lessee against a lessor who is claiming to be the owner of the property free from any estate for years in the ten- ant, under a statute permitting such action to be brought by any person against an- other who claims any estate or interest in real property adverse to him, for the purpose of determining such adverse claim. German-American Sav. Bank v. Gollmer, 24: 1066, 102 Pac. 932, 155 Cal. 683. 16. An owner of land in actual posses- sion may, both by common law and under W. Va. Code 1899, chap. 90, maintain eject- ment against an intruding adverse claim- ant, but cannot sustain a bill in equity to remove a cloud from his title. Logan v. Ward, 5: 156, 52 S. E. 398, 58 W. Va. 306. 17. Equity will entertain a suit to re- move cloud over the title to land by one in actual possession against an adverse claim- ant not in actual possession, who sets up an adverse title. Logan v. Ward, 5: 156, 52 S. E. 398, 58 W. Va. 366. 18. An action under the statute to deter- mine title to real estate cannot be defeated by showing that the title under which both parties claim was defective. Charles v. White, 21 : 481, 112 S. W. 545, 214 Mo. 187. 19. One seeking to quiet title to real es- tate of which another is in possession ia not bound to show his right to possession independent of the right thereto which the law presumes from showing legal title to the property. Flood v. Templeton, 13: 579, 92 Pac. 78, 152 Cal. 148. 20. The owner of the minerals underly- ing land is within the protection of a stat- ute permitting one in peaceable possession of "lands" to maintain a bill to quiet title to them against one denying or disputing his title. Alabama Coal & C. Co. v. Gulf Coal & C. Co. 7: 712, 40 So. 397, 145 Ala. 228. 21. An alleged owner of a ditch across another's land cannot have the title to it quieted against a purchaser of the land without notice, where, at the time of the purchase, all traces of the ditch have been obliterated, since the purchaser will take his title free from the easement. Blake v. Boye, 8: 418, 88 Pac. 470, 38 Colo. 55. (Annotated) 22. One whose only title to land is under a tax deed made to a grantee, who was dead when it was executed, which was delivered to the former as the heir of the grantee, who caused the deed to be recorded and paid the taxes on the land, but who never took actual possession, cannot maintain an action to quiet title, or for an injunction against one who holds under the government title and who is in actual possession of the Digest 1-52 L.R.A. (N.S.) land. Baker v. Lane, 28: 405, 109 Pac. 182, 82 Kan. 715. Necessity of possession. See also supra, 19, 22. 23. The plaintiff in a bill to remove a cloud from the title to land must have both title and actual possession, and cannot rely on the weakness of the title of his adver- sary. Logan v. Ward, 5: 156, 52 S. E. 398, 58 W. Va. 366. 24. One who has contracted to sell real estate of which he has placed the vendee in possession cannot, upon the vendee's refus- ing to pay the purchase money because of an outstanding adverse title, proceed under a statute permitting one in possession of real estate to obtain a rule on one claiming an adverse title, to bring ejectment to try the title. Heppenstall v. Leng, 12: 652, 66 Atl. 991, 217 Pa. 491. (Annotated) 25. The primary object of a bill to com- pel the conveyance of the legal title to real estate, and to cancel invalid instruments alleged to constitute clouds thereon, is the vindication of the equitable title, not the removal of a cloud from the legal title, and the rule requiring possession on the part of a plaintiff in a bill to remove cloud from title has no application. Blake v. O'Neal, 16: 1147, 61 S. E. 410, 63 W. Va. 483. //. Defenses; counterclaims. (See also same heading in Digest L.R.A. 1-10.) As to counterclaim, see infra, 30. Right to set up defense of equitable estop- pel, see ESTOPPEL, 48. 26. That a power of attorney includes other lands besides those involved in a suit does not preclude the court from removing its cloud from those in suit. Priddy v. Boice, 9: 718, 99 S. W. 1055, 201 Mo. 309. 27. Failure to tender a deed will not pre- vent cancelation of a contract for sale of real estate, which the vendee refused to perform, as a cloud on the vendor's title, where the vendee refused to perform be- cause of the vendor's refusal to correct al- leged defects in the title which he was not bound to do. Kane v. Borthwick. 18: 486, 96 Pac. 516, 50 Wash. 8. 28. One holding a tax title to mort- gaged property who is made a party to the foreclosure proceedings in which the mort- gagee finally sets up a tax title to support his claim to the property is not bound to show the validity of his own title, but may defeat a recovery by showing the in- validity of that of plaintiff. National Surety Co. v. Walker, 38: 333, 125 N. W. 338, 148 Iowa, 157. III. Conditions. (See also same heading in Digest L.R.A. 1-70J 29. A quitclaim deed by a woman of land held by herself and her husband by entire- 480 CLOUD ON TITLE, IV. COADMINISTRATORS. ties will not be canceled as a cloud on title after the title vests in her by her husband's death until she returns the consideration which she received for the conveyance. Ern-st v. Ernst, 51:317, 144 N. W. 513, 178 Mich. 100. IV. Cross bill. (See also same heading in Digest L.R.A. 1-70.) 30. A mere counterclaim for return of the advance payment on the contract can- not be set up by cross complaint in an ac- tion to cancel a contract to convey real property as a cloud on the owner's title. Kane v. Borthwick, 18: 486, 96 Pac. 516. 50 Wash. 8. CLUBS. Appeal from decrees directing members to pay assessments, see APPEAL AND ER- BOB, 43. Assignment of dues owing by member, see ASSIGNMENT, 5. Private club as disorderly house, see Dis- OBDERLY HOUSES, 6. Bill in equity by receiver to recover dues from members, see EQUITY, 103, 104. Liability of commercial club conducting race in highway for resulting injury, see HIGHWAYS, 286. Sale of liquor by, see INTOXICATING Li- QUOBS, III. b; STATUTES, 126. Privileged character of statement by presi- dent of, see LIBEL AND SLANDER, 114. Mandamus to compel reinstatement of base ball club in league, see MANDAMUS, 11. 1. The relation of members to unincor- porated social clubs and societies is con- tractual, and the articles of association or by-laws constitute the terms of their agree- ment. Anderson v. Amidon, 34: 647, 130 N. W. 1002, 114 Minn. 202. 2. Provisions of the articles of as- sociation of a social club imposing upon members the payment of dues and assess- ments at stated times, and subscribed to by them, create a legal obligation upon the part of each member to pay the same, so long as the society remains a going concern and his membership therein continues. An- derson v. Amidon, 34: 647, 130 N. W. 1002, 114 Minn. 202. (Annotated) 3. Members of a social club cannot avoid paying their dues to its receiver on the theory that they have not, because of the receivership, enjoyed the expected bene- fits of membership, where they accrued be- fore the receiver was appointed. Rogers v. Boston Club, 28: 743, 91 N. E. 321, 205 Mass. 261. 4. Under by-laws of a social club per- mitting assessments to be made by a ma- jority of an executive committee and consti- tuting one fourth of the committee a .quorum, the assessments must be made by Digest 1-52 L.R.A. (N.S.) a majority of the committee, and not of the quorum. Rogers v. Boston Club, 28: 743, 91 N. E. 324, 205 Mass. 201. 5. A charter of a social club permitting it to sell tobacco, soft drinks, and other ar- ticles at all times to i.s members will be revoked as fraudulently obtained to avoid the Sunday law, when secured by those in control of a drug company which has been forced to observe the law against the sale of such articles on Sunday, the club adver- tising for members who become such by merely signing an application and receiving a membership certilicate, the organization occupying a room in the building of the drug company, which furnishes the supplies and receives 90 per cent of the gross re- ceipts of sales to members, no meetings ever being held by the general . members, and only occasional meetings by the directors. Hanger v. Com. 14:683, 60 S. E. 67, 107 Va. 872. (Annotated) 6. A social-club incorporation law which does not deh'ne the functions that may be exercised by such corporations is not in- tended to confer upon them the authority to conduct a business which, if done by an individual, would be illegal, their functions under such a statute being purely social. Hanger v. Com. 14: 683, 60 S. E. 67, 107 Va. 872. 7. A member of a social club must make a satisfactory showing of misman- agement of its affairs by the board of di- rectors, of whose acts he had knowledge and made no complaint, before he can maintain an action against the club on the theory that such mismanagement resulted to his injury. Rollins v. Denver Club, 18: 733, 96 Pac. 188, 43 Colo. 345. 8. A member of a social club who has contributed funds for the erection of a clubhouse, which is to be returned out of surplus revenues, cannot, in case no such revenues are available, maintain an action against the club on the theory that the di- rectors were guilty of mismanagement in diverting revenues to nonessentials, where he has never objected or protested in auy way against such mismanagement. Rollins v. Denver Club, 18: 733, 96 Pac. 188, 43 Colo. 345. 9. Before a member of a social club who has advanced money for the construc- tion of a clubhouse can enforce a certificate by which the club undertakes to pay the money out of surplus revenues which can be prudently applied to that purpose at the discretion of the directors, he must show that the contingency upon which payment was to be made has happened, or been pre- vented by fraud or bad faith of the direct- ors. Rollins v. Denver Club, 18: 733, 96 Pac. 188, 43 Colo. 345. COADMINISTRATORS. See COEXECUTOBS AND ADMINISTRATORS. COAL CODICIL. 431 COAL. Duty of carrier as to transportation of, see 'CARRIERS, 773-776, 956; CONSTITU- TIONAL LAW, 443; DAMAGES, 284, 285, 695: MANDAMUS, 74, 124, 125. Statute prescribing maximum coal rates, see CARRIERS, 1035; CONSTITUTIONAL LAW, 494; EVIDENCE, 666, 2341. Option to purchase, see CONTRACTS, 164, 168. Damages for unlawful mining of, see DAM- AGES, 466, 167. Rights under deed of, with right of removal, see DEEDS, 29, 58. Lien of judgment on interest in, see JUDG- MENT, 26.9. Sale of coal underlying infant's land, see JUDGMENT, 395. Libel of dealer in, see .LIBEL AND SLANDER, 47. As to mines generally, see MINES, II. a. Taxation of leasehold estates in coal lands, see TAXES, 26, 62. Taxation of, during transportation, see TAXES, 151. COAL ELEVATOR. Who are fellow servants in, see MASTEB AND SERVANT, 835. COAL HOLE. In sidewalk, see CONTRIBUTION AND INDEM- NITY, 14, 15; EVIDENCE, 1869, 1870, 2019; HIGHWAYS, 307-309, 317-320, 388a, 389; TRIAL, 1057, 1058. COAL LANDS. As separate or community property, see HUSBAND AND WIFE, 72. COAL MIXES. See MINES, II. a. * COAL 'WASHING PLANT. Injunction against permitting water from, to escape into open trench in city street, see NUISANCES, 143. COASTING. In public street, see ACTION OR SUIT, 37 HIGHWAYS, 37; STREET RAILWAYS, 21 TRIAL, 442, 461. COCAINE. Illegal sale of, see DRUGS AND DRUGGISTS, 1; EVIDENCE, 1225; INDICTMENT, IN- FORMATION AND COMPLAINT, 35. CO-CONSPIRATOR. Proof of acts or declarations of, see EVI- DENCE, X. g. Sufficiency of evidence by, to sustain con- viction, see EVIDENCE, 2364-2:372. C. O. D. Carrier's failure to collect C. 0. D. charges, see CARRIERS, 756. Right of carrier advancing C. 0. D. charges to lien for, see CARRIERS, 829. C. 0. D. sales of intoxicating liquors, see INTOXICATING LIQUORS, 42, 119, 166- 171, 176. When title passes on C. O. D. sale generally, see SALE, 36-38. CODE. Canadian criminal code, see CANADIAN CRIMINAL CODE. Pleading under code, see PLEADING, 230, 583. Codification of statutes, see STATUTES. 130, 354. CODEFENDANTS. Conviction of one of several codefendants, see^ CRIMINAL LAW, 317. Dismissal as to one; right of other to com- plain, see DISMISSAL AND DISCONTINU- ANCE, 14. Admissibility of declarations of, see EVI- DENCE, 1457. Conclusiveness of judgment as between Co- defendants, see JUDGMENT, 224, 225. COAL YARDS. Unlawful employment of infant in, see MAS- TER AND SERVANT, 171. Liability of owner for dangerous condition of, see NEGLIGENCE, 75, 76. Digest 1-52 L.R.A.(N.S.) 31 CODICIL. Breach of contract to make, see CONTRACTS, 688. Revocation of, see WILLS, 53. Reduction of gift by, see WILLS, 115, 116. In general, see WILLS, I. f. 482 CODIFICATION COLLATERAL SECURITY. CODIFICATION. Of statutes, see STATUTES, 130, 354. COERCION. Coerciveness of workmen's compensation act, see CONSTITUTIONAL LAW, 469. Resignation procured by, see OFFICERS, 50. COEXECUTORS AND ADMINIS- TRATORS. Powers of, see EXECUTORS AND ADMINIS- TRATORS, 43, 44. Liability for acts of, see EXECUTORS AND ADMINISTRATORS, 72-75. Commissions of, see EXECUTORS AND AD- MINISTRATORS, 132. COHABITATION. Condonation of marital fault by, see DI- VORCE AND SEPARATION, 74, 75. Presumption of marriage from, see EVI- DENCE, 83-85. Presumption as to subsequent character of cohabitation originally illicit, see EVI- DENCE, 147, 148. Validation of void marriage by, see MAR- RIAGE, III. b, 2. COIN. Prohibiting exportation of Philippine coin, see CONSTITUTIONAL LAW, 521. COKE. Duty of carrier as to transportation of, see CARRIERS, 776; MANDAMUS, 74, 124, 125. Combination by manufacturers of, see MO- NOPOLY AND COMBINATIONS, 45.' COLD. Exposure of passenger to, see CARRIERS, 207-209. COLD STORAGE. Liability for injury to goods in, see BAIL- MENT, 24, 25. Expert opinion as to whether product which has been frozen will thaw in tempera- ture lower than freezing point, see EVI- DENCE, 1397. Digest 1-52 L.R.A.(N.S.) COLLATERAL AGREEMENTS. Parol evidence as to, see EVIDENCE, VI. c. COLLATERAL ATTACK. On compromise of action by attorney, see COMPROMISE AND SETTLEMENT, 10. On receivership proceedings against corpo- ration, see CORPORATIONS, 364. On appointment of administrator, see EXECUTORS AND ADMINISTRATORS, 26- 32. On lease of ward's property, see GUARDIAN AND WARD, 13. On indictment, see INDICTMENT, ETC., 59. On judgment, see JUDGMENT, II. c. On foreclosure sale, see MORTGAGE, 118. On order authorizing supplemental bill, see PLEADING, 128. On appointment of receiver, see RECEIVERS^ 7. On order changing boundaries of school dis- trict, see SCHOOLS, 42. On assessment of board of equalization, see TAXES, 197. On validity of tax sale, see TAXES, 210. On appointment of trustee, see TRUSTS, 67. COLLATERAL CONTRACTS. Statute of frauds as to, see CONTRACTS, I. e,. 2. 4 COLLATERAL INHERITANCE TAX. See TAXES, V. -- COLLATERAL ISSUE. Trial of, upon affidavits, see TRIAL, 2. COLLATERAL MEMORANDUM. Reading into contract of sale, see SALE, 2. COLLATERAL RELATIVES. Damages recoverable by, for negligent kill- ing of relative, see DAMAGES, 390. Tax on inheritance by, see TAXES, V. -S/.K vw ,m iniflni 1- J::-.- 7. r, u , COLLATERAL SECURITY. See PLEDGE AND COLLATERAL SECURITY.. COLLECTION AGENCY COLLISION. COLLECTION AGENCY. I COLLISION. 483 Validity of state license of, see COMMERCE, 97. COLLECTION EXPENSES. Making allowance for, in fixing value of gas plant for rate purposes, see GAS, 32. COLLECTIONS. By attorneys, see ATTORNEYS, 36, 40, 41. By bank, see BANKS, IV. b. By agent, see PRINCIPAL AND AGENT, 38. Of claims, construction of contract as to, see CONTRACTS, 358. Of taxes, see TAXES, III. e, V. d. COLLEGES. Mandamus to compel issuance of diploma, see APPEAL AND ERROR, 429; MANDA- MUS, 92-94. Persons attending, as "school children" en- titled to reduced fare on street railways, see CARRIERS, 1030. Damages for taking property of, for rail- road purposes, see DAMAGES, 533. Exercise of power of eminent domain by, see EMINENT DOMAIN, 10. Belonging to state, see STATE INSTITU- TIONS; STATE UNIVERSITIES. Barber colleges, see STATUTES, 117, 160. See also MEDICAL COLLEGES. 1. A rule by a college which provides board and lodging for its pupils, forbidding them to patronize restaurants not controlled by it, is not unreasonable. Gott v. Berea College, 51: 17, 161 S. W. 204, 156 Ky. 376. 2. The proprietor of a restaurant who is not a student in a college, and has no children as such students, has no right of action against the college, for forbidding pupils to patronize his restaurant. Gott v. Berea College, 51: 17, 161 S. W. 204, 156 Ky. 376. (Annotated) Dismissal of student. 3. One who is admitted to a college, and pays the fees for the first year's in- struction, has a contract right to be per- mitted to continue as a student until he, in regular course, attains the diploma and degree which he seeks, and which the in- stitution is authorized to confer; and he cannot be arbitrarily dismissed at the close of a year, merely because he is obnoxious to other students on account of his race. Booker v. Grand Rapids Medical College, 24: 447, 120 N. W. 589, 156 Mich. 95. Digest 1-52 L.R.A.(N.S.) Admiralty jurisdiction of suit arising from, see ADMIRALTY, 1, 2, 5. Between bridge and vessel, see ADMIRALTY, 1, 2; APPEAL AND ERROR, 61. Injury to passenger by, see CARRIERS, 210- 213. Presumption of negligence from, see EVI- DENCE, 348, 350-356. With automobile, insurance against loss by, see INSURANCE, 677, 678. Imputing rower's negligence to passenger, see NEGLIGENCE, 259. Liability of pilot for, see PILOTS. Right of vessel in fault to salvage, see SAL- VAGE, 2, 5. 1. Dwellers on the thickly settled banks of a navigable river have as much right to cross from one bank to the other in a fog as steam vessels have to traverse the river at such place during a fog. Quinette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. (Annotated) 2. The noise made by patent rowlocks cannot be accepted as the equivalent of the fog signal required by the pilot rules to be given by a fog horn; and the local custom upon the subject is immaterial. Quinette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. 3. A tug does not discharge its full duty to small craft which may be in its way on a river by giving fog signals when proceeding in a fog so dense that they can be seen only a few feet away; but there must also be slow speed and the utmost caution. Quin- ette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. (Annotated) 4. Steerageway is all that a tug is en- titled to maintain in a fog so thick that small craft can be seen only a few feet away, at a point where such craft are likely to be found, and at a time when the master is unable to tell how far he is from the bank, or accurately to ascertain his course. Quinette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. 5. The act of a passenger in consenting to be rowed across a river in a fog without the presence on board of a fog signal will not prevent recovery for his death in case the boat is run down by the negligence of a tug, where his negligent act cannot be con- sidered the proximate cause of the accident. Quinette v. Bisso, 5: 303, 136 Fed. 825, 69 C. C. A. 503. 6. Property injured by a vessel need not be transportable to come within a stat- ute making all vessels liable for injuries committed by them to persons or property within the state, but the statute extends to such property as a bridge. West v. Martin, 21 : 324, 97 Pac. 1102, 51 Wash. 85. 7. The owners of a tug cannot recover damages for loss of towage remuneration from the owners of a vessel which has negli- gently collided with and sunk the tow, the loss of such remuneration not being damage to the plaintiffs which was the direct conse- quence of the negligence, so as to be recover- able in law. La Soci6t6 Anonyme de Re- 484 COLLUSION COMMERCE. morquage a Hfilice v. Bennetts, 3 B. R. C. 138, [1911] 1 K. B. 243. Also Reported in 80 L. J. K. B. N. S. 228, 27 Times L. R. 77, 16 Com. Cas. 24. COLLUSION. In divorce suit, see DIVORCE AND SEPARA- TION, IV. Sufficiency of evidence of, see EVIDENCE, 2091. Vacation of judgment secured by, see JUDG- MENT, 341, 342. Necessity of stating facts to show, see PLEADING, 528. In institution of garnishment proceeding, see PROHIBITION, 13, 14. COLOR BLINDNESS. Evidence on question of color blindness of employee, see EVIDENCE, 2027. As sickness within meaning of employer's contract to pay employees sick benefits, see MASTER AND SERVANT, 85. COLORED PERSONS. See NEGROES. * COLOR OF TITLE. Right to claim compensation for improve- ments on land held under, see IMPROVE- MENTS. In general, see ADVERSE POSSESSION, I. i. COMBINATIONS. Illegal combination of employers, see BLACK- LISTING. Of workmen, see LABOR ORGANIZATIONS. Illegal combinations generally, see MONOPO- LY AND COMBINATIONS. Patent on, see PATENTS, II. b. COMBUSTIBLE MATERIAL. Damages for breach of warranty as to, see DAMAGES, 185, 186. COMITY. Right of court to take jurisdiction on ground of, see COURTS, 212. Digest 1-52 L.R.A.(N.S.) Entertaining on ground of, claim against decedent's estate in favor of citizen of other state, see EXECUTORS AND AD- MINISTRATORS, 140. Recognition of decree of other state, see JUDGMENT, IV. b. Laches in invoking principles of comity to establish rights of adopted child, see LIMITATION OF ACTIONS, 54. Effect on use and control of waters, see WATERS, 1. See also CONFLICT OF LAWS; COURTS. COMMAND. Contributory negligence in obeying, see MASTER AND SERVANT, 651-058, 603. Assumption of risk by compliance with, see MASTER AND SERVANT, II. b, 6. COMMERCE. J. State and Federal power general- ly, 1-28. II. Regulating carriers and transpor- tation, 2993. a. In general, 2942. b. Vessels, 43. c. Railroad companies, 4493. d. Licenses and taxes. III. Limiting exports from state. IV. Regulating, taxing, and licensing sales, manufacturing, and other business, 94143. a. In general, 94128. b. In original packages, 129 137. c. Sales by peddlers and agents; by sample, 138143. V. Taxation of subjects of commerce; import and export duties, 144 152. Exclusiveness of jurisdiction as to, see COURTS, 293. Sufficiency of proof of criminal intent to violate interstate commerce act, see CRIMINAL LAW, 11. Telegraph line along railroad right of way as burden on interstate commerce, see EMINENT DOMAIN, 41. Judicial notice that carrier is engaged in interstate commerce, see EVIDENCE, 34. Burden of proving that carriage contract violates interstate commerce law, see EVIDENCE, 527. Presumption and burden of proof as to what is subject to commerce, see EVIDENCE, 652. As to powers of Interstate Commerce Com- mission, see INTERSTATE COMMERCE COMMISSION. Attachment of foreign railroad cars as in- terference with commerce, see LEVY AND SEIZURE, 15, 16. Conspiracy in restraint of, see MONOPOLY AND COMBINATIONS, II.. COMMERCE, I. 485 Resort to debates in Congress in determin- ing meaning of interstate commerce act, see STATUTES, 85. 7. State and Federal power generally. (See also same heading in Digest L.R.A. 1-10.) 1. The plenary power to regulate inter- state and foreign commerce, conferred upon Congress by the Constitution, authorizes it to enact legislation affecting intrastate com- merce so far as necessary to regulate inter- state commerce effectually and completely. United States v. Colorado & N. W. R. Co. 15: 167, 157 Fed. 321, 85 C. C. A. 27. 2. The power of Congress over inter- state transportation is complete in itself; and Congress, as an incident to it, may adopt not only the means necessary but con- venient to its exercise, and such means may have the quality of police regulations. Hoke v. United States, 43: 906, 33 Sup. Ct. Rep. 281, 227 U. S. 308, 57 L. ed. 523. 3. If a congressional enactment is a valid exercise of the power of Congress un- der the commerce clause of the Federal Con- stitution, how it may affect persons or states is not material. Hoke v. United States, 43= 906, 33 Sup. Ct. Rep. 281, 227 U. S. 308, 57 L. ed. 523. 4. No question with reference to the power of Congress to enact a regulation of interstate commerce can arise if the regu- lating act be one directly applicable to such commerce, not obnoxious to any other provision of the Federal Constitution, and reasonably adapted to the purpose by rea- son of legitimate relation between such com- merce and the rule provided. Atlantic C. L. R. Co. v. Riverside Mills, 31: 7, 31 Sup. Ct. Rep. 164, 219 U. S. 186, 55 L. ed. 167. 5. A regulation of interstate commerce which would be valid if rested upon the common law of the state is not less valid because made by a state statute. Western U. Teleg. Co. v. Commercial Milling Co. 36: 220, 31 Sup. Ct. Rep. 59, 218 U. S. 406, 54 L. ed. 1088. 6. The state may punish a conspiracy to interfere with competition in the sale of property already stored within the state, al- though the competition is anticipated from articles to be imported for that purpose. Standard Oil Co. v. State, 10: 1015, 100 S. W. 705, 117 Tenn. 618. 7. A statute requiring all county print- ing, binding, and stationery work to be done in the county for which the work is intended, where there are practical facilities there for doing the same, unless the charge made be greater than that made to private individuals, applies merely to the doing of the work, and does not prevent the let- ting of a contract to a nonresident, and is therefore not an interference with or regulation of commerce, and not repugnant to tb.3 commerce clause of 8, art. 1, of the Federal Constitution. Re Gemmill, 41: 711, 119 Pac. 298, 20 Idaho, 732. Digest 1-52 L.K.A.(N.S.) What constitutes interstate com- merce. Transportation of intoxicating liquor as. see CARRIERS, 778; CRIMINAL LAW, 1; INTOXICATING LIQUORS, 87. See also infra, 66-70, 78, 120, 121. 8. The sale by a foreign corporation, within a state, of unissued shares of its capital stock, is not a transaction of in- terstate commerce. Southwestern Slate Co. v. Stephens, 29: 92, 120 N. W. 408, 139 Wis. 616. 9. The transfer of stock certificates at a point within the state does not involve in- terstate commerce, although they represent shares in a foreign corporation and are owned by nonresidents, where it does not ap- pear that either the certificate, or the mon- ey, is brought from or taken to a foreign state because of the transaction. People ex rel. Hatch v. Reardon, 8: 314, 77 N. E. 970, 184 N. Y. 431. 10. Commerce is conducted among the states, within the meaning of the Federal Constitution, by a corporation engaged in imparting instruction by correspondence, whose business involves the solicitation of students in other states by local agents, who are also to collect and forward to the home office the tuition fees, and the sys- tematic intercourse between the corpora-' tion and its scholars and agents, wherever situated, and the transportation of the need- ful books, apparatus, and papers. Interna- tional Text-Book Co. v. Pigg, 27: 493, 30 Sup. Ct. Rep. 481, 217 U. S. 91, 54 L. ed. 678. (Annotated) Advertisements of intoxicating liq- uors for sale in other state. 11. Since the passage by Congress of the Wilson act, a state may forbid the publica- tion, within its limits, of advertisements of the keeping for sale of intoxicating liquors at places in other states. State v. J. P. Bass Publishing Co. 20: 495, 71 Atl. 894, 104 Me. 288. - Grazing fee on sheep entering state. 12. A statute which imposes a grazing fee on all sheep entering the state, while no like fee is imposed on sheep produced with- in the state, unduly interferes with inter- state commerce by levying a tax which dis- criminates against sheep imported from an- other state. State v. Butterfield Live Stock Co. 26: 1224, 106 Pac. 455, 17 Idaho, 441. State lien on vessel engaged in inter- state commerce. 13. The creation and enforcement of a lien for a nonmaritime tort against a for- eign vessel engaged in interstate commerce, under a state statute, which embraces all vessels, whether domestic or foreign, and whether engaged in intrastate or inter- state commerce, does not offend against the 'commerce clause of the Federal Constitu- tion. Martin v. West, 36: 592, 32 Sup. Ct. Rep. 42, 222 U. S. 191, 56 L. ed. 159. Navigable waters. Relative ' right of state and United States in navigable waters, see WATERS, I. b. Rights of navigation as between public and individual, see WATERS, I. c, 5 486 COMMERCE, I. State regulation or control generally, see WATERS, 38-46. 14. A state, or a municipality acting under its authority, may not, consistently with the commerce clause of the Federal Constitution, require a Canadian corpora- tion operating a ferry over a boundary stream lying between such state and Can- ada, to take out a license and pay a license fee as a condition precedent to receiving and landing persons and property at its wharf in such municipality. Sault Ste. Marie v. International Transit Co. 52: 574, 34 Sup. Ct. Rep. 826, 234 U. S. 333, 58 L. ed. 1337. (Annotated) 15. The provision of N. J. act May 11, 1905 (P. L. 1905, p. 461), which forbids the abstraction of water from natural streams, lakes, and ponds for transporta- tion beyond the bounds of the state, is not in violation of the interstate commerce clause of the Federal Constitution, since water abstracted contrary to the statu- tory prohibition cannot legitimately enter into interstate commerce. McCarter ex rel. Kummel v. Hudson County Water Co. 14:197, 65 Atl. 489, 70 N. J. Eq. 695. Quarantine or inspection laws. 16. A statute which imposes a grazing fee on all sheep entering the state cannot be upheld as an inspection law, merely because it provides that such fees shall be paid into the live stock sanitary fund, where no like fee is imposed upon sheep produced within the state, and no duty is thereby imposed on the state live stock sanitary board in re- turn for the levy of such assessment, es- pecially where full provision is otherwise made for inspection of all sheep either brought or produced within the state, and' a special levy made on all alike for the pur- pose of paying therefor. State v. Butter- field Live Stock Co. 26: 1224, 106 Pac. 455, 17 Idaho, 441. 17. No unconstitutional interference with interstate commerce is effected by a state penal statute providing that domestic ani- mals imported into the state must be exam- ined for certain contagious and infectious diseases, when the sole purpose of the act is to protect the public health and the health of domestic animals. Evans v. Chicago & N. W. R. Co. 26: 278, 122 N. W. 876, 109 Minn. 64. (Annotated) 18. A municipal corporation cannot, in view of the commerce clause of the Federal Constitution, require all meat intended for its markets to be inspected on the hoof by its own officers. Carter v. Green, 31:1055, 53 So. 729, 127 La. 490. 19. A municipal ordinance which imposes upon packing houses and importers a fee for inspection of meats imported from an- other state unlawfully interferes with in- , terstate commerce. Armour & Co. v. Au- gusta, 27: 676, 67 S. E. 417, 134 Ga. 178. (Annotated) 20. A municipal ordinance creating a packing house inspector and providing that he should visit all packing houses daily and all other places of importers of meat stuff not otherwise provided for. and secure from Digest 1-52 L.R.A.(N.S.) them their bills of lading, "for the purpose of determining whether or not the ship- ments have made proper time, and whether cars containing such meat stuff have been properly iced during transit," unlawfully in- terferes with interstate commerce. Armour & Co. v. Augusta, 27: 676, 67 S. E. 417, 134 Ga. 178. State attachment or garnishment. See also LEVY AND SEIZURE, 15, 16. 21. Attaching a car of a foreign rail- road company when found idle within the state, under a state statute permitting it to enable local creditors to collect their debts, is not an unlawful interference with interstate commerce. De Rochemont v. New York C. & H. R. R. Co. 29: 529, 71 Atl. 868, 75 N. H. 158. 22. Cars owned by a foreign railway company, which have temporarily come into the state in the course of interstate trans- portation, through the agency of other car- riers, are subject to attachment under the state laws, despite the provisions of the in- terstate commerce act and of U. S. Rev. Stat. 5258, U. S. Comp. Stat. 1901, p. 3564, securing continuity of transportation. Davis v. Cleveland, C. C. & St. L. R. Co. 27: 823, 30 Sup. Ct. Rep. 463, 217 U. S. 157, 54 L. ed. 708. 23. A freight car received by a domestic railroad company from a connecting com- pany of another state while loaded with freight, under a contract that, instead of being unloaded and reloaded at the point of intersection without the state, it may be taken to its destination within the state, there to be unloaded and afterwards reload- ed and returned, is not exempt from attach- ment sought to be executed by service of summons of garnishment for the collection of a debt alleged to be due by the connect- ing carrier, upon the ground that the im- pounding of the car is such an interference with interstate commerce as to violate the commerce clause of the Constitution of the United States (art. 1, 8, fl 3), or U. S. Rev. Stat. 5258, authorizing railroad com- panies to transport passengers and freight on their way from any state to another state, and to'connect with the roads of such other state so as to form continuous lines of transportation. Southern Flour & Grain Co. v. Northern P. R. Co. 9: 853, 56 S. E. 742, 127 Ga. 626. 24. That a car of a foreign corporation which has come into the state loaded with freight on an interstate shipment, to be re- turned promptly subject to a per diem de- murrage for delay, and to take back another load of freight if ready for shipment with- in a reasonable time, is permitted to stand in the yard for a few days after being un- loaded, does not render it subject to attach- ment. Seibels v. Northern C. R. Co. 16: 1026, 61 S. E. 435, 80 S. C. 133. (Annotated) How far Federal power is exclusive generally. See also infra, 60, 74, 76. 25. Any power which a state has over in- terstate commerce because of congressional A r. W-. * , * . ,-j' f - COMMERCE, II. a. 487 inaction ceases to exist from the moment that Congress exerts its paramount author- ity over the subject. Chicago, R. I. & P. R. Co. v. Hardwick Farmers' Elevator Co. 46: 203, 33 Sup. Ct. Rep. 174, 226 U. S. 426, 57 L. ed. 284. Congressional inaction. 26. A state has the right to adopt regu- lations to prevent the spread of diseases among plants, Congress not having assumed charge of the matter as involved in inter- state commerce. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93, 22 S. D. 23. (Annotated) 27. A state statute limiting the hours -which railroad employees may labor during a day was not affected by the act of Con- gress regulating the same matter prior to the time the latter act took effect. Lloyd v. North Carolina R. Co. 45: 378, 66 S. E. 604. 151 N. C. 536. Police power of state. See also infra, 44, 48. 28. An act of Congress originating in its power to regulate interstate commerce does not annul an act of the state originat- ing in its police power, unless there is such a conflict between the two as that the en- forcement of the act of the state would be to frustrate the operation of the act of Con- gress, and to refuse to its provisions their natural effect. Chicago, R. I. & P. R. Co. v. Beatty, 42: 984, 118 Pac. 367, 126 Pac. 736, 34 Okla. 321. //. Regulating carriers and transpor- tation. a. In general. {See also same heading in Digest L.R.A. 1-10.) Combination interfering with, see MONOPO- LY AND COMBINATIONS, II. d. Telegraph business. 29. There is no unconstitutional inter- ference with interstate commerce by requir- ing an interstate telegraph company, as a condition to receiving a license to place poles to carry its wires in the city streets, to permit the city to place on the poles, without compensation, wires necessary for its fire alarm and electric lighting systems, where the detriment to the telegraph com- pany is no greater than the reasonable cost of inspecting the poles necessary to keep the streets safe for travelers. Postal Teleg.-Cable Co. v. Chicopee, 32: 997, 93 N. E. 927, 207 Mass. 341. 30. Interstate commerce is not uncon- stitutionally regulated by a state statute under which, as construed by the state courts, a telegraph company cannot limit its liability for its negligent failure to de- liver a telegram addressed to a person in another state. Western U. Teleg. Co. v. Commercial Milling Co. 36: 220, 31 Sup. Ct. Rep. 59, 218 U. S. 406, 54 L. ed. 1088. (Annotated) Digest 1-52 L.R.A.(N.S-) Street railway companies. 31. Street railroads carrying passengers across a state line are not governed by the provisions of the interstate commerce act of February 4, 1887, which in terms applies to carriers engaged in the transportation of passengers or property by "railroad." Omaha & C. B. Street R. Co. v. Interstate Commerce Commission, 46: 385, 33 Sup. Ct. Rep. 890, 230 U. S. 324, 57 L. ed. 1501. (Annotated) Express companies. Power of state to compel express company to make free deliveries, see also CAR- RIERS, 991. 32. A state statute requiring express companies to make free deliveries of parcels committed to them for transportation is, as applied to interstate shipments, invalid as an attempted regulation of interstate com- merce. State ex rel. Railroad Commission v. Adams Exp. Co. 19: 93, 85 N. E. 337, 966, 171 Ind. 138. (Annotated) 33. A state statute requiring express companies to make free delivery of parcels committed to their custody for transporta- tion is not in aid of the common law to such an extent that it cannot be said to be in con- flict with the Federal statutes governing the regulation of rates of interstate ship- ments. State ex rel. Railroad Commission v. Adams Exp. Co. 19: 93, 85 N. E. 337, 966, 171 Ind. 138. 34. A state cannot compel express com- panies to make free deliveries, within cities of a certain class, of interstate shipments committed to their care, in view of the rail- road rate law of Congress requiring the fil- ing by transportation companies with the Interstate Commerce Commission of sched- ules of rates for transportation or any serv- ice connected therewith, and empowering the commission to determine what regulations in respect to transportation are reasonable, and to require the carrier to conform to such regulations. State ex rel. Railroad Com- mission v. Adams Exp. Co. 19: 93, 85 N. E. 337, 966, 171 Ind. 138. Penalty for failure to settle claim. 35. Imposing a reasonable penalty upon a carrier for failure to settle a claim for goods lost while in its possession for inter- state transportation does not unlawfully in- terfere with interstate commerce in the ab- sence of any congressional legislation to the contrary. Morris v. Southern Exp. Co. 15: 983, 59 S. E. 667, 146 N. C. 167. (Annotated) Transportation of oil or gas. 36. Natural gas, when reduced to pos- session, is a commodity which belongs to the owner of the land, and may be the sub- ject of both intrastate and interstate com- merce. West v. Kansas Natural Gas Co. 35: 1193, 31 Sup. Ct. Rep. 564, 221 U. S. 229, 55 L. ed. 716. 37. Prohibiting the construction of pipe lines for natural gas, or the transportation of the gas by such lines except by domestic corporations, whose charters shall provide that the gas shall only ba transported be- tween points in the state, and shall not be 490 COMMERCE, II. c. way carriers and their employees engaged in interstate commerce, by enacting the em- ployers' liability act of April 22, 1908, which abrogates the fellow-servant rule, ex- tends the carrier's liability to cases 01 death, and restricts the defenses of contrib- utory negligence and assumption of risk, since no one has any vested right in any rule of the common law, and the natural tendency of such changes is to promote the safety of the employees and to advance the commerce in which they are engaged. Mon- dou v. New York, N. H. & H. R. Co. 38: 44, 32 Slip. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 59. Congress, in the exercise of its pow- er over interstate commerce, may regulate the relations of railway carriers and their employees while both are engaged in such commerce, subject always to the limita- tions prescribed in the Federal Constitu- tion, and to the qualification that the par- ticulars in which those relations are regu- lated must have a real or substantial con- nection with the interstate commerce in which the carriers and employees are en- gaged. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 60. The laws of the several states, in so far as they cover the same field, were superseded by the enactment by Congress of the employers' liability act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employees while engaged in interstate commerce. Mondou v. New York, N. H. & H. R. Co. (38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 61. The distribution of the damages re- coverable, under the act of April 22, 3908, from an interstate railway carrier, for the death of an employee while engaged in in- terstate commerce, is governed by the pro- visions of that statute, which necessarily supersede any applicable state legislation. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U S. 1, 56 L. ed. 327. 62. No recovery can be had under state statutes, for the death of a railroad em- ployee under circumstances rendering ap- plicable the Federal employers' liability act. Illinois C. R. Co. v. Doherty, 47: 31, 155 S. W. 1119, 153 Ky. 363. (Annotated) Limiting speed within corporate limits. 63. An ordinance limiting the speed of trains on an interstate railway which car- ries United States mail to 10 miles an hour within the corporate limits of the mu- nicipality, which is passed for the safety of the public and the protection of life and property, is not void as imposing an unrea- sonable restriction upon interstate com- merce and the speedy transportation of the mail. Peterson v. State, 14:292, 112 N. W. 306, 79 Neb. 132. (Annotated) Requiring lights at street crossings. 64. Requiring an interstate railroad com- pany to light its crossings in a city does not interfere with its rights as an inter- Digest 1-52 L.R.A.(N.S.) state road, although the effect will be to compel those in charge of the engine to run slowly and cautiously in approaching the light to prevent its interfering with their duty to keep a lookout along the track by obscuring vision past it. Pittsburg, C. C. & St. L. R. Co. v. Hartford City, 20: 461, 82 N. E. 787, 170 Ind. 674. Headlights on locomotives. 65. Requiring railroad companies to maintain electric headlights of a specific character on their locomotives does not in- terfere with interstate commerce, although in case other states required a different kind of lights there might be delay and expense at the boundary line in making the change from one to the other on interstate trains. Atlantic Coast Line R. Co. v. State, 32: 20, 69 S. E. 725, 135 Ga. 545. (Annotated) When transportation is interstate. Transportation of liqttor as interstate com- merce, see CRIMINAL LAW, 1; INTOXI- CATING LIQUORS, 87. 66. An interstate railroad, when engaged in moving cars of water or coal over its line from one state into another for use in its own engines, is engaged in "interstate com- merce." Barker v. Kansas City, M. & 0. R. Co. 43: 1121, 129 Pac. 1151, 88 Kan. 767. 67. Every carrier who transports goods en route from a commencement in one state to a prescribed destination in another, through any part of such continuous pas- sage, is engaged in interstate commerce, whether the goods are carried upon through bills of lading, or are rebilled by the several railroads. United States v. Colorado & N. W. R. Co. 15: 167, 157 Fed. 321, 85 C. C. A. 27. 68. The provisions of the safety appliance acts (act March 2, 1893, chap. 196, 27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174, amended by act April 1, 1896, chap. 87, 29 Stat. at L. 85, and act March 2, 1903, chap. 976, 32 Stat. at L. 943, U. S. Comp. Stat. Supp. 1907, p. 885) apply to and govern a railroad company engaged in interstate com- merce which operates entirely within a sin- gle state, independently of all other car- riers. United States v. Colorado & N. W. R. Co. 15: 167, 157 Fed. 321, 85 C. C. A. 27. (Annotated) 69. Storage of an interstate shipment of freight after its arrival at the point of destination, while awaiting payment of charges and delivery to the consignee, is a part of the interstate transaction, and freight, while so stored, is not subject to the rules of the state corporation commis- sion. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. 70. A railroad company in conveying freight over a route which for a time extends beyond the boundaries of the state, and again returns into it, is engaged in interstate com- merce. Patterson v. Missouri P. Coal Co. 15: 733, 94 Pac. 138, 77 Kan. 230. Free transportation of passenger. 71. Congress, in the exercise of its power over commerce, could enact the provisions of the act of June 26, 1906, 6, which ren- COMMERCE, II. c. 491 dered unenforceable a prior contract, valid when made, by which an interstate carrier agreed to issue annual passes for Hfe in consideration of a release of a claim for damages. Louisville & N. R. Co. v. Mot- tley, 34: 671, 31 Sup. Ct. Rep. 265, 219 U. S. 467, 55 L. ed. 297. As to tickets. 72. Limiting the sale of railroad tickets to railroad companies and their duly author- ized agents is not, although applicable to tickets of roads out of, as well as within, the state, an interference with interstate commerce. State v. Thompson, 4: 480, 84 Pac. 476, 47 Or. 492. Free storage of freight. 73. A rule of a state corporation com- mission requiring railroad companies to store less than car-load shipments of freight which are destined to consignees living at interior points 5 miles or more from the railroad station, free of charge, for ten days, is, as applied to interstate shipments, invalid in that it interferes with and im- poses upon interstate commerce an un- reasonable burden. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. (Annotated) 74. A rule of a state corporation com- mission requiring railroad companies to store less than car-load shipments of freight which are destined to consignees living at interior points 5 miles or more from the railroad station, free of charge, for ten days, is, as applied to interstate shipments, in conflict with and superseded by the Hepburn act, requiring the filing by trans- portation companies with the Interstate Commerce Commission of schedules of rates for transportation or any services conneted therewith, and empowering the Interstate Commission to decide what regulations in respect to transportation are reasonable, and to require conformance therewith. St. Louis & S. F. R. Co. v. State, 30: 137, 107 Pac. 929, 26 Okla. 62. Rights of transferees of bills of lad- ing. 75. A state statute making the state- ments contained in a bill of lading con- clusive evidence in favor of bona fide holders for value is not an unlawful regulation of interstate commerce. Yazoo & M. V. R. Co. v. Bent, 22: 821, 47 So. 805, 94 Miss. 681. Transportation of live stock. 76. The Federal statute fixing the duties and liabilities of shippers and carriers of live stock in interstate transportation con- trols such shipments, and displaces any state laws upon the same subject. Gilliland T. Southern R. Co. 27: 1106, 67 S. E. 20, 85 S. C. 27. 77. A statute prescribing a minimum rate of speed at which live stock may be transported between intrastate points only does not thereby interfere with or regulate interstate commerce. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. 78. The passage of a shipment of live stock between points within a state, for a short distance over the territory of another Digest 1-52 L.R.A.(N.S.) state, renders the shipment one of inter- state commerce, so as to render inapplicable thereto a state statute requiring common carriers of live stock within the state to maintain a minimum rate of speed unless prevented by unavoidable cause, as such statute does not apply to interstate com- merce. Missouri, K. & T. R. Co. v. Leiben- good, 28: 985, 109 Pac. 988, 83 Kan. 25. Connecting carriers. Denial of due process in regulation of, see CONSTITUTIONAL LAW, 447. Infringement of freedom to contract by reg- ulation of, see CONSTITUTIONAL LAW, 4GO. 79. A state statute making a carrier recognizing a through contract the agent of all connecting carriers, and liable to the consignee for loss of, or injury to, the property, whether it occurred on its line or not, with right to recover over against the carrier in fault, is invalid as applied to in- terstate shipments. Yenning v. Atlantic Coast Line R. Co. 12: 1217, 58 S. E. 983, 78 S. C. 42. 80. No unconstitutional interference with interstate commerce is effected by statutes requiring a carrier receiving baggage for transportation into another state over con- necting lines, in case of loss, to adjust the loss with the shipper, or inform him of the point where loss occurred, or produce a re- ceipt from the carrier to whom it delivered the property, unless it proves that, by the exercise of due diligence, it has been unable to trace the loss, and holding the initial car- rier liable to the shipper, permitting it to recover over against the carrier liable for the loss. Skipper v. Seaboard Air Line R. Co. 7: 388, 55 S. E. 454, 75 S. C. 276. (Annotated) 81. The imposition upon an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state, of liability to the holder of the bill of lading for a loss anywhere en route, with- a right of recovery over against the carrier actually causing the loss, which is made by the act of Feb- ruary 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), 20, as amended by the act of June 29, 1906 (34 Stat. at L. 584, 595, chap. 3591, U. S. Comp. Stat. Supp. 1909, pp. 1149, 1166), in spite of any agreement or stipulation limiting liability to its own line, is a valid regulation of interstate commerce. Atlantic C. L. R. Co. v. Riverside Mills, 31 : 7, 31 Sup. Ct. Rep. 164, 219 U. S. 186, 55 L. ed. 167. Charges of carrier. General power to regulate rates of carrier, see CARRIERS, IV. c. Requiring the filing and publishing of rates where foreign commerce is car- ried under joint through rate, see CAR- RIERS, 1019-1022. Effect of Interstate commerce act on car- rier's right to give preferences and ad- vantages, see CARRIERS, 1050, 1051. Evidence of discrimination in interstate shipment, see EVIDENCE, 2031, 2032. 492 COMMERCE, II. c. 82. A state statute prescribing maxi- mum coal rates for the transportation by common carriers of coal in carload lots within the state is not violative of art. 1, 8, of the United States Constitution which confers upon Congress the power to regulate interstate commerce. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. 83. The states continued to possess the right to prescribe reasonable rates for the exclusively internal traffic on interstate car- riers after the passage of the interstate commerce act of 1387, and the amendment of June 29, 1909 (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288), although it may be that by reason of the interblending of the interstate and intra- state operations of such carriers adequate regulation of interstate rates cannot be maintained without imposing requirements with respect to their intrastate rates which substantially affect the former. Minnesota Rate Cases, 48: 1151, 33 Sup. Ct. Rep. 729, 230 U. S. 352, 57 L. ed. 1511. 84. Congressional inaction on the sub- ject leaved each state free to establish maxi- mum intrastate rates for interstate carriers which are reasonable in themselves, although the state's requirements may necessarily disturb the existing relation between intra- state and interstate rates as to places with- in zones of competition crossed by the state boundary line. Minnesota Rate Cases, 48: 1151, 33*Sup. Ct. Rep. 729, 230 U. S. 35, 57 L. ed. 1511. Contracts limiting liability. Applicability of Carmack amendment to transportation of baggage, see CAR- BIERS, 719. 85. The provision of a state Constitution forbidding carriers to contract for limita- tion or liability is superseded by the pro- vision of the Carmack amendment of the interstate commerce act, which permits a contract fixing the value of property to be transported in consideration of special freight rates. Cincinnati, N. 0. & T. P. R. Co. v. Rankin, 45: 529, 156 S. W. 400, 153 Ky. 730, 157 S. W. 926, 154 Ky. 549. 86. The intent of Congress to take pos- session of the subject of the liability of a carrier under contracts for interstate ship- ment, and to supersede all state regulations with reference to that subject, so clearly appears from the Carmack amendment of June 29, 1906 (34 Stat. at L. 584, chap. 3591), to the act of February 4, 1887 (24 Stat. at L. 379, chap. 104), 20, as to in- validate, as applied to interstate shipments, the provisions of any state law nullifying contracts limiting the liability of a carrier for loss or damage to the agreed or de- clared value. Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. (Annotated) 87. As to interstate shipments, the Car- mack Amendment to the interstate com- merce act supersedes a state constitutional provision that the shipper is not bound by a recital of value in his contract of ship"- Digest 1-52 I*R.A.(N.S.) ment, but may show and recover his full loss. Louisville & N. R. Co. v. Miller, 50: 819, 162 S. W. 73, 156 Ky. 677. (Annotated) Cars. 88. Congress has so taken possession of the subject of the delivery, when called for, of railroad cars to be used in interstate traffic, by the provisions of the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591), imposing a specific duty upon railway car- riers to furnish cars for such traffic upon reasonable request, and giving remedies for violations of that duty, as to invalidate, when applied to cars demanded for inter- state transportation, the provisions of Minn. Laws 1907, chap. 23, requiring railway com- panies to furnish freight cars on demand, under penalty for each day's delay not due to certain excepted causes. Chicago, R. I. & P. R. Co. v. Hardwick Farmers Elevator Co. 46: 203, 33 Sup. Ct. Rep. 174, 226 U. S. 426, 57 L. ed. 284. 89. The provision of Kan. Laws 1905, chap. 345, p. 570, which imposes a penalty of $1 per day upon each car for delay in furnishing freight cars ordered, and permits no excuse therefor except "strikes, unavoid- able accidents, and other public calamities," is not invalid, but is a reasonable police reg- ulation, and imposes no considerable burden upon interstate commerce. Patterson v. Mis- souri P. Coal Co. 15: 733, 94 Pac. 138, 77 Kan. 236. (Annotated) 90. The act of the legislature of Okla- homa territory of 1905 ( 2, art. 2, chap. 10, p. 144, Session Laws 1905), imposing up- on railroad companies a penalty of $1 per day for failure to furnish cars within four days after they are requested, but excusing a company "in case of fire, washouts, strikes, lockouts, or other unavoidable casu- alties," is not an infringement of the com- merce clause of the Constitution of the Unit- ed States (article 1, 8). Chicago, R. I. & P. R. Co. v. Beatty. 42: 984, 118 Pac. 367, 126 Pac. 736, 34 Okla. 321. (Annotated) 91. The act of the legislature of Okla- homa territory of 1905 ( 2, art. 2, chap. 10, p. 144), imposing upon railroad companies the penalty of $1 per day for failure to furnish cars within four days after they are requested, but excusing a company in case of fire, washouts, strikes, lockouts, or other unavoidable casualties, is not in con- flict with act of Congress, June 29, 1906, chap. 3591, 1, 34 Stat. at L. 584, U. S. Comp. Stat. Supp. 1911, p. 1285, which re- quires cars to be furnished upon reasonable request. Chicago, R. I. & P. R. Co. v. Beat- ty, 42:984, 118 Pac. 367, 126 Pac. 736, 34 Okla. 321. 92. A rule of a state-railroad commission imposing a penalty upon railroad compa- nies for failure to furnish, within four days from demand, cars which are needed for in- terstate shipments, is an invalid interfer- ence with interstate commerce, although it reserves power to suspend the operation of the rule if justice demands. at least when applied to a state of facts which, because of shortage of cars, due to unprecedented demand, renders it impossible to coi .ply COMMERCE, II. d IV. a. 493 with the rule without disobeying it in other parts of the state, or disobeying the rules of other states. Southern R. Co. v. Com. 17: 364, 60 S. E. 70, 107 Va. 771. (Annotated) 93. Interstate commerce is unconstitu- tionally regulated by Kirby's Ark. Dig. 6803, 6804, making it the carrier's duty to supply cars to shippers on demand, under which a carrier will either be compelled to desist from the interchange of cars with connecting lines for the purpose of moving interstate commerce, because of a refusal of the state courts to permit it to avail it- self, as causing and excusing its default, of the rules and regulations adopted for the interchange of cars by the American Railway Association, which govern 90 per cent of the railways in the United States, or will be obliged to conduct such business with the certainty of being subjected to the heavy penalties provided by the stat- ute. St. Louis S. W. R. Co. v. State, 29: 802, 30 Sup. Ct. Rep. 476, 217 U. S. 136, 54 L. ed. 698. d. Licenses and taxes. Requiring license for ferry, see supra, 14. III. Limiting exports from state. (See same Jieading in Digest L.R.A. 1-10. ) IV. Regulating, taxing, and licensing sales, manufacturing, and other business. a. In general. (See also same heading in Digest L.R.A. 1-70.) Taxation of subjects of commerce, see infra, V. 94. The laws of Congress governing and controlling interstate commerce can have effect upon property only during the time it retains its distinctive interstate quality, or character, of commerce. When such property is shipped to, and enters the body of the property of, the state, the original packages being broken, and the contents of- fered and sold to retailers or consumers, its interstate quality is lost, and it ceases to be subject to congressional control. Re Agnew, 35: 836, 131 N. W. 817, 89 Neb. 306. 95. The right of a merchant of one state to sell his goods in another state carries with it the right to deliver them, and to employ for that purpose any agency he may deem prop- er, providing that at no time before the de- livery the goods become so mingled with the common mass of property in such other state as to deprive the transaction of its inter- state features. Kinsley v. Dyerly, 19: 405, 98 Pac. 228, 79 Kan. 1. 96. The mere delay in delivering a pack- age of interstate commerce to the consignee will not make it subject to the state laws. Adams Exp. Co. v. Com. 5: 630, 92 S. W. 932, 124 Ky. 160. Digest 1-52 L.R.A.(N.S.) 97. The business of maintaining attor- neys in various sections of a state, to make collections for and furnish information to merchant customers as to the financial standing of persons in the vicinity of such attorneys, is not, although it may require the sending of letters from state to state, interstate commerce s.o as to exempt the proprietor from paying a license tax im- posed by the state. United States Fidelity & G. Co. v. Com. 47: 648, 129 S. W. 314, 139 Ky. 27. (Annotated) 98. The fact that a water tank and tower manufactured by a corporation in one state for use in another is to be set up by it in the latter does not take the con-tract therefor out of the protection of the com- merce clause of the Federal Constitution, so as to deprive the corporation of the right to a lien for the work, because it has not complied with the local statutes so as to be entitled to do business in the state. Flint & W. Mfg. Co. v. McDonald, 14:673, 114 N. W. 684, 21 S. D. 526. (Annotated) Correspondence schools. See also supra, 10. 99. Interstate commerce is unconstitu- tionally regulated by the provisions of Kan. Gen. Stat. 1901, 1283, under which the fil- ing of a statement of financial condition is made a prerequisite to the right of a for- eign corporation engaged in imparting in- struction by correspondence to do business in the state, where such business involves the solicitation of students in Kansas by local agents, who are also to collect and forward to the home office the tuition fees, and the systematic intercourse by corre- spondence between the company and its stu- dents and agents, wherever situated, and the transportation of the needful books, apparatus, and papers. International Text- Book Co. v. Ptgg, 27: 493, 30 Sup. Ct. Rep. 481, 217 U. S. 91, 54 L. ed. 678. Buying and selling futures. 100. Brokerage contracts for the buying and selling of futures in cotton, made in one state to be executed in another, do not constitute interstate commerce because sometimes discharged by the delivery of the cotton, where the contracts do not require the seller to ship the cotton from any point, since the shipment does not become inter- state commerce by virtue of the contract, but by the subsequent and independent act of the seller, and then only when the cotton begins to move. Ware v. Mobile County, 14: 1081, 41 So. 153, 146 Ala. 163. (Annotated) 101. The business of buying and selling futures in cotton and grain on margins for commission does not, although the contracts are to be executed in another state, consti- tute interstate commerce, so as not to be subject to a state brokerage license or oc- cupation tax, where the contracts are dis- charged by payment of differences in the market values. Ware v. Mobile County, 14: 1081, 41 So. 153, 146 A.ia. 163. Sale of nursery stock. Regulations by state to prevent spread of disease, see supra, 26. 494 COMMERCE, IV. a. 102. The commerce clause of the Federal Constitution is violated by a statute giving a board of agriculture unlimited discretion to exclude nonresident nursery dealers from selling stock within the state on the ground of want of integrity or financial responsi- bility. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93, 22 S. D. 23. Monopolies. 103. The prohibitions of the anti-trust act of July 2, 1890, 1, 2, against restraints or monopolization of trade or commerce, do not exceed the authority of Congress to regulate commerce, as applied to undue re- straints of interstate or foreign commerce in petroleum and its products, by contract, combination, or conspiracy, or monopoliza- tion, or attempts to monopolize any part of such commerce. Standard Oil Co. v. Unit- ed States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. 104. Interstate commerce is not unlawful- ly interfered with by a statute forbidding the making of a condition of the sale of goods to be resold, that the purchaser shall not sell goods of other dealers, although the seller is located in another state. Com. v. Strauss, n: 968, 78 N. E. 136, 191 Mass. 545. Food and drugs. 105. Congress having, by the food and drugs act of June 30, 1906, made adulterat- ed and misbranded articles contraband of interstate commerce, could, in order to make the legislation effective, authorize, as it did in 10 of that act, seizures for con- fiscation and condemnation so long as the articles remained unsold, whether in the original packages or not; and such means of enforcement may not be thwarted by state legislation, like Wis. Laws 1907, chap. 557, under which cans of ~ a mixture of glucose and refiner's syrup which have been removed from the boxes in which they were shipped in interstate commerce, and are held upon the shelves of the importers for sale, must bear only the labels required by the state law, to the exclusion of those af- fixed conformably to the Federal law. Mc- Dermott v. State, 47: 984, 33 Sup. Ct. Rep. 431, 228 U. S. 115, 57 L. ed. 754. (Annotated) 106. Construing the word "package" or its equivalent expression as used by Con- gress in the food and drugs act of June 30, 1906, 7, 8, in defining what shall constitute adulteration and what misbrand- ing within the meaning of the act, as re- ferring to the immediate container of the article which is intended for consumption by the public, and not simply to the out- side wrapping or box containing the pack- ages intended to be purchased by the con- sumer, does not render the statute invalid as in excess of the power of Congress over interstate commerce. McDermott v. State, 47: 984, 33 Sup. Ct. Rep. 431, 228 U. S. 115, 57 L. ed. 754. 107. Permitting a sale of cans of a mix- ture of glucose and refiner's syrup shipped into the state only when the labels pre- scribed by Wis. Laws 1907, chap. 557, gov- Digest 1-52 L.R.A.(N.S.) erning the sales of food products, are sub- stituted for those affixed in an honest attempt to comply with the food and drugs act of June 30, 1906, is an unlawful attempt by the state to discredit and burden legiti- mate Federal regulations of interstate com- merce, to destroy rights arising out of the Federal statute which have accrued both to the government and the shipper, and to impair the effect of a Federal law which has been enacted under the constitutional power of Coneress over the subject. Mc- Dermott v. State, 47: 984, 33 Sup. Ct. Rep. 431, 228 U. S. 115, 57 L. ed. 754. 108. A state law requiring packages con- taining articles of food to be branded with a statement of the net contents by weight, when offered for sale in the retail trade, imposes no obligation upon the manufac- turer in a foreign state, but operates alone upon the dealer selling the property at re- tail, and does not violate the power of Con- gress to regulate interstate commerce. Re Agnew, 35: 836, 131 N. W. 817, 89 Neb. 306. 109. A state's police power does not ex- tend to prohibiting the keeping for ship- ment out of the state of unwholesome meats, this being a subject confided exclu- sively to the commercial powers of Con- gress. State v. Peet, 14:677, 68 Atl. 661, 80 Vt. 449. 110. A state statute prohibiting keeping the flesh of calves less than four weeks old and less than 50 pounds, dressed weight, for shipment out of the state, is in conflict with the commerce clause of the Federal Consti- tution, this being an article of commerce under Federal laws which prohibit the sale of the flesh of such animals only when un- der three weeks of age. State v. Peet. 14:677, 68 Atl. 661, 80 Vt. 449. Cigarettes. In original packages, see infra, 130. 111. The sale of a package of tobacco which contains a coupon entitling the pur- chaser to cigarette papers if sent to the manufacturer in another state does not, by reason of the fact that it must be so sent, become interstate commerce, so as not to be subject to the operation of a state statute forbidding the sale of such paper, directly or indirectly, or upon any pretense, or by any device. State v. Sbragia, 23: 697, 119 N. W. 290, 138 Wis. 579. Intoxicating liquors. Power of Congress to forbid publication of advertisements as to liquors, see supra, 11. Prohibiting interstate transportation of liquors, see supra, 42. Sales in original packages, see infra, 131- 137. Burden of proving that sale was transaction of interstate commerce, see EVIDENCE, 102. Criminal liability of bank collecting draft attached to bill of lading for liquor, see INTOXICATING LIQUORS, 97. See also INTOXICATING LIQUORS, 88. 112. One arrested for illegally conveying intoxicating liquor which was unlawfully in his possession through prohibited territory COMMERCE, IV. a. 495 cannot invoke the protection afforded to interstate shipments of liquor by the Con- stitution and laws of the United States, since such protection extends only to per- sons who are lawfully in possession of liquors so shipped. Gilmore v. State, 27: 151, 106 Pac. 801, 3 Okla. Crim. Rep. 434. 113. The state may lawfully require the procurement of a license by a traveling sales- man who solicits orders for small quantities of intoxicating liquor, to be forwarded for acceptance to another state, where delivery is to be made. State v. Delamater, 8: 774, 104 N. W. 537, 20 S. D. 23. 114. An ordinance imposing an annual fee of $1,000 for the privilege of conducting a brewery business within the municipality, and requiring compliance with prescribed conditions in addition to the payment of the fee, will be regarded as a police measure, and therefore not an unlawful interference with interstate commerce as applied to products imported from another state. Schmidt v. Indianapolis, 14:787, 80 N. E. 632, 168 Ind. 631. (Annotated) 115. The owner of intoxicating liquors in one state cannot, by virtue of the Federal interstate commerce clause, go into another state or send his agent there, and, in defi- ance of the laws thereof, carry on the busi- ness of soliciting orders or proposals for the purchase of such liquors, to be shipped from such other state, without incurring the penalties of such laws. Crigler v. Shepler, 23: 500, 101 Pac. 619, 79 Kan. 834. 116. A state statute regulating the tak- ing of orders in one state for intoxicating liquors which are in another state is not repugnant to the interstate commerce clause. State ex rel. Jackson v. William J. Lemp Brew. Co. 29: 44, 102 Pac. 504, 79 Kan. 705. 117. A state statute prohibiting the tak- ing of orders for intoxicating liquors or the contracting for the sale thereof within such state, except with persons authorized to sell the same as therein provided, is not repugnant to the interstate commerce clause of the Federal Constitution. Crigler v. Shepler, 23: 500, 101 Pac. 619, 79 Kan. 834. 118. A state constitutional clause pro- hibiting the conveying of intoxicating li- quors from one place within the state to another place therein, in the absence of prohibitory legislation by the state, is not within the scope and operation of a Federal statute subjecting interstate shipments of intoxicating liquors to state laws passed in the exercise of their police power. High v. State, 28: 162, 101 Pac. 115, 2 Okla. Crim. Rep. 161. 119. A shipment of liquor by express, without order, by a dealer in one state to one whose name he has learned in another, with directions to the express company to collect the price before delivery, does not constitute interstate commerce; but the de- livery of the package and collection of the price will constitute a sale where the transaction occurs. Adams Exp. Co. v. Com. 5: 630, 92 S. W. 932, 124 Ky. 160. (Annotated) Digest 1-52 L.B.A.(N.S.) 120. Conveying intoxicating liquors which have been shipped from another state, from a railway station to the home of the con- signee, is a part of the interstate commerce transportation, and is not violative of a state constitutional clause prohibiting the conveying of intoxicating liquors from one place within the state to another place therein, as such provision has no application to interstate shipments, until there has been a delivery thereof. High v. State, 28: 162, 101 Pac. 115, 2 Okla. Crim. Rep. 161. 121. One is not engaged in interstate commerce in transporting from the depot of the carrier to the residence of the buyer intoxicating liquor which had been ordered from another state, and shipped to and left at such depot. State v. Wignall, 34: 507, 128 N. W. 935, 150 Iowa, 650. 122. Intoxicating liquor consigned to pro- hibition territory from another state is subject to seizure in the hands of the car- rier where one holding the bill of lading has receipted for the entire consignment and taken away a portion, leaving that seized in the carrier's freight house for six days thereafter. State v. Intoxicating Li- quors, 29: 745, 76 Atl. 265, 106 Me. 138. (Annotated) 123. Carriage of intoxicating liquors con- signed by a shipper in one state to a ficti- tious consignee in another is not ended, so as to subject them to seizure under the state laws, merely because the car in which they were carried has been placed on the team track at their destination ready for delivery, since, in the absence of any agree- ment by the consignee to receive them else- where, the carrier's undertaking is not com- pleted until removal of the goods from the car to the freight house. State v. Intoxi- cating Liquors, n: 550, 66 AtL 393, 102 Me. 206. (Annotated) 124. Intoxicating liquors shipped from another state to fictitious consignees, or to local merchants who did not order and do not claim them, cannot, although they had been placed by the carrier in its warehouse and remained there twenty-four days, be regarded as constructively delivered, so as to lose their character as articles of inter- state commerce, and become subject to local seizure. State v. Intoxicating Liquors, 23: 1020, 72 Atl. 331, 104 Me. 463. (Annotated) 125. Delivery of intoxicating liquor to a common carrier for transportation to an- other state in response to a mail order is not, although it takes place within the pro- hibited distance of a schoolhouse, punish- able under the state laws, although the sale is completed when the delivery is made to the carrier, since it is immediately protected by the commerce clause of the Federal Constitution. State v. J. W. Kel- ly & Co. 36: 171, 133 S. W. 1011, 123 Tenn. 556. 126. An interstate shipment of intoxicat- ing liquor may be seized and confiscated un- der a statute providing for seizure and con- fiscation of intoxicating liquors when kept for the purpose of sale or barter contrary to law, before removal from the depot where 496 COMMERCE, IV. b. the consignee has received and retained actual and exclusive possession of such liquors from the carrier with the admitted intention of selling them contrary to law, since the permissive police powers of the state conferred by the Wilson Act attach immediately after* the consummation of the delivery by the carrier to the consignee. State v. Eighteen Casks of Beer, 25: 492, 104 Pac. 1093, 24 Okla. 786. 127. Paying the express charges and sign- ing the receipt book for intoxicating liquors imported from another state do not con- stitute a constructive delivery, so as to subject them to seizure under the state law, in view of the Wilson act, where the consignee stated that he was uncertain whether or not the liquors were his, and requested the carrier, which had not ten- dered them to him, to hold them until he assertained if they were, and only seven hours elapsed between that time and the attempted seizure. State v. Parshley, 37: 444, 81 Atl. 484, 108 Me. 410. 128. The act of Congress known as the Wilson law, which permits states to regu- late intoxicating liquors brought into their borders, is not applicable in case of a sale for export, so that the state cannot pro- hibit the making of such sale within the prohibited distance of a schoolhouse. State v. J. W. Kelly & Co. 36: 171, 133 S. W. 1011, 123 Tenn. 556. ft. In original packages. (See also same heading in Digest L.R.A. 1-10.) State taxation of proceeds of sales in origi- nal packages, see TAXES, 131, 139. See also supra, 94. 129. An original package as governed by interstate commerce law is that which is delivered by the importer to the carrier at the initial point of shipment, and retains its form and contents until received by the consignee in the same condition as when shipped. If, upon arriving at its destina- tion in a foreign state, the package is broken, and its contents, in smaller units, is offered for sale, and enters into the re- tail commerce of the state, the distinctive quality of interstate commerce is lost, and the goods become at once subject to state laws. Re Agnew, 35: 836, 131 N. W. 817. 89 Neb. 306. Cigarettes. 130. A state cannot deny to a proper per- son the right to hold in the original pack- ages cigarettes which he has imported from another state. State v. Lowry, 4: 528, 77 N. E. 728, 166 Ind. 372. (Annotated) Intoxicating liqnors. Effect of Webb-Kenyon act on right of car- rier to take liquor into state, see IN- TOXICATING LIQUORS, 118. See also INTOXICATING LIQUORS, 88. 131. Under the interstate commerce clause of the Federal Constitution, a resi- dent of one state may order and receive Digest 1-52 KR.A.(N.S.) a shipment of whisky from another state, and convey it in the original package from the depot at which the shipment arrives to his home. High v. State, 28: 162, 101 Pac. 115, 2 Okla. Crim. Rep. 161. 132. A package, to be unbroken within the meaning of a law permitting liquor to be delivered in unbroken packages in dry territory, need not necessarily be the one received by the wholesaler, but he may fill a smaller receptacle, as a demijohn, from a larger one, and deliver it in the unbroken form in which he prepares it. State v. Maire, 39: 1051, 120 Pac. 87, 66 Wash. 591. (Annotated) 133. A state statute enacted before the passage of the Webb-Kenyon act of Con- gress, which attempted to forbid the im- portation into the state from another slate or country of intoxicating liquor for per- sonal use, was unconstitutional as a viola- tion of the power of Congress over inter- state commerce. Atkinson v. Southern Exp. Co. 48: 349, 78 S. E. 516, 94 S. C. 444. 134. The passage by Congress of the Webb-Kenyon act, which prohibited the transportation into a state of any intoxi- cating liquor intended to be received, pos- sessed, sold, or in any manner used in viola- tion of any law of such state, does not validate a statute of the state which, by attempting to forbid the importation of such liquor for personal use, was unconsti- tutional as an interference with interstate commerce. Atkinson v. Southern Exp. Co. 48: 349, 78 S. E. 516, 94 S. C. 444. (Annotated) 135. The state may pass a statute for- bidding the importation of intoxicating li- quor into its territory for personal use, since the passage by Congress of the Webb- Kenyon act, which prohibits the transporta- tion into any state of any intoxicating li- quors intended to be received, possessed, sold, or in any manner used in violation of any law of such state. Atkinson v. South- ern Exp. Co. 48: 349, 78 S. E. 516, 94 S. C. 444. 136. A state local option law which was enacted before the act of Congress known as the Webb-Kenyon law, which withdrew shipments of intoxicating liquor from the protection accorded interstate commerce, but which had not, before the enactment of the latter statute, been declared unconsti- tutional, became, upon the enactment of that statute, applicable to interstate ship- ments of liquor. Adams Exp. Co. v. Com. 48: 342, 157 S. W. 908, 154 Ky. 462. 137. The act of Congress known as the Webb-Kenyon law, which withdrew from the protection accorded interstate commerce, shipments of liquor intended to be received, possessed, sold, or in any manner used in violation of law, does not prevent shipment to private individuals for their own use, if such use is not contrary to the local law. Adams Exp. Co. v. Com. 48: 342, 157 S. W. 908, 154 Ky. 462. COMMERCE, IV. c; v. 497 c. Sales by peddlers and agents; by sample. (See also same heading in Digest L.R.A. 1-10.) Determination on habeas corpus whether license tax on peddlers is interference with interstate commerce, see HABEAS CORPUS, 29. .I :'ii.r lii Solicitors or drummers; by sample. 138. A statute forbidding, without license, the canvassing for or selling by sample of goods made in another state, after they have been shipped into the state passing the statute, while permitting such canvassing for domestic goods, violates the commerce clause of the Federal Constitution. State v. Bayer, 19: 297, 97 Pac. 129, 34 Utah, 257. (Annotated) 139. The state may make the license tax on the right to sell certain classes of goods by sample to consumers by canvassing from house to house apply to goods shipped from foreign states, when it applies equally to those of domestic origin. State v. Bayer, 19: 297, 97 Pac. 129, 34 Utah, 257. 140. An ordinance imposing a license tax upon every person canvassing for merchan- dise within the city is void as interfering with interstate commerce, so far as it ap- plies to persons merely taking orders to be filled by their principals in another state. State ex rel. South Bend v. Glasby, 21: 797, 97 Pac. 734, 50 Wash. 598. 141. An agent who solicits orders for a merchant of another state may be made agent to deliver and collect without de- stroying the interstate character of the transaction. Kinsley v. Dyerly, ic,: 405, 98 Pac. 228, 79 Kan. 1. 142. The sale within the state of a frame for a portrait, made in another state, to fill an order taken by a solicitor in the former state, cannot be so separated from the rest of the dealings between the nonresident maker and the purchaser as to sustain the imposition of a license tax under Ala. act of March 7, 1907, 17, where the order for the portrait contemplated its delivery in an appropriate frame, which the purchaser of the portrait should have the option of buying at the factory price. Dozier v. State, 28: 264, 30 Sup. Ct. Rep. 649, 218 U. S. 124, 54 L. ed. 965. (Annotated) 143. The sale of the frames does not constitute interstate commerce where, aft- er the taking of orders upon a foreign concern for pictures which the contract stipulates may be delivered in frames which the one giving the order may purchase or not at his pleasure, the pictures in the frames are shipped to the vendor's agent, who delivers the pictures, collects the price, and sells the frames whenever he can. State v. Looney, 29: 412, 97 S. W. 934, 214 Mo. 216. Digest 1-52 V. Taxation of subjects of commerce; import and export duties. Inspection laws, see supra, 16-20. Taxing and licensing sales in original pack- ages, see supra, IV. b. Laying duty on articles exported from state or giving preference to ports of one state over another, see CAKKIERS, 1019. Customs duties, see DUTIES. 144. The state has a right to impose a tax upon property within its borders, regardless of the fact that such property may be em- ployed by its owners in interstate commerce. State v. United States Exp. Co. 37: 1127, 131 N. W. 489, 114 Minn. 346. 145. The proportion of gross earnings of an express company for shipments from one point to another within the state, which represents the mileage in the state, is subject to state taxation, although for a portion of the route the carrying road runs through another state. State v. United States Exp. Co. 37: 1127, 131 N. W. 489, 114 Minn. 346. Property in transit. 146. The work undertaken for the owner by a lumber company, of towing logs in navigable lakes to booms, from which they are hoisted upon cars for shipment, consti- tutes part of the process of delivery to the carrier, and, until completed, the logs are subject to state taxation. State v. Taber Lumber Co. 13: 800, 112 N. W. 214, 101 Minn. 186.. 147. Logs which are cut, banked, and boomed upon the ice of a navigable lake, with the intention of exporting them from the state, do not become articles of inter- state commerce in transit, so as to exempt them from state taxation, until delivered to a common carrier for exportation. State v. Taber Lumber Co. 13: 800, 112 N. W. 214, 101 Minn. 186. 148. Logs which are cut, banked, and boomed upon the ice of a navigable lake, although destined for exportation, do not cease to be part of the general mass of prop- erty in the state, and are not exempt from state taxation, while any substantial part of the work of delivery to the common carrier remains to be done. State v. Taber Lumber Co. 13: 800, 112 N. W. 214, 101 Minn. 186. ( Annotated ) 149. Logs destined for exportation, but not delivered to the initial carrier for that purpose until after May 1st in any year, are subject to taxation for that year by the express terms of Minn. Rev. Laws 1905, 822. State v. Taber Lumber Co. 13: 800, 112 N. W. 214, 101 Minn. 186. 150. The transportation of coal from one state to another by the owner for his own convenience, and consigned to his own or- der, with the intent that it shall be stored en masse, and subsequently sold in specific quantities, does not constitute interstate commerce so as to exempt it from local taxation. Lehigh & W. B. Coal Co. v. Junc- tion (N. J. Err. & App.) 15: 514, 68 Atl. 806, 75 N. J. L. 922. 32 49S COMMERCIAL AGENCIES COMMISSIONERS. 151. Merchandise is not within the pro- tection of the commerce clause of the Fed- eral Constitution, so as to be exempt from local taxation, unless in course of transpor- tation from one state to another, pursuant to some existing contract of sale or consign- ment. Leliigh & W. B. Coal Co. v. Junction (N. J. Err. & App.) 15: 514, 68 Atl. 806, 75 N. J. L. 922. 152. Grain owned by a citizen of a state which he has shipped from one sister state to another upon a bill of lading giving him the privilege of unloading at the place of his residence for inspection, weighing, clean- ing, drying, sacking, grading, and mixing, is not, while in his private elevator for such purpose, in transit, so as to be ex- empt from state taxation as interstate com- merce, if the period of its detention is in- definite, and he is under no obligation to forward it at any particular time, al- though he intends ultimately to send it forward under the bill of lading to its desti- nation for sale. People v. Bacon, 44: 586, 90 N. E. 686, 243 111. 313. (Annotated) COMMERCIAL AGENCIES. Validity of state license of, see COMMERCE, 97. Admissibility in evidence of report by agent of, see EVIDENCE, 819. Evidence as to methods of business of, see EVIDENCE, 1189. False representations to, see FBAUD AND DE- CEIT, 50, 62, 63. Libel by, see LIBEL AND SLANDER, 56-58, 122, 123; PLEADING, 220. Borrowing money on rating by, based on false report, see TRUSTS, 57. COMMERCIAL LAW. Following state decisions as to, see COTJBTS, 326. COMMERCIAL PAPER. See BILLS AND NOTES; CHECKS. COMMERCIAL TRAVELERS. Baggage carried by, see CARRIERS, 705-708. Acceptance by principal of order given to traveling salesman, see CONTRACTS, 177- 179, 190, 191. Right of buyer to countermand order given to, see CONTRACTS, 190, 191. Damages for loss or delay of sample trunks during transportation, see DAMAGES, 299, 300. Damages for personal injury to, see DAM- AGES, 353. Burden of proving period of employment of, see EVIDENCE, 530, 531. Digest 1-52 L.R.A.(N.S.) Burden of proving authority of, see EVI- DENCE, 174. Injunction against violation of contract by, see INJUNCTION, 68. Liability of innkeeper for loss of goods of, see INNKEEPERS, 19. Discrimination in license tax on, see LI- CENSE, 90. Duty of employer of, to provide work, see MASTER AND SERVANT, 2. Place of sale of adulterated confectionery by, see SALE, 25, 26. In general, see PRINCIPAL AND AGENT. COMMISSARY. Contract as to, in restraint of trade, see CONTRACTS, 541. COMMISSIONER OF DEEDS. Evidence on prosecution of, for false certifi cation to acknowledgment, see EVI- DENCE, 1905. In general, see NOTARY. COMMISSIONERS. Exempting public commissioners from sity of furnishing appeal bond, see AP- PEAL AND ERROR, 141. Appropriations for salary and expenses of tax commissioner, see APPROPRIATIONS, 9-13. Government of cities by, see COMMISSION GOVERNMENT. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 4. Requiring appointment of, from dominant Solitkal parties, see COURTS, 92, 137 : FFICERS, 10. Order to produce books and records of in- solvent bank before bank commissioner, see CRIMINAL LAW, 110. Competency of commissioners in eminent domain proceedings, see EMINENT DO- MAIN, 160, 161. Award by commissioners in condemnation proceeding, see EMINENT DOMAIN, i i . c, 2. Commissioner of deeds, see COMMISSIONER OK DEEDS. Validity of regulations by food commU sioner, see FOOD, 7. Injunction against pure food commissioner, see INJUNCTION, 322-324. Necessity of permit from highway commis- sioners to make use of boulevard, see HIGHWAYS, 27. Jury commissioners, see JURY COMMISSION- ERS. Appointment of tax commissioners, see OFFICERS, 21, 38. Liability of state building commissioners for discharge of contractor, see OFFICERS, 99. De facto commissioner of insurance, see OFFICERS, 116. COMMISSION GOVERNMENT COMMUTES. 499 Park commissioners, see PARK COMMISSION ERS. Discretion of trial judge as to appointmem of commissioners to determine value o: land in partition proceedings, see PAB TITION, 17. Power of budget commissioners to change sum levied as tax, see TAXES, 154. See also COMMISSIONS. 1. A board of commissioners having authority to determine what streams contain fish of sufficient value to warrant the pro- hibition of casting sawdust into the stream for their preservation is not bound to ac1 on sworn evidence. Com. v. Sisson, i: 752 75 N. E. 619, 189 Mass. 247. 2. The insertion, in a statute conferring upon park commissioners jurisdiction of a section of a public river, of a clause giving the right to forbid the taking of ice from a specified portion of it, does not exclude their power to forbid taking ice from other portions, wnere it is necessary to carry out the purposes for which jurisdiction was con- ferred upon them. Park Comrs. of Des Moines v. Diamond Ice Co. 3: 1103, 105 W. 203, 130 Iowa, 603. COMMISSION GOVERNMENT. Act validating adoption of commission form of government, see CONSTITUTIONAL LAW, 44. Delegation of power by statute providing for, see CONSTITUTIONAL LAW, 79, 107. Uncertainty of statute providing for, see STATUTES, 41. Special legislation as to, see STATUTES, 171, 172, 174, 175. Construction of statute providing for, see STATUTES, 226. Statute providing for, as amending prior act by mere reference to title, see STATUTES, 357. In general, see MUNICIPAL COBPOEATIONS, 9-12. COMMISSION MERCHANTS. See FACTOBS. COMMISSIONS. Of stock brokers, see BROKERS, 1-3. Of real estate brokers, see BROKERS, II. b. Of administrator, see EXECUTORS AND AD- MINISTRATORS, IV. c, 2. Of insurance agent, see INSURANCE, 31-33; PRINCIPAL AND AGENT, 17, 18. Of agent, generally, see PRINCIPAL AND AGENT, 106, 109, 110, 115-117. Of trustee, see TRUSTS, 125. Eight to recover commissions for illegal sale of intoxicating liquors, see CONTRACTS, r>76. Digest 1-52 L.R.A.(N.S.) As element of damages for unlawful termi- nation of contract of employment, see DAMAGES, 207. Loss of, as element of damages for personal injury, see DAMAGES, 354. Combination to fix rates, see MONOPOLY AND COMBINATIONS, 62, 63. Liability of subagent to account for secret commission, see PRINCIPAL AND AGENT, 106. Finality of order of court affirming order of commission for purpose of appeal, see APPEAL AND ERROR, 44. Government of cities by, see COMMISSION GOVERNMENT. Review by court of award by commission under workmen's compensation act, see CONSTITUTIONAL LAW, 135. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 4. Court's power to test jurisdiction of,' see COURTS, 3. Requiring members of, to be appointed from dominant political parties, see COURTS, 92, 137; OFFICERS, 10. To take testimony, see DEPOSITIONS, 4, 5. Entomological commission, see ENTOMOLOGI- CAL COMMISSION. To fix gas rates, see GAS, 24-26. Interstate Commerce Commission, see INTER- STATE COMMERCE COMMISSION. Revocation of license by, see LICENSE, 30. Power to forbid book making at race tracks where power to regulate races has been committed to it, see LICENSE, 42. To issue permits for hydraulic mining, see MINES, 28. Appointment of members of tax commission, see OFFICERS, 21, 38. Tax commission in general, see TAXES, III. c. Public service commissions, see PUBLIC SERVICE COMMISSIONS. Right to examine records of, see RECORDS AND RECORDING LAWS, 8, 9. See also COMMISSIONERS. COMMITMENT. For contempt, see CONTEMPT, 67, 110, 111. Necessity of formal commitment of one sen- tenced for crime, see CRIMINAL LAW, 237. Review of, on habeas corpus, see HABEAS CORPUS, 35, 36. As to imprisonment, generally, see CRIMI- NAL LAW, IV. COMMITTEE. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 4. Of political party, see ELECTIONS, 81. Of incompetent person, see INCOMPETENT PERSONS, VI. Of legislature, see LEGISLATURE, 1. 500 COMMODITIES COMMON LAW. Liability of executive committee appointed at public meeting for- supplies ordered by it, see PRINCIPAL AND AGENT, 112. COMMODITIES. Discrimination against, by carrier, see CAR- RIERS, 1067, 1070. COMMON. Diversion of land dedicated for, see DEDICA- TION, 17. Necessity of consent of municipality to con- struction of subway under, see MUNICI- . PAL CORPORATIONS, 302, 303. Lease of, see MUNICIPAL CORPORATIONS, 306, 337. COMMON CARRIERS. See CARRIERS. COMMON COUNTS. . Recovery under, see ASSUMPSIT, 6-8. COMMON KNOWLEDGE. See EVIDENCE, 2057. COMMON LAW. Common-law exception as to carrier's liabil- ity, see CARRIERS, 788. Vested right in rule of, see COMMERCE, 58. Presumption as to, see CONFLICT OF LAWS, 36; EVIDENCE, 72-79. Modification of, as judicial question, see COURTS, 81. Determining common law of other state, see COURTS, 313-315; EVIDENCE, 72-79. Determining rule of, prior to 3775, see COURTS, 314. Adoption of common-law rule as to suffi- ciency of indictment, see CRIMINAL LAW, 115. Imposition of common-law penalty for stat- utory offense, see CRIMINAL LAW, 226. Adoption of common-law maxim that uo one shall profit by his own wrong, see DE- SCENT AND DISTRIBUTION, 9c. Statute against fraudulent conveyances as part of, see FRAUDULENT CONVEYANCES, 1. Sufficiency of common-law indictment to support conviction for statutory crime, see INDICTMENT, ETC., 124. Digest 1-52 L.R.A.(N.S.) Legality, at common law, of sale of intoxi- cating liquors, see INTOXICATING LI- QUORS, 78. As to joint stock companies, see JOINT STOCK COMPANY, 2. Common-law marriage, see MARRIAGE, II. b. Effect of statute providing for change of name on right to effect change by coni- mon-law method, see NAME, 0. Resorting to, in construction of statute, see NUISANCES, 4; STATUTES, 19], 245. Strict construction of statutes in deroga- tion of, see STATUTES, 270-272. Common-law action for collection of tax, see TAXES, 202. 1. The Criminal Code of Canada does not contain the whole of the criminal com- mon law of England in force in Canada; but such law is in force except in so far as the Code either expressly or by implication repeals it. Union Colliery Co. v. Reg. 2 B. R. C. 222, 31 Can. S. C. 81. 2. An unreserved statement by a court as to the common-law rule will, in the absence of other authority, be assumed to be based upon custom and the unwritten law long antedating such time. Horace Waters & Co. v. Gerard, 24: 958, 82 N. E. 143, 189 N. Y. 302. 3. The California court will refuse to follow, upon the question of water rights, a rule of decision at common law, if it is found unfitted to the radically changed con- ditions existing in that state, so that its application will work a wrong and hard- ship rather than betterment and good. San Joaquin & Kings River Canal & Irrig. Co. v. Fresno Flume & Irrig. Co. 35: 832, 112 Pac. 182, 158 Cal. 626. Adoption of, from England. 4. By statute so much of the common law of England as is applicable and not in- consistent with the Constitution of the United States or the Constitution and stat- utes of this state is in force in the state of Nebraska. Kinkead v. Turgeon, 7: 316, 109 N. W. 744, 74 Neb. 580. 5. The common law, together with acts passed by the British Parliament in aid thereof, prior to the fourth year of the reign of James I., is, by adoption, in force, and prevails, in Indiana, so far as applica- ble, and when not inconsistent with funda- mental laws, state or Federal, or with the acts of the state legislature or statutes en- acted by Congress. Sopher v. State, 14:172, 81 N. E. 913, 169 Ind. 177. Abrogation of. Repeal of rule holding husband liable for wife's torts, see HUSBAND AND WIFE, 16-18. 6. An express statutory declaration that all public offenses, both felonies and misdemeanors, must be defined or declared, and the punishment thereof fixed, by stat- ute, and not otherwise, operates as an ex- ception to the act adopting the common law, and prevents the punishment of com- mon-law crimes as such. Sopher v. State, 14: 172, 81 N. E. 913, 169 Ind. 177. 7. An express prohibition by statute of (.&,?! ).A.$L.JL SC,-[ t^sifc contracts for municipal work with coun- cihnen does not, by implication, repeal the common-law rule making contracts by mu- nicipal corporations with councilmen for merchandise void. Bay v. Davidson, 9: 1014, 111 N. W. 25, 133 Iowa, 688. COMMON-LAW M ARRI AGE COMPEN S AT10N. COMPANY LAW. 501 COMMON-LAW MARRIAGE. See MARRIAGE, II. b. *-- COMMON RIGHTS. Liberal construction of statutes in deroga- tion of, see STATUTES, 258. COMMON SCHOOLS. See SCHOOLS. COMMUNISM. Assumpsit to recover property contributed to communistic society upon withdraw- al therefrom, see ASSUMPSIT, 4. Public policy as to communistic tenure of property, see CONTRACTS, 455. Provision of constitution of monastic broth- erhood that gains and acquisitions of members shall belong to the order, see RELIGIOUS SOCIETIES, 15. 1. Communistic life by the members of a religious corporation is not contrary to public policy. State v. Amana Society, 8: 909, 109 N. W. 894, 132 Iowa, 304. (Annotated) COMMUNITIES. As to communistic life, see COMMUNISM. COMMUNITY PROPERTY. See HUSBAND AND WIFE, II. c. COMMUTATION. Of sentence as affecting credibility of con- vict, see WITNESSES, 164. COMMUTATION TICKETS. See CARRIERS, 423, 631. Digest 1-52 L.R.A.(N.S.) See CORPORATIONS. COMPARATIVE INJURIES. Effect of doctrine of, to defeat right to in- junction, see INJUNCTION, 19-24. COMPARATIVE NEGLIGENCE. See RELEASE, 1. COMPARISON. Evidence of comparison of footprints with shoes of one accused of crime, see EVI- DENCE, 885, 1989. Of handwriting generally, see EVIDENCE, IV. P- By experts, see EVIDENCE, VII. m. Admissibility of writings for purpose of, see EVIDENCE, IV. p. COMPENSATION. Of attorney, see ATTORNEYS, II. c; CHAM- PERTY AND MAINTENANCE, II. Of trustee in bankruptcy, see BANKRUPTCY, 28. Of stock brokers, see BROKERS, 1-3. Of real estate brokers, see BROKERS, II. b. Of insurance agents, see CONSTITUTIONAL LAW, 697, 783; CORPORATIONS, 17; IN- SURANCE, 31-33. Of corporate officer, see CORPORATIONS, IV. g, 3. Of prosecuting attorney, see DISTRICT AND PROSECUTING ATTORNEYS, 4, 5. Of administrator, see EXECUTORS AND AD- MINISTRATORS, IV. c, 2. Of judges, see JUDGES, V. Of legislative body, see LEGISLATURE, 2. Of employees, see MASTER AND SERVANT, I. c. Of officers generally, see OFFICERS, II. b. Of surviving partner, see PARTNERSHIP, 75- 78. Of physician and surgeon, see PHYSICIANS AND SURGEONS, 31-35. Of agent, see PRINCIPAL AND AGENT, 106, 109, 110, 115-117. Of receiver, see RECEIVERS, V. Of minister, see RELIGIOUS SOCIETIES, X. Of teacher, see SCHOOLS, II. b. Of tax collector, see TAXES, 192. Of trustee, see TRUSTS, 125. Of persons disappointed by election against will, see WILLS, 412. To municipality for construction of pirblic school in park fee of which city holds, see MUNICIPAL CORPORATIONS, 39. 502 COMPETENCY COM I'KO M I S K A X J ) S KIT LKMENT. To member of dissolved partnership for managing and selling real property, see PARTNERSHIP, 68, 69. To riparian owner whose access to water is cut off by improving navigation, see WATERS, '101-104. For taking of property, see EMINENT DO- MAIN, III. c. On abatement of nuisance, see NUISANCES, 125. Requiring physician or midwife to supply information without compensation, see CONSTITUTIONAL LAW, 638. COMPETENCY. Of commissioners in eminent domain pro- ceedings, see EMINENT DOMAIN, 160, 161. Of jurors, see JURY, II. b. Of witness, see WITNESSES, I. COMPETITION. Right of, not justification for inducing breach of contract, see CASE, 27. Contracts to restrain generally, see CON- SPIRACY, III.; CONTRACTS, III. e. Implied agreement by one selling business not to compete with buyer, see CON- TRACTS, 11. Withdrawal of, as consideration for agree- ment to pay money, see CONTRACTS, 88. Sufficiency of consideration for promise not to engage in competing business, see CONTRACTS, 79-82. Termination of contract not to compete in business, see CONTRACTS, 721, 722. Damages for breach of contract not to en- gage in competing business, see DAM- AGES, 120, 231. Injunction against breach of contract not to engage in competing business, see INJUNCTION, 70-78. By municipality with private business en- terprise, see CONSTITUTIONAL LAW, 384, 385. Prohibiting use and sale of one's property for purpose of destroying business of competitor, see CONSTITUTIONAL LAW, 462, 725. Injunction against business competition by wife, see INJUNCTION, 10. Injunction against combination to prevent, see INJUNCTION, 124-128. - a Combinations in restraint of, see MONOPOLY AND COMBINATIONS, II. For public contract, see PUBLIC IMPROVE- MENTS, 15, 16. Unfair competition, see UNFAIR COMPETI- TION. COMPLAINT. In criminal prosecution, see INDICTMENT, ETC. Digest 1-52 L.R.A.(N.S.) Of plaintiff, see PLEADING, II. Against architect as basis for revocation of license, see LICENSE, 36. COMPOUNDING CRIME. Enforcement of note given to compound felony, see Bnxs AND NOTES, 156. Illegality of contract for, see CONTRACFS, 493-495, 618, 619. Estoppel to maintain action to set aside contract for, see ESTOPPEL, 122. Sufficiency of indictment for, see INDICT- MENT, ETC., 15. COMPOUND INTEREST. See INTEREST, III. COMPRESS COMPANY. Provision in restraint of trade in lease by, see CONTRACTS, 554. Injunction against monopolistic lease by, see INJUNCTION, 128. Attempt to' control compress business, see MONOPOLY AND COMBINATIONS, 21. Imputing negligence of, to owner of cotton left with company to be baled, see NEG- LIGENCE, 255. COMPRESSED AIR. Failure to warn employees of danger from, see MASTER AND SERVANT, 748. As dangerous agency in hands of employee, see MASTER AND SERVANT, 892, 930, 931, 988; TRIAL, 232. COMPROMISE AND SETTLEMENT. Of suit, by attorney, see ATTORNEYS, 44-48, 52; JUDGMENT, 337. Of suit without consent of attorney, see ATTORNEYS, 76-86; CONTRACTS, 409, 467-470. Of claim for death, see DEATH, V. Of claim without consent of guaranty in- surer, see INSURANCE, 907-911, 916, 933. Of infant's cause of action, see INFANTS, 111, 112; JUDGMENT, 343. Of will contest, see WILLS, 107. By assignor of cause of action, see ASSIGN- MENT, 20. Bv surviving partner, see PARTNERSHIP, 77, 78. By trustee, of suits, without knowledge or consent of beneficiaries, see TRUSTS, 78. : . : COMPROMISE AND SETTLEMENT. 503 Attorney's power to hold stock to compel settlement of claim against client, see ATTORNEYS, 72. Basis for computing share of attorney en- titled to certain proportion of recovery on compromise of suit, see ATTOBNEYS, 84. As consideration for note, see BILLS AND NOTES, 30. Consideration for compromise agreement with injured employee, see CONTRACTS, 92. Validity of compromise of cause of action for criminal conversation, see CON- TRACTS, 494. Authority of assistant manager to compro- mise claim of injured employee, see CORPORATIONS, 145. Effect of settlement of main cause of dis- missal of proceeding for contempt, see DISMISSAL AND DISCONTINUANCE, 12. Evidence of attempt at, see EVIDENCE, 1319, 1320. Evidence of settlement with third person in action for personal injury, see EVI- DENCE, 1252. Settlement of action against one joint tort feasor as bar to action against other, see JOINT CREDITORS AND DEBTORS, II. Dismissal of suit based upon compromise, see JUDGMENT, 104. Settlement between partners, see PARTNER- SHIP, 59-64, 85, 86. With principal debtor after appointment of receiver, see RECEIVERS, 23. Question for jury as to voluntary compro- mise of claim, see TRIAL, 603. See Hso ACCORD AND SATISFACTION. 1. Failure to comply with the terms of a compromise by which an unliquidated claim for services is settled by a present payment of a sum less than demanded en- titles the creditor to retain what he has received and sue on his original demand. Shubert v. Rosenberger, 45: 1062, 204 Fed. 934, 123 C. C. A. 934. (Annotated) 2. The intention to compromise a doubt- ful right is not shown by a deed in which the grantor concedes that the grantee is entitled to a two-thirds interest in the property, the grantor claiming title only to the remaining third, although the deed recites that the grantor intends to convey the whole of her interest whatever it may be. Burton v. Haden, 15: 1038, 60 S. E. 736, 108 Va. 51. 3. Words of general release in an in- strument reciting that it was executed to carry into effect an agreement to com- promise and terminate litigation will be limited in their scope to the objects pro- vided for in the compromise agreement. Van Slyke v. Van Slyke (N. J. Err. & App.) 31: 778, 78 Atl. 179, 80 N. J. L. 382. Validity; when binding. Power of agent of public contractor to com- promise dispute with city as to amount due him, see ACCORD AND SATISFACTION, 19. Digest 1-52 L.R.A.(N.S.) Of suit by attorney, see ATTORNEYS, 44- 48, 52; JUDGMENT, 337. Of claim for death, see DEATH, V. Collateral attack on, see JUDGMENT, 143. 4. A compromise agreement in an ac- tion by one who has fraudulently secured letters of administration upon the estate of a person killed by another's negligence is not, if judgment is not entered before de- fendant receives notice of the fraud, binding upon the estate, so as to bind the true ad- ministrator appointed after the fraudulent administration has been set aside. Carr v. Illinois C. R. Co. 43: 634, 60 So. 277, 180 Ala. 159. (Annotated) 5. The giving of a promissory note for the amount of a bill for repairing an auto- mobile, to secure the release of an attach- ment thereon, constitutes a compromise and settlement of a dispute as to the amount of the bill, and precludes subse- quent denial of the claim upon the ground that the repairs were not properly made. Kendall v. Rossi, 45: 985, 87 Atl. 186, 35 R. I. 451. 6. An acknowledgment in writing that an amount received is all that is due, after a dispute as to what is due, is binding as a compromise. Earle v. Berry, i: 867, 61 Atl. 671, 27 R. I. 221. Relief from. Evidence in action to set aside compromise for fraud, see EVIDENCE, 1550. 7. The settlement of an account for a less amount than was due, because of a mu- tual mistake as to the state of the account, may be set aside and the true balance re- covered. Beck v. School Dist. No. 2, 46: 279, 131 Pac. 398, 54 Colo. 546. (Annotated) 8. An insurance company which, in or- der to avoid suit, pays the amount of a pol- icy on the life of one who has disappeared, upon demand of those entitled to recover in case of his death, is bound by its elec- tion, and cannot demand a return of the amount upon the reappearance of the in- sured. New York L. Ins. Co. v. Chitten- den, ii : 233, 112 N. W. 96, 134 Iowa, 613. (Annotated) "Withdrawal of offer. 9. In a -suit to enjoin the sale of prop- erty under a deed of trust, and to compel a release of the lien, the mortgagor cannot avail himself of an offer, made by the mort- gagee by way of compromise, to accept a specified sum in full of the claim, which was withdrawn a month later and before its acceptance by the mortgagor. Gillaspie v. Scottish Union & Nat. Ins. Co. n: 143, 56 S. E. 213, 61 W. Va. 169. Collateral attack on. 10. The validity of a compromise of, and stipulation to dismiss upon the merits, his client's cause of action, unauthori/edly made by an attorney after action had been brought, may be tested in a subsequent ac- tion upon the same cause brought through another attorney, wherein the defendant pleaded in bar the compromise and settle- ment, and the plaintiff replied that the settlement was unauthorized and fraudu- lently entered into by the attorney, where 504 COMPROMISE VERDICT CONCLUSIVENESS. the compromise and stipulation have not been followed by judgment. Gibson v. Nel- son, 31: 523, 120 N. W. 731, 111 Minn. 183. COMPROMISE VERDICT. As ground for new trial, see NEW TRIAL, 48-50. COMPULSORY EDUCATION. See INDICTMENT, etc., 53; SCHOOLS, 13, 14. COMPULSORY REFERENCE. See REFERENCE, 13-15. COMPULSORY SERVICE. By carrier, see CABBIEBS, IV. b. By electric light company, see ELECTRIC LIGHTS. By gas company, see GAS, II. By street car company, see STREET RAIL- WAYS, 12, 13. By telegraph company, see TELEGRAPHS, II. a, 1. By telephone company, see TELEPHONES, 7. By warehouseman, see WAREHOUSEMEN. Of water company, see WATERS, III. b, 2. Compelling corporation constructing sewer to permit connection therewith, see DRAINS AND SEWERS, 1. COMPULSORY VACCINATION. See HEALTH, III. b; SCHOOLS, 14, 16-18 COMPUTATION. Of time, see TIME, 5-9. CONCEALED WEAPONS. Forfeiture of, see FORFEITURE, 4. Homicide by one carrying, see HOMICIDE. 40. Death of insured while violating law pro- hibiting carrying of, see INSURANCE. 777. In general, see CARRYING WEAPONS, 4-8. Digest 1-52 L.R.A.(N.S.) CONCEALING ASSETS. Production of bankrupt's books as infring- ing privilege against self-crimination, see CRIMINAL LAW, 117, 118. Impeaching witness by showing conviction for fraudulently concealing property from trustee in bankruptcy, see WIT- NESSES, 162. CONCEALMENT. Of assets, see CONCEALING ASSETS. As a fraud, see FRAUD AND DECEIT, II. Effect of, on validity of insurance policy, see INSURANCE, 200. Effect of, on running of limitations, see LIMITATION OF ACTIONS, II. e. By manufacturer of defects in articles sold, see NBGLIGENCE, 49, 50, 52, 53. CONCERT HALLS. Prohibiting employment of children in, see INFANTS, 6-8. CONCESSIONARIES. At places of amusement, liability for negli- gence of, see AMUSEMENTS, 11, 12; MASTER AND SERVANT, 994. CONCILIATION BOARD. Delegation of power to, see CONSTITUTION- AL LAW, 124. In general, see ARBITRATION. CONCLUSIONS. Admissibility in evidence, see EVIDENCE, VII. In indictment, see INDICTMENT, ETC., 55. Averment of, see PLEADING, I. f. CONCLUSIVENESS. Of judgment on appeal, see APPEAL AND ERBOR. VIII. e. Of bill of lading in hands of transferee, see BILLS OF LADING, 7. Of architect's certificate, see CONTRACTS, 677-680. Of decision of trustees of police pension fund, see COURTS, 194. Of certificate of nomination, see COURTS, 224. Of decisions of associations, ecclesiastical tribunals, etc., see COURTS, I. d. Of judgment generally, see JUDGMENT, II. CONCRETE CONDITION. 505 Of decision of one offering reward in prize contest, see PRIZE CONTEST, 4. Of findings of referee, see REFERENCE, 19. CONCRETE. Lien for material used for molds for con- crete work, see MECHANICS' LIENS, 25- 27. CONCURRENT JURISDICTION. Over waters of boundary river, see COURTS, 19. Over criminal offenses, see CRIMINAL LAW, III. CONCURRENT NEGLIGENCE. Of master and fellow servant, see MASTER AND SERVANT, II. e, 3. In general, see NEGLIGENCE, 26, 27. CONCURRENT PROCEEDINGS. Against accused, see CRIMINAL LAW, II. e. CONCURRENT REMEDIES. See ELECTION OF REMEDIES. CONCURRING CAUSES. Of injury on highway, see HIGHWAYS, 164, 199-201. Of death, see HOMICIDE, 52-56. CONCUSSION. Injury by concussion of air caused by blast- ing, see BLASTING, 7. CONDEMNATION. Of property, see EMINENT DOMAIN. CONDITION. Precedent to suit generally,* see ACTION OR SUIT, I. b. To taking of appeal, see APPEAL AND ERROR, III. d. Digest 1-52 L.R.A.(N.S.) To payment of deposit in savings bank, see BANKS, 233, 234, 237. To issuance of railroad aid bonds, see BONDS, 81, 82. To issuance of municipal bonds, see BONDS, III. b, 4. To right to paid-up insurance policy after forfeiture, see CONTRACTS, 443. To subscription to corporate stock, see CORPORATIONS, 204, 205. To enforcement of stockholder's liability, see CORPORATIONS, 365-369. To right of foreign corporation to do busi- ness in state, see CORPORATIONS, 423- 429. To right of married woman to rescind con- veyance, see EJECTMENT, 24, 25. To maintenance of action against munici- pality for injury on highway, see HIGHWAYS, 155. To right to cancel insurance contract, see INSURANCE, 434-444. To bringing of action on insurance policy, see INSURANCE, VI. a. To revocation of license, see LICENSE, 12. To mandamus suit, see MANDAMUS, 100. To master's liability, see MASTER AND SERV- ANT, 186-191. To right to attack title of purchaser at fore- closure sale, see MORTGAGES, 131. To liability of municipality on claims, see MUNICIPAL CORPORATIONS, II. g, 5. To surety's liability, see PRINCIPAL AND SURETY, 7-11. To raising fund for erection of sch'ool build- ing, see PUBLIC MONEYS, 1. To entrance into state college, see STATE INSTITUTIONS, 1, 2, 4. To 'supplying water to tenant, see WATERS, 425, 426. Of attorney's right to rescind contract with client, see ATTORNEYS, 35. Of stockholder's right to maintain action, see CORPORATIONS, 279-284. Of right to carry on liquor business, see IN- TOXICATING LIQUORS, I. b. Of continuance in employment, see MASTER AND SERVANT, 112. Of sale, see SALE, I. c. Of revocation of grant of land by state, see STATE, 2. Of right to appeal to courts for reduction of tax, see TAXES, 200. Of right to extension of time for removal of timber, see TIMBER, 7. Of right to rescind land contract, see VEND- OR AND PURCHASER, 76. Of guardian's right to elect for insane widow between will and dower, see WILLS, 362. In railroad tickets, see CARRIERS, II. m. In pass, see CARRIERS, II. m, 3. In street car transfer, see CARRIERS, 653, 654. In option to purchase underlying coal, see CONTRACTS, 168. In pardon, see CRIMINAL LAW, IV. h, 2. In restraint of marriage, see CONTRACTS, 472-476. In contract, see CONTRACTS, IV. d. For rescission of contract, see CONTRACTS, V. c, 2. 506 CONDITIONAL FEE CONDUITS. In lease of railroad, not to raise freight rates, see CORPORATIONS, 275. In pardon, see CRIMINAL LAW, IV. h, 2. In insurance contract, see INSURANCE, III. e, VI. a. In oil and gas lease, see MINES, 60. In telegram, see TELEGRAPHS, II. d. In will, see WILLS, III. g, 4. In terrorem, see WILLS, 281. Attached to charitable gift, see CHARITIES, I. c. On sale of goods for resale, that purchaser shall not handle goods of other deal- ers, see CONSTITUTIONAL LAW, 499. As to dower in conditional estate, see Dow- EE, 18. Attached to gift to city, see MUNICIPAL CORPORATIONS, 305. Relating to real property, see COVENANTS AND CONDITIONS. Distinction between covenant and condition, see COVENANTS AND CONDITIONS, 4-10. Binding effect of conditions of sale an- nounced by auctioneer, see AUCTION, 5. Making deposit for benefit of another sub- jest to condition, see BANKS, 59. Defeating action on note by showing fail- ure to comply with, see BILLS AND NOTES, 122, 204. Ejectment on breach of condition subsequent where plaintiff is out of possession, see EJECTMENT, 11. Right to compensation of grantor of estate upon condition where property is tak- en for public use, see EMINENT DO- MAIN, 251. Burden of proof as to performance of, see .EVIDENCE, 543, 549. Parol evidence of, see EVIDENCE, VI. i.' Sufficiency of evidence to admit proof of, see EVIDENCE, 2430. Imposing conditions on resale of patented article, see PATENTS, IV. Limiting costs as condition to permitting amendment of pleading, see PLEADING, 91. Necessity of pleading specially condition subsequent, see PLEADING, 470. As to terms of resale of article sold, see SALE, 181, 182. CONDITIONAL FEE. In general, see DEEDS, 77, 78. Levy on, see LEVY AND SEIZURE, 12. Devise of, see WILLS, 242-247. CONDITIONAL LIMITATIONS. See WILLS, III. g, 6. CONDITIONAL PARDON. See CRIMINAL LAW, IV. h, 2. Digest 1-52 L.R.A.CN.S.1 CONDITIONAL PAYMENT. By giving check, see PAYMENT, 7. CONDITIONAL SALES. Of real estate, see INSURANCE, 824; VENDOR AND PURCHASER, 74, 86. Of personalty, see SALE, I. c. CONDITION PRECEDENT. In general, see COVENANTS AND CONDI- TIONS, 11-13. CONDITION SUBSEQUENT. In general, see COVENANTS AND CONDITIONS, 11-13, 40, 41, 43. In will, see WILLS, III. g, 4. CONDONATION. Of assault and trespass, see ASSAULT AND BATTERY, 29. Of cause for divorce, see CONTRACTS, 121 ; DIVORCE AND SEPARATION, 72-78. Of cruelty as ratification of conveyance ob- tained by, see HUSBAND AND WIFE, 103. CONDUCT, row Estoppel by, see ESTOPPEL, III. e. CONDUCTOR. Custom of, see CARRIERS, 14. Authority to employ servant, see MASTER AND SERVANT, 4, 5. Authority to employ physician, see MASTER AND SERVANT, 9. Contributory negligence of, see MASTER AND SERVANT, II. c. CONDUITS. In highways, see HIGHWAYS, 51-57; LIMI- TATION OF ^ACTIONS, 70. Injunction to "prevent interference with, see INJUNCTION, 369. Injury to child because of unguarded con- duit, see NEGLIGENCE, 171. - '''.-' A.J1.J SO I v CONFECTIONERY- CONFLICT OF LAWS. CONFECTIONERY. CONFIRMATION. 507 Adulteration of, see CONFLICT OF LAWS, 101. CONFEDERATE SOLDIERS. Pensions to, see PUBLIC MONEYS, 12. CONFESSION. Evidence of generally, see EVIDENCE, VIII. Sufficiency of corroboration of, see EVI- DENCE, 2352, 2353. Admissibility of extra judicial confession by stranger, see EVIDENCE, 1404. Instructions as to weight and value of, see TBIAL, 911. Judgment by, see JUDGMENT, I. b. CONFIDENCE GAME. See FALSE PRETENSES, 17. CONFIDENTIAL ADVISER. Presumption of fraud in case of convey- ance to, see EVIDENCE, 269. CONFIDENTIAL COMMUNICA- TIONS. See PBIVILEGED COMMUNICATIONS. CONFIDENTIAL RELATIONS. Between corporation and its officers, see CORPORATIONS, IV. g, 4. Burden of establishing, see EVIDENCE, 115, 116, 268. Presumptions from, see EVIDENCE, 115, 116, 268, 269. Fraud in abuse of, see FRAUD AND DECEIT, 3. What constitutes confidential relation which will sustain parol promise to hold property conveyed in trust, see TRUSTS, 52. CONFINEMENT. Manslaughter in failing to furnish medical assistance during, see HOMICIDE, 14. As personal ailment, see INSURANCE, 344. As to miscarriage, see MISCARRIAGE. Of convicted criminal, see CRIMINAL LAW, IV. Of lunatic, see INCOMPETENT PERSONS, IV. Digest 1-52 L,.R.A.(N.S.) Of land grant, what constitutes, see CON- TRACTS, 374, 375. Of judicial sale, see JUDICIAL SALE, IV. Of foreclosure sale, see MORTGAGES, VI. g, 5. Of appointment to office, see OFFICERS, 21, 38. CONFISCATION. By regulation of carrier's rates, see CAR- RIERS, 1037, 1044; COURTS, 250; JURY, 14. By requiring carrier to maintain station at certain place, see CARRIERS, 1083. In exercise of power to repeal corporate charter, see CONSTITUTIONAL LAW, 361. Of gambling devices, see CONSTITUTIONAL LAW, 370, 609, 652. Of property of water company, see CONSTI- TUTIONAL LAW, 421. Of fishing net, see CONSTITUTIONAL LAW, 610. Of milk, see CONSTITUTIONAL LAW, 612, 613. Of private property, jurisdiction of suit to prevent, see COURTS, 231. By regulation of gas rates, see EMINENT DO- MAIN, 222; GAS, 10, 27. Of estate of one dying intestate without heirs, see ESCHEAT. CONFLICT OF LAWS. I. As to rights, 1131. a. In general, 1, 2. Z>. As to contracts; insurance, 3 63. 1. In general, 317. 2. Negotiable instruments; bonds; mortgages; loans; interest, 1839. 3. Insurance matters, 4O 47. 4. Carriers' contracts, 48 55. 6. As to telegrams, 5658. 6. Of married man or wom- an, 59, 6O. a. Of married man. b. Of married woman, 59, 6O. 7. Of infants, 61-63. c. Status; marriage; domestic re- lations; legitimation, 6483. d. Corporate matters, 8489. 1. In general, 84, 85. 2. Liability of officers and stockholders, 8689. a. Officers, 86, 87. b. Stockholders, 88, 89. e. Torts and crimes generally, 90-1O2. 1. Torts generally; personal injuries, 9O93. 2. Death, 94-1OO. 3. Crimes, 1O1, 1O2. 508 CONFLICT OF LAWS, I. a, b, 1. /. continued. f. Iiutol venci/ ; assignments for creditors, 1O3. g. Jtights in property generally, 1O411O. h. Transfers of property gener- ally, 111-^15. i. Chattel mortgages; condition- al sales; leases of personalty, 116-118. j. Descent and distribution; wills, 11913 i. 77. Remedies, 132165. As to validity of claims against bankrupt's estate, see BANKRUPTCY, 126. As to jurisdiction over nonresidents, general- ly, see COURTS, I. b.f .s-Msf* As to conflict of authority between courts, see COURTS, IV. How common law of other state determined, see COURTS, 313-315. Right of country of dbmicil to personalty left in another jurisdiction by person dying intestate and without heirs, see ESCHEAT, 1. Judicial notice of foreign laws, see EVI- DENCE, 3, 4. Admissibility of judgment of other state, see EVIDENCE, 770. Federal decision as evidence of law of state in which court is sitting, see EVIDENCE, 771. Presumption as to law of other state or country, see EVIDENCE, II. a. Action by foreign administrator, see EXECU- TORS AND ADMINISTRATORS, 91, 92. Situs of debt for purpose of garnishment, see GARNISHMENT, I. d. As to validity and effect of foreign judg- ment, see JUDGMENT, IV. Necessity of pleading law of other state, see PLEADING, 59-63. Powers and rights of foreign or ancillary re- ceivers, see RECEIVERS, VI. Question for court as to what law of other state is, see TRIAL, ]58. As to venue of action, see VENUE. 7. As to rights. a. In general. -itto'if *to uum fo*ivtvut \O -f> (See also same heading in Digest L.R.A. 1-70.) 1. A statute authorizing a recovery back of money paid for intoxicating liquors can have no application to sales made out of the state. Hamilton v. Joseph Schlitz Brewing Co. 2: 1078, 105 N. W. 438, 129 Iowa, 172. 2. A state statute providing that a cause of action which has accrued under or by virtue of the laws of any other state or territory may be sued upon in any of the courts of the state, by the person or persons who are authorized to bring and maintain the action thereon in the state or territory where the same arises, merely prescribes the persons who may sue, and does not enlarge the cause of action. Rochester v. Wells, Digest 1-52 L.R.A. (N.S.) Fargo, & Co. Express, 40: 1095, 123 Pac. 72!, 187 Kan. 164. JWVsaJ 99 ,io uoiji-tj[j;i)/. b. As to contracts; insurance. 1. In general. (See also same heading in Digest L.R.A. 1-10.) As to statute of frauds, see infra, 136, 137. As to transfers of property generally, see infra, I. h. Enforcement of contract of corporation in- corporated in several states, see CORPO- RATIONS, 9, 10. As to validity of Sunday contracts, see SUN- DAY, 23. 3. The law of the place where a contract of sale is to be performed will be applied to the interpretation of a provision that per- formance shall be satisfactory to the buyer, and rot that of the residence of the seller, or of the place where the contract was ne- gotiated. Inman Mfg. Co. v. American Ce- real Co. 8: 1140, 110 N. W. 287 ? 133 Iowa, 71. 4. An agreement in a deed whereby the grantee assumes and agrees to pay an ex- isting mortgage on the land conveyed is a personal contract, and is governed by the laws of the state in which the deed is exe- cuted and delivered and in which the parties reside, rather than by the laws of another state in which the land conveyed is situated. Clement v. Willett, 17: 1094, H7 N. W. 491, 105 Minn. 267. (Annotated) 5. The acceptance, by subscribers, of an offer by a foreign corporation to sell its stock in the state of their residence, com- pletes the contract there. Southwestern Slate Co. v. Stephens, 29: 92, 120 N. W. 408, 139 Wis. 616. 6. The statute of a state where the ac- tion is brought to recover damages for in- juries to an employee, making void unrea- sonable contracts for notice of the injury- to the employer as a condition to maintaining an action in such cases, is not applicable to affect a contract valid in the sister state where made, and in that where the injury occurred, in the absence of anything to dis- close a legislative intent to make it appli- cable to such contracts. Chicago, R. I. & P. R. Co. v. Thompson, 7: 191, 97 S. W. 459, 100 Tex. 185. (Annotated) 7. A statute forbidding the employment of children applies to work done within the state under a contract executed in another state by persons residing there. Common- wealth v. Griffith, 25: 957, 90 N. E. 394, 204 Mass. 18. Public policy. See also infra, 62, 63. 8. A plea of acceptance of benefits from the relief department, which under the con- tract of employment operates as a release, as a defense to an action by an employee against a railroad company for negligent injuries, which contract is valid in the state where made, does not constitute a use of the contract as a weapon rather than as a CONFLICT OF LAWS, I. b, 2. 509 shield, so as to be inadmissible in a suit in another state, on the theory that the con- tract is against its public policy. Canna- day v. Atlantic Coast Line R. Co. 8: 939, 55 S. E. 836, 143 N. C. 439. 9. A decision of the courts of another state in which a contract by an employee that the acceptance of a beneh't from the re- lief department will preclude a suit against the employer for negligent injury is made, construing it as requiring of the employee an election, so that in case he accepts bene- fits he cannot bring suit, is binding in an- other state, and therefore the contract can- not be ignored in a suit brought there, as exempting the employer from liability for negligence, contrary to public policy. Can- naday v. Atlantic Coast Line R. Co. 8: 939, 55 S. E. 836, 143 N. C. 439. 10. The courts of one state are not, on the ground of comity, required to refuse to enforce payment of a life-insurance policy because insured was executed for felony, merely because it would be against the pub- lic policy of the state where the conviction was had, to permit a recovery. Collins v. Metropolitan L. Ins. Co. 14:356, 83 N. E. 542, 232 111. 37. 11. The courts of a state in which a con- tract by a railroad company to give the exclusive right to use its cars for advertis- ing purposes is against public policy will not enforce it, although it is valid by the laws of the state where the company was organized. National Car Advertising Co. v. Louisville & N. R. Co. 24: 1010, 66 S. E. 88, 110 Va. 413. 12. A provision in an insurance policy requiring suit to be brought within a year after death of insured, which is valid in both the state where the insurer resides and that where the insured resides, will be enforced by the courts of a third state in which the insured dies and where suit is brought, although it is contrary to the pub- lic policy of that state and void there. Clarey v. Union Central L. Ins. Co. 33: 881, 136 S. W. 1014, 143 Ky. 540. 13. The courts of a state where gam- bling transactions are illegal will not en- force a contract growing out of such trans- action made in another state, even though the transaction is valid there. Burrus v. Witcover, 39: 1005, 74 S. E. 11, 158 N. C. 384. 14. Under the English statutes which de- clare that all notes, bills, bonds, judgments, mortgages, or other securities or convey- ances whatsoever, the consideration for which shall be any money or other valuable thing won by gaming or betting, or for the reimbursing or repaying any money know- ingly lent or advanced for such gaming or betting, shall be deemed to have been given for an illegal consideration, an action can- not be maintained on a check given partly in return for money advanced for .the pur- pose of playing at a gambling game, and partly in discharge of gambling debts, though by the law of the place where the check was given and where the indebtedness was incurred its consideration was a lawful Digest 1-52 L.R.A.(N.S.) one. Moulis v. Owen, 4 B. R. C. 352, [1907] 1 K. B. 746. Also Reported in 76 L. J. K. B. N. S. 396, 96 L. T. N. S. 596, 23 Times L. R. 348. 15. The English statutes which declare that all notes, bills, bonds, judgments, mort- gages, or other securities or conveyances whatsoever, any part of the consideration of which shall be for any money or other valu- able thing won by gaming or betting, or for the reimbursing or repaying any money knowingly lent or advances for such gaming or betting, shall be deemed to have been given for an illegal consideration, render void only the security, and not the con- sideration, and so do not preclude the recov- ery of money lent in a foreign country for the purpose of being used by the borrower for gaming, the gaming not being illegal by the law of that country. Saxby v. Ful- ton, 4 B. R. C. 381, [1909] 2 K. B. 208. Also Reported in 78 L. J. K. B. N. S. 781, 101 L. T. N. S. 179, 25 Times L. R. 446, 53 Sol. Jo. 397. 16. It is not contrary to public policy for the English courts to recognize a debt contracted for the purpose of gaming abroad in a place where such gaming is legal. Sax- by v. Fulton, 4 B. R. C. 381, [1909] 2 K. B. 208. Also Reported in 78 L. J. K. B. N. S. 781, 101 L. T. N. S. 179, 25 Times L. R. 446, 53 Sol. Jo. 397. (Annotated) 17. The English courts will not enforce a foreign contract, though valid by the law of the country in which it was made, in cases where the court deems the contract to be in contravention of some essential prin- ciple of justice or morality. Kaufman v. Gerson, 4 B. R. C. 414, [1904] 1 K. B. 591. Also Reported in 73 L. J. K. B. N. S. 320, 52 Week. Rep. 420, 90 L. T. N. S. 608, 20 Times L. R. 277. 2. Negotiable instruments; bonds; mortgages; loans; interest, (See also same heading in Digest L.R.A. 1-10.) Bills and notes generally. Notes given for gambling debt, see supra, 14, 15. Notes by married women, see infra, 59, 60. Draft with bill of lading attached, see infra, 112, 113. Running of limitations on, see infra, 149, 151, 152. Following decisions of courts of other states, see COURTS, 315. 18. The mailing in one state of a note to a bank in another state, for negotiation and acceptance, renders the bank's place of business the place of contract, when it ac- cepts the note and advances the money upon it; especially if it is dated there. Navajo County Bank v. Dolson, 41: 787, 126 Pac. 153, 163 Cal. 485. 19. W 7 hether or not a note is negotiable is determined by the law of the place where it is made, and not by that of the forum. Navajo County Bank v. Doison, 41: 787, 126 Pac. 153, 163 Cal. 485. 510 CONFLICT OF LAWS, I. b, 2. 20. In the absence of stipulations evin- cing a different intention, the negotiable quality of a promissory note made in one state and payable in another will be de- termined by the laws of the latter. Sykes v. Citizens' Nat. Bank, 19: 665, 98 Pac. 206, 78 Kan. 688. (Annotated) 21. Where a mortgage on land in Okla- homa, given to secure a note payable in Kansas, provided that both note and mort- gage should be governed and construed ac- cording to the laws of Oklahoma territory, the question of the negotiability of the note will be determined by the same rule as if it had been both executed and payable in Oklahoma territory. Bell v. Riggs, 41: mi, 127 Pac. 427, 34 Okla. 834. 22. The law of the place where com- mercial paper is payable governs the days of grace, the time and the manner of making the presentment, the demand, and the pro- test and of giving the notice of dishonor. Guernsey v. Imperial Bank, 40: 377, 188 Fed. 300, 110 C. C. A. 278. 23. The manner of giving and the suffi- ciency of a notice of dishonor, in a case where commercial paper is indorsed in one jurisdiction and is payable in another, is governed by the law of the place where it is payable. Guernsey v. Imperial Bank, 40: 377, 188 Fed. 300, 110 C. C. A. 278. 24. An instrument in the form of an order upon parties in Austria for the pay- ment of money to the order of designated persons, drawn, indorsed, and transferred in New York, and which is within the defi- nition of a foreign bill of exchange in the New York negotiable instrument law, is to be treated as such so far as concerns the obligation to cause protest and notice of presentment and nonpayment as a condition of holding the drawer and indorser, al- though, according to the law of Austria, it may have the character of a "commer- cial order," for the payment of money of which no protest need be made. Amsinck v. Rogers, 12: 875, 82 N. E. 134, 189 N. Y. 252. 25. The obligation to cause protest and notice of presentment and nonpayment in order to fix the liability of the drawers of a bill of exchange upon parties in Austria, drawn, indorsed, and transferred in New York, is governed by the law of New York, rather than by the law of Austria. Am- sinck v. Rogers, 12: 875, 82 N. E. 134, 189 N. Y. 252. 26. The drawer of a foreign bill of ex- change does not contract to pay the money in the foreign place on which it is drawn, but only guarantees its acceptance and pay- ment in that place by the drawee, and agrees, in default of such payment, upon due notice, to reimburse the holder in prin- cipal and damages at the place where he entered into the contract. His contract is regarded as made at the place where the bill is drawn, and, as to its form, and na- ture, and obligation, and effect, is gov- erned by the law of that place in regard to the payee and any subsequent holder. Am- Digest 1-52 L,.R,.A.(N.S.) sinck v. Rogers, 12: 875, 82 N. E. 134, 18$) N. Y. 252. Validity. i 27. The validity of a power of attorney to confess judgment inserted in a note exe- cuted in one state by its citi/.en, but pay- able in another state, is to be determined by the law of the former, and if by its law such power is invalid when combined with a note, a judgment entered upon it in the state where the note is payable is void, and will not be enforced by the courts of the state where the note was made. Acme Food Co. v. Kirsch, 38: 814, 131 N. W. 1123, 166 Mich. 433. (Annotated) 28. An agreement by a woman that in consideration of the plaintiff's forbearance to prosecute her husband for a misappropri- ation of money intrusted to him, she will within a certain period repay the amount misappropriated, which agreement she was induced to sign by threats to prosecxite her husband, so contravenes the essential prin- ciples of justice and morality that English courts will not lend their aid to enforce it, although by the law of "the country where the parties were domiciled and where the agreement was made it is not invalid as hav- ing been obtained by duress or undue influ- ence. Kaufman v. Gerson, 4 B. R. C. 414, [1904] 1 K. B. 591. Also Reported in 73 L. J. K. B. N. S. 320, 52 Week. Rep. 420, 90 L. T. N. S. 608, 20 Times L. R. 277. (Annotated) 29. A check is governed, in respect to the validity of its consideration, by the law of the place where it is payable, rather than by the law of the place where it was given and where the obligation it is intended to discharge was incurred. Moulis v. Owen, 4 B. R. C. 352, [1907] 1 K. B. 746. Also Re- ported in 76 L. J. K. B. N. S. 396, 96 L. T. N. S. 596, 23 Times L. R. 348. (Annotated) Suretyship on note. Presumption as to common law of other state, see EVIDENCE, 78. See also infra, 60. 30. The merits of a defense interposed by a surety in a suit against him in one state on a promissory note made in an- other, setting up a discharge because of the failure of the payee of the note to sue the principal debtor after verbal notice to sue, .will be determined by the laws of the state where the contract was made. Thomas v. Clarkson, 6: 658, 54 g. E. 77, 125 Ga. 72. Indorsement. 31. The rule of international law, that the validity of a transfer of movable chat- tels must be governed by the law of the country in which the transfer takes place, applies to the transfer of bills of exchange or cheques by indorsement. Embiricos v Anglo- Austrian Bank, 2 B. R. C. 294, [1905] 1 K. B. 677. Also Reported in 74 L. J. K. B. N. S. 326, 53 Week. Rep. 300, 92 L. T. N. S. 305, 21 Times L. R. 268, 10 Com. Cas. 99. ( Annotated ) 32. One who claims title to the proceeds of a cheque through an indorsee who has taken it in good faith upon an indorsement CONFLICT OF LAWS, I. b, 3. 511 which, being forged, is under the law of the forum wholly inoperative, but which, under the law of the place where the transfer was made, is effectual to pass title to one pur- chasing for value in good faith and without gross negligence, cannot be held liable for conversion. Embiricos v. Anglo- Austrian Bank, 2 B. R. C. 294, [1905] 1 K. B. 677. Also Reported in 74 L. J. K. B. N. S. 326, 53 Week. Rep. 306, 92 L. T. N. S. 305, 21 Times L. R. 268, 10 Com. Gas. 99. ' 33. The provisions of an English statute making a forged indorsement ineffectual to pass title to a negotiable instrument is declaratory of English law only, and does not control the general rule of international law that the validity of a transfer of mov- able chattels must be governed by the law of the country in which the transfer takes place. Embiricos v. Anglo-Austrian Bank", 2 B. R. C. 294, [1905] 1 K. B. 677. Also Reported in 74' L. J. K. B. N. S. 326, 53 Week. Rep. 306, 92 L. T. N. S. 305, 21 Times L. R. 268, 10 Com. Gas. 99. 34. Semble that the indorsement of a bill of exchange in a foreign country, valid under the foreign law but invalid under Eng- lish law, would be effectual to give the in- dorsee a good title to the bill as against the drawer or acceptor. Per Vaughan Williams, L. J., in Embiricos v. Anglo- Austrian Bank, 2 B. R. C. 294, [1905] 1 K. B. 677. Also Re- ported in 74 L. J. K. B. N. S. 326, 53 Week. Rep. 306, 92 L. T. K S. 305, 21 Times L. R. 268, 10 Com. Gas. 99. 35. The laws of the place where the in- dorsement of a promissory note is signed or is delivered so that it becomes a contract govern the validity and extent of the con- tract, and therefore the necessity of some presentment, demand, protest, and notice of dishonor. Guernsey v. Imperial Bank, 40: 377, 188 Fed. 300, 110 C. C. A. 278. Rates of interest; usury. Presumption as to law of other state, see EVIDENCE, 82. See also infra, 134. 36. In an action upon a promissory note made in another state, it will be presumed, in the absence of evidence to the contrary, that the right to interest in the state in which the contract was made is governed by the common law, under which the tak- ing of interest was lawful ; and, where the parties contracted for the payment of inter- est, it will be upheld if reasonable in amount and not violative of the policy of the state of the forum. Thomas v. Clark- son, 6: 658, 54 S. E. 77, 125 Ga. 72. 37. A mortgage of land to secure a note executed in another state is not invalid un- der a statute avoiding all conveyances whereby shall be secured illegal interest, where the interest reserved is legal in the state where the note is executed and the parties reside, although usurious by the law of the state where the land is located. Man- hattan L. Ins. Co. v. Johnson, 9: 1142, 80 N. E. 658, 188 N. Y. 108. 38. A contract valid by the laws of the state where it is made and to be performed is not rendered subject to the usury laws of Digest 1-52 L,.R.A.(N.S.) another state by the fact that it is secured by mortgage on land there situated, and to whose courts it is necessary to resort to enforce the mortgage. Bank v. Doherty, 4: 1 191, 84 Pac. 872, 42 Wash. 317. (Annotated) 39. A general law of the state where a corporation is organized, depriving it of the benefit of the usury hvvs, dees not follow it into another state where it is authorized to do business, so as to prevent it from tak- ing advantage of the local statute against usury in an action to foreclose a mortgage executed and to be performed in that state and secured upon lands there situated. Stack v. Detour Lumber & C. Co. 16: 616, 114 N. W. 876, 151 Mich. 21. (Annotated) 3. Insurance matters. (See also szme heading in Digest L.R.A. 1-10.) Public policy against enforcing payment of insurance, see supra, 10. 40. The place where a contract of in- surance between parties in different juris- dictions is entered into is the place where the last act is done that is necessary to the validity of the contract. McElroy v. Metropolitan L. Ins. Co. 23: 968, 122 N. W. 27, 84 Neb. 866. 41. An insurance policy issued to a resi- dent of one state, upon an application there made, by a company located in another state, is a contract of the former, where the application provides that the contract shall not be in force until the actual payment to and acceptance of the premium by an au- thorized agent of the insurer, which condi- tion is met by payment to an agent located where the applicant resides. Davis v. New York L. Ins. Co. 41: 250, 98 N. E. 1043, 212 Mass. 310. 42. A policy of life insurance, though executed at the company's office in Wiscon- sin, is a Virginia contract, where the ap- plication was made by a resident of the latter state at a place in that state, and the policy was delivered to him there, when he gave his note for the premium, which was payable at that place, and subsequent- ly paid there, the policy providing that it should not take effect until the first prem- ium should be actually paid. Northwestern Mut. L. Ins. Co. v. McCue, 38: 57, 32 Sup. Ct. Rep. 220, 223 U. S. 234, 56 L. ed. 419. 43. Handing an application and fee to the agent of an insurance company in one state, to be forwarded to the insurer in an- other state, does not render the former state the place of contract, although the policy is returned to the applicant in that state by mail, where the by-laws of the insurer pro- vide that the association shall not be liable in any manner until the directors have ac- cepted the application and a certificate has been issued, since the contract is complete when the policy is placed in the mail, in the absence of anything requiring personal de- livery. Tuttle v. Iowa State Traveling CONFLICT OF LAWS, I. b, 4, 5. Men's Asso. 7: 223, 104 N. W. 1131, 132 Iowa, 652. 44. The contract evidenced by a mutual- benefit certificate issued by a branch of the order located in the state where the member resides, countersigned by the officers of such branch and delivered at the place of his residence, is governed by the law of that state, although the association is organized under the laws of another state. Dolan v. Supreme Council C. M. B. A. 13: 424, 113 N. W. 10, Mich. . Assignment. 45. The right of an insured to assign a policy of life insurance of which his wife is the beneficiary is to be determined by the law of the state by which the contract of insurance is governed, rather than by that of the state in which the assignment is .executed, where the right to assign such a policy is in the latter state denied, not on grounds of public policy, but on the ground that the husband has no property in the policy, at least where the insured is not domiciled in that state. Northwestern 21ut. L. Ins. Co. v. Adams, 52: 275, 144 N. W. 1108, 155 Wis. 335. (Annotated) Notice before forfeiture. 46. An insurance contract entered into in the state by a foreign insurance company, which does not contain a provision that the laws of the foreign state shall govern, is not subject to a provision of a statute of such foreign state requiring a notice to be mailed to the policy holders in that state as a condition of forfeiture for nonpay- ment of premiums. McElroy v. Metropoli- tan L. Ins. Co. 23: 968, 122 N. W. 27, 84 Neb. 866. (Annotated) Rights of claimants nnder policy. 47. The law of the place where the con- tract is made will govern the question whether or not breach of the iron-safe clause invalidates an insurance policy as to fix- tures as well as goods covered by it. ^Etna Ins. Co. v. Mount, 15: 471, 44 So. 162, 45 So. 835, 90 Miss. 642. 4. Carriers' contracts. (See also same heading in Digest L.R.A. 1-10.) See also supra, 11. 48. The nature, validity, and interpreta- tion of that portion of a contract for trans- portation of property from one state to another, which relates to the safe transpor- tation from the point of receipt to the point of destination, are to be determined by the law of the former state, if the contract was made there, unless there is evidence that the parties intended that a different rule should apply. Gilliland v. Southern R. Co. 27: 1106*, 67 S. E. 20, 85 S. C. 27. Contract made on Sunday. 49. That the carrying of an animal on Sunday is legal in the state where the service is to be performed does not validate a contract therefor made on that day in another state whose laws forbid the making Digest 1-52 JL.R.A.(N.S.) of such contracts on that day. Lovell v. Boston & M. R. Co. 34: 67, 78 Atl. 621, 75 N. W. 568. (Annotated) 50. A carriage contract containing a limitation of liability clause, which is void at the place where it is made because exe- cuted on Sunday, cannot be declared valid and enforced because a portion of the serv- ice was to be performed in another state where it would have been valid, and where the injury for \vhich the carrier is sought to be held liable occurred. Lovell v. Boston & M. R. Co. 34: 67, 78 Atl. 621, 75 N. H. 568. Extraterritorial effect of regulation of public-service commission. 51. A rule of a public-service commis- sion, fixing the maximum sum for which a railroad company shall be liable in case of loss of baggage, does not apply to losses occurring in other states. Hasbrouck v. New York C. & H. R. R. Co. 35: 537, 95 N. E. 808, 202 N. Y. 363. Limiting liability. See also supra, 50. 52. The courts of one state will not give effect to provisions of a contract for car- riage terminating within its Jimits, which limit the carrier's liability for negligent in- jury to the property, contrary to the pub- lic policy of the state, although the con- tract is valid according to the laws of the state where it was made, and the carriage begun in another state. Carstens Packing Co. v. Southern P. Co. 27: 975, 108 Pac. 613, 58 Wash. 239. 53. The state in which the accident oc- curs will not enforce the provision of a car- rier's contract, valid -here made, exempting it from liability therefor, where such con- tract is contrary to its public policy. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. (Annotated) 54. A contract by which a railroad com- pany attempts to relieve itself from its common-law liability for negligent injuries to express messengers will not be enforced in a stato where the accident occurs, where it is forbidden by its Constitution, although it was made in another state, especially if it was also forbidden by the s' .tutes of the latter. Davis v. Chesapeake & 0. R. Co. 5: 458, 92 S. W. 339, 122 Ky. 528. 55. A contract to transport goods from one state and deliver them in another is to be performed in the latter, so as to be subject to its laws as to the validity of a provision limiting the carrier's liability for breach. Southern Exp. Co. v. Gibbs, 18: 874, 46 So. 465, 155 Ala. 303. (Annotated) 5. As to telegrams. (See also same heading in Digest L.R.A. 1-10.) 56. The liability of a telegraph company in tort for error in the transmission of a message is governed by the law of the state where the message originated. M. M. Stone & Co. v. Postal-Teleg. Co. 29: 795, 76 Atl. 762, 31 R. I. 174. (Annotated) CONFLICT OF LAWS, I. b, 6, c. 513 57. The sending of a telegram from a station in Montana by one en route from Minnesota to Washington, in response to a telegram from a business associate in Washington, creates a Montana contract, and in the absence of proof of the statutes of that state, in an action in Minnesota against the telegraph company for failure to deliver the message, the question must be determined under the common-law rule. Kolliner v. Western U. Teleg. Co. 52: 1180, 147 N. W. 961, 126 Minn. 122. Limitation of liability. 58. The courts of the forum will not, in an action to recover damages for nondeliv- ery of a telegram, enforce a provision of a contract for transmission of the message limiting the liability of the company, which is void under the public policy of the forum, although it is valid in the state where the contract was made and in that where the breach occurred, so that no action could have been brought for the breach in either state. Fox v. Postal Teleg. Cable Co. 28: 490, 120 N. W. 399, 138 Wis. 648. (Annotated) 6. Of married man or woman. a. Of married man. (See same heading in Digest L.R.A. 1-70.) b. Of married icotnan. (See also same heading in Digest L.R.A. 1-10.) Liability of married woman on indorse- ment of note, see HUSBAND AND WIFE, 36. 59. A note signed by a marled woman as accommodation maker for her husband, which is valid in the place where made, is enforceable against her in the courts of an- other state, although if made in the latter state it would have been void, especially where the legislative policy of the forum negatives the idea that the granting to a married woman of full rights to contract involves anything inherently bad, since for- eign contracts, to be unenforceable in the country of the forum, must be injurious to the public welfare in the judgment of the courts thereof, or must have been prohibited by its legislature as pernicious. Interna- tional Harvester Co. v. McAdam, 26: 774, 124 N. W. 1042, 142 Wis. 114. (Annotated) 60. A note signed by a married woman as accommodation guarantor or surety at her domicil in New Jersey, but dated and payable in New York, where the place of delivery does not appear, is, in the absence of facts evincing another intention, or an intent to avoid the laws of New Jersey, a New York contract ; and, as such a contract is valid under the laws of New York, it is enforceable in New Jersey. Mayer v. Roche (N. J. Err. & App.) 26: 763, 75'Atl. 235, 77 N. J. L. 681. (Annotated) Digest 1-52 I*R.A.(N.S.) 7. Of infants. See also supra, 7. 61. Courts will not enforce a contract against an infant residing in the state, con- trary to its laws, where the promise was made and the contract was to be performed substantially within the state, although it was completed by acceptance in another state where infancy might not be a defense. International Text-Book Co. v. Connelly, 42: 1115, 99 N. E. 722, 206 N. Y. 188. 62. The execution by infants in a state which has removed their disability, of a deed conveying title to land in another state, will not, under the rule of comity, render the deed an irrevocable conveyance in the latter state, where its policy is to regard such deeds as revocable upon the in- fant's attaining full age. Beauchamp v. Bertig, 23: 659, 119 S. W. 75, 90 Ark. 351. 63. The binding effect under the lex loci contractus of covenants for title in an in- fant's deed to land situated in another state will not be given effect by the courts of the latter state in contravention to the public policy of that state, which permits infants to disaffirm such covenants upon attaining majority. Beauchamp v. Bertig, 23: 659, 119 S. W. 75, 90 Ark. 351. c. Statiis; marriage; domestic rela- tions ; legitimation. (See also same heading in Digest L.R.A. 1-10.) As to contracts of married woman, see supra, I. b, 6, b. Descent of property of married man, see infra, 120, 121. Inheritance by adopted child, see infra, 122- 125. Laches in invoking principle of comity to establish rights of adopted child, see LIMITATION OF ACTIONS, 54. See also infra, 126. Fellow servants. 64. The courts of a state in which a sec- tion foreman on a railroad is held not to be a fellow servant of a brakeman will not, in determining the liability of a railroad com- pany for injury to a brakeman through the negligence of the foreman in another state, assume that the courts of the latter would hold that they were fellow servants, merely because its decisions had tended in that di- rection, but, in the absence of direct de- cision, will apply their own rule. Root v. Kansas City S. R. Co. 6: 212, 92 S. W. 621, (Annotated) 33 195 Mo. 348. Marriage. Extraterritorial effect of prohibition in de- cree of divorce against remarriage of guilty party, see JUDGMENT, 295. See also MARRIAGE, 4. 65. The validity of an attempted mar- riage between citizens of one of the United States must be determined by its laws, where it takes place in Germany, whose 514 CONFLICT OF LAWS I. c. law provides that the contraction of a marriage, even if only one of the parties is a German,' is determined, in respect of each of the parties, by the laws of the country of which he or she is subject; and that the same rule applies to an alien who contracts a marriage within the Em- pire, although the statute also provides that the form of a marriage concluded within the Empire is determined exclu- sively by the German law, since the latter provision must be held to apply to the celebration of the marriage in Germany be- tween German subjects. Re Lando, 30: 940, 127 N. W. 1125, 112 Minn. 257. 66. The laws of Germany in force at the time of the solemnization in that country of a marriage between American citizens sojourning therein will govern the courts of Minnesota in determining the validity of the marriage, since the validity of a marriage must be determined by the law of the place where the ceremony is performed. Re Lando, 30: 940, 127 N. W. 1125, 112 Minn. 257. 67. The courts of one state cannot, at the suit of one of the parties, annul a mar- riage which was valid by the law of the state where it was contracted, on the ground that it is void under the laws of their state, and cohabitation between the parties made a penal offense, where, at the time the marriage was contracted, they were not citizens of the state where the suit is brought, so that the marriage was not a mere evasion of its laws. Garcia v. Garcia, 32: 424, 127 N. W. 586, 25 S. D. 645. 68. The statutes of Nebraska which were in force in Oklahoma on Jun 25, 1890, will govern in determining whether or not a common-law marriage existed by reason of an agreement entered into on that day be- tween parties competent to contract, that they would be husband and wife to each other, and who immediately btgan living together and cohabiting with each other as husband and wife, and holding out to the world that that relation existed be- tween them. Reaves v. Reaves, 2: 353, 82 Pac. 490, 15 Okla. 240. 69. The rule that marriages valid where made are valid everywhere cannot be suc- cessfully invoked in support of a marriage contracted in one state by a resident and citizen of another, but prohibited from con- siderations of public policy and good morals by the law of his domicil; nor is it avail- able in support of claims predicated upon the validity of such marriage. Succession of Gabisso, n: 1082, 44 So. 438, 119 La. 704. ( Annotated ) 70. A marriage contract between parties who resort to another state, where it is val- id, to evade requirements of the law of their domicil, to which they immediately return, as to consent of the guardian who has been appointed over one of them, is valid at the domicil, where its laws make a marriage con- tracted within its borders without such con- sent merely voidable. Sturgis v. Sturgis, 15: 1034, 93 Pac. 696, 51 Or. 10. Digeat 1-52 L.R.A.(N.S.) 71. A marriage between persons who, to avoid the law of their domicil prohibiting marriage between persons of certain degrees of consanguinity, go into another country where the marriage is valid, have the cere- mony performed, and immediately return to their former domicil to reside, will not be recognized there. Johnson v. Johnson, 26: 179, 106 Pac. 500, 57 Wash. 89. (Annotated) 72. A marriage between parties within a class prohibited by the law of their dom- icil, enacted in another state where it is valid, is valid at the domicil, although re- sort was made to the foreign state for the purpose of avoiding the domiciliary law, where there is no legislative enactment that such marriages outside of the domicil shall be invalid therein, and there is a statute providing that all marriages contracted without the state, which would be valid by the laws of the country in which they were contracted, shall be valid in all courts and places in the state. State v. Hand, 28: 753, 126 N. W. 1002, 87 Neb. 189. (Annotated) 73. A marriage by one of the parties to a divorce proceeding, within the time pro- hibited by statute, which the statute ex- pressly declares shall be void whether con- tracted within or without the state, is not void if contracted in a foreign country, by whose laws it is valid, after the party has acquired a domicil there; but it is invalid if the parties went to the foreign country for the purpose of evading the local law and with the expectation of returning to their former home. State v. Fenn, 17: 800, 92 Pac. 417, 47 Wash. 561. (Annotated) 74. A legislative declaration that it shall not be lawful for a divorced person to mar- ry again within a year from the date of the divorce declares a public policy which will prevent the recognition by the courts of the state of a marriage between its citizens who go to another state to avoid the provisions of the statute, and, after the ceremony, return to their former domicil. Lanham v. Lanham, 17: 804, 117 N. W. 787, 136 Wis. 360. 75. A statute forbidding remarriages within a year of either party to a divorce, and making an attempted marriage void, applies to a marriage wherever contracted. Wilson v. Cook, 43: 365, 100 N. E. 222, 256 111. 460. (Annotated) 76. A state may make invalid the re- marriage of one of its citizens within a spec- ified time after divorce, even in another state or country, and refuse to recognize such an attempted marriage as the founda- tion of any rights within its borders. Wil- son v. Cook, 43: 365, 100 N. E. 222, 256 111. 460. 77. If a divorce rendered falls because of lack of jurisdiction over the plaintiff, his subsequent marriage in the state where the decree is rendered will not be recognized as valid in other states. State v. Westmore- land, 8: 842, 56 S. E. 673, 76 S. C. 145. 78. Although marriages between whites and negroes are prohibited in one state, where such a marriage takes place in an- CONFLICT OF LAWS, I. d, 1, 2. 515 other state where the same is valid, between such persons, who are bona fide residents of the latter state, and who continue to re- side there until the death of the wife, the husband is entitled to inherit, under the laws of descent of the former state, real estate there situated. Whittington v. Mc- Caskill, 44: 630, 61 So. 236, 65 Fla. 162. Separation or divorce; annulment of marriage. Presumption as to divorce law of other state, see EVIDENCE, 80. Conclusiveness and effect of divorce decree rendered in other states, see JUDGMENT, IV. b, 2. See also supra, 67. 79. The divorce, according to Indian cus- tom, of a white man who had been adopted by an Indian tribe and married an Indian woman, from a white woman, whom he mar- ried after his first wife's death, will be recognized by the state courts. Cyr v. Walker, 35: 795, 116 Pac. 931, 29 Okla. 281. (Annotated) 80. A statute providing that a wife's in- choate right of dower is not affected by a judgment dissolving a marriage applies to a dissolution in another state for a cause not recognized by the local statutes. Van Blaricum v. Larson, 41: 219, 98 N. E. 488, 205 N. Y. 355. (Annotated) 81. The kind and degree of fraud which will permit the annulment of a marriage will be determined by the law of the forum, although the proceeding is instituted in ac- cordance with the provisions of a statute of the state where the marriage was con- summated. Lyon v. Lyon, 13: 996, 82 N. E. 850, 230 111. 366. 82. A statute authorizing an action to annul a marriage where one of the parties had not attained the age of legal consent applies in case residents of the state go into a sister state, and have the ceremony per- formed, and immediately return to their former residence, although the marriage may have been valid where performed. Cun- ningham v. Cunningham, 43: 355, 99 N E 845, 206 N. Y. 341. (Annotated) Legitimation. 83. The courts of New York are not re- quired, by the full faith and credit clause of the Federal Constitution, to give effect to a Michigan statute legitimatizing children born prior to the marriage of their parents, so as to control the devolution of title to lands in New York under a will, espe- cially where to give effect to such statute would disturb interests already vested when the statute was enacted. Olmsted v. Olm- sted, 25: 1292, 30 Sup. Ct. Kep. 292, 216 U. S. 386, 54 L. ed. 530. d. Corporate matters. 1, In general. (See also same heading in Digest L.R.A. 1-10.) Property rights of corporation, see infra, 104. Digest 1-52 L.R.A. (N.S.) Matters as to foreign corporations general- ly, see CORPORATIONS, VII. Jurisdiction of action by or against foreign corporation, see COURTS, I. b, 3. Right of foreign corporation to exercise power of eminent domain, see EMINENT DOMAIN, 11-15. As to insurance by foreign corporation, see INSURANCE, I. b. 84. A statute of one state denying to a corporation the right to commence an action in case it has failed to pay a certain li- cense fee, and making it the duty of the secretary of state to strike from the records of his office the names of all corporations which have neglected for a certain period to pay the fee, but not thereby dissolving the corporation, is such a penal statute as will not be enforced in the courts of another state, so as to prevent a corporation which has defaulted in the payment of the license fee from maintaining a suit in the courts of the latter state. Gulledge Brothers Lumber Co. v. Wenatchee Land Co. 46: 697, 142 N. W. 305, 122 Minn. 266. Liability of promoters. 85. The liability of promoters to the cor- poration, for transferring property at a fictitious value to it in exchange for stock, is to be determined by the law of the place where the agreements were to be carried out, the deeds delivered, the stock issued, and the corporation to have its principal place of business, although the vote au- thorizing the purchase of the property from the promoters in exchange for stock was passed in another state. Old Dominion Cop- per Min. & Smelting Co. v. Bigelow, 40:314, 89 N. E. 193, 203 Mass. 159. 2. Liability of officers and stockholders. a. Officers. (See also same heading in Digest L.R.A. 1-10.) 86. The fact that a statute requiring a corporation to file an annual statement of its financial condition, and making its of- ficers and directors individually liable for its debts in case of default, has been, by the courts of the state enacting it, charac- terized as penal in the sense that a right of recovery accrued under it could be taken away by the legislature without impairing the obligation of contract, that actions un- der it are governed by the statute of limi- tations applicable to actions for a penalty or forfeiture of any penal statute, and that it requires a strict construction, does not prevent its enforcement by the courts of another state. Great Western Machinery Co. v. Smith, 41: 379, 124 Pac. 414, 87 Kan. 331. 87. A statute requiring a corporation to file an annual statement showing its finan- cial condition, and making its officers and directors individually liable for its debts in case of default, not being entirely penal but in part compensatory, may be enforced 516 CONFLICT OF LAWS, I. e. 1, 2. in the courts of another state. Great West- ern Machinery Co. v. Smith, 41: 379, 124 Pac. 414, 87 Kan. 331. (Annotated) b. Stockholders. (See also same heading in Digest L.R.A. 1-70.) 88. The liability of a subscriber to stock of a corporation located in another state is to be determined by its laws in a suit to enforce the liability in the courts of the state of the subscriber's domicil, in so far as they do not violate the law or settled policy of sucli domicil. Southworth v. Mor- gan, 51: 56, 98 N. E. 490, 205 N. Y. 293. 89. In an action by creditors to recover of stockholders in a corporation unpaid stock subscriptions, the remedy is governed by the law of the forum; and there is no distinction between domestic and foreign corporations in respect to such right of cred- itors to recover. Randall Printing Co. v. Sanitas Mineral Water Co. 43: 706, 139 N. W. 606, 120 Minn. 268. e. Torts and crimes generally. 1. Torts generally; personal injuries. (See also same heading in Digest L.R.A. 1-70.) See also supra, 32. 90. The rule that the courts of one coun- try will not execute the penal laws of an- other has no application where a statute, though imposing a penalty for failure to comply with its provisions, has also the effect to give the individual injured by its violation a right of action. Strait v. Yazoo & M. V. R. Co. 49: 1068, 209 Fed. 157, 126 C. C. A. 105. 91. If one injured by negligence has no cause of action in the state where the in- jury occurred, he has none elsewhere. Root v. Kansas City S. R. Co. fc 212, 92 S. W. 621, 195 Mo. 348. 92. An action for personal injuries to a nonresident in the state of his residence may, upon his death, be revived in favor of an administrator appointed for that pur- pose, where the local statute provides that such actions shall not die with the person, although by the law of his residence it would have done so. Pyne v. Pittsburg, C. C. & St. L. R. Co. 5: 756, 91 S. W. 742, 122 Ky. 756. (Annotated) 93. A police regulation of the forum re- quiring street cars to carry rear lights after dark may be considered by the court as argumentative of the carrier's duty, in an action for injuries caused by absence of such lights, which arose in another juris- diction where the ordinance was not in force. Carter v. McDerrott, 10: 1103, 29 App. D. C. 145. Digest 1-52 L.R.A.(N.S.) 2. Death. (See also same heading in Digest L.R.A. 1-10.) 94. No action can be maintained in the courts of the state of Ohio upon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was a citizen of the state of Ohio. Baltimore & 0. R. Co. v. Chambers, ii : 1012, 76 N. E. 91, 73 Ohio St. 16. 95. An action lies against a druggist who, by negligently compounding a prescrip- tion, causes the death of a patient in an- other state, in the jurisdiction where his negligent act occurs, where the statutes in both jurisdictions allow an action for the benefit of next of kin in case of wrongful death. Moore v. Pywell, 9: 1078, 29 App. D. C. 312. (Annotated) 96. The courts of one state in which the penalization of negligence resulting in death is against public policy will not enforce a statute of another state giving a cause of action in tort for negligently killing a per- son the damages in which are to be assessed according to the degree of culpability, which statute is construed in the state of its oiigin as penal in its nature. Cristilly v. Warner, 51: 415, 88 Atl. 711, 87 Conn. 461. 97. An action for death by wrongful act brought under the statutes of a state which provide for compensatory and also puni- tive damages may be maintained in the courts of another state the statutes of which provide for compensatory damages merely, where it is sought to recover compensatory damages only. Rochester v. Wells, Fargo, & Co. Express, 40: 1095, 123 Pac. 729, 87 Kan. 164. (Annotated) 98. The statute of the state where the accident occurs, and not of that of dece- dent's domicil, governs the distribution of a fund collected witho it suit, for toe wrongful killing of a person. Re Coe, 4: 814, 106 N. W. 743, 130 Iowa, 307. Action by personal representative. 99. An administratrix appointed by the courts of one state, who is by its laws given a right of action for the negligent killing of her intestate for the benefit of the next of kin, may maintain an action in the courts of another state, where the defendant is found and where a similar right of action is recognized which may be brought by a foreign executor or administrator, although the cause of action arose in the former state, and ancillary ndministration will not he allowed by the latter. Connor v. New York, N. H. & H. R. Co. 18: 1252, 68 Atl. 481, 28 R. I. 560. (Annotated) What law governs. 100. In an action for negligently causing death in another state, the standard of duty resting upon defendant in that state must be taken into consideration. Strait v. Yazoo & M. V. R. Co. 49: 1068, 209 Fed. 157, 126 C. C. A. 105. CONFLICT OF LAWS, I. e, 3 h. 517 3. Crimes. (See also same heading in Digest L.R.A. 1-10.) Territorial limits of jurisdiction over crimes, see COURTS, I. b, 2. What law in point of time governs, see CRIMINAL LAW, 7, 254. 101. It is not criminal under the laws of a state to aid or abet the sale of con- fectionery colored as prohibited by the laws of such state, in another state, though ''such act would violate the laws of the first state if done within its borders. State v. Gruber, 45: 591, 133 N. W. 571, 116 Minn. 221. Larceny. 102. In a prosecution under the Kansas crimes act, 285 (Gen. Stat. 1901, 2286), providing that every person who shall steal or obtain by robbery the property of an- other in any other state, and shall bring the same within the state, may be convicted and punished for larceny in the same man- ner as if the property had been feloniously stolen or taken within the state, the ques- tion whethef the property brought into the state was stolen is to be determined by the law of Kansas. State v. White, 14: 556, 92 Pac. 829, 76 Kan. 654. (Annotated) /. Insolvency; assignments for creditors. (See also same heading in Digest L.R.A. 1-10.) As to validity of claims against bankrupt's estate, see BANKRUPTCY, 126. Validity of assignment. 103. Voluntary assignment for the bene- fit of creditors, executed in one state, accord- ing to its laws, is ineffectual to convey real property situated in another state, unless the assignment is executed and recorded in the manner required by the laws of the latter. Kirkendall v. Weatherley, 9: 515, 109 N. W. 757, 77 Neb. 421. g. Rights in property generally. (See also same heading in Digest L.R.A. 1-10.) As to transfers of property, see infra, I. h. As to jurisdiction over land in other state, see COURTS, I. b, 3, b. Law governing passing under will of prop- erty in another state, see TAXES, 337. 104. The title to tangible personal prop- erty belonging to a corporation domiciled in a state other than that in which the prop- erty is actually stored, and not merely in transitu, is to be determined by the lex loci rei sitce, as between residents of the state in which the corporation is domiciled, and residents of other states. Schmidt v. Per- Digest 1-52 JL.R.A.(N.S.) kins (N. J. Err. App.) n: 1007, 67 Atl. 77, 74 N. J. L. 785. 105. The question, What title passes by a patent to a homestead settler on public land? must be solved by the law of the United States. Cunningham v. Krutz, 7: 967, 83 Pac. 109, 41 Wash. 190. Dower. Effect of divorce, see supra, 80. 106. The laws of the state where the land of a bankrupt is situated will govern the right of his wife to dower, notwithstanding the proviso in 8 of the bankruptcy act that, in case of the death of the bankrupt, the widow shall be entitled to all rights of dower fixed by the law of the state of the bankrupt's residence. Thomas v. Woods, 26: 1180, 173 Fed. 585, 97 C. C. A. 535. 107. The constitutional requirement that bankruptcy statutes shall have a uniform operation throughout the United States does not prevent the question of the right to dower in the property of the bankrupt be- ing settled by the statutes of the states where the property is situated. Thomas v. Woods, 26: 1180, 173 Fed. 585, 97 C. C. A. 535. Bights in literary property. 108. The common-law rights in this country of an English author of an un- published dramatic piece are not affected by the fact that there has been a perform- ance of the piece in England, which the English statute declares to be a publica- tion sufficient to destroy the common-law rights of the author there. Frohman v. . Ferris, 43: 639, 87 N. E. 327, 238 111. 430. Community property. See also infra, 137. 109. A statute making property acquired after marriage community property does not apply to property so acquired by a nonresident at his domicil in another state, and invested by him in real estate within the state where the statute exists. Brook- man v. Durkee, 12: 921, 90 Pac. 914, 46 Wash. 578. 110. The inheritance tax law of a state applies to property acquired there by one who died there, although he was married in a foreign country by whose law his wife was entitled to a community interest in it. Re Majpt, 29: 780, 92 N. E. 402, 199 N. Y. 29. (Annotated) h. Transfers of property generally. (See also same heading in Digest L.R.A. 1-70.) Transfer of notes by indorsement, see supra, 31-35. Right to tax transfers of property outside of state, see TAXES, V. See also supra, 3, 5. 111. The obligation of covenants for title in a deed is governed by the law of the place where the land is situated, and not by the lex loci contractus. Beauchamp v. Ber- tig, 23: 659, 119 S. W. 75, 90 Ark. 351. 518 CONFLICT OF LAWS, I. i, j. Sale of personal property. Conditional sales, see infra, 117. Regulating sale of liquor for resale in other state as interference with commerce, j see COMMERCE, 112-128, 131-137. Where sale of liquor deemed to be made, see INTOXICATING LIQUORS, III. g. 112. Taking a bill of lading in the name of the seller, and attaching thereto a draft for the purchase price, to be forwarded for collection before surrender of the bill of lading, do not make the destination the place of sale if the intention of the parties is otherwise. Hamilton v. Joseph Schlitz Brewing Co. 2: 1078, 105 N. W. 438, 129 Iowa, 172. 113. Upon the question where a sale of property shipped from one state to another under a bill of lading to the seller's order attached to a draft for the price was to take place, the facts may be considered, that the sale would be illegal if made in the state of destination, and that the re- lation between the parties originated in an agreement by which the purchaser was placed in possession of the seller's real es- tate upon his undertaking to purchase his supplies from the seller, all sales to take place at the seller's domicil. Hamilton v. Joseph Schlitz Brewing Co. 2: 1078, 105 N. W. 438, 129 Iowa, 172. 114. A sale of tangible personal property actually stored in New Jersey by an insol- vent foreign corporation, to four creditors, one of whom is a director, in satisfaction of an antecedent debt, is invalid as against attaching creditors, resident in states other than that in which the corporation is dom- iciled, where all the vendees have knowledge of the facts. Schmidt v. Perkins (N. J. Err. & App.) ii : 1007, 67 Atl. 77, 74 N. J. L. 785. (Annotated) 115. A sale of goods to be delivered to transportation companies at the place of manufacture in another state id effected there and is not affected by a statute of the state where the order was signed, re- lating' to the sale of goods bearing a fraud- ulent mark of quality. Loveland v. Dili- nan, 17: 1119, 70 Atl. 634, 81 Conn. 111. i. Chattel mortgages; conditional sales; leases of personalty. . (See also same heading in Digest L.R.A. 1-10.) Chattel mortgages. 116. Where a mortgagor removed personal property which had been encumbered by a mortgage duly recorded and valid under the laws of one state, into another state, with- out the consent of the mortgagee, and there sold the same to a bona fide purchaser, such purchaser takes subject to the mortgage. Farmers' & M. State Bank v. Sutherlin, 46: 95, 141 N. W. 827, 93 Neb. 707. Conditional sales. 117. To protect the rights of a condi- tional vendor of personal property as against purchasers, mortgagees, and credi- tors, the provisions of the statute of the Digest 1-52 L.R.A.(N.S.) state where the property is located must be complied with, although the contract is made in another state. Boyer v. M. D. Knowlton Co. 38: 224, 97 N. E. 137, 85 Ohio St. 104. Lease of personalty. 118. One renting a machine to another for use in the state, whose laws did not re- quire the contract to be recorded, does not, where he reclaims the property as soon as he learns the facts, lose his title in favor of a bona fide purchaser in another state, to which the lessee removes the property without authority, although the laws of such state require the recording of such contracts to give them validity against bona fide purchasers. Adams v. Fellers, 35: 385, 70 S. E. 722, 88 S. C. 212. ( Annotated ) J. Descent and distribution; wills. (See also same heading in Digest L.R.A. 1-70.) Descent and distribution. Decision that foreign adoption gives child no rights of inheritance within state as rule of property, see COURTS, 309. Burden of proving that domicil has been acquired in foreign country, see EVI- DENCE, 128. Laches in proceeding to establish rights of adopted child, see LIMITATION OF AC- TIONS, 54. See also supra, 83. 119. A domicil of testacy or intestacy may be established by a citizen of one of the United States in that portion of China in which, by treaty, he is permitted to en- joy the laws of the United States, so that in case of his death his estate is subject to the jurisdiction of the consular court there located, and not to the courts of the state of his former domicil. Mather v. Cunningham, 29: 761, 74 Atl. 809, 105 Me. 326. 120. Land acquired by a married man un- der the homestead laws of the United States becomes subject to the community laws of the state where it is located, and, upon the death of the wife, the descent of her inter- est will be governed by its laws. Krieg v. Lewis, 26: 1117, 105 Pac. 483, 56 Wash. 190. (Annotated) 121. Where a man, after abandoning his wife, dies domiciled in another state leaving credits in the state of her domicil, they may be applied by its courts to her statutory year's support according to its laws, and the fictions that her domicil and the situs of his assets are in the state of his domicil will not apply. Jones v. Layne, n: 361, 57 S. E. 372, 144 'N. C. 600. (Annotated) 122. The adoption of a child under the statutes of one state confers upon him no rights of inheritance in lands in another state. Brown v. Finley, 21: 679, 47 So. 577, 157 Ala. 424. (Annotated) 123. The laws of the domicil of an adop- tive parent and child fix their relation and CONFLICT OF LAWS, II. 519 status one to the other, which will be recog- nized in other jurisdictions; so that, in case, by the law of the domicil, the adopted child will inherit through the adoptive par- ent from the latter's ancestors, that rule will be recognized in the jurisdiction where the estate is to be distributed, unless it is inconsistent with its own laws and policy. Shick v. Howe, 14: 980, 114 N. W. 916, 137 Iowa, 249. 124. A child adopted in one state, where both it and its adoptive parent are domi- ciled, has, under the law of comity, the right to inherit real estate in another state having substantially similar adoption laws, where its laws permit adopted children to inherit. Finley v. Brown, 25: 1285, 123 S. W. 359, 122 Tenn. 316. 125. That a child adopted under the law of one state, at the time he laid claim to inherit property in another from his adop- tive father, was domiciled in a third, will not prevent his receiving the benefit of the comity between the state of the adoption and that where the property is situated. Finley v. Brown, 25: 1285, 123 S. W. 359, 122 Tenn. 316. 'Wills. See also supra, 83. 126. A testamentary gift to the "next of kin" of a person domiciled in another juris- diction must be construed according to the law of testator's domicil and not that of the domicil of the person named; although the status of any person by which his membership in the class is determined will be governed by the law of his domicil. Re Fergusson, 2 B. R. C. 552, [1902] 1 Ch. 483. Also Reported in 71 L. J. Ch. N. S. 360, 50 Week. Rep. 312. (Annotated) 127. An unattested holographic will, exe- cuted in a foreign country according to its laws, by a citizen of one of the United States domiciled there, will pass real proper- ty subsequently acquired in that state, where the statute provides that every will made out of the state shall be held valid if made according to the forms required by the laws of the place where the same is made, or where such person is residing at the time that it is made. Lindsay v. Wilson, 2: 408, 63 Atl. 566, 103 Md. ( 252. (Annotated) 128. The validity of a bequest to a trus- tee resident in another state, to be there expended in the purchase of land for char- itable purposes, will be determined by the laws of the latter state. Mount v. Tuttle, a: 428, 76 N. E. 873, 183 N. Y. 358. (Annotated) 129. The courts of the state where the property is situated, in construing a will made at testator's domicil, in another state, will adopt a settled judicial meaning which the courts of the state of domicil have given to technical words therein so that such meaning has become a rule of property in that state, but otherwise the testator's in- tention as ascertained by the court giving construction to the will, will govern. Ball v. Phelan, 23: 895, 49 So. 956, 94 Miss. 293. 130. A devise of real property in Illinois under the will of a testator domiciled in Digest 1-52 L.R.A.(N.S.) New York is governed, with respect to the rights of a child born after the execution of the will, for whom no provision is made, by the Illinois statute, which provides for the abatement of devises and legacies to raise a portion for such child equal to that which he would have been entitled to receive out of the testator's estate if the latter had died intestate, unless it shall appear by the will that it was the intention of the testator to disinherit such child, rather than by the New York statute, which makes a similar provision with respect to such a child, but contains no qualification with reference to the intention manifested by the will. Feet v. Peet, 13: 780, 82 N. E. 376, 229 111. 341. 131. The meaning of the term "heirs at law" in an agreement compromising a will contest, which is approved by court, is to be determined by the laws of the state where the compromise was made, although the per- son whose heirs are referred to dies a resi- dent of another state, where the will was that of a testator domiciled in the former state, and, at the time of the compromise, all parties in interest were also domiciled there. Brandeis v. Atkins, 26: 230, 90 N. E. 861, 204 Mass. 471. II. Remedies. (See also same heading in Digest L.R.A. 1-110.) 132. The remedies of the purchaser are governed by the law of his residence, and not by that of the broker, where, wishing to purchase stock on margin, he approaches the resident manager of a foreign broker and authorizes the purchase of the stock, upon which the manager wires the broker to make the purchase, and is notified by him that the purchase has been made, where- upon he notifies the customer of that fact and receives payment of the margin. Lam- son Bros. & Co. v. Bane, 46: 650, 206 Fed. 253, 124 C. C. A. 253. (Annotated) Joint liability for family expenses. 133. A court of one state will not enforce a statute of another state making a wife liable jointly with her husband for family expenses, in case of purchases made by a citizen of the former state while he and his wife were temporarily in the latter. Man- dell Brothers v. Fogg, 17: 426, 66 N. E. 198, 182 Mass. 582. (Annotated) Interest on judgment. 134. The interest to be allowed by the admiralty court for a tort arising within the borders of a state is to be computed for the entire time allowed, whether before or after the final decision, at the rate fixed by the state statute for allowance on judg- ments. Cambria Steamship Co. v. Pitts- burg Steamship Co. 51:966, 212 Fed. 674, 129 C. C. A. 210. (Annotated) Attachment and garnishment. Situs of debt for purpose of garnishment, see GARNISHMENT, I. d. Injunction to restrain garnishment of money due nonresident, see INJUNC- TION, 290, 291. 520 CONFLICT OF LAWS, II. 135. A court will not assist a nonresident alien suing a nonresident alien to redress a wrong committed without the state, to im- pound defendant's assets within the state by garnishment to the prejudice of his resi- dent creditor, who has obtained a judgment and a provisional lien against the assets, al- though the claim of the alien first accrued and his action was first brought, especially where the foreign creditor is acting merely as agent for a foreign trustee in bankruptcy who would have no standing in court. Dis- conto Gesellschaft v. Terlinden, 15: 1045, 106 N. W. 821, 127 Wis. 651. Statute of frands. . !.'!(>. An action brought on a local parol contract to let land lying in another state is governed by the local statute of frauds. Boone v. Coe, 51:907, 154 S. W. 900, 153 Ky. 233. (Annotated) 137. An antenuptial agreement to hold acquired property in common will not be presumed from the fact that a marriage took place in a country where the com- munity law prevails, so as to be enforced in a state where no such agreement is valid unles in writing. Re Majot, 29: 780, 92 N. E. 402, 199 N. Y. 29. Statute of limitations. See also supra, 12; JUDGMENT, 285. 138. The statute of limitations of the state of the forum will be applied where it is attempted to enforce by statute a con- tract made and intended to be performed in another state. Thomas v. Clarkson, 6: 658, 54 S. E. 77, 125 Ga. 72. (Annotated) 139. The statutes of limitation of the state in which a contract was made and in- tended to be performed are irrelevant and inadmissible in evidence in a suit brought on the contract in another state, since the law of the forum governs in that regard. Thomas v. Clarkson, 6: 658, 54 S. E. 77, 125 Ga. 72. 140. An action to recover upon a policy of fire insurance, brought in Ohio upon a cause arising in another state, although transitory, is, by virtue of Ohio Rev. Stat. 1905, 4990, limited to the time fixed by the statute of the foreign state. Hunter v. Niagara F. Ins. Co. 3: 1187, 76 N. E. 563, 73 Ohio St. 110. 141. A cause of action upon a contract made in one state which has been barred by the statutes of another state while the de- fendant resided there, but is not barred by the laws of the state in which the contract was made, may be enforced in a territory tinder a statute providing that where the cause of action has arisen in another state between nonresidents of the territory, and, by the laws of the state where the cause of action arose, an action cannot be main- tained, by reason of lapse of time, no action can be maintained thereon in the territory. Doughty v. Funk, 4: 1029, 84 Pac. 484, 15 Okla. 643. (Annotated) ! 142. A Code provision that no action shall ' be maintained upon a contract made and to be performed in another state or coun- try by a person who then resided therein, after the right of action thereon is barred Digest 1-52 L.R.A.(N.S.) by the laws of such state or country, does not authorize an action upon a contract made and to be performed in another state by a person who then resided therein, after the action is barred by the statute of the state of the forurn, although rt is not so barred by the statute of the state in which the contract was made and to be performed. Brown v. Hathaway, 51: 95, 80 S. E. 959, 73 W. Va. 605. (Annotated) 143. The phrase, "has arisen in another state," used in Idaho Rev. Stat. 1887, 4079, providing that "when a cause of action has arisen in another state, . . . and, by the laws thereof, an action cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him" in the state of Idaho, refers to and means the state in which the foreign contract is to be paid or discharged, and has no application to an intermediate state through which the debtor may subsequently travel, or in which he may reside for a sufficient length of time to bar the action under the statute of limita- tions of such state. West v. Theis, 17:472, 96 Pac. 932, 15 Idaho, 167. 144. "A cause of action arises" in an- other state, within the meaning of Idaho Rev. Stat. 1887, 4079, forbidding the main- tenance of suits on causes of action barred by the statutes of limitations of the state in which they arise, at t.ij time and place in the state when and where the debt is to be paid or the contract performed; and the cause of action thus arising continues and follows the debtor until such time as it i barred by the statute of limitations of the state in which it arose, or until the debtor has lived in the state of Idaho a sufficient length of time to bar it by the statute of limitations of that state. West v. Theis, 17: 472, 96 Pac. 932, 15 Idaho, 167. 145. One who contracts a debt and agrees to pay it, in a state from which he subse- quently goes to another, where he resides a sufficient length of time to bar a right of action thereon under the statutes of the lat- ter state, will not be permitted to plead the bar of the statute in a third state to which he removes, where the statute of the state in which the contract was made has not yet run against the obligation. West v. Theis, 17: 472, 96 Pac. 932, 15 Idaho, 167. 146. In order to determine the application of the statute of limitations of one state to a contract entered into in another state, it is necessary to examine the contract and the laws of such other state for the purpose of determining the date from which the statute runs. Sterrett v. Sweeney, 20: 963, 98 Pac. 418, 15 Idaho, 416. 147. Where a resident of Idaho goes into the state of Washington, and makes a par- tial payment upon a Washington contract, after its maturity, and before such contract is barred by the statute of limitations of that state, upon his return to Idaho, the contract follows him as made, and is en- forceable under the laws of that state, and the statute of limitations of Idaho con- tinues to run upon his re-entry into that CONFLICT OF LAWS, II. 521 state after such payment. Sterrett v. Swee- ney, 20: 963, 98 Pac. 418, 15 Idaho, 416. 148. Whether residence within a state for the statutory period of limitation will pre- vail as a plea in bar upon a written contract, made in another state, depends upon the na- ture of the contract, its maturity, and the date from which the statute begins to run. Sterrett v. Sweeney, ao: 963, 98 Pac. 418, 15 Idaho, 416. 149. An action on a promissory note can- not be maintained in Kansas under 22 of the Hmitation act (Gen. Stat. 1901, 4450), where both plaintiff and defendant were nonresidents of the state when the cause of action accrued, and the defendant resided in a foreign state until the cause of action was barred by the laws of that state. Bruner v. Martin, 14: 775, 93 Pac. 165, 76 Kan. 862. 150. A debtor who, after contracting in the state of his residence, where his cred- itor continues to reside, takes up his residence in another state, may, when suit is brought there on the contract, set up its statute of limitations, although the action is not barred by the statute of the state where the contract was made. Sta- ples v. Waite, 30: 895, 76 Atl. 353, 30 R. I. 516. 151. The statute of limitations of the state where the maker of a note resides when it falls due does not govern an action brought upon it in the state where it is in fact payable, where the statute of that state, although prohibiting actions in its courts upon causes of action which are fully barred by the laws of the country where defendant had previously resided, states that the provisions shall not apply to causes of action arising within the state. Moran v. Moran, 30: 898, 123 N. W. 202, 144 Iowa, 451. 152. Where, in response to notification by a person resident in one state, that he will lend money to one residing in another state, upon receipt of a note for the amount, the latter forwards the note, and the former upon receiving it sends the money, the contract is made in the state where the lender resides, and a suit upon it is governed by its statute of limitations, and not by that of the state where the maker resides. Moran v. Moran, 30: 898, 123 N. W. 202, 144 Iowa, 451. 153. The statute of limitations of the fo- rum will govern in an action to enforce the liability of a stockholder under a foreign statute, unless a limitation period is, by the statute, made so far a part of the right con- ferred as to follow it extraterritorially. Ramsden v. Knowles, 10: 897, 151 Fed. 721, 81 C. C. A. 105. 154. A statute requiring notice of a claim for personal injuries to be given to the one responsible therefor, within a year from their occurrence, is applicable in an action in the state of its enactment up"on a claim arising in another state by a nonresident against a resident of the state where the- Digest 1-52 L,.R.A.(N.S.) action is brought. Arp v. Allis-Clialmers Co. 8: 997, 110 N. W. 386, 130 Wis. 454. (Annotated 155. The statute of limitations of the forum governs in an action in one state for a personal injury based on a statute of an- other state, which does not prescribe the limitation period. Louisville & N. R. Co. v. Bukhart, 46: 687, 157 S. W. 18, 154 Ky. 92. ( Annotated ) 156. The limitation period provided by a statute giving a right of action for negli- gent death governs actions brought in other states. Cristilly v. Warner, 51: 415, 88 Atl. 711, 87 Conn. 461. 157. If, at the time a cause of action accrues against a railroad company for death, which must be brought within two years, it is absent from the state, because of which the statute does not begin to run until it comes into the state, the action may be brought in another state where it is found, after the expiration of the two- year period. Casey v. American Bridge Co. 38:521, 134 N. W. Ill, 116 Minn. 461. Exemptions. 158. The exemption law of another state pertains to remedy, and will not be en- forced in this state. National Tube Co. v. Smith, i: 195, 50 S. E. 717, 57 W. Va. 210. (Annotated) Rules of evidence. 159. A Federal court is governed, in ac- tions tried by it, by the Federal statute gov- erning the admissibility of evidence of trans- actions with persons since deceased, rather than by the statute of the state in which it is sitting. Smith v. Au Ores Twp. 9: 876, 150 Fed. 257, 80 C. C. A. 145. Damages. 160. A person who is injured in one state as the result of the negligent act of a per- son in another state is not bound, in the courts of the latter state, by a statute of the former state limiting the amount of recovery in such case. Winona v. Botzet, 83: 204, 169 Fed. 321, 94 C. C. A. 563. 161. An action in tort may be maintained by the addressee of a telegram of whose interest the company has notice, to recover damages for mental anguish for its negli- gent failure to deliver a death message with- in the state, although the contract for trans- mission was made in another state the law* of which do not recognize the right to re cover damages for mental suffering in sucl cases. Penn v. Western U. Teleg. Co. 41-. 223, 75 S. E. 16, 159 N. C. 306. (Annotated) 162. Breach of a contract promptly to de- liver a telegram to a person in another state takes place at the place where the sendee was, and not at the place where the mistake in changing the address occurred, in the state where the contract was en- tered into, so that the courts of the former state, in which the action is brought, will apply its own rule as to damages for men- tal anguish, and not that of the state where the contract was made. Western U. Teleg. Co. v. Lacer, 5: 751, 93 S. W. 34, 122 Ky. 839. (Annotated) 522 CONFUSION CONSENT. 163. The rule, as to recovery of damages for mental suffering, of the state where a telegram is presented for transmission, and not that of the state where it is to be de- livered, governs in an action for damages for failure to deliver a telegram, although the suit is brought in the latter state. Johnson v. Western U. Teleg. Co. 10: 256, 57 S. E. 122, 144 N. C. 410. 164. In case of breach of an undertaking to transmit a telegram from one state to another, where it is to be promptly delivered to one of its citizens, by failure promptly to deliver it after it has reached the latter state, its laws will govern in an action for the breach, brought either in contract or tort, in its courts, in determining whether or not damages can be allowed for mental suffering caused by the delay, where no neg- ligence is alleged or shown to have occurred in the former state. Western U. Teleg. Co. v. Hill, 23: 648, 50 So. 248, 163 Ala. 18. (Annotated) 165. In determining whether or not dam- ages can be allowed for mental anguish caused by failure promptly to deliver a telegram, the courts of the forum are not bound by the decisions of the courts where the contract was made, where the laws of that state do not contain any express declaration upon the subject. Western U. Teleg. Co. v. Hill, 23: 648, 50 So. 248, 163 Ala. 18. CONFUSION. See ACCESSION AND CONFUSION. CONGRESS. Power of, over interstate commerce, see COMMERCE. Validity of legislation by, generally, see CONSTITUTIONAL LAW. Permitting electors of political parties to express choice of candidate for United States Senate, see CONSTITUTIONAL LAW, 81; COURTS, 127; ELECTIONS, 20, 76, 77; STATUTES, 72, 101. Suit to enjoin certification of names of can- didates for office of United States sen- ator, see COURTS, 225; PARTIES, 117. Power of, to terminate dower rights on bankruptcy of husband, see DOWER, 14. Libel of member of, see LIBEL AND SLANDER, 66, 67; PLEADING, 68, 69. Authority from, to maintain nuieance, see NUISANCES, 196. Exclusiveness of power to prohibit use of flag, see STATE, 1. Referring to congressional debates in con- struing statute, see STATUTES, 206. Contemporaneous construction of act of Congress by executive officers, see STATUTES, 240. Effect of act of Congress inconsistent with terms of treaty, see TREATIES, 2. Power of, as to tide lands, see WATERS, 75. Digest 1-52 L.R.A.(N.S.) 1. A statute providing that each politi- cal party may designate its choice of a party candidate for the United States Senate, and that the persons so chosen shall be the nomi- nees of the respective parties for such office, is not void on the ground that it is an at- tempt to bind successive legislatures, as such law is subject to repeal at any time. State ex rel. McCue v. Blaisdell, 24: 465, 118 N. W. 141, 18 N. D. 55. 2. A statute permitting the electors of a political party to express their choice of a candidate for the United States Senate recognizes merely the right of petition, and does not operate as an election of United States Senators by popular vote, in contra- vention of the constitutional provision re- quiring their election by the legislature, al- though the members of suc-h legislatures may be under a moral obligation to support the respective candidates of their party's choice. State ex rel. McCue v. Blaisdell, 24: 465, 118 N. W. 141, 18 N. D. 55. CONNECTING CARRIERS. See CARRIERS, II. q, III. j. CONNIVANCE. In divorce suit, see DIVORCE AND SEPARA- TION, IV. CONSCIENCE. Liberty of, see CONSTITUTIONAL LAW, II. d. CONSENT. Estoppel by, see APPEAL AND ERROR, 532- 534; ESTOPPEL, III. f. Of property owners to erection of business block or store on street, see BUILDINGS, 3; CONSTITUTIONAL LAW, 518, 660. Of shipper to forwarding of live stock with- out unloading, see CARRIERS, 909. Of abutting owner to standing of hacks in street, see CONSTITUTIONAL LAW, 254. Of landlord to assignment of lease, see CON- TRACTS, 137. Of property owners to local improvements,, see CONTRACTS, 453; PUBLIC IMPROVE- MENTS, 9-12. Of husband to wife's execution of will, see CONTRACTS, 52, 405. Of accused to use of shoes for comparison of footprints, see CRIMINAL LAW, 131. Of member of mutual benefit society to- future changes in rules, see INSURANCE, 433. Of landlord to construction of building or improvements, see MECHANICS' LIENS, 12, 13. CONSEQUENTIAL INJURIES CONSORTIUM. 523 Of vendor to making of improvements by vendee, see MECHANICS' LIENS, 14. Of parent to enlistment of son in militia, see MILITIA. Of public service commission to construc- tion of plant by corporation organized to supply and distribute electricity, see PUBLIC SERVICE COMMISSION, 6. To taking of mortgaged property out of sta-te, see CHATTEL MORTGAGE, 52. To establishment of barroom, see CONSTI- TUTIONAL LAW, 275. To jurisdiction of courts, see COUETS, 11. To adoption of child, see PARENT AND CHILD, 33-40. To divorce, effect on alimony, see DIVORCE AND SEPARATION, 107. To operation, see ESTOPPEL, 221; PHY- SICIANS AND SURGEONS, 36-41; TRIAL, 309, 310, 313. To discharge of water on one's property, evidence as to, see EVIDENCE, 1803. To granting of license, see INTOXICATING LIQUORS, 64. To larceny, see LARCENY, 1. To operation of street railway, see STREET RAILWAYS, 3-5. To marriage, see TRUSTS, 5; WILLS, 284, 285. As defense to crime, see CRIMINAL LAW, I. f. Judgment by, see JUDGMENT, 218, 343-345. Marriage of person under age of, see MAR- RIAGE, 14-16, 29, 43-45. Rape of female under age of, see RAPE, 5-7. Effect of statute fixing age of, to render girl under that age incapable of com- mitting sexual crime, see WITNESSES, 129. Appointment of receiver by consent decree, see RECEIVERS, 7. Statute authorizing action without notice by administrative board acting by con- sent, see CONSTITUTIONAL LAW, 583. Validity and construction of conditions re- quiring consent to marriage, see CON- TRACTS, 474. Presumption and burden of proof as to, see EVIDENCE, II. e, 4. Sufficiency of proof of, see EVIDENCE, 2345- 2347. Question for jury as to, see TRIAL, 309. 310, 313-317. CONSEQUENTIAL INJURIES. From condemnation of property, see DAM- AGES, III. 1, 3; EMINENT DOMAIN, III. e. From construction of street grade, see HIGH- WAYS, III. CONSIDERATION. Sufficiency of, to support conveyance as against trustee in bankruptcy, see BANKRUPTCY, 118. Digest 1-52 L,.R.A.(N.S.) Of bill or note, see BILLS AND NOTES, I. c. For contractor's bond, see BONDS, 13. For liquor bonds, see BONDS, 32. Of contract, see CONTRACTS, I. c. For deeds, see DEEDS. Of conveyance attacked for fraud, see FRAUDULENT CONVEYANCES, II. Of gift, see GIFT, 2. Of contract conferring option to work oil and gas mines, see MINES, 58. For mortgage, see MORTGAGE, 18. For tax deed, see TAXES, 223, 224. For bona fide purchase of land, see VENDOR AND PURCHASER, 94, 103. Presumption of, from sale, see EVIDENCE, 538, 539. Parol evidence as to, see EVIDENCE, VI. g. Evidence of generally, see EVIDENCE, XI. m. Affidavit of consideration attached to chat- tel mortgage, see CHATTEL MORTGAGE, 5, 6. Admission of, by pleading, see PLEADING, 87. Necessity of return of, on revocation or grant of lands by state, see STATE, 2. Sufficiency of, as question for jury, see TRIAL, 621. CONSIGNEE. Right to garnish freight money, see GAR- NISHMENT, 4, 5. Right to maintain action against carrier, see PARTIES, 27-32. CONSIGNMENT. Bank's liability for delivery of, see BANKS, 8. CONSOLIDATION. Of actions, see ACTION OR SUIT, II. b. Of indictments, see APPEAL AND ERROR, 1538; CRIMINAL LAW, 69, 70; JURY, 80. Of corporations, see CORPORATIONS, II. Of religious societies, see COURTS, 185-190 ; RELIGIOUS SOCIETIES, 1, 6, 19, 21-20. Of railroads, see ESTOPPEL, 150 ; RAILROADS, 4, 14-16. Of insurance companies, see INSURANCE, 12. CONSORTIUM. Husband's right to recover for loss of, see HUSBAND AND WIFE, 154. Wife's right of action for loss of, see HUS- BAND AND WIFE, 179-184. ' 524 CONSPIRACY, I. CONSPIRACY. I. In general, 114. II. To cheat, rob, or steal. III. To injure the business of another, 1531. a. In general, 15 IS. b. Boycott, 1931. IV. Of laborers; strikes, 32 OS. Action for inducing breach of contract, see CASE, II. Liability of corporation for act of agent in 'joining in, see CORPORATIONS, 128. Seeking transfer of stock on books of cor- poration in interest of, see CORPORA- TIONS, 223. Original jurisdiction of Supreme Court to enjoin, see COURTS, 222. Criminal liability of co-conspirators, see CRIMINAL LAW, 50-52. Jurisdiction of equity in case of, see EQUITY, 69, 70. Proof of formation of, and of overt act prosecution for which is barred by limi- tation, see EVIDENCE, 1971. Proof of acts or declarations of co-conspira- tors, see EVIDENCE, X. g. Sufficiency of proof of, see EVIDENCE, 2364. Indictment for, see INDICTMENT, ETC., 44, 79-81. Injunction against, see INJUNCTION, 123- 128. When action for is barred, see LIMITATION OF ACTIONS, 270, 271. Combinations in restraint of trade, com- merce, or competition, see MONOPOLY AND COMBINATIONS, II. Liability for negligently assisting in, see NEGLIGENCE, 25. Who may maintain action for, see PARTIES, 1. Necessary parties defendant in action to re- cover for, see PARTIES, 155. Parties to action for conspiring to entice servant, see PARTIES, 192. Giving perjured testimony in pursuance of, see PERJURY, 15. Publication in newspaper of matters detri- mental to persons on trial as conspir- acy to pervert justice, see PERVERSION OF JUSTICE. Sufficiency of allegation as to, see PLEAD- ING, 372, 441. Prima facie proof of conspiracy before ad- mitting declarations of one conspirator, see TRIAL, 38. I. In general. (See also Conspiracy, I. a, in Digest L.R.A. 1-70.) As to blacklisting by employer, see BLACK- LISTING. By incorporators of trust company to divert subscribed funds, see CORPORATIONS, 184. To carry election by fraud, see COURTS, 80, 222; INJUNCTION, 123. To induce shippers to receive rebate, see CRIMINAL LAW, 220. Digest 1-52 I*R.A.(N.S.) To get man into indecent and embarrassing situation, see INDECENCY. To burn insured property as defense to re- covery where property is otherwise de- stroyed, see INSURANCE, 855. To entice miners to desert service, see MAS- TER AND SERVANT, 125. 1. Combination of several persons to commit it cannot make illegal an act which would be valid if done by an individual; Lindsay v. Montana Federation of Labor, 18: 707, 96 Pac. 127, 37 Mont. 264. 2. A civil conspiracy is a combination of two or more persons to accomplish, by concerted action, an unlawful or oppressive object, or lawful object by unlawful or op- pressive means. National Fireprooling (Jo. v. Mason Builders' Asso. 26: 148, 169 Fed. 259, 94 C. C. A. 535. 3. In order to sustain a civil action for conspiracy it is generally necessary that there shall be an averment and proof of the commission of an act which, if done by one alone, would at the common law con- stitute a ground for action on the case. Sleeper v. Baker, 39: 864, 134 N. W. 716, 22 N. D. 386. 4. The question of the existence of a conspiracy in violation of New York Penal Code, 168, subdivs. 5 and 6, is to be de- termined by common-law principles. Na- tional Fireproofing Co. v. Mason Builders' Asso. 26: 148, 169 Fed. 259, 94 C. C. A. 535. 5. One who comes into a conspiracy after it is concocted, with full knowledge of its existence and character, and with the purpose of furthering its design, is punish- able as a conspirator. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. 6. The change, by the statutory revi- sion commission having no authority to al- ter the meaning of a statute, of the words "conspire to commit an offense against the laws of the United States," to "conspire to commit an offense against the United States," in a statute providing for the pun- ishment thereof, does not limit the pun- ishment to cases of conspiracy against the United States as such, but it extends to con- spiracy to violate the simple penal provi- sions of its statutes. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. 7. A general statute punishing by im- prisonment any conspiracy to violate a stat- ute of the United States is not inapplicable to a conspiracy to commit an offense under a subsequent statute providing for the pun- ishment of that offense by fine only, on the theory that its application would indirectly operate to subject the offender to punish- ment not warranted by law, or that the former statute was superseded by the latter. Thomas v. United States, 17: 720, 1.56 Fed. 897, 84 C. C. A. 477. 8. Although no action will lie against an individual for alienating from a woman the affections of her husband, she may maintain an action r gainst several for con- spiracy to do so, and to prevent her from CONSPIRACY, II.-III. b. 525 securing a divorce for his desertion, where the object is breach of his marriage con- tract, which, under the statutes, is crim- inal, and the statute makes combination to prevent another from doing any lawful act a criminal offense. Randall v. Lon- storf, 3: 470, 105 N. W. 663, 126 Wis. 147. ( Annotated ) 9. The agreement of two or more per- sons to take and use another's automobile without authority may be punished as a criminal conspiracy. State v. Davis, 34: 295, 70 S. E. 811, 88 B. C. 229. 10. On the trial of an indictment charg- ing three persons jointly with conspiring together, if one pleads guilty and has judg- ment passed against him, and the other two are acquitted, the judgment passed against the one who pleaded guilty is bad and can- not stand. King v. Plummer, 4 B. R. C. 917, [1902] 2 K. B. 339. Also Reported in 71 L. J. K. B. N. S. 805, 66 J. P. 647, 86 L. T. N. S. 836, 18 Times L. R. 659, 51 Week. Rep. 137, 20 Cox, C. C. 243. (Annotated) Conspiracy to shadow person. 11. Employers of a detective agency and its manager cannot escape liability for con- spiracy wrongfully to shadow a person, on the theory that they are not responsible for the acts of the detectives who actually did the work in excess of their authority. Schultz v. Frankfort Marine Acci. & Plate Glass Ins. Co. 43: 520, 139 N. W. 386, 151 Wis. 537. 12. A private citizen cannot openly shadow another for the purpose of prevent- ing his leaving town until a determination can be reached as to whether or not to have him arrested, where a statute forbids' a com- bination to prevent a person from doing any lawful act. Schultz v. Frankfort Ma- rine Acci. & Plate Glass Ins. Co. 43: 520, 139 N. W. 386, 151 Wis. 537. Inducing breach of contract. Right of action for inducing breach of con- tract generally, see CASE, II. 13. Persons who conspire to induce oth- ers to break a valid contract between other persons are liable to action therefor. Thacker Coal & Coke Co. v. Burke, 5: 1091, 63 S. E. 161, 59 W. Va. 253. 14. The civil action of conspiracy is a tort action, and cannot in general be main- tained for inducing a third person to break his contract with the plaintiff, except where direct fraud or force or coercion has been used; the consequence at law being only a broken contract, for which the party to the contract may have his remedy by suing upon it. Sleeper v. Baker, 39: 864, 134 N. W. 716, 22 N. D. 386. II. To cheat, rob, or steal. (See also Conspiracy, I. b, in Digest L.R.A. 1-110.) To commit larceny, see LARCENY, 24. Digest 1-52 L.R.A.(N.S.) III. To injure the business of another, a. In general. (See also Conspiracy, I. e, I, in Digest L.R.A. 1-10.) To secure omission from business directory of name of business rival, see INJUNC- TION, 126. Injury to business in absence of conspiracy, see CASE, 18-21. Combinations in restraint of trade, com- merce, or competition, see MONOPOLY AND COMBINATIONS, II. 15. A combination of two or more, with- out justification or excuse, to injure a man in his trade by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employment, is, if it results in damage to him, actionable. Quinn v. Leathern, 1 B. R. C. 197, [1901] A. C. 495. Also Reported in 70 L. J. P. C. N. S. 76, 65 J P. 708, 50 Week. Rep. 139, 85 L. T. N. S. 289, 17 Times L. R. 749. (Annotated) 16. To prevent persons from engaging in a lawful business is unlawful at common law, and conspiracy to accomplish it may be rendered unlawful by statute. State v. Duncan, 4: 1144, 63 Atl. 225, 78 Vt. 364. 17. A manufacturer, the market for whose product in a certain city restricted or destroyed because of a combination be- tween other manufacturers and builders to prevent the sale of such product except up- on conditions with which he does not wish to comply, may recover the damages there- by inflicted upon him, from any or all of the members of the combination. Purington v. Hinchliff, 2: 824, 76 N. E. 47, 219 111. 159. (Annotated) Of physicians. 18. An association of physicians to aid in the enforcement of a statute prohibit- ing the solicitation of patients by paid agents is legal. Thompson v. Van Lear, 5: 588, 92 S. W. 773, 77 Ark. 506. ft. Boycott. (See also Conspiracy, I. c, 2, in Digest L.R.A. 1-10.) Injunction against, see INJUNCTION, 134, 147, 153-162, 443. Boycott by insurance company, see MONOPO- LY AND COMBINATIONS, 82. 19. A boycott is a combination to harm one person by coercing others to harm him. American Federation of Labor v. Buck's Stove & Range Co. 32: 748, 33 App. D. C. 83. 20. A hospital excluded from the list has no cause of action on the ground of illegal boycott, against several employers who, to serve their own interests, deduct from the wages of their employees a small amount for a hospital fund, in consideration of which the employees are entitled to tickets entitling them to care in case of injury, in 523 CONSPIRACY, IV. any hospital on a list furnished by the em- ployers; and it will bo immaterial that the lists were selected with a view to injure the business of the excluded hospitals. Union Labor Hospital Asso. v. Vance Redwood Lumber Oo. 33:1034, 112 Pac. 886, 158 Cal. 551. (Annotated) Against merchant. See also infra, 23. 21. Injury caused to a retail merchant because of inability to purchase goods on account of a combination among other re- tail and wholesale merchants for the pur- pose of maintaining maximum prices for the goods dealt in by them, to be made effectual by refusal to deal with persons who will not agree to maintain prices, and by threats to boycott wholesalers who deal with them, f give a right of action. Klingel's Pharmacy v. Sharpe &. Dohme, 7: 976, 64 Atl. 1029, 104 Md. 218. (Annotated) By associations generally. 22. An undertaking among themselves by the members of an organization of retail dealers that they will purchase only from wholesalers who do not sell direct to con- sumers is a violation of a statute making a combination intended to hinder competi- tion in the sale of a commodity a criminal conspiracy. Retail Lumber Dealers' Asso. v. State ex rel. Stirling, 35: 1054, 48 So. 1021, 95 Miss. 337. (Annotated) Dy labor union. Conspiracy by labor unions, generally, see infra, IV. Injunction against, see CONSTITUTIONAL LAW, 754; CORPORATIONS, 258; IN- ' JUNCTION, 134, 137, 155-162. See also CASE, 30; LABOR ORGANIZATIONS, 11. 23. A combination of workmen to with- draw their patronage from a merchant and from those who deal with him is not an un- lawful act which equity may enjoin. Lind- say v. Montana Federation of Labor, 18: 707, 96 Pac. 127, 37 Mont. 264. 24. The fact that an individual might re- fuse to labor for one who handled the ma- terial of a concern against which a strike has been declared does not render legal a combination or conspiracy among all the members of a labor organization to do so for the purpose of injuring such concern. Lohse Patent Door Co. v. Fuelle, 22: 607, 114 S. W. 997, 215 Mo. 421. 25. A labor union is guilty of an illegal boycott by notifying, in pursuance of a con- spiracy to injure the business of one against whom a strike has been declared, custom- ers of such person that its members will not handle material furnished by him, and that any attempt on their part to force them to do so will cause a strike to be called against them. Lohse Patent Door Co. v. Fuelle, 22: 607, 114 S. W. 997, 215 Mo. 421. 26. That each member of a labor union has a right to withdraw his patronage from a given concern and those who deal with it does not make valid a combination of all the members to do the same thing by con- cert of action. American Federation of Digest 1-52 I*R.A.(N.S.) Labor v. Buck's Stove & Range Co. 32: 748, 33 App. D. C. 83. 27. The mere refusal by members of a labor union to lay stone for the foundation of a building in case an employer of non- union labor secures the contract for the superstructure, which causes their employer to refuse to lay the foundation in that event, so that the nonunion contractor is deprived of the opportunity to do the work, gives him no right of action for the result- ing damages. Meier v. Speer, 32: 792, 132 S. W. 988, 96 Ark. 618. 28. The failure of members of a labor union, acting in a public and official capaci- ty as meml>ers of a board of examiners of plumbers, to appoint as plumbing inspector a candidate who had, prior to their acces- sion to office, been indorsed by the union, does not justify the union in fining, sus- pending, or boycotting them; and they are entitled to relief by injunction and by judg- ment remitting the fine imposed, reinstating them in the union, and condemning the union and its officers and members who par- ticipated in its actions, in damages, actual and exemplarv. Schneider v. Local Union No. 60, 5: 891/40 So, 700, 116 La. 270. (Annotated) 29. The attempt by a labor union to co- erce a mill owner to unionize his mill by refusing to handle his product unless he does so, and notifying prospective custom- ers of that fact, may be enjoined as an unlawful conspiracy. Purvis v. Local No. 500, United Brotherhood of C. & J. of A. 12: 642, 63 Atl. 585, 214 Pa. 348. (Annotated) 30. A labor union cannot lawfully notify customers not to deal with a person whom it has put on the unfair list, although no threat accompanies the notice, if the per- sons receiving it understand that injury will result to those failing to comply with it. Hey v. Wilson, 16: 85, 83 N. E. 928, 232 111. 389. (Annotated) 31. Members of a labor union who have caused a loss of business to a merchant be- cause of an unlawful boycott of his ma- terials cannot avoid liability to him for such damages as are capable of substantial proof, by the fact that it is impossible to determine the total amount of loss, and may be difficult to ascertain with absolute certainty the money value of even the dam- ages that can be proved. Burnham v. Dowd, 51: 778, 104 N. E. 841, 217 Mass. 351. IV. Of laborers; strikes. (See also Conspiracy, I. d, in Digest L.R.A. 1-70.) Boycotting by labor union, see supra, 23-31. Recovery back of money paid at demand of labor organization, see ASSUMPSIT, 48. Jurisdiction of equity in case of, see EQUITY, 69. Injunction against, see INJUNCTION, 129- 162. Contempt in disobeying injunction, see CON- TEMPT, 46-51. CONSPIRACY, IV. 527 Action for inducing breach of contract, see LABOR ORGANIZATIONS, 10. As to combinations in restraint of trade, see MONOPOLY AND COMBINATIONS, 65- 68. 32. The enforcing payment of arrears of defalcations by a former officer of the union is not such an object as will justify its officers in combining to prevent him from obtaining any employment in his trade or calling, to his injury. Giblan v. National Amalgamated Laborers' Union of Great Britain and Ireland, 1 B. R. C. 528, [1903] 2 K. B. 600. Also Reported in 72 L. J. K. N. B. S. 907, 89 L. T. N. S. 386, 19 Times L. R. 708. (Annotated.) 33. The provision in the Conspiracy and Protection of Property Act, 1875, C. 86, 3, that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or further- ance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime, has nothing to do with civil remedies; and therefore does not preclude the maintenance of an action for damages arising from acts done in pursuance of such a combination. Quinn v. Leathern, 1 B. R. C. 197, [1901] A. C. 495. Also Reported in 70 L. J. P. C. N. S. 76, 65 J. P. 708, 50 Week. Rep. 139, 85 L. T. N. S. 289, 17 Times L. R. 749. 34. The words "trade dispute between employers and workmen," in a statute pro- viding that any agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between em- ployers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime, do not include a dispute on trade union matters between workmen who are members of a trade union and an employer of nonunion workmen who refuses to em- ploy members of the union. Quinn v. Leathern, 1 B. R. C. 197, [1901] A. C. 495. Also Reported in 70 L. J. P. C. N. S. 76, 65 J. P. 708, 50 Week. Rep. 139, 85 L. T. N. S. 289, 17 Times L. R. 749. 35. A statute permitting a labor union to devise and adopt ways and means to make its rules effective does not authorize an in- terference with the absolute rights of oth- ers. Purvis v. Local No. 500, United Broth- erhood of C. & J. of A. 12: 642, 63 Atl. 585, 214 Pa. 348. 36. An act providing that it shall not be unlawful for any two or more persons to unite to persuade, advise, or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons, or corporation, does not legitimatize an invasion of private rights, nor prevent the party injured from having full redress. George Jonas Glass Co. Digest 1-52 L.R.A.(N.S.) v. Glass Bottle Blowers Asso. (N. J. Err. & App.) 41: 445, 79 Atl. 262, 77 N. J. Eq. 219. (Annotated) 37. The attempt to force all laborers to combine in unions is against the policy of the law because aiming at monopoly. Ber- rf v. Donovan, 5: 899, 74 N. E. 603, 188 Mass. 353. 38. To follow one because he has taken employment at a particular place, to spy after him, to stop him and warn him, to put him in fear, to intimidate him or coerce him, are alike unlawful. Franklin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. 39. The purpose of strengthening itself in future contests with the employer will not justify a labor union in interfering with the contracts of nonunion workmen for the purpose of compelling them to join the union. Berry v. Donovan, 5: 899, 74 N. E. 603, 188 Mass. 353. 40. An agreement between a master ma- sons' association and a bricklayers' union that provisions in a building contract for the fireproofing of the building shall not be sublet, which is made for the benefit of the bricklayers, is not a conspiracy, although it incidentally works injury to manufacturers of fireproofing material. National Fire- proofing Co. v. Mason Builders' Asso. 26: 148, 169 Fed. 259, 94 C. C. A. 535. 41. The enforcement of a provision in a contract between mason contractors and bricklayers that items in building contracts for fireproofing shall not be sublet, by a clause forbidding bricklayers to work for those who do not comply with it, and by strikes, and notification to contractors that they cannot take contracts contrary to the terms of the agreement, without incurring the penalty, is not unlawful or oppressive so as to effect a conspiracy. National Fire- proofing Co. v. Mason Builders' Asso. 26: 148, 169 Fed. 259, 94 C. C. A. 535. To compel discharge of employee. Damages for, see DAMAGES, 309. Question for jury as to justifiableness of, see TRIAL, 633. See also supra, 39; infra, 60; CASE, 37-39. 42. Interference by a combination of per- sons to obtain the discharge of a workman because he refuses to comply with their wishes and join a union for their advantage cannot be justified as a part of the compe- tition of workmen with one another. Ber- ry v. Donovan, 5: 899, 74 N. E. 603, 188 Mass. 353. (Annotated) 43. A combination of two or more per- sons, without justification, to injure any workman by inducing employers not to em- ploy him or continue to employ him, is, if it results in damage to him, actionable. Giblan v. National Amalgamated Laborers' Union of Great Britain and Ireland, 1 B. R. C. 528, [1903] 2 K. B. 600. Also Re- ported in 72 L. J. K. B. N. S. 907, 89 L. T. N. S. 386, 19 Times L. R. 708. ( Annotated ) 44. An action will lie against a trade union for procuring the employer to break a contract of apprenticeship by giving no- 528 CONSPIRACY, IV. tice that if the engagement of plaintiff as an apprentice should be continued other employees who were members of the union would be called out, even though plaintiff's employment may have been in violation of a previous agreement between the union and the employer. Read v. Friendly Soc. of Operative Stonemasons of England, Ire- land & Wales, 1 B. R. C. 503, [1902] 2 K. B. 732. Also Reported in 71 L. J. K. B. N. S. 994, 51 Week. Rep. 115, 87 L. T. N. S. 493, 19 Times L. R. 20, 66 J. P. 822. (Annotated) 45. A belief that such action was for the best interests of the union is no justi- fication for procuring plaintiff's discharge by a threat to call a strike against his em- ployer. Read v. Friendly Soc. of Oper- ative Stonemasons of England, Ireland & Wales, 1 B. R. C. 503, [1902] 2 K. B. 732. Also Reported in 71 L. J. K. B. N. S. 994, 51 Week Rep. 115, 87 L. T. N. S. 493, 19 Times L. R. 20, 66 J. P. 822. 46. As to whether it would be a good defense to an action for unlawful interfer- ence with one's employment by notifying his employer to that effect, that his fellow- workmen were unwilling to work with him, quecre. Giblan v. National Amalgamated Laborers' Union of Great Britain and Ire- land, 1 B. R. C. 528, [1903] 2 K. B. 600. Also Reported in 72 L. J. K. B. N. S. 907, 89 L. T. N. S. 386, 19 Times L. R. 708. To establish or maintain closed shop. See also supra, 43. 47. The mere enforcement, by a building trades council and labor unions which it represents and their members, of a rule of the union that members will not work with nonunion men or handle the product of their labor, by calling out its members from a plant which employs nonunion men, and notifying consumers that the plant is un- fair, does not constitute conspiracy to sub- ject the business of such plant to their con- trol against which an injunction will lie, and the motives by which they were actuat- ed are immaterial. J. F. Parkinson Co. v. Building Trades Council, 21: 550, 98 Pac. 1027, 154 Cal. 581. Strikes. Boycott in aid of strike, see supra, 25. Picketing by striking employees, see infra, 62-65. Punishment for violation of injunction as to, see CONTEMPT, 109. Damages for, see DAMAGES, 309. Injunction against strikes or strikers, see INJUNCTION, 131-137, 141-152, 157. See also supra, 41. 48. Employees who combine to quit their employment for he advancement of their interests by peaceable and lawful means are not guilty of conspiracy, although the i effect may be to injure the employer's busi- ness. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2: 788, 75 N. E. 877, 165 Ind. 421. 49. Employees under no contractual re- straint may lawfully combine by prear- rangement, and quit their employment in a body, for the purpose of securing some le- Digest 1-52 KR.A.(N.S.) gitimate benefit, even though they know that the action will be attended with in- jury to the employer's business, provided the strike is carried on in a lawful manner. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2: 788, 75 N. E. 877, 165 Ind. 421. 50. That a few members of a union on a strike disregard its instructions, and in- timidate the employees of their former em- ployer, does not charge the union with re- sponsibility for their acts. Karges Furni- ture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2:788, 75 N. E. 877, 165 Ind. 421. 51. A labor union has a right to strike against the recognition in a shop of a sys- tem of piecework which allows workers to employ helpers, the effect of which is, in times of slack work, to deprive those not employing helpers of continuous work, al- though success may result in throwing out of employment those who have been em- ployed merely at will as helpers, and injure the employer. Minasian v. Osborne, 37: 170, 96 N. *E. 1036, 210 Mass. 250. 52. The presentation, by representatives of a labor union, to a concern against which a strike has been declared, of an agreement for signature embodying the conditions up- on which union men will re-enter its service, is not unlawful. J. F. Parkinson Co. v. Building Trades Council, 21: 550, 98 Pac. 1027, 154 Cal. 581. 53. The members of a labor union may, in order to secure for themselves the work of pointing the buildings in which they lay the brick and stone, strike in case .the work is given to others, although the general con- tractor can employ professional pointers to greater advantage to do the work, and the success of the strike will deprive the point- ers of employment at their trade. Pickett v. Walsh, 6: 1067, 78 N. E. 753, 192 Mass. 572. (Annotated) 54. Members of a labor union cannot re- fuse to work on other jobs of a contractor merely because he is employed on a building the owner of which employs, to do part of his work, followers of a trade the work done by which the union is trying to absorb by refusing to do any work on buildings where the work represented by such trade is re- quired unless such work is given to them. Pickett v. Walsh, 6: 1067, 78 N. E. 753, 192 Mass. 572. 55. The mere fact that a particular la- bor union has adopted rules refusing to work on buildings where a certain class of work is given to others than members of the union does not justify a decree against its members in a suit to enjoin a strike, where it is not shown to have taken any part in the strike. Pickett v. Walsh, 6: 1067, 78 N. E. 753, 192 Mass. 572. 56. A labor union cannot escape liability for the acts of its members which are the direct result of a strike which it has inau- gurated, on the ground that its officers ad- vised the members to be orderly and obey CONSTABLE CONSTITUTIONAL LAW. 529 the law. Franklin Union No. 4 v. People, 4: 1.00 1, 77 N. E. 176, 220 111. 355. 57. Demands of laborers for increased wages and that wages shall be paid during working hours are properly enforced by a strike. L. D. Willcutt & Sons Co. v. Dris- coll, 23: 1236, 85 X. E. 807, 200 Mass. 110. 58. A combination of employees to com- pel the employer to permit representatives of a union to adjust all differences between employer and employees, and to enforce compliance with the decision by a strike on the part of all, is illegal. Reynolds v. Davis, 17: 162, 84 N. E. 457, 198 Mass. 294. 59. Striking members of a labor union have no right to use argument and per- suasion to prevent other laborers from tak- ing their places, for the purpose of injur- ing the business of their former employers in order to coerce them into granting the demands of the union, since such acts are directed to an unlawful purpose. Chicago Typographical Union No. 16 v. Barnes, 14:1018, 83 N. E. 940, 232 111. 424. 60. The deposition of a foreman who is distasteful to some of the employees of a shop, merely because his enforcement of rules is too rigid to please them, is not a legal purpose for a strike. DeMinico v. Craig, 42: 1048, 94 N. E. 317, 207 Mass. 593. (Annotated) 61. The employment of assault and du- ress by members of labor unions in further- ing a strike undertaken against the repre- sentatives of a certain line of business in a certain city to enforce demands with re- sprct to wages, time, work, apprentices, etc., Avi'I not be regarded as within the terms of a statuts making it illegal to combine for the purpose of "doing harm maliciously for the sake of the harm as an end in itself," so as to make illegal the whole strike. Iron Molders' Union No. 125 v. Allis-Chalmers Co. 20: 315, 166 Fed. 45, 91 C. C. A. 631. Picketing premises. Contempt by picketing, see CONTEMPT, 46- 49. Injunction against, see CONTEMPT, 108; IN- JUNCTION. 135, 148-152. Municipal authority to prevent picketing on city streets, see MUNICIPAL CORPO- RATIONS, 99. 62. Striking employees may picket their former places of employment to prevent strike breakers from taking their places so long as they do not resort to intimidation or obstruct public thoroughfares. Everett Waddev Co. v. Richmond Typographical Union No. 90, 5: 792, 53 S. E. 273, 105 Va. 188. 63. The maintenance, by striking em- ployees, of pickets to take the names of per- sons remaining at work for their former employer, and of those seeking to enter his employment, and to seek by peaceable means, withov.t intimidation, to persuade them to join the strikers, is not unlawful; nor does it render the participating persons guilty of a conspiracy. Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 2: 788, 75 N. E. 877, 165 Ind. 421. Digest 1-52 L.R.A.(N.S.) 64. The acts of striking members of a labor union in picketing the premises of their former employers, and in the use of threats, assaults, and other acts of intimi- dation, for the purpose of preventing others from working for them, cannot be justified on the ground that they are done, in the course of labor competition for the pro- motion of the welfare of union laborers. Chicago Typographical Union No. 16 v. Barnes, 14: 1018, 83 N. E. 940, 232 111. 424. 65. Members of a labor union have no right to establish a peaceful picket line around shops of their former employers for the purpose of inducing or soliciting em- ployees to leave their work, since this is itself an act of intimidation and an unwar- ranted interference with the rights of the employer. Chicago Typographical Union No. 16 v. Barnes, 14: 1018, 83 N. E. 940,232 111. 424. CONSTABLE. Acceptance of part of claim for fees as an accord and satisfaction, see ACCORD AND SATISFACTION, 7. Liability for killing dog, see ANIMALS, 41. Bond of, see BONDS, 67, 68. Larceny by, see LARCENY, 24. Authority of constable in justice's court to levy fi. fa. issued by superior court, see LEVY AND SEIZURE, 19. Right to reward, see OFFICERS, 90; REWARD, 1,2. Nature of office, see OFFICERS, 90. 1. That a constable has not given the bond required by statute to qualify him for serving civil process does not disqualify him for serving a venire for the summoning of a jury in a criminal case. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. CONSTITUTION. Of baseball league, see ASSOCIATION, 10. Of benefit society, see BENEVOLENT SO- CIETIES, III.; INSURANCE, 93-114. Of religious society, see RELIGIOUS SO- CIETIES, II. a. In general, see CONSTITUTIONAL LAW. CONSTITUTIONAL LAW. I. In general; governmental matters, 1-149. a. Adoption; amendment; con- struction, 131. 1. In general; adoption, 1. 2. Amendments, 218. 3. Construction, 1931. a. In general, 1925. b. Application of Feder- al Constitution to states, 26. 530 CONSTITUTIONAL LAW. /. o, 3 continued. ! c. Self-executing provi- sions, 2731. ft. Ex post facto and retrospec- tive laws, 324:81). 1. Ex post facto laws, 32 4O. 2. Retrospective laws, 41 481). a. In general, 4143. ft. Curative acts, 44481). o. Vested rights, 49-7O. d. Delegation of powers, 71124. 1. In general, 7176. 2. To people, 7785. 3. To judiciary, 8689. 4. To local authorities, boards, and commission- ers, 9O123. 5. Of judicial power, 124. e. Separation of powers, 125 142. 1. In general, 125127. 2. Encroachment on judicial power, 128142. 3. As to appointment of of- ficers. f. Local self-government, 143 149. Q. Functions and powers of state. h. Abandonment of power. U. Rights of persons and property, ISO 828. a. Equal protection and privileg- es; abridging immuni- ties and privileges, ISO 347. 1. In general, 15O197. 2. As to nonresidents or aliens ; foreign cor- porations , 198 2O4. a. Nonresidents, 198 202. b. Aliens, 2O2a. c. Foreign corporations, 2O3, 204. 3. As to corporations, associ- ations, . and carriers, 2O522O. a. In general, 2O52O7. b. Railroad companies; carriers, 2O822O- 4. .1* to taxes and assess- ments, 221233. 6. As to regulation of busi- ness; license, 231 329a. a. In general, 234291. b. Sunday laws, 292 297. C. As to employees, 298 329. d. Regulating rates , 329a. 6. Attorney's fees; costs; penalties; damages, 330 333. 7. Matters of practice. 8. Criminal matters, 334 347. Digest 1-52 I*R.A.(N.S.) //. continued. b. Due process of law or law of the land; guaranty of right to life, liberty, and property, 348 63O. 1. In general, 348358. 2. As to property rights gen- erally, 359 4OO. a. In general, 359399. b. Eminent domain, 400. 8. Taxation and public im- provements, 40 1415. 4. As to regulation of busi- ness ; inspection ; li- cense; restrictions on right of contract, 416514. a. In general, 416452. b. Restricting right of contract, 453 491. (1) In general, 453 466. (2) With employees, 467-491. C. Regulation of rates, 492498. d. Regulation of sales, 499-514. O. As to use or enjoyment of property, 515531. 0. As to rights in office, 531a533. 7. Remedies and procedure, 534626. a. In general, 534573. 'b. As to right of action or defense, 574 581. (1) Of action, 574- 577. (a) In general, 574. (b) A g ainst rai I road c o m p a- nie s or car r iers, 575- 577. (2) Of defense, 578- 581. c. Notice and hearing, 582-614. d. As to evidence; wit- nesses, 615626. 5. Criminal matters, 627 63O. C. Police power, 631 750. 1. In general, 631642a. 2. State engaging in busi- ness. 3. As to use, enjoyment, and destruction of property, 643-663. 4. Restrictions on contracts, business, and occu- pations; health, 664 748. a. In general, 664687. CONSTITUTIONAL LAW. 531 //. o, 4 continued. b. Particular occupations and bitsiness, 688 716. c. Matters beticeen mas- ter and servant, 71 7 724: d. Regulation of manu- facture and sales, 725748. 5. As to vices; crimes, 749, 75O. . d. Freedom of speech, press, and worship, 751765. e. Natural rights; implied guar- anties. /. Guaranties of justice. g. Impairing obligation of con- tracts, 766818. 1. As to .subject-matter, 766 SO4. a. In general; by stat- utes or ordi- nances, 766 800. (1) Generally, 766 785. (2) As to corporate rights, prop- erty, and ' lia- bilities, 786- 800. b. By change of deci- sions, 8O18O4. 2. As to remedies, 8O5818. h. Guaranty of republican form of government, 819825. i. Rights of assembly and peti- tion, 826828. Who may question constitutionality of stat- ute or ordinance, see ACTION OB SUIT, 46-54; STATUTES, 28-34. Waiver of constitutional question by appeal- ing to intermediate court, see APPEAL AND ERROR, 483. Review of determination of lower court that decision of constitutional question is necessary, see APPEAL AND ERROR, 484. Limiting review on appeal to decision of constitutional question, see APPEAL AND ERROR, 499. Raising question of constitutionality of law for first time on appeal, see APPEAL AND ERROR, 739. Jurisdiction of United States Supreme Court over constitutional questions, see AP- PEAL AND ERROR, II. a. Jurisdiction of state courts over constitu- tional questions, see APPEAL AND ER- ROR, II. c, 2. Statute requiring attorney to prosecute dis- barment proceedings without fees, see ATTORNEYS, 51. As to regulation of carriers, see CARRIERS, IV. Right to bear arms, see CARRYING WEAPONS. As to civil rights, see CIVIL RIGHTS. As to civil service laws, see CIVIL SERVICE. As to regulation of interstate commerce, see COMMERCE. As to confiscation, see CONFISCATION. Digest 1-52 L.R.A.(N.S.) As to imprisonment for debt, see CONTEMPT, 110, 111; IMPRISONMENT FOR DEBT. Constitutional provision as to issue of stock by corporation, see CORPORATIONS, 212. Injunction against enforcement of state statute alleged to violate Federal Con- stitution, see COURTS, 272, 284-286. Excessive fines, see CRIMINAL LAW, 249; PENALTIES, 2. Power of legislature under Constitution to confer upon courts power to suspend sentence of criminal, see CRIMINAL LAW, 280, 281. Cruel and unusual punishment, see CRIMI- NAL LAW, IV. b. As to voters and elections generally, see ELECTIONS. As to taking property for public use, see EMINENT DOMAIN. Presumption as to constitutionality of stat- ute, see EVIDENCE, 84, 85. Rebuttal of presumption of constitutional- ity of statute, see EVIDENCE, 2049. Regulation of fishing, see FISHERIES. Provision requiring sale of public franchises to highest bidder, see FRANCHISES, 1. Review of, on habeas corpus proceedings, see HABEAS CORPUS, 26-29. Seizure of insurrectionists by militia, see IN- SURRECTION, 2. Power of legislature to provide constructive service of notice to revive lien of judg- ment, see JUDGMENT, 322. Requirement of full faith and credit to judg- ment of other state, see JUDGMENT, IV. b. Right to trial by jury, see JURY, I. Right to attack constitutionality of statute in mandamus proceeding, see MAN- DAMUS, 128-134. Constitutionality of commission form of government, see MUNICIPAL CORPORA- TIONS, 11. As to appointment and election of officers, see OFFICERS, I. b. Increasing or reducing officer's compensa- tion during term, see OFFICERS, 92-94. Determining constitutionality of statute on demurrer, see PLEADING, 653. As to use of public funds, see PUBLIC MONEYS. Constitution of church, see RELIGIOUS SO- CIETIES, II. a. Constitutionality of statutes regulating schools, generally, see SCHOOLS, I. a. As to search and seizure, see SEARCH AND SEIZURE. As to enactment of statute, see STATUTES, I. a. As to time of passage and taking effect of statute, see STATUTES, I. b. Validity of statutes generally, see STAT- UTES, I. c. Effect of partial invalidity of statute, 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. As to privilege of witness, see WITNESSES, II. c. 532 CONSTITUTIONAL LAW, I. a, 1, 2. I. In general; governmental matters. a. Adoption; amendment; construction. 1. In general; adoption. (See also same heading in Digest L.R.A. 1-70.) 1. The ordinance of 1787 is entirely superseded by the Constitution of a state created out of the territory covered by the ordinance, since the state, upon its admis- sion into the Union, becomes a sovereign state with full and complete rights of sov- ereignty, and as free from the operation of the articles of the ordinance of 1787 as any of the original states parties to the Fed- eral compact. State ex rel. Donahey v. Ed- mondson, 52: 305, 105 N. E. 269, 89 Ohio St. 103. (Annotated) 2. Amendments. (See also same heading in Digest L.R.A. 1-10.) Review of legislative action as to, see COURTS, 108, 109. * Collusiveness on courts of governor's proclamation declaring amendment adopted, see COURTS, 109. Filling office created by amendment at elec- tion at which amendment is adopted, see OFFICERS, 23. See also infra, 130, 349, 821. 2. An amendment to the Constitution cannot be invalidated because it does not ac- cord with other provisions in the Constitu- tion. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313: 3. A constitutional amendment to validate certain unconstitutional legislation is not insufficient because it does not set out in full the statutes to be validated, and they do not appear in full in the statute providing for submission of the amendment to the voters. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 4. The guaranty in the 6th Amend- ment of the Federal Constitution of an im- partial jury has no application to trials in a state court for violation of state laws. State v. McDowell, 32: 414, 112 Pac. 521, 61 Wash. 398. 5. A requirement that a published amendment to the Constitution shall be en- tered in the journals of the legislature does not require publication of the journals be- fore the amendment can be submitted to the people. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. Publication of proposed amendment. 6. A proclamation by the governor of a proposed submission of an amendment to the Constitution to the electors is suffi- cient, which sets out the statute proposing the amendment and declaring when the sub- mission will be made. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 7. Where an amendment to the Con- Digest 1-52 L.R.A. (N.S.) stitution has been proposed by the legisla- ture in the manner provided by that in- strument, and it has been submitted to the voters for ratification at the prescribed time and in substantially the prescribed manner, and has been ratified by them, such amendment will not be declared void, even if it should appear that an executive or ministerial officer did not comply strict- ly with the law as to the extent of publica- tion in a particular newspaper. Hammond v. Clark, 38: 77, 71- S. E. 479, 136 Ga. 313. 8. A publication once each week dur- ing the two calendar months preceding an election, resulting in nine insertions in all, complies with a constitutional requirement that a proposed amendment shall be pub- lished in a newspaper in each district two months previous to holding the elec- tion. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 9. That a proposed constitutional amendment, instead of being published in a certain county for three months immediate- ly preceding the election, as provided by the Constitution, was published for one week less, will not invalidate the amendment, since a substantial compliance with the con- stitutional requirement is sufficient. State ex rel. Thompson v. Winnett, 10: 149, 110 N. W. 1113, 78 Neb. 379. (Annotated) Form of submitting amendments. 10. It is not necessary that a proposed constitutional amendment should be printed in full upon the official ballot, but it is sufficient if enongh is printed upon the bal- lot to identify the amendment and show its character and purpose. State ex rel. Thompson v. Winnett, 10: 149, 110 N. W. 1113, 78 Neb. 379. 11. Where a constitutional amendment was submitted to the qualified voters of the state for ratification or rejection, the fact that in one county the printed ballots con- tained only a form of vote for ratification, and no form for voting against it, will not alone cause the amendment, after ratifica- tion, to be declared void. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 12. A proposed amendment to the Con- stitution increasing certain salaries as to the future, and ratifying a prior increase by the legislature, is not void because sub- mitted on one ballot, under a Constitution providing that, when more than one amend- ment is submitted at the same time, they shall be so submitted as ro enable the voters to vote on each amendment sepa- rately. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. Vote on question of adopting. 13. It is within the power of the legis- lature of Nebraska to provide for the count- ing of straight party votes in favor of a proposed constitutional amendment in- dorsed by the political parties of the state, and made a part of their ticket. State ex rel. Thompson v. Winnett, 10: 149, 110 N. W. 1113, 78 Neb. 379. Majority required for adoption of. 14. A majority of the electors voting upon the question of the adoption of an CONSTITUTIONAL LAW, I. a, 3. 533 amendment to the Constitution is not alone sufficient to ratify it where the Constitution provides that the amendment shall become a part of tiie Constitution if a majority oi the electors shall ratify it. State ex rel. Blair v. Brooks, 22: 478, 99 Pac. 874, 17 Wyo. 344. (Annotated) Effect of; repeal of existing law. As to self-exacting provisions generally, see infra, I, a, 3, c. 15. Pending informations are not affect- ed by the adoption of a constitutional amendment providing that no person shall be charged with the commission of any crime except upon indictment found by the grand jury. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450, 474. 1C. Where the legislature has exercised control over the police of a municipal cor- poration, the further right to do so is r. ~t denied by the adoption of a constitutional provision that it shall continue to exercise the powers it has hitherto exercised. Hor- ton v. Newport, i: 512, 61 Atl. 759, 27 R. I. 283. 17. The amendment of the Constitution of the state of Kansas, prohibiting the man- ufacture and sale of intoxicating liquors ex- cept for medical, scientific, and mechanical purposes, affected only the power of the legis- lature to tolerate and did not abridge its power further to restrain or prohibit the liquor traffic. State v. Durein, 15: 908, 78 Pac. 152, 70 Kan. 1. 18. A constitutional amendment author- izing the legislature to fix the hours of la- bor upon public work controls former pro- visions of the instrument, which had been held by the courts to preclude such legisla- tion. People ex rel. Williams Engineering & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. 3. Construction, a. In general. (See also same heading in Digest L.R.A 1-70.) Federal courts following state decisions as to construction of Constitution, see COURTS, 325. Presumption as to construction of constitu- tional provision adopted from other state, see EVIDENCE, 83. Of provision abrogating fellow-servant rule, see MASTEE AND SERVANT, 752, 780. Of terms of Constitution providing for col- lection of taxes, see STATUTES, 210. Of constitutional provision against private ownership of tide lands, see WATERS, 77, 78. See also infra, 348. 19. The readoption of a constitutional provision carries with it the construction which has been placed upon it by the legis- lature. BullHt v. Sturgeon, 14:268, 105 S. W. 468, 127 Ky. 332. 20. The readoption of a constitutional provision includes a judicial construction Digest 1-52 L.R.A.(N.S.) which has been given to it. Sexauer v. Star Milling Co. 26: 609, 90 N. E. 474, 173 Ind. 342. 21. Article 3 of Minnesota Constitution, providing that the powers of government shall be divided into executive, legislative, and judicial, etc., does not apply to munici- pal governments; and neither its expressed intent nor its spirit can be read into Const, art. 4, 36, so as to extend the limitation imposed by the latter on the form of munic- ipal government, and thereby make it co- extensive with the limitation imposed by the former upon the form of state govern- ment. State ex rel. Simpson v. Mankato, 41: in, 136 N. W. 264, 117 Minn. 458. 22. "May" is not to be construed as "shall" in a constitutional provision, unless from the whole context the purpose plainly appears that it shall be mandatory. State ex rel. Greaves v. Henry, 5: 340, 40 So. 152, 87 Miss. 125. (Annotated) 23. The legislature may lease farms on which to work convicts, under a constitu- tional provision that it may place convicts on state farms, and "may buy farms for that purpose." State ex rel. Greaves v. Henry, 5: 340, 40 So. 152, 87 Miss. 125. 24. The purchase of farms for the work- ing of state convicts is not required by a constitutional provision that the legislature may place the convicts on a state farm, and "may buy farms for that purpose." State ex rel. Greaves v. Henry, 5: 340, 40 So. 152, 87 Miss. 125. 25. A constitutional prohibition of dam- aging private property for public use with- out compensation applies to work done after the provision takes effect, under ordinances passed before that time. Swift & Co. v. Newport News, 3:404, 52 S. >. 821, 105 Va. 108. (Annotated) b. Application of Federal Constitution to states. (See also same heading in Digest L.R.A. 1-70.) 26. The Federal constitutional provision that no person shall be twice put in jeopardy for the same offense, nor be de- prived of life, liberty, or property without due process of law, constitutes a limitation upon the power of the Federal government, and not upon the individual states. Brant- ley v. State, 22: 959, 64 S. E. 676, 132 Ga. 573. c. Self -executing provisions. (See also same heading in Digest L.R.A. 1-70.) See also supra, 15-18. 27. The provisions of the 18th article of the Ohio Constitution, as amended in Sep- tember, 1912, providing for home rule for cities, are not self-executing, but continued in force the general laws for the govern- j ment of cities and villages until the lothj 534 CONSTITUTIONAL LAW, I. b, 1. of November following, and thereafter until changed by the enactment of general laws for their amendment, or by additional laws to be ratified by the electors of the munici- pality to be affected thereby, or by the adoption of a charter by the electors of a municipality in the mode pointed oftt in the article. State ex rel. Toledo v. Lynch, 48: 720, 102 N. E. 670, 88 Ohio St. 71. 28. The constitutional provision enti- tling every man to a certain remedy for all injuries or wrongs received in his person, property, or character is not self-executing. Henry v. Cherry, 24: 991, 73 Atl. 97, 30 R. I. 13. 29. A constitutional provision prohib- iting marriages between white persons and persons having one eighth, or more, negro blood, is self-acting, in the absence of any other provision in the same instrument, lim- iting its operation. Succession of Gabisso, ii : 1082, 44 So. 438, 119 La. 704. As to matters of eminent domain. 30. A constitutional provision that pri- vate property shall not be damaged for pub- lic use without compensation is self-ex ecuting, and the common law will furnish an appropriate remedy in the absence of one expressly given by Constitution or statute. Swift & Co. v. Newport News, 3: 404, 52 S. E. 821, 105 Va. 108. As to corporations. 31. A constitutional provision imposing a liability on stockholders of a corpora- tion for its debts is self -executing, and ex- ists independent of the legislature, which may regulate the procedure for its enforce- ment; but it cannot destroy the right to have the liability enforced. Way v. Bar- ney, 38: 648, 133 N. W. 801, 116 Minn. 285. 6. Ex post facto and retrospective laws. 1. Ex post facto laws. (See also same heading in Digest L.R.A. 1-10.) 32. A statute passed after the commis- sion of a crime, reducing the number of judges who shall preside at the trial, is not invalid as an ex post facto law. Com. v. Phelps, 37: 567, 96 N. E. 349, 210 Mass. 78. 33. The repeal, after the commission of an alleged forgery, of a statute which pre- vents the use against accused of any dis- covery or evidence obtained from him by means of any judicial proceeding, so as to permit the use against him of the paper alleged to have been forged, which was originally exhibited by him in an equity suit, and of his testimony in that suit, is ex post fncto and invalid, where the crime could not have been established without the aid of the record in the other suit. Frisby v. United States, 37: 96, 38 App. D. C. 22. 34. A law curtailing the number of per- emptory challenges which a defendant may have in the impaneling of a trial jury, enacted after the commission of the offense charged, is not ex post facto as to such Digest 1-52 L.R.A. (N.S.) offense. Harris v. United States, 31:820, 111 Pac. 982, 4 Okla. Crim. Rep. 317. (Annotated) 35. An amendatory act increasing the penalty of a bond essential to the suspen- sion of sentence in a prosecution against a husband for abandonment is ex post facto as to prior offenses. State v. McCoy, 28: 583, 127 N. W. 137, 87 Neb. 385. 36. A state statute which attempts to deprive one who has committed an offense under the territorial government, of his right to be accused by indictment of a grand 'jury, is ex post* facto and invalid. Garnsey v. State, 38: 600, 112 Pac. 24, 4 Okla. Crim. Rep. 547. (Annotated) 37. A statute providing that a person acquitted of a criminal charge on the ground that he was insane when the of- fense was committed, shall be committed to the asylum for the dangerous insane, and shall not be liberated therefrom except as prescribed in the act, is not ex post facto as to a person tried and acquitted on that ground after the statute was enacted for an offense committed before its passage. Re Clark, 39: 680, 121 Pac. 492, 86 Kan. 539. Extent or severity of punishment. 38. The act of the legislature, providing that, upon a second conviction for a viola- tion of the prohibitory liquor law, a higher punishment shall be inflicted, is a reason- able classification, which the legislature has the power to make, and is not an ex post facto law, although by its terms it may be enforced against one whose former convic- tion occurred before its passage. Jones v. State, 48: 204, 133 Pac. 249, 9 Okla. Crim. Rep. 646. (Annotated) 39. A statute prescribing that the pun- ishment of death must be inflicted by elec- trocution, instead of giving the court a dis- cretion as to whether the punishment should be inflicted by hanging or by electrocution, and substituting the penitentiary for the county jail as a place where a judgment of death must be executed, and requiring the court to appoint a day for the execution not less than sixty, and not more than ninety days from the time of the judgment, instead of thirty and sixty days as fixed by the former statute, is not an increase of pun- ishment nor an ex post facto law as applied to a person convicted of murder committed before its enactment, especially where an appeal is pending from the judgment at the time act takes effect. Alberty v. State, 52: 248, 140 Pac. 1025, 10 Okla. Crim. Rep. 616. 40. Where a statute prescribes the qualifications of a physician, and proscribes the grossly immoral, and authorizes the cancelation of any certificate issued to such persons, the application of this law to one whose habits were grossly immoral be- fore the passage of the law is not in the nature of a punishment, and therefore the statute is not ex post facto, but has in view only the qualifications of the physician and the protection of public morals. Meffert v. Packer, 1:811, 72 Pac. 247, 66 Kan. 710, CONSTITUTIONAL LAW, I. b, 2. 535 affirmed in 25 Sup. Ct. Rep. 790, 195 U. S. 625, 49 L. ed. 350. 2. Retrospective laws. a. In general. (See also same heading in Digest L.R.A. 1-10.) Change in statute of limitations, see LIMI- TATION OF ACTIONS, I. a. As to when statutes are retrospective, see STATUTES, II. d. 41. Constitutional provisions prescribing the manner in which a municipal corpora- tion may enter into a contract, and its duration, and prohibiting it from incurring indebtedness, do not, under the provisions of the Federal Constitution, forbidding states to impair the obligation of con- tracts, control a renewal in accordance with its own provisions of a contract existing at the time they were adopted. Slade v. Lex- ington, 32: 201, 132 S. W. 404, 141 Ky. 214. 42. A provision in a statute of limita- tions that it shall not affect pending actions is nugatory, since the legislature has no right to interfere with rights of action after suit has been brought on them. Slover v. Union Bank, i: 528, 89 S. W. 399, 115 Tenn. 347. (Annotated) 43. A statute denying the right to re- move causes from state to Federal courts may be made to apply to rights of action which have already arisen. Teel v. Chesa- peake & 0. R. Co. 47: 21, 204 Fed. 918, 123 C. C. A. 240. b. Curative acts. (See also same heading in Digest L.R.A. 1-70.) Imparing contract obligations generally, see infra, II. g. Legalizing drainage proceedings, see DRAINS AND SEWERS, 4, 5. Special act validating city election, see STATUTES, 176. Special act legalizing school bonds, see STATUTES, 178. See also supra, 3, 12; infra, 130, 821. 44. A curative act providing that the action of all cities that have adopted the commission form of government at an elec- tion by popular vote in pursuance of a statute providing a scheme therefor shall be, after the passage of such curative act, ratified and legalized regardless of any ir- regularities that may have occurred in such election, legalizes all city elections previous- ly held for such purpose at which a ma- jority of the votes cast were in favor of such proposition. Cole v. Dorr, 22: 534, 101 Pac. 1016. 80 Kan. 251. 45. A state legislature has power to pass a curative act validating a petition for street paving already on file, but void be- cause of specifying the brand of material Digest 1-52 L.R.A.(N.S.) to be used, notwithstanding it affects only a single city, as being within a certain class of cities as existing at time of statute; and chapter 91, Kan. Law 1911, prescribing what such petitions shall and shall not set forth, and providing that nothing therein con- tained shall be held to invalidate any peti- tion theretofore ordered spread upon the journal in the manner provided by law, and expressly providing that "all such petitions shall be held valid," validates such a peti- tion. Pollock v. Kansas City, 42: 465, 123 Pac. 985, 87 Kan. 205. (Annotated) 45a. A constitutional amendment ratify- ing an unconstitutional act increasing judges' salaries, which were paid by war- rants indorsed by them, does not violate the provision of the Federal Constitution against impairing the obligation of con- tracts, on the theory that the indorsement was a contract to return the salary in case the statute authorizing it shall be held to be invalid. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 46. A foreclosure of a mortgage invalid because of defect in the acknowledgment of an assignment of the mortgage cannot be cured by a subsequent statute. Kenny v. McKenzie, 49: 775, 120 N. W. 781, 23 S. D. 111. 47. A curative act purporting to vali- date all proceedings prosecuted to judg- ment under a statute permitting a county court to vest the fee to a homestead in the surviving spouse upon payment by her to the heirs of the proportionate share de- scending to them, before such statute was* held unconstitutional and void, contravenes the constitutional provision that no person shall be deprived of his property without due process of law, where a statute enacted prior to the act attempting to confer pow- er upon the county court, and which was not repealed or amended thereby, provided' that the surviving spouse should have but a life estate in the homestead, with re- mainder to the heirs. Draper v. Clayton, 29: 153, 127 N. W> 369, 87 Neb. 443. Acknowledgments. Due process as to, see infra, 388, 389. See also infra, 54; ACKNOWLEDGMENT, IV. 48. The legislature may validate the ac- knowledgment of an existing deed which was taken by a proper officer, but was lack- ing in certain formal matters required by statute, so as to render the deed effectual against the grantor, without unconstitu- tionally impairing the obligation of a con- tract. Eckles v. Wood, 34: 832, 136 S. W. 907, 143 Ky. 451. 48a. A statute validating an informal ac- knowledgment to a deed, so as to render the instrument binding on the grantor, is not an ex post facto law. Eckles v. Wood, 34: 832, 136 S. W. 907, 143 Ky. 451. 48b. No obligation of contract is im- paired by a statute giving effect to a de- fectively acknowledged deed which has been on record ten years, so far as it applies to one who purchased the property from the grantor's heirs fifty years after the execution of the deed, with full knowledge 536 CONSTITUTIONAL LAW, I. c. of the facts. Downs v. Blount, 31: 1076, 170 Fed. 15, 95 C. C. A. 289. (Annotated) c. Vested rights. (See also same heading in Digest L.R.A. 1-10.) As to impairing obligation of contracts, see infra, II. g. Change of by-law impairing vested right of member of benevolent society, see BE- NEVOLENT SOCIETIES, 11. Interference with vested right by ordinance segregating races, see CIVIL RIGHTS, 9. Repeal of statute making rents, profits, and proceeds of separate property during marriage common property, see HUS- BAND AND WIFE, 71. In rule of common law, see COMMERCE, 58. In rule of practice as to new trial, see NEW TRIAL, 14. In practice of medicine, see PHYSICIANS AND SURGEONS, 2. To use of water, see WATERS, 184. Retrospective effect of statute extending right of appeal, see STATUTES, 295. See also infra, 382. 49. A person who is not a party or privy to an action cannot have a vested right in an erroneous decision made therein. Crig- ler v. Shepler, 23: 500, 101 Pac. 619, 79 Kan. 834. 50. An owner of property has no vested or constitutional right to use it, or allow the use of it, for purposes injurious to the public health or morals, and if he has knowledge or notice in the premises, he cannot complain if loss ensues, when the law deals therewith in any way reasonably necessary for the suppression of the evil in connection with which it was used. State ex rel. Robertson v. Lane, 52: 932, 147 N. W. 951, 126 Minn. 78. 51. An owner of personal property cov- ered by a contract of conditional sale execu- ted prior to the enactment of Laws 1913, chap. 562 (Gen. Stat. 1913, 8717-8726), forfeiting property used in connection with a bawdyhouse, has no vested right, con- tractual or otherwise, to allow it to be used in connection with the maintenance of a bawdyhouse after the passage of the act, even if prior thereto such sale and use were not unlawful. State ex rel. Robertson v. Lane, 52: 932, 147 N. W. 951, 126 Minn. 78. 52. The water of a navigable lake can- not be withdrawn below the original low- water mark for irrigation purposes, to the injury of a riparian owner who acquired his rights prior to the adoption of the consti- tutional provision vesting title to the nav- igable waters in the state. Madson v. Spokane Valley Land & Water Co. 6: 257, 82 Pac. 718, 40 Wash. 414. (Annotated) 53. A legislative attempt, in authorizing the appropriation of water for municipal uses, to limit the right to compensation to those only whose rights in the water vested prior to the passage of the statute, impairs the constitutional property rights which vest Digest 1-52 L.R.A.(N.S.) after such passage, but prior to the institu- tion of the appropriation proceedings. Sterling v. Pawnee Ditch Extension Co. 15: 238, !)4 Pac. 339. 42 Colo. 421. 54. One who purchases real estate from the heirs of a grantor whose deed was de- fectively acknowledged, at a time when liti- gation concerning the title is pending, ac- quires no vested right to the property which cannot be affected by legislation cur- ing the defective acknowledgment. Downs v. Blount, 31: 1076, 170 Fed. 15, 95 C. C. A. 289. 55. An act of the legislature, which post- pones an existing valid mortgage lien, and makes a subsequently created lien superior to the mortgage lien, is a law impairing vested property rights and impairing the obligations of a contract, and is void for conflict with the Constitution of the United States. National Bank of Commerce v. Jones, 12: 310, 91 Pac. 191. 18 Okla. 555. 56. A husband had no vested right in the community property acquired prior to the passage of N. M. Laws 1901, chap. 6:>. 6 (a), of which he would be deprived by applying to such property the provision of that section that neither husband nor wife shall dispose of real estate acquired during coverture by onerous title unless both join in the execution of the deed. Arnett v. Reade, 36: 1040, 31 Sup. Ct. Rep. 425, 220 U. S. 311, 55 L. ed. 477. (Annotated) 57. A statute abolishing the distinction between actions at law and in equity, and establishing a single form of action, violates no constitutional or vested right of suitors. Kenny v. McKenzie, 49: 775, 127 N. W. 597, 25 S. D. 485. In fireman's pension. 58. A member of a fire department relief association, an organization formed under the general laws of the state for the relief of disabled members of a city fire depart- ment, who contributes annual dues to the relief fund, and who is determined by the association to be disabled within the mean- ing of its constitution and by-laws, and is granted a pension as therein provided, has a vested legal right in such pension of which he cannot be deprived except by due process of law; namely, by notice and op- portunity to be heard in any proceedings had by the association for the purpose of terminating the payment of such pension. Stevens v. Minneapolis Fire Depart. Relief Asso. 50: 1018, 145 N. W. 35, 124 Minn. 381. (Annotated) To convey homestead. 59. The legislature may take away the right of a man to convey an existing home- stead without the assent of his wife, with- out impairing any of his constitutional property rights, since the homestead is a mere exemption privilege which the legis- lature may take away or alter at pleasure; and it is immaterial that the land to which the homestead is attached was owned by the man in absolute right before his mar- riage and the passage of the homestead law, if he dedicated it to homestead pur- CONSTITUTIONAL LAW, I. d, 1. 537 poses in accordance with the provisions of the statute, by occupying it as such. Bush- nell v. Loomis, 36: "1029, 137 S. W. 257, 234 Mo. 371. (Annotated) Rights in reversion or remainder. 60. The rights of a reversioner who has cut out an intermediate contingent remain- der by the purchase of the life estate can- not be affected by a subsequent statute en- acted to preserve the rights of remainder- men. McCreary v. Coggeshall, 7: 433, 53 S. E. 978, 74 S. C. 42. 61. The legislature may validate the cut- ting off of contingent remainders created by will in favor of persons yet unborn by pro- ceedings in which all living persons inter- ested had been made parties. Anderson v. Wilkins, 9: 1145, 55 S. E. 272, 142 N. C. 154. In insurance policy. See also infra, 799. 62. A statute which operates to deprive the insured of his absolute power of dis- position and control of an insurance policy on his life is, so far as it applies to insur- ance existing at the time of its passage, un- constitutional as depriving the insured of a vested property right. Boehmer v. Kalk, 49: 487, 144 N. W. 182, 155 Wis. 156. ( Annotated ) 63. The rights of a married woman in a paid-up insurance policy in her favor on her husband's life cannot be impaired by a subsequent statute authorizing the designa- tion of a new beneficiary by the husband in case of the divorcement of the wife. Blum v. New York L. Ins. Co. 8: 923, 95 S. W. 317, 197 Mo. 513. (Annotated) In license. 64. One whose license as a pharmacist has been renewed from year to year by the state board of pharmacy does not acquire a vested right to continue in that occupation, and to have his license renewed upon pay- ment of the fee, without further examination by the board. State v. Hovorka, 8: 1272, 110 N. W. 870, 100 Minn. 249. (Annotated) Statute of limitations. Impairing obligation of contracts as to, see infra, 816. 65. The legislature may take away from a municipality the rignt to plead the stat- ute of limitations as a basis for title to a public street, even after the limitation period has run. State v. Seattle, 27: 1188, 107 Pac. 827, 57 Wash. 602.. (Annotated.) Exemption from jury duty. ' 66. The statutory exemption from jury duty for services rendered as a fireman is not a vested right, but is subject to repeal at the pleasure of the legislature. State v. Cantwell, 8: 498, 55 S. E. 820, 142 N. C. 604. (Annotated) 67. Although a statutory exemption from jury duty in a statute incorporating a fire company be regarded as a contract, it is not irrevocable, where the Constitution provides that all general or special laws passed for the formation of corporations may be altered from time to time or repealed. State v. Cantwell, 8: 498, 55 S. E. 820, 142 N. C. 604. As to matters of taxation. 68. A taxpayer has no vested right of im- Digest 1-52 L.R.A.(N.S.) munity from additional taxation, by the fact that in providing for a public improvement the legislature placed one half the burden on the property immediately benefited and the other on the entire county, so as to prevent subsequent legislation placing the entire bur- den on the county. Durrett v. Davison, 8: 546, 93 S. W. 25, 122 Ky. 851. (Annotated) 69. The legislature cannot constitution- ally apply to tax sales already made a law changing the time for redemption from a certain number of days after notice by the purchaser of intention to apply for a deed, to a fixed period. Johnson v. Taylor, 10: 818, 88 Pac. 903, 150 Cal. 201. (Annotated) 70. A statute imposing an inheritance tax on successions for the support of public schools, in compliance with the constitution- al direction, is not objectionable as retroac- tive legislation devesting vested rights, as to successions opened but not settled at the time the law took effect. Succession of Levy, 8: 1180, 39 So. 37, 115 La. 377. (Annotated) d. Delegation of powers. 1. In general. (See also same heading in Digest L.R.A. 1-70.) . ,,i ,,...... . -.,,;'... ']' Relation of courts to other departments of government, see COURTS, I. c. As to powers of legislature generally, see LEGISLATURE, II. Delegation to private association, see LI- CENSE, 66. Invalidating of entire statute because of, see STATUTES, 56, 74. Delegation of authority by board of health, see WATERS, 129. 71. An employees' compensation act is not invalid because it gives the employers the right to determine whether or not minors rightfully employed by them shall have the benefit of the act, in the same way that they determine the matter for adult employees. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. To governor. 72. The legislature has no power to dele- gate to the governor authority to create the office of special attorney for the state to prosecute infringements of the liquor laws. State ex rel. Young v. Butler, 24: 744, 73 Atl. 560, 105 Me. 91. 73. Fixing the compensation, within max- imum and minimum limits, of a police offi- cer, is not so inherently of a legislative char- acter that the authority to do so cannot be delegated to the governor. Arnett v. State ex rel. Donohue, 8: 1192, 80 N. E. 153, 168 Ind. 180. To railroad or street railway com- pany. 74. Empowering railroad companies to appoint their ticket agents, and forbidding all other persons to sell their tickets under penalty, do not give them power to create crimes and say who are criminals, so as to constitute an unlawful delegation of legis- 538 CONSTITUTIONAL LAW, I. d, 2, 3. lative authority. Ex parte O'Neill, 3: 558, 83 Pac. 104, 41 Wash. 174. 75. Provisions in an occupation tax law, and in one of the taxatiou of intangible assets of railroad corporations, that, when a tax is paid under the latter, the provi- sions of the former shall not apply, do not violate a constitutional provision that no power of suspending laws shall be exercised except by the legislature. Missouri, K. & T. R. Co. v. Shannon, 10: 681, 100 S. W. 138, 100 Tex. 379. 76. A statute making it a crime fraudu- lently or wilfully to violate the rules made by street car companies with respect to the issuance and use of their transfers is not unconstitutional as a delegation to such companies of the right to create or suspend the law. Whaley v. State, 30: 499, 52 80. 941, 168 Ala. 152. (Annotated) 2. To people. {See also same heading in Digest L.R.A. 1-10.) As to local option, see INTOXICATING LI- QUORS, I. c. See also infra, 145. 77. The taking effect of a law cannot be made to depend upon the vote of the people under a constitutional provision that the taking effect of no law shall be made to de- pend upon any authority, except as provid- ed by the Constitution, which merely au* thorizes the ratification by the people of the bill adopted by the legislature. Fouts v. Hood River, i : 483, 81 Pac. 370, 46 Or. 492. 78. A constitutional provision command- ing legislative provision for the transaction of any business, the doing of which by spe- cial legislation is prohibited by another sec- tion of the article in question, contemplates a legislative effort in general, such as by the enactment of a law, to be passive un- til made active by a vote of the people of any district authorized to act on the ques- tion, not delegation of power to the peo- ple at large or of districts, or a district, ac- cording to circumstances, to do the busi- ness. State ex rel. Mueller v. Thompson, 43: 339, 137 N. W. 20, 149 Wis. 488. 79. A statute providing for a commis- sion form of government for cities does not unconstitutionally delegate legislative pow- er, by providing that it shall become ef- fective in any municipality only when adopted by vote of its citizens. State ex rel. Hunt v. Tausick, 35: 802, 116 Pac. 651, 64 Wash. 69. 80. Provision for initiative in a munici- pal charter, which shall be set in operation by petition of a certain percentage of the voters, does not violate a constitutional pro- vision forbidding the delegation to any spe- cial commission, association, or individual of power to control any municipal improve- ment or property, or to perform any munici- pal function. Ex parte Pfahler, n: 1092, 88 Pac. 270, 150 Gal. 71. Digest 1-52 L.R.A.(N.S.) 81. A statute providing that the electors of each political party may designate their choice of a party candidate for the United States Senate, and that the persons so hosen shall be the nominees of their re- pective parties for such ollice, is not void on the ground that it delegates power ex- jressly granted to the legislature by U. S. 'onst. art. 1, 3, providing for the election of United States Senators by the state egislatures. State ex rel. McCue v. Blais- dell, 24: 465, 118 N. W. 141, 18 N. D. 55. 82. A statute making the right to es- ;ablish a private industrial school in a ounty depend upon a vote of the electors of the county violates a constitutional pro- vision that no law, except such as relate to intoxicating liquors, bridges, public roads and buildings, fences, stock, common schools, paupers, and the regulation of local affairs of municipalities, shall be enacted to take effect upon the approval of any other authority than the general assembly. Columbia Trust Co. v. Lincoln Institute, 29: 53, 129 S. W. 113, 138 Ky. 804. 83. A statute is not invalid as a delega- tion of legislative power which provides that the right to sell intoxicating liquors as a beverage shall not be denied in coun- ties where a majority of the voters express themselves as favorable to such sales, but shall be denied in counties where a ma- jority express themselves as favorable to such prohibition. McPherson v. State, 31: 188, 90 N. E. 630, 174 Ind. 60. 84. The intentional omission of prohibi- tory liquor laws from the list of laws the taking effect of which the Constitution per- mits to depend upon the vote of the people does not prevent the legislature from pass- ing a statute providing the machinery by which license laws may be suspended by vote of the people. Fouts v. Hood River, i : 483, 81 Pac. 370, 46 Or. 492. 85. A statute providing the machinery by which the suspension of the law pro- viding for the issuing of licenses for the sale of intoxicating liquor in cities and in incorporated towns may be secured, so that a majority of the -voters of the precinct, ward, or district involved may determine that such sale shall be absolutely prohibited in the district, becomes effective by the act of the legislature, and not by the vote of the people, and is not, therefore, prohibited by a constitutional provision that no law shall be passed the taking eliect of v/hich shall be made to depend upon any author- ity except as provided by the Constitution. Fouts v. Hood River, i : 483, 8i Pac. 370, 46 Or. 492. (Annotated) 3. To judiciary. (See also same heading in Digest L.R.A. 1-10.) Relation of court to other departments of government, see COURTS, I. c. Power of legislature as to courts, see COURTS, I. e. CONSTITUTIONAL LAW, I. d, 4. 539 86. Legislative power is not unconstitu- tionally delegated to the courts by the pro- visions of the act of July 2, 1890, 1, 2, prohibiting combinations in restraint of interstate or foreign trade or commerce, or the monopolization or attempt to monopo- lize any part of such commerce, because the .general language of these provisions leaves it to the judiciary to decide whether, in a given case, the particular acts come within the condemnation of the statute. Standard Oil Co. v. United States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. 87. A law providing for an inheritance tax is not rendered unconstitutional by com- mitting to the court such matters as the fixing of the value of the property and the amount of the tax. Nunnemacher v. State, 9: 121, 108 N. W. 627, 129 Wis. 190. 88. In the absence of a constitutional provision regulating or prohibiting the traf- fic in intoxicating liquors, the power to so regulate or prohibit is vested exclusively in the legislature, and that function cannot be delegated by it to the courts, nor lawfully usurped by the judicial branch of the gov- ernment. Re Phillips, 17: 1001, 116 N. W. 950, 82 Neb. 45. 89. The legislature, in delegating to a commission the power to ascertain and fix reasonable rates and : ?rvice for railroad transportation, which rates and service, thus ascertained, shall thenceforth be enforced, may make the investigation of the com- mission subject to review, as to its reason- ableness, by the courts. Minneapolis, St. P. & S. Ste. M. R. Co. v. Railroad Com. 17: 821, 116 N. W. 905, 136 Wis. 146. 4. To local authorities, boards, and commissioners. (See also same heading in Digest L.R.A 1-70J Delegation to county commissioners, of pow- er to order new registration of voters, see ELECTIONS, 15. Invalidating of entire statute because of, see STATUTES, 56. See also supra, 80, 89; infra, 124. 90. An attempt by the legislature to confer upon the courts the power to review the action of a commission does not enlarge the power of the court, or relieve the act of any vice of conferring arbitrary power upon such commission which may otherwise have existed. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. 91. The legislature may delegate to a commission the power to determine the boundaries of the sections of a city in which the buildings of different heights as deter- mined by the legislature shall be erected. Welch v. Swasey, 23: 1160, 79 N. E. 745, 193 Mass. C64. 92. Where matters of local self-govern- ment may be intrusted to the inhabitants of towns, the legislature may delegate to a commission to be appointed by it the deter- Digest 1-52 L.R.A.(N.S.) mination of the heights of buildings to be erected in different places within the city, where the statute provides for a general limitation upon the height to which build- ings can be erected. Welch v. Swasey, 23: 1160, 79 N. E. 745, 193 Mass. 364. 93. An act of the legislative assembly authorizing a board appointed by the city council without the consent of the people to levy general taxes is unconstitutional as a delegation of legislative power. Vallelly v. Grand Forks Park Comrs. 15: 61, 111 N. W. 615, 16 N. D. L5. (Annotated) 94. A statute directing the county su- perintendent of public instruction to furnish the county clerk with the necessary data for a levy, in case a school district refuses to vote taxes for free high-school purposes, does not thereby delegate to such superin- tendent a taxing power committed exclu- sively to school districts under the consti- tutional provision that "all municipal corporations may be vested with authority to assess and collect taxes," as such pro- vision is not a limitation on the power of the legislature. Wilkinson v. Lord, 24: 1104, 122 N. W. 699, 85 Neb. 136. 95. The legislature may delegate to a commission the determination of the ques- tion which of two modes of construction and which of two termini shall be adopted for a subway which the legislature itself has authorized. Codman v. Crocker, 25: 980, 89 N. E. 177, 203 Mass. 146. 96. The legislature may delegate to a board having peculiar knowledge upon the subject the selection of the streams in which fish are of sufficient value to warrant the prohibition of the casting of sawdust in- to the stream. Com. v. Sisson, i: 752, 75 N. E. 619, 189 Mass. 247. 97. Conferring on a board of commis- sioners the power to fix the credits which shall be allowed convicts for good behavior is an unconstitutional delegation of legis- lative power. Fite v. State ex rel. Snider, i: 520, 88 S. W. 941, 114 Tenn. 646. 98. A statute creating an entomological commission, and giving it authority to en- ter upon premises and inspect for insect and plant diseases, and, in case of the dis- covery of any, to notify the owner, who thereupon is required to destroy or treat his plants and trees in accordance with the rules and regulations of the commission, is not invalid because of the fact that it dele- gates to the commission the power to de- clare the existence of conditions which call into operation the provisions of the statute. Balch v. Glenn, 43: 1080, 119 Pac. 67, 85 Kan. 735. 99. The power delegated to the voting machine commission created by chapter 267, p. 400, Minn. Laws 1905, to determine the ef- ficiency of the voting machine thereby au- thorized to be used at elections in this state is neither legislative nor judicial, but ad- ministrative, in character. Elwell v. Corn- stock, 7: 621, 109 N. W. 698, 99 Minn. 261. 100. The legislature may delegate to a board power to license moving picture ma- chine operators, and provide for the revo- 540 CONSTITUTIONAL LAW, I. d, 4. cation of their licenses. State ex rel. Ebert v. Loden, 40: 193, 83 Atl. 564, 117 Md. 373. 101. The legislature may delegate to a commission the power to license horse ra- cing under rules and regulations which such commission shall prescribe. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. 102. The legislature cannot delegate to a state board the power to revoke the license of a physician for making "grossly improb- able statements" in an advertisement, with- out any definition of such terms. Hewitt v. Board of Medical Examiners, 3: 896, 84 Pac. 39, 148 Cal. 590. 103. There is no delegation of power in conferring upon a state board authority to revoke the license of an architect for gross incompetency or recklessness in the con- struction of a building. Klafter v. State Bd. of Examiners, 46: 532, 102 N. E. 193, 259 111. 15. 104. No unconstitutional delegation of legislative power is effected by conferring on an administrative commission the power to fix the maximum rates which the legisla- ture declares shall be charged by gas com- panies. Saratoga Springs v. Saratoga Gas, E. L. & P. Co. 18: 713, 83 N. E. 693, 191 N. Y. 123. (Annotated) 105. The legislature cannot confer upon court commissioners, whose constitutional jurisdiction is that of a circuit judge at chambers, powers with reference to juvenile offenders which require proceedings within the power of courts of record only. Hunt v. Wayne Circuit Judges, 3: 564, 105 N. W. 531, 142 Mich. 93. (Annotated) To municipality. Delegation by voters to city council of power to fix amount of bonds, see BONDS, 76. What is a delegation of power to or by mu- nicipality, see MUNICIPAL CORPORA- TIONS, II. b, 1. Authority of municipality to delegate its power, see MUNICIPAL CORPORATIONS, II. b, 2. See also infra, 275. 106. A law conferring upon cities au- thority to alter or amend their charters or adopt new ones by convention is a delega- tion to the municipality of power reserved to the legislature by the Constitution, and therefore void. State ex rel. Mueller v. Thompson, 43: 339, 137 N. W. 20, 149 Wis. 488. (Annotated) 107. A statute providing a scheme for municipal government by the "commission plan," in those cities that adopt its pro- visions by popular vote, is not void as an attempt to delegate legislative power to the people of such municipalities. Cole v. Dorr, 22: 534, 101 Pac. 1016, 80 Kan. 251. 108. The legislative power to fix the boundaries of taxing districts for the con struction of local improvements may be delegated to minor municipalities. Ross v. Wright County, i: 431, 104 N. W. 506, 128 Iowa, 427. 109. Power may be delegated to a mu- nicipal corporation to exercise the right of Digest 1-52 L.R.A.(N.S.) eminent domain to enable it to supply its inhabitants with water and electric lights. Miller v. Pulaski, 22: 552, 63 S. E. 880, 109 Va. 137. 130. The legislature may delegate to a municipality the selection of the character of light which it will require a railroad company to maintain at its street crossings. Pittsburg, C. C. & St. L. R. Co. v. Hartford City 20: 461, 82 N. E. 787, 170 Ind. 674. 111. The power resting in the state to license and regulate, in the exercise of the police power, chattel mortgage and salary loan brokers, may be delegated to municipal corporations. Sanning v. Cincinnati, 25: 686, 90 N. E. 125, 81 Ohio St. 142. 112. Charter authority empowering the city council by ordinance to regulate, pro- vide for, and compel the construction and repair of sidewalks and pavements, and in case the owner of an abutting lot fails to comply with the provisions of the ordinance, empowering the council to construct the sidewalk or pavement and make the cost thereof a lien upon the lot, is a valid dele- gation of authority to the municipality. Anderson v. Ocala, 52: 287, 64 So. 775, Fla. . To park commissioners. 113. A board of park commissioners to be appointed by the governor is not a corpo- rate authority of a municipal corporation, within the meaning of a constitutional pro- vision that the legislature shall not levy taxes upon the inhabitants or property in the city or town for municipal purposes, but may vest in the corporate authorities thereof the power to assess and collect such taxes. State ex rel. Gerry v. Edwards, 32: 1078, 111 Pac. 734, 42 Mont. 135. (Annotated) To Interstate Commerc" Commission. 114. Legislative power is not unconstitu- tionally delegated to the Interstate Com- merce Commission by the act of Februarv 4, 1887, 20, as amended by the act of June 29, 1906, authorizing the Commission to prescribe a uniform system of account- ing and bookkeeping for the carriers sub- ject to that act, even though such uniform- ity requirements may control or tend to control the conduct of the carrier in its capacity as a public servant engaged in in- terstate commerce. Kansas City S. R. Co. v. United States, 52: i, 34 Sup. Ct. Rep. 125, 231 U. S. 423, 58 L. ed. 296. To civil service commissioners. 115. A statute permitting a commission to carry into effect the civil service law to make rules to regulate the exercise of the powers conferred upon them, and to classify the offices and provide for exemptions and suspend them in certain cases, does not con- stitute an unlawful delegation of legisla- tive power, where the legislature itself has provided a complete classification of offices, and imposed the duty on the commission of arranging the oflices pursuant to the classification. State e'x rel. Buell v. Frear, 34: 480, 131 N. W. 832, 146 Wis. 291. To board of health. 116. A statute prescribing punishment for CONSTITUTIONAL LAW, I. d. 5, e, 1. 541 violation of a regulation of the state board of health is not unconstitutional on the the- ory that legislative power to create crimes is thereby delegated to such board. Pierce v. Doolittle, 6: 143, 106 N. W. 751, 130 Iowa, 333. (Annotated) 117. The legislature cannot delegate to a board authority to require a knowledge of embalming as a condition to receiving an undertaker's license. Wyeth v. Thomas, 23: 147, 86 N. E. 925, 200 Mass. 474. 118. The legislature may, in forbidding the employment of minors in dangerous oc- cupations, delegate to health officers the power of determining what occupations are dangerous. Louisville, H. & St. L. R. Co. v. Lyons, 48: 667, 159 S. W. 971, 155 Ky. 396. To railroad commissioners. 119. A legislature cannot delegate the power to make a law prescribing a penalty, but it is competent for the legislature to authorize a railroad commission to prescribe duties upon which the law may operate in imposing a penalty and in effectuating the purpose designed in enacting the law, and where the penalty is imposed by law it may be incurred for the penal violation of a rule prescribed by a railroad commission within their express authority. State v. Atlantic C. L. R. Co. 32: 639, 47 So. 969, 56 Fla. 617. 120. No unconstitutional delegation of legislative power is effected by conferring on an administrative commission power to carry into effect the legislative purpose to regulate intrastate transportation by com- mon carriers by fixing reasonable freight and passenger rates, and by providing rules to effectuate their enforcement by the im- position of penalties for violation thereof. State v. Atlantic C. L. R. Co. 32:639, 47 So. 969, 56 Fla. 617. (Annotated) 121. A legislature may enact a law com- plete in itself, "designed to accomplish the regulation of common carriers, and may ex- pressly authorize an administrative com- mission within definite valid limits to pro- vide rules and regulations for the complete operation and enforcement of the law with- in its expressed general purpose, since the complex and changing conditions that at- tend and affect such a service make it im- practicable for the legislature to prescribe the necessary rules and regulations. State v. Atlantic C. L. R. Co. 32': 639, 47 So. 969, 56 Fla. 617. 122. The provision of Minn. Rev. Laws 1905, 2872, which attempts to authorize the state railroad commission in its judg- ment to allow an increase in the capital stock of railroad corporations for such pur- poses and on such terms as it may deem advisable, or, in its discretion, to refuse it, violates Minn. Const, art. 3, 1, in that it delegates to the commission legislative pow- er. State v. Great Northern R. Co. 10: 250, 111 N. W. 289, 100 Minn. 445. (Annotated) To d.rfinasie commissioners. 123. The legislature is not prevented from delegating to county drainage commission- ers the power to levy a tax for a drainage improvement, by constitutional provisions that it shall not delegate to any special com- mission, private corporation, or association Digest 1-52 L.R.A.(N.S.) any power to make, supervise, or interfere with any improvement, or to levy taxes, and that the legislature shall not levy taxes upon the inhabitants or property of any county for county purposes, but may vest in the corporate authorities thereof powe. to assess and collect taxes for such purposes, espec- ially where the Constitution also provides that the legislature shall provide for such other county officers as public convenience may require. Billings Sugar Co. v. Fish, 26: 973, 106 Pac. 565, 40 Mont. 256. 5. Of judicial 'power. (See also same heading in Digest L.R.A. 1-110.) For encroachment on judicial power, see in- fra, I. e, 2. See also infra, 375. 124. Judicial power is not vested in a commission by a statute providing that a provision requiring employers advertising for help during a strike to mention its ex- istence shall cease to be operative when the state board of conciliation shall determine that the business of the employer is being carried on in the usual extent, since that fact may, in case of a judicial proceeding, be determined from any competent evidence. Com. v. Libbey, 49: 879, 103 N. E. 923, 216 Mass. 356. e. Separation of powers. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Judicial power to decide as to legislative acts, see COURTS, I. c, 2. As to pardoning power, see CRIMINAL LAW, IV. h. As to powers of legislature generally, see LEGISLATURE, II. 125. Whether a drainage ditch, proposed to be constructed pursuant to article 1 of chapter 89 of the Nebraska Compiled Stat- utes of 1903, will be conducive to the pub- lic health, convenience, or welfare, or wheth- er the route thereof is practicable, are ques- tions of governmental or administrative pol- icy, and are not of judicial cognizance; and jurisdiction over them, by appeal or oth- erwise, cannot be conferred upon the courts by statute. Tyson v. Washington County, 12: 350, 110 N.' W. 634, 78 Neb. 211. 126. The duty Jo declare the result of a local-option election may be imposed by stat- ute upon a county court under a constitu- tional provision which vests it with "such other powers and duties as may be prescribed by law," the performance of which may be enforced by mandamus. State ex rel. Gib- son v. Richardson, 8: 362, 85 Pac. 225, 48 Or. 309. 127. The provision of Kan. Gen. Stat. 1905, 8343, that a taxpayer deeming himself ag- 542 CONSTITUTIONAL LAW, I. e, 2. grieved by any decision of the county board of equalization relative to the taxable valu- ation of his real estate may appeal to the district court, is unconstitutional and void, since the assessment of property for pur- poses of taxation is not a judicial function. Silven v. Osage County, 13: 716, 92 Pac. 604, 76 Kan. 687. (Annotated) 2. Encroachment on judicial power. (See also same heading in Digest LJi.A. 1-10.) Delegation of judicial power, see supra, I. d, 5. Infringement of prerogative of court by statute as to admission of attorneys, see ATTORNEYS, 2. Abridging power of court as to contempt, see CONTEMPT, 98. Relation of court to other departments of government, see COURTS, I. c. Power of legislature as to courts, see COURTS, I. e. Relation of court to public service commis- sion, see PUBLIC SERVICE COMMISSION, 10-19. 128. Conferring power upon the public service commission to render judgment as to the necessity of the taking and the amount of compensation in an eminent do- main proceeding is not unconstitutional as interfering with the power of the courts. George v. Consolidated Lighting Co. 52: 850, 89 Atl. 635, 87 Vt. 411. 129. The mere fact that a duty imposed upon an executive officer requires him to as- certain facts and determine his action upon the facts found does not make it judicial within the meaning of the constitutional provision separating the departments of government. Missouri, K. & T. R. Co. v. Shannon, 10: 68 1, 100 S. W. 138, 100 Tex. 379. 130. A constitutional amendment vali- dating an attempted increase of judges' salaries in certain counties, which had been declared unconstitutional by the courts, cannot be held to be invalid at the instance of the counties concerned, as interfering with the province of the judiciary and at- tempting to overturn its decisions. Ham- mond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 131. Section 266, Okla. Comp. Laws 1909, in so far as it prohibits the disbarment of an attorney for acts involving moral turpi- tude, not connected with his professional or official duty as an attorney, until after conviction therefor, is not violative of the provisions of the Constitution vesting in the various courts of the state the judicial power of the state, and prohibiting the exercise by one of the three great depart- ments of the government of the power prop- erly belonging to the other departments. Re Saddler, 44: 1195, 130 Pac. 906. 35 Okla. 510. (Annotated) 132. The enactment of a law permitting an appellate court to direct judgment for de- Digest 1-52 L.R.A.(N.S.) fendant without further trial, u-pon setting aside a verdict in plaintiff's favor, is not prevented by a constitutional provision that the legislature which previously exercised such power shall continue to exercise the powers it has heretofore exercised, unless prohibited by the Constitution, especially where, before the adoption of the Constitu- tion, a court exercising such power had been created, and the Constitution expressly pro- vides that the court established by it shall have the same jurisdiction as the one pre- viously existing. Gunn v. Union R. Co. 2: 883, 63 Atl. 239, 27 R. I. 432. 133. The revocation of the license of an architect for cause by a state board is not an exercise of judicial power. Klafter v. State Bd. of Examiners, 46: 532, 102 N. E. 193, 259 111. 15. 134. The legislative attempt to confer upon a father the right to grant the custody of his children to the exclusion of their mother is an unconstitutional exercise of judicial power. Tillman v. Tillman, 26: 781, 66 S. E. 1049, 84 S. C. 552. 135. Providing for the submission to an administrative board of the questions of fact in case of a dispute as to the amount to be awarded an injured employee under a workmen's compensation act, which lias power to award the amount due as provid- ed by the statute, which award, under cer- tain circumstances, may be reviewed by the courts, does not, where the jurisdiction of the commission depends on the consent of parties, and the question of consent is sub- ject to review by the courts, render the commission a court, and the statute void on the theory that the legislature has no constitutional power to create courts. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 136. Limitation by the legislature of the term for which imprisonment may be im- posed for contempt of court is not uncon- stitutional. Creasy v. Hall, 41: 478, 148 S. W. 914, 243 Mo. 679. 137. Power to issue warrants of arrest is not so exclusively a judicial one that it cannot be conferred upon the clerks of the court. Kreulhaus v. Birmingham, 26: 492, 51 So. 297, 164 Ala. 623. 138. A statute providing that if, for any reason, the execution of a criminal is de- layed beyond the time fixed in the judgment, the governor shall designate another day, does not violate a constitutional provision forbidding a person in one department of government to exercise powers belonging to another department, since the fixing of the day under such circumstances is a minis- terial, and not a judicial, act. Bullitt v. Sturgeon, 14: 268, 105 S. W. 468, 127 Ky. 332. (Annotated) 139. A statute authorizing a prison board of control to transfer prisoners from the reformatory to the state prison, and vice versa, is not unconstitutional, as consti- tuting a legislative attempt to vest admin- istrative officers with judicial functions. State ex rel. Kelly v. Wolfer, 42: 978, 138 N. W. 315, 119 Minn. 368. (Annotated) CONSTITUTIONAL LAW, I. e, 3 II. a, 1. 543 Frima facie evidence; presumptions. 140. A statute providing that certain acts shall be prima facie evidence of fraudulent intent does not interfere with the consti- tutional powers of the judiciary. State v. Thomas, 2 ion, 40 So. 271, 144 Ala. 77. 141. A statutory provision that proof of a contract of hiring, i..e procuring thereon of money or other thing of value, the failure to perform the services contracted for or to return the money so advanced with inter- est thereon to the time the labor was to be pe'rformed, without good and sufficient cause and without loss or damage to the hirer, shall be presumptive evidence of a fraudulent intent in the procurement of the advances, is not an assumption of judi- cial functions by the legislature. Banks v. State, 2: 1007, 52 S. E. 74, 124 Ga. 15. ( Annotated ) 142. A statute making possession of more than one quart of liquor pr'.na facie evi- dence of intent to violate the statute against illegal sales is not unconstitutional as invading the province of the judiciary and depriving accused of the presumption of innocence, or as making prima facie evi- dence of guilt a fact which has no relation to, or does not tend to prove, the criminal act. State v. Barrett, x: 626, 50 S. E. 506, 138 N. C. 630. (Annotated) 3. As to appointment of officers. (See also same heading in Digest LJi.A. 1-10.) Appointment of officers generally, see OFFI- CERS, I. b. Effect of failure to prove lex loci, see PLEAD- ING, 63. /. Local self-government. (See also same heading in Digest L.R.A. 1-10.) Self-exacting provisions of Constitution as to home rule, see supra, 27. See also eupra, 16. 143. The legislature may enact general laws governing municipal corporations un- der constitutional provisions that corpora- tions may be formed under general laws, and that the legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. Kiernan v. Portland, 37: 332, 111 Pac. 379, 112 Pac. 402, 57 Or. 454, 466. 144. It is not an interference with the principles of local self-government vested in counties and townships, for the state to provide for the construction of highways, and the legislature may therefore enact a law levying a tax for such purpose. State ex rel. Donahey v. Edmondson, 52: 305, 105 N. E. 269, 89 Ohio St. 93. 145. The people may confer upon the voters of a municipal corporation the right to enact local laws which cannot be affect- ed by special acts of the legislature, so long Digest 1-52 L.R.A.(N.S.) as the legislature io not prevented from controlling them by general enactments. Kiernan v. Portland, 37: 332, 111 Pac. 379, 112 Pac. 402, 57 Or. 454, 466. 146. The right of local self-government is not infringed by a statute regulating the police force of a city. Horton v. Newport, 1:512, 61 Atl. 759, 27 R. I. 283. ( Annotated ) 147. Legislative control of the local police and requiring the payment of their salaries out of local funds, are not forbidden by the provisions of the 14th Amendment of the United States Constitution. Horton v. Newport, x: 512, 61 Atl. 759, 27 R. I. 283. Appointment of officers. As to appointment of officers generally, see supra, I. e, 3; OFFICERS, I. b. 148. The legislature cannot, in view of the right of local self-government, confer upon the governor power to appoint a board to control a city's fire department. Davidson v. Hine, 15: 575, 115 N. W. 246, 151 Mich, 294. (Annotated) 149. The legislature may control the ap- pointment of the police commissioners of a city, and impose the burden of maintain- ing the police department upon the munici- pality. Arnett v. State ex rel. Donohue, 8: 1192, 80 N. E. 153, 168 Ind. 180. g. Functions and powers of state. (See same heading in Digest L.R.A. 1-10.) h. Abandonment of power. (See same heading in Digest LJt.A. 1-10.) II. Rights of persons and property. a. Equal protection and privileges; abridging immunities and privileg- es. I. In general. (See also same heading in Digest L.R.A. 1-10.) Discrimination in ballot, see ELECTIONS, 37. Class legislation by statute forbidding sale of game lawfully taken, see GAME LAWS, 6. Special and local legislation, see STATUTES, I. g- Discrimination in water rates, see WATERS, 422-424. See also infra, 365, 454, 456, 535; CIVIL RIGHTS. 150. Equal protection of the law means that equal protection and security shall be given to all under like circumstances in their lives, their liberty, and their property, and in pursuit of happiness, and in the exemption from any greater burdens and charges than are equally imposed upon all others under like circumstances. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. 151. Where there is a substantial differ- ence in the condition or situation of in- 544 CONSTITUTIONAL LAW, II. a, 1. dividuals or objects with reference to the subject embraced in a law, an appropriate limitation based on such difference, in the application of the law, does not make such legislation partial. State v. Chicago, M. & St. P. R. Co. 33: 494, 130 N. W. 545, 114 Minn. 122. 352. The constitutional guaranty of equal rights is not infringed by making a police regulation applicable only in certain cities of a state. People ex rel. Armstrong v. Warden of New York City Prison, 2: 859, 76 N. E. 11, 183 N. Y. ^223. As to women. Regulation of hours of labor, see infra, 308- 311. Restricting right to contract, see infra, 481-483. Special or local legislation as to, see STAT- UTES, 162, 163. See also infra, 245, 276. 153. A statute permitting the annexation of property belonging to women, to munici- palities, without giving them an opportunity to make defense to the proceedings, does not deprive them of the equal protection of the laws. Carrithers v. Shelbyville, 17: 421, 104 S. W. 744, 126 Ky. 769. 154. W T omen of full age are not denied constitutional privileges and immunities by forbidding their being permitted to remain in or about saloons. State v. Baker, 13: 1040, 92 Pac. 1076, 50 Or. 381. 155. A municipal ordinance prohibiting keepers of saloons where intoxicating liquors are sold from permitting women to be in or about their places of business and from sell- ing intoxicants to them is not an uncon- stitutional discrimination against women ; nor does it deprive them of their equal rights, privileges, and immunities under the Constitution. People v. Case, 18: 657, 116 N. W. 558, 153 Mich. 98. (Annotated) 156. Withholding from women permits to sell intoxicating liquors, while granting them to others, does not deprive them of any constitutional right of equal protec- tion or uniform operation of laws, or vio- late the provision against the granting of special privileges or immunities. Re Car- ragher, 31: 321, 128 N. W. 352, 149 Iowa, 225. Highways; vehicles on. Interference with personal liberty, see infra, 351. Due process as to, see infra, 363, 376, 377, 378, 522. Police power as to, see infra, 647-649. See also infra, 168, 253-255. 157. Making an ordinance prohibiting the maintenance of leaky water pipes in a street apply only to water companies and their managers, to the exclusion of consumers maintaining pipes in the streets, is not un- lawful discrimination. Grumpier v. Vicks- burg, ii : 476, 42 So. 673, 89 Miss. 214. 158. The legislature may, without impair- ing the constitutional right to equal pro- tection of the laws, or the right of pursuing happiness, authorize a municipal corpora- tion to close to automobiles dangerous streets the use of which by such machines Digest 1-52 I fc R.A.(IT.S'.) may endanger the lives of their occupants or of those driving horses upon the streets. State v. Mayo, 26: 502, 75 Atl. 295, 106 Me. 32. 159. Requiring one wishing to drive a traction engine across a bridge to lay planks under its wheels, to be entitled to the law- ful use of the bridge for that purpose, does not render a statute making the county liable for injuries through defects in the bridge only to those lawfully using it in- valid, so far as it excludes from its benefit one failing to use the planks, as class legis- lation. Jones v. Union County, 42: 1035, 127 Pac. 781, 63 Or. 566. 160. The legislature cannot grant to a protective association organized by insur- ance companies to attend fires and protect persons and property, a right of way in the public streets superior to that of the citizens generally, under a Constitution pro- viding that no exclusive privileges shall be granted except in consideration of public service. Louisville R. Co. v. Louisville Fire & Life Protective Asso. 43:600, 152 S. W. 799, 151 Ky. 644. (Annotated) 161. That a statute limiting speed on the highways applies only to horseless vehicles does not render it void under a constitution- al provision that no one shall be deprived of liberty or property without due process of law, as making an unjust discrimination against the manufacturers and owners of such vehicles. Christy v. Elliott, i: 215, 74 N. E. 1035, 216 111. 31. (Annotated) 162. A provision in a general city ordi- nance regulating the use of motor vehicles, that "it shall be unlawful for any person operating a motor cycle to carry another person on said machine in front of the op- erator," is general with respect to all mem bers of the class affected, and based upon a reasonable classification. Re Wickstrum, 42: 1068, 138 N. W. 733, 92 Neb. 523. (Annotated) Municipalities. See also supra, 153. 163. The legislature may discriminate as it sees fit, in legislating for the municipal corporations which it has created. People ex rel. Williams Engineering & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. 164. A classification applicable only to municipalities of the state having less than a specified number of inhabitants according to a particular Federal census is not suf- ficient to save a statute from condemnation as conferring special privileges and im- munities. Fleming v. Memphis, 42: 493, 148 S. W. 1057, 126 Tenn. 331. 165. Neither the power of a municipality to contract with a private person for the construction and operation of waterworks or public utilities, nor the right of such per- son under the contract, constitutes a special privilege or immunity within the meaning of those terms in Neb. Const, art. 1, 16, which prohibits the legislature from "mak- ing any irrevocable grant of special privi- leges or immunities." Omaha Water Co. v. Omaha, 12: 736, 147 Fed. 1, 77 C. C. A. 267. 166. An unconstitutional discrimination CONSTITUTIONAL LAW, II. a, 1. 545 in favor of municipal corporations is not effected by a statute requiring notice to be given to them in case of injury through defective ways within their limits, before an action can be maintained therefor, al- though such notice is not required in cases of action for injury against individuals. Tonn v. Helena, 36: 1136, 111 Pac. 715, 42 Mont. 127. (Annotated) 167. No constitutional right of a holder of property within a particular territory is infringed by its annexation to a municipali- ty without first consulting him, even though the annexation is made to depend upon the consent of a selected class to which he does not belong. Carrithers v. Shelbvville, 17: 421, 104 S. W. 744, 126 Ky. 769. ( Annotated ) 168. Exempting a particular municipality from liability for injuries caused by defects in highways violates a constitutional pro- vision prohibiting the granting of special privileges and immunities. Fleming v. Memphis, 42: 493, 148 S. W. 1057, 126 Tenn. 331. (Annotated) Officers and elections. Due process of law as to, see infra, II. b, 6. Constitutional requirement of uniformity of election laws, see ELECTIONS, 18. Special legislation as to, see STATUTES, 181, 184, 185. See also ELECTIONS, 2-4. 169. The privileges and immunities of cit- izens of the United States protected by the Federal Constitution do not include the rights of citizens of a state to hold office. Shaw v. Marshalltown, 10: 825, 104 N. W. 1121, 131 Iowa, 128. 170. The privileges and immunities of citi- zens which a state Constitution protects against discrimination do not include the right to hold a minor municipal office. Shaw v. Marshalltown, 10:825, 104 N. W. 1121, 131 Iowa, 128. 171. A statute giving preference to vet- eran soldiers in making appointments to minor offices is not invalid as depriving oth- er citizens of equal privileges and immu- nities. Shaw v. Marshalltown, 10: 825, 104 N. W. 1121, 131 Iowa, 128. (Annotated) 1 72. Making appointment to public office depend upon fitness, to be ascertained by competitive examination as far as possible, does not create an unconstitutional dis- crimination between different classes of citizens in regard to the right to enter upon and continue in the public service, since the right to hold public office is not a natural right of the citizens or one guar- anteed to him by the Constitution. State ex rel. Buell v. Frear, 34: 480, 131 N. W. 832, 146 Wis. 291. 173. A statute requiring the members of a commission to be appointed from the two dominant politica 1 parties is not void as granting special privileges or immunities. State ex rel. Jones v. Sargent, 27: 719, 124 N. W. 339, 145 Iowa, 298. (Annotated) 174. A provision that a commission to have charge of a municipal hospital shall be bi-partisan, and that its members shall Digest 1-52 L.R.A.(N.S.) be chosen from the two dominant parties in the municipality by name, does not violate a constitutional provision that all men are equal and that no grant of exclusive privi- lege shall be made to any man, on the ground that it requires a political test for office and creates special privileges in those made eligible to appointment. Render v. Louisville, 32:530, 134 S. W. 458, 142 Ky. 409. 175. The 14th and loth Amendments to the United States Constitution do not limit the power of a state legislature to prescribe the qualification of voters at a local-option election. Willis v. Kalmbach, 21: 1009, 64 S. E. 342, 109 Va. 475. Smoke. 176. The fact that a prohibition of the use of soft coal in locomotives does not ap- ply to stationary engines does not make such prohibition partial legislation; there being obvious differences between the two classes of engines in respect to the ten- dency that burning soft coal has to cause a smoke nuisance, and other appropriate legislation having been enacted by the city to prevent the emission of dense smoke by stationary plants. State v. Chicago, M. & St. P. R. Co. 33: 494, 130 N. W. 545, 114 Minn. 122. Eminent domain. . Due process of law as to, see infra, II. b, 2, b. 177. Statutory authority to take under the power of eminent domain a specified parcel of property is not unconstitutional class legislation. Southern R. Co. v. Mem- phis 41: 828, 148 S. W. 662, 126 Tenn. 267. Building regulations. Due process of law as to, see infra, 379- 381, 518. Police power as to, see infra, 660-663. Regulations as to piling of lumber near buildings, see infra, 197. 178. The exception of churches in a stat- ute limiting the height of buildings in a city does not deprive the owners of private property of the equal protection of the laws. Cochran v. Preston, 23: 1163, 70 Atl. 113, 108 Md. 220. 179. The owners of buildings on the high- er ground are not deprived of the equal pro- tection of the laws by a statute limiting the height of buildings to a certain distance above a point located on the high ground of a city, although the buildings on lower ground might exceed theirs in the actual height from the ground. Cochran v. Pres- ton, 23: 1163, 70 Atl. 113, 108 Md. 220. Assignment of wages or salary. Due process of law as to, see infra, 519. 180. A statute making void assignments of wages or salaries when given as security for loans tainted with usury is invalid where no such provision is made with re- spect to other instruments or conveyances given to secure such debts. Massie v. Cess- na, 28: 1108, 88 N. E. 152, 239 111. 352. 181. Exempting loans made by national banks and certain institutions under the supervision of the bank commissioner, from the operation of a statute requiring assign- 35 546 CONSTITUTIONAL LAW, II. a, 1. ments of future wages to secure small loans to be accepted in writing and recorded to be valid, does not deprive other lenders of the equal protection of the laws. Mutual Loan Co. v. Martell, 43: 746, 86 N. E. 916, 200 Mass. 482. Garnishment of wages. 182. Restraining a resident creditor from proceeding in another state to reach wages of his debtor, who resides in the same state with himself, in violation of its exemption laws, does not violate constitutional pro- visions requiring each state to give full faith and credit to the judicial proceedings of other states, or entitling citizens of each state to the privileges and immunities of the several states. Wierse v. Thomas, 15: 1008, 59 S. E. 58; 145 N. C. 261. ( Annotated ) 183. A statute exempting the wages of railroad employees from garnishment is not one for the benefit of the railroad companies, so as to render it unconstitu- tional in granting them special favors. White v. Missouri, K. & T. R. Co. 29: 874, 130 S. W. 325, 230 Mo. 287. 184. A statute forbidding garnishment of the wages of railroad employees under $200 in value, until a judgment has been recov- ered against the debtor, is not unconstitu- tional class legislation, although the same prohibition does not apply to other classes of employees, nor when the wages due are over the prescribed amount. White v. Mis- souri, K. & T. R. Co. 29: 874, 130 S. W. 325, 230 Mo. 287. Fishing. See also supra, 175. 185. An exclusive right of fishery cannot be granted by the legislature to a shore owner in the tide land in front of his prop- erty, where the Constitution provides that no law shall be passed granting to any citizen any privilege which upon the same terms shall not equally belong to all citi- zens. Hume v. Rogue River Packing Co. 31: 396, 92 Pac. 1065, 96 Pac. 865, 51 Or. 237. 186. A state does not unconstitutionally impair the privileges or immunities of any of its citizens by prohibiting the taking of fish in the waters of a certain harbor, while permitting them to be taken in other waters of the state. State v. Tice, 41 : 469, 125 Pac. 168, 69 Wash. 403. (Annotated) Pollution of water. 187. A statute confining liability for de- positing sawdust, shavings, and mill refuse in the streams to operators of mill does not discriminate against them so as to ren- der it unconstitutional as depriving them of the equal protection of the laws. State v. Haskell, 34: 286, 79 Atl. 852, 84 Vt. 429. Pumping mineral waters and gas. 188. A statute forbidding the pumping of mineral water and gas arising therefrom from a common reservoir is not invalid as contravening the constitiitional provision guaranteeing equal protection of laws, be- cause it is applied only to wells bored into rock, where the conditions are such that pumping in the rock wells is less needful Digest 1-52 L.R.A.(N.S.) than in those sunken in dirt, while it ia much more exhaustive and destructive of common rights. Hathorn v. Natural Car- bonic Gas Co. 23: 436, 87 N. E. 504, 194 N. Y. 326. (Annotated) Cutting trees on wild lands. 189. Regulating or prohibiting the cutting of trees on wild or uncultivated lands for the purpose of protecting the water sup- ply of the state is not a denial of the equal protection of the laws, since the classifi- cation is based on real differences in the na- ture, situation, and condition of things. Opinion of Justices, 19: 422, 69 Atl. 627, 103 Me. 506. (Annotated) Marriage. 190. A statute requiring from men only a certificate of freedom from venereal dis- ease as a condition to marriage is not void as granting special privileges or immuni- ties. Petersen v. Widule, 52: 778, 147 N. W. 966, 157 Wis. 641. Miscellaneous. See also infra, 537. 191. Requiring persons keeping more than one animal in a stable to connect the stable with the city's water and sewer system and take certain precautions as to cleansing the premises which are not re- quired of persons keeping only one animal is an unreasonable classification. Mobile v. Orr, 45: 575, 61 So. 920, 181 Ala. 308. 192. Although the sale of alcohol for certain specified purposes, under certain restrictions, is not unlawful, the Georgia prohibition law, act 1907, p. 81, which pro- hibits entirely the manufacture of alcohol, is not violative of the Federal constitu- tional provision that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of tht United States, nor deny to any person within its jurisdiction the equal protection of the law. Cureton v. State, 49: 182, 70 S. E. 332, 135 Ga. 660. 193. A statutory prohibition against the transportation without the state, of the waters of lakes, pends, rivers, and streams, does not infringe U. S. Const, art. 4, 2, pro- viding that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." McCarter ex rel. Kummel v. Hudson County Water Co. 14: 197, 65 Atl. 489, 70 N. J. Eq. 695. 194. Requiring compensation from the es- tates of persons confined in a state hospital for insane only, and not of those confined elsewhere, is not unconstitutional class leg- islation. Napa State Hospital v. Dasso, 18: 643, 96 Pac. 355, 153 Cal. 698. 195. A municipal ordinance declaring it unlawful for any person to bring into the town the carcass or dead body of any animal intended for burial, cremation, or manufacture into fertilizer, but not prohibit- ing the bringing in of such dead bodies for other purposes, nor making it unlawful to manufacture fertilizer in the town from such materials, discriminates against valu- able articles used in lawful trade and busi- ness, on the ground of location with reference to municipal lines, and is void, although CONSTITUTIONAL LAW, II. a, 2, 3. 547 but for such discrimination it might be val- id as an ordinance protective of health and restrictive of an injurious and offensive busi- ness. Fulton v. Norteman, 9: 1196, 55 S. E. 658, 60 W. Va. 562. (Annotated) 196. The rule of a railroad commission making a common carrier liable for unrea- sonably detaining loaded freight cars is not an arbitrary or unjust discrimination against freight not so loaded. State v. At- lantic C. L. R. Co. 32: 639, 47 So. 969, 50 Fla. 617. 197. Making an ordinance forbidding the piling of lumber for storage within a cer- tain distance of buildings on neighboring property applicable only to buildings erect- ed before the establishment of the lumber yard does not constitute an unconstitution- al discrimination against the owners of vacant property. Chicago v. Ripley, 34: 1186, 94 N. E. 931, 249 111. 466. 2. As to nonresidents or aliens; foreign corporations. a. Nonresidents. (See also same heading in Digest L.R.A. 1-10.) Who may raise question of unconstitution- al discrimination, see ACTION OR SUIT, 46, 47. Right to act as executor as privilege or immunity, see EXECUTORS AND ADMIN- ISTRATORS, 7. 198. A statute which forbids all citizens of the state not residents of a specified coun- ty from hunting in such county without a license, while no license is required of the residents thereof, and which does not for- bid such residents from hunting in any other county without a license, violates the constitutional guaranty of the equal pro- tection of the laws, since, as the qualified property existing in the wild game in a state belongs to all the people thereof in their collective sovereign capacity, it places a burden upon a part only of the people who are entitled to the same rights and privileges. Harper v. Galloway, 26: 794, 51 So. 226, 58 Fla. 255. (Annotated) 199. The legislature cannot, where the Constitution prohibits it from denying to any person withi- the jurisdiction of the state the equal protection of the laws, con- fer power upon the authorities of the coun- ty to protect the lish within the county for the benefit of the inhabitants of such coun- ty, and exclude residents of other counties from taking them. State v. Hill, 31: 490, 53 So. 411, 98 Miss. 142. Regulation of business generally; licenses. Foreign corporations, see infra, II. a, 2, c. 200. Requiring only agents who sell trees grown in other states to carry duplicates of the principal's permit illegally discrimi- nates between resident and nonresident dealers. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93, 22 S. D. 23. Digest 1-52 L.R.A.(N.S.) 201. A state statute imposing a heavy li- cense tax upon the right to canvass from house to house for a certain limited num- ber of articles not produced or manufac- tured within the state, and not injurious to health or morals, for the apparent purpose of favoring resident merchants with estab- lished places of business, violates the pro- visions of the Federal Constitution against abridging the privileges or immunities of citizens of the United States, and denying equal protection of the laws. State v. Bay- er, 19: 297, 97 Pac. 129, 34 Utah, 257. 202. Requiring a residence within the state for two years as a condition for the granting of a license to sell intoxicating liquor does not deprive the citizens of an- other state of the privileges and immunities and equal protection of the laws guaranteed them by the Federal Constitution. De Grazier v. Stephens, 16: 1033, 105 S. W. 992, 101 Tex. 194. (Annotated) b. Aliens. (See also same heading in Digest L.R.A. 1-70.) 202a. A statute which, in effect, prohibits an alien from engaging in the business of trafficking in intoxicating liquors, enacted in the exercise of the police power of the state, is not in contravention of the 14th Amendment to the Federal Constitution. Bloomfield v. State, 41 : 726, 99 N. E. 309, 86 Ohio St. 253. c. Foreign corporations. See also infra, 207. 203. Corporations are not within the pro- tection of the clause of the Federal Consti- tution forbidding the denial to citizens of other states of privileges and immunities granted to citizens of the state. Schmidt v. Indianapolis, 14: 787, 80 N. E. 632, 168 Ind. 631. 204. The provision of W. Va. Acts 1905, chap. 39, p. 401, requiring every foreign cor- poration doing business in the state, and every nonresident domestic corporation do- ing business in ti.e state, to appoint the state auditor its attorney in > ct to ac- cept service of process and notice in the state for it, is not invalid as taking prop- erty without due process of law, or as deny- ing such corporations the equal protection of the law. State v. St. Mary's Franco- American Petroleum Co. i : 558, 51 S. E. 865, 58 W. Va. 108. (Annotated) 3. As to corporations, associations, and carriers. a. In general. (See also same heading in Digest L.R.A. 1-10.) Foreign corporations, see supra, II. a, 2, c. 548 CONSTITUTIONAL LAW, II. a, 3. Class legislation as to employees of, see in- fra, II. a, 5, c. Due process of law as to, see infra, 464, 465. Police power as to, see infra, 697699. Impairment of contract obligations, see infra, 797-800. Special legislation as to, see STATUTES, 168. 205. Providing for the enforcement of me- chanics' liens against the property of pub- lic service corporations, not by writ of levari facias, as in case of liens against other property, but by special fieri facias, which seizes the property as a whole so as not to stop the operations of the corpora- tion and defeat its object, is special legisla- tion and invalid. Vulcanite Paving Co. v. Philadelphia Rapid Transit Co. 17: 884, 69 Atl. 1117, 220 Pa. 603. 206. Excepting from a constitutional pro- vision imposing stockholders' liabilities for debts of the corporation, corporations en- gaged in manufacturing and mechanical business, does not violate the equality clause of the Federal Constitution. Way v. Bar- ney, 38: 648, 133 N. W. 801, 116 Minn. 285. 207. The constitutional privileges and im- munities of corporations are not infringed by a statute providing for the dissolution of domestic corporations and the banish- ment of foreign ones, in addition to the imposing of a tine, for the commission of certain acts fending to establish a monop- oly, while individuals committing the same acts are merely fined, at least where the Constitution authorizes forfeiture of fran- chises of corporations guilty of monopoly. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. b. Railroad companies; carriers. (See also same heading in Digest L.R.A. 1-10.) Garnishment of wages of railroad employee, see supra, 183, 184. Foreign corporations, see supra, II. a, 2, c. Class legislation as to employees of, see infra, II. a, 5, c. Due process of law in regulation of busi- ness of, see infra, 437-448, 460. Due process of law as to right of action or defense against, see infra, II. b, 7, b (D (b). Police power as to, see infra, 683-686. Fences. 208. Compelling a particular railroad to fence its tracks when other railroads in the state and count} are not required to do so does not deny it the equal protection of the laws, since the legislature will be presumed to have determined that the con- ditions affecting it are such as to call for regulations different from those applying to other roads, and the classification cannot therefore be said to be arbitrary. Missouri & N. A. R. Co. v. State, 31: 861, 121 S. W. 930, 92 Ark. 1. (Annotated) Digest 1-52 L.R.A. (N.S.) Headlights on locomotives. Due process as to, see infra, 438, 439. 209. A statute requiring railroads to maintain electric headlights on their loco- motives is not unconstitutional as depriv- ing them of the equal protection of the laws, because it does not apply to receivers of railroads. Atlantic Coast Line R. Co. v. State, 32: 20, 69 S. E. 725, 135 Ga. 545. 210. Exempting tramroads, mill roads, and roads engaged principally in lumber and logging transportation in connection with mills, from the operation of a statute requiring the maintenance of electric head- lights on locomotives, does not render it unconstitutional as depriving railroads of the equal protection of the laws. Atlantic Coast Line R. Co. v. State, 32: 20, 69 S. E. 725, 135 Ga. 545. Speed. 211. A statute prescribing a minimum rate of speed at which all live stock in carload lots may be transported between intrastate points does not constitute unlawful class legislation. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. Rates. Due process of law as to, see infra, 493-408. Jurisdiction of Federal court of question as to, see COURTS, 251. 212. A railroad company is denied the equal protection of the laws by a state stat- ute requiring it to transport militiamen when in the performance of military duty, at less than the reasonable rate of trans- portation which has been fixed by the state officials. Re Gardner, 33: 956, 113 Pac. 1054, 84 Kan. 264. (Annotated) 213. A statute providing for the estab- lishment of rates for railroad transportation without giving the corporation an opportu- nity to be heard, which fixes penalties for disobedience of its provisions by fines so enormous and imprisonment so severe as to intimidate the corporations and their ofli- cers from resorting to the courts to test the validity of the rates, is unconstitutional, as depriving the corporations of the equal pro- tection of the laws. Ex parte Young, 13: 932, 28 Sup. Ct. Rep. 441, 209 U. S. 123, 52 L. ed. 714. 214. A statutory provision requiring rail- road companies to sell mileage books at less than the rates regularly charged for trans- portation is class legislation, and not for the benefit of the whole people, and is there- fore void as depriving the corporation of its property without due process of law, and of the equal protection of the laws. Com. ex rel. Anderson v. Atlantic Coast Line R. Co. 7: 1086, 55 S. E. 572, 105 Va. 61. ( Annotated ) 215. The provision of the New Jersey gen- eral railway law (P. L. 1903, p. 665, 38) authorizing railroads constructed and oper- ated under a special charter to charge y s cent more per mile than railroads organized under the general act are permitted to charge, is unconstitutional as a discrimi- nation based upon an illusory qualification. CONSTITUTIONAL LAW, II. a, 4. 549 Shelton v. Erie R. Co. (N. J. Err. & App.) 9: 727, 66 Atl. 403, 73 N. J. L. 558. 216. Public-school children form a class for which the legislature may properly pro- vide a special rate of street car fare. Com. v. Interstate Consol. Street R. Co. 11:973, 73 N. E. 530, 187 Mass. 436. (Annotated) 217. Sufficient difference in conditions may exist to warrant the legislature in ex- empting a particular street car company from a statutory provision requiring the carriage of school children at half the reg- ular rates, without depriving the other lines of the equal protection of the laws. Com. v. Interstate Consol. Street R. Co. ii : 973, 73 N. E. 530, 187 Mass. 436. Sale of tickets. Due process of law as to, see infra, 391, o04-507, 563. Police power as to, see infra, 739-744. Impairment of contract obligations by stat- ute as to, see infra, 792. 218. An unconstitutional special privi- lege is not granted to railroad companies by a statute forbidding brokers to traffic in their tickets, which requires them to commission all persons who shall sell their tickets, and compels tliem to redeem unused tickets. Ex parte O'Neill, 3: 558, 83 Pac. 104, 41 Wash. 174. (Annotated) 210. An unlawful grant of special privi- leges is not effected by a statute limiting the sale of railroad tickets to railroads and their duly authorized agents. State v. Thompson, 4: 480, 84 Pac. 476, 47 Or. 492. Defaults of connecting carriers. 220. Requiring a carrier which recognizes a through shipping contract to become lia- ble for defaults of connecting lines does not deny it the equal protection of the laws. Venning v. Atlantic Coast Line R. Co. 12: 1217, 58 S. E. 983, 78 S. C. 42. 4. As to taxes and assessments. (See also same heading in Digest L.R.A. 1-10.) As to license taxes, see infra, II. a, 5. Due process of law as to, see infra, II. b, 3. Police power as to local assessments, see infra, 642, 642a. As to uniformity of poll tax, see POLL TAX, 2. As to uniformity of assessments generally, see PUBLIC IMPROVEMENTS, 29-31. Special legislation as to, see STATUTES, 179. As to equality and uniformity of taxation, see TAXES, I. c, V. b, VI. b. As to taxes, generally, see TAXES. 221. A citizen of a state cannot rely on the Federal Constitution as a basis for question- ing a tax law on the ground of inequality in the burden resulting from its operation. State, Egan v. McCrillis, 9: 635, 66 Atl. 301, 28 R. I. 165. 222. The requirement by the Federal Con- stitution of equal protection of the laws has no application to the method of dis- tribution of road taxes. State v. Wheeler, 5: 1139, 53 S. E. 358, 141 N. C. 773. Digest 1-52 L.R.A.(N.S.) 223. A state statute authorizing the tax- ation of chattels real is not in violation of the 14th Amendment to the United States Constitution as wanting due process of law, or denying equal protection of the law. Harvey Coal & C. Co. v. Dillon, 6: 628, 53 S. E. 928, 59 W. Va. 605. 224. Limiting a poll tax to male citizens between the ages of twenty-one and fifty years does not render it obnoxious to con- stitutional provisions forbidding the grant- ing of special privileges and immunities, or the taking of property without due process of law. Thurston County v. Tenino Stone Quarries, 9: 306, 87 Pac. 634, 44 Wash. 351. 225. Equal protection of the laws is de- nied by a statute requiring as a matter of taxation a set-off against the value of the property taken for a public improvement of the benefit to the remaining land of the property owner, where no assessment is "laid upon property owners in the neighborhood, none of whose property is taken by the im- provement. New York v. Consolidated Gas Co. 16: 335, 83 N. E. 299, 190 N. Y. 350. 226. A statute imposing, for the benefit of the public, a tax of a certain per cent upon every judgment entered in a court of record, is not valid, treated either as part of the costs to be paid by defendant or as a penalty, since it would deprive defendant of the equal protection of the laws. St. Louis, I. M. & S. R. Co. v. Pritchard, 32: 179, 133 S. W. 176, 97 Ark. 100. (Annotated) Succession tax. Due process of law as to, see infra, 405- 410. As impairment of obligation of contract, see infra, 774. Who may question validity of statute im- posing tax, see ACTION OR SUIT, 50. Uniformity of succession tax generally, see TAXES, V. b. 227. That a statute imposing a succession tax will operate upon all successions not closed at the time the act took effect, or thereafter opened, but not upon those which were opened and closed before that date, does not render it invalid for want of uni- formity and equality. Succession of Levy, 8: 1 1 80, 39 So. 37, 115 La. 377. 228. Subjecting to the tax authorized by N. Y. Laws 1896, chap. 08, a transfer of property by deed intended to take effect at the death of the grantor, without taxing transfers intended to take effect upon the death of some person other than the grant- or, or upon the happening of a certain or contingent event, does not involve sucli a discrimination as to deny the equal protec- tion of the laws guaranteed by the 14th Amendment to the Federal Constitution. Keeney v. Comptroller, 38: 1139, 32 Sup. 'Ct. Rep. 105, 222 U. S. 525, 56 L. ed. 299. 229. An exemption from a collateral in- heritance tax when the estate is less than a certain value is not an unconstitutional discrimination, which will invalidate the tax. Rodman v. Com. ex rel. Selligman, 33: 592, 113 S. W. 61, 130 Ky. 88. 230. The general constitutional guaranty 550 CONSTITUTIONAL LAW, II. a, 5. of equality and equal protection of the laws is not infringed by an increased rate of taxation upon inheritances as the amount of the inheritance increases. Nunnemacher v. State, 9: 121, 108 N. W. 627, 129 Wis. 190. 231. An inheritance tax law which grad- uates the rates according to a classification of the persona who receive the property, and makes the rates progressive according to the amount received, and which exempts estates below a certain amount when the beneficiaries are related to the deceased within certain degrees, does not violate the Bill of Rights, declaring that free govern- ments are instituted for the equal protec- tion and benefit of the people. State ex rel. Ise v. Cline, 50: 991, 137 Pac. 932, 91 Kan. 416. (Annotated) Tax on dogs. Due process as to, see infra, 536. Polite power as to, see infra, 655. As tax for public purpose, see TAXES, 42. 232. A statute imposing a tax on dogs to indemnify the owners of sheep killed by them does not violate a constitutional pro- hibition of the granting of exclusive sepa- rate public emoluments or privileges. Mc- Glone v. Womack, 17: 855, 111 S. W. 688, 129 Ky. 274. Income tax. Uniformity of income tax, generally, see TAXES, VI. b. 233. A graduated income tax which ex- empts incomes under a specified amount, and increases the tax as the income reaches stated amounts above that sum, does not deny taxpayers the equal protection of the laws, or deprive them of their property without due process of law. Alderman v. Wells, 27: 864, 67 S. E. 781, 85 S. C. 507. (Annotated) 5. As to regulation of business; license. a. In general. (See also same heading in Digest L.R.A. 1-70.) As to nonresidents or aliens, see supra, 200-202. Foreign corporations, see supra, II. a, 2, c. As to corporations, associations and car- riers, see supra, II. a, 3. Due process of law as to, see infra, II. b, 4. Uniformity and equality as to license, see LICENSE, II. d. Special legislation as to license, see STAT- UTES, 161. See also infra, 688. 234. A statute prohibiting unfair com- mercial discriminations between different sections, communities, or localities is not unconstitutional as class legislation. State v. Drayton, 23: 1287, 117 N. W. 768, 82 Neb. 254. 235. The application of a police measure to the work of erection or demolition of structures having iron or steel framework, operation of elevators in constructing or demolishing buildings, to work on scaffolds Digest 1-52 or about electrical currents or explosives, the operation of railroads, the construc- tion of tunnels, and work carried on under compressed air, is not a denial of the equal protection of the laws, as being an arbitrary classification. Ives v. South Buffalo R. Co. 34: 162, 94 N. E. 431, 201 N. Y. 271. 236. No unequal grant of privileges or immunities, contrary to the Constitution, is effected by a statute requiring contracts to make compensation for procuring a pur- chaser for real estate to be in writing. Selvage v. Talbott, 33: 973, 95 N. E. 114, 175 Ind. 648. 237. A state statute requiring contracts to make compensation for procuring pur- chasers for real estate to be in writing is not forbidden by the 14th Amendment to the Federal Constitution, since that Amend- ment was not intended to interfere with the police power of the states. Selvage v. Talbott, 33: 973, 95 N. E. 114, 175 Ind. 648. Rate of interest. 238. A statute making it illegal to take more than a specified rate of interest on loans of less than a certain amount on household goods, and the tools of certain trades, while permitting any rate which can be agreed upon to be taken in other cases, is unconstitutional as not uniform in operation. Re Sohncke, 2: 813, 82 Pac. 956, 148 Cal. 262. (Annotated) Barbers. Due process of law as to, see infra, 431. 239. 'So far as a statute regulating barber colleges forbids them to charge for the work of students and to display any sign except the mere announcement of the fact that it is a barber college tends to discourage per- sons from learning the trade and 'creates a monopoly, it violates the constitutional prohibition of the granting of special rights, privileges, and immunities. Moler v. Whis- rnan, 40: 629, 147 S. W. 985, 243 Mo. 571. Moving picture machine operators. Forbidding operation of, on Sunday, see infra, 295. Due process of law as to, see infra, 429. 240. A statute requiring any person desir- ing to engage in the business of moving pic- ture machine operator to secure a license is not rendered discriminatory and invalid be- cause it gives those engaged in the business at the passage of the statute fcixty days in which to secure their licenses. State ex rel. Ebert v. Loden, 40: 193, 83 Atl. 564, 117 Md. 373. 241. That a section of a statute requir- ing any "such person" desiring to engage in the business of moving picture machine operator to obtain a license follows a sec^ tion dealing with persons engaged in the business at the passage of the act does not confine the operation of th statute to such persons and thereby make it discriminatory, where the introductory language of the statute shows that it is to apply to all who wish to engage in such business. State ex rel. Ebert v. Loden, 40: 193, 83 Atl. 564, 117 Md. 373. Electricians. Due process as to, see infra, 430. -i..j sc-i CONSTITUTIONAL LAW, II. a, 5. 551 242. A statute permitting the lighting and electric railway companies and the de- partment of police and public buildings of New Orleans to employ unlicensed elec- tricians for the installation and mainte- nance of their "equipment pole line services" and "meters," which work is important, while others can employ only licensed elec- tricians except for work of minor impor- tance, denies the constitutional right to equal protection of the law. State v. Gantz, 24: 1072, 50 So. 524, 124 La. 535. Billiard and pool tables. Due process of law as to, see infra, 424. Police power as to, see infra, 692. 243. A municipal ordinance prohibiting the keeping of billiard or pool tables for hire or public use does not deny the equal protection of the laws because hotel keepers are permitted to maintain a billiard or pool room in which their regular and registered guests may play. Murphy v. People, 41: 153, 32 Sup. Ct. Rep. 697, 225 U. S. 623, 56 L. ed. 1229. Dance halls. Due process as to, see infra, 422. Police power as to, see infra, 695, 696. 244. An ordinance requiring a license to conduct a public dance hall while permit- ting other dances to be conducted without license does not deprive its owner of the equal protection of the law. Mehlos v. Mil- waukee, 51: 1009, 146 N. W. 882, 156 Wis. 591. 245. The constitutional guaranty of equal rights is not infringed by a police regulation forbidding the permitting of any person under twenty-one years of age to be or remain in a dance hall, on the ground that it discriminates between women who have arrived at the age of majority under the age of twenty-one, and those over the age of twenty-one. State v. Rosenfield, 29: 331, 126 N. W. 1068, 111 Minn. 301. Running races. 246. A statute is not invalid as class leg- islation because it prohibits the operation of tracks for running races without a li- cense from a commission, while permitting trotting races and fairs at which races are held without such licenses. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. Weight of bread. 247. Specifying the weight of loaves of bread to be sold within a city is not in- valid special legislation, if it applies to all dealers in that product alike. Chicago v. Schmidinger, 44: 632, 90 N. E. 369, 243 111. 167. Labels on food products in package form. 248. An act of the legislature which in effect places persons who manufacture and sell, or who sell either at wholesale or re- tail, certain specified food products in pack- age form, not put up by retailers, in one class, and retailers who put up and sell the same products in package form them- selves, in another class, and provides that such food sold in package form, not put up Digest 1-52 L.R.A.(N.S-) by the retailer, shall bear a printed label showing net weight or measure of the con- tents, does not deprive one who sells a "misbranded" package, of the equal pro- tection of the laws, and is not violative of the 14th Amendment to the Constitution of the United States. Freadrich v. State, 34: 650, 131 N. W. 618, 89 Neb. 343. (Annotated) Sales in bulk. 249. The prohibition of Okla. Sess. Laws, 1903, p. 249, chap. 30, 1, against selling stocks of merchandise in 'bulk without giv- ing notice to the seller's creditors so far as the purchaser can, with reasonable dili- gence, obtain knowledge of them, is not un- constitutional as class legislation, nor in- consistent with the organic act, 6, pro- hibiting the passage of any law impairing the right to private property. Williams v. Fourth Nat. Bank, 2:334, 82 Pac. 4P6, 15 Okla. 477. (Annotated) 250. A statute declaring to be fraudulent and void against creditors of the seller, a sale in bulk of a stock of merchandise, or of a portion of it, other than in the ordi- nary course of trade, unless, five days before its consummation, the parties shall make an inventory of the quantity and cost price to the seller of each article, and the pur- chaser shall inquire of the seller the name and residence of each of his creditors, and notify them of the sale and cost price of the stock and price to be paid therefor, is unconstitutional as depriving the seller of the equal protection of the laws and of lib- erty and property rights. Wright v. Hart, 2: 338, 75 N. E. 404, 182 N. Y. 330. ( Annotated ) Use of flag. Due process of law as to, see infra, 523, 524. Police power as to, see infra, 675. See also FLAG. 251. That a state statute forbidding the use of the United States flag for advertising purposes excepts from its operation any act permitted by the statutes of the United States or by the Army and Navy regula- tions, or any use of the flag for purposes of display or ornament, disconnected from any advertisement, does not render the act ob- jectionable as special or class legislation. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. (Annotated) 252. A statute forbidding the use of the flag for advertising purposes does not abridge the privileges or immunities of citi- zens of the United States, in contravention of 1 of the 14th Amendment to the Fed- eral Constitution. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. (Annotated) Use of streets. Uniformity and equality as to license, see LICENSE, 107-110. 253. A municipal corporation has, in view of the constitutional prohibition of the granting of special privileges, no power, un- der its statutory authority over its streets, to grant to an individual, who has agreed to place receptacles for refuse in the streets, the exclusive privilege, as his compensation 552 CONSTITUTIONAL LAW, II. a, 5. therefor, of using them for advertising pur- poses. People ex rel. Healy v. Clean Street Co. 9: 455, 80 N. E. 298, 225 111. 470. (Annotated) 254. A municipal ordinance is not invalid as unconstitutionally granting special privi- leges, which allows the municipality to grant special permission to licensed hack drivers who can procure the consent of the abutting property owners, to stand their vehicles in the street in front of such property, when the same privilege is not granted to those who do not obtain such consent. McFall v. St. Louis, 33: 471, 135 S. W. 51, 232 Mo. 716. (Annotated) 255. A tax of $50 per year for the privi- lege of using wagons on a city's streets for delivering coal oil, or $25 for using ice wagons, and $10 or less for using all other kinds of vehicles, is void for unreasonable discrimination, under a constitutional pro- vision that no privileges or immunities shall be granted to any citizen or class of citizens which, upon the same terms, shall not equally belong to all citizens. Waters- Pierce Oil Co. v. Hot Springs, 16: 1035, 109 S. W. 293, 85 Ark. 509. (Annotated) Insurance agents. 256. Restricting the right to engage in an insurance brokerage business to those who make that their principal business, or those engaged in the real estate business, deprives other citizens wishing to engage in that business of the constitutional liberty and the equal protection of the laws. Hauser v. North British & Mercantile Ins. Co. 42: 1139, 100 N. E. 52, 206 N. Y. 455. Money lenders. As to usury, see infra, 341-343. Due process as to, see infra, 466. Special legislation as to rates of interest, see STATUTES, 167, 168. 257. A statute imposing a high privilege tax on mcney lenders only when they lend on furniture, wearing apparel, pianos, sew- ing machines, jewelry, plate, and glassware is void as class legislation. Rodge v. Kelly, ii : 635, 40 So. 552, 88 Miss. 209. ( Annotated ) Milk dealers. Due process as to, see infra, 449. Police power as to, see infra, 731-738. 258. An ordinance is not unconstitution- al for partial and unequal operation, which requires cows from which milk is to be sold in the city to be tested with tuberculin, if they are kept outside the city, while not requiring such test of cows kept within it. Adams v. Milwaukee, 43: 1066, 129 N. W. 518, 144 Wis. 371. 259. An ordinance imposing a penalty on all who sell milk or cream in glass jars, for having in possession, with intent to use them, jars of less capacity than they pur- port to contain, is not special legislation, although it does not apply to all milk deal- ers, or to all persons who vend substances in liquid form. Chicago v. Bowman Dairy Co. 17: 684, 84 N. E. 913, 234 111. 294. i-eddiers, commission merchants, etc. Due process of law as to, see infra, 513. See also supra, 201. Digest 1-52 L.R.A.(N.S.) 260. No unconstitutional impairment of the privileges and immunities of peddlers in general occurs by compelling them to pay a license fee from which peddlers of farm products, books, periodicals, and newspa- pers are exempted, since the classification upon which the difference depends is not wholly without reason. McKnight v. Hodge, 40: 1207, 104 Pac. 504, 55 Wash. 289. (Annotated) 261. An exemption from the general law requiring peddlevs to pay a license fee, of those operating in towns whose ordinances regulate such licenses, does not effect an unconstitutional impairment of the privi- leges and immunities of those operating elsewhere. McKnight v. Hodge, 40: 1207, 104 Pac. 504, 55 Wash. 289. Pawnbrokers, second-hand dealers, jnnk dealers. 262. Forbidding pawnbrokers, secondhand dealers, and junk dealers to keep their places of business open or transact busi- ness between 7 o'clock P. M. and 7 o'clock A. M. is not unconstitutional class legisla- tion, nor is it unconstitutional as in re- straint of trade or personal liberty. Hy- man v. Boldrick, 44: 1039, 154 S. W. 369, 153 Ky. 77. (Annotated) 263. The legislature may, without being guilty of unconstitutional class legislation, require junk dealers to make inquiry as to the ownership of certain classes of prop- erty offered for sale which, because of its peculiar nature and situation, is peculiar- ly subject to larceny without possibility of its being adequately watched and guarded. People v. Rosenthal, 46: 31, 90 N. E. 991, 197 N. Y. 394. 264. Confining to junk dealers the duty of making inquiry as to ownership before pur- chasing certain kinds of property, under penalty of punishment for receiving stolen property in case it proves to have been stolen, does not deprive them of the equal protection of the laws. People v. Rosen- thai, 46: 31, 90 N. E. 991, 197 N. Y. 394. Intoxicating liqnors. Discrimination against women in regula- tions as to, see supra, 154-156. Prohibiting manufacture of alcohol, see supra, 192. Discrimination against nonresidents and aliens, see supra, 202, 202a. Treating in saloons, see infra, 423. Due process of law as to, see infra, 508-512, 529. Special legislation as to, see STATUTES, 180-182. 265. The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States. State v. Durein, 15: 908, 78 Pac. 152, 70 Kan. 1. 266. Classification of the counties of a state so as to permit the sale of intoxicat- ing liquors in some, while it is prohibited in others, does not violate the provision of the Federal Constitution that .no state shall deny to any person within its jurisdiction the equal protection of the laws. Atkinson CONSTITUTIONAL LAW, II. a. 5. v. Southern Exp. Co. 48: 349, 78 S. E. 516, 94 S. C. 444. 267. Denying persons in a particular lo- cality the right of selling intoxicating li- quor, which is enjoyed by persons in other localities, does not unconstitutionally grant to the latter privileges and immunities not enjoyed by the former. State ex rel. Gibson v. Richardson, 8: 362, 85 Pac. 225, 48 Or. 309. (Annotated) 268. That the sale of intoxicating malt beverages is restricted to manufacturers does not show an intention to discriminate in their favor, so as to render void a statute regulating the sale of intoxicating liquors. Com. v. Henry, 26: 883, 65 S. E. 570, 110 Va. 879. 269. Special restrictions against the sale of intoxicating liquors are not necessarily void as class legislation, because hotels having 100 rooms or more are exempted therefrom, if the restrictions be confined to the classes of persons to whom the sale is forbidden, and to the furnishing of, and approaches to, the room in which the sale takes place. Ex parte Lewinsky, 50: 1156, 63 So. 577, 66 Fla. 324. 270. A statute that requires a certificate and the answering of certain questions by persons engaged in the traffic in intoxicat- ing liquors, upon which the right to con- tinue in such business depends, is not discriminatory so as to deny the equal pro- tection of the laws, because only persons who are engaged in the business when the as- sessor makes his rounds, are required to make the certificate and answer the ques- tions. Bloomfield v. State, 41 : 726, 99 N. E. 309, 86 Ohio St. 253. 271. A municipal ordinance granting to an individual a license to conduct a res- taurant in which intoxicants may be sold is invalid as conferring a special privilege to conduct a private business of a char- acter subject to general police regulations, and which is of no public interest. State ex rel. Da vies v. White, 50: 195, 136 Pac. 110, 36 Nev. 354. 272. An ordinance regulating the hours in which intoxicating liquors shall be sold is not objectionable as class legislation where it is equally applicable to all dealers in in- toxicating liquors, whether at wholesale or retail, nor does it infringe any right privi- lege, or immunity secured to the citizen by the Federal Constitution or that of the state of Idaho. State v. Galloway, 4: 109, 84 Pac. 27, 11 Idaho, 719. 273. The discretion vested by statute in probate judges of the respective counties of Kansas to grant or refuse permits to sell intoxicating liquors for medical, mechan- ical, or scientific purposes, does not violate the 14th Amendment of the^Constitution of the United States, which provides that no state shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liber- ty, or property without due process of law. State v. Durein, 15: 908, 78 Pac. 152, 70 Kan. 1. Digest 1-52 L.R.A.(N.S.) 275. A municipal ordinance forbidding the establishment of any barroom without permission of the city council previously ap- plied for in writing, to be accompanied by the written consent of a majority of the bona fide property holders within 300 feet of the proposed location of the barroom, measured along the street fronts, is not unconstitutional as conferring arbitrary powers on the property holders and council, or as discriminating in favor of saloons and barrooms already opened and established at the date of the ordinance. New Orleans v. Smythe, 6: 722, 41 So. 33, 116 La. 685. (Annotated) 276. A law forbidding the permitting of females under age to remain in or about saloons is not invalid class legislation be- cause it does not apply to public restaurants and dining rooms. State v. Baker, 13: 1040, 92 Pac. 1076, 50 Or. 381. 277. The equal protection of the laws is not denied to citizens of a certain county by a statute providing that having in posses- sion in that county more than a quart of liquor without license to sell the same shall be deemed prima facie evidence of intent to make an illegal sale thereof. State v. Barrett, i : 626, 50 S. E. 506, 138 N. C. 630. (Annotated) Nonintoxicating beverages. Police power as to, see infra, 741-743. In license tax, see LICENSE, 103-106. See also infra, 512. 278. A tax upon all engaged in the busi- ness of selling nonintoxicating malt bever- ages containing as much as \ of 1 per cent of alcohol is not invalid as forming an ar- bitrary classification. State v. Dannenburg, 26: 890, 66 S. E. 301, 151 N. C. 718. Medicine, dentistry, etc. Due process of law as to, see infra, 432. Police power as to, see infra, 707-711. 279. A statute providing for the revoca- tion of the license of a physician who pub- lishes an advertisement relating to dis- ease of the sexual organs, while permitting such advertisement by other persons, is in- valid as class legislation. Chenoweth v. State Bd. of Medical Examiners, 51: 958, 141 Pac. 132, Colo. . Banking. Due process of law as to, see infra, 435, 436. Police power as to, see infra, 700-702. 280. Requiring the real estate, furniture, and fixtures of a private banker to consti- tute no more than one third of the entire capital of the bank does not, even as ap- plied to established institutions, violate the constitutional provisions against taking property without compensation or due process of law, granting special privileges or immunities, or abridging the privileges and immunities of citizens. State v. Rich- creek, 5: 874, 77 N. E. 1085, 167 Ind. 217. (Annotated) 281. Requiring the responsibility and net worth of the individual members of a pri- vate banking concern to be equal to an amount at least double the amount of cap- ital paid into the bank does not violate the constitutional provisions against taking 554 CONSTITUTIONAL LAW, II. a, 5. property without compensation or due proc- ess of law, conferring special privileges or immunities, or abridging the privileges and immunities of citizens. State v. Richcreek, 5: 874, 77 N. E. 1085, 167 Ind. 217. (Annotated) 282. National banks in a state are not unconstitutionally denied the equal protec- tion of the laws by a state statute permit- ting state banks to contribute to a guar- anty fund for the security of depositors. Abilene Nat. Bank v. Dolley, 32: 1065, 179 Fed. 461, 102 C. C. A. 607. 283. Savings banks are not unconstitu- tionally discriminated against by making applicable to them alone the provisions of Mass. Laws 1907, chap. 340, that deposits which have remained inactive and unclaimed for thirty years, where the claimant is un- known or the depositor cannot be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. Provident Inst. for Sav. v. Malone, 34: 1129, 31 Sup. Ct. Rep. 661, 221 U. S. 660, 55 L. ed. 899. Plumbers. Due process of law as to, see infra, 434. Special legislation as to, see STATUTES, 161. 284. Requiring all who engage in the plumbing business in municipalities contain- ing more than 5,000 inhabitants to procure a license, and requiring the appointment of a board of examiners in those of more than 10,000 inhabitants, is not an arbitrary class- ification, so as to render the statute invalid. Douglas v. People ex rel. Ruddy, 8: 1116, 80 N. E. 341, 225 111. 536, Pharmacists. Due process of law as to, see infra, 503. Police power as to, see infra, 712, 713. 285. No unconstitutional discrimination against retail druggists is made by a stat- ute requiring them, when selling poisons without a physician's prescription, to sat- isfy themselves that they are to be used for a legitimate purpose, although the same requirement is not imposed upon whole- salers. Katzman v. Com. 30: 519, 130 S. W. 990, 140 Ky. 124. 286. A statute limiting the sale of medi- cines to licensed pharmacists is not void for unconstitutional discrimination because it permits the sale of certain remedies by mer- chants in villages if their places of business are more than 3 miles distant from a drug store. State Bd. of Pharmacy v. Matthews, 26: 1013, 90 N. E. 966, 197 N. Y. 353. Fishing. Due process of law as to, see infra, 527. See also supra, 185, 186. 287. The limitation by the state during certain months of the year, of the right to take shellfish from tide water within the limits of a town, to its residents and hotel proprietors, who are permitted to take them for use on their tables, is not void as deny- ing other citizens of the state the equal pro- tection of the laws. State v. Leavitt, 26: 799, 72 Atl. 875, 105 Me. 76. 288. The provisions of Ohio Rev. Stat. i 6968-2, as amended April 26, 1898 {93 Digest 1-52 L.R.A.(N.S.) Ohio Laws, p. 304 ) , requiring every person, firm, or corporation desiring to engage in fishing for profit in the waters of Lake Erie or its estuaries or bays within the state i to obtain a license or authority so to do from the commissioners of fish and game, and to pay a specified fee therefor, is not invalid as a denial of the equal protection of the laws in violation of the 14th Amend- ment to the Constitution of the United States, nor is it repugnant to the uniformity clause in Ohio Const, art. 2, 26. State v. Hanlon, 13: 539, 82 N. E. 662, 77 Ohio St. 19. Telegraph business. Due process of law as to, see infra, 452. 290. The equal protection of the laws is not denied telegraph companies and the per- sons with whom it does business by a state statute under which, as construed by the state courts a telegraph company cannot limit its liability for its negligent failure to deliver a telegram addressed to a person in another state, although express com- panies and other common carriers may, by contract, limit their liability in this re- spect. Western U. Teleg. Co. v. Commer- cial Milling Co. 36: 220, 31 Sup. Ct. Rep. 59, 218 U. S. 406, 54 L. ed. 1088. Architects. 291. An exception in favor of persons planning buildings to be erected or altered by themselves or their employees, in a statute requiring architects to be licensed, does not render the statute unconstitution- al as class legislation. People ex rel. Laist v. Lower, 36: 1203, 96 N. E. 346, 251 111. 527. ( Annotated ) b. Sunday laws. (See also same heading in Digest L.R.A.. 1-10.) Due process of law as to, see infra, 450, 451. Police power as to, see infra, 687. Conflict of laws as to, see CONFLICT OF LAWS, 49, 50. Special legislation as to, see STATUTES, 158, 159. As to Sunday laws generally, see SUNDAY. 292. A law declaring Sunday a day of rest is not unconstitutional because it does not prohibit all kinds of labor on Sunday. State v. Dolan, 14:1259, 92 Pac. 995, 13 Idaho, 693. ( Annotated ) 293. The prohibition of certain trades and business upon Sunday, by Idaho Act March 12, 1907, does not infringe the 14th Amend- ment to the Constitution of the United States, forbidding the making or enforce- ment of any laws which abridge the privi- leges or immunities of citizens of the United States. State v. Dolan, 14: 1259, 92 Pa. 995, 13 Idaho, 693. 294. The prohibition of certain trades and business on Sunday, contained in Idaho act March 12, 1907, does not discriminate between certain persons and against cer- tain business, and is not unfair or unrea- sonable in contravention of the Idaho Con- CONSTITUTIONAL LAW, II. a, 5. 5o5 stitution. State v. Dolan, 14: 1259, 92 Pae. 995, 13 Idaho, 693. Theaters, pictures, shows, etc. Right to keep open on Sunday, generally, see SUNDAY, 4, 13-15. 295. A statute making it unlawful to keep open, or run, or permit to be run, any theaters, show, moving picture show, or theatrical performance upon Sunday, is not invalid as special legislation. State ex rel. Temple v. Barnes, 37: 114, 132 N. W. 215, 22 N. D. 18. Barbers. Special legislation as to, see STATUTES, 159. 296. A statute requiring the closing of barber shops on Sunday, fixing a different penalty for its violation from that imposed for violations of the general Sunday law, violates a constitutional piovision forbid- ding special laws for the punishment of misdemeanors. Armstrong v. State, 15: 646, 84 N. E. 3, 170 Ind. 188. (Annotated). Playing ball. Playing ball as sporting, see SUNDAY, 5-10. 297. Exempting professional baseball play- ers from the operation of the Sunday laws, while leaving them applicable to per- sons engaged in other occupations, does not grant them an unconstitutional privilege or immunity, since the possibility of benefit to the populace which may witness the games is sufficient to indicate an absence of purely arbitrary action in the classification. Carr v. State, 32: 1190, 93 N. E. 1071, 175 Ind. 241. (Annotated) c. As to employees. (See also same heading in Digest L.R.A. 1-10.) Due process of law as to, see infra, II. b, 4, b (2). Police power as to, see infra, II. c, 4, c. 298. Requiring employers advertising for help during the existence of a strike to mention its existence does not create spe- cial privilege, nor is it class legislation. Com. v. Libbey, 49: 879, 103 N. E. 923, 216 Mass. 356. 299. A statute forbidding the employment of persons to operate emery or buffing wheels or belts in basements wholly or part- ly beneath the surface of the ground is un- constitutional class legislation, since such rooms may be as healthfully lighted and ventilated as those above the surface, and can be used for the prohibitive purpose as healthfully as can be the latter. People v. Schenck, 44: 46, 100 N. E. 994, 257 111. 384. (Annotated) Favoring nnion workmen. Due process of law as to, see infra, 474. 300. That organizations of laboring men for the purpose of raising wages are except- ed from the operation of Neb. Cotnp. Stat. 1901, chap. 91a, 9, prohibiting combina- tions and conspiracies to prevent competi- tion and regulate prices, does not confer upon them special or exclusive privileges or immunities in contravention of Neb. Const. Digest 1-52 I,.R.A.(N.S.) art. 3, 15; nor is it special legislation within the meaning of that section. Cle- land v. Anderson. 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. Hours of labor. Due process of law as to, see infra, 477- 485. Police power as to, see infra, 720. Impairment of contract obligations, see infra, 781. Special or local legislation as to, see STAT- UTES, 162, 163. 301. Unconstitutional discrimination is not effected by forbidding persons employed on public work to labor more than eight hours a day, while those employed by pri- vate citizens are not restricted in the dura- tion of the hours of labor. People ex rel. Williams Engineering & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. (Annotated) 302. Exempting from a statute limiting the hours of labor on public work persons regularly employed in state institutions, engineers, electricians, and elevator men in the department of public buildings during the annual session of the legislature, and persons employed in the construction, main- tenance, and repair of highways outside the limits of cities and villages, is not such an arbitrary classification as to render the statute void as denying the equal protection of the laws. People ex rel. Williams En- gineering & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. 303. The legislature can pass no law limit- ing the hours of labor on contracts for im- provements which a municipal corporation undertakes in its private or proprietary capacity, where the Constitution prohibits special laws regulating labor, since there is no distinction between the labor on such contracts and those of private individuals, which can form a proper basis for classifi- cation. Com. v. Casey, 34: 767, 80 Atl. 78, 231 Pa. 170. (Annotated) 304. A statute limiting the hours of labor in mines and smelting and reduction works is not special legislation, nor does it grant special privileges and immunities, nor lack uniformity of operation, because it does not apply alike to all classes or laborers en- gaged in occupations dangerous to health. Ex parte Martin, 26: 242, 106 Pac. 235, 157 Cal. 51. (Annotated) 305. That a statute limiting the hours of labor in mines does not apply to persons employed in other underground occupations does not render it invalid for lack of uni- formity of operation. Ex parte Martin, 26: 242, 106 Pac. 235, 157 Cal. 51. 306. A statute limiting the hours of labor labor of stationary firemen in certain plants operated by steam, and running day and night, but which does not apply to plants running either day or night, rests on an arbitrary distinction, and is there- fore void. State v. Barba, 45: 546, 61 So. 784, 132 La. 768. 307. A statute providing that stationary firemen in certain plants operated by steam 556 CONSTITUTIONAL LAW, II. a, 5. shall not be employed to work consecutive- ly more than eight hours in one day, and which exempts stationary firemen employed in the petroleum industry, cotton gins, sugar plantations, or in the sawmill in- dustry, works an unconstitutional discrim- ination and is therefore void. State v. Barba, 45: 546, 61 So. 784, 132 La. 768. 308. Limiting hours of labor of women in hotels to ten, while placing no limitation upon them in boarding houses and other like places, is not an unconstitutional dis- crimination, since the public nature of the hotel business furnishes a proper ground for classification. People v. Elerding, 40: 893, 98 N. E. 982, 254 111. 579. (Annotated) 309. Unconstitutional class legislation does not result from excepting, from the operation of a law limiting the hours of woman's labor, persons 'engaged in preserv- ing perishable goods in fruit and vegetable canning establishments. Withey v. Bloem, 35: 628, 128 N. W. 913, 163 Mich. 419. 310. An unconstitutional distinction be- tween different classes of women is not ef- fected by forbidding those employed in me- chanical establishments, factories and laun- dries to work more than ten hours per day, while permitting all others to do so. W. C. Ritchie & Co. v. Wayman, 27: 994, 91 N. E. 695, 244 111. 509. 311. The limitation of the working hours of women in manufacturing and mercantile establishments, to nine in every twenty- four, does not deprive them of any right guaranteed to them by the 14th Amend- ment of the Federal Constitution. Withey v. Bloem, 35: 628, 128 N. W. 913, 163 Mich. 419. (Annotated) Payment of wages. Statute as to assignment of wages, see supra, 180, 181. Statute as to garnishment of wages, see supra, 183, 184. Due process of law as to, see infra, 486-491. Who may question constitutionality of stat- ute as to time of payment of wages, see STATUTES, 31. 312. Corporations are not deprived of the equal protection of the laws by requiring them to pay their employees semimonthly, when the requirement is not made to ap- ply to natural persons. Arkansas Stave Co. v. State, 27: 255, 125 S. W. 1001, 94 Ark. 27. 313. A domestic corporation cannot avoid the effect of a statute requiring corpora- tions of the class to which it belongs to pay their employees weekly, on the ground that it is unequal because inapplicable to for- eign corporations, since such corporations are amenable to the statute so far as they attempt to do business within the state. Lawrence v. Rutland R. Co. 15: 350, 67 Atl. 1091, 80 Vt. 370. 314. Requiring steam surface railways to pay their employees semimonthly, in cash, does not deprive them of the equal protec- tion of the laws, although the requirement does not apply to other corporations, since the classification is a proper one for such Digest 1-52 L.R.A.(N.S.) purpose. New York C. & H. R. R. Co. v. Williams, 35: 549, 92 N. E. 404, 199 N. Y. 108. 315. A railway company is not deprived of the equal protection of the laws by a statute requiring such companies and other transportation and telephone and telegraph companies to pay their employees weekly. Lawrence v. Rutland R. Co. 15: 350, 07 Atl. 1091, 80 Vt. 370. (Annotated) Liability for negligent injury. Denial of due process or interference with freedom of contract as to, see infra, 467-473. Police power as to, see infra, 721-723. Impairment of contract obligations by stat- ute as to, see infra, 780. 316. An employees' insurance act which applies to employers employing five or more workmen or operatives does not make an unjust or arbitrary classification. State ex rel. Yaple v. Creamer, 39: 694, 97 N. E. 602, 85 Ohio St. 349. 317. An employees' indemnity act is not invalid as class legislation because the fund collected by assessments upon certain haz- ardous business is to be expended in the relief of employees of such business, in- stead of being applied to the relief of workmen generally, or to the use of the state at large. State ex rel. Davis-Smith Co. v. Clausen, 37: 466, 117 Pac. 1101, 65 Wash. 156. 318. That an employees' indemnity act made applicable only to hazardous occu- pations entitled to its benefit workmen in- jured when outside the line of their duties, or in a branch of the business not peculiar- ly hazardous, does not rescler the entire act invalid as class legislation, if provision is made for an elimination from the act of parts which may be found to be invalid, without affecting the remainder. State ex rel. Davis-Smith Co. v. Clausen, 37: 466, 117 Pac. 1101, 65 W 7 ash. 156. 319. A statute is not invalid for uncon- stitutional discrimination, which abolishes the doctrines of fellow service and assump- tion of risk in actions to hold employers liable for negligent injuries to their em- ployees, except in cases of persons employ- ing less than four servants. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wig. 327. 320. A statute is not invalid as confer- ring unequal privileges and immunities, which abolishes the doctrines of assumption of risk and fellow service in actions to hold employers liable for personal injuries to their servants, in cases where employers refuse to take advantage of the act, but preserves them intact to those who come under the law. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 321. Imposing upon private corporations a liability for injuries to employees, which will not exist in case of individuals or part- nerships for injuries arising from the same cause under the same conditions, violates the constitutional provision guaranteeing equal protection of the laws. Bedford Quar- ries Co. v. Bough, 14: 418, 80 N. E. 529, 168 Ind. 671. CONSTITUTIONAL LAW, II. a, G. 557 322. The modification of the fellow-serv- ant rule as to railway employees, made by Ind. act of March 4, 1893, 1, does not offend against the equal protection of the laws clause of the Federal Constitution be- cause construed as applying to all employees doing work essential to enable the carrying on of railway operations, and not as limit- ed to those engaged in or about the move- ment of trains, but such general classifi- cation of railway employees is a proper exercise of the police power. Louisville & N. R. Co. v. Melton, 47: 84, 30 Sup. Ct. Rep. 676, 218 U. S. 36, 54 L. ed. 921. (Annotated) 323. Making railroad companies liable for injury to employees through the negli- gence of fellow servants, and forbidding the avoidance of such liability by a relief or indemnity contract with the employee, does not deprive such companies of the equal protection of the laws. McGuire v. Chicago, B. & Q. R. Co. 33: 706, 108 N. W. 902, 131 Iowa, 340. 324. A state employers' liability act ex- cepting from the general law of the state as to fellow servants all common carriers and all their employees, and subjecting the former to and granting to the latter causes of action for injuries caused by the negli- gence of their fellow servants, and for those to which their own negligence contributes in less degree than the negligence of the employer, while no such rights are grant- ed to other employees, denies to persons similarly situated the equal protection of the laws guaranteed by the 14th Amend- ment to the Federal Constitution. Chicago, M. & St. P. R. v. Westby, 47: 97, 178 Fed. 619, 102 C. C. A. 65. 325. A state employers' liability act which by its terms subjects "every common car- rier" engaged in commerce in the state to liability for, and grants to "any" employee of every such carrier a cause of action for, injuries to the employee caused by the negli- gence of a fellow servant, and for those con- tributed to by his own negligence in less de- gree than the negligence of the employer, cannot be saved from unconstitutionally as denying equal protection of the laws by limiting it by judicial construction to com- mon carriers using powerful and dangerous agencies, and their servants engaged in hazardous and dangerous occupations, so as to apply only to a constitutional class, since to do so would constitute judicial legislation. Chicago, M. & St. P. R. Co. v. Westby, 47: 97, 178 Fed. 619, 102 C. C. A. 65. 326. A state constitutional provision may abrogate the common-law fellow-servant doc- trine as to all employees of railroad, street railway, interurban railway, and mining companies, because of the hazards attached to these employments, without offending against the equal protection clause of the 14th Amendment of the Federal Constitu- tion, and is not limited merely to those em- ployees who are engaged in the specially hazardous work of such vocations. Kreps v. Brady, 47: 106, 133 Pac. 216, 37 Okla. 754. Digest 1-52 L.R.A.(N.S.) 327. Applying to proprietors of railroads a rule of liability with respect to injuries of employees different from that applied to other classes of employers does not deprive them of the equal protection of the laws. Indianapolis Traction & T. Co. v. Kinney, 23: 711, 85 N. E. 954, 171 Ind. 612. 328. The equal protection of the laws is not denied to railroad companies by a con- stitutional provision repealing the fellow- servant doctrine in favor of employees of commercial railroads, but not as to logging, lumber, and other like roads. Bradford Constr. Co. v. Heflin, 12: 1040, 42 So. 174, 88 Miss. 314. (Annotated) 329. The abrogation of the fellow-serv- ant rule as to railway employees, made by Miss. Code 1892, 3559, does not offend against the equal protection of the laws clause of the Federal Constitution, be- cause construed as applying to the fore- man of a section crew charged with keep- ing the track in repair. Mobile, ,1. & K. C. R. Co. v. Turnipseed, 32: 226, 31 Sup. Ct. Rep. 136, 219 U. S. 35, 55 L. ed. 78. d. Regulating rates. Railroad rates, see supra, 212-217. Due process of law in, see infra, II. b, 4, c. Impairment of contract obligations by, see infra, 790, 791. Special legislation as to rates of interest, see STATUTES, 167, 168. 329a. A provision in a statute empowering a commission to fix rates to be charged by gas companies, that a rate when established shall continue until changed at the petition of the consumer, giving the corporation no power to petition for a change, deprives the corporation of its constitutional right to equal protection of the laws. Saratoga Springs v. Saratoga Gas, E. L. & P. Co. 18: 713, 83 N. E. 693, 191 N. Y. 123. 6. Attorneys' fees; costs; penalties; damages. 330. The legislature may allow an at- torney's fee against one whose delinquency makes necessary a proceeding to enforce a special assessment for public improve- ments against his property, although no such fee is allowed in his favor. Engebret- sen v. Gay, 28: 1062, 109 Pac. 880, 158 Cal. 30. In mechanics' lien case. 331. A statute allowing an attorney's fee to one who establishes a mechanics' lien which is not allowed to other classes of liti- gants, violates the constitutional guaranty of equal protection of the laws, uniformity of laws, and equal rights in the acquisition and protection of property. Builders' Sup- ply Depot v. O'Connor, 17: 909, 88 Pac. 982, 150 Cal. 265. (Annotated) Penalties; damages. 332. A carrier is not denied the equal protection of the laws by permitting the re- covery against it of a penalty for refusal to pay a claim for loss of freight within 558 CONSTITUTIONAL LAW, II. a, 7, 8. a specified time, although the amount final- ly recovered is less than the claim pre- sented. Mobile & O. R. Co. v. Brandon, 42: 106, 53 So. 957, 98 Miss. 461. (Annotated) 333. A statute imposing upon any person, association, or corporation operating any telegraph line doing business in the state, a liability for damages for mental anguish resulting directly from the failure or negli- gence of their servants in handling mes- sages, is not objectionable aa being class legislation. Nitka v. Western U. Teleg. Co. 49: 337, 135 N. W. 492, 149 Wis. 106. (Annotated) 7. Matters of practice. (See also same heading in Digest L.R.A.. 1-70.) Due process of law as to, see infra, II. b, 7. See also infra, 548. S. Criminal matters. (See also same heading in Digest L.R.A. 1-10.) As to Sunday law, see supra, II. a, 5, b. Due process as to, see infra, II. b, 8. Police power as to, see infra, II. c, 5. 334. The provisions of Ohio Rev. Stat. 4364-42, 4364-43, 4364-44, 4364-45, making it a crime to have in possession, for use or sale, certain bottles or other vessels without the written consent of the owner, and pro- viding for search warrant to seize and re- store such property to the owner, are in conflict with Ohio Const, art. 1, 1 and 14, and are invalid. State v. Sclnnuck, 14: 1128, 83 N. E. 797, 77 Ohio St. 438. (Annotated) 335. A statute providing for the imprison- ment of the laborer alone for wilful and unjust violation of a farm-labor contract, and then only when he has received ad- vances under it, denies him the equal pro- tection of the laws. Ex parte Hollman, 21 : 242, 60 S. E. 19, 79 S. C. 9. (Annotated) 336. The Federal constitutional guaranty of equal protection of the law does not pre- vent the placing of an accused who has been indicted for murder, and convicted of volun- tary manslaughter, again on trial for murder on a new trial obtained by him on his own motion, under a state constitutional provision that no person shall be put in jeopardy of life or liberty more than once for the same offense, save ofi his own motion for a new trial after conviction, or in case of mistrial. Brantley v. State, 22: 959, 64 S. E. 676, 132 Ga. 573. Extent of punishment. 337. While the legislature, in prescrib- ing and fixing punishment for crime, has very great latitude in classifying the same, still, such classification should be natural, and not arbitrary, and should be made with reference to the heinousness or gravity of the act or acts made a crime, and not with reference to matters disconnected with Digest 1-52 X,.R.A.(N.S.) the crime. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. 338. A statute making it a crime for a state prisoner to escape from a state pris- on, and fixing the punishment at a term equal in length to that which he is serv- ing at the time of his escape, by exempt- ing from its operation Federal prisoners confined in such prison, who are, by Federal statute, rendered subject to the same disci- pline as state prisoners, is rendered special and discriminatory legislation. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. 339. A statute fixing the punishment of a person who escapes from state prison at a term equal in length to that which he is serving at the time of the escape denies equal protection of the law to persons under like circumstances, since convicts equally culpable in effecting escape may receive dif- ferent punishment, depending not on the gravity of the offense, but arbitrarily, on the time they have been originally sentenced to prison. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. 340. A statute providing different degrees of punishment for the same act when per- formed by officers of a particular class of corporations and by other persons violates a constitutional requirement of uniformity of operation. Re Sohncke, 2: 813, 82 I'ac. 956, 148 Cal. 262. Usury. 341. Making it a crime to take usurious interest only when it is above a certain amount is not unconstitutional class legisla- tion. Re Berger, 3: 530, 90 S. W. 759. 19;! Mo. 16. (Annotated) 342. A statute making it a misdemeanor to take usury on loans secured by house- hold or kitchen furniture is not invalid as tending to deprive persons lending on such security of the equal protection of the laws, since such articles furnish a proper basis for classification in dealing with usurious loans. State v. Davis, 39: 136, 73 S. E. 130, 157 N. C. 648. 343. WTiere a custom of taking extor- tionate interest on loans of less than $200 is general, while on loans over that sum it is rarely taken, the legislature may make sums below that amount a proper basis for classification, and declare the taking of such interest on such sums to be a misdemeanor, while not affixing that penalty in case of loans over that sum, without depriving those making the smaller loans of the equal protection or uniform operation of the laws, or of their constitutional right to liber- ty. State v. Sherman, 27: 898, 105 Pac. 299, 18 Wyo. 169. (Annotated) Monopoly. 344. A statute providing for the punish- ment only of persons who, in buying milk, cream, or butter fat for manufacture, or butter, eggs, or grain for sale or storage, discriminate between localities by paying a higher price in one than in another for the purpose of creating a monopoly or destroy- ing the business of a competitor, does not unconstitutionally grant privileges and im- munities to some classes of citizens which CONSTITUTIONAL LAW, II. b, 1. 559 are withheld from others. State v. Fair- mont Creamery Co. 42: 821, 133 N. W. 895, 153 Iowa, 702. (Annotated) 345. A statute forbidding discrimination in prices in different sections of the state, for the purpose of driving out of business a competitor at one point, is not invalid for making an unreasonable classification, be- cause it permits persons to sell at unrea- sonably low prices, where they make no attempt at discrimination, since there can be no unconstitutional classification as to acts which will constitute a crime. State v. Central Lumber Co. 42: 804, 123 N. W. 504. 24 S. D. 136. 346. Excluding combinations of wage earners from statutory prohibitions against combinations to lessen competition and regulate prices, does not render such legis- lation repugnant to the Federal Constitu- tion as denying the equal protection of the laws. International Harvester Co. v. Mis- souri ex rel. Attorney General, 52: 525, 34 Sup. Ct. Rep. 859, 234 U. S. 199, 58 L. ed. 1276. (Annotated) 347. Confining to manufacturers and ven- dors of articles the prohibitions of a statute against combinations to lessen competition and regulate prices, while permitting such combinations among purchasers, does not render the legislation repugnant to the Federal Constitution as denying the equal protection of the laws. International Harvester Co. v. Missouri ex rel. Attorney General. 52: 525, 34 Sup. Ct. Rep. 859, 234 U. S. 199, 58 L. ed. 1276. ft. Due process of law or law of the land; guaranty of right to life, lib- erty, and property. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Requiring attorney to defend indigent per- son without compensation, see AT- TORNEYS, 59. See also supra, 161; infra, 631. 348. The general declaration in Wis. Const, art. 1, 1, that governments are in- stituted to secure the inherent rights of life, liberty, and the pursuit of happiness, is a limitation upon legislative power, de- signed in part at least to prevent clearly unreasonable enactments restricting natural private rights. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 349. A constitutional amendment increas- ing the salary of certain judges, and char- ging the increase against the county treas- uries where they are located, will not be declared invalid, at the instance of a coun- ty affected by it, as conflicting with the due process and equal protection provisions of the Federal Constitution. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. Health. See also infra, 372; HEALTH, 20. 350. The constitutional right of a citizen Digest 1-52 L.R.A. (N.S.) to personal liberty is not in/ringed by an order of the state board of health forbidding him to make use, for drinking purposes, of a polluted water supply. State Bd. of Health v. St. Johnsbury, 23: 766, 73 Atl. 581, 82 Vt. 276. (Annotated) Loitering on street. 351. An attempt by a municipal corpora- tion to prohibit loitering on the streets so far as applied to persons conducting them- selves in a peaceable, orderly manner, dis- turbing no one. and committing no overt act. is an interference with the constitu- tional rights of personal liberty. St. Louis v. Gloner, 15:973, 109 S. W/30, 210 Mo. 502. (Annotated) Burial regulations. 352. Refusal to permit one to bury the dead body of his relative or friend, except under an unreasonable limitation, unconsti- tutionally interferes with his private rights. Wyeth v. Thomas, 23: 147, 86 N. E. 925, 200 Mass. 474. Unauthorized publication of portrait. Impairment of contract obligation by stat- ute as to, see infra, 784. 353. The publication of one's photograph without his consent does not interfere with his constitutional right to liberty. Henry v. Cherry, 24: 991, 73 Atl. 97, 30 R. I. 13. 354. A statute forbidding the use, with- out his consent, of the portrait of another person for purposes of advertising or trade, does not unconstitutionally restrict one's liberty. Rhodes v. Sperry & Hutchinson Co. 34: 1143, 85 N. E. 1097, 193 N. Y. 223. Custody of child. As to delinquent children, see infra, 357, 358. 355. The statutory attempt to confer upon a father the right to grant the cus- tody of his minor children, to the exclusion of the supervision of the mother over them, violates the constitutional right of mother and child to liberty. Tillman v. Tillman, 26: 781, 66 S. E. 1049, 84 S. C. 552. Compulsory treatment of inebriates. 356. A statute providing for the commit- ment of inebriates, without their consent, to a public hospital conducted by the state for the treatment of inebriates, does not deprive inem of their, liberty without due process of law. Leavitt v. Morris, 17: 984, 117 N. W. 393, 105 Minn. 170. (Annotated) Delinquent children. See also INFANTS, 3, 25. 357. For the state to take charge, care, and custody of a minor, under the provisions of Idaho Sess. Laws 1905, p. 106, entitled "An Act To Provide for the Care of Delin- quent Children," for the purpose of protect- ing, educating, and training him, does not deprive him of his liberty without due proc- ess of law, within the meaning of Idaho Const, art. 1, 13. Re Sharp, 18: 886, 96 Pac. 563, 15 Idaho, 120. (Annotated) 358. Subjecting a delinquent child to proper restraint and guardianship does not unconstitutionally deprive him of his lib- erty. Lindsay v. Lindsay, 45: 908, 100 N. E. 892, 257 111. 328. (Annotated) 560 CONSTITUTIONAL LAW, II. b, 2. 2. As to property rights generally. a. In general. As to confiscation of property, see CON- FISCATION. Original jurisdiction of appellate court in suit to prevent confiscation of private property, see COURTS, 231. Effect of provision against forfeiture on statute denying husband who murders wife right to inherit her estate, see DESCENT AND DISTRIBUTION, 9b. Necessity of compensation on taking of property, see EMINENT DOMAIN, III. c. Prohibiting sale of game lawfully killed, see GAME LAWS, 5. Taking of property without due process by state institution, see PLEADING, 154; STATE INSTITUTIONS, 7, 8. See also supra, 47, 204. 359. No public policy of the state can be allowed to override the positive guaranties of the Constitution, or devest persons of their title and property except in the way the law provides. Hill v. Woodward, 39: 538, 57 So. 294, 100 Miss. 879. 360. The provisions of the Ohio Consti- tution forbid the laying of an imposition upon the private property of one for the sole benefit of another. Alma Coal Co. v. Cozad, 20: 1092, 87 N. E. 172, 79 Ohio St. 348. 361. The reserved right to repeal corpo- rate charters does not authorize the con- fiscation or destruction of property, or its taking without just compensation. State ex rel. Wausau Street R. Co. v. Bancroft, 38: 526, 134 N. W. 330, 148 Wis. 124. 362. A state constitutional provision that no person shall be deprived of property with- out due process of law, and the provisions of the 14th Amendment of the United States Constitution as to property rights, extend to the property held and used by a railroad corporation, since the beneficial use of such property is in natural persons, and the law forbids the doing by indirection that which is forbidden to be done directly. Seaboard A. L. R. Co. v. Simon, 20: 126, 47 So. 1001, 56 Fte, 545. 363. A municipality which prohibits a lot owner from exercising his right to go to and from his property over and by way of the street on which it abuts, or to employ the means necessary to reach the street, de- prives him of his property without due process of law. Sandpoint v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. 364. Securing, by writ of sequestration the books and property of a corporation pending an appeal by its officers from an order adjudging them in contempt for re- fusing to turn them over to a receiver, does not deprive the officers of any of their con- stitutional property rights. Manning v. Mercantile Securities Co. 30: 725, 90 N. E. 238, 242 111. 584. 365. The attempt to make an owner who fails to take from one contracting to con- Digest 1-52 L.R.A.(N.S.) struct for him a ditch or reservoir a bond conditioned to pay all claims for materials, farm produce, provisions, or goods of any kind furnished the contractor or subcon- tractor, personally liable for such claims, is invalid, as taking property without due process of law, and denying him the equal protection of the laws, so far as it attempts to include claims for materials which do not go to enhance the value of his prop- erty. George Bolln Co. v. North Platte Valley Irrig. Co. 39: 868, 121 Pac. 22, 19 Wyo. 542. (Annotated) 366. Charter authority to a municipal corporation to acquire and operate ice plants in connection with its waterworks, and to issue bonds for that purpose, is not violative of the constitutional provision declaring that all citizens of the United States resident in the state shali be citi- zens thereof, and shall be protected in the full enjoyment of the rights, privileges, and immunities due to such citizenship, in that it deprived citizens of the right of private property existing under the repub- lican form of government as established by the United States Constitution. Holton v. Camilla, 31: n6, 68 S. E. 472, 134 Ga. 560. 367. By making acceptance of free trans- portation unlawful, an anti-pass law is not rendered unconstitutional as depriving of his property without due process of law, a physician who has contracted with a rail- road company to render services to it, at its request, in consideration of $25 per month and an annual pass over its lines, which services do not require a major por- tion of his time. State v. Martyn, 23: 217, 117 N. W. 719, 82 Neb. 225. What is property. Right to office as property, see infra, 531a, 589. Right to take water for irrigation as prop- erty protected against injury by pol- lution, see Waters, 222, 223. 368. The constitutional right of every man lawfully to acquire property includes the right of making contracts for personal serv- ices as a means of acquiring property; and each person is entitled to make such con- tracts in reference to such lawful business or occupation as he may choose, free from hindrance or obstruction by his fellow men, whether acting individually or as an asso- ciation, except when exercised for tho pro- tection of equal or superior rights on their part. Brennan v. United Hatters of N. A. (N. J. Err. & App.) 9: 254, 65 Atl. 165, 73 N. J. L. 729. 370. A "slot machine," incapable of use for any purpose except in violation of the penal provisions of the anti-gambling law, is not property within the meaning and pro- tection of 13, art. 1, of the state Consti- tution, which provides that "no person shall . . . be deprived of life, liberty, or prop- erty without due process of law." Mullen v. Mosely, 12: 394, 90 Pac. 986, 13 Idaho, 457. CONSTITUTIONAL LAffi, I. b, 2. 561 Corporation as person. 371. A constitutional provision forbid- ding the deprivation or taking of property without due process of law and without just compensation extends to property held by corporations, as natural persons are the beneficial owners of the property though it be held and used by a corporate entity State v. Atlantic C. L. R. Co. 32: 639, 47 So. 969, 56 Fla. 617. Health regulations. 372. Property rights are unconstitutional- ly interfered with by a statute which authorizes a board of health when, in Hs judgment, the public health requires it. to require the surface of any private passage- way to be paved or otherwise provided with a roadbed at the expense of its owners, in a manner and with materials satisfactory to the board. Durgin v. Minot. 24: 241, 89 N. E. 144, 203 Mass. 26. (Annotated) Crematories. 373. An attempt by a county to forbid the maintenance of more than one crematory in any township is invalid as an unconsti- tutional interference with property rights, so far as it applies to the location of one in a cemetery which has been established in a locality devoted to cemeteries, with few dwellings in the immediate vicinity, and no buildings devoted to business except to that of burying the dead. Abbey Land & Improv. Co. v. San Mateo, 52: 408, 139 Pac. 139 Pac. 1008, 167 Cal. 434. (Annotated) School districts. 374. A school district is not deprived of its property without due process of law by a statute transferring its schoolhouse and lot to another district, together with the territory in which they are located, since it holds such property merely as trustee for the state. Pass School Dist. v. Hollywood City School Dist. 26: 485, 105 Pac. 122, 156 Cal. 416. Revocation of teacher's license. 375. Authorizing the county superintend- ent to revoke a school teacher's license does not deprive the latter of his constitutional right of access to the courts, or to just compensation for the taking of property; nor does it unconstitutionally confer judi- cial power upon a ministerial officer. Stone v. Fritts, 15: 1147, 82 N. E. 792. 169 Ind. 361. Weeds in highway. 376. Requiring a landowner to cut, or pay for cutting, the noxious weeds in the abutting highway to the center thereof, does not deprive him of his property without due process of law. Northern P. R. Co. v. Adams County, 51:274, 138 Pac. 307, 78 Wash. 53. (Annotated) Building regulations. Equal protection and privileges, see supra, 178, 179. Police power as to, see infra, 660-663. See also infra, 518. 379. A municipal ordinance requiring a permit from the city as a prerequisite to the right to build a house does not deprive a landowner of his property without due proc- ess of law, in violation of the 14th amend- Digest 1-52 L.R.A.(N.S.) ' ment. Fellows v. Charleston, 13: 737, 59 S. E. 623, 62 W. Va. 665. (Annotated) 380. There is no unconstitutional taking of property by forbidding the repair of frame buildings within the fire limits of a municipal corporation, so as to make and keep them habitable. State v. Lawing, 51 : 62, 80 S. E. 69, 164 N. C. 492. (Annotated) S81. An attempt by a municipal corpora- tion to forbid the replacing of a few wooden shingles on a roof within the fire limits with others of the same material, which cannot materially affect the fire risk, is an uncon- stitutional interference with property rights. Seneca v. Cochran, 26: 124, 66 S. E. 288, 84 S. C. 279. Spendthrift trusts. Impairment of obligation of contract by statute as to, see infra, 782. 382. A statute subjecting a percentage of the income from an existing spendthrift trust to execution does not unconstitution- ally deprive the beneficiary of his property without due process of law, as destroying a vested right. Brearley School v. Ward, 40: 1215, 94 N. E. 1001, 201 N. Y. 358. Destruction of diseased plants or trees. 383. A statute providing for the destruc- tion or treatment of trees and plants infect- ed with insect or plant diseases, in accord- ance with the rules and regulations of an entomological commission, the expense there- of to be borne by the owner, and no com- pensation to be paid him for the trees or plants destroyed, is not unconstitutional on the ground that it provides for taking pri- vate property without due process of law, as it rests wholly with the legislature to determine whether, in the exercise of its power of police regulation, the -individual whose property is destroyed shall receive compensation therefor. Balch v. Glenn, 43: 1080, 119 Pac. 67, 85 Kan. 735. ( Annotated ) Competition by municipality with private business enterprises. 384. The letting by a municipal corpora- tion of an unused building belonging to it for public entertainments, to avoid loss of revenue therefrom, and lighten the burden of the taxpayers, is not an unconstitutional interference with the liberty and property of owners of property devoted to that use, with whom the municipality comes into competition. Gottlieb-Knabe & Co. v. Mack- lin> 31 : 580, 71 Atl. 949, 109 Md. 429. (Annotated) 385. No unconstitutional interference with rights of liberty or property of a fuel mer- chant is caused by the establishment by a municipality of public yards at which fuel is sold to its inhabitants for cost. Laughlin v. Portland, 51: 1143, 90 Atl. 318, 111 Me. 486. (Annotated) Right to take property by will or in- heritance. 386. The right to take property by will or by inheritance is a natural right, which can- not wholly be taken away, or substantially 36 562 CONSTITUTIONAL LAW, xl. b, 2. impaired, by the legislature. Nunnemacher v. State, 9: 121, 108 N. W. 627, 129 VVis. li)0. ( Annotated ) Unauthorized publication of portrait. Impairment of contract obligation by stat- ute as to, see infra, 784. See also supra, 353, 354. 387. A statute which in general terms for- bids the use of the portrait of another person for advertising or trade purposes without his written consent will be given a prospective operation, and therefore does not deprive the owner of such portrait of his property without due process of law. Rhodes v. Sperry & Hutchinson Co. 34: 1143. 85 N. E. 1097, 193 N. Y. 223. Curing defective acknowledgments. 388. A statute curing defectively ac- knowledged deeds which had been on record for ten years does not deprive of due pro- cess of law one claiming under a deed from the grantor's heirs taken fifty years after the execution of the original deed, with full knowledge of the facts. Downs v. Blount, 31: 1076, 170 Fed. 15, 95 C. C. A. 289. 389. No unconstitutional transfer of prop- erty from one person to another is effected by a statute validating an informal ac- knowledgment of a deed which is supported by a sufficient consideration, so as to make it binding on the grantor. Eckles v. Wood, 34: 832, 136 S. W. 907, 143 Ky. 451. Liability for water and light fur- nished tenant. 390. Provisions in a city charter making an owner of premises liable for water and light furnished by the municipality to his tenant are not unconstitutional upon the ground that they provide for the taking of property without due process of law in that they- require one person to pay the debts of another. East Grand Forks v. Luck, 6: 198, 107 N. W. 393, 97 Minn. 373. (Annotated) Sale of railroad ticket. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 218, 219. 391. The purchaser of a railroad ticket is not deprived of his property by forbidding him to sell it through ticket brokers. State v. Thompson, 4: 480, 84 Pac. 476, 47 Or. 492. (Annotated) Automobiles. 392. The owner of an automobile cannot, under the due process and equal protection clauses of the Constitutions, be made liable for injury to strangers, through its use by persons who have taken it without his knowledge or permission, although their acts do not constitute larceny. Daugherty v. Thomas, 45: 699, 140 N. W. 615, 174 Mich. 371. (Annotated) Transportation of water outside of state. Equal protection and privileges as to, see supra, 193. 393. The provisions of N. J. act May 11, 1905 (P. L. 1905, p. 461), which prohibit the acquisition of ownership in flowing waters for the purpose of transporting them out of the state, do not contravene that portion of Digest 1-52 L.R.A.(N.S.) the Bill of Rights contained in the state Constitution, which declares that all men have certain natural and inalienable rights, among which are those of acquiring, pos- sessing, iind protecting property. McCarter ex rel. Kuimnel v. Hudson County Water Co. 14: 197, 65 Atl. 489, 70 N. J. Eq. 695. 394. A state statute prohibiting the trans- portation without the state, through pipes or conduits, of the waters of lakes, ponds, or streams, does not contravene the 14th Amendment of the Constitution of the United States, which declares that no state shall deprive any person of property with- out due process of law. McCarter ex rel. Kummel v. Hudson County Water Co. 14: 197, 65 Atl. 489, 70 N. J. Eq. 695. Riparian rights. See also STATUTES, 62. 395. A state which has for a long period of time encouraged the improvement of its water power by granting riparian owners authority to build dams in aid of naviga- tion, and to enjoy the benefit of the power thereby developed, until large industries have grown up about the dams and large investments been made in them, cannot, in view of the due process and compensation clauses of the Constitution, attempt to as- sume ownership of the dams by declaring them to be nuisances, unless compensation is made to the state for the right to con- tinue their use and consent given to their transfer to the state or to strangers for a compensation less than their value. State ex rel. Wausau Street R. Co. v. Bancroft, 36: 526, 134 N. W. 330, 148 Wis. 124. Administration of living person's estate. See also infra, 593. 396. The legislature cannot confer upon the court jurisdiction to make a conclusive determination without inquiry as to the fact that a person who has been absent fcr more than seven years is dead, and proceed to distribute his property. Savings Bank of Baltimore v. Weeks, 6: 690, 64 Atl. 295, 103 Md. 601. 396a. The legislature may provide for the administration of the estates of persons who absent themselves from the state and con- ceal their whereabouts for a certain specified period of years. New York L. Ins. Co. v. Chittenden, u: 233, 112 N. W. 96, 134 Iowa, 613. 397. A statute for the distribution, after reasonable notice, of the property of one who has absented himself for fourteen years, does not violate his constitutional property rights. Nelson v. Blinn, 15: 651, 83 N. E. 889, 197 Mass. 279. Manufacture of alcohol. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 192. 398. Although the sale of alcohol for cer- tain specified purposes and under certain restrictions is not unlawful, the Georgia prohibition law, act 1907, p. 81, prohibiting entirely the manufacture of alcohol within the state, is not a violation of a constitu- tional provision that no person shall be deprived of life, liberty, or pfoperty except CONSTITUTIONAL LAW, II. b, 3. 563 by due process of law. Cureton v. State, 49: 182, 70 S. E. 332, 135 Ga, 660. (Annotated) Stone quarries. 399. An ordinance which absolutely pro- hibits the opening or working of stone quar- ries within certain prescribed limits, wheth- er it can be done without injury to other property or the public or not, is void as de- priving the owner of his property without due process of law. Re Kelso, 2: 796, 82 Pac. 241, 147 Cal. 609. . (Annotated) b. Eminent domain. (Kee also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, 177. As to notice and hearing in, see infra, 594- 596. As to measure of damages in eminent do- main, see DAMAGES, III. 1. 400. The mere fact that a, railroad was constructed under legislative authority at a time when the Constitution made it lia- ble to pay only for property taken in its exercise of the right of eminent domain does not render a requirement that its owner pay for injuries to property through the opera- tion of the road in such manner as to consti- tute a private nuisance a taking of its property without due process of law. Ala- bama & V. R. Co. v. King, 22: 603, 47 So. 857, 93 Miss. 379. -3. Taxation and public improvements. {See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 4. Municipal taxation of farm lands, see MU- NICIPAL CORPOBATIOXS, 97. As to taxes, generally, see TAXES. 401. Charter authority to a municipal corporation to acquire and operate ice plants in connection with its waterworks, and to issue bonds for that purpose, is not violative of the constitutional provision that no person shall be deprived of his property except by due process of law, in that his property is taken under the guise ol taxation, and applied to the carrying on of a common private manufacturing and commercial enterprise. Holton v. Camilla, 31: 116, 68 S. E. 472, 134 Ga. 560. 402. No deprivation of property without due process of law is effected by a statute requiring an employer to list employees liable to poll tax, and to pay the tax and deduct it from wages, where the statute provides for collection of the tax by suit in which the employee is entitled to a hear- ing, and in which the employer can, by dis- claiming and paying the amount in dispute into court, avoid liability for costs. Thurs- ton County v. Tenino Stone Quarries, 9: 306, 87 Pac. 634, 44 Wash. 351. (Annotated) Digest 1-52 L,.R.A.(N.S.) Assessment of railroad properly. 403. A statute authorizing the ascertain- ment of the value of the intangible assets of a railroad by deducting the assessed val- uation of its tangible property from the ag- gregate market value of its stock and bonds, unless the taxing board concludes that in the particular case this will not result in giving the true value, is not arbitrary, so as to deprive the corporation of its property without due process of law, or violate the requirements of uniformity of taxation. Missouri, K. & T. R. Co. v. Shannon, 10: 681, 100 S. W. 138, 100 Tex. 379. Tax on transfer of corporate stock. 404. Placing a tax on the transfer of cor- porate stock only is not such an arbitrary classification as to deprive the owner of his property without due process of law. Peo- ple ex rel. Hatch v. Reardon, 8: 314, 77 N. E. 970 ; 184 N. Y. 431. (Annotated) Succession tax. Equal protection and privileges as to, see supra, 227-231. As impairment of obligation of contract, see infra, 774. 405. The constitutional right of acquiring and protecting property does not include the mere privilege, right, or expectancy of inheritance, so as to prevent the legislature from placing a tax upon such privilege. Rodman v. Com. ex rel. Selligman, 33: 502, 113 S. W. 61, 130 Ky. 88. (Annotated) 406. Vesting, the interest of the state in a succession tax at the time of the decedent's death does not constitute a deprivation of property without due process of law, where the statute contains provisions for the ap- praisement of the tax, which must be ful- filled before the tax is collected. Trippet v. State, 8: 1210, 86 Pac. 1084, 149 Cal. 521. 407. A statute relating to estates ad- ministered upon in county courts, providing for an initial fee of $5, and a further fee, upon the determination of the value of the estate, of $5 for every $1,000 or fraction thereof in excess of the first thousand, is, in so far as the additional charge or fee above the initial fee is concerned, a viola- tion of a constitutional provision that all courts shall be open, and every man, for an injury done to him in his land, goods, per- son, or reputation, shall have remedy by due process of law, and right and justice administered without sale, denial, or delay. Malin v. La Moure County, 50: 997, 145 N. W. 582, 27 N. D. 140. (Annotated) 408. Property is not taken without due process of law, contrary to U. S. Const., 14th Amend., by the imposition of the tax authorized by N. Y. Laws 1896, chap. 908, when property is transferred by deed in- tended to take effect upon the death of the grantor. Keeney v. Comptroller, 38: 1139, 32 Sup. Ct. Rep. 105, 222 U. S. 525, 56 L. ed. 299. (Annotated) 409. The interest of those who will take under a will or deed upon failure of a donee of a power of appointment therein to exer- cise it is not so far vested that the im- position of a succession tax upon the pass- ing to them of the estate, in case of such 564 CONSTITUTIONAL LAW, II. b, 4. failure, can be considered as a taking of property without due process of law. Minot v. Stevens. 33: 236, 93 N. E. 973, 207 Mass. 588. (Annotated) 410. A limitation upon the constitutional power of contract, by imposing a tax upon property passing after the death of the grantor, in accordance with a contract made prior thereto, is not prevented by a clause in the provision of the Constitution con- ferring power upon the legislature to enact laws, declaring that they must not be re- pugnant or contrary to the Constitution. Carter v. Craig, 52: 211, 90 Atl. 598, 77 N. H. 200. Public improvements. Police power as to, see infra, 642, 642a. Notice and hearing as to, see infra, 605, 606. 411. The assessment of an area tax upon property does not deprive the owner of his property without due process of law, if he nas a riglit to be heard, either before the assessing body or in the courts. Bowes v. Aberdeen, 30: 709, 109 Pac. 309, 58 Wash. 535. 412. A municipal corporation cannot be authorized by the legislature to subdivide a tract of private property within its limits for the purpose of levying a tax for water mains with house connections, under a con- stitutional provision that no person shall be deprived of his property without due process of law. Chicago v. Wells, 23: 405, 86 N. E. 197, 236 111. 129. (Annotated) 413. The selection of a person owning land within the district to assess the bene- fits accruing from the improvement of a drainage ditch deprives other property own- ers of due process of law. Comrs. of Union Drainage Dist. No. 1 v. Smith, 16: 292, 84 N. E. 376, 233 111. 417. (Annotated) 414. An assessment by a city upon lot owners for cost of paving a street does not deprive them of their property without due process of law, althoiigh it is by the num- ber of front feet of lots abutting on the street, and not according to benefits, and no notice of the assessment is given to the lot owners. Heavner v. Elkins, 52: 1035, 71 S. E. 184, 69 W. Va. 255. 415. Charter power conveyed to a munici- pality by the legislature to regulate, pro- vide for, and compel by ordinance the con- struction and repair of sidewalks and pave- ments, and, in case the owner of an abutting lot fails to comply with the provisions of such ordinance, to construct the improve- ment and make the cost thereof a lien upon the lot, is not violative of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken without just compensation, on the theory that it provides for fixed charges or taxes against property without any ref- erence to benefits, and that no provision is made for giving notice to the property own- er to enable him to have a hearing as to the assessment or benefit thereof prior to the lien being placed upon his property, where the charter provision provides for the Digest 1-52 L,.R.A.(N.S.) enforcement of the lien by an action at la\v or suit in equity, in which the owner neces- sarily has an opportunity of being heard and of making any defense which he may have. Anderson v. Ocala, 52: 287, 04 So. 775, Fla. . 4:. As to regulation of business; inspec- tion; license; restrictions on right of contract. a.. In general. (See also same heading in Digest L.R.A. 1-70.) Equal protection and privileges as to, see supra, II. a, 5. Regulation of fishing, see FISHERIES. Requiring fruits and candies exposed for sale to be protected from flies and dust, see MUNICIPAL CORPORATIONS, 193. See also supra, 262; infra, 688, 706; TAXES, 41. 416. No constitutional right of liberty or property is interfered with by requiring an employer advertising for help during the existence of a strike to mention its exist- ence. Com. v. Libbey, 49: 879, 103 N. E. 923, 216 Mass. 356. (Annotated) 417. No constitutional rights of liberty or property are interfered with by an ordi- nance prohibiting any exhibition of anat- omy in connection with a place where medi- cal treatment is given or medu-inc sold. Chicago v. Shaynin, 45: 23, 101 N. E. 224, 258 111. 69. Prohibiting; manufacturing establish- ment near park. 419. Forbidding the operation near a pub- lic park of a manufacturing establishment using planes and saws operated by power deprives the owner of his property without compensation and without due process of law. St. Louis v. Dreisoerner, 41 : 177, 147 S. W. 998, 243 Mo. 217. Trade inducements. As to trading stamps, see infra. 459. Police power as to, see infra, 693, 694. 420. An act providing that those offering j special inducements to the public, or to pro- spective purchasers or customers in trade, shall pay a certain amount of such induce- ment or offer in cash if such prospective purchaser or customer so elect in lieu of the sum promised in trade, and providing a penalty for failure to do so, is invalid as an unconstitutional deprivation of liberty and property. Kanne v. Segerstrom Piano Mfg. Co. 41: 1041, 137 N. W. 170, IIS Minn. 483. (Annotated) Water companies. 421. It is not confiscation of the prop- erty of a water company without due proc- ess of law to require it to furnish con- nections and supply with water a resident of the city who tenders a month's rent in advance, where it is shown that the rents for a year are over twice the admitted cost for making the connection, and there is no claim that they are too low, notwithstand- CONSTITUTIONAL LAW, II. b, 4. 505 ing there is no assurance that such resi- dent will continue the use of the water for any stated time. Hatch v. Consumers' Co. 40: 263, 104 Pac. 670, 17 Idaho, 204. Dance halls. Equal protection and privileges as to, see supra, 244, 245. Police power as to, see infra, 695, 696. 422. Requiring a license to conduct a public dance hall does not interfere with any constitutional right of liberty or prop- erty. Mehlos v. Milwaukee, 51: 1009, 146 N. W. 882, 156 Wis. 591. (Annotated) Treating in saloons. Police power as to, see infra, 646. 423. The keeper of a saloon is not de- prived of his property Avitliout due process of law or of the equal protection of the laws, because he is made punishable for permitting treating in his place of busi- ness, while the persons purchasing the li- qxior are not punished for doing the treat- ing. Tacoma v. Keisel, 40: 757, 124 Pac. 137, 68 Wash. 685. Pilliard and pool rooms. Equal protection a.nd privileges as to, sec supra, 243. Police power as to, see infra, 692. 424. The proprietor of an existing billiard and pool room is not deprived of his prop- erty without due process of law, contrary to U. S. Const. 14th Amend., by the passage of a municipal ordinance prohibiting the keeping of billiard or pool tables for hire or public use. Murphy v. People, 41: 153, 32 Sup. Ct. Rep. 697," 225 U. S. 623, 56 L. ed. 1229. Bri oTtyard. 425. An unconstitutional taking or de- stroying of private property without due process of law is effected by a municipal or- dinance making a yard within the city limits where bricks are burned, within 1,200 feet of a private residence or public school- house or park without permission, a nui- sance. Denver v. Rogers, 25: 247, 104 Pac. 1042, 46 Colo. 479. Undertakers. Police power as to, see infra. 714-716. 426. Refusal to permit one to engage in the business of an undertaker, without good reason, violates his constitutional rights to life, liberty, and the pursuit of happiness. Wyeth v. Thomas, 23: 147, 86 N. E. 925, 200 Mass. 474. 427. The attempt to compel an under- taker to secure a license as an embalmer before engaging in the practice of his pro- fession unconstitutionally interferes with his liberty. People v. Ringe, 27: 528, 90 N. E. 451, 197 N. Y. 143. 428. Requiring three years of continuous service as assistant to an undertaker be- fore a license can be secured to engage in the undertaking business interferes with the constitutional liberty of one wishing to engage in such business. People v. Ringe, 27: 528, 90 N. E. 451, 197 N. Y. 143. Moving picture machine operators. Equal protection and privileges as to, see supra, 240, 241, 295. 429. Requiring one to secure a license Digest 1-52 I*R.A.(N.S.) after examination before operating -a mov- ing picture machine in a large city docs not deprive him of his liberty or property with- out due process of law. State ex rel. Ebert v. Loden, 40: 193, 83 Atl. 564, 117 Md. 373. (Annotated) Electricians. Equal protection and privileges as to, see supra, 242. 430. A statute permitting unlicensed elec- tricians to be employed by the lighting and electric railway companies and the depart- ment of police and public buildings of New Orleans, for the installation and mainte- nance of their "equipment pole line serv- ices" and "meters," which work is important, and requiring electricians employed by others for other than work of minor im- portance to be licensed, contravenes the constitutional requirement that all persons be protected in their right of property, including the right to earn a livelihood. State v. Gantz, 24: 1072, 50 So. 524, 124 La. 535. Barbers. Equal protection and privileges as to, see supra, 239. 431. Requiring a two-year period of in- struction before practising the barber's trade does not unconstitutionally deprive one of his liberty or property, or the gains of his own industry, without due process of law, confer special privileges or immuni- ties, abridge the privileges of citizenship, or deny him the equal protection of the laws. Moler v. Whisman, 40: 629, 147 S. W. 985, 243 Mo. 571. (Annotated) Practice of medicine. Equal protection and privileges as to, see supra, 279. Police power as to, see infra, 707-711. Revocation of physician's license, see infra, 555. 432. The legislature cannot, under a Con- stitution protecting the rights of liberty and property, provide for the revocation of the license of a physician for advertis- ing to treat diseases of the sexual organs if the advertisements are not couched in terms which injuriously affect the public morals. Chenoweth v. State Bd. of Medical Examiners, 51:958, 141 Pac. 132, Colo. . (Annotated) Attorneys. As to lien of, see infra, 457. 433. The constitutional rights of an at- torney at law to liberty and the pursuit of happiness are not interfered with by a stat- ute forbidding him to solicit business either personally or through a solicitor. State ex rel. Mackintosh v. Rossman, 21: 821, 101 Pac. 357, 53 Wash. 1. Plumbers. Equal protection and privileges as to, see supra, 284. 434. Making the procurement of a license prerequisite to engaging in the plumbing business is within the police power, and does not violate the constitutional provisions against the deprivation of liberty or proper- ty without due process of law. Douglas v. 506 CONSTITUTIONAL LAW, II. b, 4. Pooplo-ex rel. Ruddy, 8: 1116, 80 N. E. 341, 225 111. 536. (Annotated) Banking. Equal protection and privileges as to, see supra, 280-283. Police power as to, see infra, 700-702. Who may question constitutionality of stat- ute, see ACTION OK SUIT, 51. 435. The state cannot limit the transac- tion of ordinary banking business to cor- porations, where the Constitution protects liberty and the acquisition and protection of property, and provides that no person shall be deprived of them without due proc- ess of law. Marymont v. Nevada State Bkg. Board, 32: 477, 111 Pac. 295, 33 Nev. 333. 436. The property of a savings bank is not taken without due process of law by Mass. Laws 1907, chap. 340, providing that deposits which have remained inactive and unclaimed for thirty years, where the claim- ant is unknown or the depositor cannot be found, shall be paid to the treasurer and receiver general, to be held by him as trus- tee for the true owner or his legal repre- sentatives. Provident Inst. for Sav. v. Ma- lone, 34: 1129, 31 Sup. Ct. Rep. 661, 221 U. S. 660, 55 L. ed. 899. Railroads; carriers. Equal protection and privileges as to, see supra, II. a, 3, b. Due process of law as to right of action or defense against, see infra, II. b, 7, b, (1) (b). Police regulation, see infra, 683-686. Regulation of rates, see infra, 493-498. As to penalty, see infra, 563-567. See also infra, 460. 437. An arbitrary and unreasonable regu- lation is not within the authority of a rail- road commission, and if the action of a state through its railroad commission is not a legally authorized regulation of a public service, or if the authorized regula- tion is arbitrary and unreasonable, and in effect deprives the beneficial owner of prop- erty used in rendering the public service, of the property rights, in a manner or to an extent contemplated by law as a limita- tion upon the rights of those devoting their property to a public use, such action, though under the form of regulation, is in law a deprivation of property without due process of law. State v. Atlantic C. L. R. Co. 32: 639, 47 So. 969, 56 Fla. 617. 438. A statute subjecting to a penalty a railroad company which operates any loco- motive on a main line after dark without an electric headlight of a specified character is not unconstitutional as depriving it of its property without due process of law because it makes no exception in case of emergencies such as are likely to occur. Atlantic Coast Line R. Co. v. State, 32: 20, 69 S. E. 725, 135 Ga. 545. 439. A statute requiring railroad com- panies to place electric headlights of a cer- tain size and power on their locomotives does not deprive them of their property without due process of law because it will require a destruction of all in present use not of that character, and deprives the corn- Digest 1-52 L.R.A.(N.S-) panies of the right to make contracts and manage their own business. Atlantic Coast Line R. Co. v. State, 32: 20, 69 S. E. 725, 135 Ga. 545. 440. That a full crew law, being within the police power of the state, requires ad- ditional expenditures on the part of the railroad company, does not render it in- valid as taking property without due proc- ess of law. Pennsylvania R. Co. v. Ewing, 49: 977, 88 Atl. 775, 241 Pa. 581. (Annotated) 441. The enforcement against a railroad company of rules and regulations made by the railroad commissioners to prevent unjust discriminations or other abuses, in the ab- sence of a showing of unreasonableness, will not constitute a taking of property with- out due process of law, or deprive the rail- road company of the equal protection of the laws. State ex rel. Ellis v. Atlantic C. L. R. Co. 12: 506, 41 So. 705, 52 Fla. 646. 442. The fact that preferred stockholders may be deprived of a considerable part of the noncumulative dividends from net earn- ings, to which they would otherwise be entitled, by the enforcement of the regula- tion adopted by the Interstate Commerce Commission in the exercise of its author- ity under the act of February 4, 1887. 20, as amended by the act of June 29, 1906, to prescribe a uniform system of accounting and bookkeeping for the carriers subject to that act, which regulations reject the theory that the cost of property abandoned as an incident to permanent improvement should remain in the property account rather than be charged to operating expenses, does not justify the conclusion that such stockholders | are thereby deprived of their property j without due process of law. Kansas City S. R. Co. v. United States, 52: i, 34 Sup. Ct. Rep. 125, 231 U. S. 423, 58 L. ed. 296. 443. Requiring a railroad company, un- der a statute providing that railroad corpo- rations shall make "reasonable provision" for the transportation of coal mined along their lines, to construct a switch and side track on its right of way, as a reasonable provision for the transportation of coal of- fered for shipment by the coal operator, does not amount to a command that the carrier enter into a contract for reasonable provisions for the transportation of such coal, or that it build and maintain a per- manent structure on its right of way, nor to the taking of the private property of the carrier for private use without due process of law, but is a mere command for the temporary use by such carrier of a part of its right of way for the purpose of performing a duty imposed upon it by law. State ex rel. Mt. Hope Coal Co. v. White Oak R. Co. 28: 1013, 64 S. E. 630, 65 W. Va. 15. 444. The attempt by the state to compel i a railroad company to construct and oper- ' ate a spur track to a private mill is void, as a taking of property for private use without due process of law. Northern P. R. Co. v. Railroad Commission, 28: 1021, 108 Pac. 938, 58 Wash. 360. '.a.W; ; flUI S:c--I **., CONSTITUTIONAL LAW, II. b, 4. 5G7 445. A statute prescribing a prima facie reasonable minimum rate of speed at which live stock may be transported between intra- state points, and providing a penalty for violation thereof, does not deprive the car- rier of property without due process of law, although the expense of transporting live stock may be materially increased thereby, as the carrier has ample recourse in an in- crease of rates. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. 446. An attempt by the legislature arbi- trarily to fix the weight of the standards of lumber cars, and to compel the carrier to deduct the weight so fixed from the net weight of the lumber placed on the car and charge freight on the balance only, is void as an unconstitutional interference with the carrier's property rights. State ex rel. Washington Mill Co. v. Great Northern R. Co. 6: 908, 86 Pac. 1056. 43 Wash. 658. 447. The property of the initial carrier is not taken in violation of U. S. Const., 5th Amend., to pay the debt of an inde- pendent connecting carrier whose negli- gence may have been the sole cause of a loss, by the Carmack amendment of June 29, 1906, to the act of February 4, 1887, 20, under which an interstate carrier vol- untarily receiving property for transporta- tion from a point in one state to a point in another state is made liable to the holder of the bill of lading for a loss anywhere en route, in spite of any agreement or stipulation to the contrary with a right of recovery over against the carrier actually causing the loss, since the liability of the receiving carrier which results in such a case is that of a principal, f->r the negli- gence of his own agents. Atlantic C. L. R. Co. v. Riverside Mills. 31: 7, 31 Sup. Ct. Rep. 164, 219 U. S. 186, 55 L. ed. 167. 448. A law absolutely giving to the oc- cupant of a lower berth in a sleeping car control, at his option, of the upper berth in case of its not being occupied, is an un- constitutional appropriation of the prop- erty of one for the benefit of another. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. Milk dealers. Equal protection and privileges of, see su- pra, 258, 259. Seizure and destruction of milk, see infra, 612, 613. Police power as to, see infra, 731-738. Revocation without notice, of permit to sell milk, see LICENSE, 34. 449. Requiring milk dealers to indicate indelibly their capacity upon glass jars which contain the milk sold does not un- constitutionally deprive them of their prop- erty in the old jars. Chicago v. Bowman Dairy Co. 17: 684, 84 N. E. 913, 234 111. 294. Sunday laws. Equal protection and privileges as to, see supra, II. a, 5, b. Police power as to, see infra, 687. As to Sunday laws generally, see SUNDAY. See also infra, 628. 450. The provision of Idaho act March Digest 1-52 L.R.A.(N.S.) 12, 1907, setting apart Sunday as a day of public rest, and forbidding the opening of certain places of business and amusement on that day, does not take property without due process of law in violation of the 14th Amendment to the Constitution of the Unit- ed States, or in contravention of Idaho Const, art. 1, 1. State v. Dolan, 14: 1259, 92 Pac. 995, 13 Idaho, 693. 451. A statute providing for the punish- ment of any person who shall keep open any playhouse or theater on Sunday does not apply to the opening of such place for reli- gious and other quiet, legitimate, and or- derly exercise, and, therefore, unconstitu- tionally interfere with property rights of the owner as forbidding legitimate use of his property on that dav. State v. Herald, 20: 433, 92 Pac. 376, 47 Wash. 538. Telegraph business. Equal protection and privileges as to, see supra, 290. 452. Privileges and immunities of citi- zens of the United States are not abridged, nor is due process of law denied, contrary to U. S. Const., 14th Amend., by a state statute under which, as construed by the state courts, a telegraph company cannot limit its liability for its negligent failure to deliver a telegram addressed to a per- son in another state. Western U. Teleg. Co. v. Commercial Milling Co. 36 1 220, 31 Sup. Ct. Rep. 59, 218 U. S. 406, 54 L. ed. 1088. b. Restricting right of contract. (1) In general. (See also same heading in Digest L.K.A. 1-10.) Prohibiting carrier from refusing to put on sale ticket of connecting road at price fixed by railroad commission, see CAR- RIERS, 999. As to Sunday contracts, see SUNDAY, IV. See also supra, 368, 410, 439; infra, 504. 453. The liberty to contract is not a fundamental constitutional right. State v. J. J. Newman Lumber Co. 45: 851, 59 So. 923, 102 Miss. 802. 454. A statute requiring all county print ing, binding, and stationery work to be done in the county for which the work is in- tended, where there are practical facilities there for doing the same, unless the charge made be greater than that made to private individuals, does not interfere with or re- strict the right of any person to freely con- tract, nor does it deny to any parson the equal protection of the law, and is not therefore repugnant to the provisions of 1 of the 14th Amendment to the Federal Constitution. Re Gemmill, 41: 711, 119 Pac. 298, 20 Idaho, 732. (Annotated) 455. A statute providing that no agree- ment that an award shall be final, or that a certificate of an architect or other person is required as a condition precedent to the 568 CONSTITUTIONAL LAW, II. b, 4. maintenance of an action on a contract, shall oust the jurisdiction of the courts, violates the constitutional right to acquire, possess, and protect property, which includes the right to contract. Adinolfi v. Hazlett. 48: 855, 88 Atl. 869, 242 Pa. 25. (Annotated ) 456. Limiting the surety which a proper- ty owner may take from one contracting to do work for him to secure payment of la- borers and materialmen to incorporated companies deprives him of his liberty to contract, and denies him the equal protec- tion of the laws. George Bolln Co. v. North Platte Valley Irrig. Co. 39= 868, 121 Pac. 22, 19 Wyo. 542. Attorneys' liens. 457. A statute giving attorneys' liens on money recovered by their clients is not un- constitutional as depriving their adversa- ries of a property right to buy their peace by making contracts of settlement. Stand- idge v. Chicago R. Co. 40: 529, 98 N. E. 963, 254 111. 524. (Annotated) Assignments of future wages. 458. No constitutional right to contract is infringed by requiring assignments of future wages to secure small loans to be accepted by employers in writing, consented to by the wives of the employees, and recorded, to be enforceable. Mutual Loan Co. v. Mar- tell, 43: 746, 86 N. E. 916, 200 Mass. 482. (Annotated) Trading stamps. 459. Freedom of contract is not uncon- stitutionally interfered with by the prohi- bition of the use of trading stamps. Dis- trict of Columbia v. Kraft, 30: 957, 35 App. D. C. 253. (Annotated) Liability of connecting carriers. 460. The liberty of contract secured by U. S. Const., 5th Amend., was not uncon- stitutionally denied by the enactment by Congress, in the exercise of its power under the commerce clause, of the Carmack amendment of June 29, 1906, to the act of February 4, 1887, 20, by which an inter- state carrier voluntarily receiving property for transportation from a point in one state to a point in another state is made liable to the holder of the bill of lading for a loss anywhere en route in spite of any agreement or stipulation to the contrary, with a right of recovery over against the carrier actually causing the loss. Atlantic R. L. R. Co. v. Riverside Mills, 31: 7, 31 Sup. Ct. Rep. 164, 219 U. S. 186. 55 L. ed. 167. (Annotated) Combinations or discriminations to destroy competition. 461. The application to a combination which has benefited instead of injured the public, of a statute against combinations which tend to lessen competition in the im- portation, transportation, manufacture, or sale of commodities, does not render such legislation repugnant to U. S. Const., 14th Amend., as unreasonably and arbitrarily limiting the right of contract. Internation- al Harvester Co. v. Missouri ex rel. Attor- ney General, 52: 525, 34 Sup. Ct. Rep. 859, 234 U. S. 199, 58 L. ed. 1276. Digest 1-52 L.R.A.(N.S.) 462. A statute enacted to prevent unfair commercial discriminations between differ- ent sections, communities, or localities, which prohibits the use and sale of one's property for the purpose of destroying the imsiiH'ss of a competitor, and provides pen- alties for violation thereof, is not uncon- stitutional on the ground that it takes from the citi/.en the right to contract and to control his property, and destroys free- dom in trade, as, under the act, the owner or dealer may sell for any price he chooses, or on any terms he may adopt, without reference to the effect his action may have upon the trade or business of others, so long as he does not do so for the purpose of destroying competing businesses. State v. Drayton, 23: 1287, 117 N. W. 768, 82 Neb. 254. 403. The constitutional right to freedom of contract is not infringed by a statute forbidding discrimination in prices in differ- ent sections of the state, for the purpose of driving competitors out of business. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. Insurance contracts. Police power as to, see infra, 697-699. See also INSURANCE, 625. 464. An insurance company has no con- stitutional right to contract which will prevent the legislature from forbidding it to contract for exemption from liability in case of suicide of the assured. Head Camp Pacific Jurisdiction v. Sloss, 31:831, 112 Pac. 49, 49 Colo. 177. (Annotated) 465. No constitutional right of an insur- ance company to contract is infringed by a statute giving railroad companies whose operations destroy neighboring property by fire, the right of subrogation to any insur- ance upon the property, upon their pay- ment of the loss inflicted. Boston Ice Co. v. Boston & M. R. Co. 45: 835, 86 Atl. 356, 77 N. H. 6. Money lenders. 466. The legislature may restrict the ex- action of sums in connection with a loan of money for commissions, examinations, and renewals, without unconstitutionally impairing personal liberty or freedom of contract. State ex rel. Ornstein v. Gary, ii : 174, 105 N. W. 792, 126 Wis. 135. (Annotated) (2) With employees. (See also same heading in Digest L.R.A. 1-70.) See also supra, 368, 458; infra, 519. Liability for injury to employees. Equal protection and privileges as to, see supra, 316-329. 467. An attempt to make an employer lia- ble for injury to an employee, arising out of a necessary risk or danger of the em- ployment, er one inherent in the nature thereof, without fault on the part of the employer, unless it was caused by the seri- ous and wilful misconduct of the employee, CONSTITUTIONAL LAW, II. b, 4. 569 is an unconstitutional taking of liberty and property without due process of law. Ives v. Soutk Buffalo R. Co. 34: 162, 94 N. E. 431, 201 N. Y. 271. (Annotated) 468. A statute creating an employees' in- demnity fund by assessments upon employ- ers in hazardous callings, being within the police power, is not invalid under the due process of law clauses of the Constitutions, as interfering with freedom of contract, creating liability without fault, or taking the property pf one employer to pay the obligations of another. State ex rel. Davis- Smith Co. v. Clausen, 37: 466, 117 Pac. 1101, 65 Wash. 156. 469. A section of the workmen's com- pensation act, abolishing the defenses of as- sumption of risk and fellow service in actions to hold employers liable for personal injuries to servants, in cases where the pro- visions of the act are not accepted, cannot be said to make the act coercive upon every employer or employee, so as to raise the question of the constitutionality of such abolition, on the theory that the employer will be compelled to accept the statute to escape such defenses, and the employee will be compelled to do so to avoid dismissal from service. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 470. The imposition of the liability creat- ed by the employers' liability act of April 22, 1908, upon interstate carriers by rail- road only, and for the benefit of all their employees engaged in interstate commerce although some are not subjected to the pe- culiar hazards incident to the operation of trains, or to hazards that differ from those to which other employees in such commerce not within the act are exposed, does not invalidate the statute under the due-process-of-law clause of the 5th Amend- ment to the Federal Constitution, on the ground that it makes an arbitrary and un- reasonable classification, even assuming that that clause is equivalent to the pro- vision of the 14th Amendment, securing the equal protection of the laws. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1. 56 L. ed. 327. 471. Congress, possessing the power exer- cised in the employers' liability act of April 22, 1908, to regulate the relations, of interstate railway carriers and their em- ployees engaged in interstate commerce, made no unwarranted interference with the liberty of contract, contrary to U. S. Const. 5th Amend., by declaring in the 5th sec- tion of that act that any contract, rule, regulation, or device the purpose or intent of which is to enable the carrier to exempt itself from the liability therein created shall be void. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 472. No unconstitutional abridgement of the right of a railroad company to con- tract, or deprivation of its constitutional liberty of contract without due process of law, is effected by a statute rendering rail- road companies liable for injuries to em- ployees through the negligence of fellow Digest 1-52 L.R.A.(N.S.) servants, which provides that any contract or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by the statute, shall be void. Wash- ington v. Atlantic C. L. R. Co. 38: 867, 71 S. E. 1066, 136 Ga. 638. (Annotated) 473. Forbidding railroad companies which have been rendered liable for injuries to employees by the negligence of fellow servants, to avoid such liability by relief or indemnity contracts with their em- ployees, is not an unconstitutional inter- ference with their liberty of contract. Mc- Guire v. Chicago, B. & Q. R. Co. 33: 706, 108 N. W. 902, 131 Iowa, 340. Discrimination in favor of union labor. Equal protection and privileges as to, see supra, 300. 474. A statute providing that labor em- ployed by a municipality in certain named capacities, or by private employers upon public work, shall be union labor, is uncon- stitutional, especially where there is another statutory provision that a contract of this character shall be awarded to the lowest responsible bidder of the class so designated. Wright v. Hoctor, 52: 728, 145 N. W. 704, 95 Neb. 342. (Annotated) 475. A contract let in accordance with the provisions of a statute providing that labor employed by a municipality in cer- tain named capacities, or by private em- ployers upon public work, shall be union labor, is a taking of the private property of taxpayers of the municipality without due process of law, and is in violation of 3, art. 1, of the Nebraska Bill of Rights. Wright v. Hoctor, 52: 728, 145 N. W. 704, 95 Neb. 342. As to membership in labor organiza- tion. 476. A statute forbidding an employer to exact an agreement from an employee noi to join a labor union infringes his constitu- tional rights of liberty. People v. Marcus, 7: 282, 77 N. E. 1073, 185 N. Y. 257. (Annotated) As to hours of labor. Equal protection and privileges as to, see supra, 301-311. Police power as to, see infra, 720. Impairment of contract obligations, see in- fra, 781. 477. The legislature may prohibit con- tractors for the public work of a municipal corporation to exact from their employees more than eight hours of labor daily. Keefe v. People, 8: 131, 87 Pac. 791, 37 Colo. 317. ( Annotated ) 478. That a municipal corporation is cre- ated by the Constitution by direct vote of the people, with power to form its own char- ter, does not deprive the legislature of power to make applicable to it a legal Jimitation of hours of labor which shall be required in the construction of public improvements. Keefe v. People, 8: 131,87 Pac. 791, 37 Colo. 317. 479. A statute providing that stationary firemen in certain plants operated by steam 570 CONSTITUTIONAL LAW, II. b, 4. shall not be employed to work consecutively more than eight hours in one day is a vio- lation of the 14th Amendment of the Con- stitution of the United States, in that said act denies the liberty of contract in relation to labor, where tnere is no suggestion that the occupation of a stationary fireman is dangerous or unhealthy to such a degree as to warrant the interference of the state. State v. Barba, 45: 546, 61 So. 784, 132 La. 768. 480. Restricting the right to employ laborers in manufacturing and repairing es- tablishments to ; hours per day except in cases of emergency or where public ne cessity requires doe not deprive the pro- prietors of their liberty or property with- out due process of law, deny them a remedy by due course of lav/ or the equal projection of the laws, nor abridge their privileges or immunities. State v. J. J. Newman Lumber Co. 45: 851, 59 So. 923, 102 Miss. 802. 481. A statute providing that adult fe- males shall not be employed, or permitted, or suffered, to work in a factory before 6 o'clock in the morning or after 9 o'clock in the evening, is an undue restriction upon the freedom of contracting, and cannot be up- held as an exercise of the police power. Peo- ple v. Williams, 12: 1130, 81 N. E. 778, 189 N. Y. 131. (Annotated) 482. Limiting the right of women to labor in any mechanical establishment, factory, or laundry more than ten hours in every twenty-four, does not unconstitutionally in- terfere with the freedom of contract, since the public interest requires such limitation, and it is therefore within the police power. W. C. Ritchie & Co. v. Wayman, 27: 994, 91 N. E. 695, 244 111. 509. 483. Forbidding labor in a public laundry from 6 P. M. to 7 P. M. is not an uncon- stitutional interference with liberty or prop- erty rights. Ex parte Wong Wing, 51:361, 158 Pac. 695, 167 Cal. 109. (Annotated) 484. The constitutional rights of employ- ers to contract are not impaired by a stat- ute limiting the hours during which minors may be employed. State v. Shorey, 24: 1121, 86 Pac. 881.. 48 Or. 396. 485. The constitutional liberty of a child is not impaired by a statute limiting the hours during which it shall be permitted to labor. State v. Shorey, 24: 1121, 86 Pac. 881. 48 Or. 396. As to wages. Equal protection and privileges as to, see supra, 332-315. Assignment of wages, see infra, 519. Who may question constitutionality of stat- ute as to time of payment of wages, see STATUTES, 31. 486. The constitutional rights of a corpo- ration to contract are not impaired by re- quiring it to pay its employees weekly. Lawrence v. Rutland R. Co. 15: 350, 67 Atl. 1091, 80 Vt. 370. (Annotated) 487. The legislature may, under its re- served power to amend corporate charters, require railroad companies to pay their em- ployees semimonthly, in cash, without de- priving them of liberty or property without Digest 1-52 L.R.A.(N.S.) due process of law. New York C. & H. R. R. Co. v. Williams, 35: 549, 92 N. E. 404, 199 N. Y. 108. (Annotated) 488. The legislature, having reserved power to amend the charters of corpora- tions, may, without depriving them of lib- erty or property, require them to pay their employees semimonthly instead of monthly, as has been their habit. Arkansas Stave Co. v. State, 27: 255, 125 S. W. 1001, 94 Ark. 27. (Annotated) 489. The liberty of contract on the part of employees is not unconstitutionally in- terfered with by a statute requiring their corporate employers to pay them at least twice a month. Arkansas Stave Co. v. State, 27: 255, 125 S. W. 1001, 94 Ark. 27. 490. The liberty and property of an in- terstate railway company are not taken without due process of law by the re- quirement of N. Y. Laws 1897, chap. 415, 10, as amended by Laws 1908, chap. 442, passed in the exercise of the reserved power of the state over the charters of its corpora- tions, that railway employees shall be paid their wages semimonthly, the efl'ect of which is to prohibit both carrier and em- ployees from contracting otherwise. Erie R. Co. v. Williams, 51: 1097, 34 Sup. Ct. Rep. 761, 233 U. S. 685. 58 L. ed. 1155. 491. A statute prohibiting the issuance by an employer to his employee of checks for labor performed, redeemable in goods and merchandise, interferes with the right of freedom of contract, and is not within the police power of the state. State v. Jordan, ii : 603, 103 S. W. 633, 51 Tex. Crim. Rep. 531. c. Regulation of rates. (See also same heading in Digest L.R.A.. 1-70.) Equal protection and privileges as to, see supra, II. a, 5, d. Impairment of contract obligations by, see infra, 790, 791. Sufficiency of allegations as to rates, see PLEADING, 532. 492. A statute permitting a municipal corporation to fix reasonable rates for pub- lic service corporations is not unconstitu- tional, as depriving them of their property without due process of law. Home Teleph. Co. v. Carthage, 48: 1055, 139 S. W. 547, 235 Mo. 644. Of carrier. Equal protection and privileges as to, see supra, 212-217. Impairment of contract obligations by, see infra, 791. Jurisdiction of Federal Court of question as to, see COURTS, 249. Right to jury in determining validity of state statute establishing rates for railroad transportation, see JURY, 14. 493. A state statute enacted in a state which has a 2-cent passenger fare law, re- quiring the railroads of the state to carrj CONSTITUTIONAL LAW, II. b, 4. 571 a member or members of the state Nation- al Guard traveling in the discharge of mili- tary duties under orders, at the rate of 1 cent per mile, the railroad company having waived the defense that the rate therein provided is inadequate compensation for the transportation required, does not contra- vene either the Federal or the state Consti- tution in that it takes defendant's proper- ty without compensation or without due process of law, or deprive it of the equal protection of the law. State ex rel. Simp- son v. Chicago, M. & St. P. R. Co. 41: 524, 137 N. W. 2, 118 Minn. 380. (Annotated) 494. A state statute prescribing maxi- imum coal rates for the transportation by common carriers of coal in car load lots within the state does not violate Constitu- tional provisions that no person shall be deprived of life, liberty, or property without due process of law. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. 495. The constitutional liberty of the citi- zen to make contracts was not infringed by the enactment by Congress, in the exercise of its power over commerce, of the* provi- sions of the act of June 29, 1906, 6, which rendered unenforceable a prior contract, valid when made, by which an interstate carrier agreed to issue annual passes for life in consideration of a release of a claim for damages. Louisville & N. R. Co. v. Mottley, 34: 671, 31 Sup. Ct. Rep. 265, 219 U. S. 467, 55 L. ed. 297. 496. The legislature cannot require a street car company to carry school children for half fare if it will entail a loss upon the company, or require it to shift the loss to other passengers by increasing their fares. Com. v. Interstate Consol. Street R. Co. ii : 973, 73 N. E. 530, 187 Mass. 436. 497. A statute requiring a street car com- pany to carry school children at half the regular passenger fare is not invalid as de- priving it of its property without due proc- ess of law, where there is nothing to pre- vent its establishing a rate of regular fare which will permit the service to yield a profit. Com. v. Interstate Consol. Street R. Co. ii : 973, 73 N. E. 530, 187 Mass. 436. 498. The court cannot declare unconstitu- tional a statute requiring street car com- panies to carry school children at half fare, on the theory that it deprives the company of its property without due process of law, unless it is clear that the legislature could not have concluded that, because of the time at which the service was required, and the small size of the children, and the probabili- ty that more would be carried at half than at full fare, the company would suffer no loss from carrying children at that rate. Com. v. Interstate Consol. Street R. Co. ii : 973, 73 N. E. 530, 187 Mass. 436. d. Regulation of sales. (See also same heading in Digest L.R.A. 1-70.) Equal protection and privileges as to, see supra, II. a, 5. Digest 1-52 L.R.A. (N.S.) Police power as to, see infra, II. c, 4, d. As to sales in bulk, see infra, 530, 531. See also supra, 449, 463. 499. A statute forbidding the making of a condition to the sale of goods to be resold, that the purchaser shall not handle the goods of other dealers, does not violate the constitutional rights of life, liberty, or property, since it is within the police power of the state. Com. v. Strauss, ii: 968, 78 N. E. 136, 191 Mass. 545. (Annotated) 500. Prescribing the weight of the loaves of bread to be sold within a city does not deprive the baker of his property without due process of law, in that it interferes with his freedom of contract for the dis- position and sale of it. Chicago v. Schmid- inger, 44: 632, 90 N. E. 369, 243 111. 167. (Annotated) 501. A statute requiring the marking of small packages of butter intended for sale with their weight in figures not less than a quarter of an inch high is an unconstitu- tional interference with liberty and prop- erty rights, and not a legitimate exercise of the police power. Ex parte Dietrich, 5:873, 84 Pac. 770, 149 Cal. 104. 502. A statute forbidding one to sell a product from the original package labeled with a trademark, upon the false repre- sentation that it was placed in the package by the owner of the label, does not deprive the seller of his property without due process of law, although the product was in fact that of the owner of the label and was purchased by the seller for the purpose of resale. People v. Luhrs, 25: 473, 89 N. E. 171, 195 N. Y. 377. (Annotated) Sale of poisons. 503. A druggist is not deprived of his liberty or property without due process of law by a statute requiring him, when sell- ing poisons at retail, without a physician's prescription, to satisfy himself that they are to be used for a legitimate purpose. Katzman v. Com. 30: 519, 130 S. W. 990, 140 Ky. 124. (Annotated) Tickets. Equal protection and privileges as to, see supra, 218, 219. Police power as to, see infra, 744-746. Impairment of contract obligations by stat- ute as to, see infra, 792. 504. There is no individual property right in the occupation of broker in rail- road transportation which cannot be taken away by legislative regulation in the in- terest of the traveling public. Ex parte O'Neill, 3: 558, 83 Pac. 104, 41 Wash. 174. (Annotated) 505. Prohibiting a broker in theater tickets from selling them at an advance over the price charged at the box office unconsti- tionally deprives him of liberty and pro- perty. People v. Steele, 14: 361, 83 N. E. 236. 231 111. 340. 506. Depriving a theater manager of the right to make any contract he chooses as to the price at which tickets shall be sold is an unconstitutional interference with his liberty. People v. Steele, 14: 361, 83 N. E. 236, 231 111. 340. 572 CONSTITUTIONAL LAW, II. b, 5. 507. A statute forbidding the resale of tickets to places of amusement at a price higher than that originally placed upon them violates the constitutional right of property, where, by statute, the ticket is at least an irrevocable license to its purchases to he in the place of amusement during the performance. Ex parte Quarg, 5: 183, 84 Pac. 7(56, 149 Cal. 79. (Annotated) Intoxicating liquors. Forbidding manufacture of alcohol, see supra, 398. Forbidding treating in saloons, see supra, 423. Equal protection and privileges as to, see supra, 265-277. Police power as to, see infra, 739-743. Regulation of liquors generally, see IN- TOXICATING LIQUORS, I. See also infra, 529, 628. 508. The right to sell liquor is not an in- herent right of the citizen, and to prohibit him from keeping open his place of business from 12 o'clock midnight to 6 o'clock in the morning, and from 12 o'clock Saturday night until 6 o'clock the following Monday morning, does not deprive him of property without due process of law, but is a re- straint which in no wise contemplates a de- struction of his business, but places it with- in the bounds therein named, and is simply a regulation and restraint. State v. Gallo- way, 4: 109, 84 Pac. 27, 11 Idaho, 719. 509. The provision of the Constitution protecting property rights is not violated by a municipal ordinance imposing a license tax of $1,000 per year upon the business of selling near beer. State v. Dannenburg, 26: 850, 66 S. E. 301, 151 N. C. 718. 510. Forbidding one who has grown grapes and manufactured them into wine, large quantities of which he has on hand, to main- tain any tippling house, dramshop, cellar, saloon, bar. barroom, sample room, or any other place where wine is sold or given away, does not, unconstitutionally, deprive him of his property without just compen- sation or due process of law. Re Young, 22: 330, 97 Pac. 822, 154 Cal. 317. 511. Forbidding the keeping for sale, for tippling purposes or for a beverage, of cider which is in fact unfermented and nonintox- icating, does not violate the constitutional rights of the owner. State v. Frederick - son, 6: 186, 63 Atl. 535, 101 Me. 37. (Annotated) 512. The provision of the Georgia Civil Code 1910, 1769, in regard to disqualifying one who has violated the prohibition law under color of his license to sell what is commonly called "near beer," from holding another license to conduct that business, as applied to one who has been convicted of keeping spirituous, malt, and intoxicating liquors at his place of business, is not in conflict with the 14th Amendment of the Constitution of the United States, as de- priving the applicant for the license of lib- erty or property without due process of law; nor is it violative of the clause of the state Constitution containing a similar pro- Digest 1-52 L,.R.A.(N.S.) vision. C'assidy v. Wiley, 51: 128, 80 S. E. 1046, 141 Ga. 331. Itinerant venders. Equal protection and privileges as to, see supra, 260, 261. Police power as to, see infra, 703, 704. 513. Exacting from itinerent venders of patent or proprietary medicines a license fee of $100 per month is prohibitive, and the attempt to do so is unconstitutional as tending to deprive such venders of their liberty and property without due process of law, and as tending to create a monopoly in those engaged in tfie drug business with a permanent location. People Use of State Bd. of Health v. Wilson, 35: 1074, 94 N. E. 141, 249 111. 195. (Annotated) Nursery stock. Equal protection and privileges as to, see supra, 200. Police power as to, see infra, 727. 514. Unconstitutional burdens and restric- tions are not imposed on persons en- gaged in the nursery business by a statute requiring as a condition precedent to the sale of nursery stock a certificate of inspec- tion from a competent entomologist, or an annual license fee of $10, or a continuing bond of $5,000 without sureties. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93, 22 S. D. 23. 5. As to use or enjoyment of property. (See also same heading in Digest L.R.A. 1-10.) 515. A statute forbidding the construc- tion or remodeling of a schoolhouse within a certain distance of a railroad track will not be construed as applying to an existing site which had been deeded upon condition that it should revert when abandoned for school uses, since giving it an application to such site would render it unconstitution- al as taking property without due process of law. School Corp. v. Heiney, 43: 1023, 98 N. E. 628, 178 Ind. 1. (Annotated) 516. Forbidding a riparian owner on a pond from which a municipal water supply is taken, to bathe in the pond, does not unconstitutionally deprive him of his prop- erty rights,, since such use of the property is not reasonable. State v. Morse. 34: 190, 80 Atl. 189, 84 Vt. 387. Cemeteries. 517. A cemetery company is not uncon- stitutionally deprived of its property with- out due process of law by the passage of a municipal ordinance forbidding further in- terments in the cemetery. Laurel Hill Cemetery v. San Francisco, 27: 260, 93 Pac. 70, 152 Cal. 464. Building restrictions. Equal protection and privileges as to, see supra, 178, 179. Police power as to, see infra, 660-663. See also supra, 379-381. 518. Prohibiting the owner of a lot on a residence street of a city from erecting thereon a business block, without the con- sent of a majority of the neighboring prop- CONSTITUTIONAL LAW, II. b, 5. 573 erty owners, and requiring the building to be placed on a building line, a certain dis- tance from the street, deprives him of his constitutional property rights. Willison v. Cooke, 44: 1030, 130 Pac. 828, 54 Colo. 320. Assignment of salary. Equal protection and privileges as to, see supra, 180-184. 519. A statute making invalid the assign- ment of any salary unless it is in writing, signed and acknowledged by the assignor and his or her husband or wife, and the assignment entered on the justice's docket and a copy served upon the employer, is in- valid as interfering with the constitutional rights of liberty and property of the one earning it. Massie v. Cessna, 28: 1108, 88 N. E. 152, 239 111. 352. Advertising bills or signs. 520. The right to the use of property is unconstitutionally interfered with by a stat- ute forbidding, under penalty, the erection and maintenance of any structure for ad- vertising purposes within 500 feet of a public park or boulevard. Haller Sign Works v. Physical Culture Training School, 34: 998, 94 N. E. 920, 249 111. 436. ( Annotated ) Exportation of Philippine coin. 521. The owner of Philippine silver coin is not deprived of his property therein with- out due process of law, contrary to the act of July 1, 1902, by the prohibition against the exportation of such coin from the Phil- ippine Islands, under penalty of forfeiture and fine or imprisonment, which is made by Philippine law No. 1411, enacted by the Philippine Commission in the exercise of the power under the act of Congress of March 2, 1903 (32 Stat. at L. 952, chap. 980. U. S. Comp. Stat. Supp. 1909, p. 893), 6, to adopt such measures as are deemed prop- er, not inconsistent with the organic act, to maintain the parity between gold and silver pesos, but such statute is within the limits of the police power. Ling Su Fan v. United States, 30: 1176, 31 Sup. Ct. Rep. 21, 218 U. S. 302, 54 L. ed. 1049. As to highways. Equal protection and privileges as to, see supra, 157-162, 253-255. Police power as to, see infra, 647-649. Uniformity and equality as to license, see LICENSE, 107-110. See also supra, 161. 522. No property right of an abutting owner doing business on a park way is unconstitutionally interfered with by for- bidding him to use such park way with loaded wagons further than the nearest in- tersecting cross street, although he is there- by compelled to take a circuitous route to transact his business, and the bad condition of the cross street prevents the hauling of full loads upon it. Illinois Malleable Iron Co. v. Commissioners of Lincoln Park, 51: 1203, 105 N. E. 336, 263 111. 446. b m* (Annotated) Use of flag. Equal protection and privileges as to, see supra, 251, 252. Police power as to, see infra, 675. See also FLAG. Digest 1-52 L.R.A.(N.S.) 523. The personal liberty of the citizen, guaranteed by the Federal and state Con- stitutions, is not infringed by the enact- ment of a statute by the state, in the exercise of its police power, forbidding the use of the flag of the United States for advertising purposes. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. 524. The prohibition of a state statute against the use of the United States flag for advertising purposes does not deprive any person of his property without due process of law, in violation of the 14th Amendment to the Federal Constitution. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. ( Annotated ) Animals; fish; game. Equal protection and privileges as to, see supra, 287, 288. Police power as to, see infra, 653-658. 525. A municipal ordinance which in ef- fect declares that carcasses of all dead ani- mals found within the city, which were not slain for food, shall at once become the property of a public contractor whose name is contained in the ordinance, with the right in him to remove the same, without giving the owner a reasonable time within which to dispose of the dead animal, is a taking of private property without due process of law and therefore void. Whelan v. Daniels, 48:" 979, 143 N. W. 929, 94 Neb. 642. (Annotated) 526. Permitting the summary killing of hogs found running at large on or near pub- lic levees does not unconstitutionally de- prive the owner of his property where pre- vention of the weakening of the levees by the rooting of hogs is necessary to the public safety. Ross v. Desha Levee Board, 21 : 699, 103 S. W. 380, 83 Ark. 176. (Annotated) 527. The constitutional property rights of the owner of a private oyster bed are not in- fringed by a statute forbidding the taking therefrom of oysters under a certain size. Windsor v. State, 12: 869, 64 Atl. 288, 103 Md. 611. (Annotated) 528. Forbidding possession within the state, during a close season, of game birds taken in foreign countries, does not deprive one of his property without due process of law. People ex rel. Hill v. Hesterberg, 3: 163, 76 N. E. 1032, 184 N. Y. 126. (Annotated) intoxicating liqnors. Police power as to, see infra, 645, 646. As to sales of liquor, see supra, 508-512. 529. Forbidding one, under penalty, to carry into a county where the sale of in- toxicating liquor is prohibited, more than a half gallon of such liquor on any one day, deprives him of his constitutional property rights in case he has no intent to sell it. State v. Williams, 17: 299, 61 S. E. 61, 146 N. C. 618. (Annotated) Transfer of property; sale in bulk. As to regulation of sales generally, see supra, II. b, 4, d. Equal protection and privileges as to, see supra, 249, 250. Police power as to, see infra, 747, 748. 530. No unconstitutional interference with property rights is affected by requiring re- 574 CONSTITUTIONAL LAW, II. b, 6, 7. tail merchants to file notice of intention to sell the whole or a large part of their stocks, seven days before the sale, under penalty of the sale being voidable at the instance of creditors. Young v. Lemieux, 20: 160, 65 Atl. 436, 79 Conn. 434. (Annotated) 531. A statute requiring, under penalty of having the sale presumed fraudulent as to the creditors, one about to sell a stock of merchandise in gross or in a manner out of the due course of business to make an in- ventory and list of his creditors and notify them of the proposed sale, which is not re- quired of persons selling other kinds of prop- erty under similar circumstances, unconsti- tutionally deprives him of liberty and prop- erty. Off v. Morehead, 20: 167, 85 N. E. 264, 235 111. 40. 6. As to rights in office. (See also same heading in Digest L.R.A. 1-10.) Equal protection as to, see supra, 169-175. 531a. The right to an office, though not a vested property right, is a property right in a certain sense, so that an officer entitled to hold an office for a 3xed term subject to removal only for cause, is, by common- law rules unless the same shall have 'been abrogated by statute, entitled to protection against danger of unjust removal, being so entitled by due process of law which ex- cludes interference with personal or prop- erty rights except according to established principles of justice. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. Removal from office. See also infra, 589, 590. 532. A judgment of ouster in a quo war- ranto proceeding, whereby the right to hold an office for the remainder of the term is taken away from the ousted official, does not deprive him, without due process of law, of any right to which he is lawfully entitled. State v. Rose, 6: 843, 86 Pac. 296, 74 Kan. 262. 533. There is no abrogation of the com- mon-law rule requiring the governor to pro- ceed by due process to remove an officer ap- pointed by him, in section 970 of the 1911 Wisconsin statutes, providing that such of- ficers may "for official misconduct, habitual or wilful neglect of duty be removed by the governor upon satisfactory proof at any time during the recess of the legislature." Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. 7. Remedies and. procedure. a. In general. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 7. Guaranty that right and justice shall be administered without prejudice, see JUDGES, 8, 9, 24. Digest 1-52 L.R.A.(N.S.) Infringement of right to jury trial, see JURY, I. d. See also supra, 382. 534. An erroneous decision of a court which has jurisdiction of the parties and the subject-matter is not a denial of due process of law. Griggs v. Hanson, 52: 1161, 121 Pac. 1094, 86 Kan. 632. 535. To penalize resistance by judicial in- terference made in good faith to prevent the enforcement of a law is unreasonable and indefensible from any point of view, since it denies the equal protection of the laws, violates the constitutional guaranty to every person of a certain remedy in the law for all injuries to person and property, and violates every principle of civil liberty. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 536. A statute permitting the owner of sheep killed by dogs to recover their value from the owner of the dogs, and requiring the dogs to be killed, does not deprive the owner of the dogs of his property without due process of law. Holmes v. Murray, 17: 431, 105 S. W. 1085, 207 Mo. 413. 537. No unconstitutional interference with liberty, grant of special privileges, or immunities, or deprivation of property without due process of law, is effected by prohibiting the assignment of a claim against a wage earner out of the state, to evade his constitutional exemptions from execution. Markley v. Murphy, 47: 689, 102 N. E. 376, 180 Ind. 4. Service of process. See also supra, 204. 538. Under the due process of law clause of the Federal Constitution, a personal judgment cannot be rendered against a non- resident joint debtor who was not served with process. Blessing v. McLinden (N. J. Err. & App.) 35: 312, 79 Atl. 347, 81 N. J. L. 379. (Annotated) 539. A state cannot authorize a personal judgment against one of its citizens upon a personal service of process, made with- out the state, under Constitutions guar- antying due process of law. Raher v. Raher, 35: 292, 129 N. W. 494, 150 Iowa, 511. (Annotated) 540. A provision for service of process on a domestic corporation by delivering it to an officer of the corporation while he is in an- other state where he resides does not de- prive the corporation of due process of law. Straub v. Lyman Land ?i Invest. Co. 46:941, 138 N. W. 957, 141 N. W. 979, 30 S. D. 310. 541. Service by publication upon a do- mestic corporation which has failed to pro- vide officers or agents upon whom other service may be had constitutes "due process of law." Clearwater Mercantile Co. v. Roberts, J. & R. Shoe Co. 4: 117, 40 So. 436, 51 Fla. 176. (Annotated) 542. A statute permitting service of proc- ess by publication on domestic corporations in counties where the cause of action arises, but in which the corporation has no repre- sentative, does not deprive it of due process of law. Ward Lumber Co. v. Henderson- CONSTITUTIONAL LAW, II. b, 7. 575 White Mfg. Co. 17: 324, 59 S. E. 476. 107 Va. 626. 543. The provision of Ark. act February 26, 1901 (Kirbv's Dig. 835), which author- izes a personal judgment against any foreign corporation, on any cause of action, in favor of a resident or citizen of that state, upon service of a summons upon the auditor of state, is violative of the 14th Amend- ment to the Federal Constitution, because it authorizes judgment without notice to the defendant of the hearing and proposed ad- judication in his case, which is indispensable to constitute due process of law. Cella Com- mission Co. v. Bohlinger, 8: 537, 147 Fed. 419, 78 C. C. A. 467. (Annotated) As to appeaf. 544. Refusing a judicial review of the ac- tion of the board of supervisors of a coun- ty in including land in a drainage district does not offend the constitutional provision forbidding deprivation of property without due process of law. Ross v. Wright County, i: 431, 104 N. W. 506.. 128 Iowa, 427. 545. A statute denying an appeal in pro- ceedings to contest a local-option election does not unconstitutionally deprive contest- ants of the privileges and immunities of citizens, nor of property without due proc- ess of law, nor of the equal protection of the laws. Saylor v. Duel, 19: 377, 86 N. E. 119, 236 111. 429. 546. The setting aside by an appellate court, of a verdict for plaintiff, and di- recting judgment for defendant for failure of evidence, do not infringe plaintiff's consti- tutional rights to due process of law and trial by jury, at least in states where, at the adoption of the Constitution, the practice had been to allow successive trials of the same case before different juries, and the interference with verdicts by the court under certain circumstances, so that the verdict of a jury possessed no element of finality if appealed from or reviewed. Gunn v. Union R. Co. 2: 362, 62 Atl. 118, 27 R. I. 320. (Annotated) 547. One is not deprived of due process of law by the fact that no appeal is provided from an order committing him to a state hospital in case he is acquitted of the charge of murder on the ground of insanity. (Per Rich, J.) People ex rel. Peabody v. Chanler, 25: 946, 89 N. E. 1109, 196 N. Y. 525. Removal of causes. 548. A defendant in a suit under the Federal employers' liability act is not de- nied due process of law or the equal pro- tection of the laws by being forbidden to remove the cause from a state to a Federal court, although there is diversity of citizen- ship, which is a cause for removal in other classes of cases. Teel v. Chesapeake & 0. R. Co. 47: 21, 204 Fed. 918, 123 C. C. A. 240. (Annotated) Forbidding: injunction. 549. The legislature cannot prevent the granting of an injunction against the in- timidation of a merchant's employees and customers by a labor union for the purpose of compelling him to pay the union's scale of prices to his employees, since it inter- Digest 1-52 KR.A.(N.S.) feres with his constitutional right to ac- quire, possess, enjoy, and protect property. Goldberg, B. & Co. v. Stablemen's Union, Local No. 8,760, 8: 460, 86 Pac. 806, 149 Cal 429. Contempt proceedings. Striking out depositions in divorce suit, see CONTEMPT, 107. Presumption as to notice and hearing, see EVIDENCE, 508. 550. One imprisoned by a state court for contempt in disobeying an injunction in a civil suit is not denied due process of law because, under the decisions of the Supreme Court of the United States, such punish- ment is not proper in that class of cases. Rothschild & Co. v. Steger & Sons Piano Mfg. Co. 42: 793, 99 N. E. 920, 256 111. 196. 551. Wilful failure of an attorney to be present in court on the calling of his case which he has had adjourned, and wilful failure to return promptly when thereafter excused for a few minutes to attend to a case in another court, is a criminal con- tempt for which he cannot be punished without notice and reasonable time in which to make his defense, under a statute re- quiring such notification where contempts are not committed in the immediate view and presence of the court; and the fact that the attorney is present when he is adjudged guilty, and then has notice of what is going on, does not satisfy the requirement of the statute. Ex parte Clark, 15: 389, 106 S. W. 990, 208 Mo. 121. (Annotated) Condemnation proceedings. 552. Conferring authority upon the public service commission to hear, upon notice, an application for trie exercise of the right of eminent domain, determine the facts of necessity and due compensation, and render judgment, which, subject to appeal, shall be final, does not deprive the owner of his prop- erty without due process of law. George v. Consolidated Lighting Co. 52: 850, 89 Atl. 635, 87 Vt. 411. (Annotated) 553. A statute authorizing a corporation seeking to take land under eminent domain proceedings to enter upon the land in case it and the owner cannot agree, upon filing a bond with the court and the court's ap- proval thereof, does not violate due process of law where notice of the filing of the bond is required and the owner given an opportunity to file exceptions thereto before approval, and provision is made for de- termining the compensation of such owner. Carnegie Natural Gas Co. v. Swiger, 46: 1073, 79 S. E. 3, 72 W. Va. 557. Revocation of license. 554. The action of a judicial tribunal is not necessary to the revocation of the li- cense of an architect. Klafter v. State Bd. of Examiners, 46: 532, 102 N. E. 193, 259 111. 15. 555. Judicial proceedings are not neces- sary to the revocation of a license to prac- tise medicine, in order to avoid conflict with the constitutional provision against depriv- ing one of property without due process of law. State Medical Board v. McCrary, 30: 783, 130 S. W. 544, 95 Ark. 511. .376 CONSTITUTIONAL LAW, II. b, 7. As to lien. As to lien of attorney, see supra, 457. Notice and hearing as to, see infra, 588, 604. Impairing obligation of contract as to, see infra, 818. See also infra, 588. 556. A statute giving the keeper of a hotel or inn a lien upon baggage and other personal property brought on the premises by a guest, although owned by a third per- son, unless the proprietor of the hotel or inn is aware of that fact, is not in violation of due process of law, since the statute does not extend the rule beyond the rule of the common law prior to 1775, or beyond the requirements of public policy. Horace Waters & Co. v. Gerard, 24: 958, 82 N. E. 143, 189 N. Y. 302. (Annotated) 557. A statute giving subcontractors a lien on a building, notwithstanding the right to a lien has been waived by the principal contractor, is unconstitutional, as depriving the owner of his property without due process of law. Kelly v. Johnson, 36: 573, 95 N. E. 1068, 251 111. 135. (Annotated) As to damages; penalties. See also supra, 552, 553. 558. Denying damages to a property own- er for loss of the use of fixtures installed to utilize a municipal water supply which proves to be inadequate does not deprive him of his property without due process of law or deny him the equal protection of the laws. Stansbury v. Richmond, 51:984, 81 S. E. 26, 116 Va. 205. 559. An award to the owner of one of many parcels of land taken by eminent do- main for a site for a reservoir for a mu- nicipal water supply cannot be said to deny due process of law, where made without prejudice, in due form, and after full hear- ing, because the commissioners and courts refuse to take into consideration the value of the land as part of a natural reservoir site. McGovern v. New York, 46: 391, 33 Sup. Ct. Rep. 876, 229 U. S. 363, 57 L. ed. 1228. (Annotated) 560. A ruling that the measure of dam- ages, where the right of way of a railroad company 'is taken by a telegraph company, is the value of the land actually taken, and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company; that the right of way of a railroad company has no general market value for other uses than that to which it is applied; and that pe- culiar advantages and benefits accruing to a telegraph company from its use of the railroad's right of way cannot be considered in the assessment of damages, has not the effect of putting the eminent domain laws of the state in opposition to the due-process clause of the 14th Amendment of the Con- stitution of the United States. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. 561. A statutory allowance for the wil- ful and reckless killing of a person, of puni- tive damages proportioned 'to the injury re- Dige.t 1-52 L.R.A.(N.S-) suiting from the death to the parties re- spectively for whom and for whose benefit the action is brought, is not an unconstitu- tional interference with defendant's proper- ty rights. Hull v. Seaboard Air Line R. Co. 10: 1213, 57 S. E. 28, 76 S. C. 278. 562. A statute authorizing recovery against telegraph companies for mental anguish resulting directly or proximately from or occasioned by the failure or negli- gence of their operators, servants, or em- ployees in receiving, copying, transmitting, or delivering messages, is not invalid as depriving them of property without due process of law. Nitka v. W'estern U. Teleg. Co. 49: 337, 135 X. W. 492, 149 Wis. 106. 563. A statute which provides a penalty against a common carrier for refusing to put on sale or to sell tickets of a connect- ing carrier for the transportation of passen- gers over the connecting line, or any portion thereof, at the rate prescribed by the rail- road commission of the state, does not vio- late the provisions of a state Constitution that no person shall be deprived of property except by due process of law, nor the provi- sions of the 14th Amendment of the Federal Constitution that no state shall deprive any person of property without due process of law, or deny to any person the equal protec- tion of the laws. Stephens v. Central of Ga. R. Co. 42: 541, 75 S. E. 1041, 138 Ga. 625. ( Annotated ) 564. Imposing a penalty of a fine of not exceeding $1,000, or imprisonment of not ex- ceeding one year, or both, for violation of a statute forbidding the exaction of more than 5 cent for one continuous ride on a t/reet car within any city or town, is, al- though no minimum is prescribed, so exces- sive as to deny railway companies due process of law. State v. Crawford, 46: 1039, 133 Pac. 590, 74 Wash. 248. 565. A statute prescribing a minimum rate of speed at which live stock may be transported between intrastate points is not rendered unconstitutional as depriving the carrier of its property without due process of law, by a clause thereof providing that the shipper may recover damages in a fixed sum for violations thereof, although such damages may amount to more than com- pensatory damages, since the legislature has power to liquidate the damages in such case. Cram v. Chicago, B. & Q. R. Co. 26: 1022, 122 N. W. 31, 84 Neb. 607, 123 N. W. 1045, 85 Neb. 586. 566. Exacting double liability and an at- torneys' fee under the authority of a state statute, from a railway company refusing to pay within thirty days an excessive de- mand for the killing of live stock by one of its trains, takes the company's property without due process of law. St. Louis, I. M. & S. R. Co. v. Wynne, 42: 102, 32 Sup. Ct. Rep. 493, 224 U. S. 354, 56 L. ed. 799. (Annotated) 567. A statute imposing on railroads alone an additional charge for goods lost in transit in case of failure to pay any claim within a certarin time is inoperative, as it provide* for an unreasonable classifi- . .K.J. s-v t .tf.xia CONSTITUTIONAL LAW, II. b,. 7. 577 cation that in effect denies to those operat- ing railroads the constitutional guaranty of due process of law and the equal protection of the law ; since, as the duty of a common carrier to pay for goods lost in transit is one that applies to all common carriers alike, there is no just basis for the classifica- tion. Seaboard A. L. R. Co. v. Simon, 20: 126, 47 So. 3001, 56 Fla. 545. (Annotated) As to insane person. Validity of rules of evidence, see infra, 624. Notice and hearing as to, see infra, 597- 603. Police power as to, see infra, 750. See also supra, 547. 568. Sentence to imprisonment according to the provisions of a statute that, when one is acquitted of the charge of murder on the ground of insanity, anu that fact is stated by the jury, he may be sentenced to imprisonment, does not deprive him of his liberty without due process of law, nor of the benefit of the constitutional rights, to appear and defend in person or by coun- sel, and to trial by jury, where he has had a fair trial upon the issue of insanity, ten- dered by him in support of his plea of not guilty, and he has produced no evidence of a return of a lucid interval. Ex parte Brown, i : 540, 81 Pac. 552, 39 Wash. 160. (Annotated) 569. A statute' providing that when a person is acquitted of a criminal charge on the ground of insanity when the offense was committed, the jury shall so state in their verdict and shall pass specifically on the question of sanity, and thereupon such person shall be committed to asylum for the dangerous insane, and shall not be liberated except upon an order of the court commit- ting him thereto, and until the superintend- ent of such asylum shall certify in writing to such committing court that in his opin- ion such person is wholly recovered, and that no person will be in danger by his dis- charge, is not unconstitutional as being a denial of due process of law within the pro- visions of the Federal or state Constitution relating thereto. Re Clark, 39: 680, 121 Pac. 492, 86 Kan. 539. Escheat. 570. The legislature cannot declare the land of a corporation forfeited, because held too long, and vest the title ipso facto in the state, without giving the corporation a chance to resist the escheat. Louisville School Board v. King, 15: 379, 107 S. W. 247, 127 Ky. 824. Criminal matters. As to appeal, see supra, 547. Confinement of insane person on acquittal of crime, see supra, 568, 569. Police power as to, see infra, 750. As to arrest without warrant, see ARREST, I. d. Matters as to procedure on criminal trial generally, see CRIMINAL, LAW, II. Right to public trial, see CRIMINAL LAW, 83-86. Right to speedy trial, see CRIMINAL LAW, 87-94. Digest 1-52 L.K.A.(N.S.) 37 Right to meet witnesses, see CRIMINAL LAW, 95-103. As to self -crimjnation, see CRIMINAL LAW, 107-121, 131; WITNESSES, II. c. Right of accused to be present, see CRIMI- NAL LAW, 125-130. Necessity of indictment or information, see CRIMINAL LAW, II. d. Former jeopardy, see CRIMINAL LAW, II. g. Guaranty of trial Avithout prejudice, see JUDGES, 8, 9. See also supra, 36, 568. 571. A proceeding before the district court or a judge thereof, upon the written appli- cation of the county attorney, or attorney general, Under Kan. Laws 1897, chap. 265, lOb, Kan. Gen. Stat. 1901, 7873, to subpoana witnesses to testify of their knowledge of violations of provisions of the anti -trust law, is of the nature of an in- vestigation or preliminary proceeding, and is a valid exercise of judicial power; the procedure being due process of law within the meaning of the 14th Amendment to the United States Constitution. State v. Jack, 1:167, 76 Pac. 911, 69 Kan. 387. 572. The arrest, detention, and imprison- ment of persons by the governor of the state during a time of insurrection, under a statute conferring such power upon him, do not violate the due process of law clauses of 10, article 3, of the West Virginia Constitution, nor the 14th Amendment of the Federal Constitution. Ex parte Jones, 45: 1030, 77 S. E. 1029, 71 W. Va. 567. 573. An executive order' revoking a con- ditional parole for violation thereof, and directing the rearrest and return to custody of the convict, is not violative of the con- stitutional guaranty "that no person shall be deprived of his liberty without due proc- ess of law," and "that no warrant shall issue but upon probable cause, supported by oath or affirmation," since, being a convict at large by executive clemency, which he has accepted on conditions included there- in, the convict, upon violation of such condi- tions, is merely an escaped convict, and not entitled to invoke such constitutional guar- anty. Re Ridley, 26: no, 106 Pac. 549, 3 Okla. Grim. Rep. 350. b. As to right of action or defense. (1) Of action. '(a) In general. (See also same heading in Digest L.R.A. 1-10.) Against employer. 574. An employee is not deprived of his recourse to the courts by an employees' in- surance act which provides that an em- ployer of five or more workmen who pays a certain premium into the state insurance fund, and posts certain notices to this effect in his place of business, shall be relieved of liability to respond in damages to an em- ployee for injury, except in case of wilful or statutory negligence, and which provides further for a board of awards to hear and determine questions concerning the payment 578 CONSTITUTIONAL LAW, II. b, 7. of claims, and for an appeal from their de- termination in cases where the right of the claimant is denied upon any ground affect- ing the basis of the claim. State ex rel. Yaple v. Creamer, 39: 694, 97 N. E. 602, 85 Ohio St. 349. (b) Against railroad companies or carriers. (See also same heading in Digest L.R.A. 1-70.) Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 3, b. For fires. 575. A statute imposing an absolute double liability upon a railroad company which sets out fire along its right of way by the operation of its trains does not de- prive it of its property without due process of law, or deprive it of the equal protection of the laws. Jensen v. South Dakota C R. Co. 35: 1015, 127 N. W. 650, 25 S. D. 506. (Annotated) 576. A statute allowing a railroad com- pany which is subject to double damages for setting out fire or killing stock, to ten- der a fixed sum as compensation, and pro- viding that, in case the property owner re- fuses to accept the tender and recovers a less sum by suit than that tendered, the company shall be liable only for actual damages, and shall recover its costs, does not unconstitutionally deprive the company of its property or the equal protection of the laws, because it allows double damages in case the recovery equals the amount ten- dered. Jensen v. South Dakota C. R. Co. 35: 1015, 127 N. W. 650, 25 S. D. 506. For injury to stock. See also supra, 576. 577. A statute imposing an absolute double liability upon a railroad company for killing stock on its right of way, where it fails to fence its track, does not deprive it of its property without due process of law. or deprive it of the equal protection of the laws. Jensen v. South Dakota C. R. Co. 35: 1015, 127 N. W. 650, 25 S. D. 506. (Annotated) (2) Of defense. (See also same heading in Digest L.R.A. 1-10.) Vested right in defense of limitation, see supra, 65. As to right to notice and hearing, see infra, II. b, 7, c. 578. The striking of so much of the de- fense in an action for divorce and alimony as states a defense to the application for divorce, for failure to obey an order for the payment of temporary alimony, and the refusal to permit defendant to defend ex- cept as to the amount of alimony, violates his constitutional right to due process of law, especially where he shows by affidavit Digest 1-52 L.R.A. (N.S.) that he was unable to comply with the order for temporary alimony. McNamara v. McNamara, 27: 1062, 126 N. W. 94, 86 Neb. 631. (Annotated) 579. An attorney cannot constitutionally be compelled to pay into court money al- leged to have been collected for his client, and not paid over, as a condition to the right to defend on the merits a summary proceeding to compel its payment, since he would thereby be deprived of due process of law. White v. Ward, 18: 568, 47 So. 160, 157 Ala. 345. 580. A statute which permits one apply- ing for the registration of a land title to dismiss the application at any time before final decree is entered, upon such, terms as may be fixed by the court, cannot be held to violate Minn. Const, art. 1, 8, declar- ing that there shall be a remedy for every wrong, on the ground that it precludes a final adjudication of the defendant's claim of .title by adverse possession. Peters v. Duluth, 41: 1044, 137 N. W. 390, 119 Minn. 96. 581. An attempt to deprive one accused of crime of the defense of insanity is inef- fectual under constitutional provisions guarantying due process of law and trial by jury. State v. Strasburg, 32: 1216, 110 Pac. 1020, 60 Wash. 106.. c. Notice and hearing. (See also same heading vn Digest L.R.A. 1-10.) As. to mode of serving process, see supra, 538-543. Right of applicant for liquor license to hear- ing on question of fitness, see INTOXI- CATING LIQUORS, 72. Right to notice and hearing before being assigned to colored school, see STAT- UTES, 30. Construction of statute so as to give op- portunity for hearing, see STATUTES, 227. See also supra, 551. 582. A defendant who has taken an ap- peal from a judgment against him, to an appellate court, having jurisdiction of the parties and the subject-matter, and against whom a default judgment is rendered by such appellate court, is not denied due pro- cess of law, although at the time of the rendering of such judgment he was detained in custody, and no special notice was given him that the matter would be taken up on that day, and a motion to strike out the verification of the account sued upon was pending. Griggs v. Hanson, 52: 1161, 121 Pac. 1094, 86 Kan. 632. (Annotated) 583. Permitting an administrative board which acts only by consent of the parties interested, to take testimony without notice to either party, and to give notices by mail, does not deprive the parties of due process of law. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 584. That the act of public authorities CONSTITUTIONAL LAW, II. b, 7. 579 in forbidding the casting of sawdust from a particular mill into a particular stream is not a general regulation does not make it a judicial' act, which will entitle the mill owner to a hearing. Com. v. Sisson, i: 752, 75 N. E. 619, 189 Mass. 247. 585. That a proceeding for the re-estab- lishment of lost record titles to real estate may be invoked where there is no known adverse claim, so that it is substantially an ex parte application, does not destroy its judicial nature so that jurisdiction cannot be conferred upon the courts, or so as to de- prive it of the character of due process of law. Title & Document Restoration Co. v. Kerrigan, 8: 682, 88 Pac. 356, 150 Cal. 289. 586. A railroad company is not entitled to a hearing upon the question of the passage of an ordinance requiring it to light its street crossings. Pittsburg, C. C. & St. L. R. Co. v. Hartford City, 20: 461, 82 N. E. 787, 170 Ind. 674. 587. A statute providing for the destruc- tion of noxious weeds upon land of a non- resident at his expense, after merely posting notice requiring their destruction on the property, does not deprive him of his prop- erty without due process of law, if notice of the expense must be mailed to him, and where, if the claim is not paid within thirty days, it will be presented to the county com- missioners, before whom he can contest its validity before the cost is assessed against him. Wedemeyer v. Crouch, 43: 1090, 122 Pac. 366, 68 Wash. 14. (Annotated) 588. A statute which imposes the cost in- curred by an entomological commission in inspecting and treating trees, shrubs, and plants for insects and plant diseases upon the owner of the property whose premises are inspected, and gives him twenty days within which to pay such cost, and, in the event of his failure, making it a lien upon the property, is not invalid on the ground that it authorizes the cost of the proceed- ing to be taxed against his property with- out notice to him or opportunity to ques- tion the amount thereof. Balch v. Glenn, 43: 1080, 119 Pac. 67, 85 Kan. 735. Removal from office. . See also OFFICERS, 69, 70. 589. There is no property right in a public office, so as to require notice and a hearing before a removal therefrom, under a constitutional provision that no one shall be deprived of property without due process of law. State ex rel. Hamilton v. Grant, i: 588, 81 Pac. 795, 14 Wyo. 41. 590. An order of the governor removing from office an important officer, under a statute giving the governor power to remove only "upon satisfactory proof," does not .af- ford due process where there was less than an hour's notice of the hearing and the gov- ernor acted in part upon personal informa- tion which the officer had no opportunity to meet, and where the officer was given no op- portunity to present the evidence of his witnesses or testify fully himself, or be heard by counsel. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. Digest 1-52 L.R.A.(N.S.) Administration of estates. 591. The legislature may within reason- able bounds, where probate proceedings are in rein determine what shall constitute sufficient notice of the commencement of proceedings for the settlement of an estate, to give the court jurisdiction and to ap- prise those interested in the estate that the court will administer and ultimately dis- tribute the property among the persons interested, without infringing the constitu- tional requirements of due process of law. Barrette v. Whitney, 37: 368, 106 Pac. 522, 36 Utah, 574. 592. A statute pertaining to the grant of administration upon the estates of deceased persons, which provides for no notice or ci- tation to heirs and creditors, but which contains reasonable provisions for the pro- tection and distribution of such estates, is not void as failing to provide for due proc- ess of law. Alabama, G. S. R. Co. v. Hill, 43: 236, 76 S. E. 1001, 139 Ga. 224. 593. A statute providing for the taking of an absentee's ^/roperty and administering it when he is alive, without his knowledge or consent, and in a proceeding to which he is not a party, and of which he has no notice, is void as depriving him of his prop- erty without due process of law. Grandy v. Kennedy, 4:944, 52 S. E. 635, 104 Va. 826. (Annotated) In eminent domain. 594. Failure of public authorities to es- tablish, in a proceeding to condemn proper- ty for public use, the necessity of the taking as a basis for assessment of damages, or to accord the owner a hearing on that ques- tion unless he raises it on his own initia- tive, does not deprive him of his property without due process of law. Board of Water Comrs. v. Johnson, 41: 1024, 84 Atl. 727, 86 Conn. 151. 595. A statute providing for condemna- tion of a right of way for an irrigation ditch must provide for notice to the person whose land is to be taken of the hearing for fixing the damages, and it is not sufficient that notice is provided of the time for appoint- ment of the appraisers. Sterritt v. Young, 4: 169, 82 Pac. 946, 14 Wyo. 146. (Annotated) 596. Failure of a statute authorizing a municipal corporation to close streets and alleys, to provide for the submission to the court of the question whether or not such closing is for a public purpose, will not ren- der the statute unconstitutional as a taking of private property without due process of law, since the court will assume that there was no intention to deprive it of control of the matter. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. (Annotated) As to insane persons. See also supra, 568, 569. 597. One cannot be permanently confined in a hospital for the insane without suf- ficient notice of the proceedings, and an op- portunity to defend. Re Allen, 26: 232, 73 Atl. 1078, 82 Vt. 365. (Annotated). 580 CONSTITUTIONAL LAW, II. l>, 7. 598. An order of a court of probate for the removal of an alleged insane person to a hospital for the insane is void where no notice is given to him of the hearing, and no finding is made as to certain facts on the existence of which the statute makes the removal depend. Re Allen, 26: 232, 73 Atl. 1078, 82 Vt. 365. 599. Commitment of one to an insane hos- pital on the certificates of physicians not appointed by the court, without any inde- pendent investigation by the court, or giv- ing the alleged insane person an opportunity to defend, is invalid. Re Allen, 26: 232, 73 Atl. 1078, 82 Vt. 365. i 600. A statutory provision for a court of inquiry to determine whether or not one committed to a hospital for the insane on the certificate of physicians is a public charge will be construed as requiring notice to him, although it does not expressly so provide, and therefore the statute cannot be held invalid as authorizing a commitment on the certificate of physicians without a hearing. Re Allen, 26: 232, 73 Atl. 1078, 82 Vt. 365. 601. A statute providing that all per- sons confined as insane shall be entitled to the benefit of the writ of habeas corpus, upon the hearing of which the question of insanity shall be decided, and if the judge or court shall decide that the person is in- sane, such decision shall be no bar to the issuing of the writ the second time when- ever it shall be alleged that such person has been restored to reason, is not violative of the due process clause of the state or Federal Constitutions, although the statute does not require notice preliminary to a tcommitment to the asylum. Ex parte Dang- aey, 44: 389, 128 Pac. 699, 35 Okla. 180. 602. The right of one committed to a hos- pital for the insane, upon being acquitted of the charge of murder on the ground of insanity, to apply for a writ of habeas corpus to establish his sanity, and conse- quent right to instant discharge, satisfies his constitutional right to a hearing, so as to preserve the constitutionality of the statute authorizing his commitment. People ex rel. Peabody v. Chanler, 25: 946, 89 N. E. 1109, 196 N. Y. 525. 603. A statute providing that one acquit- ted of murder on the ground of insanity may be committed to the state lunatic asy- lum until he becomes sane, if the court deems his discharge dangerous to the public peace and safety, is not unconstitutional on the theory that it does not provide for notice and a hearing, since a defendant who pleads insanity and seeks to establish it at the trial has notice, in view of the statute authorizing such commitment, that the evi- dence may reveal a condition of insanity which will require it in his case. People ex rel. Peabody v. Chanler, 25: 946, 89 N. E. 1109, 196 N. Y. 525. (Annotated) As to liens. See also supra, 556, 557. 588; infra, 611. 604. A statute making a drainage assess- ment take priority over existing mortgages, without notice vo the mortgagees out of pos- Digest 1-52 L.R.A.(N.S.) session, does not deprive them of their prop- erty without due process of law. Baldwin v. Moroney, 30: 761, 91 N. E. 3, 173 Ind. 574. (Annotated) Assessments for public improvements. See also supra, 411-415, 604. 605. The hearing required by the con- stitutional provision for due process of law is not afforded by a municipality to which is delegated power to assess the cost of public improvements on property benefit- ed thereby, where the body charged with the duty of conducting the hearing receives written protests and hears oral arguments, but refuses to take testimony, on the theory that it has no power to afford relief. Den- ver v. State Invest. Co. 33: 395, 112 Pac. 789, 49 Colo. 244. 606. Failure to provide for notice to the mortgagee of the amount of a special as- sessment on the mortgaged property, and the time for hearing objections thereto, does not render the statute invalid as to him, as depriving him of property without due process of law, although enforcement of the assessment may impair his lien. Fitch - patrick v. Botheras, 37: 558, 130 N. W. 163, 150 Iowa, 376. Garnishment. 607. The provision of Ga. act August 13, 1904, that the situs of a debt due to a non- resident shall be, for the purpose of attach- ment, at the residence of the garnishee with- in the state, does not deprive the debtor of his property without due process of law, where the debt sought to be reached consists of wages earned by a nonresident locomotive engineer without the state and in the state of . his residence while in the employ of a railway company having a line of railway in both states. Harvey v. Thompson, 9: 765, 57 S. E. 104, 128 Ga. 147. Seizure, sale, or destruction of prop- erty. Police power as to, see infra, 650-653. 608. A statute permitting the appoint- ment of an agent for an absent heir, who shall have power to sell the estate without notice to the heir if it remains in his hands a certain time unclaimed, and pay the pro- ceeds into the county treasury, subject to the claim of such heir, does not deprive the heir of his property without due pro- cess of law, since the sale is merely part of the proceeding by which the heir acquires his property under the inheritance laws. Bickford v. Stewart, 34: 623, 104 Pac. 263, 106 Pac. 1115, 55 Wash. 278. 609. The provisions of the Idaho act of February 6, 1899 (Laws 1899, p. 389), au- thorizing the summary seizure and destruc- tion of gambling devices, do not deprive a ckizen of his property without due process of law, in violation of Idaho Const, art. 1, 13. Mullen v. Mosely, 12: 394, 90 Pac. 986, 13 Idaho, 457. (Annotated) 630. The confiscation and sale at auction of nets used in fishery contrary to the pro- vision of a statute may be authorized by the legislature without according the owner notice or a hearing; he has a sufficient remedy in an action to recover the prop- CONSTITUTIONAL LAW, II. b, 7. 581 erty, or damages for its wrongful destruc- tion, or by way of injunction to restrain its sale. Daniels v. Homer, 3: 997, 51 S. E. 992, 139 N. C. 219. (Annotated) 611. Permitting a humane society officer, in his discretion, to take possession of neg- lected and abandoned animals, and create, without notice, a lien upon them for their care, violates the constitutional guaranty of due process of law, the statute not pro- viding for the payment of any surplus to the owner upon the sale of the property in satisfaction of the lien, and no .public ne- cessity existing for the seizure. Jenks v. Stump, 15: 554, 93 Pac. 17, 41 Colo 281. (Annotated) 612. The confiscation and destruction of milk intended to be sold within a city, which has been drawn from cows which have nat been subjected to the tuberculin test, as required by a municipal ordinance, does not unconstitutionally deprive the owner of his property without due process of law. Adams v. Milwaukee, 43: 1066, 129 N. W. 518, 144 Wis. 371. (Annotated) 613. A municipal ordinance authorizing the summary destruction of milk brought into the city for sale, which has been drawn from cows which have not been sub- jected to the tuberculin test, as required by law, neither violates the constitutional rights of the citizens, nor amounts to a taking of property without due process of law, although milk which may be subject to destruction thereunder may in fact be fit for food purposes. Nelson v. Minne- apolis, 29: 260, 127 N. W. 445, 112 Minn. 16. (Annotated) 614. A statute which creates a commis- sion with power to inspect premises, and, in case of the discovery of certain insect or plant diseases which render the destruction of the trees, shrubs, or plants advisable, to mark those so infested, and notify the own- er, who shall within a stated time destroy the same, is not invalid because no proce- dure or method is provided by which the owner may contest the necessity for the de- struction of the property. Balch v. Glenn, 43: 1080, 119 Pac. 67, 85 Kan. 735. d. As to evidence; 'witnesses. (See also same heading m Digest L.R.A. 1-10.) 615. The legislature has power to estab- lish rules of evidence, where not in conflict with the Constitution or rights guaranteed by it. Banks v. State, 2: 1007, 52 S. E. 74, 124 Ga. 15. 616. A constitutional provision for a re- view by the supreme court of the reasonable- ness and lawfulness of an order made by the state corporation commission, upon the evidence adduced before the commission, does not deny due process of law because, on a review upon removal by the commis- sion, additional evidence is not allowed, but the court is required to act on the evidence already taken, where the court is not bound by the findings of the commission, and the Digest 1-52 L.R.A.(N.S.) party affected had the right on the original hearing to introduce evidence as to all ma- terial points. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 617. The provision of Ohio Rev. Stat. 4427-6, that the character of an alleged trust or combination may be established by proof of its general reputation as such, is unconstitutional and void in that it pre- scribes a rule of evidence which is violative of the guaranty contained in U. S. Const, art. 15, 1, that no person shall be deprived of "life, liberty, or property" without due process of law. Hammond v. State, 15: 906, 84 N. E. 416, 78 Ohio St. 15. 618. A legislative attempt to confer pon the court the power in a criminal case to appoint experts in case they are needed, and acquaint the jury with the fact, who shall prepare themselves and give testimony in the case, is invalid, as tending to de- prive the accused of du process of law. People v. Diekerson, 33: 917, 129 N. W. 199, 164 Mich. 148. (Annotated) Burden of proof. 619. The legislature has authority to pro- vide, in appeals from orders of the state railway commission, that the burden of proof shall rest upon the party seeking to set aside the decision of the commissioners, to show by clear and satisfactory evidence that the order is unreasonable and unjust, and that the record shall be prima facie evidence that the order is just and reason- able. Chicago, R. I. & P. R. Co. v. Nebras- ka State R. Com. 26: 444, 124 N. W. 477, 85 Neb. 818. 620. The attempt by the legislature to re- quire a person libeled to prove malice in order to secure substantial damages, if he demands and secures a retraction, un- constitutionally abridges his privileges and immunities, and takes away his constitu- tional remedy for injury to reputation. Byers v. Meridian Printing Co. 38: 913, 95 N. E. 917, 84 Ohio St. 408. Prima facie evidence; presumptions. See also supra, 140-142, 277. 621. Neither 3 of Minnesota Gen. Stat. 1913, 8719, making the general reputation of a place as being a bawdyhouse prima facie evidence of the existence of the nui- sance, nor 5 of such statute, creating a presumption of knowledge on the part of all persons having property interest in the property in or about such house, constitutes interference with property rights without due process of law, since they effect merely a change in a matter of procedure. State ex rel. Robertson v. Lane, 52: 932, 147 N. W 951, 126 Minn. 78. 622. A statute providing that departing from a hotel or boarding house, or removing, or surreptitiously attempting to remove, baggage therefrom, without paying for ac- commodations, is prima facie evidence of in- tent to defraud, does not deprive accused of any constitutional right. Re Milecke, 21: 259, 100 Pac. 743, 52 Wash. 312. (Annotated) 623. Neither the equal protection of the 582 CONSTITUTIONAL LAW, II. b, 8. laws nor due process of law is denied by Miss. Code 1906, 1985, under which, in actions against railway companies for dam- age done to persons or property, proof of in- jury inflicted by the running of the locomo- tives or cars is made prima facie evidence of negligence. Mobile, J. & K. C. R. Co. v. Turnipseed, 32: 226, 31 Sup. Ct. Rep. 136, 219 U. S. 35, 55 L. ed. 78. (Annotated) 624. Statutory provisions for a commit- ment of an alleged insane person on the cer- tificate of physicians, and an inquisition as to whether or not he is a public charge, make the certificate merely prima facie evi- dence of insanity, subject to be overthrown by countervailing evidence, and the statute does not therefore deprive the alleged in- sane person of his liberty without due pro- cess of law. Re Allen, 26: 232, 73 Atl. 1078, 82 Vt. 365. Ctmclnsiveness. Statute fixing evidence required from per- sons claiming personalty used in main- taining bawdyhouse, see EVIDENCE, 2198. 625. A statute requiring cotton sold in a cotton yard or warehouse to be reweighed upon its removal from the same, in the presence of the owner or purchaser from such owner, and making the weight as thus determined conclusive between the owner and the purchaser, is unconstitutional as denying the owner or purchaser, when sued by the other, due process of law. Taylor v. Anderson, 51: 731, 137 Pac. 1183, 40 Okla. 316. (Annotated) 626. A statute making the acknowledg- ment of receipt of property tor transporta- tion, contained in a bill of lading, conclusive evidence of the fact so stated, in favor of bona fide holders for value, does not pre- scribe a rule of evidence, so as to interfere with the constitutional power of the courts to investigate facts, and deprive the carrier of its property without due process of law. Yazoo & M. V. R. Co. v. Bent 22: 821, 47 So. 805, 94 Miss. 681. (Annotated) S. Criminal matters. As to illegal competition and combination, see supra, 461-463. As to delinquent children, see supra, 357, 358. Denial of appeal, see supra, 547. Confinement of insane person acquitted of crime, see supra, 568, 569. Equal protection and privileges as to, see supra, II. a, 8. Due process as to remedies and procedure, see supra, 570-573. Police power as to, see infra, II. c, 5. As to arrest without warrant, see ARREST, I. d. Infringement of constitutional rights by change of rule as to what constitutes larceny, see COURTS, 304. Right to public trial, see CRIMINAL LAW, 83-86. Digest 1-52 L.R.A.(N.S.) Right to speedy trial, see CRIMINAL LAW, 87-94. Right to meet witnesses, see CRIMINAL LAW, 95-103. As to self-crimination, see CRIMINAL LAW, 107-121, 131; WITNESSES, II. c. Right of accused to be present, see CRIMINAL LAW, 125-130. Necessity of indictment or information, see CEIMINAL LAW, II. d. Former jeopardy, see CRIMINAL LAW, II. g. Guaranty of trial without prejudice, see JUDGES, 8, 9. See also supra, 499, 502, 581. 627. No constitutional right to liberty or property is interfered with, or unconstitu- tional privilege or immunity granted, by a statute making it a penal offense to pay less than a prescribed minimum wage to school teachers. Bopp v. Clark, 52: 493,' 147 N. W. 172, Iowa, . 627a. Rendering the proprietor of a Chi- nese restaurant criminally liable for per- mitting woman under the age of twenty-one years to enter it or be served with food or drink there deprives him of his liberty and property without due process of law, and denies him the equal protection of the laws. Re Opinion of the Justices, 34: 604, 94 N. E. 558, 207 Mass. 601. (Annotated) 628. A provision that upon conviction for violation of a statute providing that all rooms except drug stores where intoxicat- ing liquors are sold shall be kept closed on Sunday, the license shall be revoked and the rooms and premises not used for the saL, storage, or manufacture of intoxicat- ing liquors for one year from the date of conviction, does not deprive a licensed liquor dealer so convicted of his property without due process of law. State v. Woodward, 30: 1004, 69 S. E. 385, 68 W. Va. 66. (Annotated) 629. The Federal constitutional guaranty of due process of law does not prevent the placing of an accused who has been indicted for murder and convicted of voluntary man- slaughter, again on trial for murder on a new trial obtained by him on his own motion, under a state constitutional pro- vision that no person shall be put in jeopardy of life or liberty more than once for the same offense, save on his own motion for a new trial after conviction, or in case of mistrial. Brantley v. State, 22: 959, 64 S. E. 676, 132 Ga. 573. 630. A statute providing that a prisoner in a state prison for a term less than life, who shall escape, shall be punishable by imprisonment for a term equal to the term he is serving, the second term of imprison- ment to commence from the time he would otherwise have been discharged, does not deny due process of law to persons charged with a violation thereof. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. (Annotated) CONSTITUTIONAL LAW, II. c, 1. 583 c. Police poiver. 1. In general. (See also same heading in Digest L.R.A.. 1-10.) As affecting commerce, see COMMERCE, 28, 44, 48. Judicial review of, see COURTS, I. c, 2, b. Drainage of lands as exercise of police pow- er, see DRAINAGE DISTRICTS, 2. Taking of property without compensation in exercise of police power, see EMINENT DOMAIN, 213. Right under, to extend limits of municipal- ity along toll road, see EMINENT DO- MAIN, 215. Police power of municipality, see MUNICIPAL CORPORATIONS, II. c. Legislature as judge of when and how police power shall be exercised, see STATUTES, 16. Tax on dogs as police measure, see TAXES, 42. See also supra, 152, 575, 576. 631. The provision of U. S. Const, art. 14, 1, against any state depriving any person of life, liberty, or property without due process of law, is not a limitation upon the police power of the state to pass and enforce such laws as, in its judgment, will inure to the health, morals, and genera 1 wel- fare of the people. Meffert v. Packer, 1:811, 72 Pac. 247, 66 Kan. 710, affirmed in 25 Sup. Ct. Rep. 790, 195 U. S. 625, 49 L. ed. 350. 632. Legislation under the police power is subject to constitutional limitations, some of which are- express, and others are im- plied. ' State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 633. The police power extends to the en- actment of all laws which, in contemplation of the Constitution, are reasonably neces- sary to promote the welfare of the public as distinguished from the interests of a particular class. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 634. The legislature cannot, properly, by police regulations, deal with a matter not in reason forming a proper subject therefor, nor deal with a proper subject by means which are clearly unreasonable. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 635. Police regulations which are reason- able are not inhibited by the Constitution, though invading its letter, since the exer- cise of police power is so essential to the public welfare that it is presumed that such exercise within > reasonable limitations was not intended to be prohibited, but, on the contrary, to be guaranteed, by the general declared purpose of civil government and the manifest purpose of the Constitution. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 636. Legislative authority under the po- lice power cannot properly extend beyond such reasonable interferences as tend to Digest 1-52 L.R.A.(N.S-) preserve and promote the enjoyment gen- erally of those "unalienable rights" with which all men are endowed, and to secure which "governments are instituted among men." Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 637. The measure of the reasonableness of a police regulation is not necessarily what is best, but what is fairly appropriate to the purpose under all the circumstances. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 638. The provisions of an act to establish a bureau of vital statistics, and to provide for a prompt and permanent registration of all births and deaths occurring within the state, which require a physician or midwife in attendance upon the birth of a child to certify, without compensation, as to legiti- macy or illegitimacy, and, if legitimate, to supply information in regard to the parents of the child, are an unreasonable and arbi- trary exercise of the police power, and therefore unconstitutional and void. State v. Boone, 39: 1015, 95 N. E. 924, 84 Ohio St. 346, 97 N. E. 975, 85 Ohio St. 313. (Annotated) 639. The legislature may under its police power forbid parties who are not members of secret societies, to wear the badges belonging to such societies. Hammer v. State, 24: 795, 89 N. E. 850, 173 Ind. 193. 640. The legislature cannot, under its po- lice power, prohibit, or authorize the voters of the county to prohibit, the establish- ment within the county limits, by a pri- vate charitable corporation, of an indus- trial school for colored children. Columbia Trust Co. v. Lincoln Institute, 29: 53, 129 S. W. 113, 138 Ky. 804. (Annotated) 641. The police power does not extend to the exclusion of young women from restau- rants kept by Chinese persons, since such a regulation has no direct relation to the evil to be remedied. Re Opinion of the Justices, 34: 604, 94 N. E. 558, 207 Mass. 601. Assessments. Due process of law as to, see supra, 411- 415, 605, 606. For laying water pipes in city, see PUBLIC IMPROVEMENTS, 68. 642. If a state contains marshy lands of such considerable area that their reclama- tion for agricultural purposes will redound to the public welfare, the legislature may provide for their reclamation, under the po- lice power, and secure the necessary funds by taxation of the lands benefited by the drainage. Billings Sugar Co. v. Fish, 26: 973, 106 Pac. 565, 40 Mont. 256. ( Annotated ) 642a. The legislature may, under the po- lice power, provide for the assessment of a fixed proportion of the cost of a public sanitary sewer upon abutting property by the front-foot rule, so that each parcel pays : or the cost of its local service sewer with- out regard to the benefits actually accru- ng to the property. Chicago, M. & St. P. R. Co. v. Janesville, 28: 1124, 118 N. W. 182, 137 Wis. 7. 584 CONSTITUTIONAL LAW, II. c, 2, 3. 2. State engaging in business. (See also same heading in Digest L.R.A. 1-70.) As to functions and powers of state, see supra, I. g. 3. As to use, enjoyment, and destruc- tion of property. (See also same heading in Digest L.R.A. 1-10.) Regulation of cutting of trees on wild land as exercise of police power, see EMI- NENT DOMAIN, 182. See also supra, 521. 643. The police power does not extend to placing a fire house upon a city lot, in violation of a restrictive building covenant to which the property is subject, without terminating the covenants by purchase or condemnation. Allen v. Detroit, 36: 890, 133 N. W. 317, 167 Mich. 4-64. 644. The state may, under its police power, take away the absolute right of a man to alienate land which has, under the statute, been dedicated to the purpose of a homestead. Bushnell v. Loomis, 36: 1029, 137 S. W. 257, 234 Mo. 371. (Annotated) Intoxicating liquors. Due process of law as to, see supra. 423, 529. Police power to regulate sale of liquor, see infra, 739-743. 645. The police power does not extend to depriving a citizen of the right to have intoxicating liquor in his possession for his own use. Com. v. Campbell, 24: 172, 117 S. W. 383, 133 Ky. 50. (Annotated) 646. There is no inherent right in a pur- chaser of intoxicating liquor to offer it to another in a saloon as an act of hospitality, which cannot be taken away under the po- lice power of the state. Tacoma v. Keisel, 40: 757, 124 Pac. 137, 68 Wash. 685. Highways. Equal protection and privileges as to, see supra, 157-162, 253-255. Due process of law as to, see supra, 522. See also infra, 685. 647. The police power of a municipal cor- poration does not extend to requiring a railroad company which has elevated its tracks over a street crossing, to light the subway, although it is darkened by the tracks, since persons passing through the subway encounter no danger from the oper- ation of the railroad. Chicago v. Pennsyl- vania Co. 36: 1081, 96 N. E. 833, 252 111. 185. (Annotated) 648. The state may, in the exercise of its police power, impose upon railroad compa- nies whose lines intersect public highways laid out after the construction of the rail- road, the uncompensated duty of construct- ing and maintaining at such crossing all *ueh safety devices as are reasonably neces- sary for the protection of t'le traveling pub- lic. State ex rel. Minneapolis v. St. Paul, Digest 1-52 I*R.A.(N.S.) |M. & M. R. Co. 28: 298, 108 N. W. 261, 98 Minn. 380. 649. A provision in a general city ordi- nance regulating the use of motor vehicles, that "it shall be unlawful for any person operati-ng a motor cycle to carry another person on said machine in front of the op- erator," is a valid exercise of the police power of the city in respect to the safety of travelers on the city streets and persons carried on motor cycles. Re Wickstrum, 42: 1068, 138 N. W. 733, 92 Neb. 523. Nuisances; seizure and destruction of property. Due process of law as to, see supra, 383, 608-614. 650. The emission of dense smoke by yard and switch engines, being caused by the use of soft coal therein, a prohibition of such use within a populous city is substantially related to, and directly tends to, the pre- vention of a nuisance, the emission of dense smoke, and is an exercise of the police power of the state, within constitu- tional limits. State v. Chicago, M. & St. P. R. Co. 33: 494, 130 N. W. 545, 114 Minn. 122. 651. A statute creating an entomological commission, and providing for the extermi- nation of San Jose scale and other orchard pests, and authorizing such commission to enter upon premises and inspect them for insect or plant diseases, and, in case of dis- covery of any to mark same and notify the owner, and requiring him within a certain time to destroy or treat the same in accord- ance with the rules and regulations of the commission and in the event of his failure so to do authorizing the commission to do this, the expense thereof to be taxed against the owner, is a valid exercise- of the police power of the state. Balch v. Glenn, 43: 1080. 119 Pac. 67, 85 Kan. 735. 652. The anti-gambling act (Idaho Laws 1899, p. 390, 4), which authorizes the sum- mary seizure and destruction of gambling devices, is a constitutional and legitimate exercise of the police power of the state for the suppression and prevention of crime, and for the protection of the public morals and the welfare of the state. Mullen v. Mosely, 12: 394, 90 Pae. 986, 13 Idaho, 457. 653. Public authorities have the right to require the destruction of a cow shown by a practically infallible test to have tuber- culosis and to be 'a serious menace to the public health, without compensation to the owner and without judicial inquiry. New Orleans v. Charouleau, 18: 368, 46 So. 911, 121 La. 890. (Annotated) Animals. Due process of law as to, see supra, 525, 526. See also supra, 653. 654. The legislature, in declaring the failure of a sheep owner to report within fifteen days to the sheep inspector the out* break of any contagious disease in his Hocks to be a misdemeanor, is exercising the police powers of the state; and, in an action against the owner of the infected herd to recover damages for the communi- CONSTITUTIONAL LAW, II. c, 4. 585 c;i t ion of the disease to plaintiff's sheep, it need not be alleged that defendant knew that the act complained of was unlawful. North v. Woodland, 6: 921, 85 Pac. 215, 12 Idaho, 50. 655. A statute requiring the levy and col- lection, as of other taxes, of a per capita tax on dogs upon the real estate upon which the dogs may have been kept and harbored, notwithstanding the owner of such real es- tate had no knowledge that the dogs had been harbored thereon, and was not consent- ing thereto, is unconstitutional and void, it being an arbitrary and unreasonable exer- cise of police power, not required by the general welfare. Mirick v. Gims, 20: 42, 86 N. E. 880, 79 Ohio St. 174. (Annotated) Protection of fish. Equal protection and privileges as to, see supra, 287, 288. Due process of law as to,* see supra, 527, &28L 6"j(J. The state may, under its police pow- er, for the protection of food fish in the streams of the state, prohibit the deposit of mill refuse therein. State v. Haskell, 34: 286, 79 Atl. 852, 84 Vt. 429. 657. The state is owner of the fish in its streams, and as such, under its police pow- er, may enact legislation to protect the propagation of fish from injury from plac- ing in, or allowing the entrance into, streams of any matter of any kind dele- terious to the propagation of fish. State v. Southern Coal & Transp. Co. 43:401, 76 S. E. 970, 71 W. Va. 470. 658. Section 6a, chap. 62, serial 2768, W. Va. Code of 1906, making it an offense to put into a stream sawdust or any matter deleterious to the propagation of fish, is a valid exercise by the state of its police pow- er, and an operator of a coal mino can as- sert no right contrary to its enactment, to drain sulphur or mine water from his mine into a stream, deleterious to the propaga- tion of fish, though such stream be the nat- ural receptacle of such drainage, or it be impracticable to drain the mine otherwise. State v. Southern Coal & Transp. Co. 43: 401, 76 S. E..970, 71 W. Va. 470. Signs. 659. The police power of a municipal cor- poration does not authorize it to limit the height of advertising signs erected over structures on private property, where such limitation is not necessary to the safety of the public, and is not applicable to struc- tures of other kinds. People ex rel. M. Wineburgh Advertising Co. v. Murphy, ai: 735, 88 N. E. 17, 195 N. Y. 126. ( Annotated ) Building regulations. Equal protection and privileges as to, see supra, 178, 179. Due process of law as to, see supra, 379- 381, 518. 660. An ordinance making it unlawful to locate, build, or construct any retail store in any block used exclusively for residence purposes without the written consent of a majority of the property owners, according to frontage, on both sides of the street in Digest 1-52 L.R.A.(N.S.) the block in which the building is to be located, cannot be sustained as an exercise of the police power, there being nothing in- herently dangerous to the health or safety of the public in conducting a retail store. People ex rel. Friend v. Chicago, 49: 438, 103 N. E. 609, 261 111. 16. (Annotated) 661. A municipal corporation authorized by its charter to control the construction and repair of all houses may, in the exercise of police power, require the procurement of a permit from it as a prerequisite to the erection of a building within the city limits. Fellows v. Charleston, 13: 737, 59 S. E. 623, 52 W. Va. 665. (Annotated) 662. The state may, in the exercise of the police power, limit the height of buildings to be erected in cities when, in its judgment, the public health or public safety so require. Welch v. Swasey, 23: 1160, 79 N. E. 745, 193 Mass. 364. (Annotated) 663. An unconstitutional infringement of the guaranties of U. S. Const. 14th Amend., which cannot be upheld as an exercise of the police power, results from a municipal ordinance passed under the authority of Va. Laws 1908, p. 623, which requires the com- mittee on streets, upon request of the own- ers of two thirds of the abutting property, to establish a building line on the side of the square on which such property abuts, not less than 5 nor more than 30 feet from the street line. Eubank v. Richmond, 42: 1123, 33 Sup. Ct. Rep. 76, 226 U. S. 137, 57 L. ed. 156. (Annotated) 4. Restrictions on contracts, business, and occupations; health. a. In general. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 5. Due process of law as to, see supra, II. b, 4. Forbidding transportation of natural re- sources beyond state, see COMMERCE, 37. Imposition of fee for privilege of conduct- ing brewery business where products are imported from other state, see COMMERCE, 114. See also supra, 237; infra, 768. 664. The contract rights conferred upon a corporation by the grant of its franchise do not interfere with exercise by the state of its police power. Pennsylvania R. Co. v. Ewing, 49: 977, 88 Atl. 775, 241 Pa. 581. 665. The marking of fruit packed for shipment, with the locality in which it is grown, cannot be required under the police power of the state. Ex parte Hayden, i: 184, 82 Pac. 315, 147 Cal. 649. (Annotated) Health generally. Due process as to, see supra, 350, 352, 372. 586 CONSTITUTIONAL LAW, II. c, 4. Quarantine and inspection laws as regula- tion of commerce, see COMMERCE, 16- 20. Prohibiting keeping, for shipment out of state, of unwholesome meats, see COM- MERCE, 109, 110. Sufficiency of title of statute conferring right to exercise police power, see STATUTES, 92. See also supra, 642a, 653, 662. ^ 667. The police power extends to filling, against the protest of their owners, and assessing the enpense upon the property benefited, lots located in or near the busi- ness portion of a city, which are covered by flood tide, and because of inability to drain them are a menace to the public health and a hindrance to the growth of the city, where the tract is of considerable extent, and the proposed improvement will allow proper drainage and the construction of needed streets. Bowes v. Aberdeen, 30: 709, 109 Pac. 369, 58 Wash. 535. (Annotated) 668. A municipal corporation may, under its police power, forbid further interments in a cemetery located in thickly settled communities within its limits, although such cemeteries are not shown to be in fact nuisances. Laurel Hill Cemetery v. San Francisco, 27: 260, 93 Pac. 70, 152 Cal. 464. (Annotated) 669. Requiring a certificate of freedom from venereal disease as a condition to mar- riage is within the police power of the state. Petersen v. Widule, 52: 778, 147 N. W. 966, 157 Wis. 641. (Annotated) 670. A law providing that the upper berth in a sleeping car shall be open or closed, at the option of the occupant of the lower berth, when not occupied, cannot be justi- fied as essential to the promotion of the public health and comfort, or as necessary thereto in the judgment of the legislature, else its operation would not have been made optional. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. Pollution of waters; water supply. 671. No constitutional property right is invaded by absolutely prohibiting the cast- ing of any obnoxious matter into any run- ning stream of the state. People v. Hupp, 41 : 792, 123 Pac. 651, 53 Colo. 80. 672. The legislature may, under its police power, forbid the discharge of unpurified sewage into a river from which a public drinking-water supply is taken, without in- fringing the constitutional rights of the ri- parian owner, although no injury to the public health or comfort is actually shown. Durham v. Eno Cotton Mills, 7: 321, 54 S. E. 453, 141 N. C. 615. (Annotated) 673. A long-continued use of a river as an outlet for raw sewage will not prevent the legislature from forbidding further use of it for such purpose, under its police power. Shelby v. Cleveland Mill & Power Co. 35: 488, 71 S. E. 218, 155 N. C. 196. 674. A prohibition of bathing in ponds from which municipal water supplies are taken is not so unnecessary or unreason- able a matter of law that the court will declare that it does not come within the Digest 1-52 L.R.A.(N.S.) police power of the state. State v. Morse, 34: 190, 80 Atl. 189, 84 Vt. 387. Use of flag. Equal privileges as to, see supra, 124, 125, 251, 252. Due process of law as to, see supra, 523, 524. See also FLAG. 675. A state statute forbidding the des- ecration of the flag of the United States by using it for advertising purposes tends to foster sentiments of patriotism, and is not vulnerable to the objection that it is not calculated to promote the welfare of society. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. (Annotated) Lodging houses and tenements. Due process of law as to, see supra, 464, 465. 676. The regulation and maintenance of tenements, lodging houses, and boarding houses is a proper subject for legislative in- terference; but the degree ot regulation permissible varies greatly according to cir- cumstances; and a police regulation in re- gard thereto which would not be excessive as to a large city might be unreasonable if applied to the state at large. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 677. There must be reasonable ground, having regard for the public welfare, for legislative interference, under the police power, with the mode of constructing, equipping, and maintaining tenement houses, and the means adopted to accomplish the purpose in view must be reasonably neces- sary; and as to what is reasonable, the ju- dicial authority will defer to legislative wis- dom in doubtful cases; but where the in- terference is plainly excessive, it is the duty of the court to repel the encroachment. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 678. A general police regulation down to minute particulars, of the construction and maintenance of tenement houses, rendering it impracticable to safely comply therewith in the absence of any official approval of plans and specifications in advance and con- taining no provision for such approval, is unreasonable. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. (Annotated) 679. If the penal feature of a police regu- lation is so severe, having regard to the nature of the regulation, as efficiently to in- timidate property owners from using their property at all for tenements or lodging- house purposes, and from resorting to the courts for redress or defense as to their hon- estly supposed rights, it is highly unreason- able. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 680. A law regarding the construction of tenement houses, requiring street courts to be 6 feet in width between the lot line and the opposite wall of the building under all conditions, and in all localities to be at least 6 feet wide, is an unreasonable in- terference. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 681. A police regulation making every habitation, regardless of locality, a board- CONSTITUTIONAL LAW, II. c, 4. 587 ing or lodging house in case the proprietor I allows a person not a member of his family ' to have a sleeping room in the house, and regulates the maintenance of the house as regards light, location of beds, and equip- ment with water-closets, is an unreasonable interference. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. Horse racing. Equal protection and privileges as to, see supra, 246. 682. The police power extends to the regulation of horse racing. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. (Annotated) Carriers. Equal protection and privileges as to, see supra, II. a, 3, b. Due process of law as to generally, see supra, 437-448. Due process of law as to right of action or defense, see supra, II. b, 7, b, (1) (b). See also infra, 688. 683. A statute prohibiting the issuance, j acceptance, and use of free transportation j is a proper and reasonable exercise of the police power of the state. State v. Martyn, 23: 217, 117 N. W. 719, 82 Neb. 225. 684. A statute giving the occupant of the lower berth in a sleeping car control of the upper berth in case of its not being oc- cupied, if justifiable as an exercise of the police power, is unreasonable where such control is conferred without requiring com- pensation to be made therefor. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 685. An ordinance requiring an interurban railroad company to stop its cars at any street intersection where any person may desire to enter or alight is not a valid exercise of the police power, as such regu- lation is solely for the convenience and comfort of the public, without reference to public peace, safety, or good order. Excel- sior v. Minneapolis & St. P. S. R. Co. 24: 1035, 122 N. W. 486, 108 Minn. 409. 686. An absolute requirement that com- mon carriers shall maintain, as to, all trains transporting any live stock by railroad with- in the state, an average minimum rate of speed of not less than 20 miles per hour from time of loading until arrival at desti- nation, deducting only such reasonable time as is necessary for unloading to feed, wa- ter, and rest and reloading, is an unrea- sonable exercise of the police power of the state. Downey v. Northern P. R. Co. 26: 1017, 125 N. W. 475, 19 N. D. 621. (Annotated) Sunday law. Equal protection and privileges as to, see supra, II. a, 5, b. See also supra, 450, 541. Due process of law as to, see supra, 450, 451. 687. In the exercise of its police power, a state may prohibit the conduct of business on Sunday. State v. Dolan, 14: 1259, 92 Pac. 995, 13 Idaho, 693. Digest 1-52 L.R.A.(N.S.) b. Particular occupations and business. (See also same heading in Digest L.R.A. 1-10,) As to regulation of manufacture and sale, see infra, II. c, 4, d. See also supra, 111. 688. The state may, under its police pow- er, forbid drumming or soliciting business or patronage for any hotel, boarding or bath house, or medical practitioner, on the trains or at the depots of any common carrier in the state, without unconstitutionally re- stricting the liberty of citizens, or depriv- ing owners of such places of the equal pro- tection of the laws. Williams v. State, 26: 482, 108 S. W. 838, 85 Ark. 464. ( Annotated ) Loan brokers. Equal protection and privileges as to, see supra, 257. 689. The state may, in the exercise of the police power, license and regulate chat- tel mortgage and salary loan brokers. San- ning v. Cincinnati, 25: 686, 90 N. E. 125, 81 Ohio St. 142. Real estate agents. 690. The police power extends to requir- ing contracts to compensate one for procur- ing a purchaser for real estate to be in writing. Selvage v. Talbott, 33: 973, 95 N. E. 114, 175 Ind. 648. (Annotated) Bakeries. 691. The state may, under its police pow- er, forbid the establishment or operation of bakeries in a room the floor of which is more than 5 feet below the level of the surface of the adjacent ground. Benz v. Kremer, 26: 842, 125 N. W. 99, 142 Wis. 1. (Annotated) Billiard and pool rooms. Equal protection and privileges as to, see supra, 243. Due process of law as to, see supra, 424. 692. The police power of a state justifies a municipal ordinance prohibiting the keep- ing of billiard or pool tables for hire or public use, but permitting hotel keepers to maintain a billiard or pool room in which their regular aHd registered guests may pay. Murphy v. People, 41: 153, 32 Sup. Ct. Rep. 697, 225 U. S. 623, 56 L. ed. 1229. Trading stamp business. 693. An act of the legislature which at- tempts to prohibit the business of giving and receiving what are commonly known as trading stamps is an unreasonable in- terference with a lawful business not within the police power of the legislature, and is in conflict with 1 of the Bill of Rights and the 14th Amendment to the Federal Con- stitution. State ex rel. Hartigan v. Sperry & Hutchinson Co. 49: 1123, 144 N. W. 795, 94 Neb. 786. (Annotated) 694. The business of a trading stamp company is not a process of advertising the merchants with whom contracts are made which will take it out of the operation of the police power. District of Columbia v. Kraft, 30: 957, 35 App. D. C. 253. CONSTITUTIONAL LAW, II. c, 4. Dancing schools; dance halls. Equal protection and privileges as to, see supra, 244, 245. Due process of law as to, see supra, 422. 695. A license for police regulation can- not be required for a place where dancing is taught, when it is not required for places where dancing is indulged in where com- pliance with the sanitary Code will render it safe and sanitary, and it is im- material that children are taught there a portion of the time. People ex rel. Duryea v. Wilber, 27: 357, 90 N. E. 1140, 198 N. Y. 1. (Annotated) 696. The legislature may, under its po- lice power, forbid the owner, keeper, or manager of a "dance house" to permit per- sons under twenty-one years of age to be .or remain therein. State v. Rosenfield, 29: 331, 126 N. W. 1068, 111 Minn. 301. Insurance. Impairment of contract obligations, see infra, 797-800. 697. The police power of the state does not extend to reducing the compensation of general agents of insurance companies under existing contracts. Boswell v. Security Mut. L. Ins. Co. 19: 946, 86 N. E. 532, 193 N. Y. 465. 698. The police power extends to compel- ling life insurance companies to maintain uniform rates among the same classes of applicants, although the effect is to stifle competition between different companies for business. People v. Hartford L. Ins. Co. 37: 778, 96 N. E. 1049, 252 111. 398. 699. The police power does not extend to requiring insurance companies doing busi- ness in cities to pay a portion of their earn- ings to a firemen's relief association for the benefit of disabled firemen and their fami- lies. ^Etna F. Ins. Co. v. Jones, 13: 1147, 59 S. E. 148, 78 S. C. 445 (Annotated) Banking. Equal protection and privileges as to, see supra, 280-283. Due process of law as to, see supra, 435, 436. 700. The business of banking is so inti- mately related to the public welfare that it properly falls within the scope of the police power of the state, exercisable by the legislature. Schaake v. Dolley, 37: 877, 118 Pac. 80, 85 Kan. 598. 701. The police power of a state extends to the regulation of the banking business, and even to its prohibition, except on such conditions as the state may prescribe. Noble State Bank v. Haskell, 32: 1062, 31 Sup. Ct. Rep. 186, 219 U. S. 104, 55 L. ed. 112. 702. The levy and collection, under a state statute, from every bank existing under the state laws, of an assessment based upon average daily deposits, for the purpose of creating a depositors' guaranty fund to se- cure the full repayment of deposits in case any such bank becomes insolvent, is a valid exercise of the police power, and cannot be regarded as depriving a solvent bank of its liberty or property without duo pro- cess of law. Noble State Bank v. Haskell, Digest 1-52 L.R.A.(N.S.) 32: 1062, 31 Sup. Ct. Rep. 186, 219 U. S. 104, 55 L. ed. 112. Itinerant or transient dealers. Equal protection and privileges as to, see supra, 260, 261. Due process as to, see supra, 513. 703. Merely requiring itinerant venders of patent or proprietary medicines to se- cure a license before engaging in business does not tend to promote the public health, morals, or safety, and therefore cannot be upheld as a police measure. People, Use of State Bd. of 'Health v. Wilson, 35: 1074, 94 N. E. 141, 249 111. 195. 704. The imposition of a license fee of $100 per month upon trafisient merchants who purport to sell ba-nkrupt or damaged stocks cannot be upheld as an exercise of the police power to prevent fraud, in limi- tation of the constitutional property rights of the merchants. People ex rel. Moskowitx v. Jenkins, 35: 1079, 94 N. E. 1065, 202 N. Y. 53. (Annotated) Employment agency. 705. A municipal corporation cannot, un- der its police power, single out employment agencies, and make them liable to punish- ment for wilfully deceiving or making wilful misrepresentations to persons seeking em- ployment through them from whom they take a fee. Spokane v. Macho, 21: 263, 98 Pac. 755, 51 Wash. 322. (Annotated) 706. Requiring the procurement of a li- cense to conduct an employment agency, is within the police power, and constitutes no deprivation of a constitutional right to car- ry on business. People ex rel. Armstrong v. Warden of New York City Prison, 2: 859, 76 N. E. 11, 183 N. Y. 223. (Annotated) Physicians. Equal protection and privileges as to, see supra, 279. Due process of law as to, see supra, 432. 707. The state, in the exercise of its police power, in the interests of the health, good government, general welfare, and morals of the people, may prescribe the qualifications of persons desiring to prac- tise medicine, and may create a board whose duty it shall be to hear and deter- mine any complaint made against any per- son holding a physician's license, and re- voke such license for any cause provided for in the statute. Meffert v. Packer, 1:811, 72 Pac. 247, 66 Kan. 710, affirmed in 25 Sup. Ct. Rep. 790, 195 U. S. 625, 49 L. ed. 350. (Annotated) 708. A statute requiring a license as a condition to treating the sick has sufficient relation to the protection of the public health to be within the police power of the legislature, which cannot be controlled by the courts, and is not so unreasonable or capricious that it can be declared not to be an honest exercise of such power, al- though it may interfere with the right of the patient to choose his own method of treatment, and of the practitioner to pursue a calling of his choice. State v. Smith, 33: 179, 135 S. W. 465. 233 Mo. 242. 709. The police power extends to the creation of a board of medical examiners CONSTITUTIONAL LAW, II. c, 4. 589 whose license one must secure before prac- tising medicine, and to the definition of the practice of medicine. Smith v. Peo- ple, 36: 158, 117 Pac. 612, 51 Colo. 270. 710. Forbidding physicians to advertise special ability to treat or cure chronic or incurable diseases is within the police power. State Medical Board v. McCrary, 30: 783, 130 S. W. 544, 95 Ark. 511. (Annotated) 711. The state may, under its police pow- er, prohibit physicians from soliciting pa- tients by paid age.-ts. Thompson v. Van Lear, 5: 588, 92 S. W. 773, 77 Ark. 506. Druggists. Due process of law as to, see supra, 503. 712. The legislature may properly, in the exercise of the police power nact a stat- ute creating a state board of pharmacy, pre- scribing its duties, and providing for the li- censing of pharmacists, and imposing fees for the issuance and renewal of licenses. State v. Hovorka, 8: 1272, 110 N. W. 870, 100 Minn. 249. 733. Restricting the sale of domestic rem- edies or perfectly harmless medicinal prep- arations to licensed pharmacists is with- in the police power of the state, and does not infringe the constitutional rights of the citizens. State Bd. of Pharmacy v. Mat- thews, 26: 1013, 90 N. E. 966, 197 N. Y. 353. Undertakers. Due process as to, see supra, 426-428. 714. The state may, under its police pow- er, require undertakers to secure licenses before they engage in the practice of their profession. People v. Ringe, 27: 528, 90 N. E. 451, 197 N. Y. 143.' 735. The police power does not justify the adoption of a rule requiring a knowl- edge of embalming as a condition to receiv- ing a license as undertaker, by a board of registration in embalming which has power to adopt rules governing the care and dis- position of human dead bodies and the busi- ness of embalming. Wyeth v. Thomas, 23: 147, 86 N. E. 925, 200 Mass. 474. (Annotated) 716. Service in and knowledge of the busi- ness of embalming cannot be required un- der the police power as a qualification for engaging in the business of undertaking. State v. Rice, 36: 344, 80 Atl. 1026, 115 Md. 317. c. Matters bettveen master and servant. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 5, c. Due process of law as to, see supra, II. b, 4, b, 2. See also supra, 440. 717. An ordinance requiring street car companies to provide stools for motormen is within the police power, and not unreason- able. Silva v. Newport, 42: 1060, 150 S. W. 1024, 150 Ky. 781. (Annotated^ 718. The legislature may, under its police Digest 1-52 L.R.A.(N.S.) power, fix an age limit below which boya may not be employed to labor. Lenahan v, Pittston Coal Min. Co. 12: 461, 67 Atl. 642,. 218 Pa. 311. 719. Requiring mine owners to keep at the mine bandages, oil, stretchers, and blank- ets for use of injured employees is within, the police power, and does not infringe the constitutional rights of the owner. Wolf v. Smith, 9: 338, 42 So. 824, 149 Ala. 457. Hours of labor. Equal protection and privileges as to, see supra, 301-311. Due process of law as to, see supra, 477- 485. Impairment of contract obligations, see in- fra, 781. State statute regulating, as interference- with interstate commerce, see COM- MERCE, 497. Judicial notice as to expediency of, see EVI- DENCE, 30. 720. The legislature may, under its po- lice power, forbid a railroad company to keep employees who despatch or space trains by telephone or telegraph, on duty more than eight hours in each twenty-four. People v. Erie R. Co. 29: 240, 91 N. E. 849,. 198 N. Y. 369. Employer's liability. Equal protection and privileges as to, see- supra, 316-329. Denial of due process or interference with' freedom of contract as to, see supra,. 467-473. Impairment of contract obligations by stat- ute as to, see infra, 780. 721. A factory act giving a right of ac- tion for injuries or death to servants, when the absence of any of the safe- guards provided by the act shall have di- rectly contributed, notwithstanding contrib- utory negligence on the part of the serv- ants, is within the police power of the state, and constitutional. Caspar v. Lewin, 49: 526, 109 Pac. 657, 82 Kan. 604. 722. A statute which provides that an em- ployer of five or more workmen may pay a certain premium into a state insurance fund and, upon posting notices to this effect in his place of business, thereby be relieved from liability for injuries to his employees except in cases of wilful or statutory negli- gence, and provides further that in case of his failure to accept the benefit of such act he shall be liable to his employees for in- juries resulting from negligence, and in such action the defenses of assumption of risk, contributory negligence, and fellow- servant rule shall not be available to him, is a valid and constitutional enactment authorized under the police power of a state. State ex rel. Yaple v. Creamer, 39: 694, 97 N. E. 602, 85 Ohio St. 349. 723. The police power of the state extends to forbidding railroad companies which have been made liable for injury to employees through the negligence of fellow servants, from contracting with them for a relief or indemnity plan which will relieve the rail- road company from a portion of the burden.' 590 CONSTITUTIONAL LAW, II. c, 4. cast upon it by the statute. McGuire v. Chicago, B. & Q. R. Co. 33: 706, 108 N. W. 902, 131 Iowa, 340. (Annotated) Clearance card. 724. The duty imposed upon an employer by a statute requiring him, upon the request of a discharged employee, to furnish a writ- ten statement as to the true cause for the discharge, is not a police regulation, and is an interference with the personal liberty guaranteed to every citizen by the state and Federal Constitutions. Atchison, T. & S. F. R. Co. v. Brown, 23: 247, 102 Pac. 459, 80 Kan. 312. d. Regulation of manufacture and sales. (See also same heading in Digest L.R.A. 1-10.) Due process as to, see supra, II. b, 4, d. Discrimination in prices. 725. The prevention of discrimination in particular localities, in the price of com- modities in general use, for the purpose of destroying the business of a competitor by selling such commodities at a lower rate in such locality than is charged for the same elsewhere, is within the police power of the state. State v. Drayton, 23: 1287, 117 N. W. 768, 82 Neb. 254. 726. The police power extends to forbid- ding discrimination in prices in different sections of the state, for the purpose of driving competitors out of business. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. (Annotated) Sale of nursery stock. As to equal protection and privileges, see supra, 200. Due process of law, as to, see supra, 514. 727. A statute granting a board of agri- culture unlimited discretion to refuse per- mits for the sale of nursery stock within the state, on the ground of the applicant's want of integrity or financial responsibil- ity, is not a valid exercise of the police power. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93/22 S. D. 23. Linseed oil. 728. The state may under its police power prohibit the sale of linseed oil which does not answer the test for purity recognized by the United States Pharmacopoeia. Amer- ican Linseed Oil Co. v. Wheaton, 41: 149, 125 N. W. 127, 25 S. D. 60. (Annotated) Food. Equal protection and privileges as to, see supra, 247, 248, 258, 259. Due process as to, see supra, 500, 501. Prohibiting keeping for shipment out of state of unwholesome meat, see COM- MERCE, 109, 110. 729. A statute prohibiting the manufac- ture or sale of oleomargarin of any shade or tint of yellow, although such shade is produced by natural and essential ingred- ients which are not deleterious or injurious to health, is invalid as an exercise of the police power and therefore unconstitution- Digest 1-52 I,.R.A.(N.S.) al. State v. Hanson, 40: 865, 136 N. W. 412, 118 .Minn. 8'>. 730. A pure food statute which has the effect to prohibit the mixture of distilled vinegar and sugar vinegar, both of which are wholesome articles of food, in such pro- portions as to obtain a color similar to that of cider vinegar, is not so unreasonable as to constitute an improper exercise of the police power. People v. William Henning Co. 49: 1206, 103 N. E. 530, 260 111. 554. (Annotated) 731. The fact that selling milk is a law- ful trade or business does not exempt it from reasonable police regulations. St. Louis v. Grafeman Dairy Co. i: 936, 89 S. W. 617, 190 Mo. 492. 732. Requiring milk dealers to register with the health commissioner and pay a registration fee is a valid police regulation. St. Louis v. Grafeman Dairy Co. i : 936, 89 S. W. 617, 190 Mo. 492. (Annotated) 733. Seizure of necessary milk for in- spection without a warrant may be author- ized under the police power. St. Louis v. Liessing, i: 918, 89 S. W. 611, 190 Mo. 464. 734. The police power of the state ex- tends to the prohibition of the sale of milk from cows fed by still slop, although there is nothing to show that such milk is not a pure and wholesome article of food, since the court may assume that the legislature had sufficient information to justify the be- lief that milk from cows fed on such food had ample opportunity to become impreg- nated with elements dangerous to public health. Sanders v. Com. i: 932, 77 S. W. 358, 117 Ky. 1. (Annotated) 735. The police power extends to the pro- hibition of the sale of milk containing any preservative, although there may be pre- servatives which are not deleterious to health. St. Louis v. Schuler, i : 928, 89 S. W. 621, 190 Mo. 524. (Annotated) 736. A municipal corporation may, in the exercise of its police power, prescribe as a test of the purity and wholesomeness of milk brought into the city for sale that it be drawn from cows previously subjected to the tuberculin test and found free from disease. Nelson v. Minneapolis, 29: 260, 127 N. W. 445, 112 Minn. 16. 737. A statute providing that no milk shall be received, held, kept, offered for sale, or delivered in a certain city without a per- mit, in writing, from the board of health, and subject to the conditions thereof, is a reasonable and a valid exercise of the police power, and violative of no provision of the Constitution, either state or Federal. Peo- ple ex rel. Lodes v. Health Department, 13: 894, 82 N. E. 187, 189 N. Y. 187. 738. Imposing a penalty on a milk dealer for having in possession, with intent to use them ; any bottle or jar of less capacity than is marked on it, is a valid exercise of the police power, and does not unconstitu- tionally deprive him of his property rights. Chicago v. Bowman Dairy Co. 17: 684, 84 N. E. 913. 234 111. 24. CONSTITUTIONAL LAW, II. c, 5. 591 Intoxicating liquors; soft drinks. Equal protection ajid privileges as to, see supra, 202a, 265-277. Due process of law as to, see supra, 508- 512. Regulations as to liquors not affecting sale thereof, see supra, 645, 646. Police regulation of intoxicating liquors generally, see INTOXICATING LIQUORS, I. 739. The power to prohibit the sale of in- toxicating liquors in the interest of the pub- lic safety, welfare, good order, and happi- ness of the people during certain prescribed periods by the proper legislative body is no longer an open question. State v. Gallo- way, 4: 109, 84 Pac. 27, 11 Idaho, 719. 740. The control of the liquor business is within the police power of the state, and restrictions which might lawfully be im- posed upon it might be obnoxious as an illegal restraint of trade when applied to other pursuits or avocations. State v. Calloway, 4: 109, 84 Pac. 27, 11 Idaho, 719. 741. The police power does not extend to the prohibition of the sale of harmless soft drinks, even though, under the guise of sell- ing such drinks, some persons may attempt to sell those which are intoxicating. Tol- liver v. Blizzard, 34: 890, 137 S. W. 509, 143 Ky. 773. (Annotated) 742. The legislature, when making a gen- eral restraint upon the traffic in intoxicat- ing liquors, may, under its constitutional power to regulate the manufacture and sale of such liquor, and its police power, pro- vide for the manufacture of nonintoxicating malt beverages containing alcohol, and re- quire them to be sold by the manufacturer in specified receptacles and quantities di- rectly to the consumer, who shall not be al- lowed to drink them on the premises where sold, without infringing the rights of liber- ty or property of persons desiring to deal in such beverages. Com. v. Henry, 26: 883, 65 S. E. 570, 110 Va. 879. 743. Prohibiting the sale of a nonintoxi- cating malt liquor which retains the alco- holic principle as a distinctive force, and which is sold and used as a substitute for beer, is a legitimate exercise of the police power, and does not violate the constitution- al rights of the owner. State v. Fargo Bot- tling Works Co. 26: 872, 124 N. W. 387, 19 N. D. 396. (Annotated) Tickets. Equal protection and privileges as to, see supra, 218, 219. Due process as to, see supra, 504-507. Impairment of contract obligations by stat- ute as to, see infra, 792. 744. The legislature may lawfully pro- hibit the transaction of railroad-ticket brok- erage business for the protection of travel- ers from fraud. State v. Thompson, 4: 480, 84 Pac. 476, 47 Or. 492. (Annotated) 745. The prohibition of a resale of tickets to places of public amusement at an ad- vance over the original price paid for them is not within the police power of the state, since such sale is not immoral or injurious to Digest 1-52 L.R.A.(N.S.) public welfare. Ex parte Quarg, 5: 183, 84 Pac. 766, 149 Cal. 79. (Annotated) 746. Forbidding the sale of theater tickets at an advance over the price at the box office, and prohibiting the establishment of agencies for such sale, are not within the police power of the state. People v. Steele, 14: 361, 83 N. E. 236, 231 111. 340. Sales in bulk. Equal protection and privileges as to, see supra, 249, 250. Due process of law in regulating, see supra, 530, 531. 747. A "bulk sales law" which provides that a transfer of a stock of goods, or a portion thereof, otherwise than in the ordi- nary course of trade, shall be presumed fraudulent and void, unless the transferee can show that previous thereto he obtained from the transferrer a sworn statement of his creditors, and notified each of such creditors of whom he had knowledge or could, in the exercise of reasonable dili- gence, have obtained knowledge, of the in- tended transfer, and that such purchase was made by him in good faith and for a fair consideration actually paid, is a valid exer- cise of the police power, and is not violative of the due process clause nor the equal pro- tection clause of the 14th Amendment of the Federal Constitution, nor does it violate any of the provisions of the state Consti- . tution. Noble v. Ft. Smith Wholesale Grocery Co. 46: 455, 127 Pac. 14, 34 Okla. 662. 748. Requiring a retail merchant to file notice of intention to sell the whole or a large part of his stock seven days prior to the sale, under penalty of the sale being voidable at the instance of creditors, is within the police power of the state. 5Toung v. Lemieux, 20: 160, 65 Atl. 436, 79 Conn. 434. (Annotated) S. As to vices,' crimes. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 8. Due process of law as to, see supra, II. b, 8. See also supra, 641, 696. 749. A statute authorizing seizure and forfeiture of personal property used, with the knowledge of the owner, in connection with the maintenance of a bawdyhouse, is not invalid as constituting an unreasonable exercise of the police power with respect to personal property used in the maintenance of such a house. State ex rel. Robertson v. Lane, 52: 932, 147 N. W. 951, 126 Minn. 78. 750. The state may, under its police pow- er, upon the testimony received at the trial, summarily deprive one acquitted of mur- der because of insanity, of his liberty, for the protection of the public, while his insan- ity and dangerous proclivities continue. (Per Rich, J.) People ex rel. Peabody v. Chanler, 25: 946, 89 N. E. 1109, 196 N. Y. 525. 592 CONSTITUTIONAL LAW, II. d. d. .Freedom of speech, press, and (See also same heading in Digest L.R.A. 1-70.) Refusal of injunction to restrain publica- tion of boycotting circular by labor organization, see INJUNCTION, 156. Partial invalidity of statute invading right of free speech, see STATUTES, 70, 71. 751. The "freedom of the press" consists in a right, in the conductor of a newspaper. to print what he chooses, without previous license, but subject to be held responsible therefor as anyone else for a similar publi- cation. Levert v. Daily States Pub. Co. 23: 726, 49 So. 206, 123 "La. 594. 752. Freedom of speech or of the press does not include the right to publish, what purports to be a signed petition, as express- ing the sentiment, not of the publishers, but of the signers, after the signers have dis- owned and repudiated it, as having been signed under a misapprehension. Schwartz v. Edrington, 47: 921, 62 So. 660, 133 La. 235. 753. The provision of Minn. Const, art. 1, 3, that the liberty of the press shall forever remain inviolate, is not infringed by an act forbidding, in the interest of pub- lic morals, the publication of the details of criminal executions. State v. Pioneer Press Co. 9: 480, 110 N. W. 867, 100 Minn. 173. 754. No unconstitutional interference with freedom of speech is effected by enjoining the placing by a labor union of the name of a concern on its "We Don't Patronize" list, in furtherance of a boycott against it. American Federation of Labor v. Buck's Stove & Range Co. 32: 748, 33 App. D. C. 83. 755. No unconstitutional interference with liberty or freedom of speech is effected by forbidding the placing of scurrilous matter on packages placed in the mail. Warren v. United States, 33: 800, 183 Fed. 718, 106 C. C. A. 156. 756. 'A statute requiring a report of a civic league upon a candidate for public of- fice to state in full all the facts on which it is founded, together with the names and ad- dresses of the persons furnishing it, violates a constitutional guaranty of freedom of speech. Re Harrison, 16: 950, 110 S. W. 709, 212 Mo. 88. 757. A statute declaring that candidates for judicial and educational offices shall not be nominated, indorsed, recommended, criti- cized, or referred to in any manner by any political party, convention, or primary, vio- lates a constitutional provision declaring that every person may freely speak, write, and publish on all subjects, being responsi- ble for the abuse of that liberty. State ex rel. R&gan v. Junkin, 23: 839, 122 N. W. 473. 85 Neb. 1. 758. A statute which requires an employ- 1 er of labor, upon request of a discharged Digest 1-52 L.R.A.(N.S-) employee, to furnish in writing the true cause or reason for such discharge, is re- pugnant to the provision as to free speech in the Bill of Rights, and is invalid. At- chison, T. & S. F. R. Co. v. Brown. 23: 247, 102 Pac. 459 ? 80 Kan. 312. Religions freedom. Reading from Bible in school, generally, see SCHOOLS, 64, 65. 759. Holding Sunday school or religious meetings in a country schoolhouse not to exceed four times a year, in such a manner as not to interfere "with the school work, does not constitute the schoolhouse a place of worship, within the meaning of 4, art. 1, of the Nebraska Constitution, pro- viding that all persons have a natural and indefeasible right to worship God accord- ing to the dictates of their own conscience; and that no person shall be compelled to attend, erect, or support any place of wor- ship against his consent; and no prefer- ence shall be given, by law, to any religious society; nor shall "there be any inter- ference with the rights of conscience. State ex rel. Gilbert v. Dilley, 50: 1182, 145 X. W. 999, 95 Neb. 527. 760. A public school is not converted into a place of worship, which the Constitution protects everyone from being compelled to attend or support, by openiug its exercises by reading from the Bible, singing songs, and repeating the Lord's Praver. Church v. Bullock, 16: C6o, 109 S. W. 115, 104 Tex. 1. 761. Requiring school children to listen to the reading of passages of the King James' version of the Bible, and join in repeating the Lord's Prayer, and in singing hymns, violates their constitutional right to the free exercise and enjoyment of re- ligious profession and worship. People ex rel. Ring v. Board of Education, 29: 442, 92 X. E. 251, 245 111. 334. ' 762. That the casting and reading of horo- scopes is a part of the religious belief of members of the astrological society does not prevent the legislature from forbidding such practice. State v. Neitzel, 43: 203, 125 Pac. 939, 69 Wash. 567. 763. Prohibiting one from curing the sick for hire by means of prayer does not de- prive him of the constitutional right of the free exercise and enjoyment of religious profession and worship, Smith v. People, 36: 158, 117 Pac. 612, 51 Colo. 270. 764. Prohibition of labor on Sunday does not violate the constitutional right to re- ligious freedom, where the Constitution pro- vides that liberty of conscience shall not be construed to justify practices inconsistent with the peace and safety of the state. State ex rel. Temple v. Barnes, 37: 114, 132 N. W. 215, 22 N. D. 18. 765. The constitutional right to religious liberty is not infringed by requiring a certificate of freedom from venereal disease as a condition of marriage. Petersen T. Widule, 52: 778, 147 N. W. 966, 157 Wis. 641. CONSTITUTIONAL LAW, II. e g, 1. 593 e. Natural riglits; implied guaranties. I through the failure of a bank in which they I were deposited, at least where the bond runs (See same heading in Digest L.R.A. 1-10.) to the state, and not to the county. Miller v. Henry, 41 : 97, 124 Pac. 197, 62 Or. 4. (Annotated) 771. One who, under authority of the legislature, which reserves no power of re- /. Guaranties of justice. (See also same heading in Digest L.R.A. 1-10.) As to guaranty of right to life, liberty, and property and due process of law, see supra, II. b. g. Impairing oblinvtion of contracts. 1. As to subject-matter. a. In general ; by statutes or ordinances. (1) Generally. (See also same heading in Digest L.R.A. 1-10.) As to retrospective laws and curative acts, see supra, I. b, 2. As to vested rights, see supra, I. c. By change of by-laws of benevolent societies, ' see BENEVOLENT SOCIETIES, 11; INSUR- ANCE, 112. Federal court following state decision as to whether repeal of ordinance impairs contract rights, see COURTS, 321. 766. The constitutional prohibition of the impairment of contracts does not extend to subjects affecting the health, safety, and general welfare of the public. Grand Trunk W. R. Co. v. South Bend, 36: 850, 89 N. E. 885, 91 N. E. 809, 174 Ind. 203. 767. A law does not impair the obligation of a contract, within the meaning of the Constitution, if neither party is relieved thereby from performing anything of that which he obligated himself to do ; but, if either party is absolved from performance, such obligation is impaired, whether affect- ed directly or indirectly, and only as a re- sult of some modification of the legal pro- ceedings for enforcement. State ex rel. National Bond & S. Co. v. Krahmer, 21:157, 117 N. W. 780, 105 Minn. 422. 768. An unconstitutional impairment of a contract is not effected by the statutory prohibition of the further performance of a contract which is so injurious to the rights and interests of the citizens gener- ally as to justify an exercise of the police power. State v. Missouri, K. & T. R. Co. 5: 783, 91 S. W. 214, 99 Tex. 516. 769. A statute nullifying a contract for the construction of a building for the stat; does not unconstitutionally impair the obli- gation of a contract. Caldwell v. Donaghey, 45: 721, 156 S. W. 839, 108 Ark. 60. (Annotated) 770. A constitutional provision forbidding laws impairing the obligations of contracts does not prevent the legislature from re- leasing the liability of a county treasurer upon his bond for loss of public funds Digest 1-52 L.B.A.(N.S.) 38 peal, constructs a dam for the improvement of the navigation of a stream in order to secure the power to be developed by the dam, has a contract right which is not sub- ject to repeal. State ex rel. Wausau Street R. Co v. Bancroft, 38: 526, 134 N. W. 330, 148 Wis. 124. 772. An ordinance forbidding further in- terments in a cemetery cannot be declared void on the theory that the incorporation of the cemetery company for the purpose of maintaining a cemetery, and its purchase of land for that purpose, constitute a con- tract which cannot be violated. Laurel Hill Cemeterv v. San Francisco, 27: 260, 93 Pac. 70, 152 Cal. 464. 773. The legislature cannot enlarge the dower rights of a widow as against th rights of one who has contracted for & judgment lien on the property of the hus- band in view of the constitutional provision against impairing the obligation of con- tracts, although the judgment is not actu- ally entered until after the statute i^ passed. Davidson v. Richardson, 17: 319, 91 Pac. 1080, 50 Or. 323. Succession tax. (Annotated) Equal protection and privileges as to, see supra, 227-231. Due process of law as to, see supra, 405- 410. 774. The enactment of a state statute subjecting to an inheritance tax the rights of a surviving wife in the community prop- erty does not violate the contract clause of the Federal Constitution, even if such rights, as they existed when the marriage was celebrated, are contractual, so that they may not be essentially changed or modified by subsequent legislation without impair- ing contract obligations. Mofntt v. Kelly, 30: 1179, 31 Sup. Ct. Rep. 79, 218 U. S. 400, 54 L. ed. 1086. Tax deeds and certificates. 775. Any statute which impairs any of the substantial rights secured to the holder of a tax certificate by the existing laws is unconstitutional. State ex rel. National Bond & S. Co. v. Krahmer, 21: 157, 117 N. W. 780, 105 Minn. 422. Banks; deposits. Equal protection and privileges as to, see supra, 280-283. Due process as to, see supra, 435, 436. Police power as to, see supra, 700-702. 776. Contract obligations under a bank's charter which is subject to alteration or repeal are not unconstitutionally impaired by the levy and collection, under a state statute, of an assessment based upon aver- age daily deposits, for the purpose of creat- ing a depositors' guaranty fund to secure the full repayment of deposits in case it or any other bank existing under the state laws becomes insolvent, unless such statute 594 CONSTITUTIONAL LAW, II. g, 1. deprives the bank of liberty or property without due process of law. Noble State Bank v. Haskell, 32: 1062, 31 Sup. Ct. Rep. 186, 219 U. S. 104, 55 L. ed. 112. 777. The obligation of the contract be- tween a savings bank and its depositor is not unconstitutionally impaired by Mass. Laws 1907, chap. 340, providing that de- posits which have remained inactive and unclaimed for thirty years, where the claim- ant is unknown or the depositor cannot be found, shall be paid to the treasurer and receiver general, to be held by him as trus- tee for the tre owner or his legal repre- sentatives. Provident Inst. for Sav. v. Ma- lone, 34: 1129, 31 Sup. Ct. Rep. 661, 221 U. S. G60, 55 L. ed. 899. 778. The contract rights between a bank and its depositor are not unconstitutionally impaired by a statute passed after the dis- appearance of the depositor, permitting the fund to be taken into possession of an ad- ministrator after the depositor has been absent and unheard of for seven years. Sav- ings Bank v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. Limiting interest rates of loan asso- ciation. 779. A building and loan association can- not, upon the ground that it impairs the obligation of existing contracts, question the constitutionality of a statute which limits interest and premium to be charged borrowers to 8 per cent per annum, and provides that in case of the amendmejit of the articles of incorporation all reductions of the rate of interest or premium shall be made to apply to members who have bor- rowed from the association prior to the adoption of the act, where the association has amended its articles to conform to the act; there being sin express provision in the act that in case any association shall fail so to amend its articles, its authority to do business shall be revoked and its affairs wound up. St. John v. Iowa Business Men's Bldg. & L. Asso. 15: 503, 113 N. W. 863, 136 Iowa, 448. Employers' liability. Equal protection and privileges as to, see supra, 316-329. Due process as to, see supra, 467-473. 780. An employers' liability act which provides that any contract or device what- soever, the purpose of which shall be to enable any common carrier to exempt it- self from any liability created by the statute, shall be void, does not, as applied to existing relief department contracts which permit the carrier to set off against its liability under the statute, any sum which it has paid out of its relief fund, violate the provision of the Constitution that no law shall be passed impairing the obligation of contracts, Washington v. At- lantic C. L. R. Co. 38: 867, 71 S. E. 1066, 136 Ga. 638. Regulating hours of labor. Equal protection and privileges as to, see supra, 301-311. Digest 1-52 L.R.A.(N.S.) Due process of law as to, see supra, 477- 485. Police power as to, see supra, 720. 781. The obligation of contracts is not unconstitutionally impaired by a statute forbidding the employment of laborers in manufacturing or repairing establishments more than ten hours per day except in cases of emergency or where public necessity re- quires. State v. J. J. Newman Lumber Co. 45: 851, 59 So. 923, 102 Miss. 802. Spendthrift trusts. Due process of law as to, see supra, 382. 782. No contract right is destroyed by a statute subjecting existing spendthrift trusts to execution, although at the time of their creation all income necessary for the maintenance and education of the bene- ficiary was exempt, where the instrument creating the trust does not expressly de- clare that the income shall be exempt from the claims of creditors. Brearley School v. Ward, 40: 1215, 94 N. E. 1001, 201 N. Y. 358. Compensation of insurance agents. 783. The legislature cannot require the re- duction of the compensation of general in- surance agents under existing contracts in view of the provision of the Federal Con- stitution forbidding the impairment of the obligation of contracts. Boswell v. Securi- ty Mut. L. Ins. Co. 19: 946, 86 N. E. 532, 193 N. Y. 465. Use of another's photograph. Due process of law as to, see supra, 387. 784. The obligation of no contract is im- paired by a statute forbidding the use of a photograph of another person for adver- tising or trade purposes without his written consent, which operates prospectively only. Rhodes v. Sperry & Hutchinson Co. 34: 1143, 85 N. E. 1097, 193 N. Y. 223. Solicitation of business from pas- sengers. 785. A municipal ordinance forbidding the solicitation of business from passengers entering or leaving a railroad station, being a valid exercise of the police power, does not unconstitutionally impair an existing contract between the railroad company and a transfer company, giving it the right to solicit such business within the depot grounds. Seattle v. Hurst, 18: 169, 97 Pac. 454, 50 Wash. 424. (2) As to corporate rights, property, and liabilities. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see supra, II. a, 3. Change of remedy for enforcement of stock- holder's liability, see infra, 807-810. Power of legislature to amend charter, see CORPORATIONS, 37-46. Granting privilege to street railway as con- tract conferring vested right, see STBEET RAILWAYS, 2. See also supra, 41. CONSTITUTIONAL LAW, II. g, 1. 595 786. The power to alter or repeal general laws under which corporations have been or- ganized, reserved by Neb. Const. 1875, art. lib [13], 1, is limited by art. 1, 16, which forbids the passage of any law impair- ing the obligation of contracts; and it does not reserve to the legislature the power to destroy or impair the contracts of third par- ties with such corporations. Omaha Wa- ter Co. v. Omaha, 12: 736, 77 C. C. A. 267, 147 Fed. 1. 787. The imposition of additional require- ments on foreign corporations doing business within a state under a statute, by an amend- ment thereto, does not violate any contract right, where substantially the same duties are imposed on like domestic corporations, and there is, therefore, no discrimination against foreign corporations that had pre- viously complied with the statute, and placed themselves on an equal footing with like domestic corporations. Tarr v. Western Loan & Sav. Co. 21:707, 99 Pac. 1049, 15 Idaho, 741. 788. An alteration of the charter of a corporation, impairing the obligation of the contract, is not effected by authorizing a majority of the stocknolders to consolidate with another, and acquire the interests of dissenting stockholders under the right of eminent domain. Spencer v. Seaboard Air Line R. Co. i : 604, 49 S. E. 96, 137 N. C. 107. Transfer of corporate stock. 789. A statute requiring that a statement of transfers of stock, as soon as shown upon the books of a corporation, shall be filed in the office of the secretary of state by the corporate officers, and which imposes upon the person selling the stock the duty of seeing that this is done in order to re- lieve himself from liability for the corpo- rate debts, does not, as to one owning cor- porate stock at the time of its enactment, impair the obligation of his contract re- sulting from his ownership of the stock, so as to render its provisions obnoxious to the Federal Constitution. Henley v. Myers, 17: 779, 93 Pac. 168, 76 Kan. 723. Regulating rates. Equal protection and privileges as to, see supra, II. a, 5, d. Due process as to, see supra, II. b, 4, d. 790. An order of a water board reducing rates below the amount specified in the mu- nicipal ordinance accepted by the company constructing the waterworks, and which pro- vided that the company should furnish water to private consumers at such prices as might be agreed upon, not exceeding those speci- fied, impairs the obligation of a contract; and its execution will be enjoined. Omaha Water Co. v. Omaha, 12: 736, 77 C. C. A. 267, 147 Fed. 1. 791. A constitutional provision requiring the legislature to pass laws to correct abuses and prevent unjust discrimination in all charges of railroad companies enters into all contracts made with such companies; and therefore a statute forbidding the issu- ance of free passes does not impair the ob- ligation of one who has contracted with the Digest 1-52 L.R.A.(N.S.) company for such pass before the passage of the statute, but after the adoption of the Constitution. State v. Martyn, 23: 217, 117 N. W. 719, 82 Neb. 225. Restricting sale of tickets. Equal protection and privileges as to, see supra, 218, 219. Due process of law as to, see supra, 391, 504-507, 563. Police power as to, see supra, 739-744. 792. A statute prohibiting the sale of railroad tickets through brokers does not impair the contract of the holder of a ticket purchased after the law took effect. State v. Thompson, 4: 480, 84 Pac. 476, 47 Or. 492. Railroad companies generally. Equal protection and privileges as to, see supra, II. a, 3, b. 793. A railroad corporation which, by amendment to its charter, has been empow- ered to increase its capital stock, is not en- titled to do so without the consent of the railroad commission, as required by Minn. Rev. Laws 1905, 2872; and such require- ment does not, when applied to such a cor- poration, infringe either Minn. Const, art. 1, 11, or U. S. Const, art. 1, 10, forbid- ding the enactment of any law impairing the obligation of contracts. State v. Great Northern R. Co. 10: 250, 111 N. W. 289, 100 Minn. 445. ' 794. Rights acquired by a railway com- pany under a valid municipal ordinance conferring trackage rights in the city streets, though subject to the power of the municipality to pass reasonable police regu- lations, are protected by the contract clause of the Federal Constitution from destruc- tion by a subsequent repeal. Grand Trunk W. R. Co. v. South Bend, 44: 405, 33 Sup. Ct. Rep. 303, 227 U. S. 544, 57 L. ed. 633. 795. The obligations of a contract created by a valid municipal ordinance granting to a railway company the right to lay double tracks in one of the city streets are un- constitutionally impaired by the subsequent repeal of so much of the ordinance as re- lates to that part of the street upon which a single track only has actually been built, where the franchise granted by such ordi- nance was single and specific, and was ac- cepted by the company in its entirety, and the company, in reliance thereon, acquired land from the abutting owners with a view to laying a double track as the increase in business demanded, and has actually built the double track for a part of the distance. Grand Trunk W. R. Co. v. South Bend, 44: 405, 33 Sup. Ct. Rep. 303, 227 U. S. 544, 57 L. ed. 633. Telephone companies. 796. A contract between local telephone companies for connection of their lines for through business, which is valid when made, cannot be invalidated by subsequent legis- lation. Home Teleph. Co. v. Sarcoxie Light & Teleph. Co. 36: 124, 139 S. W. 108, 236 Mo. 114. Insurance companies. 707. The property of a mutual insurance company, and the equitable property rights 596 CONSTITUTIONAL LAW, II. g, 2. of its members, are within the guaranties of the state Constitution as regards the in- hibition against laws impairing the obli- gation of contracts, and the inhibition of the national Constitution as regards the equal protection of the laws and depriva- tion of property without due process of lawi Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 798. A law enacted during the life of a mutual insurance company, providing for the distribution of its assets, or a bestowal thereof upo.i another, without consent of all of it members, no authority in that regard being contained in the charter of such com- pany, offends against the provision of the state Constitution inhibiting laws impairing the obligation of contracts, and the inhibi- tion of the national Constitution as regards the equal protection of the laws and depriva- tion of property without due process of law. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 799. There being no vested rights in a mutual benefit certificate prior to the death of a member, the contract rights of one who has undertaken to be bound by all the rules of the society are not impaired by a stat- ute permitting the society to distribute its funds according to its rules and regulations, even though he is thereby deprived of the benefit of a statute providing for extended insurance in case or forfeiture of his policy for nonpayment of premiums, especially where he continues to pa/ his dues without protest after the society has adopted the provisions of the act. Westerman v. Su- preme Lodge, K. of P. 5: 1114, 94 S. W. 470, 196 Mo. 670. 800. There is no impairment of the obliga- tion of a contract by imposing a penalty on an insurance company for not paying a claim within a certain time after it ac- crues. Snyder v. Supreme Ruler, F. M. C. 45: 209, 122 S. W. 981, 122 Tenn. 248. b. By change of decisions. (See also same heading in Digest L.R.A. 1-70.) 801. The provision of the Federal Consti- tution forbidding the enactment of laws im- pairing the obligation of contracts does not apply to a judicial decision overruling a former adjudication, so as to permit a re- covery for services performed subsequent to the former decision, by a person not a party or privy thereto, when such services are rendered illegal by the subsequent decision. Crigler v. Shepler, 23: 500, 101 Pac. 619, 79 Kan. 834. (Annotated) 802. One who has rendered services to the public in performance of a contract author- ized by statute, the constitutional validity of which has been affirmed by the supreme court, is entitled, notwithstanding a subse- quent decision that the act is constitution- ally void, to receive the stipulated compen- sation for such services as he has performed before the filing of the petition in the action which challenges the validity of the con- Digest 1-52 L.R.A. (N.S.) tract. Thomas v. State ex rel. Gilbert, 10: 1112, 81 N. E. 437, 76 Ohio St. 341. 803. The doctrine that if a contract when made was* valid by the laws of the state, as then administered in its courts of jus- tice, its validity and obligation cannot be impaired by any subsequent decision of the courts of the state, altering the construc- tion of the law, does not apply where the making of the contract is in itself a viola- tion of the law ; and therefore has no appli- cation where a corporation which has failed to comply with a statute subjecting to a penalty any corporation undertaking to- transact any business in the state without filing a statement of the location of its place of business within the state and the name of an agent thereat, upon whom proc- ess may be served, seeks to enforce a con- tract entered into subsequently to an earli- er decision of the court to the effect that failure to comply with such statutory re- quirements will not prevent the enforce- ment of a contract. Oliver Co. v. Louis- ville Realty Asso. 51: 293, 161 S. W. 570, 156 Ky. 628. 804. The constitutional provision against impairment of the obligation of contracts- does not prevent municipal bonds from be- ing held invalid because of want of power to issue them, although at the time they were jssued the supreme court of the state had expressed the opinion that municipali- ties might issue such bonds. Swanson v. Ottumwa, 5: 860, 106 N. W. 9, 131 Iowa, 540. ( Annotated ) 2. As to remedies. (See also same heading in Digest L.R.A~ 1-10.) Due process of law as to, see supra, II. b, 7. 805. The remedies for the enforcement of a contract, existing in a state when the contract is made, are a part of its obli- gation, and any repeal or change of any of these remedies, which substantially ob- structs or retards its enforcement or lessens- the value of the agreement, impairs its obli- gation, and is unconstitutional and void; but a repeal or change of remedies, which does not substantially diminish the value of the agreement or seriously retard or ob- struct its enforcement, escapes the inhibi- tion of the Constitution, and is valid. Harrison v. Remington Paper Co. 3: 954, 72 C. C. A. 405, 140 Fed. 385. Subrogation. 806. Making applicable to existing con- tracts of insurance which provide for sub- rogating the insurer to claims of the insured against those who destroy any prop- erty by fire, a statute providing that no- subrogation should be allowed if the fire was caused by a railroad company, would unconstitutionally impair their obligation. British America Assur. Co. v. Colorado & S. R. Co. 41: 1202, 125 Pac. 508, 1135, 52 Colo. 589. (Annotated) CONSTITUTIONAL LAW, II. g, 2. 597 Stockholders' liability. 807. An unconstitutional impairment of contract is effected by the change of a law permitting individual creditors of a corpora- tion to enforce their claims against indi- vidual stockholders to double the par value of their stock, so as to provide one suit in equity in behalf of all creditors, to which all stockholders may become parties, and abate suits pending under the former law Myers v. Knickerbocker Trust Co. i: 1171, 139 Fed. Ill, 71 C. C. A. 199. (Annotated) 808. A statute amending a law for the enforcement of the constitutional double liability of corporate stockholders so as to substitute an action by a receiver for the benefit of all creditors for one by individual judgment creditors directly against stock- holders for their own benefit cannot, under the provisions of the Federal Constitution forbidding the impairment of the obligation of contracts, be made applicable to claims which matured during the existence of the former statute prior to the passage of the amendment. Pusey & J. Co. v. Love, ii : 953, 66 Atl. 1013, 6 Penn. (Del.) 80. 809. The application of Kan. Gen. Stat. 1901, 1302 (repealed by Laws 1903, chap. 152), which substituted for all other meth- ods of enforcing the individual liability of stockholders an action to be brought by a receiver, as against stockholders who became such prior to its enactment, did not con- stitute an impairment of the obligation of the contract arising out of their membership in the corporation, although the new remedy might, under some circumstances, prove somewhat more burdensome than the old, so long as it involved no actual increase in their liability. Henley v. Myers, 17: 779, 93 Pac. 168, 76 Kan. 723. 810. The provision of Kan. Laws 1898, chap. 10, p. 27, which repealed the statu- tory right of a creditor of a corporation to an individual action against a stockholder upon the suspension of the business of the corporation for more than one year, and which abrogated the right of such a creditor to an execution against a stockholder upon the return of an execution unsatisfied upon a judgment against the corporation, and substituted therefor a suit in equity by a receiver, to be appointed after a judgment against the corporation, who is to distribute pro rata among the creditors the sums which he may collect from the stockholders, is unconstitutional and void against con- tracts made and rights which accrued be- fore its passage, since it lessens the value of such contracts, and tends to postpone their enforcement, and thereby to impair their obligation. Harrison v. Remington Paper Co. 3: 954, 140 Fed. 385, 72 C. C. A. 405. (Annotated) Employees' indemnity act. 811. No contract right is impaired by making applicable to existing contracts which are to terminate in the future, an employees' indemnity act which gives the employees an option to take advantage of it, or to stand on their common-law right, Digest 1-52 L.R.A.(N.S.) under the contract, to maintain a,n action to redress an injury received in the employ- ment. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. Taxes and tax deeds. 812. The assurance held out by the state to purchasers at tax sales by N. D. Rev. Laws 1890, as amended in 1891, that the tax-sale certificates and tax deeds issued to them would be prima facie evidence of the regularity of the tax proceedings, although relating to the remedy, constituted a sub- stantial inducement to the purchase, enter- ing into the contract with the state, and so materially affecting its value that it can- not be taken away by subsequent legislation without impairing its obligation. Blake- more v. Cooper, 4: 1074, 106 N. W. 566, 15 N. D. 5. (Annotated) 813. A statute requiring the holder of a tax certificate to give notice of the expira- tion of the redemption period within six years after the entry of the tax judgment, in order to perfect his title, does not im- pair any of the obligations of his contract rights under a former law which provided that such notice could be given at any time after the redemption period. State ex rel. National Bond & S. Co. v. Krahmer, 21: 157, 117 N. W. 780, 105 Minn. 422. 814. A statute requiring the holder of a tax certificate to give notice of the expira- tion of the redemption period within six years after the entry of the tax judgment, in order to perfect his title, and invalidat- ing his certificate in case of failure to do so, does not impair his contract rights by depriving him of the right to refundment, secured to him under a prior law, on judi- cial determination of the invalidity of the certificate, under which notice could be giv- en at any time after the expiration of the redemption period, sinp e not the statute, but his failure to comply with it, deprives him of the right to refundment. State ex rel. National Bond & S. Co. v. Krahmer, 21: 157, 117 N. W. 780, 105 Minn. 422. 815. Eight months and thirteen days be- tween the passage and taking effect of a statute limiting the time within which the holder of existing tax certificates must give notice of the expiration of the redemption period in order to perfect his title, where theretofore the notice could be given at any time, is a reasonable time as to such exist- ing certificates as would be rendered invalid by failure to give the required notice within such period. State ex rel. National Bond & S. Co. v. Krahmer, 21: 157, 117 N. W. 780, 105 Minn. 422. (Annotated) Limitation of actions; contractual limitation. Vested right in, see supra, 65. See also supra, 815. 816. No unconstitutional impairment of an insurance contract is effected, so far as losses which have not yet occurred are con- cerned, by a statute annulling a provision therein limiting the time within which an action may be brought to recover a loss thereon. Smith v. Northern Neck Mut. F. Asso. 38: 1016, 70 S. E. 482, 112 Va. 192. 598 CONSTITUTIONAL LAW, 11. h CONSTRUCTION. 817. No impairment of a contract right to use state bonds in payment for state lands is effected by a statute providing for the payment of the bonds in cash, and limiting the time for presentation to six months after publication of notice, after the expira- tion of which the bonds are not to b recog- nized as valid for any purpose. Tipton v. Smythe, 7: 714, 94 S. VV. 678, 78 Ark. 392. Liens. 818. The obligation of the contract of a mortgagee is not impaired by the passage of a drainage law providing that the assess- ment upon the property shall have priority over the mortgage, without requiring notice of the assessment to be given the mort- gagee. Baldwin v. Moroney, 30: 761, 91 N. E. 3, 173 Ind. 574. h. Guaranty of republican form of government. See also COURTS, 77. 819. A blending of legislative and execu- tive or administrative powers in the same official does not violate the provision of the Federal Constitution guaranteeing to every state a republican form of government. Saratoga Springs v. Saratoga Gas, E. L. & P. Co. 18: 713, 83 N. E. 693, 191 N. Y. 123. 820. The licensing by the legislature of the sale of intoxicating liquors is not in- valid under the clause of the Federal Consti- tution requiring the United States to guar- antee to every state a republican form of government. Allyn's Appeal, 23: 630, 71 Atl. 794, 81 Conn. 534. Curative act. 821. A constitutional amendment vali- dating a statute declared unconstitutional by the courts does not violate the provi- sions of the Federal Constitution guaranty- ing each state a republican form of govern- ment. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. (Annotated) Initiative, referendum, and recall. 822. A republican form of government is not destroyed by taking from the legis- lature and committing directly to the people the power over the enactment of cer- tain kinds of legislation. Kiernan v. Port- land, 37: 332, 111 Pac. 379, 112 Pac. 402, 57 Or. 454, 466. 823. The republican form of government guaranteed by the Federal Constitution does not prohibit the direct exercise of legisla- tive power by the people of a subdivision of a state in strictly local affairs. Ex parte Pfahler, n: 1092, 88 Pac. 270, 150 Cal. 71. ( Annotated ) 824. The legislature cannot confer upon the residents of a municipal corporation the power to enact ordinances by initiative and referendum, where the Constitution delegates to it the legislative power, and merely reserves to the people the right to assemble and apply to those invested with the powers of government for redress of grievances, while it forbids any change in the form of government. Ex parte Farns- Digest 1-52 L.R.A.(N.S.) worth, 33: 968, 135 S. W. 535, 61 Tex. Crim. Rep. 342. (Annotated) 825. The provisions of the initiative and referendum as applied to municipal corpo- rations do not raise the question whether or not a state has a republican form of gov- ernment. State ex rel. Wagner v. Sum- mers, 50: 206, 144 N. W. 730, S. D. . (Annotated) L Rights of assembly and petition. Partial invalidity of statute invading rights of free assembly, see STATUTES, 70, 71. 826. A political convention is an "as- semblage" within the meaning of the con- stitutional provision that the right of the people to assemble to consult for the com- mon good shall never be abridged. State ex rel. Ragan v. Junkin, 23: 839, 122 N. W. 473, 85 Neb. 1. 827. A statute declaring that candidates for judicial and educational offices shall not be nominated, indorsed, recommended, criti- cized, or referred to in any manner by any political party, convention, or primary, vio- lates a constitutional provision declaring that the right of the people peaceably to assemble to consult for the common good, and to petition the government, or any de- partment thereof, shall never be abridged. State ex rel. Ragan v. Junkin, 23: 839, 122 N. W. 473, 85 Neb. 1. 828. The right to sign and circulate a pe- tition for the impeachment of a public offi- cer is conferred by a constitutional provi- sion that the people shall have the right of appealing to those invested with the power of government for the redress of grievances, or other proper purposes, by petition, address, or remonstrance. Yancey v. Com. 25: 455, 122 S. W. 123, 135 Ky. 207. CONSTRUCTION. Of abstracts of title in evidence, see AB- STRACTS, 9. Of by-laws of building associations, see BUILDING AND LOAN ASSOCIATIONS, 1. Of Constitution, see CONSTITUTIONAL LAW, I. a, 3. Of contract, see CONTRACTS, II. Of corporate charter, see CORPORATIONS, 33, 34. Of covenants and conditions, see COVENANTS AND CONDITIONS, II. Of deeds, see DEEDS, II. Of guaranty, see GUARANTY, I. Of insurance contract generally, see INSUR- ANCE, III. d. Of lease, see LANDLORD AND TENANT, II. Of oil and gas lease, see MINES, II. b, 4. Of municipal charter, see MUNICIPAL COB- PORATIONS, I. d. Of pleading, see PLEADING, 9-13, 608. Of railroads, see RAILROADS, II. Of statute, see STATUTES, II. Of treaties, see' TREATIES, 4. Of verdict in criminal case, see TRIAL, 1145. Of wills, see WILLS, III. CONSTRUCTION CONTRACTS CONTEMPT. 599 CONSTRUCTION CONTRACTS. See BUILDING AND CONSTRUCTION CON- TRACTS. CONSTRUCTIVE FRAUD. What constitutes, see FRAUD AND DECEIT, IV. CONSTRUCTIVE NOTICE. See NOTICE. CONSTRUCTIVE POSSESSION. See ADVERSE POSSESSION, I. k. 4 CONSTRUCTIVE TRUSTS. See TBUSTS, I. d. 4 * CONSULS. See DIPLOMATIC AND CONSULAB OFFICEBS. 4 CONTAGIOUS AND INFECTIOUS DISEASES. Of animals, see ANIMALS, I. e; COMMERCE, 16-20; CONSTITUTIONAL LAW, 653, 654; MUNICIPAL CORPORATIONS, 162; NEW TRIAL, 64; PLEADING, 282. Refusal to accept as passenger person afflict- ed with, see CARRIERS, 46, 474. Communication of, to passenger, see CAB- RIEBS, 225. Liability of carrier for communication of, to live stock, see CARRIERS, 846; EVI- DENCE, 1785; TRIAL, 554. Requiring certificate of freedom from ve- nereal disease as condition to marry, see CONSTITUTIONAL LAW, 190, 669, 765. County's liability for loss from quarantin- ing person for, see COUNTIES, 3, 7, 8. Destruction of building infected with, see COURTS, 157; MUNICIPAL CORPORA- TIONS, 153, 154. Damages for erroneously indicating that cattle are from infected district, see DAMAGES, 25. Injury to reputation of property by use as a smallpox hospital, see DAMAGES, 464. Judicial notice as to, see EVIDENCE, 42. Judicial notice as to quarantine district of southern cattle, see EVIDENCE, 35. Digest 1-52 L.R.A.(N.S-) Presumption as to mother's knowledge of children's violation of quarantine, see EVIDENCE, 203. Communication of, to wife by husband, see EVIDENCE, 503; HUSBAND AND WIFE, 207. Action by injured person against carrier em- ployed by county to carry patients to pesthouse, for injury through negli- gence, see EVIDENCE, 2479; PARTIES, 57. Quarantine against, see HEALTH, 9-11. Regulations to prevent spread of, see HEALTH, III. Hospital for, see HOSPITALS, 1; MUNICIPAL CORPORATIONS, 309; NUISANCES, 71, 72. Injunction against establishment of pest- house, see INJUNCTION, 106, 374. Injunction against sending persoon afflicted with, to pesthouse, see INJUNCTION, 107, 108. Landlord's liability for injury by, see LAND- LORD AND TENANT, 144. Assumption of risk of, by servant, see MAS- TER AND SERVANT, 501. Forbidding publication of advertisements of relief for venereal diseases, see MUNIC- IPAL CORPORATIONS, 217. Liability of municipality for spreading of, see MUNICIPAL COBPOBATIONS, 354. Liability of city for exposing employee to contagion, see MUNICIPAL COBPOBA- TIONS, 375. Obscenity of advertisement offering to cure venereal disease, see OBSCENITY. Compulsory vaccination, see SCHOOLS, 14. Liability of health officers for acts in abat- ing cause of disease, see TBIAL, 279. Infecting building with, as waste, see WASTE, 1. CONTEMPT. I. What constitutes, 159. a. In general, 114. 6. Charge against judge; publica- tion as to pending case or judicial decision, 1522. c. Disobedience, 2359. II. Purging from contempt, 6O62. III. Procedure, 6379. IV. Power as to, SO 98. a. Of notary public or other officer, SO, SI. Z>. Of court, 8298. V. Judgment; punishment, 99111. Mandatory injunction to compel restoration of status of property disturbed in vio- lation of decree, see APPEAL AND ER- ROR, 41. Effect of pendency of appeal from order committing for, see APPEAL AND ERROR, 103. Statute permitting enforcement by con- tempt proceedings of order for inspec- tion, see DISCOVERY AND INSPECTION, 21. Presumption in favor of order of commit- ment, see EVIDENCE, 506. coo CONTEMPT, I. a. Sufficiency of evidence to sustain finding of contempt, see EVIDENCE, 2303. Abandonment of objection to jurisdiction to punish for, see HABEAS CORPUS, 33. Habeas corpus to secure release of person committed for, see HABEAS CORPUS, 54- 56, 68. Mandamus to compel punishment for, of witness failing to produce papers, see MANDAMUS, 24. Indictment for act which also constitutes contempt of court, see OBSTRUCTING JUSTICE, 4. Prohibition to restrain contempt proceed- ings, see PROHIBITION, 18, 19. Statement by court as 'to jailing accused for, see TRIAL, 89. /. What constitutes. a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. That a person is on trial for crime and already in actual custody does not render him incapable of committing con- tempt of court or of being punished there- for. State v. Hogg, 29: 830, 53 So. 225, 126 La. 1053. 2. An attempt to approach or converse with a judge with reference to any case or matter pending before him is a contempt of court. Ingles v. McMillan, 45: 511, 113 Pac. 998, 5 Okla. Crim. Rep. 130. Drunkenness in court room. 3. Being in a court room in an intoxi- cated condition does not constitute contempt of court if the fact is not brought to the attention of the judge and the business of the court is in no way interfered with. Neely v. State, 33: 138, 54 So. 315, 98 Miss. 816. (Annotated) Assault on judge. 4. Abusing and assaulting a judge after he has retired from the court room to his boarding hor~e, upon adjournment subject to notice from the judge, because of his disposition of a case immediately prior thereto, is a contempt of court at common law. Ex parte McCown, 2: 603, 51 S. E. 957, 139 N. C. 95. (Annotated) 5. Abusing and assaulting a judge after he has retired from the court room during a recess of the court, because of his action in a case pending before him, is a direct con- tempt, within the meaning of a statute defining such contempts as disorderly, con- temptuous, or insolent behavior commit- ted during the sitting of any court of jus- tice, in immediate view and presence of the court, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. Ex parte McCown, 2: 603, 51 S. E. 957, 139 N. C. 95. (Annotated) Improper conduct in selecting tales- man. 6. Unlawful, partial, or improper conduct on the part of any officer whose duty it is to summon a jury or to select and sum- Digest 1-52 L.R.A.(N.S.) mon talesmen when the regular panel has been exhausted, in selecting or summoning such juries or talesmen, constitutes gross contempt of court, meriting severe punish- ment. United States v. Hargo, 20: 1013, 98 Pac. 1021, 1 Okla. Crim. Rep. 590. (Annotated.) Attempt to influence jurors; treating jurors. 7. All wilful attempts, of whatever na- ture, seeking to improperly influence jurors in the impartial discharge of their duties, whether it be by conversations or discus- sions, or attempts to bribe, constitute con- tempts. Emery v. State, 9: 1124, 111 N. W. 374, 78 Neb. 547. 8. A juror in a murder case, and the bailiff having charge of him, who, upon the invitation of counsel for defendant, go to his room to drink intoxicating liquor, are guilty of contempt of court. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. 9. The attorney for defendant in a mur- der case who, without knowing to whom he is speaking, invites the bailiff and one of the jurors in his case to his room to drink liquor, and furnishes it to them upon their calling after he knows who they are, is guilty of contempt of court. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. (Annotated) 10. An attorney is not guilty of con- tempt of court by merely remaining in his room at the hotel when a juror in the case in which he is engaged comes there for a drink upon invitation of his associate coun- sel, with whom he shares the room, with- out excluding the juror from the room or reporting the matter to the court, if he had no knowledge of the invitation or who the person was who sought admission to the room. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. Disclosures by grand jurors. 11. A grand juror is not guilty of con- tempt for violating his oath to keep the counsel of the United States by disclosing the evidence on which an indictment was founded after publication of the indictment has been made, the accused is in custody, and the grand jury has been finally dis- charged. At well v. United States, 17: 1049, 162 Fed. 97, 89 C. C. A. 97. Filing repeated motions. 12. The mere filing and presentation of repeated motions which are thought to be for the purpose of vexation or delay does not constitute contempt of court. Johnson v. State, 18: 619, 112 S. W. 143, 87 Ark. 45. Criminal contempt. Review of conviction of, see APPEAL AND ERROR, 204, 410. Sentence on defective count in petition, see APPEAL AND ERROR, 1058. Indictment for, see INDICTMENT, ETC., 104. See also infra, 66, 95, 106. 13. A contempt proceeding growing out of a violation of a preliminary injunction issued against a defendant in a divorce proceeding restraining him from removing, encumbering, or disposing of his property, .CONTEMPT, I. b, c. 601 and his refusal to pay a judgment entered against him in the proceeding, is a civil, and not a criminal, proceeding. Canavan v. Canavan, 51: 972, 139 Pac. 154, 18 N. M. 640. 13a. Wilful disobedience of an injunction restraining interference with another's em- ployees is within the provisions oi a stat- ute empowering courts of record to punish as for criminal contempt, persons guilty of wilful disobedience of an order lawfully made by them. Enterprise Foundry Co. v. Iron Moulders' Union, 13: 598, 112 N. W. 685, 149 Mich. 31. (Annotated) 14. The officers of a bank may be con- victed of criminal contempt for failure to obey an order of court requiring the pro- duction of books, although the order merely commands the officers of the bank to pro- duce the books, without naming any par- ticular person. Burnett v. State ex rel. West, 47: 1175, 129 Pac. 1110, 8 Okla. Crim. Rep. 639. b. Charge against judge; publication as to pending case or judicial decision. (See also same heading in Digest L.R.A. 1-70.) Disbarment of attorney for criticism of, or lack of respect toward, court, see AT- TORNEYS, 6, 8-11. 15. An editorial misstatement of the law as stated in a court's written opinion on a matter of wide application and importance is, although unintentional, a contempt of the court. Re Providence Journal Co. 17: 582, 68 Atl. 428, 28 R. I. 489. (Annotated) 16. The truth of articles published dur- ing a trial, tending to prejudice the public and members of the jury an^ thereby in- fluence the result, is no defense to a pro- ceeding for contempt. Hughes v. Territory, 6: 572, 85 Pac. 1058, 10 Ariz. 119. (Annotated) 17. The publication in a newspaper of articles containing statements highly detri- mental to persons on trial, many of which related to matters as to which evidence would not have been admissible against them in any event, constitutes a contempt of court and may be punished as such. Rex v. Tib- bits, 2 B. R. C. 469, [1902] 1 K. B. 77. Also reported in 50 Week. Rep. 125, 85 L. T. N. S. 521, 18 Times L. R. 49, 71 L. J. K. B. N. S. 4, 66 J. P. 4. (Annotated) Attempt to disqualify judge. 18. It is not a contempt of court to file a motion suggesting disqualification of the judge to sit in the trial of a case on the ground that he is related within the statu- tory degree to some person having a direct pecuniary interest in the result of the suit, but not a pai'tv to the record. Johnson v. State, i8:6ig,"ll2 S. W. 143, 87 Ark. 45. Charge against judge. See also infra, 84. 19. A statement in a petition for rehear- ing, that a certain ruling of the court which has been concurred in by several courts of Digest 1-52 KR.A.(N.S.) last resort, including that of the United States, is all wrong, and written "by poli- ticians, and for politics. They do :.ot know what they wrote about," renders the one making it guilty of contempt of court. Re Chartz, 5: 916, 85 Pac. 352, 29 Nev. 110. (Annotated) 20. It is contempt to scandalize a court of record by a newspaper publication in respect to a decision in a case no longer pending, such as impugning the motives of the court and charging it with corruption. State, Sargent, Informant, v. Hildreth, 24: 551, 74 Atl. 71, 82 Vt. 382. 21. A statement in an affidavit for change of judges that affiant believes and alleges that the judge made certain er- roneous rulings wilfully and corruptly for the purpose of preventing a fair trial, and that, because of his hatred towards affiant, the judge would wilfully make unlawful rul- ings and find all matters of fact against affiant without evidence, and give affiant's evidence no weight, which is made without any attempt to state the source of the in- formation or the origin of the belief, is a contempt on the part of the affiant's attor- ney who presents the affidavit to the court. Lamberson v. Superior Court, n: Cig, 91 Pac. 100, 151 Cal. 458. 22. Contempt is not the proper remedy against one who publishes a newspaper article reflecting on the conduct of a judge in the performance of the ministerial duty of keeping account of the fees, emoluments, expenses, etc., of his office, although the publication may interfere with and embar- rass the administration of justice, and tend to bring the court and judge into disrepute, destroying public confidence in both, and impairing their usefulness. (Gabbert, God- dard, and Bailey, JJ., dissent.) Hamma v. People, 15: 621, 94 Pac. 326, 42 Colo. 401. (Annotated) c. Disobedience. (See also same heading in Digest L.R.A.. 1-70.) In violating provision against remarriage in divorce decree, see INJUNCTION, 167. See also supra, 13, 14; infra, 102. 23. It is the duty of all officers of the state to render unquestioning obedience to the judgments of the courts. If the courts are in error, they alone have the power to correct such errors. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. 24. The remedy of one against whom an order of court is entered, which is too broad, is by motion to modify, and not by disre- garding it. Vilter Mfg. Co. v. Humphrey, 13: 591, 112. N. W. 1095, 132 Wis. 587. 25. A person is not guilty of contempt in refusing to obey .an order which the court has no power to make, even though the court has general jurisdiction over the pro- ceeding in which the order is made. Me- 602 CONTEMPT, I. c. Henry v. State, 16: 1062, 44 So. 831, 91 Miss. 562. (Annotated) 26. The custodian of ballot boxes is not guilty of contempt for disobedience of an order directing him to deliver them to the clerk of the court, where they were stolen, without his connivance, from the receptacle in which he had securely locked them, and he did not know their whereabouts, although such receptacle was not the proper place for them to be kept. McHenry v. State, 16: 1062, 44 So. 831, 91 Miss. 562. 27. The father of an illegitimate, un- married minor child which has been legiti- mated by him, who neglects, without suf- ficient cause, to observe a valid court order directing him to permit its natural mother to visit it, is punishable as for a contempt, and it is no defense that his wife refused to permit him to obey the order, where, by the act of legitimation, the child was not made her heir, and it did not enter tier house as her child, since in such case she had no legal right to the custody or control of it. Allison v. Bryan, 30: 146, 109 Pac. 934, 26 Okla. 520. 28. Going into another state, marrying, and immediately returning to one's domi- cil, is not punishable as a contempt of the court rendering a divorce decree and for- bidding the divorcee to remarry within a specified time, as required by a statute, if the penalty provided by statute for such remarriage is punishment for bigamy. Ex parte Crane, 40:765, 136 N. W. 587, 170 Mich. 651. (Annotated) By attorney. 29. An attorney who has been suspended from the practice of his profession is guilty of contempt of court if he retains upon his office door and stationery the statement that he is an attorney, and consults with clients, makes collections, and does other legal work the same as before his suspension, ex- cept so far as it requires his appearance in court proceedings, although, in so doing he acts upon advice of counsel. Re Lizotte, 35: 794, 79 Atl. 960, 32 R. I. 386. 30. A disbarred attorney is guilty of contempt in accepting a fee for his services in attempting to induce a magistrate to release on payment of the fine one commit- ted for failure to pay the fine under a sen- tence imposing a fine or imprisonment, al- though all that he contracted to do might have been done by one not admitted to the bar. Re Duncan, 24: 750, 65 S. E. 210, 83 S. C. 186. (Annotated) By witness. Effect of pendency of appeal from, order com- mitting for, see APPEAL AND ERBOB, 103. Prejudicial error in fining and imprisoning witness for refusing to answer ques- tions, see APPEAL AND EBKOB, 1472. See also infra, 80, 97. 31. The court, after having given the of- fending party an opportunity to be heard, has an inherent right to . punish as for a contempt, the violation of a lawful order directing a witness to testify. Ex parte Seville, 27: 273, 50 So. 685. 58 Fla. 170. Digest 1-52 KR.A.(N.S.) 32. A witness who does not act on re- ligious or other convictions may be com- mitted for contempt in refusing to be sworn or to affirm, although he expects the ques- tions to be propounded to him will require self-incriminating answers. Ex parte Barnes, 51: 1155, 166 S. VV. 728, Tex. Crim. Rep. . (Annotated) 33. The refusal of a witness to answer such improper questions as would constitute abuses of process does not constitute a con- tempt of court. Ex parte Button, 23: 1173, 120 N. W. 203, 83 Neb. 636. 34. An answer by a witness to the grand jury in response to a question whether or not he had bought liquor at a certain place at a certain time, "I could not say. Possibly I did," is not a contempt render- ing him liable to summary punishment. Creasy v. Hall, 41: 478, 148 S. W. 914, 243 Mo. 679. (Annotated) By juror. 35. Power to punish for contempt, dis- obedience by a juror to a command of the court, does not extend to a disclosure of evidence by a grand juror some time after his final discharge from service as such. Atwell v. United States, 17: 1049, 162 Fed. 97, 89 C. C. A. 97. (Annotated) Of order to produce books. Sequestering books pending appeal from con- tempt order for refusing to produce them, see CONSTITUTIONAL LAW, 364. See also supra, 14. 36. That some of the books of a corpo- ration might tend to incriminate its officers will not excuse them from complying with an order of the court directing them to turn over to a receiver all books and papers belonging to the corporation, so far as it can be obeyed without incriminating them. Manning v. Mercantile Securities Co. 30: 725, 90 N. E. 238, 242 111. 584. 37. The officers of a bank who disobey an order for the production of the books of the bank may be punished for contempt thereof, notwithstanding the order was entered upon a petition the main purpose of which was the appointment of a receiver for the bank, and such appointment was denied. Burnett v. State ex rel. West, 47: 1175, 129 Pac. 1110, 8 Okla. Crim. Rep. 639. Of order to pay or turn over money. See also infra, 68, 105, 110, 111. 38. Contempt proceedings will not lie to enforce an order of restitution of money se- cured in satisfaction of a judgment which is subsequently reversed, if, when the order is passed, the money is no longer in pos- session of the judgment creditor. Dodson v. Butler, 39: noo, 142 S. W. 503, 101 Ark. 416. (Annotated) 39. To sustain a decree against a bank- rupt for contempt in wilfully refusing to obey an order directing him to turn over funds to the trustee, he must be shown to have had, at some specified time to which the proceedings may refer, so completely under his control funds which he could com- mand that his failure to command them was a wilful contempt of court. Cole v. CONTEMPT, I. c. 603 First Nat. Bank, 23: 255, 163 Fed. 180, 90 C. C. A. 50. (Annotated) 40. The court cannot compel a husband who has no trade or profession or employ- ment, to learn a trade, acquire a profes- sion, or find employment, and, by exercise thereof, derive an income, to comply with the court's order to pay alimony to his wife, in a suit for her separate maintenance. Messervy v. Messervy, 30: 1001, 67 S. E. 130, 85 S. C. 189. (Annotated) Of injunction. Contempt proceedings for violation of in- junction as criminal proceeding, see ACTION OB SUIT, 67. Effect of appeal from injunction order on right to punish for contempt in dis- obeying it, see APPEAL AND ERROR, 109. Right of parties to case to review of order punishing stranger, see APPEAL AND ERROR, 420. Scope of inquiry on appeal from conviction, see APPEAL AND ERROR, 493. Judicial notice of decree granting injunc- tion, see EVIDENCE, 9. Effect of defect of parties in injunction suit, see INJUNCTION, 427. Effect of inability of court to punish for contempt in disobeying injunction on validity of decree, see JUDGMENTS, 275. Violation of injunction against commission of crime, see JURY, 50. See also supra, 13, 13a; infra, 63, 65, 66, 71, 72, 76, 88-91, 99, 104, 106-109. 41. A contempt proceeding against of- ficers and citizens of a city for having at- tempted to defeat the purpose of an in- junction against the city will not fail for lack of official notice of the injunction, since, if actual notice was not inferable from the publicity of the proceedings, knowledge of the rendition of the judgment follows from the efforts made to evade it. State ex rel. Jackson v. Pittsburg, 25: 226, 104 Pac. 847, 80 Kan. 710. 42. Both officers and citizens of a mu- nicipal corporation against which an injunc- tion has been issued ousting it from the exercise of the unwarranted power of in effect licensing the sale of intoxicating liquor under the guise of collecting fines by simulated prosecutions for violations of the prohibitory law who were concerned in the carrying out of an arrangement whereby a number of saloon keepers raised a fund from which they paid the salaries of some of the city officers and employees, made to evade the effect of the judgment, are guilty of contempt of court in virtue of their having attempted to defeat the pur- pose of the judgment, irrespective of wheth- er or not they are to be regarded as having violated an injunction directed against them. State ex rel. Jackson v. Pittsburg, 25: 226, 104 Pac. 847, 80 Kan. 710. (Annotated) 43. The court may enjoin traffic in non- transferable railroad tickets, and punish for contempt one who violates the injunction. Ex parte Cash, 9: 304, 99 S. W. 1118, 50 Tex. Crim. Rep. 623. 44. One who violated an injunction for- Digest 1-52 L.R.A.(N.S.) bidding the publication of the names of the signers of a petition, after the signers have disowned and repudiated it as having been signed under a misapprehension, may be punished for contempt. Schwartz v. Edring- ton, 47: 921, 62 So. 660, 133 La. 235. 46. Picketing to accomplish the purpose of a strike against a former employer while an order of court is in force forbidding it is punishable as contempt. Vilter Mfg. Co. v. Humphrey, 13: 591, 112 N. W. 1095, 132 Wis. 587. 47. One who goes to the premises of an employer against whom a strike has been declared, and in whose favor an injunction against picketing has been issued, for the purpose of doing picket duty under the im- pression that the court had no jurisdiction to enjoin such act, is guilty of contempt. Re Langell, 50: 412, 144 N. W. 841, 178 Mich. 305. 48. A labor union, although neither a natural nor an artificial person, is amen- able to the court and to ; the law for a viola- tion of an injunction, where no objection was made in the original suit that the asso- ciation was not properly before the court, and where, in the contempt proceeding, it answers as an organization having a legal existence; and it is wholly immaterial in the contempt proceeding whether the in- junction decree was erroneous or not. Barnes v. Chicago Typographical Union No. 16, 14: 1150, 83 N. E. 932, 232 111. 402. 49. The trial court's jurisdiction to pun- ish for contempt for violation of an injunc- tion forbidding a labor union to picket prem- ises of complainants and to interfere with their business and employees, is not sus- pended by an appeal from the decree, since such an injunction is self-executing as .dis- tinguished from one that requires some- thing to be done to carry out the command of the court. Barnes v. Chicago Typographi- cal Union No. 16, 14: 1150, 232 111. 402, 83 N. E. 932. (Annotated) 50. The mere fact that one not a party to an injunction against interfering with the teams of a teaming association assisted in a riot in which such teams were inter- fered with and those in charge of them assaulted, is not sufficient to show that he aided and abetted persons named in the bill in violating the injunction, so as to render him guilty of contempt of court. Garrigan v. United States, 23: 1295, 163 Fed. 16, 89 C. C. A. 494. 51. An assault upon a guard of a team, interference with which has been enjoined by the court, after he has been arrested and is in custody of the police, is not directed against a custodian of the team so as to render the act a contempt of the injunction. Garrigan v. United States, 23: 1295, 163 Fed. 16, 89 C. C. A. 494. 52. The mere publication in newspapers and posting upon wagons of an injunc- tional order forbidding interference with teams of a teaming company are not suffi- cient to charge with knowledge thereof, so as to render guilty of contempt, one not a party to the proceeding who assists in a 604 CONTEMPT, II., HI. riot in which such teams are interfered with and those in charge of them as- saulted, in opposition to his denial of knowledge and the legal presumption of his innocence. Garrigan v. United States, 23: 1295, 163 Fed. 16, 89 C. C. A. 404. (Annotated) 53. The mere offer, by an agent of the complainant in the suit, to purchase an article which defendant is enjoined from selling, for the purpose of determining whether or not the injunction is being vio- lated, is not such an invitation to violate the injunction that he will not be guilty of contempt in case he makes the sale. Ex parte Cash, 9: 304, 99 S. W. 1118, 50 Tex. Crim. Rep. 623. (Annotated) 54. A proceeding to punish for the viola- tion of an injunction restraining the main- tenance of a liquor nuisance is a part of the injunction suit, and not an independent ac- tion. State v. Porter, 13: 462, 91 Pate. 1073, 76 Kan. 411. 55. Knowledge, express or implied, on the part of a property owner, of unlawful sales of intoxicating liquor on his premises which are in possession of tenants, is neces- sary to render him guilty of violation of an injunction against allowing or permitting such sales to be made. Sawyer v. Mould, 25: 602, 122 N. W. 813, 144 Iowa, 185. 56. A tenant or occupant of a building may be convicted of violating a recorded de- cree of the district court, rendered before the commencement of his tenancy or occupancy of the premises, and enjoining all persons from maintaining a liquor nuisance thereon, although he had no actual knowledge or no- tice of the decree. State v. Porter, 13: 462, 91 Pac. 1073, 76 Kan. 411. 57. The clerk of a saloon keeper, who is not a party to a suit in which the employer is enjoined from maintaining a liquor nui- sance, and who has no actual knowledge of the decree, is not guilty of contempt in making sales of liquor in violation of the injunction. Harris v. Hutch inson, 44: 1035, 140 N. W. 830, 160 Iowa, 149. 58. One against whom an injunction is issued .cannot ignore it on the ground that it is broader in its terms than rhe bill jus- tifies. Franklin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. 59. Disobedience of an injunction void for want of jurisdiction in the court or judge awarding it is not a contempt. State ex rel. Powhatan Coal & C. Co. v. Ritz, g: 1225, 56 S. E. 257, 60 W. Va. 395. II. Purging from contempt. 60. Mere answer under oath is not suffi- cient to purge one charged with constructive contempt of court. O'FIinn v. State, 9: 1119, 43 So. 82, 89 Miss. 850. (Annotated) 61. The sworn answer of a party charged with contempt is evidence to purge him thereof; but not conclusive, and may be contradicted and supported by other evi- dence; and v.-here, upon a consideration of all the evidence, the court is satisfied that it is within the power of the party charged Digest 1-52 L.R.A.(N.S.) with contempt to comply w.ith the order of the court, the order may be enforced by fine or imprisonment. Burnett v. State ex. rel. West, 47: 1175, 129 Pac. 1110, 8 Okla. Crim. Rep. 639. 62. In a prosecution for contempt of court by attempting to influence a juror in a pending civil action, a denial on <>ath of the commission of the offense raises an issue of fact for trial, and does not entitle the accused to an acquittance. Emerv v. State, 9: 1124, 111 N. W. 374, 78 Neb. '547. ///. Procedure. (See also Contempt, II. in Digest L.R.A. 1-10.) Nature of action or suit to punish, see AC- TION OB SUIT, 67, 69. Appearance as waiver of failure to serve citation before return day, see AP- PEARANCE, 10. Due process in, see CONSTITUTIONAL LAW, 550, 551. Dismissal of contempt proceeding, see DIS- MISSAL AND DISCONTINUANCE, 12. Presumption that person was found guilty of, without hearing, see EVIDENCE, 508. Qualification of judge to sit on trial of one for contempt consisting of reflections upon himself, see JUDGES, 20. Right to jury trial, see JURX, 17. Parties defendant, see PARTIES, 186. 63. A witness who is brought before a court by attachment for refusal to obey a subpoena need riot be then tried and pun- ished for that contempt, but can be pun- ished for refusal to answer proper ques- tions then propounded by the court, as the order of procedure is within the court's discretion. Ex parte Button, 23: 1173, 120 N. W. 203. 83 Neb. 636. 64. In a contempt proceeding originating in a civil suit, the- moving papers may be looked to to determine the particular con- tempt when it does not appear in the judg- ment. Ex parte Cash, 9: 304, 99 S. W. 1118, 50 Tex. Crim. Rep. 623. 65. The truthfulness of the averments of injury in a bill for injunction cannot be questioned in a proceeding for contempt for violation of the injunction. Franklin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. 66. A court of record has jurisdiction in a proceeding to enjoin interference with one's employees upon petitions supported by affidavits praying a rule to show cause why defendant should not be punished as for criminal contempt for wilful violation of the injunction, to determine whether or not he was guilty of wilful disobedience, without filing interrogatories for his benefit as in case of civil contempt. Enterprise Foundry Co. v. Iron Moulders' Union, 13: 598, 112 N. V 7 . 685, 149 Mich. 31. 67. A warrant of commitment for con- tempt of court in refusing to answer ques- tions as a witness is not sufficient under a statute requiring the particular circum- CONTEMPT, IV. a. 605 stances of the offense to be set out, where the response of the witness to the question is not shown, but merely the conclusion of the court that he refused to answer. Creasy v. Hall, 41: 478, 148 S. W. 914, 243 Mo. 679. 68. A finding of facts showing that ac- cused was guilty of contempt as matter of law is necessary to support a judgment ad- judging one guilty of contempt for failure to pay alimony and attorneys' fees in a divorce proceeding. Hoffman v. Hoffman, 30: 564, 127 N. W. 478, 26 S. D. 34. (Annotated) Issuance of process; service. 69. A rule to show cause why a person shall not be adjudged guilty of contempt must be served in person on the party charged. Mvlius v. McDonald, 10: 1098, 56 S. E. 602, 61 W. Va. 405. Complaint; information. 70. The jurisdiction of the court is not affected in a contempt proceeding by the form of title of the petition. Hughes v. Territory, 6: 572, 85 Pac. 1058. 10 Ariz. 119. 71. A petition is not necessary for the punishment of one for violation of an in- junction, and one filed cannot be objected to if it fully advised defendant of the charge against him. Franklin Union No. 4 v. Peo- ple, 4: 1001, 77 N. E. 176, 220 111. 355. 72. In a proceeding to punish the viola- tion of an injunction against the mainte- nance of a liquor nuisance, the accusation need not possess the formalities of an in- dictment or information; nor is it neces- sary formally to plead or prove the issuance of the order of injunction, since the court will take judicial notice of it. State v. Por- ter, 13: 462, 91 Pac. 1073, 76 Kan. 411. 73. An allegation upon information and belief in a contempt proceeding is sufficient to put accused to his denial. Hughes v. Territory, 6: 572, 85 Pac. 1058, 10 Ariz. 119. 74. Jurisdiction of a contempt proceed- ing is conferred by an information under the official oath of the prosecuting attor- ney and a citation directed by the judge to be issued by the clerk, setting forth the information, although the information is not specifically verified or supported by af- fidavit. Poindexter v. State, 46: 517, 159 S. W. 197, 109 Ark. 179. 75. An objection to the verification of an information for contempt is waived by a plea of not guilty on arraignment, and is not available unless such plea is withdrawn ; nor can it be urged for the first time on a motion for a new trial. Emery v. State, 9: 1124, 111 N. W. 374, 78 Neb. 547. 76. Failure to attach to an information charging contempt for violating an injunc- tion against illegal sale of intoxicating liquors an authenticated copy of the decree alleged to have been violated does not de- stroy the jurisdiction of the court, if the statute does not require such attachment. Haaren v. Mould, 24: 404, 122 N. W. 921, 144 Iowa, 296. Affidavit; statement. 77. A supporting affidavit is not neces- sary to a citation which is timely made, to show cause why one shall not be punished Digest 1-52 I*R.A.(N.S.) for contempt committed in the immediate view and presence of the court. Lamberson v. Superior Court, n: 619, 91 Pac. 100, 151 Cal. 458. Right to meet witnesses. 78. The provision of the Federal Consti- tution entitling an accused to the right to be confronted by the witnesses against him does not apply to a summary proceeding to punish one for contempt in refusing to com- ply with an order in bankruptcy. Cole v. First Nat. Bank, 23: 255, 163 Fed. 180, 90 C. C. A 50. Appeal. Appealability of judgment, see APPEAL AND ERROR, 44. Jurisdiction of appeal, see APPEAL AND ERROR, 70. Review of conviction, see APPEAL AND ER- ROR, 204, 410. Scope of inquiry on appeal from conviction, see APPEAL AND ERROR, 493. Review of discretion as to judgment, see AP- PEAL AND ERROR, 576. Reversible error in decree, see APPEAL AND ERROR, 1058. Modification of order imposing fine for, see APPEAL AND ERROR, 1585. Reducing punishment on appeal, see APPEAL AND ERROR, 1603. 79. An appeal in a contempt proceeding is properly entitled the same as in the prin- cipal proceeding, where the contempt pro- ceeding is really but an incident of the original suit. Manning v. Mercantile Se- curities Co. 30: 725, 90 N. E. 238, 242 111. 584. IV. Power as to. a. Of notary public or other officer. (See also Contempt, HI a, in Digest L.R.A. 1-10.) See also supra, 70, 74. 80. The right of an officer before whom a deposition is being taken, to punish as for contempt any person who refuses to obey an order to answer a question or to produce a document is, under Ohio Rev. Stat. 1906, 5252, limited to cases in which the person may be "lawfully ordered" to obey, and does not extend to cases where the question or document is not pertinent to the issues tendered or made, or is not material or necessary to make out the case of the party calling for it, or is incompetent or privileged. Re Schoepf, 6: 325, 77 N. E. 276, 74 Ohio St. 1. Of notary public. 81. The power of a notary public before whom depositions are being taken to punish a witness for contempt by imprison- ment, upon the latter's refusal to obey a subpoena duces tecum to bring with him certain writings, is limited by Ohio Rev. Stat. 1906, 5247, to writings "which he may be compelled to produce as evidence," and by 5289 to evidence pertinent to the issue, in cases and under circumstances 606 CONTEMPT, IV. b. where a party might heretofore have been compelled to produce the same by the ordi- nary rules of proceedings in chancery. Re Schoepf, 6: 325, 77 N. E. 276, 74 Ohio St. 1. Z>. Of court. (See also Contempt, HI. 6, in Digest L.R.A. 1-10.) Effect of appeal from injunction order on right to punish for contempt in dis obeying it, see APPEAL AND ERROR, 109 Disqualification of judge, see JUDGES, 20. 82. The criminal court of appeals, in- dependent of authority granted by statute, has the inherent power to enforce obedience to its orders by contempt proceedings, as such power is essential to the due adminis- tration of justice. State ex rel. Tucker v. Davis. 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. 83. A court with statutory power to preserve and enforce order and compel obedience to its orders, judgments, and de- crees has power to punish for contempt. Hamilton v. Plunkett, 35: 583, 70 S. E. 781, 136 Ga. 72. 84. The common law of contempt is not changed by a statute which merely provides that a person who defames a court of jus- tice, or a sentence or proceeding thereof, or defames the magistrate, judge, or justice of such court as to an act or sentence therein passed, shall be fined not more than a speci- fied amount. State, Sargent, Informant, v. Hildreth, 24: 551, 74 Atl. 71, 82 Vt. 382. 85. A statutory provision that certain contempts are misdemeanors and may be punished as such does not deprive the court of its common-law power to punish for con- tempt. Hughes v. Territory, 6: 572, 85 Pac. 1058, 10 Ariz. 119. 86. The power of a court to punish con- tempts is not taken r.way by a Code pro- vision that after its adoption no act is pun- ishable except as authorized by statute or ordinance, where another section provides that the Code shall not affect any power conferred by law upon ~ny tribunal to pun- ish for contempt. Hughes v. Territory, 6: 572, 85 Pac. 1058, 10 Ariz. 119. 87. Jurisdiction to hear a contempt pro- ceeding which was properly begun under the statute by the filing of the information is not destroyed by the fact that the precept directs the production of accused before a judge, instead of the court, for hearing, if the hearing actually takes place before the court. Haaren v. Mould, 24: 404, 122 N. W. 921, 144 Iowa, 296. 88. In a proceeding brought to punish a defendant for the violation of an injunc- tion previously granted wherein he ap- peared in court and defended against the accusation filed against him, the power of the court to try the defendant and to ad- judge punishment for a contempt is not affected by the fact that he was arrested under an unwarranted order issued by an- other court, nor is it material under the Digest 1-52 L.R.A.(N.S.) circumstances whether or not a preliminary order of arrest is issued or an arrest in fact made. State v. Meyer, 40: 90, 86 Kan. 793, 122 Pac. 101. 89. Refusal to obey an injunction award- ed in vacation may be punished as a con- tempt, in the vacation of the court, by the judge in whose court the injunction is pend- ing. State ex rel. Powhatan Coal & C. Co. v. Ritz, 9: 1225, 56 S. E. 257, 60 W. Va. 395. 90. The dismissal of a bill for injunction will not affect contempt proceedings to pun- ish defendant for violating it. Weidner v. Friedman, 42: 1041, 151 S. W. 56, 126 Tenn. 677. 91. A final decree dissolves a prelimi- nary injunction which is ancillary to the main case, unless the same is specially con- tinued by the decree, and thereafter a liti- gant cannot be punished as for a civil con- tempt for violation of the preliminary in- junction prior to its dissolution. Canavan v. Canavan, 51 : 972, 139 Pac. 154, 18 X. M. 640. (Annotated) Power of magistrate or justice of peace. 92. A committing magistrate has no jurisdiction to punish for contempt a wit- ness who refused to obey a subpoena duces tecum. Farnham v. Colman, i: 1135, 103 N. W. 161, 19 S. D. 342. (Annotated) 93. A statute permitting a magistrate to punish a witness for refusal to testify does not authorize him to punish for failure to obey a subpoena duces tecum. Farnham v. Colman, i: 1135, 103 N. W. 161, 19 S. D. 342. ( Annotated ) 94. Statutes empowering justices of the peace to take depositions and to punish as for contempt persons who refuse to answer proper questions do not violate a constitu- tional provision that the judicial power of the state shall be vested in a supreme court, district court, justice of the peace, police magistrate and such other courts in- ferior to the district court as may be cre- ated by law for cities and incorporated towns, and are authorized by a constitu- tional provision that justices of the peace shall have and exercise such jurisdiction as may be provided by law. Ex parte Button, 23: 1173, 120 N. W. 203, 83 Neb. 636. 95. A justice of the peace may punish for criminal contempt under statutes pro- viding that specified persons may be fined by the court for specified acts, "or for any other contempt," and designating the pun- ishment which may be inflicted by justices of the peace for such offenses. McBurnie v. Sullivan, 44: 186, 153 S. W. 945, 152 Ky. 686. Board of police commissioners. 96. A board of police commissioners with power to discharge, suspend, or confine of- ficers and summon witnesses is a court within the meaning of a statute empower- ing every court to preserve order in its sresence and compel obedience to its de- rees. Hamilton v. Plunkett, 35: 583, 70 S. E. 781, 136 Ga. 72. 97. Power conferred upon a board of CONTEMPT, V. 607 police commissioners for the punishment of witnesses who may fail to appear in obedi- ence to summons does not destroy its pow- er when sitting as a court, to punish for contempt committed in its presence; as, the refusal of a witness to answer questions. Hamilton v. Plunkett, 35: 583, 70 S. E. 781, 136 Ga. 72. Legislative power to interfere with. 98. The legislature cannot deprive the courts of the power, inherent in them and essential to their existence, of attaching for direct contempts of their authority, or un- due interference therewith. Ex parte Mc- Cown, 2: 603, 51 S. E. 957, 139 N. C. 95. V. Judgment; punishment. (See also Contempt, IV. in Digest L.R.A. 1-10.) Appealability of judgment for, see APPEAL AND ERKOR, 44. Right of parties to case to review of order punishing stranger, see APPEAL AND ERBOR, 420. Review of conviction, see APPEAL AND EB- BOB, 204, 410, 493. Review of discretion as to judgment, see AP- PEAL AND EBBOB, 576. Modification on appeal, of punishment, see APPEAL AND EBBOE, 1585, 1603. Legislative limitation of term of imprison- ment for contempt, see CONSTITUTIONAL LAW, 136. Due process in, see CONSTITUTIONAL LAW, 550, 578. Attorneys' fees as element of costs in case of, see COSTS AND FEES, 29. State court following decisions of Federal supreme court as to, see COUBTS, 312. Review of commitment and release from im- prisonment, see HABEAS CORPUS, 54- 56, 68. 99. An order adjudging one guilty of con- tempt for violation of an injunction is not insufficient for failure to set out the partic- ulars of the violation, if it refers to the pe- tition and affidavits where such matters ap- pear. Franklin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. 100. Direct contempts of court may be punished summarily by attachment. Ex parte McCown. 2: 603, 51 S. E. 957, 139 N. C. 95. 101. A judgment committing one for con- tempt is void where it imposes a term of punishment in excess of that allowed by statute. Creasy v. Hall, 41: 478, 148 S. W. 914, 243 Mo. 679. 102. In determining the punishment to be imposed upon a disbarred attorney for con- tempt in practising law, consideration will be given to his disclaimer of any intended disobedience of the court's order. Re Dun- can, 24: 750, 65 S. E. 210, 83 S. C. 186. 103. A commitment of a witness to a defi- nite term of imprisonment for contempt in refusing to answer questions is invalid where the statute authorizes imprisonment until he gives the required evidence. Creasy Digest 1-52 L.R.A.(N.S.) v. Hall, 41 : 478, 148 S. W. 914, 243 Mo. 679. 104. Where a defendant is found guilty of contempt of court in violating an in- junction, and sentenced to fine and im- prisonment, the court cannot, after the de- fendant has been imprisoned a short time under this sentence, recall him and resen- tence him to a longer term notwithstand- ing the attempt is made at the term in which the original judgment was entered and on the same day; but the first judg- ment is not thereby affected. State v. Meyer, 40: 90, 86 Kan. 793, 122 Pac. 101. (Annotated) 105. The remedy for failure of one who, having appealed from a decree of divorce, fails to comply with an order requiring payment of his wife's attorneys' fee, is not a proceeding to punish for contempt, but a dismissal of the appeal. Brown v. Brown, 51: 1119, 140 Pac. 829, Wyo. . (Annotated) 106. A punitive sentence appropriate only to a proceeding at law for criminal con- tempt, where the contempt consisted in do- ing that which had been prohibited by an injunction, could not properly be imposed in contempt proceedings which were in- stituted, entitled, tried, and, up to the moment of sentence, treated, as a part of the original cause in equity. Gompers v. Buck's Stove & Range Co. 34: 874, 31 Sup. Ct. Rep. 492, 221 U. S. 418, 55 L. ed. 797. ( Annotated ) 107. A court has no power to strike out and disregard depositions filed by a defend- ant in defense of a suit for divorce, for failure to pay money required of him to en- able his wife to prosecute her suit and for .temporary alimony, and pass final decree of divorce against him since such decree is not due process of law. Trough v. Trough, 4: 1185, 53 S. E. 630, 59 W. Va. 464. (Annotated) Fine. Modification on appeal, of order imposing fine, see APPEAL AND EBROB, 1585. Against corporation, see COBPOBATIONS, 116. 108. A fine should be the sole punishment in a civil proceeding for the violation of an injunctional order against picketing, where no actual money loss to complainant, be- cause of the acts of accused, is shown. Vil- ter Mfg. Co. v. Humphrey, 13: 591, 112 N. W. 1095, 132 Wis. 587. 109. One thousand dollars is not an ex- cessive fine to impose on a labor union for violation of an injunction restraining inter- ference with the business of former employ- ers of members on a strike, where the viola- tion is flagrant and often repeated. Frank- lin Union No. 4 v. People, 4: 1001, 77 N. E. 176, 220 111. 355. Imprisonment for debt. 110. A commitment for contempt for wil- ful refusal to obey an order to pay suit money and temporary alimony pending a divorce suit is not an unconstitutional im- prisonment for debt. Ex parte Davis, 17: 1140, 111 S. W. 394, 101 Tex. 607. (Annotated) 111. Statutory authority to punish by im- 608 CONTESTS CONTINUANCE AND ADJOURNMENT, II. prisomnent disobedience of and order for payment of alimony, made in any suit for divorce, does not extend to the authoriza- tion of such punishment for noncompliance with a decree directing payment of money due under a foreign decree for alimony. Mayer v. Mayer, 19: 245, 117 N. W. 890, 154 Mich. 386. CONTESTS. Between rival nominating conventions, ' see ELECTIONS, 162. Election contests, see ELECTIONS, V. Estoppel to contest right to collect tolls on county bridge, see ESTOPPEL, 13. Of mining claim, see MINES, I. c. Of title to office, see OFFICERS, I. f. Of will, see WILLS, I. e. CONTINGENCY. Power to dispose of, by will, see WILLS, 192. CONTINGENT ESTATE. As asset in bankruptcy, see BANKRUPTCY, 41-43. Creation of, by will, see WILLS, III. g, 9. CONTINGENT FEE. Contract of attorney for, see ATTORNEYS, 60- 62, 76, 78, 81, 83-86; CHAMPERTY AND MAINTENANCE, 7, 8; CONTRACTS, 254, 328, 409. CONTINGENT INTERESTS. Right of trustee in bankruptcy to contingent interest of beneficiary under will, see BANKRUPTCY, 41-43. Cutting off, see CONSTITUTIONAL LAW, 60, 61. Creditors' bill to reach, see CREDITORS' BILL, 16, 17. Under will, see WILLS, III. g, 9. See also CONTINGENT REMAINDERS. CONTINGENT LIABILITY. Of insurer as bar to action by insured for premiums paid, see INSURANCE, 443. CONTINGENT LIMITATION, Validity of, see PERPETUITIES. Digest 1-52 L.K.A.(N.S.) CONTINGENT REMAINDER. Cutting off, by merger of life estate in fee, see LIFE TENANTS, 1. See also DEEDS, II. e, 4; WILLS, III. g, 9, b. CONTINGENT RESULTS. Opinion evidence as to, see EVIDENCE, VII. CONTINUANCE AND ADJOURN- MENT. I. In general. II. Grounds for, 113. III. Affidavits for. IV. Effect of admission. Of appeal, see APPEAL AND ERROR, VI. d. Review of discretion as to granting or refus- ing motion for, see APPEAL AND ERROR, VII. i, 2. Prejudicial error as to, see APPEAL AND ERROR, 1052, 1053, 1179. In criminal case to permit accused to apply for pardon, see CRIMINAL LAW, 152. Admissibility in evidence at trial of ad- mission by attorney for accused at pre- liminary hearing to prevent continu- ance, see EVIDENCE, 1254. Presumption of continuance generally, see EVIDENCE, II. g. Presumption of continuance of agent's au- thority, see MORTGAGE, 61. Continuance of preliminary and inter- locutory injunction, see INJUNCTION, 418-422. Application for change of venue for purpose of getting, see VENUE, 26. /. In general. (See same heading in Digest L.R.A. 1-10.) II. Grounds for. (See also same heading in Digest L.R.A. 1-70.} 1. Refusal to grant a continuance upon allowing an amendment to the declaration is not error if the amendment introduced no new issue, but merely made the pleading conform to the evidence. Wabash R. Co. v. Campbell, 3: 1092, 76 N. E. 346, 219 111. 313. 2. Upon amendment of a declaration pending trial so as to call for a different line of defense, supported by additional tes- timony, to the surprise of defendant, he should be allowed a continuance sufficiently long to secure the testimony needed. Ger- kin v. Brown & Sehler Co. 48: 224, 143 N. W. 48, 177 Mich. 45. 3. The omission of the name of a use- plaintiff to whom a judgment for the kill- ing of plaintiff's child had been assigned before its reversal, when amending the com- CONTINUANCE .AND ADJOURNMENT, III. CONTINUING TRESPASS. 609 plaint so as to add the name of the child's mother as a coplaintiff, is not ground for continuance in defendant's favor on the ground of surprise, since the presence or absence of the use-plaintill' is immaterial to defendant. Bracken v. Pennsylvania R. Co. 34: 790, 71 Atl. 926, 222 Pa* 410. 4. The mere dismissal as to one of two joint tort feasors, of an action to hold them liable for a death due to their wrong- ful acts, does not entitle the other to a continuance as matter of right. Louisville v. Schneider, 35: 207, 136 S. W. 212, 143 Ky. 171. To secure evidence. 5. The court may grant a continuance to permit the securing of a copy of a con- tract, proof of which is necessary to the de- cision of the case, where objection is made to its proof by parol evidence. Sholin v. Skamania Boom Co. 2'C: 1053, 105 Pac. 032, 56 Wash. 303. 6. Refusal to adjourn a trial to permit an examination of defendant's wife by phy- sicians not residing at the county seat is not error in a prosecution for perjury in testifying as to her malformation as a ground for divorce, where, with knowledge of the evidence against him, accused had six months in which to secure the examination,' and announced himself ready for trial and closed his case without requesting the ex- amination until the time set for argument. Edwards v. State. 49: 563, 160 S. W. 709, 71 Tex. Crim. Rep. 417. 7. The trial court may properly con- tinue a personal injury case because of the refusal of the injured party to submit to an X-ray examination by a physician ap- pointed by the court under statutory au- thority, when such an examination is con- sidered necessary. State ex rcl. Carter v. Call, 41: 1071, 59 So. 789. 64 Fla. 144. Absence of witness. Prejudicial error as to, see APPEAL AND ERROR, 1052, 179. 8. No legal ground for a continuance is shown where an application for a con- tinuance of a criminal trial, on the ground of absence and unknown witnesses, and the further ground that counsel for the defend- ant had not had time to prepare the defense and procure the evidence in question, does not state the name of any absent witness who might be obtained, nor any facts which could be proved by any unknown witness in the event the case should be continued, and it is shown that a previous continuance of thirty days had been granted, and the counsel had failed to obtain the necessary evidence. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. 9. A continuance to secure the presence of witnesses to testify to their nationality should not be granted because their child is offered as a witness to prove that fact, where there is nothing to show that their testimony would differ from that of the child, or that diligence has been used in attempting to secure their testimony sooner. State v. Rackich, 37: 760, 119 Pac. 843, 66 Wash. 390. 10. A further continuance should not be granted because of the illness of a non- resident defendant having knowledge of the facts necessary to the defense, so that he will not be able to attend the trial or give his deposition, if the case has been contin- ued for a year on that ground and there is nothing to show that he will ever be any better. Rose v. Monarch, 42: 660, 150 S. VV. 56, 150 Ky. 129. (Annotated) 11. One accused of crime cannot be forced into trial in the absence of his wit- nesses, where the Constitution guarantees him the right to call for evidence in his favor, upon the theory that they will be summoned and examined if they shall ar- rive before verdict, and, if not, that their testimony may be made the basis of a mo- tion for new trial. Cremeans v. Com. 2: 721, 52 S. E. 362, 104 Va. 860. (Annotated) 12. Proof of reasonable but futile dili- gence to procure the attendance or testi- mony of a witness about a year before the trial, and for about a week preceding the trial, without evidence of diligence between such dates, is not sufficient ground for a continuance. Armour & Co. v. Kollmeyer, 16: mo, 161 Fed. 78, 88 C. C. A. 242. 13. Proof of due diligence to procure the attendance or the testimony of an absent witness, and of facts which present reason- able grounds to believe that his attendance or evidence will be secured at the next term, is essential to the right of the moving party to a continuance. Armour & Co. v. Koll- meyer, :6: 1 1 10, 161 Fed. 78, 88 C. C. A. 242. ///. Affidavits for. (See same heading in Digest L.R.A. 1-70.) IV. Effect of admission. (See same heading in Digest L.R.A. 1-10.) CONTINUING CRIME. See CRIMINAL LAW, 19-23. CONTINUING GUARANTY. See GUARANTY, 23, 37-42. CONTINUING NUISANCE. See JOINT CREDITORS AND DEBTORS, 18; NUISANCE, 121, 134, 135; TRESPASS, 14. Digest 1-52 L.R.A.(N.S.) 39 CONTINUING TRESPASS. See TRESPASS, 14. 610 CONTINUING TRUST CONTRACTS. CONTINUING TRUST. See TRUSTS, 12. CONTINUITY. Of adverse possession, see ADVERSE POSSES- SION, 87, 88. CONTRABAND. Right of carrier to demand inspection when article suspected to be contraband is tendered, see CARRIERS, 786. CONTRACT LABOR LAW. Action to recover penalty for violation of, see ACTION OR SUIT, 63; EVIDENCE, 1401, 2354; TRIAL, 779. CONTRACTORS. Bonda of generally, see BONDS, 8-31. Prematurity of suit on bond of, see ACTION OR SUIT, 9. Validity of statute as to nature of bonds to be taken from, see CONSTITUTIONAL LAW, 365, 456; STATUTES, 22. Oral contract to become surety for building contractor, see CONTRACTS, 233. Parol evidence as to intention of sureties on bond of, see EVIDENCE, 980. Who may maintain action on bond of, see PARTIES, 85-88. Rights and liability of surety on bond of, see PRINCIPAL AND SURETY, 9, 10, 20- 23, 39, 40. Contribution between sureties on bond, see PRINCIPAL AND SURETY, 73, 74. Admissions by building contractor, see AD- MISSIONS. Effect of bankruptcy on right of material- man to enforce lien against property of bankrupt, see BANKRUPTCY, 141. Acceptance of bid by, with notice of mistake as to subject-matter, see CONTRACTS, 12.5; NOTICE, 13. Promise of owner to pay subcontractor on failure of contractor to do so, see CON- TRACTS, 225. Construction generally of contract with building contractor, see CONTRACTS, II. d, 4. Measure of damages where contractor has been delayed in collection of amount due him on contract, see DAMAGES, 103. Burden of showing that claims against con- tractor paid by property owner were justly due, see EVIDENCE, 644. Liability of, for injuries on highways, see HIGHWAYS, IV. b, 4. Effect as to lumber company of personal judgment against contractor in action Digest 1-52 L.R.A.(N.S.) against both to recover price of services in getting out logs and to enforce lien, see JUDGMENT, 159. Liability of township trustees failing to provide for collection of taxes to pay contractor, see JUDGMENT, 232. Owner's liability for injury to servant of, see MASTER AND SERVANT, 478. Liability for negligence of, see MASTER AND SERVANT, III. b. Liability of, for negligence, see MASTEB AND SERVANT, 1057-1064. Liability of subcontractor for tort of serv- ant causing injury to employee of gen- eral contractor, see MASTER AND SERV- ANT, 473-475. Contractor as laborer entitled to lien, see MECHANICS' LIENS, 23, 38. Lien of subcontractors, see MECHANICS' LIENS, VI. Injury to, by defects in building existing at time he commenced work, see NEGLI- GENCE, 96. Liability for nuisance, see NUISANCES, 123. Personal liability to, of public officer making contract, see OFFICERS, 100, 101 ; TOWNS, 13-15. Individual liability of officers who fail to take bond from contractor, see OFFI- CERS, 109, 110. As necessary parties to suit to set aside assessment, see PARTIES. 157. For public improvement, city's liability to, see PUBLIC IMPROVEMENTS, 17-19. * Provision for repairs in contract for public improvement, see PUBLIC IMPROVE- MENTS, 21-24. Right of subcontractor assisting in con- struction of bridge embankment to re- cover for injuries therefrom, see RAIL- ROADS, 303. Liability of contractor not entitled to use union label for use of label on work, see TRADEMARKS, 24. Right to maintain action of trespass, see TRESPASS, 19. See also BUILDING AND CONSTRUCTION CON- TRACTS. CONTRACTS. I. Nature, form and requisites, 1 338. a. In general, 13. 6. Implied agreements, 4 SO. c. Consideration, 51123. 1. Necessity; lack of, 5156. 2. Sufficiency, 57123. d. Meeting of minds; definite- ness, 124192. J. In general, 124128. 2. Mutuality, 129 ISO. 3. Definiteness, 151159. 4. Offers and their accept- ance or withdrawal, 1 6O 192. e. Formal requisites; statute of frauds, 193335. 1. In general; personal prop- erty, 193 2 1O. CONTRACTS. 611 I. e. continued. 2. Collateral contracts, debts of others, 211-233. 3. Not to be performed with- in year, 234246. 4. Contracts as to realty, 247277. 5. Sufficiency of writing, 278 3O3. a. In general, 278287. b. Execution, 288295. c. Memorandum, 296 303. 6. Effect of fraud of part performance, 3O4 335. a. In general, 3O4317. b. Contracts relating to real property, 318 335. f. Incorporating extrinsic docu- ment, 336. g. Merger, 337, 338. II. Construction, 339 4O4. a. In general, 339352. b. Entirety, 353356. c. Time, 357. d. Particular words, phrases and cases, 358 4O4. 1. Miscellaneous, 358373. 2. As to transfer of property, 374-382. a. Real property, 374 379. b. Personal property, 38O382. 3. Other agreements relating to land or water, 383, 384. 4. For services,- construction of buildings or worTcs, 385-404. HI. Validity and effect, 4O5619. a. In general, 4O5411. b. Illegal by express provision, 412-424. c. Public policy, 425529. 1. In general, 425497. 2. Contracts against liability, 498-5O2. 3. As to corporations and associations, 503512. 4. Affecting official action, 513518. 5. Contracts of public officers or contracts in which they are interested, 519 529. d. Gambling and wager con- tracts, 53O534. e. In restraint of trade, 535 558. 1. In general, 535543. 2. To refrain from business, 544558. f. Ratification; validating, 559 562. g. Remedies; proceeds of unlaw- ful contract, 563619. 1. In general, 563594. 2. Contracts against public policy, 595619. Digest 1-52 L.R.A.(N.S.) IV. Performance; breach, 62O7O2. a. In general, 62O625. It. Excuse for failure of perform- ance, 626641. 1. In general, 626 63O. 2. Impossibility of perform- ance; inevitable accident, 631-637. 3. Prevention or hindrance: by other party, 63864.1. C. Incomplete performance; suffi- ciency of performance r 642-668. 1. Right of recovery on part performance, 642653. 2. Sufficiency of perform- ance, 654662. 3. Acceptance; waiver of ob- jections, 663668. d. Condition; estimates; certifi- cate of performance, 669 685. e. Breach and its effect, 686 702. f. Time. V. Change or extinguishment, 7O3 77O. a. In general, 7O371O. b. Termination; repudiation; abandonment, 711728a. C. Rescission; cancelation, 729 770. 1. In general, 729732. 2. Conditions; promptness; restoring benefits, 733 738. 3. Grounds of, 739 77O. VI. Actions; liabilities, 771782. a. In general, 771773. b. Defenses, 774782. VII. Public contracts, 783 8O7. a. In general, 783 7 9O. b. Advertisements and bids; let- ting, 791-807. Contract of accord and satisfaction, see AC- CORD AND SATISFACTION. Accounting as to, see ACCOUNTING. Whether action one on contract or in tort, see ACTION OR SUIT, 73-85. Liability in tort of one negligently perform- ing, see ACTION OR SUIT, 81. Joinder of causes of action on, see ACTION OB SUIT, 107, 111, 113. Joining cause of action in tort with cause of action on contract, see ACTION OR SUIT, 111. Alteration of written contract, see ALTER- ATION OF INSTRUMENTS. 1. Review of finding as to existence or non- existence of, see APPEAL AND ERROR, 977, 978. Provision in, for arbitration, see ARBITRA- TION, 1-3. Assignment of, see ASSIGNMENT, 12-18, 22- 25, 27, 30. Assignability of right to balance due under contract for public work, see ASSIGN- MENT, 26. Recovery of money paid by mistake to ob- tain release from, see ASSUMPSIT, 41 43. L CONTRACTS.^ Contract of bailment, see BAILMENT. Right of one in possession of another's prop- erty to appropriate it to an executory contract with the latter, see BAILMENT, 3. Right of trustee in bankruptcy to set aside, see BANKRUPTCY, 67. Agreement of member of benefit association to be bound by subsequently enacted by-laws, see BENEVOLENT SOCIETIES, 12. With passenger, see CARRIERS, JI. m. To furnish cars, see CARRIERS, III. h. As to chattel mortgages, see CHATTEL MORT- GAGES. As to compromise and settlement, see COM- PROMISE AND SETTLEMENT. Conflict of laws as to, see CONFLICT OF LAWS, I. b. Interference with, by labor organization, sec CONSPIRACY, IV. Imprisonment of laborer violating farm labor contract, see CONSTITUTIONAL LAW, 335; IMPRISONMENT FOR DEBT, 7, 8; PEONAGE. Restrictions on right of, see CONSTITUTION- AL LAW, II. b, 4, b. Police restrictions on, see CONSTITUTIONAL LAW, II. c, 4. Impairing obligations of, see CONSTITU- TIONAL LAW, II. g. Of corporation generally, see CORPORATIONS, IV. d. Enforcement of contract of corporation in- corporated in several states, see CORPO- RATIONS, 9, 10. Personal liability of officer on contract of corporation/see CORPORATIONS, 159, 160, 166. By corporation, on sale of business, not to re-engage therein; effect on officers and stockholders, see CORPORATIONS, 253. Effect of consolidation of corporation on, see CORPORATIONS, II. For purchase of corporate stock, see CORPO- RATIONS, V. C. By county, see COUNTIES, II. d. As to covenants, see COVENANTS AND CON- DITIONS. Right of creditors to reach interest of man under contract for his support, see ! CREDITORS' BILL, 19. 20. Effect of custom on, see CUSTOM. Measure of damages as to, see DAMAGES, j III. a. For separate support and maintenance, see j DIVORCE AND SEPARATION, VIII. Effect of remarriage on contract as to al- , lowance to wife, after divorce, see Di- i VORCE AND SEPARATION, 162. Power of equity to compel renewal of, see EQUITY, 69. Fraud in misreading contract to other par- ty, see ESTOPPEL. 182. Estoppel by, see ESTOPPEL, III. d. Sufficiency of evidence to show incapacity of one of contracting parties, see EVI- DENCE, 324, 2222. Parol evidence of lost contract, see Evi- , DENCE, 706. Admissibility of receipted bill to show exist- ence of contract, see EVIDENCE, 874. Digest 1-52 Agreement that rent may be liquidated by giving note, as collateral agreement, see EVIDENCE, 043. Presumption and burden of proof as to, see EVIDENCE, II. k. Evidence as to genera llv, see EVIDENCE, XI. o. Sufficiency of evidence as to, see EVIDENCE, XII. i. Power of municipality to regulate gas rates by, see GAS, III. b. Of guaranty, see GUARANTY. Of Indians, see INDIANS. Injunction to protect contract rights, see INJUNCTION, I. b. As to insurance contract, see INSURA.M K, III. Limiting time to sue on policy, see INSUR- ANCE, VI. h, 3. Judgment in action on contract as bar to action on quantum meruit, see JUDG- MENT, 190. Conclusiveness of judgment in action on, see JUDGMENT, II. d, 0. Of judge to return salary, if statute under which paid is declared unconstitutional, see JUDGES, 27. As to bidding off property at judicial sale, see JUDICIAL SALE, 7. What changes contract from an executed to an executory one, see LANDLORD AND TENANT, 12. As to when statute of limitations begins to run, see LIMITATION OF ACTIONS. II. b. When action is barred, see LIMITATION OF ACTIONS, III. b. As to compensation of employee, see MAS- TER AND SERVANT, I. c. As to mortgages, see MORTGAGE. Effect of foreclosure, on contract with water company, see MORTGAGE, 00. Liability of purchaser of railroad at fore- closure sale on contracts of company, see MORTGAGE, 13(5. Liability of seller or manufacturer for in- jury due to defects in things Sold or manufactured, see NEGLIGENCE, I. b, 2. Ratification by principal of agent's attempt to modify contract, see NOTICE, 44. As to novation, see NOVATION. Waiver by father of his rights under con- tract made for benefit of child, see PARENT AND CHILD, 5. For partnership, see PARTNERSHIP. Power of partners respecting, see PARTNER- SHIP, 25, 26. Assumption of, see PLEADING, 55. Pleading as to, see PLEADING, II. h. Effect of, to create relation of principal and agent, see PRINCIPAL AND AGENT, 3. Agent's authority as to, see PRINCIPAL AND AGENT, II. Liability of agent on, see PRINCIPAL AND AGENT, 108-112. Action against sureties upon void contract by foreign corporation, see PRINCIPAL AND SURETY, 5. Release of surety by change of, see PRINCI- PAL AND SURETY, 36-42. Record of, see RECORDS AND RECORDING LAWS. CONTRACTS, I. a, b. Reformation of, see INFORMATION OF IN- STRUMENTS. Of sale, see SALE. Unlawful interference with, by rule for- bidding teachers to wear religious garb, see SCHOOLS, 25. Set-off of claim in contract against claim in tort, see SET-OFF AND COUNTERCLAIM, 42. Specific performance of, see SPECIFIC PER- FORMANCE. Of state, see STATE. Treating contract for sale of land as real estate for purpose of taxation, see TAXES, 33. As to delivery of telegram, see TELEGRAPHS, 'II. Question for jury as to existence of insur- ance contract, see TRIAL, 645. Between state and publishing company for publication of state reports as creat- ing fiduciary relation, see TRUSTS, 55. Individual liability of trustee on, see TRUSTS, 120. Of United States, gee UNITED STATES, VI. For purchase of land, see VENDOR AND PUR- CHASER. As to water rights, see WATERS, II. j. /. Natiire, form and requisites, a. In general. (See also same heading in Digest L.Tf.A. 1-10.) 1. An agreement to make a contract in the future is not binding unless all the terms and conditions are agreed upon, and nothing is left to future negotiations. St. Louis & S. F. R. Co. v. Gorman, 28: 637, 100 Pac. 647, 79 Kan. 643. Parties. By corporation, see CORPORATIONS, IV. d. By county, see COUNTIES, II. d. Power of married woman to contract, see HUSBAND AND WIFE, I. b, 2. Contracts between husband and wife, see HUSBAND AND WIFE, IT. e. Antenuptial contract, see HUSBAND AND WIFE, II. i. By insane persons, see INCOMPETENT PER- SONS, II. By infant, see INFANTS, I. d, 2. By agent, see PRINCIPAL AND AGENT. By receiver, see RECEIVERS, II. By religious society, see RELIGIOUS SOCIE- TIES, VII. As to mental capacity to make wills, see WILLS, I. d. 2. The mere signing of one's name to a contract does not make him a party there- to, if the contract states that it is between other parties, and the person so signing is not mentioned therein. Shriner v. Craft, 28: 450, 51 So. 884, 166 Ala. 146. 3. The contract for the sale of cattle is between the principal and the owner of the cattle, where the owner, after negoti- ating for the sale thereof with an agent, telegraphed the agent's principal, asking if the agent's draft for a stated amount for Digest 1-52 L.R.A.(N.S.) the cattle would be honored, and the princi- pal replied that the draft would be honored as per terms stated in the telegram if the cattle were billed to him, so as to prevent recovery from the principal of a different price from that stated in the telegram de- livered to him, although another price had been agreed upon by the agent, and the price quoted to the principal differed there- from because of the negligence of the tele- graph company. Strong v. Western U. Teleg. Co. 30: 409, 109 Pac. 910, 18 Idaho, 389. b. Implied agreements. (See also same heading in Diqest L.K.A. 1-10.) Of warehousemen to exercise reasonable care, see ACTION OR SUIT, ]07. Suing on express contract under one count and implied contract under other count, see ACTION OR SUIT, 107. By assignee of contract to indemnify assign- or for loss caused by assignee's default, see ASSIGNMENT, 25. To pay for animals negligently driven in front of railroad train, see ATTACH- MENT, 8. Implied contract raised by warranty, see BANKRUPTCY, 115. To pay indebtedness discharged in bank- ruptcy, see BANKRUPTCY, 159. That carrier agreeing with shipper to stop goods in transit and return them to shipper will return them safely, see CARRIERS, 973. As to time for presenting check, see CHECKS, IL Implied covenant or condition, see COVE- NANTS AND CONDITIONS, 14-19; LAND- LORD AND TENANT, II. b, 2. Measure of recovery on, see DAMAGES, 100, 104, 119. Estoppel to recover on, see ESTOPPEL, 146. That city may regulate gas rates, see GAS, 23. Implied exemption from municipal taxation, see MUNICIPAL CORPORATIONS, 494. That land in name of one partner shall be partnership property, see PARTNERSHIP, 43. To pay for emergency services rendered by surgeon, see PHYSICIANS AND SURGEONS, 35. Pleading in action on, see PLEADING, 230, 231. Extending by implication to purchaser rem- edy other than that specified in con- tract, see SALE, 98. Implied warranty, see SALE, II. To remove standing timber within certain time, see TIMBER, 6, 8-10. Implied tuust, see TRUSTS, I. d. See also infra, 57, 705. 4. Custom cannot create a contract where none otherwise exists. Thomas v. Guarantee Title & T. Co. 26: 1210, 91 N. E. 183, 81 Ohio St. 432. 5. No implied obligation to share in (JON TRACTS, I. b. the cost of a partj wall arises upon the use of it by the owner of one of the lots on which it stands. Hawkes v. Hoffman, 24: 1038, 105 Pac. 156, 56 Wash. 120. 6. The mere use of a patented article, even with knowledge of the patentee, raises no implied promise to pay royalties there- on. May v. Western Lime Co. 44: 333, 118 Pac. 895, 65 Wash. 696. (Annotated) 7. Ordinarily, there is an implied agree- ment on the part of the vendor in every contract for the sale of land that he will transfer a good title to the vendee, un- less the contract relieves the vendor of that obligation. Justice v. Button, 38: i, 131 N. W. 736, 89 Neb. 367. 8. The obligation of one who accepts a deed which requires him to make a pay- ment to a stranger is that only of a sim- ple contract debtor on an implied promise. Barnes v. Crockett, 36: 464, 68 S. E. 983, 111 Va. 240. 9. The law implies a contract by the maker of a note to reimburse the accom- modation indorser the amount which he is compelled to pay thereon, and therefore, if the note is barred in favor of the maker when its amount is collected from the in- dorser's estate, the time having been ex- tended as to if by the administration pro- ceedings, the estate has a right of action against the maker upon the implied con- tract for reimbursement.' Blanchard v. Blanchard, 37: 783, 94 N. E. 630, 201 N. Y. 134. 10. The mere fact that a broker carry- ing stocks for his customer on margin ac- cepts a stop-loss order, in which a certain price is named, does not imply that he agrees to carry the stock until that price is reached. Richter v. Poe, 22: 174, 71 Atl. 420, 109 Md. 20. (Annotated) 11. An agreement on the part of one sell- ing a business not to compete with the buyer is not implied from a sale of the good will. Bradford v. Montgomery Furni- ture Co. 9: 979, 92 S. W. 1104, 115 Tenn. 610. 12. Under a contract by one person to publish a book for another, the law implies the obligation on the part of the latter to furnish the manuscript for it. Jones v. Gammel Statesman Pub. Co. 8: 1197, 99 S. W. 701, 100 Tex. 320. 13. The use by a publishing company which has contracted with the state to print copies oi the reports of its supreme court for a certain price, of the uncopyrighted manuscripts or stereotyped plates belonging to the state and intrusted to the company to enable it to carry out its contract, for the purpose of printing copies of the re- ports, which it sells for its own benefit with- out the consent of the state, is a violation of its implied agreement not to use the property for any other purpose than that contemplated in the contract, for which -a recovery may be had upon suitable allega- tions. State v. State Journal Co. 9: 174, 106 N. W. 434, 75 Neb. 275. 14. A publisher who has contracted to print for the state a certain number of Digest 1-52 L.R.A.(N.S.) volumes of supreme court reports for an agreed compensation is not thereby preclud- ed from manufacturing and selling volumes containing the same literary matter, on his own account, where it was uncopyrighted and had already been given to the public; nor will the law imply an agreement on his part not to do so. State v. State Journal Co. 9: 174, 106 N. W. 434, 75 Neb. 275. (Annotated) 15. An artist who, after filling an order to paint a portrait from photographs of the deceased wife of his customer, proceeds with- out orders to paint another, cannot compel the customer to pay for it if it is placed in his possession for inspection and retained by him, since the act of painting it constitutes a violation of the contract and breach of trust. Klug v. Sherills, 7: 362, 109 N. \V. 656, 129 Wis. 468. (Annotated) 16. Where one's land has been appro- priated without first securing the right, as a railway right of way, and a road construct- ed thereon, he may waive his remedies in ejectment, injunction, and trespass, and, as- suming that the company could acquire the land in condemnation proceedings, waive such proceeding, and sue as upon an im- plied contract to pay the reasonable value of the land taken. Bois6 Valley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. 17. The law implies a contract to pay the fair value for work and materials used in the erection of a building on one's land, under a contract the clause in reference to the price in which fails because of the fraud of the architect in inserting different amounts in the copies delivered to the owner and the contractor, so that the minds of the parties never met on the price. Vickery v Ritchie, 26: 810, 88 N. E. 835, 202 Mass. 247. (Annotated) 18. The contract arising from an offer made by a newspaper to answer inquiries from readers desiring financial advice, and a letter written in response to such offer asking for the name of a good stock broker, while not amounting to a warranty of the character or conduct of the broker named, amounts to a contract to take reasonable care in the nomination of a broker. De La Bere v. Pearson, Ltd., 1 B. R. C. 21 [1908] 1 K. B. 280. Also Reported in 77 L. J. K. B. N. S. 380, 98 L. T. N. S. 71, 24 Times L. R. 120. 19. The implied contract to use reason- able care that the person recommended as a broker should answer the description of a good stock broker, which arises where in re- sponse to a newspaper offer to give advice witli reference to investments a person writes asking for a safe investment for a certain sum and also for the name of a "good stockbroker," is breached by the rec- ommendation of a broker not a member of the stock exchange without making reason- able inquiries about him. De La Bere v. Pearson. Ltd., 1 B. R. C. 21, [1908] 1 K. B. 280. Also Reported in 77 L. J. K. B. N. S. 380, 98 L. T. N. S. 71, 24 Times L. R. 120. 20. One who presents to a corporation a CONTRACTS, I. b. 615 transfer of stock with a, request that it be registered in his name, impliedly undertakes to indemnify the corporation against any loss resulting from the transaction; and therefore, although he acted in good faith, is bound to indemnify the corporation against its liability to the former owner of the stock^ whose signature to the transfer proves to have been forged. Sheffield v. Barclay, 2 B. R. C. 514, [1905] A. C. 392. Also Reported in 74 L. J. K. B. N. S. 747, 69 J. P. 385, 54 Week. Rep. 49, 93 L. T. N. S. 83, 21 Times L. R. 642, 10 Com. Cas. 287, 12 Manson, 248, 3 L. G. R. 992. (Annotated) 21. Where a person invested with a statutory or common-law duty of a minis- terial character is called upon to exercise that duty on the request, direction, or de- mand of another, and without any default on his own part acts in a manner which is apparently legal but is in fact a breach of duty, and thereby incurs liability to third parties, there is implied by law a contract by the person making the request to keep indemnified the person having the duty against any liability which may result from the exercise of the supposed duty; and it makes no difference that the person making the request is not aware of the in- validity in his title to make the request, or could not with reasonable diligence have dis- covered it. Sheffield Corporation v. Bar- clay, 2 B. R. C. 514, [1905] A. C. 392. Also reported in 74 L. J. K. B. N. S. 747, 69 J. P. 385, 54 Week. Rep. 49, 93 L. T. N. S. 83, 21 Times L. R. 642, 10 Com. Cas. 287, 12 Manson, 248, 3 L. G. R. 992. 22. No contract between the manufactur- er of goods and a retailer who has pur- chased them from a wholesaler, which will bind the retailer to adhere to the minimum selling price fixed by the manufacturer, is created by attaching to the goods a label or notice stating that acceptance of the goods will be deemed a contract between a pur- chaser and the manufacturer that he will observe the condition fixing the retail price, and that in the case of a purchase by a re- tail dealer through a wholesale dealer, the latter shall be deemed to be the agent of the manufacturer. Taddy & Co. v. Sterious & Co. 3 B. R. C. 286, [1904] 1 Ch. 354. Also Re- ported in 73 L. J. Ch. N. S. 191, 52 Week. Rep. 152, 89 L. T. N. S. 628, 20 Times L. R. 102. Ta pay for services. Right to recover for gratuitous services, see ASSUMPSIT, 3. Measure of recovery on, see DAMAGES, 119. Effect of filing claim against estate as widow to prevent recovery for services, see ELECTION OF REMEDIES, 27. Presumption that services of foster child were gratuitous, see EVIDENCE, 537. Sufficiency of evidence to show implied con- tract, see EVIDENCE, 2274. Right of wife to maintain action upon im- plied contract, see HUSBAND AND WIFE, 166. Effect of judgment to bar action on implied contract, see JUDGMENT, 187. See also supra, 17; infra, 33-38, 40, 43, 43. Digest 1-52 L.R.A.(N.S.) 23. There is no general equitable princi- ple that one who receives the benefit of an- other's work is liable to pay for it. Re English & Colonial Produce Co. 4 B. R. C. 748, [1906] 2 Ch. 435. Also Reported in 75 L. J. Ch. N. S. 831, 95 L. T. N. S. 85, 22 Times L. R. 69, 13 Manson, 337. 24. No contract to compensate one for services can be implied where the statute requires an express contract to do so to be in writing. Selvage v. Talbott, 33: 973, 95 N. E. 114, 175 Ind. 648. 25. No recovery can be had on quantum meruit for services rendered in procuring a purchaser for real estate, where thej-e is no written contract to make compensation, as required by statute. Selvage v. Talbott, 33: 973, 95 N. E. 114, 175 Ind. 4548. 26. One who performs services for an- other, based upon a contract void under the statute of frauds, can recover from him only so much as he has been enriched by the transaction. Henrikson v. Henrikson, 33: 534, 127 N. W. 962, 143 Wis. 314. 27. No promise is implied on the part of a woman to pay a physician for profes- sional services rendered to her daughter, who was living with her husband, and not dependent on the mother for support, from the fact that the services were rendered upon the mother's request or importunity. McGuire v. Hughes, 46: 577, 101 S. E. 460, 207 N. Y. 516. (Annotated) 28. One rendering services for another under the assurance that no charge will be made for them cannot recover for their value on the theory that a charge would have been made had he not believed that another agreement between the parties would have been carried out. Cochran v. Zachery, 16: 235, 115 N. W. 486, 137 Iowa, 585. 29. A corporation does not, by accepting the benefit of services rendered by a pro- moter in securing stock subscriptions, ren- der itself liable on an agreement by an- other promoter that he shall be paid for such services. Cushion Heel Shoe Co. v. Hartt, 50: 979, 103 N. E. 1063, 181 Ind. 167. (Annotated) 30. In the absence of a provision in an excavation contract for the price at which a certain class of materials shall be moved, the contractor is entitled to the reasonable value of the work. Indianapolis North- ern Traction Co. v. Brennan, 30: 85, 87 N. E. 215, 90 N. E. 65, 171 Ind. 1. 31. One who has been received in in- fancy into a family not of kin must show, in order to recover for services rendered the family after majority while still re- maining in the household, either an ex- press contract, or circumstances from which a contract to compensate her for such serv- ices may be implied. Howard v. Ran- dolph, 29: 294, 68 S. E. 586, 134 Ga. 691. 32. The estate of one who takes an or- phan not of kin, when but three years of age, into his family, assuming the rela- tion of a parent, and educating and sup- porting the child, is not liable, in the ab- sence of express agreement, to pay wages 616 CONTRACTS, I. b. to the child, after the death of the person in loco parentis, for services rendered by the child while a minor to snch parent, although the value thereof may exceed the expenses of education and support. Howard v. Randolph, 29: 294, 68 S. E. 086, 134 Ga. 601. Between relatives. Review of finding by jury that services were not gratuitous, see APPEAL AND KRROR, 901. Guardian's right to credit for lodging and services, see GUARDIAN AND WARD, 7. Measure of recovery on, see DAMAGES. 104. 3 For liquor bonds, see BONDS, 32. For carriers contract to issue annual passes ' for life, see CARRIERS, 3061. Effect on oral contract of written contract made without consideration subsequent to breach of oral contract, see CARRIERS, 957. For chattel mortgage, see CHATTEL MORT- GAGE, 5, 6. Of deed, see DEEDS. Presumption of, from seal, see EVIDENCE, 538, 539. Evidence as to consideration for, see EVI- DENCE, XT. m. Weight of evidence on question of, see EVI- DENCE, 2261. For bid of purchaser at administrator's sale, see JUDICIAL SALE, 14. Landlord's gratuitous promise to repair, see LANDLORD AND TENANT, 110. For mortgage, see MORTGAGE, 18. Admission of consideration by pleading, see PLEADING, 87. Sufficiency of answer to set up want of, see PLEADINO, 529. Digest 1-52 L.R.A.(N.S.) Raising by demurrer defense of want of, see PLEADING, 586. New consideration to support contract of suretyship entered into after note was delivered, see PRINCIPAL AND SURETY, 1. Failure to state consideration in tax deed, see TAXES, 223, 224. See also infra, 704. 51. When there is by law no enforce- able obligation to pay, a promise made afterwards to pay wants legal considera- tion, and is not enforceable. Gooch v. Allen, 37: 930, 73 S. E. 56, 70 W. Va. 38. 52. A written consent by the husband to the devise by the wife of her real prop- erty, does not require a consideration to support it. Erickson v. Robertson, 37: 1133, 133 N. W. 164, 116 Minn. 90. 53. A consideration is necessary to sup- port an agreement to indemnify a surety on a note against loss which may be in- curred on account of the suretyship. Da- viess County Bank & T. Co. v. Wright, 17: 1122, 110 S/W. 361, 33 Ky. L. Rep. 457. 54. An agreement without consideration to fix the division line between two adjoin- ing property owners at a place which is known by both parties not to be the true line is without effect. Lewis v. Ogram, 10: 610, 87 Pac. 60, 149 Cal. 505. (Annotated) 55. A promise by the county treasurer to return money deposited with an applica- tion for a liquor license, to one advancing it to the applicant, in case the license is re- fused, is without consideration, and not binding, where the law specifies that the deposit shall be returned to the applicant who has not consented to the new contract. Hemrich Bros. Brewing Co. v. Kitsap Coun- ty, 9: 910, 88 Pac. 838, 45 Wash. 454. For release. Sufficiency of consideration for, see infra, 89-92. 56. A release by one insured against loss of time through sickness by a policy pro- viding that if a disability is of longer dura- tion than thirteen weeks, payment shall be made at the end of that time from the beginning of the illness, upon receiving a draft for fifteen weeks' disability, "of all claim for indemnity on account of illness" beginning on the date upon which that upon which the claim is founded originated, is invalid, if attempted to be applied to claims for disability after the time of settlement growing out of the same illness, as not sup- ported by any consideration. Moore v. Maryland Casualty Co. 24: 211, 63 S. E. 675, 150 N. C. 153. 2. Sufficiency. (See also same heading in Digest L.R.A. 1-70.) Inadequacy of consideration as ground for rescinding contract, see infra, 704. For satisfaction of debt, see ACCORD AND SATISFACTION, 21, 22. 618 CONTRACTS, I. c, 2. Sufficiency of moral obligation, see ASSUMP- SIT, 42. For bills or netes, see BILLS AND NOTES, I. c. For contractor's bond, see BONBS, 13. For separation agreement, see DIVORCE AND SEPARATION, 165. Setting aside for inadequacy of considera- tion, see EQUITY, 62. Estoppel to maintain action to set aside con- tract for illegality of consideration, see ESTOPPEL, 122. Parol evidence as to, see EVIDENCE, VI. g. Of conveyance attacked for fraud, see FRAUDULENT CONVEYANCES, II. For gift, see GIFTS, 2. Marriage as consideration, see HUSBAND AND WIFE, 57, 101, 131, 132. For antenuptial contract, see HUSBAND AND WIPE, 131-133. Of contract conferring option to work oil and gas mine, see MINES, 58. Sufficiency of allegations to show inadequacy of consideration, see PLEADING, 254. For renewal of note, see PRINCIPAL AND SUBETY, 48. To sustain right to specific performance, see SPECIFIC PERFORMANCE, 109. Effect of inadequacy of consideration on right to specific performance of con- tract, see SPECIFIC PERFORMANCE, 115- 118. As question for jury, see TRIAL, 621. To show bona fides in purchase of land, see VENDOR AND PURCHASER, 94, 103. See also infra, 441, 442. 57. There is a sufficient consideration for the implied undertaking to use reason- able care that the person recommended as a broker should answer the description of a good stock broker, which results from the acceptance of an offer made by a newspaper that its city editor would answer inquiries from readers desiring financial advice, by a reader who wrote asking for a safe invest- ment for a certain sum, and also for the name of a good stock broker. De La Bere v. Pearson, Ltd., 1 B. R. C. 21, [1908]! K. B. 280. Also Reported in 77 L. J. K. B. N. S. 380, 98 L. T. N. S. 71, 24 Times L. R. 120. 58. The fact that a debt barred by the statute of limitations still exists affords a sufficient consideration to uphold a new promise to pay it. Spilde v. Johnson, 8: 439, 109 N. W. 1023, 132 Iowa, 484. 59. A promise by the maker of a note to pay soon is no consideration for a prom- ise to refrain from suing upon it. Perrin v. Chandler, 17: 1239, 69 Atl. 874, 81 Vt. 270. 60. That one holding a note payable to him, but not to his estate, postpones suing upon promise by the debtor to pay soon, does not raise a new obligation on his part for the benefit of the estate; and therefore the estate cannot enforce the note upon death of the holder before suit is brought. Perrin v. Chandler, 17:1239, 69 Atl. 874, 81 Vt. 270. 61. The payment of $1 is not a proper or fair consideration to support an option Digest 1-52 to purchase real estate worth nearly a thousand dollars. Rude v. Levy, 24: 91, 96 Pac. 560, 43 Colo. 482. 62. The agreement by one who, having a right to support on property left by her father for the use of her stepmother during life, after deciding to leave the place, to re- main and continue to render services there for compensation to be paid by the step- mother, is a valid consideration to support the promise of compensation. Fend v. Pond, 8: 212, 65 Atl. 97, 79 Vt. 352. 63. That a promise to pay for services in furnishing information to a prospective pur- chaser of property for sale is not made until after the information is furnished will not defeat a recovery on the promise where the information was furnished in accordance with a previous request therefor. Friedman v. Suttle, 9: 933, 85 Pac. 726, 10 Ariz. 57. 64. One owning land adjoining a ceme- tery in which his kindred are buried may, in leasing the right to take gravel from his property, make an enforceable contract against the removal of lateral support from the cemetery, both because of his interest in protecting the remains of his dead and to protect himself from liability as an ad- joining property owner for authorizing the possible removal of lateral support from the cemetery property. Orr v. Dayton & M. Traction Co. 48: 474, 96 N. E. 462. 178 Ind. 40. (Annotated) 65. A transfer by a city of a sick horse belonging to 'it, in consideration that the grantee will give it a good home for the rest of its life, not overwork it, and finally put it out of the way and bury it, is valid, although a small cash sum might have been received- for it, and the city cannot recover possession of the animal when it improves in health, so that it is able to do some work. Rockland v. Anderson, 43: 1137, 85 Atl. 1066, 110 Me. 272. (Annotated) 66. A check delivered by a man to his physician, to pay for past and future serv- ices, and a further sum as a present for faithful attendance, is supported by suffi- cient consideration, so that it can be en- forced against his estate as a contract, al- though, by reason of the fact that it is not made payable until after testator's death, it is not enforceable as a check. Foxworthy v. Adams, 27:308, 124 S. W. 381, 136 Ky. 403. 67. A pledge of stock as security for an existing overdue note is supported by a sufficient consideration. State Banking & T. Co. v. Taylor, 29: 523, 127 N. W. 590, 25 S. D. 577. 68. An agreement by a trust company to loan a specified sum of money upon the com- pletion of a building to cost a certain sum, and when security (consisting of life insur- ance policies of the borrower and another) should be furnished, the payment of the premiums upon the policies to be secured by bonds and real-estate mortgages, is founded upon a good consideration, where the bor- rower incurred indebtedness in perfecting his application for insurance, made contracts with materialmen upon the faith of the ad- CONTRACTS, I. c, 2. vancement of the money, and executed a mortgage to secure payment of the pre miums, and permitted it to be recorded. Holt v. United Security L. Ins. & T. Co. (N. J. Err. & App.) n: 100, 67 Atl. 118, 74 N. J. L. 795. 6%. A promise by a telegraph company to notify the sender if a message is not de- livered is supported by the consideration made for transmission of the message. Lvles v. Western U. Teleg. Co. 12: 534, 57 S. E". 725, 77 S. C. 174. 70. The personal knowledge of a sales agent located at a commercial center, ac- quired in the sale of his line there, his ex- perience in the business, his acquaintance with available salesmen and to probable customers, and his ability to secure a similar agency in a rival house, may be found to constitute what the parties refer to as good *vill which his principal purchases from him when placing another person in charge of the agency, so as to form a consideration for the amount agreed to be paid therefor. Gordon v. Knott, 19: 762, 85 N. E. 184, 199 Mass. 173. 71. A contract between a man and wife as to the support of their child is not de- pri'-ed of consideration to support it by the fact that at the time it is made a di- vorce proceeding is pending between them, so that the question or the custMy of the child is a matter for the determination of the court, if the court in fact neglects to provide for it further than merely to award it to one of the parties. Ward v. Good- rich, 2: 201, 82 Pac. 701, 34 Colo. 369. 72. A senior mortgagee is not estopped to claim a paramount lien as against a junior mortgagee by reason of the execu- tion by him of a written agreement that the junior mortgage shall constitute a prior lien, where such agreement states no con- sideration, and it appears that no con- sideration passed to the first mortgagee, and the only consideration claimed is that the second mortgagee made advances and loans to the mortgagor which he would not have otherwise made, it further appearing that advances and loans had been made by him prior to the making of the agreement, that there was no change in the method of mak- ing such advances or loans, and that the second mortgagee was under bond to see that the mortgagor carried out and fulfilled a contract for which such advances were made, as in such case the agreement is un- enforceable, because without consideration. Porter v. Monarch, 27: in, 106 Pac. 299, 17 Idaho, 364. 73. The covenant of an insolvent part- ner to assume and pay the debts of an in- solvent partnership is a valuable considera- tion, sufficient to support a conveyance of an interest in the partnership property. Sargent v. Blake, 17:1040, 160 Fed. 57, 87 C. C. A. 213. 74. A provision in a contract for the sale of machinery, that acceptance of it shall constitute a waiver of all claim for damages for delay in delivery, is not in- valid for want of mutuality and considera- Digest 1-52 I,.R.A.(N.S:) tion; nor is it opposed to public policy. Victor Chemical Works v. Hill Clutch Co. 10: 814, 152 Fed. 393, 81 C. C. A. 519. 75. Where a father voluntarily told a great-grandfather of his child, three days old, that he might take and keep the child as long as he and his wife lived, or until the child was twenty-one years- of age, and the grandparent did take, keep, maintain, and protect it for about three years, the contract thus entered into is not open to the objection that it is unilateral and without consideration. Wilkinson v. Lee, 42: 1013, 75 S. E. 477, 138 Ga. 360. 76. Express rescission of an existing con- tract is not necessary to uphold a ' w one providing for additional compensation for the performance of the same work, where the parties treat their rights under the original contract as waived, although at the time there had been a breach by one of the parties to it, which breach, because of sub- stantial unforeseen difficulties not within the contemplation of the parties, was equi- table and fair. Linz v. Schuck, u: 789, 67 Atl. 286, 106 Md. 220. Agreement to repurchase vendee's interest. 77. The delivery by a conditional vendee in possession, who is in default in his pay- ments, of possession to the vendor, and his execution and placing in escrow of a deed revesting title to the property in the vendor, is a sufficient consideration for an agree- ment by the vendor to pay for his interest in the property. Rogers Development Co. v. Southern California Real Estate Invest. Co. 35: 543, 115 Pac. 934, 159 Cal. 735. 78. A contract made by a conditional vendor, after default on the part of the vendee, to repurchase the vendee's interest, is capable of enforcement, although in its absence the vendor might have claimed a forfeiture under the terms of the original agreement. Rogers Development Co. v. Southern California Real Estate Invest. Co. 35: 543, 115 Pac. 934, 159 Cal. 735. ( Annotated ) Agreement to refrain from business. 79. The amount paid for a newspaper plant furnishes a consideration not only for the transfer of the physical property, but also for the business and good will, and for the agreement of the seller not to conduct another paper in the same county. McAuliffe v. Vaughan, 33: 255, 70 S. E. 322. 135 Ga. 852. 80. The purchase of a business is suffi- cient consideration for a covenant by the seller not to engage in a similar business within a certain distance of the place where the business sold is located. Harris v. The- us, 10: 204, 43 So. 131, 149 Ala. 133. 81. An agreement by an inexperienced physician not to practise his profession in a certain county for a period of five years is supported by a sufficient consideration where it is based on the agreement of an ex- perienced practitioner located there, to em- ploy him as assistant at a monthly salary during the mutual pleasure of the parties, to introduce him to his friends and patients, 620 CONTRACTS, I. c, 2. and furnish him with necessary conveyanoes with which to perform his professional du- ties. Freudenthal v. Espey, 26: 961, 102 Pac. 280, 45 Colo. 488. 82. A contract entered into between co- partners upon dissolution of the copartner- ship, whereby one of the partners, in con- sideration of being paid in cash the full value of his interest therein, agreed with the purchasing partner "not to engage for the next two years" in the same business theretofore conducted by the firm, in the same city, "in the manner aforesaid, or with any partner, partners, firm, company, or corporation," for such period, is based upon a sufficient consideration, as there was no legal duty resting upon either partner to purchase the interest of the other. Siegel v. Marcus, 20: 769, 119 X. W. 358, 18 N. D. 214. Agreement for support. 83. In determining the adequacy of con- sideration for a conveyance of property on an agreement to support the grantor for life, conditions as they existed at the time of the conveyance must be looked to, it being presumed that the parties had in contem- plation everything which might in any reasonable probability occur; and the con- sideration cannot be regarded inadequate because the extreme did not occur. Board- man v. Lorentzen, 52: 476, 145 N. W. 750, 155 Wis. 566. 84. One promising his stepmother that, in case she will return to and care for his father, from whom she had separated for justifiable cause, he will support her for life, cannot avoid his contract on the ground that lie received no consideration therefor, the disadvantage to the promisee being sufficient to support it. Mack v. Mack, 31: 441, 128 N. W. 527, 87 Neb. 819. Promise to pay tenant for better- ments. 85. A promise by a landlord to pay his tenant for a betterment placed upon the property by the tenant, and which he had a right to remove, but which the landlord accepted, is not without consideration, and is binding upon him. Critcher v. Watson, 18: 270, 59 S. E. 544, 146 N. C. 150. 86. The promise of a property owner to pay the cost of driving and casing a well which his tenant has constructed on the property is supported by a sufficient consid- eration if the services were beneficial to him and were not intended to be gratuitous. Edson v. Poppe, 26: 534, 124 N. W. 441, 24 S. D. 466. Ratification of agent's contract. 87. No new consideration is necessary to support a ratification by a principal of an unauthorized contract by his broker to sell real estate. McLeod v. Morrison & Eshelman, 38: 783, 120 Pac. 528, 66 Wash. 683. Withdrawal of competition. 88. Withdrawing competition for a par- cel of real estate is a sufficient considera- tion for an undertaking to pay a sum of money to secure such withdrawal. White Digest 1-52 L,.R.A.(N.S.) v. McMath & Johnston, 44: 1115, 156 S. W. 470, 127 Tenn. 713. Release. See also supra, 50. 89. Continued employment as a porter on a sleeping car is a sufficient considera- tion for the signing of a release of liabil- ity for personal injuries caused through the negligence of the railroad company hauling the car. Chicago, R. I. & P. R. Co. v. Ham- ler, i: 674, 74 N. E. 705, 215 111. 525. 90. Medical attention furnished by an employer to an employee injured by Ins ing- ligence is not a sufficient consideration to support a release of liability to ma! e com- pensation for the injury. Kennedy v. Spo- kane, P. & S. R. Co. 46: 419, 132 Pac. 50, 73 Wash. 389. (Annotated) 91. That a railroad company which is not shown to have contributed to the main- tenance of a department for tiie relief of in-, jured employees has undertaken to guaran- tee the fulfilment of the obligations of the department does not furnish a consideration for an agreement by an employee to re- lease it from liability for injuries negli- gently indicted upon him, if it has the power to place the entire burden of the department upon employees. King v. At- lantic C. L. R. Co. 481*450, 1-1 S. E. 801, 157 N. C. 44. (Annotated) 92. A compromise agreement to pay an injured employee his wages while in- capable of work, in consideration that he forego suit on a claim against the employer, made in good faith, and on which liability was denied, for alleged mistreatment accord- ed him at a hospital to which he had gone at the request of the employer, is based upon a sufficient consideration and is valid, irrespective of whether or not both parties considered the question a doubtful one. Heath v. Potlatch Lumber Co. 27: 707, 108 Pac. 343, 18 Idaho, 42. For release of mortgage. 93. Payment of part of a matured mort- gage debt may constitute a consideration for release of the whole of it. Frye v. Hubbell, 17:1197, 68 Atl. 325, 74 X. H. 358. 94. Acquisition of the right to collect the rents of mortgaged property prior to the time when the mortgagee is entitled to them under the mortgage is a sufficient con- sideration for his promise to accept the amouiit received at the foreclosure sale in satisfaction of the mortgage. Gilson v. Nesson, 17:1208, 84 X. E. 854, 198 Mass. 598. 95. A promise by a mortgagee, on fail- ure of the net proceeds of a sale of the mortgaged property to equal the debt, to take less than the debt in full discharge of it, is without consideration and void. Gil- son v. Nesson, 17: 1208, 84 N. E. 854, 198 Mass. 598. For promise of third person. 96. Where a lease and a surety's obliga- tion guaranteeing the payment of rent are delivered at the same time, each contract becomes complete at such time, and the consideration which supports the principal contract supports the subsidiary one, not- withstanding the lease was executed at CONTRACTS, I. c, 2. 621 an earlier date, and tlie tenant had enterod into occupancy of the premises, and paid an instalment of rent previous to such de- livery, the landlord having, however, re- fused to accept the lease without the sure- ty's obligation. Faust v. Rodelheim (N. J. Err. & App.) 27: 189, 73 Atl. 491, 77 N. J. L. 740. (Annotated) 97. An agreement in writing by one to take up a past-due note of another if it remains unpaid at a certain future date, without additional consideration to support it, is without consideration, and unenforce- able, where the promisor makes no request for forbearance of suit against the maker of the note, and the promisee does not agree to forbear suit; and the mere fact that he does so forbear is not suffi^jent to establish either such promise or request. J. H. Queal & Co. v. Peterson, 19: 842, 116 N. W. 593, 138 Iowa, 514. (Annotated) Promise to will property. 98. An agreement to reward one who has performed labor by a legacy, in considera- tion of his forbearing to enforce the claim in the lifetime of the promisor, is supported by sufficient consideration. Murtha v. Donohoo, 41: 246, 136 N. W. 158, 149 Wis. 483. '99. A mere agreement by a child which has been taken from an orphan asylum and has become homesick to return to it, to remain with the person who took it, with- out any undertaking as to duration of the time for continuing with him or services to be rendered, is not sufficient considera- tion for an agreement to leave property to the child to induce equity specifically to en- force it, although the child continues to conduct itself during the time of its stay as a dutiful child and renders dutiful serv- ice to the other contracting party. Bau- mann v. Kusian, 44: 756, 129 Pac/986, 164 Cal. 582. Evidence on question of consideration, see EVIDENCE, 1932, 1933. 100. Expense incurred in securing a sub- scription for a benevolent institution fur- nishes no consideration for the subscription. BroVaw v. McElroy, 50: 835, 143 N. W. 1087. 162 Towa, 288, 101. Consideration for a subscription to a university may be found from the fXcts that upon the faith of it other subscrip- tions were made, and expenditures and ob- ligations incurred by the trustees of the institution. Brokavv v. McElroy, 50: 835, 143 N. W. 1087, 162 Iowa, 288. 102. An oral promise to donate money to a Young Men's Christian Association is based upon a sufficient consideration where, during the life of the promisor, and before a withdrawal of the promise, and in re- liance on the promise, as well as that of others, the association expended money and incurred enforceable liabilities in further- ance of the enterprise the donors intended to promote. Young Men's Christian Asso. v. Estill, 48: 783, 78 S. E. 1075, 140 Ga. 291. (Annotated) Digest 1-52 L.R.A.(N.S.) Moral obligation. 103. A merely moral obligation, tfiough not illegal, is not a consideration for a promise to make that promise enforceable. Gooch v. Allen, 37: 930, 73 S. E. 56, 70 W. Va. 38. 104. A mere moral obligation is not -a sullicient consideration for a contract. Linz v. Schuck, ii : 789, 67 Atl. 286, 106 Md. 220. 105. The moral obligation of a married woman to pay for supplies furnished for use in her family at a time when she had no legal power to contract for them is not sufficient to support her promise after her disability has been removed to make such payments. Lyell v. Walbach, 33: 741, 77 Atl. 1111, 113 Md. 574. (Annotated) 106. The moral obligation to pay for serv- ices of a real estate broker under a contract unenforceable, because not in writing, is suf- ficient to support a subsequent written agreement to make such payment. Muir v. Kane, 26: 519, 104 Pac. 153," 55 Wash. 131. (Annotated) IfCssral obligation. 107. Sufficient consideration for a con- tract may be found in the fact that it puts into form the legal and equitable obliga- tions existing between the parties. Reece Folding Mach. Co. v. Fen wick, 2: 1094, 140 Fed. 287, 72 C. C. A. 39. 108. A man cannot avoid his contract to support his child, which is based solely on his legal obligation to do so, on the theory that the legal obligation is not a sufficient consideration to support the promise. Ward v. Goodrich, z: 201, 82 Pac. 701, 34 Colo. 369. Performance of existing obligation. 109. A husband cannot make a contract enforceable against his estate, to pay his wife for services rendered by her in nursing him during his last illness. Foxworthy v. Adams, 27: 308, 124 S. W. 381, 136 'Kv. 403. 110. A promise of additional compensation to induce completion of his contract by one who, having contracted to dig a cellar, aban- dons his contract because he finds an unfore- seen and unanticipated condition of soft mud in which a cellar cannot be constructed without great additional expense, may bo enforced. Linz v. Schuck, u: 789, 67 Atl. 286, 106 Md. 220. (Annotated) 111. The promise by one party to a build- ing contract to pay more for the work than the amount called for in the contract, up- on the refusal or threatened refusal of the contractor to go on with the work, the original contract still remaining in force, s without consideration and unenforceable. Shriner v. Craft, 28: 450, 51 So. 884, 166 Ala. 146. (Annotated) 112. A promise of additional compensa- tion, to induce a contractor who has aban- loned his work because of insufficiency of ;he compensation to proceed with his con- ract, is enforceable after the contract has been performed in reliance thereon. Evans v. Oregon & W. R. Co. 28: 455, 108 Pac. 1095, 58 Wash. 429. 622 CONTRACTS, I. d, 1. 113. One who contracts to construct a lionse in a workmanlike manner, according to specifications which call for a cellar wall properly laid, is bound to provide a con- crete foundation, if the excavation shows that it will be necessary to support the building, although the parties did not con- template the necessity of so doing when they made the contract; and an agreement by the owner to pay him extra compensa- tion for such service is without considera- tion, and cannot be enforced. Creamery Package Mfg. Co. v. Russell, 32: 135, 78 Atl. 718. 84 Vt. 80. 114. There is no consideration fr a prom- ise to one who has contracted in writing to publish a guidebook, to pay money to him towards the expenses of the undertak- ing, where the writing does not provide therefor, merely because he refuses to go on with the work without it. Parrot v. Mexican C. R. Co. 34: 261, 93 N. E. 590, 207 Mass. 184. Mutual promise. See also supra, 89. 115. The mutual promise of subscribers to a voting trust agreement with respect to the stock of a corporation, to be bound by the terms of the agreement, forms a sufficient consideration to uphold the agree- ment. Carnegie Trust Co. v. Security L. Ins. Co. 31: 1186, 68 S. E. 412, 111 Va. 1. Relinquishment of right. See also infra, 480. 116. Tlie release of one's obligation upon a contract to purchase real estate, which he claims to be void because made on Sun- day, is a sufficient consideration for his promise to pay the broker's commissions. Brown v. Jennett, 5: 725, 106 N. W. 747. 130 Iowa, 311. (Annotated) 117. The release by a broker of the obli- gation of the vendor for commissions for se- curing a purchaser is a sufficient considera- tion to uphold a contract by the purchaser to pay him their amount upon being re- leased from his contract. Brown v. Jennett, 5: 725, 106 N. W. 747, 130 Iowa, 311. 118. Surrendering a child to a stranger is a sufficient consideration for his undertak- ing to adopt it and give it rights of inheri- tance. Chehak v. Battles, 8:1130, 110 N. W. 330, 133 Iowa, 107. Agreement not to contest will. 119. Withdrawal of opposition made in good faith to the probate of a will is a valid consideration for a promise on the part of one interested in sustaining the will. Gro- chowski v. Grochowski, 13: 484, 109 N. W. 742, 77 Neb. 506. 120. The promise by one who in good faith intends to contest a will for a cause which does not appear to him to be vexa- tious or frivolous, not to do so, is a suffi- cient consideration for a promise to let him share in the estate, without the neces- sity of showing that the promisor had rea- sonable cause to believe that he had a fair chance of succeeding in the contest. Blount v. Dillaway, 17: 1036, 85 N. E. 477, 199 Mass. 330. Digest 1-52 L.R.A.(N.S.) Condonation of cause for divorce. 121. A contract by which a man under- takes to convey real estate to his wife upon resumption of illicit relations with his paramour, in case she condones his past offense and discontinues a proceeding for divorce against him, is supported by a val- uable consideration. Darcey v. Darcey, 23: 886, 71 Atl. 595, 29 R. I. 384. Extension of time. 122. An oral agreement for forbearance, and giving time for the payment of money then due, constitute a sufficient considera- tion to support an agreement on the part of a debtor to pay interest thereon. San- ford v. Lundquist, 18: 633, 118 N. W. 129, 80 Neb. 414. Naming child. 123. The privilege of naming a child is a valid consideration for a promise to pay money. Gardner v. Denison,' 51: 1108, 105 N. E. 359, 217 Mass. 492. (Annotated) d. Meeting of minds; deflnitencss. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Plea of non est factum in action on note, see APPEAL AND ERROR, 1380. See also supra, 17; infra, 620. 124. The law will not imply a price for an article sold and delivered where there has been a misunderstanding between the parties as to the price, one party under- standing one sum, and the other another Estey Organ Co. v. Lehman, n: 254, 111 N. W. 1097, 132 VVis. 144. Mistake or fraud. Notice to person accepting bid of mistake of bidder as to quantity of material necessary, see NOTICE, 13. 125. An experienced contractor who ac- cepts a bid for material for two roofs, with sufficient notice to put him on inquiry as to whether or not the bidder is labor- ing under the mistaken belief that material for only one roof is required, cannot hold the bidder to his contract, if he was in fact laboring under such mistake, but the lat- ter may recover on a quantum meruit for the material actually furnished. Hudson Structural Steel Co. v. Smith & Rumery Co. 43: 654, 85 Atl. 384, 110 Me. 123. (Annotated) 126. The plea of non est factum cannot be supported by proof of misrepresentation as to the contents of an instrument the gen- eral character of which is known, ,and of which it is within the power of the signer to inform himself. Howatson v. Webb, 4 B. R. C. 642, [1908] 1 Ch. 1. Also Report- ed in 77 L. J. Ch. N. S. 32, 97 L. T. N. S. 730. (Annotated) 127. One who has signed a guaranty in the belief, induced by fraud, that it is a paper relating to insurance, may set up the defense of non est factum in an action there- on. Carlisle & Cumberland Bkg. Co. v. CONTRACTS, I. d, 2. 623 Bragg, 4 B. R. C. 653, [1911] 1 K. B. 489. Also Reported in 80 L. J. K. B. N. S. 472, 104 L. T. N. S. 121. (Annotated) 128. One who has signed without exami- nation an instrument, knowing it to deal with certain property the title to which he holds for another's accommodation, relying upon such other's representations that it is a deed transferring the property, when in fact it is a mortgage, is liable on a covenant therein for payment of principal and in- terest. Howatson v. Webb, 4 B. R. C. 642, [1908] 1 Ch. 1. Also Reported in 77 L. J. Ch. N. S. 32, 97 L. T. N. S. 730. (Annotated) 2. Mutuality. (See also same heading in Digest L.R.A. 1-10.) Of oral contract to furnish cars for ship- ment of stock, see CARRIERS, 958. Want of mutuality as bar to injunction, see INJUNCTION, 26. When insurance contract completed, see IN- SURANCE, 83, 128-137. Contract leasing oil and gas mines, see MINES, 57, 62. Of party wall agreement, see PARTY WALLS, 2. " As affecting specific performance, see SPE- CIFIC PERFORMANCE, 9-18. See also supra, 74 ; infra, 706. 129. An agreement entered into between competent parties, in order to be binding, must be mutual, and this is especially true when the consideration consists of mutual promises, and, if it appears that one party never was bound on his part to do the acts which form the consideration for the promise of the other, the agreement is void for want of mutuality. Houser v. Hobart, 43:410, 127 Pac. 997, 22 Idaho, 735. 130. The rule of law that a promise is a good consideration for a promise requires that there should be an absolute, mutuality of engagements, so that each party may have an action upon it, or neither will be bound. Houser v. Hobart, 43: 410, 127 Pac. 997. 22 Idaho, 735. 131. If a person, for a consideration mov- ing to him from another, agrees to pay that or any other person's debt to a third party, the law, at once, operating upon the acts of the immediate parties to the trar&action, supplies the essentials of privity between such person and such third person, and establishes binding contractual relations be- tween them, even though such third party was a stranger to and had no knowledge of the transaction. Fanning v. Murphy, 4: 666, 105 N. W. 1056, 126 Wis. 538. 132. The mere physical acceptance and at- tempted enforcement by one party of a con- tract unilateral in form, executed by an- other, does not make the former a party to the contract so as to bind him to its per- formance. Levin v. Dietz, 20: 251, 87 N. E. 454, 194 N. Y. 376. 133. A contract under seal, reciting a con- sideration and certain mutual undertakings Digest 1-52 L.R.A.(N.S.) on the part of the contracting parties, is not void for want of mutuality. Mills v. Smith, 6: 865, 78 N. E. 765t, 193 Mass. 11. 134. A covenant in a lease of saloon premises, providing that the lessee shall sell no beer thereon save that manufactured by the lessor, does not lack mutuality so as to be unenforceable, although there is no express agreement on the part of the lessor to furnish the lessee with beer of its manu- facture; but the covenant is enforceable as a restriction on the use of the premises by the lessee. Joseph Schlitz Brew. Co. v. Nielsen, 8: 494, 110 N. W. 746, 77 Neb. 868. 135. An oil and gas lease for the term of ten years and as much longer as oil or gas shall be produced from the demised premises, reciting a consideration of $1, and imposing conditions for the nonperformance of which forfeiture is imposed, but contain- ing no covenant to drill a well or pay any money for failure to do so, creates a con- ditional tenancy, binding upon the lessor until expiration in accordance with the terms of the lease, provided the stipulated conditions are performed, and is not devoid of mutuality of obligation. South Penn Oil Co. v. Snodgrass, 43: 848, 76 S. E. 961, 71 W. Va. 438. 136. A covenant in a mining lease that the lessee shall work and mine the prop- erty continuously means, in the absence of other provisions, continuously to the end of the term; so that the contract is not terminable at the pleasure of the cove- nantee, and therefore is not invalid for lack of mutuality as to the term for which it is enforceable. Zelleken v. Lynch, 46: 659, 104 Pac. 563, 80 Kan. 746. 137. A written consent by a landlord to an assignment of the lease, which by its terms cannot be made without the landlord's written consent, if the tenant secures an ac- ceptable tenant, is enforceable after the ten- ant has expended time and labor in securing such tenant, although by the terms of the contract he was bound to do nothing, so that the contract was originally unilateral. Underwood Typewriter Co. v. Century Real- ty Co. 25: 1173, 119 S. W. 400, 220 Mo 522. (Annotated) Sale of personal property. Privity between seller or manufacturer of article and person injured, see NKULI- GENCE, I. b, 2. See also infra, 239. 138. Want of mutuality prevents enforce- ment of a contract to sell a specified quan- tity of whisky each year for several years under ; a private brand to a concern which has established no trade in such brand which would fix, with any degree of certain- ty, the quantity necessary to supply the demand, where the contract provides that if for any unforeseen reason the buyer can- not use the whole amount named he shall be released from the contract for the amount desired. Rehm-Zeiher Co. v. F. G. Walker Co. 49: 694, 160 S. W. 777, 156 Ky. 6. 139. The fact that under one of two writ- ten contracts of sale which were unilateral 624 CONTRACTS, I. d. 3. in character, the vendee specified certain articles which lie desired, and \vhi"h wore furnished, renders it binding on the parties to the extent only of the accepted articles. Atlanta Buggy Co. v. Hess Spring & Axle Co. 4: 431, 52 S. E. 613, 124 Ga. 338. 140. A written contract entered into be- tween a purchaser of certain goods and a person who signed for the seller, which con- tained a provision that the contract "shall only he considered binding on the seller when signed by one or more of its olliciTs is unilateral where it does not appear that it was ever so signed, or that there was any consideration for the promise of the pur- chaser except the contemplated mutual obli- gations to be assumed by the seller, and since the latter waa not bound, neither is the purchaser, who may withdraw before the contract becomes mutually binding by acceptance in the manner agreed on. At- lanta Buggy Co. v. Hess Spring & Axle Co. 4: 431, 52 ~S. E. 613, 124 v a. 338. 141. An accepted proposal by a manufac- turer to lurnish all castings for a certain time, needed by an established business, buyer to furnish the tonnage needed for any month by the 15th of the preceding one, an;l seller to make such deliveries as ti:'; other may require, is not invalid for want of mutuality. Lima Locomotive & Mach. Co. v. National Steel Castings Co. 11:713, loo Fed. 77, 83 C. C. A. 593. (Annotated) 142. A contract for a certain number of wheels, which gives the purchaser the right to taUe what its business demands above that amount up to another amount speci- fied, is not a nudum pachtm as to the op- tional portion. Connersville Wagon Co. v. McFarlan Carriage Co. 3: 709, 76 N. E. 294, 166 Ind. 123. Sale of real property. As affecting specific performance, see SPE- CIFIC PERFORMANCE, 12, 13, 15-18. See also infra, 1(52. 143. A contract for sale of real estate, embodied in a receipt reciting payment of a portion of the purchase money, and the amount and time of payment of the bal- ance, is not unenforceable against the grant- or, as lacking in mutuality. Jasper v. Wilson. 23: 982, 94 Pac. 951, 14 N. M. 482. 144. One who has signed a contract to convey standing timber cannot defeat per- formance at the suit of the other party on the ground that the contract is unenforce- able because not binding on the latter. Dennis Simmons Lumber Co. v. Corey, 6: 468, 53 S. K. 300. 140 N. C. 462. 145. A contract for the sale of land is not void for lack of mutuality from the fact that it is not enforceable against the vendee, because he did not sign the memo- randum, as required by the statute of frauds, at least, where the statute provides that a party who has signed a written con- tract may be compelled specifically to per- form it, though the other party has not signed it, if the latter has performed or offers to perform it. Harper v. Gold- schmidt, 28: 689, 104 Pac. 451, 156 Cal. 245. 146. Acceptance, within the time limited Digest 1-52 L.R.A.(N.S.) of an option to purchase real estate, re- moves the objection to the enforcement of the contract on the ground of want of mutuality. Smith v. Bangham, 28: 522, 104 Pac. '689, 156 Cal. 359. Contract of employment. 147. A contract by an inexperienced phy- sician entering the employment of an exper- ienced one not to practise his profession within the city where the latter's practice is located, for a period of five years, is not invalid for want of mutuality, where it is based on an agreement by the latter to pay him a monthly salary during his term of service, to introduce him to patients, and furnish him conveyances for the performance of his duties, especially where the agree- ment has been partially executed. Freuden- thal v. Espey, 26: 961, 102 Pac. 2SO, 45 ( olo. 488. 148. A written contract, signed by both parties, whereby a corporation appoints cer- tain persons its exclusive agents for a defi- nite term to sell 85 per cent of its entire pack of fish at an agreed commission, and such persons obligate themselves to use their best efforts to sell such pack, in pur- suance of which they in fact perform services and incur expenses in introducing and selling it, is not invalid for want of mutuality of obligation; and an action for damages will lie upon an unjustifiable breach of such contract. Emerson v. Pacif- ic Coast & N. Packing Co. i: 445, 104 N. W. 573, 96 Minn. 1. (Annotated) 149. A contract of employment is not void for want of mutuality because not binding on the employee, where it recites that he is to begin service at a specified date, that it is mutually understood that it is to continue for five years, and that his willingness to perform his duties is a part of the essen- tials of the agreement. Butterick Pub. Co. v. Whitcomb, 8: 1004, 80 N. E. 247, 225 111. 605. 150. A contract for employment is not lacking in mutuality because the party em- ployed does not bind himself to continue in the employment for a definite period. New- hall v. Journal Printing Co. 20: 899, 117 N. W. 228, 105 Minn. 44. (Annotated) 3. Definiteness. (.See also same heading in Digest L.R.A. 1-iO.) Indefiniteness as affecting specific perform- ance, see SPECIFIC PERFORMANCE, 19- 24. 151. An electric railway bonus contract by the terms of which the bonus is payable as soon as the railway company or its as- signs have constructed and put in operation its road from B. to a certain described strip of land, and afforded a specified serv- ice thereon, is certain and definite as to the time the obligation matures. Boise Valley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070. 17 Idaho, 384. 152. An order for $300 worth of jewelry, CONTRACTS, 1. d, 4. 625 ry, to be made up of articles named in a price list contained in the order, is void, where it cannot be determined from the writing itself either the quantity, quality, or price of any of the articles specified, which the plaintiffs were bound to ship and which the defendant agreed to pur- chase. Price v. Wiesner, 31: 927, 111 Pac. 439, 83 Kan. 343. 153. An indefinite offer to (Annotated) furnish ties within two years, the total amount not to exceed a certain number, followed by an acceptance of all that can be furnished with- in a year which come up to regular specifica- tions, becomes binding upon the delivery and payment for ties under it, so that neither party can withdraw from it within the year. Louisville & N. R. Co. v. Coyle, 8: 433, 97 S. W. 772, 123 Ky. 854. (Annotated) 154. An agreement between a water com- pany and a municipal corporation which it undertakes to supply with water, that the contract shall be renewed at the expiration of a certain time upon such terms as are mutually agreed upon at that time, is not so indefinite as to be invalid, since it will be interpreted as providing for a renewal on reasonable terms. Slade v. Lexington, 32: 201, 132 S. W. 404, 141 Ky. 214. (Annotated) 155. An agreement of a water company to supply water to certain land for irriga- tion purposes for a certain sum is sufli- ciently certain when the water to be sold is identified by describing it as water from a certain river, to be carried through the canal of the company, the company having but one canal leading from that river, al- though the lateral by which it is to be con- ducted to the land is not described, except by the statement that the company is to deliver the water on the land by means of such head gates, weirs, and devices as it shall construct for that purpose, the uncer- tainty in this respect being removed when the lateral ditch is constructed. Stanislaus Water Co. v. Bachman, 15: 359, 93 Pac. 858, 152 Cal. 716. 156. A promise by a street railway com- pany to maintain a special rate, the amount and duration of which is not specified, to suburban property which it sells to one proposing to develop it for homes, is too indefinite for enforcement, and therefore the purchaser has no right of action in case, after he has partially disposed of the prop- erty, the rate first established is move than doubled, so that demand for the property ceases and its value is greatly depreciated. Arundel Realty Co. v. Maryland Electric Rys. Co. 38: 157, 81 Atl. 787, 116 Md. 257. (Annotated) 157. A contract for the ornamental work of a building, in which the scale drawings are so indefinite that the requirements can- not be ascertained, is invalid for want of meeting of minds, although it provides that the architect shall have power to determine its true construction, and he furnishes detail drawings in accordance with his determina- tion. Snead & Co. Iron Works v. Merchants' Digest 1-52 L.R.A.(N.S.) 40 Loan & T. Co. 9: 1007, 80 N. E. 237, 225 111. 442. Contract of employment. 158. No recovery can be had for breach of a contract to give an injured employee a permanent job in consideration of a release of all claims for damages, which does not specify the job which he is to have, or the compensation he is to receive for his work. Ingram-Day Lumber Co. v. Rodgers, 48: 435, 62 So. 230, 105 Miss. 244. (Annotated) For support. 159. A contract to support a woman in consideration of a release from a promise to marry her is not too indefinite and un- certain to be enforceable. Henderson v. Spratlen, 19: 655, 98 Pac. 14, 44 Colo. 278. 4. Offers and their acceptance or with- ) drawal. (See also sa-me heading in Digest L.R.A. 1-70.) Consideration for option, see supra, 61. Revocability of option contract, see infra, 729. Assignment of option contract, see ASSIGN- MENT, 27.. Estoppel of one having option, to complain that offer for property was not bona fide, see ESTOPPEL, 206. Parol evidence that contract was intended to be an option, see EVIDENCE, 956. Parol evidence to show absence of considera- tion, see EVIDENCE, 1004. Option by executor, see EXECUTORS AND AD- MINISTRATORS, 43, 44, 54. Effect as to strangers of decree for specific performance of option contract, see JUDGMENT, 236. Landlord's waiver of right to forfeit option to purchase property, see LANDLORD AND TENANT, 79. Sale by receiver under order of court of option to purchase in lease as violation of provision against assignment, see LANDLORD AND TENANT, 80. When right of action under option accrues, see LIMITATION OF ACTIONS, 125. To work oil and gas mines, see MINES, 50, 52, 57, 58, 71, 72, 80. To use party wall, see PARTY WALL, 18. Option of purchase in lease as infringing rule against perpetuity, see TIES, 4. For purchase of land as within rule against perpetuities, see PERPETUITIES, 4, 8, 9, 27, 34. Right to change terms of accepted offer of specified compensation based on paid subscriptions to newspaper, see PRIZE CONTEST, 1. Acceptance by purchaser, see SALE, I. d. Specific performance of option contract, see SPECIFIC PERFORMANCE, 14, 15, 35, 82- 86, 117. Option contract as taxable credit, see TAXES, 64. Tender of liquidated damages as condition of withdrawing from contract, see TENDER, 22. 626 CONTRACTS, I. d, 4. Question for jury as to diligence in accept- ing offer, see TRIAL, 218, 222. Surrender of option to purchase mining claim, see VENDOR AND PURCHASER, 7. ^Rights of optionee who accepts option after sale of property to third person with notice of option, see VENDOR AND PUR- CHASER, 104, 105. See also supra, 142, 146; infra, 210, 506, 603; SALE, 107. 160. The acceptance, within the time specified, of an option which had been given for a nominal consideration to purchase real estate belonging to a husband, supersedes the wife's declaration of homestead upon the property made with notice of the op- tion, after it had taken effect. Smith v. Bangham, 28: 522, 104 Pac. 689, 156 Cal. 359. (Annotated) 161. An offer of specified compensation to the person obtaining the highest vote based on paid subscriptions to a newspaper, after acceptance and part performance of the terms of the offer, becomes an executory contract between the person making and the person so accepting the terms of the offer. Mooney v. Daily News Co. 37: 183, 133 N. W. 573, 116 Minn. 212. 162. Acceptance of an option to purchase real estate within the time granted, and before its withdrawal, supplies the neces- sary iutuality of obligation, and renders the contract binding. Murphy v. Reid, 10: 195, 101 S. W. 964, 125 Ky. 585. 163. That a landowner who had given a prospective purchaser an option upon the coal underlying his land, which option had expired by limitation of time, thereafter stated that he was not being paid enough for the property, and employed a person to assist in curing certain defects in his title and co-operated with him in doing the work, does not have the effect of extending the time within which the option may be ac- cepted. Pollock v. Brookover, 6: 403, 53 S. E. 795, 60 VV. Va. 75. 164. The requirement, by one who has contracted to purchase real esLate from a corporation, of further resolutions on its part for thj completion of the transfer, does not show a refusal to accept the offer of sale. Western Timber Co. v. Kalama River Lumber Co. 6: 397, 85 Pac. 338, 42 Wash. 620. 165. Failure of one who has made a void parol offer to purchase chattels in his pos- session to reply to a letter accepting the of- fer, does not affect a contract binding upon him. Godkin v. Weber, 20: 498, 117 N. W. 628, 154 Mich. 207. 166. Where, in response to plaintiff's re- quest for a quotation on 3,000 yards of canvas, with the shortest time for delivery, defendant replied quoting a price and stat- ing, "Delivery of 3,000 yards in five-six weeks," to which plaintiff responded, "Please get made for us 3,000 yards canvas 32$ inches wide as per your quotation at 4|d. per yard; deliver same as quickly as possible. As we have not had the pleasure of doing business with you before, we give Digest 1-52 L.R.A.(N.S.) you as references," etc., there was no offer and acceptance so as to constitute a contract on the part of the manufacturer to furnish 3,000 yards of canvas at the price named. Boyers & Co. v. Duke, 3 B. R. C. 220, [1905] 2 I. R. 617. (Annotated) Necessity of acceptance. Necessity of acceptance of employment un- der resolution of county supervisors to employ superintendent for construction of building, see COUNTIES, 35. Necessity of acceptance of guaranty to com- plete contract, see GUARANTY, 11-16. As requisite to action for specific perform- ance, see SPECIFIC PERFORMANCE, 14. See also infra, 190. 167. Until there has been an acceptance of a written order for machinery to be shipped to the purchaser at a future date, the latter is at liberty to countermand such order, as the same, until acceptance, does not constitute a contract, but merely an offer or proposal to purchase. J. L. Owens Co. v. Bemis., 37: 232, 133 N. W. 59, 22 N. D. 159. 168. Under an option to purchase the coal underlying certain land, in which it is provided that, unless the optionee accept the same and pay one third of the purchase money within a stipulated time, the option shall be null and void, and the parties mutually released therefrom, it is a con- dition precedent to the consummation of an executory contract of sale between the parties that the option be accepted and the money paid within the time limited. Pol- lock v. Brookover, 6: 403, 53 S. E. 795, 60 W. Va. 75. 169. The mere waiver of payment of the purchase money as required in a contract giving an option to purchase real estate does not close the bargain, without accept- ance of the proposal as made. Trogdon v. Williams, 10: 867, 56 S. E. 865, 144 N. C. 192. 170. Notice by a seller of wheels, after delivering a portion of the number called for by the contract, that he will not comply with the remainder of the contract which gives the purchaser the option to demand whatever additional number he may need up to a specified limit, relieves the pur- chaser of the duty of giving further notice of acceptance. Connersville Wagon Co. v. McFarlan Carriage Co. 3: 709, 76 N. E. 294, 166 Ind. 123. 171. The furnishing for a couple of years of a portion of the whisky called for by an unaccepted offer to sell a specified quan- tity each year for a series of years does not bind the seller to performance of the contract. Rehm-Zeiher Co. v. F. G. Walker Co. 49: 694, 160 S. W. 777, 156 Ky. 6. Sufficiency of acceptance. 172. Acceptance of an option, and subse- quent performance, are different matters; and where the acceptance is unconditional, suggestions or demands as to performance, not qualifying or rendering the acceptance conditional upon compliance with such de- mands, will not invalidate such acceptance. CONTRACTS, I. d, 4. Horgan v. Russell, 43: 1150, 140 N. W. 99, 24 N. D. 490. 173. A definite and unconditional ac- ceptance in accordance with the manner and terms stipulated in an option contract is not avoided or rendered uncertain or conditional by matter contained in the ac- ceptance concerning the method of perform- ance, or where payment should be made, or by a demand for an abstract, which the sellers under the terms of the option were not obligated to furnish, where the uncon- ditional acceptance is not qualified or made conditional upon compliance with such re- quests or demands concerning performance. Horgan v. Russell, 43: 1150, 140 N. W. 99, 24 N. D. 490. 174. Acceptance of an offer to sell a speci- fied quantity of whisky each year for a period of years sufficient to bind the seller to a complete delivery is not effected by re- ceiving and paying for a portion of the quantity specified for a couple of years. Rehm-Zeiher Co. v. F. G. Walker Co. 49: 694, 160 S. W. 777, 156 Ky. 6. 175. A telegram to a bidder for public work, "You are low bidder. Come on morn- ing train," does not conclude a contract with him. Cedar Rapids Lumber Co. v. Fisher, 4: 177, 105 N. W. 595, 129 Iowa, 332. (Annotated) 176. An acceptance by telegram of an of- fer by mail, which does not specify any mode of acceptance, does not complete the contract until the 1 telegram is delivered to the sendee. Lucas v. Western U. Teleg. Co. 6: 1016, 109 N. W. 191, 131 Iowa, 669. (Annotated) 177. The signature by a traveling sales- man of a customer's order for goods does not constitute an acceptance on the part of his employer, where the latter reserved the right to pass on the orders sent in. Baird v. Pratt, 10: 1116, 148 Fed. 825, 78 C. C. A. 515. 178. A communication from a seller of goods acknowledging the receipt of an or- der placed with his commercial traveler, and stating that the order will receive prompt and careful attention, may be re- garded as having been interpreted as an acceptance by both parties, where it is fol- lowed by a correspondence between them in which the buyer claims a right to change or cancel the order at any time in virtue of an asserted special agreement made with him by the agent who took it, and the seller de- nies the existence of such a right and the making of such an agreement. Bauman v. McManus, 10: 1138, 89 Pac. 15, 75 Kan. 106. 179. A letter written by the seller of goods to the buyer, acknowledging the re- ceipt of the latter's order placed with a commercial traveler, and stating that it will receive prompt and careful attention, is in itself f'ither an absolute acceptance of the order, or such an expression as may, in con- nection with an otherwise unexplained omission for a long time to make any fur- ther response, give rise to an inference of acceptance or be treated as such, if the sub- sequent conduct of the parties indicates that Digest 1-52 L.R.A.(N.S.) they have each so treated it. Bauman v. McManus, 10: 11-38, 89 Pac. 15, 75 Kan. 100. Tender of purchase price. As condition to right to specific perform- ance, see SPECIFIC PERFORMANCE, 117. Sufficiency of tender of money in accept- ance of option, see TENDER, 10, 11. 180. Tender of the purchase price is neces- sary to convert into a binding contract an option to purchase real estate which pro vides that if within the time specified the optionee elect to purchase, then he shall pay the purchase price. Trogdon v. Wil- liams, 10 : 867, 56 S. E. 865, 144 N. C. 192. Time as essence of. Time as essence of contract by real estate agent to secure purchaser, see BROK- ERS, 48. Question for jury as to whether offer is ac- cepted within time, see TRIAL, 218, 222. 181. Time is of the essence of an option to purchase real estate. Trogdon v. Wil- liams, 10 : 867, 56 S. E. 865, 144 N. C. 192. 182. In favor of bona fide purchasers a recorded option to purchase real estate ter- minates with the expiration of the time specified therein, if no record of an exten- sion or conveyance is made. Trogdon v. Williams, 10: 867, 56 S. E. 865, 144 N. C. 192. 183. Where an option contract for the purchase of land contains a stipulation as to the manner of acceptance and the period of time within which acceptance might be made, and provides that the time shall be of the "essence of this agreement," and a subsequent stipulation as to performance and time of performance to be allowed the parties after acceptance of the option of purchase, the time within which the ac- ceptance was to be made was of the essence of the contract; but the time within which the contract was to be performed after ac- ceptance, not being clearly and beyond question stipulated to be of the essence of the contract, a performance attempted by a tender of payment by the purchaser three days after the expiration of said time stipulated is within time, and valid in equity. Horgan v. Russell, 43: 1150, 140 N. W. 99, 24 N. D. 490. 184. One contracting for the conveyance of land upon demand must make the de- mand within a reasonable time, and is not privileged to postpone performance on his part indefinitely. Smith v. Bangham, 28: 522, 104 Pac. 689, 156 Cal. 359. 185. The option reserved to the purchaser of bonds by a stipulation that if, after con- sulting others, she should desire to with- draw her investment, she might at any time return the bonds and withdraw her in- vestment with a 6 per cent earning per annum, must be exercised within a reason- able time. Brooks v. Trustee Co. 50: 594, 136 Pac. 1152, 76 Wash. 589. (Annotated) 186. The exercise of an option to rescind a purchase within a reasonable time, more than six years after the transaction, is too late. Brooks v. Trustee Co. 50: 594, 136 Pac. 1152, 76 Wash. 589. 028 CONTRACTS, I. e, 1. Effect of death after acceptance. 187. The death of insured between the mailing of his acceptance of an option to which he is entitled under the policy and its receipt by the company will not nullify the acceptance, but the rights under the policy will be adjusted in accordance therewith. Northwestern Mut. L. Ins. Co. v. Joseph, 12: 439, 103 S. W. 317, 31 Ky. L. Rep. 714. (Annotated) Withdrawal of offer. See also SPECIFIC PERFORMANCE, 15. 188. The giving of a nominal considera- tion for an option to purchase real estate ia not tsuilicient to prevent its withdrawal be- fore accept;nce. Murphy v. Reid, 10: 195, 101 S. W. 964. 125 Ky. 585. 189. An undelivered written acceptance of an offer to sell land, upon which no pay- ment? has been made, does not bind the pur- chaser, and therefore, since there is no mutuality of obligation, the offer may be withdrawn. Hollingshead v. Morris, 41: 310, 137 N. W. 527, 172 Mich. 126. 190. Since, in the absence of evidence to the contrary, the presumption is that an order' for goods taken by a commercial trav- eler is subject to approval by the house which he represents, and no contract re- sults until such order is accepted, the pro- posed buyer has an unqualified right to withdraw such an order at any time before it is accepted. Bauman v. McManus, 10: 1138, 89 Pac. 15, 75 Kan. 106. (Annotated) 191. The acceptance of an order taken by a traveling salesman is not effected by ship- ping the goods and sending by mail an in- voice a^ul bill for them, the terms of the contract in which are different from those contained in the order; and the purchaser has the right, upon inspection of the new proposition, to withdraw his order. Baird v. Pratt, 10 : 1116, 148 Fed. 825, 78 C. C. A. 515. 192. A letter to one to whom an order had been sent, requesting cancelation of the order, giving its date, which is received be- fore the order is accepted, is a sufficient cancelation. J. L. Owens Co. v. Bemis, 37: 232, 133 N. W. 59, 22 N. D. 159. e. Formal requisites; statute of frauds. Is In general; personal property. (See also same heading in Digest L.R.A. 1-10.) 7 > Parol modification of written contract, see infra, 707-710. Right of auctioneer to sign bidder's name, see AUCTIONS, 10. Conflict of laws as to, see CONFLICT OF LAWS, 130, 137. Constitutionality of statute requiring as- signment of wages to be accepted in writing, see CONSTITUTIONAL LAW, 181, 519. Equal privileges and immunities, see CONSTI- TUTIONAL LAW, 236, 237. Police power as to, see CONSTITUTIONAL LAW, 690. Digest 1-52 L,.R.A.(N.S.) Formal requisites of corporate contract, generally, see CORPORATIONS, IV. d, 3. Form and requisites of deed, see DEEDS, I. a. Taking of property without compensation by statute as to, see EMINENT DOMAIN, 221. Parol evidence to vary written contract, see EVIDENCE, VI. Requiring transfer of chattels between hus- band and wife to be in writing, see HUSBAND AND WIFE, 104. Oral agreement as to insurance rates or premiums, see INSURANCE, 415-417. Necessity of pleading statute of frauds, see PLEADING, 493-495. Sufficiency of allegations as to, see "PLEAD- i.\(., 331. Burden of proving contract valid under stat- ute of frauds, see PLEADING, 531. Raising defense of statute of frauds by de- murrer, see PLEADING, 620, 621. Specific performance of oral contract, see SPECIFIC PERFORMANCE, I. b. As to parol trusts, see TRUSTS, I. c. See also supra, 26. 193. A parol contract between parties con- templating marriage, looking to the control of their separate estates, is invalid under a statute providing that all contracts made in contemplation of marriage must be in writ- ing, and is not validated by the consumma- tion of the marriage. Frazer v. Andrews, ii : 593, 112 N. W. 92, 134 Iowa, 621. 194. The placing in writing after marriage of an agreement by which each party re- linquishes all right in the other's property in accordance with an antenuptial parcjl con- tract which is invalid under the statute of frauds does not validate the latter, unless it recites that it is executed to furnish evi- dence of the previous one, and is ineffectual, where the statute forbids contracts between husband and wife relating to their property rights Frazer v. Andrews, 11:593, i!2 N. VV. 92, 134 Iowa, 621. (Annotated) 195. An oral antenuptial agreement which is made void by statute cannot be validated by an agreement embodying its terms, exe- cuted after marriage. Rowell v. Barber, 27: 1140, 125 N. W. 937, 142 Wis. 304. 196. Words written on the back of a con- tract blank as a portion of the instrument to be signed by the parties become part of the obligation, although the signatures are not below them, but on the preceding page. Bonewell v. Jacobson, 5: 436, 106 N. W. 614, 130 Iowa, 170. (Annotated) 197. A contract to compensate one who has performed services by legacy, in con- sideration of his waiving present enforce- ment of the claim, is independent, and not a new promise to pay the old claim, with- in the provision of the statute that no such promise shall take a claim out of the opera- Ton of the statute of limitations unless in writing. Murtha v. Donohoo, 41: 246, 136 N. W. 158, 149 Wis. 483. 198. A stated account on a promissory note, which rests in parol, is not sufficient to toll the statute of limitations, under a CONTRACTS, I. e, 2. 629 statute providing that no act, promise, or acknowledgment is sufficient to remove the bar to a suit created by the statute, except a partial payment, or an unconditional promise in writing signed by the person to be charged thereon. Jasper Trust Co. v. Lamkin, 24: 1237, 50 So. 337, 162 Ala. 388. Representations as to another's credit. 199. Representations as to another's cred- it, although made fraudulently or in pur- suance of a conspiracy to defraud, are with- in the provisions of the statute of frauds that no action shall be brought to charge any person by reason of any representation concerning another's credit, unless it is in writing duly signed. Knight v. Rawlings, 13: 212, 104 S. W. 38, 205 Mo. 412. (Annotated) Sale of personal property. As to effect of part performance, see infra, 309-316. Failure of declaration to show whether con- tract was obnoxious to statute of frauds, see PLEADING, 259. See also SALE, 45. 200. A promise by a creditor, made to in- duce his debtor to secure the indebtedness by a mortgage on a stock of goods, that he will Hot permit the property to be sold un- der foreclosure for less than a specified sum. is not an agreement for the purchase of goods in the future, w r ithin 9 of the stat- ute of frauds, requiring such agreements to be in writing. Cerny v. Paxton & G. Co. 10: 640, 110 N. W. 882, 78 Neb. 134. 201. An authorization by one to another to purchase for him stock from a third per- son is not within the provision of the stat- ute of frauds requiring contracts for the sale of goods to be in writing. Wiger v. Carr, ix: 650, 111 N. W. 657, 131 Wis. 584. (Annotated) 202. A contract by a manufacturer of dishes to fill an order for a certain number, bearing the monogram of the purchaser, constitutes a contract for work and labor, not within the statute of frauds, where the value of the undecorated dish is a small part of the final cost, although compliance with the contract will result in a sale of the dishes. Re Gies, 30: 318, 125 N. W. 420, 160 Mich. 502. (Annotated) 203. A contract to assemble and install a soda-water fountain, with counter, base, and superstructure, of particular dimen- sions and special design, prepared by an- other, is one for work and labor, and not for the sale of goods and chattels, which the statute of frauds requires to be in writing. Bond v. Bourk, 43: 97, 129 Pac. 223, 54 Colo. 51. (Annotated) 204. Issued shares in a corporation are good within the meaning of the statute of frauds, and oral contracts for their sale which do not comply with the terms of that statute are invalid. Sprague v. Hosie, 19: 874, 118 N. W. 497, 155 Mich. 30. (Annotated) 205. A contract for the sale of corporate stock is within the provision of the statute of frauds requiring to be in writing con- tracts affecting goods, chattels, or things in Digest 1-52 L.R.A.(N.S.) action. Franklin v. Matoa Gold Min. Co. 16: 381, 158 Fed. 941, 86 C. C. A. 145. 206. A contract for the sale of corporate stock thereafter to be issued is one for the sale of goods, wares, and merchandise, with- in the meaning of the statute of frauds. Hewson v. Peterman Mfg. Co. 51: 398, 136 Pac. 1158, 76 Wash. 600. (Annotated) 207. A parol contract to transfer to an attorney shares of corporate stock for serv- ices thereafter to be rendered is void under a statute requiring contracts for the sale of goods and chattels to be in writing unless the buyers shall at the time pay some part oi the purchase money; and the fact that serv- ices are rendered at the time the contract is made is immaterial. Franklin v. Matoa Gold Min. Co. 16: 381, 158 Fed. 941, 86 C. C. A. 145. (Annotated) 208. An oral promise to a Young Men's Christian Association to give a specific sum of money for the construction of a building, to be devoted to carrying out the design of such corporation, as soon as the work begins, is not a subscription to shares of a commercial corporation, aud is not within the clause of the statute of frauds which requires contracts for the sale of goods, wares, and merchandise to the amount of $50 or more to be in writing. Young Men's Christian Asso. v. Estill, 48: 783, 7 S. E. 1075', 140 Ga. 291. 209. A contract to furnish, within a year, all the ties that can be gotten out by the contracting party, not to exceed 6,000, is hot required by tlie statute of frauds to be in writing. Louisville & N. R. Co. v. Coyle, 8: 433, 97 S. W. 772, 123 Ky. 854. 210. A contract for the purchase of wheels to be delivered within a year, which gives the purchaser the option to take an additional number up to a specified limit, is not within the statute of frauds as to the optional portion, since each order given con- stitutes an acceptance pro tanto. Conners- ville Wagon Co. v. McFarlan Carriage Co. 3: 709, 76 N. E. 294, 166 Ind. 123. 2. Collateral contracts^ debt* of others. (Kee also same heading in Digest L.R.A. 1-70.) See also infra, 308. 211. A collateral oral promise Ky one tp pay another's debt is not binding where no benefit accrues to the person making such promise. Mankin v. Jones, 15:214, 60 S. E. 248. 63 W. Va. 373. (Annotated) 212. An oral promise to pay the debt of another is not binding on the promisor, where the original debtor still remains lia- ble for the payment of the indebtedness. Mankin v. Jones, 15: 214, 60 S. E. 248, 63 W. Va. 373. 213. One is not bound by a mere promise to pay the debt of another unless the prom- ise be in writing, signed by the promising party. Mankin v. Jones, 15: 214, 60 S. E. 248, 63 W. Va. 373. 214. An oral promise to pay the debt of G30 CONTRACTS, I. e, 2. another, in order to derive some benefit to the promisor thereby which he would not otherwise have, is an original undertaking, and not within the statute of frauds, even though the original promisor be not re- leased. Howell v. Harvev, 22: 1077, 64 S. E. 249, 65 W. Va. 310. (Annotated) 215. If the main purpose of an oral prom- ise by one person to pay a sum of money for which another is liable or may become liable is to secure a direct, personal, and pecu- niary benefit to the promisor, the promise is original, and not within the statute of frauds, though such third person remain liable for the debt. Hurst Hardware Co. v. Goodman, 32: 598, 69 S. E. 898, 68 W. Va. 462. 216. If property be delivered or services rendered to one person upon an oral prom- ise of payment by another, and charged only to the person to whom the delivery was so made or for whom services were so ren- dered, and an effort made to collect the purchase money or compensation from the person against whom the charge was made, such promise is collateral, and, if not in writing, void. Hurst Hardware Co. v. Good- man, 32: 598, 69 S. E. 898, 68 W. Va. 462. (Annotated) 217. The oral promise of an officer and stockholder of a corporation, who is liable as an indorser on its paper and for debts or obligations assumed by the corporation, to pay for goods sold and delivered to it, is collateral and within the statute; the benefit accruing to him from such sale and delivery being remote and indirect. Hurst Hardware Co. v. Goodman, 32: 598, 69 S. E. 898, 68 W. Va. 462. 218. A promise by one who has given the obligation of a corporation of which he is president, for his own debt, to pay the same, is not void under the statute of frauds, as a promise to pay the debt of another. Donovan v. Purtell, i: 176, 75 N. E. 334, 216 111. 629. 219. An agreement made by a creditor to induce his debtor to secure the indebtedness by mortgage upon a stock of goods, that he will not permit the property to be sold un- der foreclosure below a certain price, is not a collateral undertaking, but a part of the original consideration whereby the debtor is induced to execute the mortgage. Cerny v. Paxton & G. Co. 10: 640, 110 N. W. 882, 78 Neb. 134. 220. A parol agreement by the purchaser of railroad property to assume performance of a contract to give an employee perma- nent employment is within the statute of frauds and invalid. Cox v. Baltimore & 0. S. W. R. Co. 50: 453, 103 N. E. 337, 180 Ind. 495. 221. A- promise by an owner of timber lands who has contracted to have the timber removed and manufactured into lumber, to hold back the amount which the contractor has promised to pay another to do the log- ging, and pay it to him, is not a promise to pay the debt of another within the statute of frauds. Dale v. Gaither Lumber Co. 28: 407, 68 S. E. 134, 152 N. C. 651. Digest 1-52 L.R.A.'.). 244. That the consideration for a five- year lease was the caring for a flock of goats and the making of permanent im- provements on the hind to a certain value each year does not take it out of the rule that an oral lease for more than one year will be construed as a tenancy from period to period of the rental terms, in the ab- sence of anything to show material injury to the tenant from the enforcement of such rule. Watkins v. Balch, 3: 852, 83 Pac. 321, 41 Wash. 310. (Annotated) 245. A verbal lease of real estate for one year to commence in the future is valid un- der a statute of frauds making invalid: "First. An agreement that, by its terms, is not to be performed within a year from the making thereof. . . . Fifth. An agreement for the leasing for a longer period than one year ... of real property," since the 1st subdivision of such statute does not relate to agreements concerning land. Sullivan v. Bryant, 49: 819, 136 Pac. 412, 40 Okla. 80. (Annotated) 246. A parol lease for a year made in May, to begin the following November, is void under the statute of frauds as not to be performed within one vear. Brodner v. Swirsky, 42: 654, 84 Atl. 104, 86 Conn. 32. 4. Contracts as to realty. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of writing as to, see infra, I. e, 5. Effect of fraud or part performance, see infra, I. e, 6, b. Who may set up defense of statute of frauds, see ACTION OR SUIT. 35. Effect of lack of objection to evidence of contract to prevent court from holding that contract was within statute of frauds, see APPEAL AND ERROR, 349. Right of auctioneer to sign bidder's name, see AUCTIONS, 10. Parol agreement for extension of time for redemption of mortgage, see BANK- RUPTCY, 101. Sufficiency of unenforceable parol promise as consideration for note, see BILLS AND NOTES, 29. Conflict of laws as to, see CONFLICT OF LAWS, 136. Equal privileges and immunities, see CON- STITUTIONAL LAW, 236, 237. Police power as to, see CONSTITUTIONAL LAW, 690. Damages for breach of, see DAMAGES. 130. Form and requisites of deed, see DEEDS, I. Parol contract as basis of prescriptive right to easement, see EASEMENTS, 15, 26. Right to recover value of services under pa- rol agreement to convey land in action for damages for breach of contract, see ELECTION OF REMEDIES, 1. Digest 1-52 L.R.A. (N.S.) Statute as to, as taking of property with- out compensation, see EMI MINT DO- MAIN, 221. Necessity of pleading statute of frauds, see I'M ADING, 495. Taking title to real estate under verbal promise to sell it for benefit of real owner, see PLEA-DING, 621. Specific performance of, see SPECIFIC PEB- . FORMANCE, I. b. Parol trusts in, see TRUSTS, I. c. See also supra, 193, 194, 230, 231, 236, 240. 247. Permitting the doctrine of estoppel to transfer the title of real estate from one person to another does not contravene the statute of frauds. Knauf & Tesch Co. v. Elkhart Lake Sand & Gravel Co. 48: 744, 141 N. W. 701, 153 Wis. 306. 248. The statute of frauds does not apply to an oral agreement whereby occupants of adjoining lands agree that, until changed by mutual consent or the withdrawal of one of the parties, each shall maintain one half of a division fence. Walker v. McAfee, 27: 226, 107 Pac. 637, 82 Kan. 182. (Annotated ) 249. A contract for the sale of an equi- table estate is within the statute of frauds. Henderson v. Ilenrie, 34: 628, 71 S. E. 172, 68 W. Va. 562. 250. A verbal agreement between two bid- ders for land at a judicial sale, each desir- ing a portion thereof, to the effect that the successful bidder will allow the other to take and pay for the portion he desires, is, in substance and effect, a contract for the sale of land, and unenforceable; the success- ful bidder having paid for all of the land, and the unsuccessful bidder not having paid for the portion it was agroed he should have, though prevented from doing so by breach of the agreement on the part of the other. Henderson v. Henrie, 34: 628, 71 S. E. 172, 68 W. Va. 562. 251. A parol promise by a mortgagee that if the mortgagor will not hid at the fore- closure, he will bid in the property, sell it, and account for the surplus over and above the amount due and expenses, is separable, and not within the statute of frauds as to the promise to pay over the surplus, so that, in case a sale has produced a surplus, the mortgagor may recover it. Zwicker v. Gard- ner, 42: 1160, 99 N. E. 949, 213 Mass. 95. (Annotated) 252. A promise by two tenants in common upon purchasing their cotenant's interest in the property, to offer it for sale, and either accept the best offer and pay tueir vendor one third of the net amount received, in consideration of his transfer, or keep the property themselves, accounting to him on the same basis-prelates to consideration, and does not establish an interest or trust in the property, and is therefore not within the statute of frauds. Allen v. Rees, 8: 1137, 110 N. W. 583, 136 Iowa, 423. (Annotated) 253. An agreement between mortgagor and one not the owner of the equity of re- demption, to extend the time for redemp- tion, is within the statute of frauds, and CONTRACTS, I. e, 4. 633 not enforceable unless in writing and sup- ported by sufficient consideration. Dow v. tiwttlbury, 44: 1041, 85 Atl. 896. 110 Me. 249. 254. A contract by an attorney for a share of the recovery as compensation in a suit for possession of real estate must be in writing, uirder tlie statute of frauds. Farrin v. Matthews, 41: 184, 124 Pac. 675, 62 Or. 517. (Annotated) 255. Written authority is not necessary to enable an attorney to sign a demand for dower. McAllister v. Dexter & P. R. Co. 29: 726, 76 Atl. 891, 106 Me. 371. 256. Authority to fill in the name of a grantee in a deed in a blank left for that purpose need not be in writing. Board of Education v. Hughes, 41: 637, 136 N. W. 1095, 118 Minn. 404. Employment of agent to purchase or sell property. 257. Th-e acceptance by a property ownet of the benefit of services rendered by one employed by a broker to assist in disposing of the property does not ratify the contract of employment so as to render him liable to make compensation for the services where the statute provides that an agree- ment employing an agent to sell real es- tate shall be void unless in writing. Soren- son v. Smith, 51: 612, 129 Pac. 757, 131 Pac. 1022. 65 Or. 78. 258. A contract employing one to pur- chase real estate is not required by the stat- ute of frauds to be in writing. Friedman v. Suttle, 9: 933, 85 Pac. 726, 10 Ariz. 57. (Annotated) 259. A contract whereby one person em- ploys an agent to negotiate for ,the pur- chase of real estate is not a contract for the creation of an estate or interest in land, or trust or power over or concerning lands, within the meaning of the statute of frauds. Johnson v. Hayward, 5: 112, 103 N. W. 1058, 74 Neb. 157. 260. An agreement by which one agrees for a fixed compensation to purchase land for another at public sale, and to advance the purchase money, which is to be repaid him immediately upon ascertaining its amount, is a contract of agency, not within the statute of frauds; and an action at law to recover damages may be maintained by the principal where the agent bids in the land in his own name and refuses to convey it to the principal. Schmidt v. Beiseker, 5: 123, 105 N. W. 1102, 14 N. D. 587. (Annotated) Parol agreement for arbitration. 261. The question of the respective rights of the parties to a strip of land which one claims as a right of way over another's property involves the title to real estate, so that it cannot be submitted to arbitra- tion by parol. Walden v. McKinnon. 22: 716, 47 So. 874, 157 Ala. 291. (Annotated) 262. Testimony by arbitrators that they did not consider the question of title in awarding a right of way over real estate cannot overcome the actual result of the award as involving a question of title to real estate. Walden v. McKinnon. 22: 716, 47 So. 874, 157 Ala. 291. Digest 1-52 L.R.A.(N.S.) Partnership. 263. An oral agreement to purcl-ase and sell real estate in partnership, and divide the profits, with the understanding that each person shall have an interest in the prop- erty, is, although applying to a series of transactions, invalid under the statute of frauds, where no performance takes place except the payment of the necessary inci- dental expense, the one advancing money for any parcel of land taking the title thereto. Nester v. Sullivan, 9: 1106, 111 N. W. 85, 147 Mich. 493. 264. An oral contract between two per- sons to purchase a single tract of land to- gether or in partnership, which purchase is finally made by one of them, who pays the whole of the purchase price and takes the title in his own name, the other simply agreeing to pay him half thereof on demand, is within the inhibition of the statute of frauds (Neb. Comp. Stat. 1905, chap. 32, 3), and is void. Norton v. Brink, 7: 945, 110 N. W. 669, 75 Neb. 566. 265. A parol contract by which two per- sons enter into a partnership to purchase real estate, ne to furnish the money and take the title, and convey a half interest to the other upon receiving his share of the purchase price, is void under the statute of frauds. Scheuer v.'Cochem, 4: 427, 105 N. W. 573, 126 Wis. 209. (Annotated) 266. An agreement to place the title to property owned by one party, in a part- nership to be formed for the purpose of developing and selling it at a profit, is one for the sale of lands, and must be in writ- ing under the statute of frauds. Burgwyn v. Jones, 41: 120, 75 S. E. 188, 113 Va. 511. Easements. 267. No enforceable, equitable easement arises in favor of grantees of lots in a tract, whose deeds establish building lines and re- strict the use of the property to residential purposes, which will prevent the grantor from permitting later purchasers to ignore the restrictions, although they purchase on the grantor's statement that the use of the other lots would be similarly restricted, if the statute requires a contract for the sale of any interest in Ir.nds to be in writing signed by the party to be charged there- with. Sprague v. Kimball, 45: 962, 100 N. E. 622, 213 'Mass. 380. (Annotated) Lease. Effect of part performance, see infra, 334, 335. Parol modification of, see infra, 709. Insurability of interest of one holding parol lease of building in life of its owner, see INSURANCE, 54. Nature of tenancy created by parol lease, see LANDLORD AND TENANT, 59. See also supra, 244-246. 268. No recovery can be had for time lost and expenses incurred in an attempt to take possession of a leasehold under a con- tract void under the statute of frauds, which the property owner refused to carry out. Boone v. Coe, 51: 907, 154 S. W. 800, 153 Ky. 233. 634 CONTRACTS, I. e, 5. 269. An oral agreement of a lessor to make alterations in the leased building to make it available for its intended use in view of unexpected requirements of public officials, which will increase the value of the estate, is valid. Taylor v. Finnigan, 2: 973, 76 N. E. 203, 189 Mass. 568. Sale or reservation of growing crop. 270. Growing crops are personal prop- erty, which pass by deed as appurtenant to the realty, but they may be severed there- from by reservation evidenced by parol. Cooper v. Kennedy, 31: 761, 124 N. W. 1131, 86 Neb. 119. 271. A parol reservation of a growing crop by agreement between the landlord and ten- ants at sufferance prior to dispossession by the landlord is valid as against either the landlord or a subsequent tenant. Bristow v. Carriger, 25: 451, 103 Pac. 596, 24 Okla. 324. 272. A parol agreement by which the grantors of land reserve a matured, un- severed crop of corn and hay standing thereon, as a part of the consideration for the conveyance, is valid. Grabow v. Mc- Cracken, 23: 1218, 102 Pac. 84, 23 Okla. 612. (Annotated) To convey or reconvey. Right to specific performance, see SPECIFIC PERFORMANCE, 13. 273. An oral agreement by one who negotiates a sale of real estate, to p; ; back at the purchaser's option the money advanced and assume the cor tract, is void under the statute of frauds. Esslinger v. Pascoe, 3: 147, 105 N. W. 362, 129 Iowa, 86. ( Annotated ) 274. A written contract or memorandum of sale is necessary to enforce against one tenant in common a contract for sale of real estate negotiated by his cotenant, al- though he authorizes the latter in writing to make the sale. Hartenbower v. Uden, 28: 738, 90 N. E. 298, 242 111. 434. (Annotated) Escrow agreement. 275. Delivery of a deed placed in escrow may be enforced, although the escrow agree- ment was not in writing, since the statute of frauds does not apply to such agreement. Manning v. Foster, 18: 337, 96 Pac. 233, 49 Wash. 541. (Annotated) Assignment of land contract. See also infra, 293. 276. An assignment of a land contract must be evidenced by writing where a writ- ing is necessary to transfer an interest in real estate. Flinner v. McVay, 19: 879, 96 Pac. 340, 37 Mont. 306. (Annotated) 277. Delivery of a power of attorney and the land contract to which it related, by the one upon whom it is conferred, to the intended assignee of the contract without executing it, is not sufficient to transfer the contract. Flinner v. McVay, 19: 879, 96 Pac. 840, 37 Mont. 306. Digest 1-52 L.R.A.(N.S.) 5. Sufficiency of ivriting. a. In general. (See also same heading in Digest L.R.A.. 1-10.) Contract conferring agency for sale of home- stead, see HOMESTEAD, 9. 278. A written agreement for the sale of lands, from which it appears that one of the parties incurs no individual liability, but acts merely as the agent of someone else, cannot, under the statute of frauds, be spe- cifically enforced at the suit of the princi- pal, if his relation to the transaction can only be proved by parol evidence. Mertz v. Hubbard, 8: 733/88 Pac. 529, 75 Kan. 1. (Annotated) 279. Where, subsequent to an oral con- tract for the sale of land, the vendor makes, executes, and delivers in escrow a deed for the lands, reciting the consider- ation and containing the terms and con- ditions of the sale, and in an action on such contract substantially admits the con- tract as alleged but relies on the statute of frauds as a defense, the deed in escrow is a sufficient compliance with the statute of frauds notwithstanding it was never de- livered to the vendee and was withdrawn from the custodian before suit was brought. Moore, Keppel & Co. v. Ward, 43: 390, 76 S. E. 807, 71 W. Va. 393. (Annotated) 280. A writing sufficient to satisfy the statute of frauds as a contract for sale of real estate is contained in an instrument, in the form of a receipt, acknowledging payment from the purchaser of a certain sum as part of a stated purchase price for the designated property, and signed by the vendor. Ullsperger v. Meyer, 2: 221, 75 N. E. 482, 217 111. 262. 281. Failure to mention the time for pay- ing the balance of the purchase money in a receipt for a part payment towards the pur- chase price of real estate renders the re- ceipt insufficient as a contract under the statute of frauds. Ebert v. Cullen, 33: 84, 130 N. W. 185, 165 Mich. 75. ( Annotated ) 282. A written notification by a merchant that he has received a "contract order" of a customer, but cannot fill it, is not such a recognition of the contract as to take it out of the statute of frauds. Lee Y. Vaughan Seed Store, 37: 352, 141 S. W. 496, 101 Ark. 68. 283. Where an appeal bond is valid as a common-law obligation by virtue of an agreement between the parties that the entering of judgment is to be stayed after the right to have the same entered has ac- crued, the bond is not void under the stat- ute of frauds for failure to state the con- sideration, namely the alleged agreement, in full. First Nat. Bank v. C. E. Stevens Land Co. 43:1040, 137 N. W. 1101, 119 Minn. 209. CONTRACTS, I. e, 5. 635 Several papers. 284. Letters passing between an alleged vendor and vendee cannot be read together to constitute a contract for the sale of real estate, if they do not identify the land which is intended to be the subject-matter of the contract, as to which there is a dis- pute, so that parol evidence would be re- quired to substantiate the truth of the mat- ter. Jackson v. Stearns, 37: 639, 113 Pac. 30, 58 Or. 57. Description of land. Statute of frauds as defense to action for specific performance, see SPECIFIC PEB- FOBMANCE, 87. 285. A deed of real estate, delivered at the time of the execution of the contract to convey it, which does not refer to it, can- not aid a defective description in the con- tract so as to satisfy the statute of frauds. Cunha v. Gallery, 18: 616, 69 Atl. 1001, 29 R. 1. 230. (Annotated) 286. A description of a farm as my "Muddy Creek farm," containing a certain number of acres, is suflicient when contained in a written agreement to sell the same, to satisfy the statute of frauds, if it is shown by parol that the vendor owned but one. farm on that creek containing the spe- cified number of acres. Bates v. Harris, 36: 154, 138 S. W. 276, 144 Ky. 399. ( Annotated ) 287. An agreement to convey in considera- tion of marriage, a tract of land of a certain value, is void under the statute of frauds, where the promisor has four tracts of that value, and the writing contains nothing to identify the one referred to, ex- cept that it was to be chosen by the prom- isee, although the marriage is consummated on the faith of the promise. Cole v. Cole, 34: 147, 54 So. 953, 99 Miss. 335. (Annotated") b. Execution. (See also same heading in Digest L.R.A.. 1-10.) Signature. See also infra, 302, 303 ; SALE, 45. 288. An order for goods which is sought and procured by the seller, if signed by the buyer, becomes a binding contract on him, within the statute of frauds. Cameron Coal & M. Co. v. Block, 31:618, 110 Pac. 720, 26 Okla. 615. 289. The party to be charged, who must sign a contract to make it binding under the statute of frauds, is the one against whom it is sought to be enforced. Lee v. Vaughan Seed Store, 37: 352, 141 S. W. 496, 101 Ark. 68. 290. The printing of the name of the vendor at the beginning, in the body, and on the back of the merchant's order blanks, to be filled up by a soliciting agent, is not a suflicient signature to satisfy the statute of frauds. Lee v. Vaughan Seed Store, 37: 352, 141 S. W. 496, 101 Ark. 68. 291. Under a statute providing that no action shall be brought to charge any person Digest 1-52 L.R.A.(N.S.) upon any contract for the sale of real estate unless the promise be in writing and signed by the person to be charged, a vendor who has not signed a contract cannot maintain an action to charge the vendee thereon, al- though the latter has expressed his assent in writing sufficiently to satisfy the statute. Murray v. Crawford, 28: 680, 127 S. W. 494, 138 Ky. 25. (Annotated) 292. Under a statute providing that an agreement for the sale of goods or chattels at not less than a stated price is invalid unless some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent, an executory contract of sale of grain within the pro- visions of the above statute, consisting of mutual agreements on the part of both par- ties and signed only by the seller, is not sufficient to take the case out of the stat- ute of frauds. Houser v. Hobart, 43: 410, 127 Pac. 997, 22 Idaho, 735. (Annotated) 293. Mere parol acceptance by the as- signee of a written assignment of a contract to sell real estate is sufficient to warrant the enforcement of the contract against him in favor of the assignor, skice it is sufficient to satisfy the statute of frauds if the contract to sell the assignor's interest in the property is signed by him. Evans v. Stratton, 34: 393, 134 S. W. 1154, 142 Ky. 615. 294. A trustee maj* execute a declaration of trust which will take the transaction out of the statute of frauds. Holmes v. Holmes, 38: 645, 118 Pac. 733, 65 Wash. 572. ( Annotated ) 295. A promise signed by the promoter of a corporation to pay for stock taken by a subscriber upon its surrender within a cer- tain time is not invalid under the statute of frauds because not signed by the sub- scriber. Re Neff, 28: 349, 157 Fed. 57, 84 C. C. A. 561. c. Memorandum. (See also same heading in Digest L.R.A. 1-70.) 296. A resolution of the board of direct- ors of a corporation, signed by the president and secretary, to sell real estate, which is sufficiently definite in the description of property and terms, is a sufficient memo- randum to satisfy the statute of frauds. Western Timber Co. v. Kalama River Lum- ber Co. 6: 397, 85 Pac. 338, 42 Wash. 620. 297. Neither a draft of a deed nor a writ- ten notice to execute the same is sufficient to satisfy the requirements of the statute of frauds as to a memorandum of the sale of real estate, where they do not contain the terms of sale. Hartenbower v. Uden, 28: 738, 90 N. E. 298, 242 111. 434. 298. A written memorandum, "I have sold this place" to another for a certain amount, is not sufficient to satisfy the stat- ute of frauds. Cunha v. Gallery, 18: 616, 69 Atl. 1001, 29 R. I. 230. 299. A memorandum made by the auction- eer on the back of the notice of sale of 636 CONTRACTS, I. e, G. certain described real estate, that it was sold to a certain person at a certain price, is sufficient to satisfy the statute of frauds. Love v. Harris, 36: 927, 72 S. E. 150, 156 N. C. 88. 300. The mere indorsement of one's name upon a building contract, under the word surety, is not a sufficient note or memo- randum in writing of the obligation of the one so signing to satisfy the statute of frauds and charge him as surety on the contract. Mead v. Winslow, 23: 1197, 102 Pac. 75.% 53 Wash. 638. (Annotated) 301. Letters addressed to a third person stating and affirming a contract, may be used against the writer as a memorandum to sat- isfy the statute of frauds. Nicholson v. Dover, 13: 167, 58 S. E. 444, 145 N. C. 18. Signature. Specific performance of contract signed by only one party, see SPECIFIC PKRIOIJM- AXCE, 16-18. See also supra, 145. 288-295; infra, 321. 302. The entry in the seller's account book is not a memorandum signed by the party to be charged, within the meaning of a statute making contracts for the sale of goods void in the absence of certain cir- cumstances, including a memorandum in writing signed by the party to be charged. United Hardware-Furniture Co. v. Blue, 35: 1038, 52 So. 364, 59 Fla. 419. 303. A memorandum of sale by an auc- tioneer binds the bidder, although his name is not signed to it, if it appears in the body of the instrument. Love v. Harris, 36: 927, 72 S. E. 150, 156 N. C. 88. 6. Effect of fraud or part performance. a. In general. (See also same heading in Digest L.R.A. 1-10.) Right of recovery on part performance, see infra, IV. c, 1. See also supra, 193, 207. 304. The right to the benefits of a parol antenuptial contract which has been fully executed by both parties cannot be defeat- ed because of the statute of frauds. Su- preme Lodqe K. of 1'. v. Ferrell, 33: 777, 112 Pac. 155. 83 Kan. 491. 305. An action at law for damages for a failure to deliver corporate stock in accord- ance with a parol agreement to do so in consideration of services to be rendered, which, as to such part, is void under the statute of frauds, cannot be maintained be- cause the services have been rendered and a money compensation paid therefor in ac- cordance with another part of the agree- ment which is not necessarily within the statute, since mere payment of the con- sideration will not take the case out of the ' statute, and full performance of the pro- vision of the contract not within the statute cannot be regarded as such performance as will take the void part out of it. Franklin Digest 1-52 L.R.A.(N.S.) v. Mutoa Gold Min. Co. 16: 381, 158 Fed. 941, 86 C. C. A. 145. 300. A contract binding under the stat- ute of frauds is effected by the receipt by an auctioneer of a percentage of the bid for property offered by him for sale, and the delivery by him to the bidder of a bill of sale, of the property, which acknowledges receipt of the money paid. Meyer v. Red- mond, 41: 675, 9S X* E. 906, 205" N. Y. 478. 307. The resignation of his former posi- tion by one who had entered into an oral contract with a Corporation whereby it was to sell him some of its stock, and to employ him as its bookkeeper, does not constitute giving "something in earnest to bind the bargain, or in part payment," so as to take the contract out of the statute of frauds. IleWHon v. Peterman Mfg. Co. 51:398, J.'JG Pac. 1158, 76 Wash. 600. 308. After he has secured the property, one who has promised to bid in the property of a corporation at a judicial sale and pay the debts secured by it cannot rely on the stat- ute of frauds to avoid compliance there- with. Satterfleld v. Kindley, 15: 399, ~n S. E. 145, 144 N. C. 455. Sales of chattels. 309. A delivery and acceptance of any part of the goods or chattels which are the subject of an oral agreement, and within the statute of frauds, at any subsequent time, takes the contract out of the statute of frauds, and makes valid the entire con- tract. Gabriel v. Kildare Elevator Co. 10: 638, 90 Pac. 10, 18 Okla. 318. (Annotated) 310. An offer by a purchaser of a quan- tity of hay to be separated from a larger mass in a barn, to sell to another a quan- tity which had been separated from the common mass by the seller, and placed out- side the barn, although it is rejected, is a sufficient acceptance of that particular lot to satisfy the statute of frauds. Beedy v. Brayman Wooden Ware Co. 36: 76, 79 Atl. 721,* 108 Me. 200. (Annotated) 311. The baling of the hay by the pur- chaser is a sufficient part payment of the price to take a contract to pay a certain price per ton for hay, the purchaser to do the baling, out of the statute of frauds. Driggs v. Bush, 15: 654, 115 N. W. 985. 152 Mich. 53. (Annotated) 312. That personal property is in posses- sion of an intending purchaser at tin- time he makes a verbal offer for it which is duly accepted is not sufficient to comply with a statute providing that no contract for the sale of goods of the value of $50 or more shall be valid unless the purchaser shall accept and receive part of the goods sold. Godkin v. Weber, 20: 498, 117 N. W. 628, 154 Mich. 207. 313. A binding contract to purchase mill culls is not effected by the fact that one making a verbal offer for them accepted and paid for merchantable lumber which wa cut from them, claiming that this timber was not part of the culls. Godkin v. Web- er, 20: 498, 117 N. W. 628, 154 Mich. 207. 314. Delivery of goods to a common car- rier pursuant to sm oral agreement for th* CONTRACTS, I. e, 6. 637 purchase thereof, without instruction to do anything but cany and deliver them to the buyer, is not a delivery to the consignee within the meaning of a statute requiring the buyer, in order to render such a con- tract valid where there is no payment or part payment, to both actually receive and accept the goods, since under such statute some act or conduct on the part of the buyer or his authorized agent maintaining an intention to accept the goods as a per- formance of the contract, and to appro- priate them, is required. United Hardware- Furniture Co. v. Blue, 35: 1038, 52 So. 364, 5!) Fla. 419. (Annotated) 315. A verbal agreement consisting of an offer to sell lumber on specified terms, and its acceptance, does not, in the absence of some affirmative act on the part of the pur- chaser manifesting an intention to accept the property under the sale agreement, work a change of possession so as to satisfy the statute of frauds, although the lumber is in the possession of the purchaser as bailee, or to some extent by reason of its being on his premises by his permission. J. H. Silk- man Lumber Co. v. Hunholz, n: 1186, 112 N. W. 1081, 132 Wis. 610. (Annotated) 316. A contract for sale of unissued stock in a corporation and an interest in an automobile is taken out of the statute of frauds by entering into possession of the business with the other owners, carry- ing it on as contemplated by the contract, and taking and using the automobile as one of the owners. Ford v. Howgate, 29: 734, 76 Atl. 939, 106 Me. 517. Marriage. 317. Marriage, followed by support and maintenance by the husband of the wife, is not such a performance of an oral antenup- tial agreement as will take the agreement out of the statute of frauds. Rowell v. Barber, 27: 1140, 125 N. W. 937, 142 Wis. 304. b. Contracts relating to real property. (See also same heading in Digest L.K.A. 1-10.) Specific performance of contract, see SPE- CIFIC PERFORMANCE, I. b. 318. A "part performance," to take an oral agreement to convey real estate out of the statute of frauds, must be substantial, and of such a nature that the refusal to enforce the agreement would result not merely in the denial of the right which the agreement was intended to confer, but in an "unjust and unconscientious injury." Re Bennett. 37: 521, 132 N. W. 309, 115 Minn. 342. 319. That one to whom another promises orally, upon receiving title to real estate, to convey it upon payment of a specified sum of money, acted for the promisor in negotiating the purchase, and had a possi- ble broker's opportunity to find another purchaser for the land, does not show such a change in situation as to constitute part Digest 1-52 I,.R.A.(N.S.) performance sufficient to take the promise out of the statute of frauds. Re Bennett, 37: 521, 132 N. W. 309, 115 Minn. 342. 320. The fact that, by direction of the purchaser, the deed was made to a stranger, does not change the rule that a parol con- tract to purchase real estate may be en- forced if the deed has been executed and delivered. Malzer v. Schisler, 51:77, 136 Pac. 14, 67 Or. 356. (Annotated) 321. Under a statute making invalid con- tracts within the statute of frauds unless a memorandum thereof be in writing, and subscribed by the party to be charged, an action for specific performance cannot be maintained against a vendee who did not sign the agreement, although he paid a small portion of the purchase money, and accepted a receipt therefor. Harper v. Goldschmidt, 28: 689, 104 Pac. 451, 156 Cal. 245. (Annotated) 322. The erection by grantees of lots in a tract of land, of buildings according to restrictions as to building lines and resi- dences placed in their deeds, which they were assured would apply to the whole tract, is not such part performance as to take the promise as to the remaining lots out of the statute of frauds. Sprague v. Kimball, 45: 962, 100 N. E. 622, 213 Mass. 380. 323. The provisions of the statute of frauds, or of uses and trusts, have no ap- plication where an agreement to take title to real property and sell it as an^ agent of the real owner, to whom the proceeds are to be turned over, has been completely per- formed as to the part thereof which comes within the statute, and the part remaining to be performed is merely a payment of the money, the promise to do which is not re- quired to be in writing. , Logan v. Brown, 20: 298, 95 Pac. 441, 20 Okla. 334. 324. Absence of writing will not defeat, under the statute of frauds, an agreement between mortgagor, the purchaser of the. mortgage, and a trustee, to hold it and col- lect the rents and payments of principal and make application thereof, after the agreement has been performed. McLeod v. Despain, 19: 276, 90 Pac. 492. 49 Or. 536. 325. A contract between husband and wife that the survivor shall take the property of the other is taken out of the statute of frauds by the execution of reciprocal wills. Brown v. Webster, 37: 1196, 134 N. W. 185, 90 Neb. 591. 326. A parol assignment of a lease for the period of three years is void under the statute of frauds; but where the assignee has taken possession of the demised prem- ises, and paid the purchase price for the lease, and performed the covenants thereof by paying for a time the monthly rentals to the lessor as provided in the lease contract, the transaction is relieved from the opera- tion of the statute, and the assignee is lia- ble to the lessor for the full term of the lease, although he has abandoned the prem- ises. Tyler Commercial College v. Staple- ton, 42: 162, 125 Pac. 443, 33 OTda. 305. ( Annotated ) 038 CONTRACTS, I. f II. a. Performing services. 327. Performing services in consequence of an oral promise to devise real estate will not take the promise out of the statute of frauds. Goodloe v. Goodloe, 6: 703, 92 S. W. 767, 116 Tenn. 252. 328. The performance by an attorney of the services which result in a recovery of real estate is not such performance of an agreement for a share of the recovery as compensation as to take the case out -of the statute of frauds. Farrin v. Matthews, 41: 184, 124 Pac. 675, 62 Or. 517. Possession and improvement. Effect on right to specific performance, see SPECIFIC PERFORMANCE, 48, 50-53. 329. Without a valuable consideration for the conveyance, taking possession of real estate alone is not sufficient to take a parol gift of real estate out of the statute of frauds. Price v. Lloyd, 8: 870, 86 Pac. 767, 31 Utah, 86. 330. Parol gifts of land may be upheld in equity, if not at law, where the donee goes into possession and makes permanent im- provements. Bevington v. Bevington, 9:508, 110 N. W. 840. 133 Iowa. 351. 331. Possession taken by a vendee under a parol contract for the conveyance of real estate, not taken in pursuance of the con- tract, or with the knowledge and consent of the vendor, is insufficient to relieve the contract of the operation of the statute of frauds, and to entitle the vendee to specific performance. Collins v. Lackey, 40: 883, 123 Pac. 1118, 31 Okla. 776. 332. Possession alone of land under a verbal contract, when delivered by the ven- dor to the vendee, is an act of part perform- ance which will take the case out of the statute of frauds. Spragu v. Jessup, 4: 410, 83 Pac. 145, 48 Or. 211. 333. No taking of possession sufficient to satisfy the statute of frauds occurs where one in possession of a mining claim under a prospecting contract with one part owner purchases the share of the other owner, and merely continues his possession and operations without anything to connect him with the later contract. Roberts v. Temple- ton, 3: 790, 80 Pac. 481, 48 Or. 65. (Annotated) 334. Entry under a parol lease void under the statute of frauds confers no rights un- der the lease. Brodner v. Swirsky, 42: 654, 84 Atl. 104. 86 Conn. 32. (Annotated) 335. In the absence of any equitable con- sideration, possession by a tenant for the first year under a parol lease of real es- tate for three years, is not such a part performance as will avoid the provisions of the statute of frauds. Osgood v. Shea, 42: 648, 126 N. W. 310, 86 Neb. 729. f. Incorporating extrinsic document. Reading statute into insurance policy, see INSURANCE, 167. Law authorizing regulation of public serv- ice as part of contracts therefor, see PUBLIC SERVICE CORPORATIONS, 7. See also SALE, 2. Digest 1-52 L.R.A.(N.S.) 336. A request by a shipper to a carrier for carriage of property, which contains a statement of valuation of the property, and is referred to by the shipping contract, which limits the liability of the carrier to the values stated in the request, becomes a part of the contract. Donlon v. Southern P. Co. ii : 811, 91 Pac. 603, 151 Cal. 763. g. Merger. 337. All prior and contemporaneous oral negotiations are merged into a written con- tract finally entered into, and which fully covers the subject-matter of such negotia- tions. J. W. Ripy & Son v. Art Wall Paper Mills, 51 : 33, 136 Pac. 1080, 41 Oka. 20. 338. As a general rule all preceding negotiations relating to a lease of land are merged in the written lease and, in the ab- sence of fraud or mistake, the writing is the controlling evidence of the terms and con- ditions upon which the property was de- mised. Salinger v. North American Woolen Mills, 39: 350, 73 S. E. 312, 70 W. Va. 151. II. Construction, a. In general. (See also same heading in Digest L.R.A., 1-70.) Construction of public contract, see infra^ VII. Of title guaranty company, see ABSTRACTS, 6. Of bonds, see BONDS. Carriers' contracts generally, see CARRIERS. Parol evidence as to, see EVIDENCE, 958. Evidence as to condition on which liverr rig was engaged, see EVIDENCE, 1941. Parol evidence as to meaning of parties to- 'contract, see EVIDENCE, VI. e. Widow's right to year's support under ante- nuptial agreement, see HUSBAND AND WIFE, 134. Of insurance contract, see INSURANCE, III. d. Of lease, see LANDLORD AND TENANT, II. Of oil and gas lease, see MINES, II. b, 4. Meaning of words in regulations of rail- road relief association, see RAILROAD- RELIEF ASSOCIATIONS, 1. As question for jury, see TRIAL, II. e, 6. Of wills, see WILLS, III. Of release as a whole, see RELEASE, 5, 6. See also infra, 553. 339. It is only where the language of a contract is ambiguous and uncertain and susceptible of more than one constructioa that a court may, under the well estab- lished rules of construction, interfere to reach a proper construction, and make cer- tain that which in itself is uncertain. Grif- fin v. Fairmont Coal Co. 2: 1115, 53 S. E. 24, 59 W. Va. 480. 340. It is the duty of the court to con- strue contracts us they are made by the par- ties thereto, and to give full force and effect to the language used, when it is clear, plain, CONTRACTS, II. b. 639 simple, and unambiguous. Griffin v. Fair- mont Coal Co. 2: 1115, 53 S. E. 24, 59 W. Va. 480. 341. The court, in construing the terms of a contract and the law applicable there- to, will take into consideration the condi- tions and circumstances under which the parties were contracting, a'nd construe their contract in the light thereof. Schurger v. Moorman, 36: 313, 117 Pac. 122, 20 Idaho, 97. 342. In construing a contract where the language thereof is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. A. Leschen & Sons Rope Co. v. Mayflower Gold Min. & R. Co. 35: i, 173 Fed. 855, 97 C. C. A. 465. 343. The laws upon the subject of a con- tract are read into and become a part of it, to the same extent as though they were written into its terms. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 344. Printed matter in the heads of let- ters upon which a contract is written, which is not referred to in the writing, is not a part of the contract. R. J. Menz Lumber Co. v. E. J. McNeeley & Co. 28: 1007, 108 Pac. 621, 58 Wash. 223. Effect of custom. 345. A custom which contravenes a posi- tive statute is invalid, and does not become a part of a contract. Deadwyler v. Karow, 19: 197, 62 S. E. 172, 13l'Ga. 227. Intention of parties; construction given by them. Public contract, see infra, 785. Evidence as to intent of party, see EVI- DENCE, 1615-1624. In case of lease of municipal property, see MUNICIPAL CORPORATIONS, 495. 346. The court, in construing a contract, should put itself in place of the parties thereto when their minds met upon the terms thereof, and then from a considera- tion of the writing itself, of its purpose, and of the circumstances, ascertain what they intended to agree to do, and upon what sense and meaning of the terms they used their minds actually met. A. Leschen & Sons Rope Co. v. Mayflower Gold Min. & R. Co. 35: i, 173 Fed. 855, 97 C. C. A. 465. 347. In construing a written contract the intent of the parties, when manifest, or when ascertained therefrom, must control without regard to inapt expressions or the dry words of the contract, unless that in- tent is directly contrary to the plain sense of the binding words of the agreement. A. Leschen & Sons Rope Co. v. Mayflower Gold Min. & R. Co. 35: i, 173 Fed. 855, 97 C. C. A. 465. 348. The practical construction of am- Digest 1-52 L.R.A.(N.S.) biguous terms of a contract, arising from the acts of the parties interested, will be adopted, although the language used may more strongly suggest another construction. Pittsburg Vitrified Pav. & Bldg. B. Co. v. Bailey, 12: 745, 90 Pac. 803, 76 Kan. 42. 349. The practical construction placed by the parties upon a contract for the sale of hops as to right of inspection will be fol- lowed by the courts. Mitau v. Roddan, 6: 275, 84 Pac. 145, 149 Cal. 1. 350. The rule that contemporary con- struction is to be given weight in the inter- pretation of contracts applies only where the contract is ambiguous and the intention is doubtful. Sternbergh v. Brock, 24: 1078, 74 Atl. 166, 225 Pa. 279. 351. A licensee of a right to use a device under a patent may be required to pay royalties on a device which is not in fact within the protection of the patent so long as the parties treat it as within such pro- tection. Strong v. Carver Cotton Gin Co. 14: 274, 83 N. E. 328, 197 Mass. 53. ( Annotated ) So as to uphold contract. 352. In case of a contract which is so ex- pressed as to be susceptible of different un- derstandings, which are asserted by the par- ties thereto, that one will be adopted which, will uphold, rather than defeat, the validity of the instrument. McEvoy v. Security F. Ins. Co. 22: 964, 73 Atl. 157, 110 Md. 275. 6. Entirety. (See also same heading in Digest L.R.A. 1-10.) Of insurance contract, see INSURANCE, III. e, 1, f. Sufficiency of plea to raise issue of entirety, see PLEADING, 518. See also infra, 572, 642. 353. The mere affixing of a price to each bushel of a crop contracted to be threshed is not sufficient to make the contract sever- able. Johnson v. Fehsefeldt, 20: 1069, 118 N. W. 797, 106 Minn. 202. (Annotated) 354. A proposition to real estate brokers for the sale of land, contained in a letter stating that the writer has large tracts of land for sale, and that if they have any clients looking for tracts of land of the size of these, either one will surely suit them, and fixing the prices at so much net per acre to the writer, together with another letter referring to "putting the 6,000-acre tract up" for sale, which has been ac- cepted by the real estate brokers, consti- tutes an entire contract, and does not au- thoriae the brokers to sell or find a pur- chaser for any part of the tract less than the whole. Bentley v. Edwards, 51 : 254, 146 N. W. 347, 125 Minn. 179. 355. The purchaser of a business includ- ing secret formulas cannot defeat the fore- closure of a mortgage given to secure pay- ment of unpaid purchase money, merely because the vendor agreed not to re-engage in such business anywhere in the United 40 CONTRACTS, II. c, d, 1. States, since such agreement, if invalid, is severable, and, containing nothing contrary to good morals, payment of the purchase money may be enforced. Nicholson v. Kills, 24: 942, 73 Atl. 17, 110 Md. 322. (Annotated) 356. A contract to perform personal serv- ices in a law ollice for a specified time, for a share of the fees, is indivisible, and no action can be maintained upon it if the service is left before the time expires. Davidson v. Gaskill, 38: 692, 121 Pac. 649, 32 Okla. 40. c. Time. (See also same heading in Digest L.R.A. 1-10.) Parol evidence to vary terms as to time when obligation becomes due, see EVI- DENCE, 931. For delivery of goods sold, see SALE, 35. Effect of failure to specify time on specific performance of contract, see SPECIFIC PERFORMANCE, 90. See also supra, 273; infra, IV. f. 357. An agreement whereby a landowner, in consideration of $1 and other considera- tion, agreed to convey a described strip of land for an electric railway right of way as soon as the track was laid thereon, and, for other like consideration, further agreed to pay a stipulated sum as soon as the rail- way company put the line in operation from B. to such described strip of land, with a specified service thereon, embodies two com- plete contracts ; one for a conveyance of a right of way, and the other to pay a bonus as specified, the latter of which may be en- forced by the railway company upon com- pletion of its road to the boundary line of the described premises and the institution of the stipulated services, although it ma t not be in a position to demand the right of way, because it has not complied with that part of the agreement providing for a con- veyance thereof. Bois Valley Constr. Co. v. Krocger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. d. Particular words, phrases, and cases. 1. Miscellaneous. (See als'o same heading in Digest L.R.A. 1-70.) Memorandum on back of note as part of contract, see ALTERATION OF INSTRU- MENTS, 14. Contract by bailee to return animal in as good condition as when received, see BAILMENT, 15-17. Compromise agreement, see COMPROMISE AND SETTLEMENT, 3. As to condition subsequent relating to real- ty, see COVENANTS AND CONDITIONS, 11-13. Digest 1-52 L.R.A. (N.S.) What constitutes "indebtedness" assumed by transferee of corporate f ranch isc, see CORPORATIONS, 29. To convey real estate by good and sufficient deed, Me DEEDS, 2. Parol evidence as to meaning of particular words, see EVIDENCE. 9(i2-9(58. Agreement consigning goo^ls lor sale by factors, see FACTORS, 2. Antenuptial agreement, see HUSBAND AND WIFE, II. i. Contract of insurance agent, see INSURANCE, 32. Meaning of word "may" in insurance pol- icy, see INSURANCE, 188. Meaning of term "destitute of means of support" in insurance policy, see IN- SURANCE, 189. Construction of insurance contract general- ly, sec INSURANCE, III. d. Contract to support person in part pay- ment of rent, see LANDLORD AND TEN- ANT, 185. Contract of employer to pay employee sick benefits, see MASTER AND SERVANT, 85. Contract of partnership, see PARTNERSHIP, Contract between telephone company and municipality, see TELEPHONES. 14. Testamentary character of instrument, set WILLS, I. a, 2. 358. Under a written contract for the col lection of claims according to a system of one of the parties, the system as explained by the agent securing the contract, although not in writing, becomes a part thereof. American Mercantile Exchange v Blunt, 10: 414, 66 Atl. 212, 102 Me. 128. 359. An agreement by a manufacturer to furnish two thirds of its freight tonnage to a contemplated railroad to secure its con- struction does not require the tonnage to be furnished as it accrues. Lone Star Salt Co. v. Texas Short Line 11. Co. 3: 828, 91 > S. W. 863, 99 Tex. 434. 360. A contract providing for the pay- ment of a bonus upon the putting in opera- tion of a certain electric railway from B. "to the strip of land above described" does not mean "upon or over," but merely "to," the boundary of such strip of land. Boise Valley Constr. Co. v. Kroeger, 28: 968, lit") Pac. 1070, 17 Idaho, 384. 361. A contract between the next of kin of a decedent, that they will each have a certain portion of the estate, does not amount to an agreement to divide the es- tate without probating the will. Blount v. Dillaway, 17: 1036, 85 N. E. 477, 199 Mass. 330. 362. An agreement to treat a child in all respects as one's own, made to secure pos- session of it from an orphan asyium, im- poses no obligation to will property to it. Baumann v. Kusian, 44: 756, 129 Pac. 986, 164 Cal. 582. 363. A contract between an employer and employee by which a fund shall be created by joint contributions which, in ease of the death of the employee, shall be paid first to his widow, and in which the employer re- CONTRACTS, II. d, 2. 641 serves the right to retain all sums due for indemnities under the contract until a re- lease is properly executed by all persons interested in, or injured by, the death of the employee, does not require a release only from those interested under the contract, but the employer may retain the fund un- til the widow presents a release from all persons interested in, or injured by, the death of the employee. Frank v. Newport Min. Co. ii : 182, 112 N. W. 504, 148 Mich. 637. (Annotated) Licensing use of patented article. 364. Under a contract licensing the use of an automatic attachment covered by a particular patent, which obligates the li- censee to pay a royalty for each automatic attachment made and sold, a licensee will be required to pay for only those attach- ments which are in fact covered by the pat- ent, although it makes similar ones which are not so covered, and upon which it paid a royalty prior to the execution of the con- tract; since the contract must be interpret- ed by its terms, and not by the aid of parol evidence of prior conduct. Strong v. Car- ver Cotton Gin Co. 14: 274, 83 N. E. 328, 197 Mass. 53. Not to interfere with "customers" of manufacturer. 365. One who has refused to purchase all his supplies from a manufacturer unless forced to do so cannot be regarded as a customer, within the meaning of a contract between the manufacturer and a jobber that the latter shall not sell to, or interfere with, the customers or trade of the manufacturer. Knickerbocker Ice Co. v. Gardiner Dairy Co. 16: 746, 69 Atl. 405, 107 Md. 556. Not to enter competitive business. 366. A distillery located within about a mile from the courthouse at a certain place, and about a half mile from the town limits, the town being the shipping point for the products, is located "at" a place, within the meaning of a contract prohibiting another from conducting a rival business while it is so located. Harris v. Theus, 10: 204, 43 So. 131, 149 Ala. 133. 367. An agreement by a retiring partner "not to engage for the next two years" in the same city in competition with a busi- ness sold, in "the manner aforesaid, or with any partner, partners, firm, company, or corporation for the period aforesaid," is vio- lated by the entering of such partner into the employ, as a managing clerk, of a third person, whom such retiring partner was in- strumental in procuring to open a rival business adjacent to that of the original firm, and such violation should be enjoined at the suit of the purchasing partner. Sie- gel v. Marcus, 20: 769, 119 N. W. 358, 18 N. D. 214. (Annotated) To pay draft. 368. One who advises another in writing that he will honor the draft of a third per- son for a specified amount on hogs or cat- tle does not undertake to honor any draft which such third person may draw upon him, but only such as are for the price of Digest 1-52 L.R.A.(N.S.) 41 stock shipped to him. Stough v. Healy, 10: 918, 89 Pac. 898, 75 Kan. 526. To maintain depot and operate trains. 369. An agreement contained in a deed conveying lands to a railroad company for its right of way, by the owner of a hotel situated upon the line, that the company shall maintain a spur track, depot, and platform, and operate all its regular pas- senger trains thereon during the winter tourist season, indicates an intention that the agreement should remain in force at least during the continuance of substantial- ly the same mutual conditions and relations of the parties and their privies. Taylor v. Florida East Coast R. Co. 16: 307, 45 So. 574, 54 Fla. 635. With carrier. See also supra, 369. 370. Provisions in a live-stock shipping contract, specifying to whom and when no- tice in writing for any claim for loss or in- jury must be given and within what time an action must be commenced, relate to damages received during transportation only, and are inapplicable where the damages claimed were sustained while the cattle were awaiting shipment in the cattle yards of the railroad company. St. Louis & S. F v R. Co. v. Beets, 10: 571, 89 Pac. 683, 75 Kan. 295. Assumption of debts. 371. The obligation of one who assumes the debts of a bank in consideration of a transfer to him of its assets is not limited to the amount at which the debts are esti- mated. Moore v. First Nat. Bank, 10: 260, 88 Pac. 385, 38 Colo. 336. 372. The undertaking of one who assumes the debts of a bank in consideration of a transfer to him of its assets includes the duty to meet the obligation of the bank as indorser upon a note which it has trans- ferred for value to a third person; and the indorsee may therefore enforce the obliga- tion against him. Moore v. First Nat. Bank, 10 : 260, 88 Pac. 385, 38 Colo. 336. 373. An agreement by a purchaser of a retail stock of goods to assume and pay "the outstanding and open account" held by a designated creditor does not include an indebtedness arising from promissory notes held by such creditor. Kramer v. Gardner, 22: 492, 116 N. W. 925, 104 Minn. 370. 2. As to transfer of property. a. Real property. (See also same heading in Digest L.R.A. 1-70.) Construction of deed as to boundary, see BOUNDARIES, II. 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 VEN- DOR AND PURCHASER, I. d. See also swpra, 369 ; SPECIFIC PERFORMANCE, 15. r>42 CONTRACTS, II. d, 3, 4. 374. A confirmation of a land grant for allotments merely, with a rejection of claims for outlying pasture lands, is a "confirmation" within the meaning of an agreement to pay a specified amount upon the "confirmation" of such land grant. Joseph v. Catron, i: 1120, 81 Pac. 439, 13 N. M. 202. 375. A confirmation of a land grant by the court of private land claims created by an act of Congress is a confirmation by Congress, within the terms of an agreement for the payment of a specified amount up- on the confirmation of such land grant by Congress. Joseph v. Catron, i: 1120, 81 Pac. 439, 13 N. M. 202. 376. Timber measuring more than, as well as that measuring exactly, 12 inches, passes by a conveyance of "all pine timber that will measure 12 inches at the stump 18 inches above the ground when cut." Dennis Simmons Lumber Co. v. Corey, 6: 468, 53 S. E. 300, 140 N. C. 462. 377. Where a contract has been made for the sale of real property and its convey- ance by warranty deed, the purchaser ordi- narily has a right to insist that such deed shall be executed by the person with whom he contracted. George H. Paul Co. v. Shaw, 37: 1123, 119 Pac. 546, 86 Kan. 136. 378. Under a contract to deliver a war- ranty deed to property within a certain time after the title has been examined and found good, the vendor is under no obliga- tion to furnish an abstract of title. Turn Verein Eiche v. Kionka, 43: 44, 99 N. E. 684, 255 111. 392. (Annotated) 379. A lessee who undertakes to pay the cost and charge of a conveyance to him of the fee, which is provided^ for by the terms of the lease, is not bound to pay a counsel fee for the investigation of his right to a conveyance. Hollander v. Central Metal & S. Co. 23: 1135, 71 Atl. 442, 109 Md. 131. b. Personal property. (See also same heading in Digest L.R.A. 1-10.) 380. A clause in a contract to furnish to a manufacturer who has been in the habit of running his plant, not to its full capac- ity, but merely to fill orders and keep a reasonable stock on hand, between a mini- mum and maximum amount of raw ma- terial, stating "We take care of buyer's needs this year," does not require the fur- nishing of material in excess of the maxi- mum quantity named, necessary to run the plant at full capacity, if that is in excess of orders and reasonable surplus for stock. T. B. Walker Mfg. Co. v. Swift & Co. 43: 730, 200 Fed. 529. (Annotated) 381. Language in an acceptance of an or- der for goods, "We accept and enter same for shipment. . . . We anticipate mak- ing shipment," requires the seller to fur- nish cars. R. J. Menz Lumber Co. v. E. J. McNeeley & Co. 28: 1007, 108 Pac. 621, 57 Wash. 223. Digest 1-52 L.R.A. (N.S.) 382. The phrase "f. o. b. cars," when used in a contract between a buj'er and seller of commercial commodities, where the use of a common carrier is necessary, means that the seller will secure tl.s cars, load them, and do whatever may be required tc accomplish the shipment and consignment of the goods to the buyer, free of expense to him. Hurst v. Altamont Mfg. Co. 6: 928, 85 Pac. 551, 73 Kan. 422. 3. Other agreements relating to land or water. (See also same heading in Digest L.R.A. 1-10.) See also infra, 389. 383. A lease of land, and not a hiring of convicts, is effected by a contract reciting that the board of control has agreed to work a plantation, and is to pay to the owner all the crops after deducting a certain amount which the owner guarantees shall be raised. State ex rel. Greaves v. Henry, 5: 340, 40 So. 152, 87 Miss. 125. 384. A contract by a logging company to maintain a boom along the bank of a ri- parian owner to protect the land does not render it liable for injury to the land through the destruction of the boom by an unprecedented flood. Coleman v. Mississippi & R. R. Boom Co. 35: 1109, 131 N. W. 641, 114 Minn. 443. (Annotated) 4. For services; construction of build- ings or works. (See also same heading in Digest L.R.A. 1-70.) Termination of, see infra, 723, 724. Cropper's contract," see CHOPPERS, 1, 2. Provisions converting contract of hiring in- to one of bailment, see MASTER AND SERVANT, 880. Right of one giving notes for good will of business and owner's services to coun- terclaim, in action on note, value of services not rendered because of death, see SET-OFF AND COUNTERCLAIM, 3. See also supra, 30. 385. A promoter of a corporation who undertakes, as part of the inducement to the undertaking, to devote his whole time and attention to the corporate business, without specifying the period over which the services are to extend, is not bound to continue such services for a reasonable time, but may cease to render them at pleasure, without liability to persons who invested their money on the faith of the promise, al- though the withdrawal of the service wrecks the corporation. Watson v. Gugino, 39: 1090, 98 N. E. 18, 204 N. Y. 535. 386. Where one, having undertaken to clear the title to another's property and dis- pose of it for one half the proceeds, ex- | changes a certain portion of it for a judg- ment on a claim against one in whose name CONTRACTS, II. d, 4. 643 the property formerly stood, by reason of which fact the judgment creates a cloud on the title to the property; and the transac- tion is ratified by the owner; and the es- tate of the judgment debtor subsequently proves to be good for part of the amount of the judgment, such part is to be regarded as proceeds within the meaning of the con- tract. Mills v. Smith, 6: 865, 78 N. E. 765, 193 Mass. 11. 387. A contract by a sugar manufacturer to instruct and supervise a beet grower in the making of a crop does not require him to instruct the grower's laborers. Smith v. Billings Sugar Co. 15: 837, 94 Pac. 839, 37 Mont. 128. 388. A sale, within the meaning of a con- tract between a firm engaged in colonizing large tracts of western lands and having in its employment a large number of traveling agents and field agents, and an agent of the latter class, providing for the negotiation of sales by the latter, and agreeing to pay him commissions of 25 cents per acre on sales made by him without assistance from other parties, to purchasers found by him, 10 cents per acre on land sold by the other party or its other agents with his assist- ance, and 5 cents per acre on land sold un- der his advice, but without his assistance, is not effected by a contract by which the owners of the land, being desirous of secur- ing irrigation in order to promote its sale, convey the land to an irrigation company, the value of whose property is less than the value of the lands, receiving therefor, in ad- dition to 49 per cent of the stock of the lat- ter company, an amount of its bonds suffi- cient to equalize the interests of the re- spective parties in the assets of the corpo- ration. Close v. Browne, 13: 634, 82 N. E. 629, 230 111. 228. 389. The words "and other property," in a contract to pay a commission upon the purchase of certain lands and other property for a certain sum, will be treated as sur- plusage, and the agreement regarded as applying only to the purchase of the land, in the absence of anything to show an in- tention to include any other property in the agreement. McLure v. Luke, 24: 659, 154 Fed. 647, 84 C. C. A. 1. Building or construction contracts. When action for instalments on, accrues, see ACTION OR SUIT, 8. Admissions by building contractor, see AD- MISSIONS. Estoppel to question validity of assignment of, see ESTOPPEL, 115. Evidence in action on, see EVIDENCE, 1624, 1648. Rights and liabilities of surety for building contractor, see PRINCIPAL AND SURETY, 9, 10, 20-23, 39, 40. Contribution between sureties on contract- or's bond, see PRINCIPAL AND SURETY, 73, 74. 390. Under a contract by an architect to draw plans and superintend the construc- tion of a building to the "entire satisfac- tion" of the owner for a percentage of the cost of the building, which describes the Digest 1-52 L.R.A.(N.S.) character of the work and materials to be employed, the owner cannot discharge him without reasonable ground for dissatisfac- tion. Gould v. McCormick, 47: 765, 134 Pac. 676, 75 Wash. 61. 391. A property owner who has made a contract for the furnishing of materials and the erection of a building upon his property is not personally liable for materials sold and delivered to the contractor for use in the building. Volker-Scowcroft Lumber Co. v. Vance, 24: 321, 103 Pac. 970, 36 Utah, 348. 392. Under a building contract calling for material of a certain make "or equal," the contractor is not bound to furnish the ma- terial specified if procurable, and substitute other material only when that specified is not obtainable, but may use material equal to that specified in the first instance if it can be procured. Camp v. Neufelder, 22: 376, 95 Pac. 640, 49 Wash. 426. 393. A property owner is not bound as guarantor for the sufficiency of plans for the construction of a building as a legal consequence of submitting them for bids on the work, and entering into a contract there- for. Lonergan v. San Antonio Loan & T. Co. 22: 364, 104 S. W. 1061, 101 Tex. 63. 394. A guaranty by the property owner of the sufficiency of the plans on which he con- tracts for the erection of a building cannot be derived from provisions in the contract giving the architect supervision and con- trol of the work. Lonergan v. San Antonio Loan & T. Co. 22: 364, 104 S. W. 1061, 101 Tex. 63. 395. A property owner contracting for the construction of a building does not guarantee the sufficiency of the plans by a clause in the contract that he is bound by the acts of the architect as to the sufficiency of the design, material, and workmanship, where* it is used in connection with pro- visions for changes in design and materials from the original plan. Lonergan v. San Antonio Loan & T. Co. 22: 364, 104 S. W. 1061, 101 Tex. 63. 396. A provision in a contract for the construction of a cellar according to speci- fications, "the whole to 1 e 1 perfectly water- tight and guaranteed," binds the contractor only so far as- his own work is concerned, and does not guarantee that the plans will produce a water-tight cellar. Bush v. Jones, 6: 774, 144 Fed. 942, 75 C. C. A. 582. 397. The character of ornamental work which a contractor undertook to supply for a building cannot be determined from the general standing of the architect, or the character of the building, where it was pos- sible to furnish detail drawings, as is mani- fest by the fact that they were furnished af- ter the contract was signed. Snead & Co.. Iron Works v. Merchants' Loan & T. Co. 9: 1007, 80 N. E. 237, 225 111. 442. 398. Where, after signing a contract for ornamental work in a building, certain pro- visions in which are differently interpreted by the parties, the contractor sends to the owner's representative a letter setting forth his interpretation, after which the owner signs and returns-the contract without notic- 644 CONTRACTS, III. a. ing the letter, the contractor has a righl to assume that his construction of the con tract has been assented to. Snead & Co Iron Works v. Merchants' Loan & T. Co 9: 1007, 80 N. E. 237, 225 111. 442. 399. The contractor for ornamental work in a building cannot be held liable, under a provision of the contract fixing a penalty for delay in finishing the work, for delay caused by the fai-lure of the architect, who is the agent of the owner, in furnishing the detail drawings. Snead & Co. Iron Works v. Merchants' Loan & T. Co. 9: 1007, 80 N. E. 237, 225 111. 442. 400. Power given the owner to take charge of the work upon failure of a build- ing contractor diligently to prosecute the work, or to employ competent help, will not entitle him to do so upon failure to comply with the contract as to material used or work done. Brent v. Head, W. & Co. 16: 801, 115 N. W. 1106, 138 Iowa, 146. 401. A provision in a building contract authorizing forfeiture of the contract with retention of moneys already earned, leaving the contractor liable for the expense of com- pleting the work, for his failure "promptly and properly to proceed with and complete the work," will not be construed as apply- ing merely to failure to progress the work, where another clause of the contract pro- vides that for such failure the owners may increase the force at the contractor's ex- pense. Brady v. Oliver, 41: 60, 147 S. W. 1135, 125 Tenn. 595. 402. A provision in an excavation con- tract taking material that cannot be plowed out of the class of ordinary earth, for pur- poses of compensation, means that cannot be plowed with reasonable facilities, and in- cludes such material as hardpan, or that containing large and coarse boulders and cemented gravel, which frequently turns the plow out of its shallow f.irrow, or fastens it so firmly that unusual means are re- quired to loosen and extract it. Indian- apolis Northern Traction Co. v. Brennan, 30: 85, 87 N. E. 215. 90 N. E. 65, 174 Ind. 1 403. That the most feasible and available method of loosening material to be exca- vated under a contract which takes materi- al that cannot be plowed out of the class of ordinary earth, for purposes of compen- sation, is the plow, does not require com- pensation at the rate paid for ordinary earth, if it cannot be plowed in the ordi- nary manner. Indianapolis Northern Trac- tion Co. v. Brennan, 30: 85, 87 N. E. 215, 90 N. E. 65, 174 Ind. 1. 404. In an excavation contract providing that loose rock, which is not to be re- moved at the ordinary price, shall comprise hard shale, coarse boulders in gravel, ce- mented gravel, hardpan, or any other ma- terial which cannot be plowed in a speci- fied manner, a provision that it is to be understood that the plowing test shall ap- ply to all materials named herein does not apply to the substances specified, but only to "any other material" which cannot be plowed. Indianapolis Northern Traction Digest 1-52 L.R.A.(N.S.) Co. v. Brennan, 30: 85, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 174 Ind. 1. III. Validity and effect, a. In general. (See also same heading in Digest L.R^A 1-70.) Implied contract to pay for services ren- dered or goods obtained under invalid contract, see supra, 40, 41, 45, 46. As to consideration, see supra, I. c. As to definiteness and meeting of minds, see supra, I. d. Formal requisites, see supra, I. e. Validity of contract of assignment, see AS- SIGNMENT, I. Contract of intoxicated person, see BILLS AND NOTES, 13-16 ; DRUNKENNESS ; EVI- DENCE, 2222. Contract for transportation of livestock, see CARRIERS, 887. Validity of contract between carrier and shipper as to rates, se CARRIERS, 1052, 1053. Contracts limiting liability of carrier, see CARRIERS, II. m, 5; II. m, 6; II. o, 5; III. g. Discriminatory contracts by carrier, see CARRIERS, IV. b, IV. c. Champertous contract, see CHAMPERTY AND MAINTENANCE. Conflict of laws as to, see CONFLICT OF LAWS, I. b. Combination to injure another's business, see CONSPIRACY, III. Ultra vires contracts of corporations, see CORPORATIONS, IV. d. Effect of duress, see DURESS. Estoppel to deny validity, see ESTOPPEL, 232. Presumptions and burden of proof as to, see EVIDENCE, II. k. Parol evidence that written contract appar- ently good was mere cover for illegal transaction, see EVIDENCE, 900. Of conveyance of expectancy, see EXPECTAN- CIES. Fraud in securing contract, see FRAUD AND DECEIT. Of married woman's contract, see HUSBAND AND WIFE, I. b, 2. Of contracts between husband and wife, see HUSBAND AND WIFE, II. e. Antenuptial contract, see HUSBAND AND WIFE, II. i. Contracts by incompetent person, see IN- COMPETENT PERSONS, II. Contracts by infants, see INFANTS, I. d, 2. Insurance contracts, see INSURANCE, III. a. Assignment of insurance policy, see INSUR- ANCE, IV. Validity of marriage contract, see MAR- RIAGE, 2. Validity of mortgage, see MORTGAGES, I. d. By officer receiving money for liquor license to return it if license is refused, see OFFICERS, 79. Creating perpetuities, see PERPETUITIES. CONTRACTS, III. b. 645 Necessity of pleading invalidity, see PLEAD- ING, 483, 484. Contract insuring intoxicating liquors, see PLEADING, 484. Of receiver, see RECEIVERS, 24. Specific performance of illegal contract, see SPECIFIC PERFORMANCE, 25-28. Validity of Sunday contracts, see SUNDAY. IV. Usury in contract, see USURY. See also infra, 681. 405. A written consent by a man to the devise by his wife of her real property is valid and effectual, though given in furth- erance of a void written agreement between husband and wife, by which each, in tepms, released all interest in the other's real property; the wife having performed her part of the agreement. Erickson v. Robert- son, 37: 1133, 133 N. W. 164, 116 Minn. 90. 406. A contract by the holder of a note to sell it to the maker at a specified time before maturity, at a discount, is valid, and upon his repudiation of the agreement, and attempt to enforce payment of the note in full, the maker may set off his damages represented by the agreed discount. Bell v. Pitman, 35: 820, 136 S. W. 1026, 143 Ky. 521. (Annotated) 407. A contract with a private water company by which a landowner secures a permanent right to the use of water from the company's canal for irrigation purposes is valid and constitutes the measure of rights of the parties, although the water right has become a public use within the meaning of a constitutional provision that the use of water appropriated for sale, or rental, or distribution, is a public use, the regulation and control of which, including the right to collect compensation therefor, is in the state, when there has been no at- tempt to regulate or control the use of such water. Stanislaus Water Co. v. Bachman 15: 359, 93 Pac. 858, 152 Cal. 716. To furnish burial at death. 408. A contract founded upon a legal con- sideration by which the obligor undertakes to furnish the obligee, or one of the lat- ter's near relatives, a burial at death, rea- sonably worth a fixed sum, is valid. State v. Willett, 23: 197, 86 N. E. 68, 171 Tnd. (Annotated) Effect of partial invalidity. Effect of partial invalidity of bill of lad- ing, see CARRIERS, 745. Antenuptial contract, see HUSBAND AND WIFE, 126. 409. An illegal stipulation in a contract for a contingent attorney's fee, to the effect that the client shall not compromise or set- tle the claim without the consent of his attorney, cannot be ignored, and the other provisions of the contract enforced; but the contract is indivisible and wholly il- legal. Davy v. Fidelity & C . Ins. Co. 17: 443, 85 N. E. 504, 78 Ohio St. 256. 410. The invalidity in a contract for the transfer and pooling of corporate stock in consideration of a loan' of money to finance the institution, of a provision which re- Digest 1-52 L.K.A.CN.S.) tains the owner in the board of directors and gives him employment as the sales agent of the corporation, does not neces- sarily invalidate the pooling agreement. Winsor v. Commonwealth Coal Co. 33:63, 114 Pac. 908, 63 Wash. 62. 410a. That an agreement for an exclusive agency for a certain class of goods is illegal under a statute prohibiting contracts in re- straint of trade will not prevent a recovery for a bill of goods sold under it, since the agreement to pay for goods purchased and delivered is separable from that governing the exclusive agency. Packard v. Byrd, 6: 547, 51 S. E. 678, 73 S. C. 1. (Annotated) 411. A contract to install a telephone ex- change in a hotel and furnish connections with the system of the contracting party is not rendered void in its entirety by the invalidity of a provision that the right to furnish connections with the hotel shall be exclusive. Central New York Teleph. & Teleg. Co. v. Averill, 32: 494, 92 N. E. 206, 199 N. Y. 128. b. Illegal by express provision. (See also same heading in Digest L.R.A. 1-10.) Remedy in case of, see "infra, 570-583. Enforcement of note given in payment of property sold in violation of statute, see BILLS AND NOTES, 222. By railroad to issue pass, see CARRIERS, 1061, 1068. Forbidding person selling goods for resale to stipulate that purchaser shall not deal in goods of other dealers, see CON- STITUTIONAL LAW, ,499. Constitutionality of statute restricting right to contract, see CONSTITUTIONAL LAW, II. b, 4, b, 2. Contracts of unauthorized foreign corpora- tion, see CORPORATIONS, 430-442. Agreement by corporation to repurchase stock sold, with interest or bonus, see CORPORATIONS, 80. Validity of Sunday contracts, see SUNDAY, IV. Contract to resell property as violation of usury law, see USURY, 15. See also supra, 410a. 412. The sale in bulk of a stock of drugs including medicines and poisons, is not ren- dered unlawful by a statute regulating the sales of medicines and poisons, which is expressly limited to sales at retail. Swisher v. Dunn, 45: 810, 131 Pac. 571, 89 Kan. 412. 413. A contract for the sale of a drug store, including the stock and business, is not rendered unenforceable by the fact that the business had at all times been con- ducted in violation of the law requiring the owner or some employee to be a pharmacist or assistant pharmacist. Swisher v. Dunn, 45: 810, 131 Pac. 571, 89 Kan. 412. (Annotated) 414. A contract forbidden by a revenue 646 CONTRACTS, III. c, 1. statute or ordinance is not void if 'it is not malum in se nor detrimental to good morals. Hughes v. Snell, 34: 1133, 115 Pac. 1105, 28 Okla. 828. 415. A contract between city authorities and the owner of 'property not exempted from taxation by the Constitution, providing that no taxes on such property above a spe- cified amount, which is less than the amount of taxes due, shall be collected by the city, in consideration of specified benefits and privileges conferred upon the city by the property owner, is void under a con- stitutional provision that all laws exempt- ing property from taxation other than property exempted in the Constitution shall be void, although the city, under the con- tract, may .receive from the taxed debtor benefits which, in value, exceed the amount of the taxes due. Tarver v. Dalton, 29: 183, 67 S. E. 929, 134 Ga. 462. (Annotated) 416. A contract entered into between co- partners upon dissolution of the copartner- ship, whereby one of the partners, for a valuable consideration, agrees not to engage for the next two years in the same business theretofore conducted by the firm in the same city, is not violative of N. D. Const, art. 1, p. 23, which provides that any citizen of the state shall be free to obtain employ- ment wherever possible, and that any per- son who shall maliciously interfere there- with or hinder any citizen from obtaining employment shall be deemed guijty of a misdemeanor. Siegel v. Marcus, 20: 769, 119 N. W. 358, 18 N. D. 214. Time of payment of wages. 417. A contract between employer and employee providing for payment of wages at longer intervals than semimonthly is void where the statute requires payment at such intervals. Arkansas Stave Co. v. State, 27: 255, 125 S. W. 1001, 94 Ark. 27. 418. A contract for payment of wages of railroad employees otherwise than semi- monthly and in cash is toid wliere the stat- ute makes such companies liable to crimi- nal prosecution for failure to pay at such time and in such manner. New York, C. & H. R. R. Co. v. Williams, 35: 549, 92 N. E. 404, 199 N. Y. 108. Services of unlicensed persons. Effect of failure to obtain license for auto- mobile on liability for injuries, see AUTOMOBILES, 28, 28a. Rights, of transferee of note given in pay- ment of service of* nonlicensed person, see BILLS AND NOTES, 375. 419. A physician duly licensed in the state where the contract is made cannot be deprived of the benefit of the contract to furnish medical attendance to a patient by the fact that he temporarily accompanies the patient into a state where he has no license and performs some services for the patient there. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. 420. The contract, by one having no license to practise medicine, who is conduct- ing a medical institute, on behalf of him- self and the institute, which is owned, op- erated, and controlled by him, to render Digest 1-52 L.R.A.(N.*S.) medical services to another, is absolutely void, although he employs regularly li- censed physicians for the performance of his engagements. Deaton v. Lawson, 2: 392, 82 Pac. 879, 40 Wash. 486. (Annotated) 421. A note executed in payment of pro- fessional services rendered by one without a license to practise medicine is, where prac- tice without a license is forbidden by stat- ute, unenforceable in the hands of the payee. State Bank v. Lawrence, 42: 326, 96 N. E. 947, 177 Ind. 515. 422. A real-estate broker is not deprived of the right to commissions by the fact that he had no license, although the ordinance made payment of a license fee for revenue purposes a condition to conducting such business, and made violations of the ordi- nance a misdemeanor. Hughes v. Snell, 34: 1133, 115 Pac. 1105, 28 Okla. 828. 423. The business of a real-estate agent is not within the letter of an ordinance im- posing a license tax upon the business of "real estate," which was passed under statu- tory authority to impose a license tax upon real-estate agents, and therefore the con- tract of an agent to find a purchaser for real estate will not be held void and unen- forceable because of his failure to obtain a license. Manker v. Tough, 19: 675, 98 Pac. 792, 79 Kan. 46. 424. The contracts of a pawnbroker who attempts to carry on his business without a license and without complying with the re- quirements of statutes and ordinances as to recording the contracts, noncompliance with which is made a misdemeanor, are void and he can claim no lien upon the pledges. Levi- son v. Boas, 12: 575, 88 Pac. 825, 150 Cal. 185. (Annotated) c. Public policy. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Proceedings and remedy in case of, see infra, HI. g, 2. As to contracts in restraint of trade, see infra, III. e. As to bills and notes, see BILLS AND NOTES, 17-19. As to bills and notes in hands of transferees, see BILLS AND NOTES, 154-156. Illegal consideration as defense in action on note, see BILLS AND NOTES, 221, 222. Validity of stipulation in corporate bond for exemption of stockholders from liabil- ity, see BONDS, 72. Accumulation and division by bridge com- pany, among portion of railroads using it, of fund resulting from excessive tolls, see BRIDGE COMPANY. Contract for transportation of livestock, see CARRIERS, 887. Discriminatory contracts by carrier, see CARRIERS, IV. b; IV. c. CONTRACTS, III. c, 1. 647 Right of third person to maintain action for injury caused by agreement opposed to public policy, see CASE, 8. Champertous contracts, see CHAMPERTY AND MAINTENANCE. By municipality with councilmen for mer- chandise; common-law rule as to va- lidity of, see COMMON LAW, 7. Effect of public policy on enforcement of contract of other state, see CONFLICT OF LAWS, 8-17. Combination to injure another's business, see CONSPIRACY, III. Voting trust agreement, see CORPORATIONS, 377, 378, 380-382. Contracts of corporate officers in their own interests, see CORPORATIONS, IV. g. Employment by county of private person to render services in aid of collection of taxes, see COUNTIES, 33. Validity of attempt by heirs to convey in- terest in ancestor's estate during his lifetime, see COVEN ANIS AND CONDI- TIONS, 21. Validity of covenant, see COVENANTS AND CONDITIONS, 28. Separation agreement, see DIVORCE AND SEPARATION, VIII. b. Antenuptial contract, see HUSBAND AND WIFE, II. i. Agreement between banks for suppression of bidding for public money, see PUBLIC MONEY, 2-4. Contracts made on Sunday, see SUNDAY, IV. Question for court whether means employed by labor union are against public poli- cy, see TRIAL, 601. Finding that contract is void as one of law, see TRIAL, 1097. Contract suspending power of municipality to regulate water rates, see WATERS, 410-413. See also supra, 74; infra, 779. 425. The question whether or not a con- tract is against public policy must be de- termined by its purpose and tendency, and not by the fact that no harm in fact re- sults from it. White v. McMath & John- ston, 44: 1115, 156 S. W. 470, 127 Tenn. 713. 426. A contract should not be declared to be in contravention of public policy unless it is apparent that it contravenes some pub- lic statute, or is against good morals, or that its tendency is to interfere with the public welfare or safety. McCowen v. Pew, 21 : 800, 96 Pac. 893, 153 Cal. 735. 427. In determining the public policy of a state, courts are limited to a con- sideration of the statutes, Constitution, ju- dicial decisions, and practice of government officers. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. 428. A contract cannot be declared void because, in its performance, one of the par- ties could or might employ improper means or agencies. Cole v. Brown-Hurley Hard- ware Co. 18: 1161, 117 N. W. 746, 139 Iowa, 487. 429. A contract by a railroad company attempting to give an exclusive right to use Digest 1-52 L.R.A.(N.S.) its box cars for advertising purposes is against public policy, where the statute pro- vides that it shall be unlawful for any transportation company to give any undue advantage to any particular person or cor- poration in any respect whatever. National Car Advertising Co. v. Louisville & N. R. Co. 24: 1010, 66 S. E. 88, 110 Va. 413. (Annotated) 430. Under a statute permitting the selection of statutory exemptions to be made by the debtor or his "authorized agent," a mortgage of such exemptions, giv- ing the mortgagee the right to make the selection, is not against public policy. Re National Grocery Co. 30: 982, 181 Fed. 33, 104 C. C. A. 47. (Annotated) 431. A contract between a man and his stepmother, who is living apart from his father for cause sufficient to entitle her to a divorce, that, if she will return to and care for her husband during his natural life, the stepson will support her so long as she shall live, is not against public policy. Mack v. Mack, 31: 441, 128 N. W. 527, 87 Neb. 527. (Annotated) 432. One who, to secure the money with which to procure the return of stolen prop- erty, is obliged to indorse the check of the owner, may, if he is compelled to make good the amount upon the owner's stopping payment of the check, recover the sum so paid from the owner, since the payment of money to secure the return of stolen prop- erty violates no rule of law and such a transaction is therefore legal and binding. Schirm v. Wieman, 7: 175, 63 Atl. 1056, 103 Md. 541. (Annotated) 433. A contract by one injured by an- other's negligence, to pay his physician a percentage of the amount recovered against the one responsible for the injury, for his services in treating the injury, is against public policy and void where the parties contemplate that the physician shall be a witness for his employer in case suit is necessary. Sherman v. Burton, 33: 87, 130 N. W. 667, 165 Mich. 293. (Annotated) 434. A contract to pay one who has made an offer for real estate at private sale, to stand aside and permit its purchase by the other contracting party, is not void as against public policy. White v. Mc- Math & Johnston, 44: 1115, 156 S. W. 470, 127 Tenn. 713. (Annotated) 435. A contract between an adult man and woman, not related to each other, -that, if the latter will enter the home of the former and act as his housekeeper, he will support her, and at his deatli leave her his estate, is not, where the relations between them are at all times moral and proper, forbidden by law or obnoxious to public policy. Goff v. Supreme Lodge Royal Achates, 37: 1191, .134 N. W. 239, 90 Neb. 578. 436. An agreement made by a person in anticipation of his appointment to the of- fice of county treasurer, that lie will devote and apply all the fees, salary, and emolu- ments of the office, in excess of a stipulat- ed amount, to the payment and discharge of G48 CONTRACTS, III. c, 1. certain obligations on which he fend others are jointly liable, if they will become sure- ties on his oflicial bond, is contrary to pub- lic policy. Serrill v. Wilder, 14: 982, 83 N. E. 486, 77 Ohio St. 343. 437. An entire partnership contract be- tween attorneys at law is vitiated by a provision that the salary of one of them as prosecuting attorney will be divided be- tween the partners. Anderson v. Bran- strom, 43: 422, 139 N. W. 40, 173 Mich. 157. 438. A contract between the parties to a proceeding to establish the validity of one or the other of two wills, that, whichever of the wills should be upheld by the court, their costs should be paid out of the estate, whether the court should so order or not, is not illegal as being against the policy of the law in that it tends to affect the ad- ministration of justice. Prince v. Haworth, 2 B. R. C. 629, [1905] 2 K. B. 768. Also Reported in 92 L. T. N. S. 773, 21 Times L. R. 402, 75 L. J. K. B. N. S. 92, 54 Week. Rep. 249. (Annotated) 439. The court rule providing that the costs occasioned by any unsuccessful claim or unsuccessful resistance to any claim to any property shall not be paid out of the estate unless the judge otherwise orders, does not affect the validity of an agreement by parties that their costs shall in any event be paid out of the estate. Prince v. Haworth, 2 B. R. C. 629, [1905] 2 K. B. 768. Also Reported in 92 L. T. N. S. 773, 21 Times L. R. 402, 75 L. J. K. B. N. S. 92, 54 Week. Rep. 249. Agent acting for both parties. 440. If an agent acts for both parties in making a contract requiring the exercise of discretion, the contract is contrary to public policy, and voidable in equity upon the application of either party. Horner v. Spencer, 17: 622, 95 Pac. 757, 21 Okla. 155. (Annotated) To oust courts of jurisdiction. 441. An unexecuted agreement to arbi- trate all disputes which shall arise in the execution of a contract both, as to liability and loss, is no bar to a suit upon the con- tract, since it is void as an attempt to oust the courts of their jurisdiction. Williams v. Branning Mfg. Co. 47 : 337, 70 S. E. 290, 154 N. C. 205. (Annotated) Insurance contracts. Provision for arbitration in policy, see IN- SURANCE, 651. Unauthorized contracts by foreign insurance company, see INSURANCE, 20, 21. Insuring life in favor of one without in- surable interest, see INSURANCE, II. b. Policy in adopted name of applicant, see INSURANCE, 85. Insurance on property in house of ill fame, see INSUBANCE, 92. Provision as to incontestability of insur- ance policy, see INSURANCE, III. e, 2, f. Validity of contract insuring intoxicating liquors, see PLEADING, 484. 442. Requiring the establishment of the accidental nature of an injury by a gun- shot wound before liability attaches there- for under an accident policy is not against Digest 1-52 L.R.A.(N.S.) public policy as an attempt to modify or control the procedure of courts of justice. Roeh v. Business Men's Protective Asso. 51: 221, 145 N. W. 479, 164 Iowa, 199. ( Annotated ) 443. A contract requiring the return of a life insurance policy, duly receipted, within six months after default in payment of pre- miums, to entitle the holder to a paid-up policy for a proportionate amount, and pro- viding that, if this is not done, the policy shall cease and all premiums paid thereon be forfeited, is not forbidden by public pol- icy. Collman v. Equitable L. Assur. Soc. 8: 1019, 110 N. W. 444, 133 Iowa, 177., 444. Public policy does not avoid a con- tract of insurance on furniture used in keep- ing a house of prostitution. Conithan v. Royal Ins. Co. 18: 214, 45 So. 361. 91 Miss. 386. (Annotated) Condition on theater ticket. 445. A condition upon a theater ticket that the ticket will not be honored if sold on the sidewalk is not against public policy. Collister v. Hayman, i: :i88, 76 N. E. 20, 183 N. Y. 250. (Annotated) To assign future inventions. 446. An agreement to assign to the pur- chaser of a patent future inventions re- lating thereto is not against public policj'. Reece Folding Mach. Co. v. Fenwick, 2 l : 1094, 140 Fed. 287, 72 C. C. A. 39. (Annotated) To indemnify surety. 447. An undertaking by a brewing com- pany to indemnify a surety on the bond of one retailing its product is not void as against public policy. Timm v. Grand Rap- ids Brewing Co. 27: 186, 125 N. W. 357, 160 Mich. 371. 448. A bond of indemnity, given by a per- son under charge of felony, to indemnify his bail in a recognizance for his appear- ance to answer the charge, is not void as against public policy. Carr v. Davis, 20: 58, 63 S. E. 326, 64 W. Va. 522. (Annotated) Assignment of action for assault. 449. An assignment before judgment of an action for assault and battery and false imprisonment is void, as against public pol- icy. Tyler v. Superior Court, 23: 1045, 73 Atl. 467, 30 R. I. 107. To furnish medical attendance during life. 450. A contract to furnish one medical attendance during life for a lump sum pay- able at his death is not void as against public policy, either because furnishing an inducement to threaten his life or as a wagering contract. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. To institute movement for recall election. See also infra, 608. 451. A contract employing an agent to in- stitute and carry out a movement for a recall election against certain officers, with- out disclosing the true motives and real parties behind the movement, and undertak- ing to pay necessary expenses therefor, is contrary to public policy and void. Stirtan CONTRACTS, III. c, 1. 649 v. Bethen, 51: 623, 139 Pac. 618, 79 Wash. 10. T0 exempt property from assessment. 452. A municipal corporation cannot con- tract to exempt an owner of property abut- ting on a portion of a proposed street improvement, from assessment for the im- provement, in consideration of his donating land necessary for the enterprise and bring- ing the street adjoining his property to grade at his own expense. H. S. Turner Invest. Co. V. Seattle, 41: 781, 126 Pac. 426, 70 Wash. 201. (Annotated) To secure names to petition, for pub- lic improvements. 453. An agreement by a highway con- tractor to pay those who petitioned for the improvement and undertook to pay 10 per cent of its cost, all that portion of said 10 per cent which exceeds a specified amount, in consideration of certain privi- leges with respect to the use of their land during performance of the work, is void as against public policy, where such agree- ment became necessary to enable the pe- titioners to secure the 10 per cent to make the improvement possible. Walsh v. Hib- berd, 50: 396, 89 Atl. 396, 122 Md. 168. ( Annotated ) Not to supply quotations to bucket shop. 454. A provision in a contract under which continuous quotations are sold by a board of trade to a telegraph company, that they shall not be supplied to any- one running a bucket shop, is valid. West- ern U. Teleg. Co. v. State ex rel. Ham- mond Elevator Co. 3: 153, 76 N. E. 100, 165 Ind. 492. As to communistic tenure of prop- erty. 455. The agreement expressed in the con- stitution of a monastic brotherhood incor- porated by special act, that the gains and acquisitions of members shall belong to the Order, is not opposed to public policy, where the constitution expressly recognizes the privilege of withdrawal; and the Order is therefore entitled to all the personal prop- erty left by a deceased member, including that derived from his literary labors. Order of St. Benedict v. Steinhauser, 52: 459, 34 Sup. Ct. Rep. 932, 234 U. S. 640, 58 L. ed. 1512. (Annotated) Contract by guardian. See also EVIDENCE, 1526, 1622. 456. An agreement between a guardian and his surety, under which the funds of the ward are deposited in a bank, and an interest-bearing certificate of deposit is is- sued, payable to the order of the surety, but is retained by the guardian upon an under- standing between him and the surety that no part of the fund shall be withdrawn from the bank except upon the joint check or indorsement of both the guardian and surety, has the effect to surrender in part the custody and control of the ward's fund to another than the guardian appointed by law, and to put it beyond the power of the guardian to withdraw the fund in case of an emergency, and is contrary to public Digest 1-52 L.R,A.(N.S.) | policy. Fidelity & D. Co. v. Butler, 16: 994, 60 S. E. 851, 130 Ga. 225. (Annotated) By corporate officer generally. Demurrer to petition in action to enforce, see PLEADING, 654. See also infra, 507. 457. A note made payable to a director or officer of a railroad company in his personal capacity and for his personal benefit, on condition that a railroad shall be built to a certain point by a certain time, is void as against public policy, and no recovery can be had thereon. McGuffin v. Coyle, 6: 524, 85 Pac. 954, 16 Okla. 648. (Annotated) 458. A contract to pay for the construc- tion of a building does not become enforce- able against a corporation because it is exe- cuted by its president under its corporate seal, if a large bonus in addition to the amount of the bid is included in the con- tract price, which is to be divided between such president and the contractor and its representatives, even as to extra work after the price named in the contract has been paid, where, under the statutes of the state, such conduct on the part of the president is a misdemeanor. Standard Lumber Co. v. Butler Ice Co. 7: 467, 146 Fed. 359, 76 C. C. A. 39. (Annotated) Contract with employee or labor union. Obligating employer to retain in his em- ploy no one objectionable to labor union, see CASE, 34. See also infra, 499-502, 617. 459. A contract by which one undertakes for a contingent fee to detect larceny or em- bezzlement among the employees of his em- ployer, and apprehend persons accused and bring them before the employer, with proof that the stolen property is in their posses- sion, is void as contrary to public policy. Manufacturers' & M. Inspection Bureau v. Everwear Hosiery Co. 42: 847, 138 N. W. 624, 152 Wis. 73. (Annotated) 460. A contract made by a railroad com- pany to give an injured employee, in set- tlement of his claim, employment as long as he lives and proves a competent and worthy man, and if he is thrown out of employment to pay him his salary as long as he lives, unless he has been discharged for neglect of duty or dissipation, is not against public policy as tending to impair the efficiency of a public service corpora- tion by restricting its future management. Cox v. Baltimore & 0. S. W. R. Co. 50: 453, 103 N. E. 337, 180 Ind. 495. (Annotated) 461. An employer and employee may stip- ulate to arbitrate the extent of injury or disability caused by a personal injury to the employee in the performance of his duties, if the question as to the fundamental rights of the parties as to recovery is left open to the courts. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 462. A contract by a manufacturer to employ as laborers none but members of a particular labor union is not void as 650 CONTRACTS, III. c, 1. against public policy. Jacobs v. Cohen, 2: 292, 76 N. E. 5, 183 N. Y. 207. (Annotated) 463. That an agreement between em- ployers and a labor union, that none but union labor shall be employed, has on the whole been beneficial to the community, does not establish its conformanee with pub- lic policy. Connors v. Connolly, 45: 564, 86 Atl. 600, 86 Conn. 641. 464. An agreement between employers and a labor union that none but members of the union shall be employed is against public policy where it takes in an entire industry of considerable proportions in a community, so that it will operate generally in that community to prevent or seriously deter craftsmen from working at their craft, or workingmen entering employment under favorable conditions, without joining the union. Connors v. Connolly, 45: 564, 86 Atl. 600, 86 Conn. 641. (Annotated) With attorney. Presumption that woman will perform in- valid contract to share alimony with at- torney, see APPEAL AND ERROR, 439. Contract for contingent attorney's fee, see ATTORNEYS, 60; CHAMPERTY AND MAIN- TENANCE, 7. As to champertous contract, see CHAMPERTY AND MAINTENANCE, II. See also supra, 409; infra, 515, 516, 610- 612. 465. A contract by an attorney to secure the suspension for a specified time, of a statute prohibiting the sale of intoxicating liquor, is void, and he cannot recover the agreed compensation for so doing, although the only acts performed by him were the perfectly legal ones of agreeing to defend any prosecution brought under the statute. Arlington Hotel Co. v. Ewing, 38: 842, 138 S. W. 954, 124 Tenn. 536. (Annotated) 466. An agreement by a woman to pay her attorney a percentage of the alimony recovered in a suit for divorce against her husband is void as against public policy. McConnell v. McConnell, 33: 1074, 136 S. W. 931, 98 Ark. 193. (Annotated) 467. A provision in a contract by an at- torney to conduct litigation for a contin- gent compensation, forbidding the client to settle the claim without his consent, is void as against public policy. Re Snyder, 14: uoi, 82 N. E. 742, 190 N. Y. 66. ( Annotated ) 468. A provision in an agreement between a client and his attorneys for the services of the latter in conducting a proposed law- suit, that the client shall not settle, compro- mise, or otherwise dispose of the cause of action without the written consent of the attorneys, is contrary to public policy and void. Kansas City Elev. R. Co. v. Service, 14: 1105, 94 Pac. 262, 77 Kan. 316. 469. A contract by a client not to settle a suit without the consent of the attorney being against public policy, a complaint seeking to enjoin a breach of such agree- ment does not state a cause of action. Jackson v. Stearns, 5: 390, 84 Pac. 798, 48 Or. 25. Digest 1-52 L.R.A.(N.S.) 470. Courts will not enforce contracts se- cured by an attorney by visiting the scene of a disaster in which many persons were killed and wounded, and soliciting employ- ment for the bringing of actions against the one responsible for the injury from stran- gers to himself for a percentage of the re- covery, so far as to hold defendant liable for the fees in case he effects a settlement of the actions without the consent of such attorney. Ingersoll v. Coal Creek Coal Co. 9: 282, 98 S. W. 178, 117 Tenn.' 263. (Annotated) 471. A contract between a layman and a lawyer, by which the former undertakes and agrees, in consideration of a division of the fees received by the latter, to hunt up and bring to the attorney persons having causes of action against railroad companies for personal injuries, is contrary to public policy, and void. Holland v. Sheehan, 23: 510, 122 N. W. 1, 108 Minn. 362. Affecting marriage relation. Marriage contract at time when husband is married to another person, see BIGAMY, 1. As to bills and notes, see BILLS AND NOTES, 17. Promise of marriage by married man, see BREACH OF PROMISE, 2. Separation agreement, see DIVORCE AND SEPARATION, VIII. b. Provisions in wills, see WILLS, 273-285. See also infra, 613. 472. Restraints upon marriage which are not general, but merely temporary or other- wise limited in their effect, are not illegal unless unreasonable in extent. Crowder- Jones v. Sullivan, 4 B. R. C. 56, 9 Ont. L. Rep. 27. (Annotated) 473. Where a widower, a farmer sixty- seven years of age, with a young daughter, promised his housekeeper, a woman of twon- ty-eight or thirty, who had been some time in his service, and who was then intending marriage, that if she did not get married, but would stay with him as long as he needed her, he would either give her $1,000 in cash, his promissory note for $1,500, or remember her in his will, a note for $1,500, given three years later, is not invalid as based upon an agreement in general re- straint of marriage, the restraint being temporary, and, under all the circumstances, reasonable. Crowder-Jones v. Sullivan, 4 B. R. C. 56, 9 Ont. L. Rep. 27. 474. It is not essential to the validity of a condition requiring the consent of named persons to a marriage, that its operation be confined to a marriage under twenty-one. Re Whiting's Settlement, 4 B. R. C. 10, [1905] 1 Ch. 96. Also Reported in 21 Times L. R. 83. (Annotated) 475. A promise by a man to an unmar- ried woman, that if she continued in his employ and cared for his wants until his death, and did not marry until after his death, his executor would then pay her a specified sum, is void as an agreement in general restraint of marriage. Lowe v. Doremus (N. J. Err. & App.) 49:6-2, 87 Atl. 459, 84 X. J. L. 658. (Annotated) ..K.J -vaive damages for faulty construction not then known to exist, especially where it provides for adjust- ment of damages arising from the specified defect. Brent v. Head, W. & Co. 16: 801, 115 N. W. 1106, 138 Iowa, 146. 666. An agreement by which owners of a building receive possession of it and waive damages for delay in its construction may be shown not to have been intended as a substitution for, or waiver of, any claim under the original building contract. Brent v. Head, W. & Co. 16: Box, 115 N. W. 1106, 138 Iowa, 146. 667. A waiver of damages for failure to complete a building on time 'on and after" a specified date will not waive damages ac- cruing before that time. Brent v. Head, W. & Co. 16: 801, 115 N. W. 1106. 138 Iowa, 146. 668. Damages suffered by the owners be- cause of faulty construction of a building, after the arbitration of a claim for damages because of a particular defect, are not waived by an agreement providing for the adjustment of such claim and the arbitra- tion of it. Brent v. Head, W. & Co. 16: 801, 115 N. W. 1106, 138 Iowa, 146. d. Condition; estimates; certificate of performance . (See also same heading in Digest L.R.A. 1-10.) Proceeding to set aside umpire's decision as condition precedent to action, see ACTION OB Sun, 7. Liability of architect for negligence in cer- tifying completion of work, see ARCHI- TECTS, 3. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 455. Admissibjlity in evidence of architect's cer- tificate, see EVIDENCE, 750. Sufficiency of evidence to show that certifi- cate was not withheld in good faith, see EVIDENCE, 2085. Question for jury as to arbitrariness in withholding, see TRIAL, 597. 669. There can be no recovery of the pur- chase price of trees under a contract re- quiring them to be paid for upon delivery at a certain place at a time of which the vendee is to have notice, in the absence of anything to show receipt of such notice, or that the trees were at the place specified ready for delivery. Bonewell v. Jacobson, 5: 436, 106 N. W. 614, 130 Iowa, 170. Necessity of certificate or estimate. Statute providing that contract making cer- tificate of architect condition precedent to action shall not oust jurisdiction of the courts, see CONSTITUTIONAL LAW, 455. 670. Absence of a final estimate by the en- gineer upon completion of the work will pre- vent a recovery by the subcontractor against the contractor for the performance of cer- tain work of the amount alleged to be due, Digest 1-52 L,.R.A.(N.S.) where, by the terms of the contract by which the parties are bound, the procuring of such estimate is to constitute a condition prec- edent to the right to recover for the work done. Johnston & Grommett Bros. v. Bunn, 19: 1064, 62 S. E. 341, 108 Va. 490. 671. No recovery can be had on a sealed contract to repair a building, which pro- vides that payments are to be made on a certificate from the architect, unless such certificate is obtained, in the absence of fraud or bad faith on his part. Pope v. King, 16: 489, 69 Atl. 417, 108 Md. 37. 672. Use by the owner of a building re- paired under a contract providing that pay- ments shall be made on certificate from the architect does not render him liable for the repairs if the certificate is not obtained. Pope v. King, 16: 489, 69 Atl. 417, 108 Md. 37. (Annotated) 673. The owner may be found to have waived the right to have the architect pass upon the question of completion of the build- ing before paying the contract price, where he takes possession of the unfinished build- ing, completes, and occupies it. Hunn v. Pennsylvania Inst. for Blind, 18: 1248, 70 Atl. 812, 221 Pa. 403. 674. Where a building contractor, acting as owner, sublets a portion of the work, with the provision that the work is to be done to the satisfaction of its architects, upon whose certificate payments are to be made, recovery may be had in the absence of certificate upon proof that the certificate was not withheld in good faith. Thaler v. Wilhelm Greisser Constr. Co. 33: 345, 79 Atl. 147, 229 Pa. 512. 675. A contractor who fails to secure the architect's certificate of completion as re- quired by his contract must, in order to recover by showing a rubstantial comple- tion of the building, satisfactorily estab- lish that the certificate was unreasonably withheld. Bush v. Jones, 6: 774, 144 Fed. 942, 75 C. C. A. 582. (Annotated) 676. A contractor for work on a building ca.i recover the contract price without pro- curing the certificate of the architect as his contract requires, him to do, where the work was completed to the satisfaction of the architect, and the certificate was withheld to compel replacing of work injured with- out fault of the contractor. Coplew v. Durand, 16: 791, 95 Pac. 38, 153 Cal. 278. Conclusiveiiess and sufficiency of certificate or estimate. See also infra, 771. 677. An architect's certificate which a building contract provides shall be final and conclusive is so in legal effect unless impeached for fraud or such gross mistakes as would imply bad faith or a failure to exercise an honest judgment. Shriner v. Craft, 28: 450, 51 So. 884, 166 Ala. 146. 678. The owner is, in the absence of fraud or collusion, bound by the certificate of the architect as to the completion of a building contract where such certificate by the terms of the contract was to be binding on the contractor, although the contract was signed by the architect as agent of the owner, CONTRACTS, IV. e. 667 especially if the owner adopted the contract as his. Young v. Stein, 17: 231, 116 N. W. 195, 152 Mich. 310. 679. The architect's certificate of com- pliance with the plans and specifications of a building contract estops the owner from disputing such compliance so far as it is not within the exception of the contract that the certificate shall not release the contractor from any obligation to perform the work in a good and workmanlike man- ner. Young v. Stein, 17: 231, 116 N. W. 195, 152 Mich. 310. 680. Sloping floors and windows out of shape are evidence of bad workmanship within the meaning of a building contract that the architect's certificate shall not re- lease the contractor from the obligation of performing the work in a good and work- manlike manner. Young v. Stein, 17: 231, 116 N. W. 195, 152 Mich. 310. 681. A provision in a contract between a principal contractor and a subcontractor for the grading of a railroad that the work should be done under the supervision of the chief engineer of the former, who should make estimates as a basis for 'the payment of the work done ; and that his decision as to all matters of dispute which arise between the parties should be final and conclusive, is valid; and the decision of such an umpire is prima facie conclusive upon all matters submitted to and fairly and honestly de- cided by him. Edwards v. Hartshorn, i: 1050, 82 Pac. 520, 72 Kan. 19. 682. The decision of a chief engineer whose estimates are made final and con- clusive by the contract will not be binding if, by subsequent agreement of the parties, such decision is not to be relied on, but other full and correct estimates are to be made. Edwards v. Hartshorn, i: 1050, 82 Pac. 520, 72 Kan. 19. 683. The decision of a chief engineer whose estimates are made final and con- clusive by the contract will have no binding force where there is fraud or mistake so great and palpable as to imply bad faith, or he fails fairly and honestly to perform the functions assigned to him. Edwards v. Hartshorn, i: 1050, 82 Pac. 520, 72 Kan. 19. (Annotated) 684. The fact that a person whose decision is, by the contract, made final and con- clusive in case of dispute between the par- ties, is an employee of one of them, does not, of itself, weaken the force of his decision; but the law requires of a person so situated the utmost diligence and good faith in the performance of his duties. Edwards v. Hartshorn, i : 1050, 82 Pac. 520, 72 Kan. 19. 685. The engineer's estimates, which, by the terms of a construction contract, are to be binding in case of dispute, are not bind- ing if he misinterprets or misconstrues the provisions of the contract. Indianapolis Northern Traction Co. v. Brennan, 30: 85, 87 N. E. 215. 90 N. E. 65. 174 Ind. 1. Digest 1-52 L.R.A.(N.S.) e. Breach and its effect. (See also same heading in Digest L.R.A. 1-10.) Excuse for breach generally, see supra, IV. b, 1. Inevitable accident or impossibility of per- formance as excuse for breach, see supra, IV. b, 2. Prevention or hindrance by other party as excuse for nonperformance, see supra, IV. b, 3. Provision that action for. breach shall not abate upon plaintiff's death, see ABATE- MENT AND REVIVAL, 4. Attachment in case of breach of, see AT- TACHMENT, 5, 16. Breach of marriage contract, see BREACH OF PROMISE. Liability for inducing breach of, see CASE, II.; LABOR ORGANIZATIONS, 10. Trespass on the case to recover unliqui- dated damages for breach, see CASE, 13. Agreement to indemnify against claim for breach of contract, see CHAMPERTY AND MAINTENANCE, 1. Imprisonment of laborer violating farm la- bor contract, see CONSTITUTIONAL LAW, 235; IMPRISONMENT FOR DEBT, 7, 8; PEONAGE. Breach of covenant or condition subsequent, see COVENANTS AND CONDITIONS, III. Conspiracy to induce breach, see CON- SPIRACY, 13, 14. Exemplary damages for inducing breach of, see DAMAGES, 68. Measure of compensation for breach, see DAMAGES, III. a; III. p., 2; SET-OFF AND COUNTERCLAIM, 6-11. Recovery for mental anguish, see DAMAGES, 623-629. Election of remedies in case of breach, see ELECTIONS OF REMEDIES, 14-17. Equitable relief against breach, see EQUITY, 37, 39. Estoppel to complain of breach, see ESTOP- PEL, 230. Evidence generally as to breach, see EVI- DENCE, 1948-1951. Sufficiency of proof in action for breach, see EVIDENCE, 2272. Injunction against attempt to induce breach, see INJUNCTION, 122, 137-140, 144- 146. Breach of contract to isssue insurance pol- icy, see INSURANCE, 138. Interest on damages for breach of, see IN- TEREST, 20. Breach of contract to lease, see LANDLORD AND TENANT, 8. Who may maintain action for breach of, see PARTIES, I. a, 2. Third person's right to sue for breach, see PARTIES, I. a, 2, b. Breach of physician's contract, see PHYSI- CIANS AND SURGEONS, 52-54. Pleading generally in action for breach, see PLEADING, II. h. Amendment of pleading in action for breach, see PLEADING, 117. 668 CONTRACTS, IV. e. Rights and remedies of parties on breach of contract of sale, see SALE, III. Set-off in action for breach, see SET-OFF AND COUNTERCLAIM, 6-1-1. Successive actions for separate breaches, see ACTION OR SUIT, 91. See also supra, 15. 686. One who has contracted to manufac- ture articles upon order according to spec- ifications to be designated is not, in order to recover damages for breach of the con- tract, bound to proceed with the manufac- ture in the absence of order or specifica- tions. Gardner v. Deeds, 4: 740, 92 S. W. 518, 116 Tenn. 128. 687. A sugar manufacturer is not liable for breach of contract to instruct a grower as to the cultivation of beets, merely be- cause the instruction was improper, if it was erroneous merely because of honest mistake of judgment, in th absence of such gross ignorance as would amount to fraud. Smith v. Billings Sugar Co. 15: 837, 94 Pac. 839, 37 Mont. 128. 'What constitutes a breach. 688. An agreement that a contract pla- cing property in another's hands for sale shall continue after the death of the owner, and that he will make a codicil to his will directing his executor to carry out its pro- visions, is broken, so as to subject the ex- ecutor to damages, by a neglect to make the codicil, and assertion by the executor and beneficiaries under the will of the right to have the property administered as if the contract had not been made. Mills v. Smith, 6: 865, 78 N. E. 765, 193 Mass. 11. 689. One in whose favor foreclosure of a land contract is decreed unless the pur- chaser pay him a specified sum of money, is guilty of breach of contract which will support an action in case he evades a tender of the money for the purpose of preventing the purchaser from acquiring the property, which results in damages to him which the parties might reasonably have contemplated as a natural consequence of the breach. Loehr v. Dickson, 30: 495, 124 N. W. 293, 141 Wis. 332. 690. A contract employing one as man- ager of a sales department is violated by the master by 'unjustifiably reducing the rank of such servant to that of a sales clerk, although the same salary is tendered in the latter case as was being paid under the contract to act as manager. Cooper v. Stronge & Warner Co. 27: ion, 126 N. W. 541, 111 Minn. 177. (Annotated) 691. A contract by one selling a livery business, not to engage in that business in opposition to the vendee in the city where the business is located, is broken by his becoming manager of a branch established there by one owning a livery business a few miles distant from the city. Smith v. Webb, 40: 1191, 58 So. 913, 176 Ala. 596. (Annotated) 692. A contract entered into by one who had been conducting a plumbing, tinwork, and heating business, with his vendee upon the sale of his business, not to go into or Digest 1-52 L.R.A.(N.S.) conduct, directly or indirectly, a plumbing, tinwork, or heating business within the county, is broken by his taking employment as a skilled workman with the vendee's competitors, and entering into contracts to install heating apparatus, and doing other work to be paid tor by the hour, day, or piece, in the same manner as he did before the sale, except that he carried no goods or material in stock and did not furnish the same. Ammon v. Keill, 52: 503, 146 N. W. 1009, 95 Neb. 695. 693. A contract to furnish medical at- tendance to a person is not broken by re- fusal to accompany him to another state, where the contract was made at his perma- nent place of residence and contains nothing to indicate any intention of a change of domicil. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. 694. A demand by a debtor that the cred- itors collect the amount due from a litiga- tion in which he is employed is a repudia- tion of his agreement to pay "now" or "on demand." Shubert v. Rosenberger, 4- : 1062, 204 Fed. 934, 123 C. C. A. 934. Premature breach. 695. An assignor of a contract for malt to be delivered during a certain season, who guarantees delivery to the assignee, cannot breach his contract so as to fix the time for computation of damages by notifying the assignee that "he declines to guarantee de- livery" as per contract, prior to the time deliveries are ordered. Mount Vernon Brewing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. Effect. Setting up breach in action on account for money earned under it, see ACCOUNTS, 11. Cancelation of oil or gas lease for breach of conditions, see MINES, 77-83. Effect on duty of water company of munici- pality's breach of agreement to pay hydrant rentals, see WATERS, 354. See also infra, 761-763. 696. One cannot, upon breach of his con- tract to support a man and wife for life for the proceeds of their benefit certificates, have assessments paid by him refunded. Ptacek v. Pisa, 14: 537, 83 N. E. 221, 231 111. 522. 697. No recovery can be had for breach of contract to employ one as secretary and treasurer of a corporation, since, being a position of responsibility and trust, the in- cumbent was removable at will. Hewson v. Peterman Mfg. Co. 51: 398, 136 Pac. 1158, 76 Wash. 600. 698. Noncompletion of a building within the time specified by the contract will not forfeit a right to recover the contract price where the contract provides liquidated dam- ages to be deducted from the price in case the building is not completed within the specified time. Hunn v. Pennsylvania Inst. for Blind, 18: 1248, 70 Atl. 812.* 221 Pa. 403. 699. A building contractor does not for- feit the right to recover the contract price for construction of the building by the fact that the owner takes possession and com- CONTRACTS, IV. f; V. a. 669 pletes it under the terms of the contract because of his delay, where the contract pro- vides that in such case the cost of comple- tion shall be deducted from the contract Srice. Hunn v. Pennsylvania Inst. for lind, 18: 1248, 70 Atl. 812, 221 Pa. 403. 700. A supervising and directing architect is liable for damages occasioned by his in- excusable fault in directing the builder t6 depart from the agreed building plans. Foeller v. Heintz, 24: 327, 118 N. W. 543, 137 Wis. 1G9. Waiver of breach. See also infra, 761. 701. Merely paying monthly accounts for laborers furnished under a contract to fur- nish a certain number of hands per day does not waive a claim for damages for a shortage, where the full number of hands was at all times demanded. State v. Ar- kansas Brick & Mfg. Co. 33: 376, 135 S. W. 843, 98 Ark. 125. 702. Mere failure to pay the instalments for the purchase price of a newspaper plant on the exact days when they are due under the contract will not, in case the seller receives them afterwards, permit him to claim such a breach on the part of the buyer as to authorize him to disregard his agreement in the contract not to conduct another paper in that county. McAuliffe v. Vaughan, 33: 255, 70 S. E. 322, 135 Ga. 852. /. Time. (See also same heading In Digest L.R.A. 1-10.) For delivery of goods sold, see SALE, 35. See also supra, II. c. F. Change or extinguishment, a. In general. (See also same heading in Digest L.R.A. 1-10.) Effect on oral contract to furnish cars of written contract signed by shipper sub- sequent to breach of oral contract, see CARRIERS, 957. Setting aside deed for absence or inadequacy of consideration, see DEEDS, II. h. Reformation of insurance policy, see INSUR- ANCE, III. b. Contract with city, see MUNICIPAL CORPO- RATIONS, 246. Modification generally. Consideration for agreement to pay addi- tional compensation, see supra, 110-114. Effect of subsequent ratification, see PRIN- tional compensation, see supra, 110-114. 703. An architect, as the mutual agent of builder and proprietor to construe plans for a structure and settle disputes in tha,t re- gard, has no authority to change the plans. Foeller v. Heintz, 24: 327, 118 N. W. 543, 137 Wis. 169. 704. A naked promise without considera- tion, to waive the time clause of a tjuild Digest 1-52 L,.R.A.(N.S.) ing contract, does not estop the owner to claim damages for delay beyond the stipu- lc :ted time, where it does not appear that the contractor acted upon the promise, but it does estop him from insisting upon a stipulation of the contract providing that no allowance shall be made for delays caused by the owner unless a claim therefor is presented in writing to the architect, where the contractor, relying upon the promise, neglected to make a claim in writing for an extension as to a period of delay caused by the owner. Jobst v. Hayden Bros. 50: 501, 121 N. W. 957, 84 Neb. 735. ( Annotated ) 705. Where the parties to an overdue note enter into a written agreement, founded upon a sufficient consideration, by the terms of which a part of the debt is forgiven and the time for paying the reduced amount is extended, a provision therein that a default in the payment of interest shall mature the new principal implies that the debtor is not to forfeit the beneut of the reduction by a failure to meet promptly the terms of the readjustment. Girard Trust Co. v. Owen, 33: 262, 112 Pac. 619, 83 Kan. 692. 706. The contractual relations entered into between one who takes a conveyance of real estate agreeing, as part consideration there- for, to pay the debt of his grantor or that of some other person to a third party, can- not be subsequently varied by any agree- ment between the immediate parties to the transaction, not consented to by the third party. Fanning v. Murphy, 4: 666, 105 N. W. 1056, 126 Wis. 538. Modification by parol. 707. Though a written, unsealed building contract provides that no alterations or additions shall be allowed or paid for unless the same and the cost thereof be agreed to in writing, in advance, and no change or modification of the contract shall be recognized unless evidenced by agreement in writing, yet a modification may be made by oral contract between its parties. Simp- son v. Mann, 48: 579, 76 S. E. 895, 71 W. Va. 516. (Annotated) 708. A provision in a building contract to the effect that no additions or alterations made during the progress of the work shall be regarded as extra work unless agreed to in writing, signed by the parties before such work is begun, may be found to be waived where, subsequent to the execution of the original contract, and during the progress of the work, the owner and con- tractor make further oral agreements that certain changes or alterations shall be con- sidered as extra work, and specifically agree upon the price to be paid for the same, or that a reasonable price shall be charged therefor in addition to the* contract price. Headley v. Cavileer (N. J. Err. & App.) 48: 564, 82 Atl. 908, 82 N. J. L. 635. 709. The parties to an oil lease providing that, in consideration of the grant therein made the lessees will yield and pay to the lessor as royalty a certain siiare of "the oil produced and saved from the premises," may subsequently, for a consideration, in- 670 CONTRACTS, V. b. crease or decrease the royalty by parol agreement, and such agreement is not within the statute of frauds. Nonamaker v. Amos, 4: 980, 76 N. E. 949, 73 Ohio St. 163. (Annotated) 710. The terms of a contract of sale of sawmill timber, which reserved title in the vendor, and provided that the vendee might sell the timber, but that the checks therefor should be made payable to the original vend- or, who agreed to apply half the proceeds thereof to his vendee to pay for preparing and marketing the lumber, the balance to be applied on the original purchase price, which contract was recorded, cannot be varied, as against a purchaser of the lumber with notice of such conditions, by a subse- quent parol agreement between the original parties, under which half of the amounts received from the sale, of the lumber was not applied to the purchase price, but to an- other indebtedness of the vendee to a firm of which 4-he vendor was a member for sup- plies furnished to the vendee, so as to afl'cct title to lumber conveyed after the original vendor had received sufficient funds under the terms of the original contract to satisfy the purchase price. Clarke Bros. v. McNatt, 26: 585, 64 S. E. 795, 132 Ga. 610. 6. Termination; repudiation / abandon- ment. (See also same heading in Digest L.R.A. 1-10.) Raising, for first time on appeal, claim that purchaser renounced contract be- fore delivery, see APPEAL AND ERBOB, 724. Promise of additional compensation to in- duce completion of abandoned contract, see CONTRACTS, 110, 112. Right of 'landlord to terminate contract and recover rent upon abandonment of premises by tenant, see LANDLORD AND TENANT, 210. Of contract of employment, see MASTER AND SERVANT, I. e. Contract with city, see MUNICIPAL CORPO- RATIONS, 248. As to termination of contract of agency, see PRINCIPAL AND AGENT, 11. See also infra, 732. 711. One who has contracted to construct a tunnel may treat the contract as termi- nated upon the refusal of the owner to fur- nish the necessary timber for shoring up the work as the contract requires him to do. McConnell v. Corona City Water Co. 8: 1171, 85 Pac. 929, 149 Cal. 60. 712. The merfact that building contract- ors, after the collapse of a partly completed structure, state that they are without suf- ficient funds to purchase material and guar- antee payment of the laborers, and arrange with the owner to make advance payments, does not constitute an abandonment of the contract if they continue to work on the building under the contract. Nancolas v. Digest 1-52 L.R.A.(N.S.) HitafFer, 12: 864, 112 N. W. 382, 136 Iowa, 341. 713. Upon refusal of one who has em- ployed another to perform services for him to advance money for his expenses, as re- quired by the contract, the latter may sue for- breach of the contract without com- pleting performance on his part. Parrot v. Mexican C. R. Co. 34: 261, 93 X. E. 590, 207 Mass. 184. 714. Repudiation of an agreement by one party, in advance of the time for perform- ance, dispenses with the further perform- ance of conditions precedent by the other party. Holt v. United Security L. Ins. & T. Co. 21 : 691, 72 Atl. 301, 76 X. J. L. 585. 715. A party to an agreement which lia.s been repudiated by the other party in toto in advance of the time for performance, in- stead of rescinding the contract, so as to put it at an end as if it never had been made, may treat it as if ended merely for purposes of further performance, and hold the wrong- doer liable for the damages sustained by reason of the repudiation. Holt v. United Security L. Ins. & T. Co. 21: 691, 72 Atl. 301, 76 N. J. L. 585. 716. A demonstrated inability by one par- ty to complete a building on or before a time specified will not justify the other party in repudiating, in advance, an agree- ment to make a certain loan upon comple- tion of the building by such specified time, where that time is not of the essence of the agreement. Holt v. United Security L. Ing. & T. Co. 21 : 691, 72 Atl. 301, 76 N. J. L. 585. (Annotated) 717. A contract for personal services at a certain sum per week, with no mention as to its duration, may be terminated by eith- er party at any time, without notice. War- den v. Hinds, 25: 529, 163 Fed. 201, 90 C. C. A. 449. 718. An agreement, by a railroad com- pany, to transport cars over a branch road to and from a mine free of charge, in con- sideration of the mine owner's developing the property and constructing the branch, without any stipulation as to its duration, may be terminated by the railroad company at any time upon reasonable notice. Stone- ga Coke & Coal Co. v. Louisville & N. R. Co. 9: 1184, 55 S. E. 551, 106 Va. 223. 719. A contract for space, for a term of years, on a particular floor of a building occupied by a department store, in which to conduct a particular line of business in con- nection with the general enterprise, which is to be paid for by a monthly rental and a percentage of sales in excess of a certain amount, is terminated by the destruction of the building, and the beneficiary cannot in- sist on the allotment of space in the new building to which the department store busi- ness is moved. Martin Emerich Outfitting Co. v. Siegel, Cooper, & Co. 20: 1114, 86 N. E. 1104, 237 111. 610. 720. One who is released from his promise to marry a woman, whom he has induced to submit to surgical operations to 'such an ex- tent that she is unable to support herself, upon 'consideration that he will support her CONTRACTS, V. c, 1. 671 during life, is not absolved from his promise by her marriage to another person, after the latter's obligation to support her is ter- minated. Henderson v. Spratlen, 19: 655, 98 Pac. 14, 44 Colo. 278. (Annotated) 721. The organization of a corporation to conduct a business does not terminate a contract by strangers not to compete in business with the organizers, at least where the organizers are large stockholders in, and officers of, the corporation. Brad- ford v. Montgomery Furniture Co. 9: 979, 92 S. W. 1104, 115 tenn. 610. (Annotated) 722. An employee wrongfully dismissed under circumstances which warrant the in- ference that the employer intends to be no longer bound by the terms of the contract may consider himself as absolved from a re- striction on his right to re-engage in a simi- lar business after the termination of his engagement. General Bill & Posting Co. Ltd. v. Atkinson, 1 B. R. C. 497, [1909] A. C. 118. Also Reported in 78 L. J. Ch. N. S. 77J* 99 L. T. N. S. 943, 25 Times L. R. 178. ( Annotated ) By death. Contract of employment, see MASTEB AND SERVANT, 98, 99. See also infra, 766. 723. A contract by the terms of which one person is to act as managing agent of a drug store owned by another, for a compen- sation dependent upon the extent and suc- cess of the business, which arrangement is terminable at any time by either party, creates a personal relation which is dis- solved by the death of one of the parties, and is without binding effect upon the ad- ministrator of his estate. Campbell v. Faxon, 5: 1002, 85 Pac. 760, 76 Kan. 675. (Annotated) 724. A contract to pay for preparing a de- fense and furnishing legal services to secure the acquittal of the brother of the prom- isor, who is accused of crime, is not termi- nated by the death of the promisor; but his estate is liable for services rendered under the contract after his death. Barrett v. Towne, 13: 643, 82 N. E. 698, 196 Mass. 487. (Annotated) 725. A provision in a contract for the purchase of corporate stock with personal notes to be executed by the buyer and de- posited in escrow within a certain time, that it shall be binding upon the heirs, executors, and administrators of the parties, does not permit its enforcement if the buyer dies within the time specified for depositing the paper without having executed the notes. Browne v. Fairhall, 45: 349, 100 N. E. 556, 213 Mass. 290. 726. An agreement to purchase corporate stock for cash, real estate, and personal notes of the buyer to be made in such amounts and payable at such times as the buyer shall elect, payable to his own order and indorsed in blank, lapses upon death of the buyer before the time for delivery arises, without having taken any steps to comply with the contract. Browne v. Fair- hall, 45: 349, 100 N. E. 556, 213 Mass. 290. (Annotated) Digest 1-52 L.R.A.(N.S.) By statute. 727. A contract for an 'annual considera- tion, payable at the expiration of the year, to collect accounts by a system which in- cludes posting lists of debtors, is abrogated, so as to prevent a recovery, even for the portion of the year which has elapsed, by the passage of a statute pending a yearly period, which prohibits, under penalty, the posting of such lists. American Mercan- tile Exchange v. Blunt, 10: 414, 66 Atl. 212, 102 Me. 128. (Annotated) Right to terminate building contract. Damages for wrongful termination, see DAM- AGES, 117, 688. 728. Under a clause of a building con- tract that, in case of failure to prosecute work with diligence, such failure being cer- tified by the architect, the owner may, after notice, supply lumber and material and de- duct the cost from money due, and, if the architect shall certify that such failure is sufficient ground for such action, the owner shall be at liberty to terminate the con- tractor's employment and take possession, for the purpose of completing the work, of all materials, tools, and appliances on the property, to warrant the latter proceeding, the architect must expressly certify that it is justified and for such purpose; certify- ing merely that the owner has sufficient cause to proceed as provided by such clause is not enough. Valente v. Weinberg, 13: 448, 67 Atl. 369, 80 Conn. 134. 728a. The owner cannot annul a building contract of which time is a material part, four months before the expiration of the time limit, because of anticipation that the contractor will not be able to complete the work in time, if the contractor is actively engaged in the prosecution of the work, with a large equipment, unless it clearly appears that the contractor cannot perform the work within the time limited, and that his failure will be so material as to make his performance essentially different from his promise. Brady v. Oliver, 41: 60, 147 S. W. 1135, 125 Tenn. 595. (Annotated) c. Rescission; cancelation. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Cancelation of order for goods, see supra, 190-192. Accounting on trial of suit to cancel deed, see ACCOUNTING, 4. When right of action for repudiation ac- crues, see ACTION OR SUIT, 10, 11. Review of discretion of court as to, see AP- PEAL AND ERROR, 567. Prejudicial error in action to cancel deed, see APPEAL AND ERROR, 1519. Cancelation of deed on appeal, see APPEAL AND ERROR, 1570. Giving notice of intent to rescind to bank- rupt during interval between adjudica- tion in bankruptcy and appointment of trustee, see BANKRUPTCY, 109. 672 CONTRACTS, V. c, 2. Rescission of sale by promoter to corpora- tion, see CORPOKATIONS, litO. Rescission of stock subscriptions, see COB- POBATIONS, 206-209. Jurisdiction to cancel deed of land located in foreign country, see COURTS, 46. Rescission of separation agreement, see DI- VORCE AND SEPARATION, 1<58. Jurisdiction of equity to cancel written in- strument, see EQUITY, I. f. Effect of fraud to prevent cancelation, see EQUITY, 141. As against bona fide assignee, see ESTOPPEL, 34. Estoppel to disaffirm, see ESTOPPEL, ITS- ITS. Sufficiency of evidence to justify, see EVI- DENCE, 2271. Suit by executor to set aside deed, see EXECUTORS AND ADMINISTRATORS, 87. Contract of married woman, see HUSBAND AND WIFE, 111, 112. Antenuptial contract, see HUSBAND AND WIFE, 133, 135. By infant, see INFANTS, I. d, 2, b. Of insurance policy, see INSURANCE, III. b, c. Interest on amount recovered as damages, see INTEREST, 390. Right to jury in proceeding to cancel deed, see JURY, 21. Right to jury in suit to cancel trust deed, see JURY, 22. Of contract of service, see MASTER AND SERVANT, I. e. Of oil or gas lease, see MINES, II. b, 4, b. In partition suitj see PARTITION, 19. As prerequisite to suit by copartner for fraud, see PARTNERSHIP, 87. Pleading in action for, see PLEADING, 446, 447. Of sale, see SALE, III. c. Set-off in action for rescission of infant's contract of sale, see SET-OFF AND . COUNTERCLAIM, 27. Question for jury as to intent to rescind, see TRIAL, 282. Between vendor and purchaser, see VENDOR AND PURCHASER, I. e. See also supra, 76. 729. A contract under seal, giving an op- tion to purchase shares of stock within a specified time, is, prior to that timo. irrev- ocable by the grantor. Watkins v. Robert- son, 5: 1194, 54 S. E. 33, 105 Va. 269. 730. An old man who voluntarily deeds his farm to his minor grandson, and enters into written articles of copartnership with him for its operation during the lifetime of the grantor, upon the understanding that the grantee shall care for the grantor dur- ing life, and pay his funeral expenses, will not be permitted to rescind the conveyance and recover the title when he makes other arrangements, for conducting the farm, and sends the grandson home to his parents. Williams v. Langwill, 25: 932, 89 N. E. 642,, 241 111. 441. (Annotated) 731. One having a right to return bonds given for property, and receive cash for them, if he is dissatisfied with them, suffi- Digest 1-52 L.R.A.(N.S.) ciently shows his dissatisfaction by tender- ing the bonds and demanding the cash. Rose v. Monarch, 42: 660, 150 S. W. 56, 150 Ky. 129. 732. If one agreed to teach another in certain lines of instruction until the pupil was proficient in them, and, after beginning the course and receiving payment in full, abandoned the contract and refused to teach the student longer, the latter would have a right to treat the action of the teacher as a rescission, and bring suit for the amount which had been paid by him. Timmerman v. Stanley, i: 379, 51 S. E. 760, 123 Ga. 850. 2. Conditions; promptness; restoring benefits. (See also same heading in Digest L.R.A. 1-10.) Effect of delay in rescinding contract, see ELECTION OF REMEDIES, 45. 733. One who has contracted for ice, to /be delivered from day to day in such quanti- ties as demanded, must, after accepting a portion of the demand for a certain day, under the assumption that the remainder will be delivered later in the day, in order to be entitled to rescind the contract for failure to deliver the whole. of the instal- ment, make further demand for delivery of the balance. Wolfert v. Caledonia Springs Ice Co. 21:864, 88 N. E. 24, 195 N. Y. 118. Restoring benefits. On rescission of contract by attorney, see ATTORNEYS, 35. By married woman, see EJECTMENT, 24, 25; HUSBAND AND WIFE, 112. Restitution in equity, see EQUITY, 131. On rescinding contract for fraud, see FRAUD AND DECEIT, 70. By infant, see INFANTS, 85, 92-96. On cancelation of insurance policy, see IN- SURANCE, 434-444. Returning money to purchaser at foreclosure sale as condition of right to attack title, see MORTGAGE, 131. Necessity of returning consideration for re- lease before repudiating, see RELEASE, 2-4. Return of consideration as condition of revocation of grant by state, see STATE, 2. Necessity of returning consideration for note made on Sunday, see SUNDAY, 23. Contract for purchase of real estate, see VENDOR AND PURCHASER, 76. See also CORPORATIONS, 136. 734. The general rule that where one party asserts a right, to rescind a contract for nonperformance of his covenant by the other, the party seeking rescission must re- store or tender back to the other party what has been received from him, so as to restore the status quo, does not apply to a case where one agrees to teach another a certain thing, and, after beginning the course of instruction, refuses to proceed further, whereupon the other party treats the contract as rescinded, and brings suit CONTRACTS, V. c, 3. 673 to recover the amount which he has paid under the agreement. Timmerman v. Stan- ley, i : 379, 51 S. E. 760, 123 Ga. 850. (Annotated) 735. To rescind a contract to carry a pas- senger on a sleeping car the company must tender back the money paid for the passage. Pullman Co. v. Krauss, 4: 103, 40 So. 398, 145 Ala. 395. 736. A formal tender of consideration re- ceived for an assignment of a judgment is not necessary before instituting an action for its rescission, where defendant expressly refuses to accept a tender. Fournier v. Glutton, 7: 179, 109 N. W. 425, 146 Mich. 298. 737. A married woman who has received title to real estate by conveyance from her husband acting as trustee for another may, upon repudiating her liability to pay the consideration, be compelled to reconvey the title. Atkins v. Atkins, 11:273, 80 N. E. S06, 195 Mass. 124. 738. A trustee who has received part of the consideration upon conveying trust property to his wife is bound to return it, together with the taxes paid by her, upon securing a decree for reconveyance of the property, when she refuses to be bound by her contract. Atkins v. Atkins, zx: 273, 80 N. E. 806, 195 Mass. 124. 3. Grounds of. (See also same heading in Digest L.R.A. 1-70.) Cancelation of instrument as cloud on title, see CLOUD ON TITLE, 4, 5, 25-28. Right to cancelation of ultra vires contract of corporation, see COPORATIONS, 100. Cancelation of stock subscription, see COR- PORATIONS, 206-209. Cancelation of stock fraudulently issued, see CORPORATIONS, 246, 247. Duress, see DURESS. Estoppel to avoid, see ESTOPPEL, 122, 227. As to cancelation of insurance contract, see INSURANCE, III. c. For discharge of servant, see MASTER AND SERVANT, 113-322. Rescission of contract of sale, see SALE, III. c. 739. A deed in consideration of an agree- ment not to contest, or protest against, the granting of a patent for government land, will not be rescinded for failure to comply with the latter part of the agreement after the time is past when a contest could be made, so that the grantee could not be placed in statu quo. Roy v. Harney Peak Tin Min. Mill. & Mfg. Co. 9: 529, 110 N. W. 100, 21 S. D. 340. 740. In the absence of fraud in procuring a deed to real estate it will not be canceled for failure to comply with a condition sub- sequent, such as an agreement not to pro- test against the granting of a patent to government land, unless the right to can- celation is conferred by the deed. Roy v. Digest 1-52 I*R.A.(N.S.) Harney Peak Tin Min. Mill. & Mfg. Co. 9: 529, 110 N. W. 106, 21 S. D. 140. 741. Mere failure on the part of the grantor to read a deed before signing it is not ground for setting the conveyance aside. Hale v. Hale, 14: 221, 59 S. E. 1056, 62 W. Va. 609. For fraud. What questions may be raised by one seek- ing to set aside contract for fraud, see ACTION OR SUIT, 35 a. As against assignee for creditors, see AS- SIGNMENT FOR CREDITORS, 3. Rescission of sale by promoters to corpora- tion, see CORPORATIONS, 196. Of subscription to capital stock, see CORPO- RATIONS, 208, 209. Effect of delay in rescinding contract for fraud, see ELECTION OF REMEDIES, 45. Equitable jurisdiction to rescind, see EQUI- TY, 43, 57-64. Estoppel to set up fraud, x see ESTOPPEL, 182. Evidence to show fraud, see EVIDENCE, 1016, 1408, 1626. As to what constitutes fraud, see FRAUD AND DECEIT. Conveyance in fraud of marital rights, see HUSBAND AND WIFE, II. j. Amount of judgment in case of, see JUDG- MENT, 39. Cancelation of pledged notes, see PLEDGE AND COLLATERAL SECURITY, 17. In contract of sale, see SALE, 112, 121, 206- 218, 229. Contracts for purchase of land, see VENDOR AND PURCHASER, 18, 68-72. See also infra, 759. 742. A false statement of present in- tention as to the use to which the lot should be put, made for the purpose of inducing the sale of a city lot, when the use to which the lot is actually to be put will greatly depreciate the value of the remaining prop- erty of the granter, is such fraud as will justify cancelation of a deed made in re- liance thereon. Adams v. Gillig, 32: 127, 92 N. E. 670, 199 N. Y. 314. (Annotated) 743. The words, "Read this," and, "I have read this contract, have had delivered to me by your salesman a copy of same, and this is all of the contract between us," conspicu- ously printed upon the face of a contract, do not prevent setting aside the contract for fraud in securing its execution, where the party sought to be charged did not read the contract, but relied on a false reading by the agent, who did not call attention to such words. Western Mfg. Co. v. Cotton & Long. 12: 427, 104 S. W. 758, 126 Ky. 749. 744. A tenant by the curtesy who for several years has been in the habit of join- ing in deeds prepared by his son, conveying small town lots belonging to the wife, is entitled to have a deed so prepared and pre- sented to him set aside as having been fraudulently procured, where it conveyed to the son all his interest in his wife's real es- tate in consideration of one dollar and nat- ural love and affection, and was executed by him without reading it, on the son's rep- resentation that it conveyed only a town lot. 43 674 CONTRACTS, V. c, 3. Hale v. Hale, 14: 221, 59 S. E. 1056, 62 W. Va. 609. 745. An action for the rescission of an oil lease because of alleged fraudulent rep- resentations as to the quantity of oil pro- duced, is not defeated by the fact that the plaintiff, for a period of six weeks after the discovery of the true capacity of the proper- ty and before the bringing of the action for rescission, used a quantity of the oil taken from the property, but the lessee may be granted relief upon payment of the value of such oil when substantial justice will be thereby promoted, notwithstanding that by his own act he has rendered impossible the restoration of a portion of the oil. Basye v. Paola Refining Co. 25: 1302, 101 Pac. 658, 79 Kan. 755. (Annotated) 746. One who has been induced to enter into a contract to perform public work by fraudulently underestimating the amount of work to be done and concealing from him the plans and specifications in accordance with which he is to do the work, or by mutual mistake based on erroneous esti- mates of the public's engineer of the amount of work to be done, may, in absence of laches or negligence on his part, maintain a bill for cancelation ->f the contract ana re- covery of whatever money may be in- cidentally necessary to afford full relief, if defendants can be put substantially into their original posi'.ion. Long v. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. Mistake. Mistake as ground for relief in equity, see EQUITY, I. d. Evidence to show mistake justifying can- celation, see EVIDENCE, 1021. Allegations as to, see PLEADING, 446. As to rescission of sale, see SALE, 204. See also supra, 650, 651, 746. 747. A unilateral mistake in the making of a contract, of which the other contracting party is entirely ignorant, and to wl.ich he in no way contributes, will not affect the contract, or afford grounds for its avoidance or rescission, unless it be such a mistake as goes to the substance of the contract itself. Tatum v. Coast Lumber Co. 23: 1109, 101 Pac. 957, 16 Idaho, 471. 748. The mutual mistake of the parties to a deed as to the extent of the grantor's in- terest in the land at the time it was eon- veyed is one against which equity will af- ford relief. Burton v. Haden, 15: 1038, 60 S. E. 736, 108 Va. 51. (Annotated) 749. A mistake in adding a column of figures representing the extension of items for the furnishing of which a price has been asked, the result of which is adopted as the basis of a bid for the contract of furnishing the material, cannot, after acceptance of the bid, be made the basis of a suit in equity to cancel the contract. Steinmeyer v. Schroep- pel, 10: 114, 80 N. E. 564, 226 111. 9. (Annotated) 750. One who, acting under advice of counsel learned in the law as to the extent of his rights in another's estate, grants all his property to another for a certain con- sideration, may avoid the deed upon learn- Digest 1-52 L.R.A.(N.S.) ing that his interest was in fact much lar- ger than he was advised it was. Hoy v. Hoy, 25: 182, 48 So. 903, 93 Miss. 732. 751. One who has contracted to do pub- lic work according to the plans and speci- fications, in reliance upon the estimate of the engineer in charge of the work on be- half of the public, which believes the esti- mate to be correct, is not precluded from securing a cancelation in case the estimate is not even approximately correct, by the fact that the contract stipulates that the estimate is approximate only, and that he is satisfied therewith and has judged for himself as to all conditions affecting the cost of performance. Long v. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. 752. That work already done on a public contract shows that the" original estimate is not correct, so that a new contract can- not be secured on as advantageous terms, will not prevent a cancelation of the con- tract for mutual mistake as to the amount of work required, on the theory that the public cannot be put in statu quo. Long v. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. 753. A municipal corporation which Has induced a contractor to undertake public work by mutual mistake as to the amount to be done is placed in statu quo, so as to warrant cancelation of the contract, by be- ing required to pay merely the full value of the labor and materials already furnished. Long v. Athol, 17: 96, 82 N. E. 665, 1U6- Mass. 497. 754. A municipal corporation cannot avoid cancelation of a contract for public work based on the estimate of its engineer, on the theory that it did not represent the estimate to be true, and did nothing to prevent full investigation by the contractors. Long v. Athol, 17: 96, 82 N. E. 665, 196. Mass. 497. Iiicompeteizcy; drunkenness. See also infra, 759; BILLS AND NOTES, 13- 16; DBUNKENNESS, 1. 755. Equity will cancel a deed procured from a person of weak understanding, who is unable to guard himself against imposi- tion or resist importunity. Sprinkle v. Wellborn, 3: 174, 52 S. E. 666, 140 N. C. 163. 756. The sale of a remainder worth more than three times the consideration offered,, which is to be paid only when it comes in- to possession of the grantee, by a man who is feeble-minded and has never done busi- ness on his own responsibility, to one who had no equitable right to such a contract, may be set aside. Greene v. Maxwell, 36: 418, 96 N. E. 227, 251 111. 335. 757. To relieve one from a contract made while intoxicated, he must have been so completely under the influence of intoxicants as not to be able to understand the effect and consequences of the business transac- tion. Kuhlman v. Wieben, 2: 666, 105 N. W. 445, 129 Iowa, 188. (Annotated) 758. Equity will cancel a deed made by one in drunkenness, though his reason may not have been wholly overthrown, where fraudulent advantage has been taken, or where the drunkenness has been brought CONTRACTS, VI. a. 675 about by the other party. Miller v. Ster- ringer, 25: 596, 66 S. E. 228, 66 W. Va. 169. Undue influence. Effect of, on validity of wills, see WILLS, I. d. See also supra, 619. 759. In order to justify the setting aside of a conveyance of property on the ground of fraud, there must be shown a subject unquestionably susceptible to undue in- fluence either as the result of old age, men- tal weakness or both, and also some clear evidence of opportunity and the disposition on the part of the beneficiary to exercise such influence, in order to raise the pre- sumption of such exercise and call upon the defendant to so far weaken it at least as to destroy efficiency to establish the ultimate facts. Boardman v. Lorentzen, 52: 476, 145 N. W. 750, 155 Wis. 566. Breach, repudiation, or delay. Cancelation of oil or gas lease, see MINES, 77-83. See also supra, 702, 715, 716, 733. 761. The acceptance by one who has con- tracted for ice to be delivered from day to day in such quantities as he may designate, of less than the quantity designated on a particular day, will prevent his rescission of the contract for refusal to deliver the en- tire amount of the instalment. Wolfert v. Caledonia Springs Ice Co. 21: 864, 88 N. E. 24, 195 N. Y. 118. (Annotated) 762. Breach of an agreement to care for a man and his wife in consideration of be- ing made his insurance beneficiary will jus- tify him in having a new certificate of in- surance issued naming his wife as bene- ficiary. Ptacek v. Pisa, 14: 537, 83 N. E. 221, 231 111. 522. 763. Failure to pay for instalments as de- livered, according to contract, in case of a purchase of a quantity of material to be delivered in instalments, justifies the seller in refusing to make further deliveries. Al- pha Portland Cement Co. v. Oliver, 38: 416, 140 S. W. 595, 125 Tenn. 135. Inadequacy or failure of considera- tion. Jurisdiction of equity to cancel, see EQUITY, 91. Antenuptial contract, see HUSBAND AND WIFE, 133. See also supra, 728, 728a. 764. Mere inadequacy of consideration does not afford a sufficient reason for setting aside the conveyance of a contingent inter- est in real property, or what approximates thereto, for example, the interest which a son acquired in consequence of the remar- riage of his mother under a statute which prohibited a widow, after her second mar- riage, from selling or conveying her inter- est in her prior husband's real estate, and provided that, at her death, the title should vest in her children by her former husband. The rule, however, is otherwise with respect to sale by expectant heirs of their supposed interest in the lands of living ancestors. Me Ad runs v. Bailey, 13: 1003, 82 N. E. 1057, 169 Ind. 518. Digest 1-52 L.R.A.(N.S.) 765. The discontinuance of the publica- tion of a series of law books does not con- stitute a failure of consideration for a con- tract of subscription entered into in reli- ance upon a representation made in good faith that such publication would continue. Bigelow v. Barnes, 45: 203, 140 N. W. 1032, 121 Minn. 148. (Annotated) 766. Equity will not rescind a convey- ance of land to a railroad company in con- sideration of passes to be issued to the grantor for life, upon the passage of a statute forbidding further issuance of passes by the railroad company, if it has sub- stantially complied with its contract, and the land has materially increased in value since the conveyance. Cowley v. Northern P. R. Co. 41: 559, 123 Pac. 998, 68 Wash. 558. 767. A deed in consideration of a home with grantees in the house conveyed, care in sickness, and burial at death, will be set aside if the grantees immediately upon se- curing it treat the grantor with such harsh- ness as to terrorize him, and move from the property, leaving the grantor alone in the house, although the grantees invite him to accompany them to the new abode. Tysor v. Adams, 51: 1197, 81 S. E. 76,. 116 Va. 239. 768. Failure to furnish support in accord- ance with a promise which becomes the con- sideration for a deed absolute in form is not sufficient to support a suit for its can- celation. Dixon v. Milling, 43: 916, 59 So. 804, 102 Miss. 449. (Annotated) 769. A parent who conveys real property to his son in consideration of the son's agree- ment, evidenced by a separate instrument in the form of a bond in a penal sum the payment of which is conditioned on failure to perform, to support and maintain the parent during the remainder of his life, may, in an equitable action for breach of the agreement, have the deed or conveyance set aside or the amount due under the agree- ment made a charge or lien against the land, or such other relief as the equities be- tween the parties may justify, irrespective of whether or not the agreement of support be considered a condition subsequent, as the form thereof is immaterial. Bruer v. Bruer, 28: 608, 123 N. W. 813, 109 Minn. 260. (Annotated) 770. Equity may set aside a deed execut- ed by an employee to his employer to avoid threatened prosecution for embez/lement of which he was not guilty, although the seal Avould prevent showing lack of con- sideration at law. Kronmeyer v. Buck, 45: 1182, 101 N. E. 935, 258 111. 586. VI. Actions; liabilities, a. In general. (See also same heading in Digest L.R A 1-70J Remedies on illegal contract, see supra, III. g- 676 CONTRACTS, VI. b. Right of carrier to take advantage of con- tract between sleeping car company and its employees as to release from liabil- ity for injury, see CARRIERS, 665, 667. Interference with contract relations, see CASE, II. Measure of compensation for, see DAMAGES, III. a. Choice of remedy for breach, see ELECTION OF REMEDIES, 14-17. Effect of pursuing one remedy, see ELEC- TION OF REMEDIES, II. When statute of limitations begins to run, see LIMITATION OF ACTIONS, II. b. Right of action on, generally, see PARTIES, I. a, 2. Parties defendant to action, see PARTIES, II. a, 3. 771. The decision of the architect, re- quiring the use of the material specified, is not finally binding on the contractor, under a building contract permitting the use of such material or equal, but, if the contractor produces material equal to that specified, he has a right to the architect's approval of it, and to resort to the courts in case of his arbitrary refusal to approve. Camp v. Neuf elder, 22: 376, 95 Pac. 640, 49 Wash. 426. 772. That a contractor, at the instigation of the architect, uses material in the build- ing of a class expressly allowed by the con- tract, does not estop him from holding the owner of the building liable for the loss thereby sustained if the contract permitted him to use other material, which he could have procured at less cost than that fur- nished. Camp v. Neuf elder, 22: 376, 95 Pac. 640, 49 Wash. 426. 773. A contract by one who induces an- other to enter his employment, to will him a certain sum to compensate him for the business which he gives up to do so, will not support an action at law for damages dur- ing the lifetime of the promisor, although he dismisses the employee from his service without cause. Warden v. Hinds, 25: 529, 163 Fed. 201, 90 C. C. A. 449. ft. Defenses. (See also same heading in Digest L.R.A. Remedies on illegal contract, see supra, III. g- As to defenses, generally, see ACTION OB SUIT, I. c. Defenses to action on note, see BILLS AND NOTES, VI. c. Estoppel to set up, see ESTOPPEL, III. d. Failure of consideration as defense to ac- tion to recover gift, see GIFT, 4. In foreclosure suit, see MORTGAGE, VI. d. Violation of Sunday law as, see SUNDAY, V. 774. Neglect to interpose objections to the probate of a will will not prevent the en- forcement of a contract made in anticipa- Digest 1-52 L.R.A.(N.S.) tion of marriage, the provisions of which are antagonistic to the will. Phalen v. United States Trust Co. 7:734, 78 N. E. 943, 186 N. Y. 178. 775. A party cannot defeat, and is not entitled to be relieved from, the obligation of a written contract, merely by fhowing that he signed it without having read it and in ignorance of its contents; but he is at liberty to show that, by the artifice, deception, and fraud of the other party or his agent, he was induced to sign it without having read it, and upon the assurance and under the belief, superinduced by the other party, that it was a paper wholly different in character from the one signed. Acme Food Co. v. Older, 17: 807, 61 S. E. 235, 64 W. Va. 255. 776. One who, by falsely representing to another that a written contract contains the provisions agreed upon between them, induces him to sign it, is not entitled to en- force the contract, although the one who signed it did so without reading it or hav- ing it read to him. Shook v. Puritan Mfg. Co. 8: 1043, 89 Pac. 653, 75 Kan. 301. 777. That a contract between physician and patient is presumptively fraudulent may be interposed as a defense in an action at law to enforce it. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 18U. 778. The fact that the parties to an ex- press contract for services to be rendered by a woman for a man as housekeeper and servant maintained illicit relations with each other during the time the serv- ices were being rendered does not render the contract unenforceable, where it was not made in contemplation of such illicit relationship, and the claim for compensa- tion is not based thereon. Emmerson v. Botkin, 29: 786, 109 Pac. 531, 26 Okla. 218. (Annotated) 779. It is no defense to a contract that has been performed by the promisee, that the promisor knew that the agreement or its performance might aid the promisee to violate a law or public policy, when the promisor did not combine or conspire with the promisee to accomplish that result, and did not share in the benefit of such a vio- lation. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590, 105 C. C. A. 128. 780. One who is required by judgment to deed property upon receiving a certain sum in payment of the amount due cannot es- cape liability for evading tender, to the injury of the other party, on the theory that 'tender might have been made to the attorney of record, or the money paid into court, if theje is nothing to show that such tender or payment would have secured a conveyance. Loehr v. Dickson, 30: 495, 124 N. W. 293, 141 Wis. 332. 781. Failure to have an ordinance passed authorizing a frame building within the fire limits, so as to allow the work to be begun at a certain time, is no defense to an action for breach of a building contract, if the ordi- nance was in fact passed, and there is noth- ing to show that the building contract fixed CONTRACTS, VII. a. 677 any time when work should be commenced, or that there was any consideration for the agreement as to the ordinance. Shriner v. Craft, 28: 450, 51 So. 884, 166 Ala. 146. 782. The owner who wrongfully rescinds a building contract before the time pro- vided for its expiration cannot avoid lia- bility fo-r damages, on the theory that it would have cost the contractor more than the contract price to complete it; but the contractor is entitled to recover on quantum meruit for the service performed to the time of rescission. Brady v. Oliver, 41: 60, 147 S. W. 1135, 125 Tenn. 595. VII, Pttblic contracts, a. In general. (See also same heading in Digest L.R.A. 1-70.) As to implied contracts, see supra, 39-50. Definiteness of, see supra, 154. Remedies on invalid public contract, see supra, 614-617. Validity of contract affecting bid, see supra, 615. Validity of contract affecting official action, see supra, III. c, 4. Validity of contract with public officer, see supra, III. c, 5. Recovery on part performance of, see supra, 650, 651. Cancelation of, see supra, 746, 751-754; EVIDENCE, 1021. Nature of suit by taxpayer to restrain car- rying out of public contract, see ACTION OR SUIT, 55. Assignment of, see ASSIGNMENT, 30. Bond of contractor for public work, see BONDS, 8-19, 21-23. Parol evidence to show intention of sureties on contractor's bond, see EVIDENCE, 980. Who may maintain suit on contractor's bond, see PARTIES, 85, 87. Statute discriminating in favor of union labor, see CONSTITUTIONAL LAW, 474, 475. Statute nullifying contract for construction of state building, see CONSTITUTIONAL LAW, 769. Contracts of county, see COUNTIES, II. d. Liability for damages of one preventing an- other from securing, see DAMAGES, 3. Damages for breach of, see DAMAGES, 104, 105. Forfeiture of deposit, see FORFEITURE, 3. Right to exclude one already enjoying simi- lar franchise from competing for public franchise, see FRANCHISES, 1. Conclusiveness of judgment against tax payer seeking to restrain contract as to street improvements, see JUDGMENT, 158. Judgment as bar against carrying out of contract with school district, see JUDG- MENT, 230, 231. Mandamus to compel city engineer to fur- nish monthly estimates of completion of work under, see MANDAMUS, 44, 45. Digest 1-52 U.R.A.(N.S.) As to contracts of municipality generally, see MUNICIPAL CORPORATIONS, II. d. Personal liability of public officer on, see OFFICERS, 100, 101. Who may maintain action on, see PARTIES, 94-97; TOWNS, 13-15. Taxpayer's action to test validity of con- tract, see PARTIES, 121. Injunction against letting or performance of illegal contrast, see PARTIES, 132- 134. Injunction against payment of money on, see PARTIES, 130, 131. Sufficiency of pleading in action on, see PLEADING, 239. For public improvements, see PUBLIC IM- PROVEMENTS, II. Power of board of education to enter into, see SCHOOLS, 35, 37, 38. Of school district, see SCHOOLS, 55-58. With water company, see WATERS, 354. 783. The terms of a contract for the rendering of a service of a public nature are subject to the right of the governmental authority, under existing laws, to regulate the rendering of the service and the charges made therefor. State ex rel. Ellis v. Tampa Waterworks Co. 22: 680, 48 So. 639, 57 Fla. 533. 784. An ambiguous or doubtful contract between a telephone company and a mu- nicipal corporation in which it is to trans- act business, as to the rights of the public under it, will be construed in favor of the public rights. Colorado Teleph. Co. v. Fields. 30: 1088, 110 Pac. 571, 15 N. M. 431. 785. To the construction of a contract be- tween a telephone company and a munic- ipality in which it is to transact business, the rule applies that where a contract aa a whole discloses a given intention, if cer- tain words or clauses taken literally would defeat the intention, it will be construed, if possible, so as to be consistent with the general intent. Colorado Teleph. Co. v. Fields, 30: 1088, 110 Pac. 571, 15 N. M. 431. Limitation of hours of labor. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 301-303. Presumption of violation of statute regulat- ing hours of labor, see EVIDENCE, 691. Construction of statute limiting hours of labor on public work, see STATUTES, 235. 786. The legislature may constitutionally limit the hours of labor of those employed upon public contracts. Opinion of the Jus- tices, 34: 771, 94 N. E. 1044, 208 Mass. 619. (Annotated) 787. A statute regulating the hours of labor on public work applies to a contract entered into after its passage, for the com- pletion of work which had begun under an- other contract originating before its pas- sage, but which the municipality had ter- minated. People ex rel. Williams Engineer- ing & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. 788. A legislature having constitutional authority to limit the hours of labor upon public work may forbid municipalities to 678 CONTRACTS, VII. b. pay for work in the performance of which its requirements as to hours of labor are violated. People ex rel. Williams Engineer- ing & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. 789. A municipal corporation does not waive the benefit of a statute forbidding it to pay for public work on which labor is performed for more than a specified number of hours per day, when it refuses payment of the first amounts becoming due under the contract, and acts as soon as it reasonably can after receiving notice of the facts, al- though it has permitted the performance of the work, of which it will receive the benefit. People ex rel. Williams Engineer- ing & C. Co. v. Metz, 24: 201, 85 N. E. 1070, 193 N. Y. 148. Minimum wage. Review by courts of ordinance fixing mini- mum wage in public contracts, see COURTS, 162. 790. A city is not, in contracting for the construction of a sewer to be paid for by special assessment upon property benefited, the agent of the property owner and re- quired to do the work for the lowest price possible, so that it cannot stipu- late for a minimum wage for common labor in excess of the prevailing wage for similar labor on private contracts, at least, where it is not required to let the contract to the lowest bidder. Malette v. Spokane, 51 : 686, 137 Pac. 496, 77 Wash. 205. ( Annotated ) ft. Advertisements and bids; letting. (See also same heading in Digest L.R.A. 1-10.) Statute requiring all county printing, binding, etc., to be done within county, see COMMERCE, 7; CONSTITUTIONAL LAW, 454. Taxpayer's right to examine papers on which commission acted in awarding contract, see RECORDS AND RECORDING LAWS, 9. Construction of statute as to, see STATUTES, 252. 791. A contract for public improvement is not invalidated by the fact that after the award was made, but before the con- tract was executed, the bid was reduced by way of relinquishment to the public of a part of the price. Kelling v. Edwards, 38: 668, 134 N. W. 221, 116 Minn. 484. 792. One bidding for public work is not bound to employ a skilled engineer to test the accuracy of the estimates of the pub- lic engineer of the amount of work to be done, which is given out as the basis for the bids. Long v. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. Necessity of advertising; plans and specifications. 793. A municipal corporation having charter power to keep its streets in repair is not bound to advertise for competitive Digest 1-52 L.R.A.(N.S.) bidding for the construction of a pavement, unless the statute so provides. Dillingham v. Spartanburg, 8: 412, 56 S. E. 381, 75 S. C. 549. 794. Failure to comply with a statute re- quiring public officers to advertise for bids for street work does not invalidate a con- tract made without such advertising, unless the statute makes it a condition of the exer- cise of the powei to contract. Dilliu^lium v. Spartanburg, 8: 412, 56 S. E. 381, 75 S. C. 549. 795. The plans and specifications for a heating and ventilating system of a school building, adopted by a board of education previous to the advertisement for bids un- der a statute providing that such board shall make no contract involving an ex penditure of more than $500 for the purposo of erecting any public building or making any improvement, except by sealed pro- posals and to the lowest responsible bidder, must be so definite and detailed as to dis- close the specific thing to be undertaken, so as to enable all bidders to make a defi- nite bid on a common standard, previously ascertained, for definite work to be done. Hannan v. Board of Education, 30: 214, 107 Pac. 646, 25 Okla. 372. (Annotated) 796. The letting of a contract for the in- stallation of a heating and ventilating sys- tem in a proposed public school building, as to which complete plans and specifica- tions, but not including heating and ven- tilating, were on file, without making or fil- ing any plans and specifications except ad- vertisements for bids, which stated that bids accompanied by plans and specifications in the form of a proposal for a steam force blast system of heating and ventilating, con- trolled by automatic heat regulation, and specifying the amount of air each pupil was to receive, and the degrees to which the different portions of the building were to be heated in the coldest weather, would be received, thereby leaving the bidders to submit plans and specifications showing the kind of power, radiation apparatus, regis- ters, appliances, and appurtenances of all kinds, violates a statute requiring the plans and specifications submitted to the bidders to be so definite and detailed as to enable the bidders to make a definite bid on a common standard, previously ascer tained, for definite work to be done. Han- nan v. Board of Education, 30: 214, 107 Pac. 646, 25 Okla. 372. Letting tc lowest bidder. Constitutionality of statute discriminating in favor of union labor, see CONSTI- TUTIONAL LAW, 474. Review by courts of question whether bidder is the lowest responsible bidder, see COUBTS, 136. Mandamus to compel award of contract to lowest bidder, see MANDAMUS, 28. See also PUBLIC IMPROVEMENTS, 15, 16. 797. A statutory requirement that con- tracts for public improvements shall be let to the lowest responsible bidder involves a consideration not only of which bid was CONTRADICTION; CONTRIBUTION AND INDEMNITY. 679 the lowest in price, but also the ascertain- | ment of the ability of bidders to discharge all the obligations assumed in accordance with what is expected or may be demanded under che terms of the contract. Hannan v. Board of Education, 30: 214, 107 Pac. 646, 25 Okla. 372. 798. The word "responsible" in the phrase "lowest responsible bidder," in a statute providing for competitive bids before award- ing contracts for public improvements, im- plies skill, judgment, and integrity neces- sary to a faithful performance of the con- tract, as well as sufficient financial re- sources and ability. Williams v. Topeka, 38: 672, 118 Pac. 864, 85 Kan. 857. (Annotated) 799. In awarding a contract under a statute providing for the construction of a drainage ditch, the county auditor, in de- termining who is the "lowest responsible bidder," is not limited to an inquiry as to financial responsibility, but may, in the ex- ercise of the discretion vested in him, in- quire also as to the fitness and ability of the bidders to do and perform the partic- ular work. Kelling v. Edwards, 38: 668, 134 N. W. 221, 116 Minn. 484. 800. That a bidder for public work is in default as to other public contracts may be sufficient to justify the rejectment of his bid, under a statute requiring the lotting of such contracts to the lowest responsible bidder. Kelling v. Edwards, 38: 668, 134 N. W. 221, 116 Minn. 484. 801. The incorporation into an advertise- ment for bids for the construction of public works, or into the specifications of the work upon which the bids are predicated, of illegal or unauthorized conditions or obli- gations upon the contractor, compliance with which on his part will necessarily and illegally increase the cost of the work, is not a letting of the contract to the lowest bidder within the meaning of such a re- quirement in the city charter, and will ren- der the contract illegal and void. Ander- son v. Fuller, 6: 1026, 41 So. 684, 51 Fla. 380. 802. A statute requiring all county print- ing, binding, and stationery work to be done in the county for which the work is intended, where there are practical facili- ties for doing the same, unless the charge made be greater than that made to private individuals, without making any provision for competitive bidding, is not in violation of any public policy. Re Gemmill, 41: 711, 119 Pac. 298, 20 Idaho, 732. (Annotated) 803. A statutory requirement that con- tracts for the performance of municipal work shall be let to the lowest bidder does not give such bidder a right of action against a municipality for his lost profits in case the contract is, contrary to the statute, awarded to a higher bidder. Molloy v. New Rochelle, 30: 126, 92 N. E. 94, 198 N. Y. 402. (Annotated) 804. The making of the lowest bid for the performance of municipal work, in response to an advertisement, does not effect a con- Difeest 1-52 L.R.A.(N.S.) tract with the municipality, a breach of which will give the bidder a right of action, although the statute requires the contract to be let to the lowest bidder, where the advertisement reserves the right to reject any or all bids. Molloy v. New Rochelle, 30: 126, 92 N. E. 94, 198 N. Y. 402. Material or work covered by patent. 805. In the absence of statute requiring municipalities to submit contracts for street improvements to competitive bidding, they are not precluded from contracting for pat- ented articles for such improvements. Dil- lingham v. Spartanburg, 8: 412, 56 S. E. 381, 75 S. C. 549. 806. The selection by a municipal corpo- ration of a patented article for a street pavement is not prevented by a charter pro- vision requiring the contract to be let to the lowest bidder, if the owner of the pat- ent docs not himself bid for the contract, but makes an offer to furnish the machin- ery for mixing the paving material, or the mixture itself for a stipulated price, on equal terms to all bidders. Johns v. Pen- dleton, 46: 990, 133 Pac. 817, 134 Pac. 312, 66 Or. 182. (Annotated) 807. An offer by the owner of a patented pavement to permit anyone to lay it for a certain price per yard, which is a large per- centage of the total cost, and for which it agrees to supply and prepare a large part in value of the material to be used, does not comply with the requirements of a statute authorizing a municipal corporation to use a patented article in street paving by ac- quiring a right to operate under the patent for a royalty, and then let the actual work to the lowest bidder. Allen v. Milwaukee, 5: 680, 106 N. W. 1099, 128 Wis. 678. (Annotated) CONTRADICTION. In record on appeal, see APPEAL AND ERROR, III. e. Of witness, see WITNESSES, III. CONTRIBUTION AND INDEMNITY. Nature of action for, see ACTION OR SUIT, 71. Between stockholders, see ACTION OR SUIT, 71. Prejudicial error in admission of evidence in action for, see APPEAL AND ERROR, 1137. Between indorsers, see BILLS AND NOTES, 86. Construction of indemity clause in paying contract, see BONDS, 23. Providing for indemnity to defendant as condition of right to recover on lost check, see CHECKS, 8, 19. Agreement to indemnify against any claim for breach of contract as maintenance, see CHAMPERTY AND MAINTENANCE. 680 CONTRIBUTION AND INDEMNITY. Constitutionality of statute creating em- ployee's indemnity fund, see GONHTITU- TTON-AL LAW, 71, 135, 316-320, 467-469, 722. Duty of one procuring transfer of stock on books of corporation to indemnify cor- poration for loss resulting fom transac- tion, see CONTRACTS, 20. Implied contract to indemnify person per- forming ministerial duty, for loss re- sulting therefrom, see CONTRACTS, 21. Consideration for indemnity contract, see CONTRACTS, 53, 69. Validity of contract to indemnify surety, see CONTRACTS, 53, 447, 448. Validity of contract of indemnity by corpo- ration, see CORPORATIONS, 60, 61. Liability of corporate officers circulating libel for which corporation is held li- able, to reimburse corporation, see COR- PORA TIONS, 164. Between cotenants, see COTENANCY, 8-10. Between insurance companies, see INSUR- ANCE, VI. g. Between parties to joint adventure, see JOINT ADVENTURE, 2. Collusiveness of judgment against contrac- tor for injury in suit by him against subcontractor for reimbursement, see JUDGMENT, 192. Judgment in favor of directors in action for libel as bar to action against them for reimbursement by corporation held liable for libel, see JUDGMENT, 260. Between life tenant and remainderman, see LIFE TENANTS, 29. Limitation of action for, see LIMITATION OF ACTIONS, 116, 248. Codebtor's right to contribution on payment of entire debt, see LIMITATION OF AC- TIONS, 75; SUBROGATION, 11. Surety's right to, see LIMITATION OF AC- TIONS, 116 ; PRINCIPAL AND SURETY, 71- 74; SUBROGATION, 29, 30. Strict construction of statute as to proceed- ing against wrong-doer before suing city, see STATUTES, 272. Subrogation to cotenant's right to compel, see SUBROGATION, 2. Right of one protecting agent against loss resulting from mistake in telegram to reimbursement from telegraph com- pany, see TELEGRAPHS, 20. Between legatees, see WILLS, 369, 406-414, 418. 1. A deed of trust binding land of sev- eral debtors for a debt paid by one not principal debtor, and released by the credi- tor, is kept alive in equity to give contri- bution to the debtor paying against a co- debtor, notwithstanding such release, and though action at law for contribution is barred by the statute of limitations. Gooch v. Allen. 37: 030, 73 S. E. 56, 70 W. Va. 38. 2. One who succeeds as trustee to an undivided portion of real estate is not in- dividually liable to contribute to the re- payment of taxes advanced by a stranger during the incumbency of his predecessor, unless he has ratified the contract. Footc Digest 1-52 I,.R.A.(N.S.) v. Getting, 15: 693, 80 N. E. 600, 195 Mass. 55. 3. Residuary legatees who, after the special legacies have been substantially paid, submit to the imposition of an illegal suc- cession tax upon the property, cannot com- pel the remaining unpaid legatees to share the burden equally with them. Re Shoen- berger, 19: 290, 70 Atl. 579, 221 Pa. 112; 4. The right of the registered holder of shares of stock in a corporation to indem- nity against liabilities incurred by him by his retention of the trust property is, where the beneficial owner is sui juris, not limited to the property itself, but extends further and imposes upon the beneficial owner a personal obligation enforceable in equity; and it is immaterial whether the beneficial owner originally created the trust by which the registered holder was plainly affected, or accepted a transfer of the beneficial own- ership with knowledge of the trust. Har- doon v. Belilios, 3 B. R. C. 355, [1901] A, C. 118. Also Reported in 70 L. J. P. C. N. S. 9, 49 Week. Rep. 209, 83 L. T. N. S. 573, 17 Times L. R. 126. (Annotated) Between wrongdoers. Effect of judgment in action far injuries to estop one primarily responsible therefor in subsequent action to hold him liable as indemnitor, see ESTOPPEL, 43. Conclusiveness of judgment against con- structive tort feasor in subsequent ac- tion for contribution or indemnity, see JUDGMENT, 200, 201, 233. See also JOINT CREDITORS AND DEBTORS, 11 5. One of two joint tort feasors whose combined negligence causes death, for which an action is brought against both, cannot complain that his codefendant is dismissed from the action, since he is not entitled to contribution from him. Doles v. Seaboard A. L. R. Co. 42: 67, 75 S. E. 722, 160 N. C. 318. 6. The rule that the right of contribu- tion does not exist as between joint tort feasors has no application to torts which are the result of mere negligence. Mayber- ry v. Northern P. R. Co. 12: 675, 110 N. W. 356, 100 Minn. 79. 7. The fact that joint wrongdoers stand in delicto each to the other will not fore- close contribution. Astoria v. Astoria & C. R. R. Co. 49: 404, 136 Pac. 645, 67 Or. 538. 8. A city whose negligence consisted of its failure to provide barriers at the sides of an apron leading up to the rails of a railroad crossing a street, and in not re- quiring the railway company to construct and maintain aprons sufficient to protoct the public from harm, is not equally delin- quent with the railway company, whose- duty it was, according to the ordinance granting to it the use of the street in ques- tion, to lay its track rails even witli the grade of the street, and to keep the street i crossing in good condition and repair; and ' it may therefore recover from the railway company the amount of judgment obtained by one who was injured by falling from the apron at a point where it covered only a portion of the street, leaving a perpendicu- CONTRIBUTORY INFRINGEMENT CONVERSION. 681 lar descent of about 18 inches. Astoria v. Astoria & C. R. R. Co. 49: 404, 136 Pac. 645, 67 Or. 538. 9. The amount recoverable from a rail- way company by a city against whom a judgment has been obtained for an injury caused by a defect in a street at a railway crossing, for which the railway company is responsible, includes necessary costs and attorneys' fees expended in defending the action. Astoria v. Astoria & C. R. R. Co. 49: ^04, 136 Pac. 645, 67 Or. 538. 30. A municipal corporation which fails to require trapdoors leading from a side- walk to an area way beneath it to be main- tained in a safe condition is not a joint tort feasor with the abutting owner who main- tains them for his own benefit and permits them to become dangerous to pedestrians, so as to prevent the municipality from re- covering over against the abutting owner in case it is held liable for an injury to a pedestrian. Seattle v. Puget Sound Improv. Co. 12: 949, 91 Pac. 255, 47 Wash. 22. ( Annotated ) 11. A municipal corporation which is compelled to pay damages for the death of a traveler on its streets who is thrown from his wagon in front of a street car by a de- fective condition of the street cannot compel contribution from the street car company although the accident would not have oc- curred if the car had been operated with ordinary care. Louisville v. Louisville R. Co. 49: 350, 160 S. W. 771, 156 Ky. 141. 12. Mere delay by public authorities for a period of three years, to place a barrier along a bridge approach rendered unsafe by a change in the grade by a railroad com- pany, is not such delinquency as will pre- vent them from recovering over against the railroad company in case they are held li- able for injuries due to the absence of the railing. Baltimore & 0. R. Co. v. Howard County Comrs. 40: 1172, 73 Atl. 656, 111 Md. 176. 13. A municipal corporation which is compelled to pay damages for injuries to a pedestrian falling into a ditch across the sidewalk, dug under direction of its engi- neer, by an independent contractor, in con- nection with a street improvement, may se- cure indemnity from the contractor if the accident was caused by his negligence in failing to provide a sufficient protection for the ditch to render the way safe for pe- destrians; and it is immaterial that the engineer mistakenly located the ditch at the wrong place, which mistake required it to remain open overnight. Robertson v. Pa- ducah, 40: 1153, 142 S. W. 370, 146 Ky. 188. (Annotated) 14. A property owner who is compelled to pay damages for injuries to a pedestrian because of the unsafe manner in which a cover was placed upon a coal hole in the sidewalk, by a coal dealer delivering coal through it, may, in ease he himself was not actively negligent in the matter, re- cover indemnity from the dealer for the loss so caused. Scott v. Curtis, 40: 1147, 88 N. E. 794, 195 N. Y. 424. (Annotated) Digest 1-52 L.R.A.(N.S-) 15. A property owner who has confessed liability in an action to hold him liable for injury to a pedestrian falling through a coal hole in the sidewalk cannot recover over against the coal dealer who was using the hole for the delivery of coal, on the judgment roll, without showing that the accident was due to his negligence. Scott v. Curtis, 40: 1147, 88 N. E. 794, 195 N. Y. 424. 16. A plumber who, in repairing a city water main, extended a small pipe across a street and nailed planks on either side as guards and exercised reasonable care to keep the same in safe condition, is not lia- ble to the city as an indemnitor, . for in- juries which occurred to a pedestrian by reason of some manure and loose planks which had been thrown upon the obstruc- tion by a third person. Grand Forks v. Paulsness, 40: 1158, 123 N. W. 878, 19 N. D. 293. 17. A railroad company which cau&es the death of a passenger by starting the train before he is safely on board cannot have contribution from an express company, al- though the injury would not have occurred but for its negligence in leaving a truck too close to the track. Doles v. Seaboard A. L. R. Co. 42: 67, 75 S. E. 722, 160 N. C. 318. * CONTRIBUTORY INFRINGEMENT. Of patents, see PATENTS, 3. CONTRIBUTORY NEGLIGENCE. See NEGLIGENCE, II. CONTROLLER. Explosion of controller of street car to in- jury of motorman, see MASTER AND SERVANT, 382, 450. CONVENTIONS. Duty of carrier toward delegates to con- vention riding free, see CARRIERS, 170. Of political party, see ELECTIONS, IV. CONVERSATION. Admission of whole conversation where part has been admitted in evidence, see EVI- DENCE, 1266. CONVERSION. By bailee, see BAILMENT, 13. 682 CONVEYANCES COPIES. Of bonds, by brokers, see BANKRUPTCY, 23. Proof against bankrupt estate of claim for property converted, see BANKRUPTCY, 114. Criminal liability for, see BANKS, 243-248. Prerequisite to creditor's bill in case of, see CREDITOR'S BILL, 12. Damages for, see DAMAGES, 290, 290a, 303, 452-458, 716, 717. Equitable conversion, see EQUITABLE CON- VERSION. Sufficiency of evidence to establish, see EVI- DENCE, 2300. By executor, see EXECUTORS AND ADMINIS- TRATORS, 79. By guardian, see GUARDIAN AND WARD, III. Judgment non obstante veredicto, see JUDG- MENT, 58. As larceny, see LARCENY. Of lottery ticket, see LOTTERY, 2. By conditional vendor, see SALE, 242. Waiver of, see TRIAL, 736. Action for, see TROVER, CONVEYANCES. In fraud of creditors, see FBAUDULENT CON- VEYANCES. In general, see DEEDS. CONVICTION. What destroys presumption of probable cause for prosecution arising from, see MALICIOUS PROSECUTION, 22. CONVICTS. Effect of escape of, on right to appeal, see APPEAL AND ERROR, 93, 402. Sufficiency of evidence of attempt to escape, see EVIDENCE, 2423. Reward for capture of escaped convict; who entitled to, see REWARD, 9. Assault by punishment of, see ASSAULT, 16. Right to bail, see BAIL AND RECOGNIZANCE, 9. Status of, see CIVIL DEATH. Working of state farms by, see CONSTITU- TIONAL LAW, 23, 24. Deduction from sentence for good behavior, see CONSTITUTIONAL LAW, 97; CRIMI- NAL LAW, 261-284. Ex post facto laws as to, see CONSTITUTION- AL LAW, I. b, 1. Liability of county for services of physician to, see CONTRACTS, 43. Contract for hiring of, see CONTRACTS, 383; SET-OFF AND COUNTERCLAIM, 20-22. Control by courts, of state board's action in leasing land on which to work convicts, see COURTS, 96. Trial for other offense for one serving term of imprisonment, see CRIMINAL LAW, 63, 64. Digest 1-52 L.R.A.(N.S.) Stay of execution of death sentence, see CRIMINAL LAW, 288. Sentence and imprisonment of generally, see CBIMINAL LAW, IV. Parole or pardon of, see CRIMINAL LAW, rv. h. Effect of deprivation of civil rights on valid- ity of deed executed by convict while execution of judgment of conviction is stayed, see DEEDS, 21. Criminal liability of discharged convict for registering as voter, see ELECTIONS, 86. Evidence of declarations made by, see EVI- DENCE, 1353. Habeas corpus to secure release of, see HABEAS CORPUS. Homicide by convict in resisting illegal corporal punishment, see HOMICIDE, 67; TRIAL, 293. Turning over pay of convict to abandoned wife, see HUSBAND AND WIFE, 213. Liability of municipality employing, for in- jury to, see MUNICIPAL CORPORATIONS, 378. Right to release, because of refusal to ac- cept tender of fine, see TENDER, 7. Effect of pardon of, on competency as wit- ness, see WITNESSES, 18. Credibility of, as witnesses, see WITNESSES, 158-164. Liability for injuries committed by. See also MASTER AND SERVANT, 960. 1. That a tortious act of a convict hired to a private citizen is committed on Sun day, when the convict is allowed pay for his labor, will not render the employer lia- ole therefor if the state retains the right to control the acts of the convict. St. Louis, I. M. & S. R. Co. v. Boyle, 12: 317, 103 S. W. 744, 83 Ark. 302. 2. One hiring convict labor from the state is not liable for the tortious acts of one of the laborers where the state retains control of the convicts, the performance of labor only being directed by the one doing the hiring. St. Louis, I. M. & S. R. Co. v. Boyle, 12: 317, 103 S. W. 744, 83 Ark. 302. (Annotated) i CO-OPERATIVE SOCIETY. As constituting gift enterprise, see LOT- TERY, 4. As to communism, see COMMUNISM. 4 CO-OPERATIVE STORE. Rule of, against warranty of goods as ex- cluding implied warranty, see SALES, 78. COPIES. Admissibility of, in evidence, see EVIDENCE, 715-724, 890. COPPERAS: COPYRIGHT. 683 Selling stove copied from design of another as unfair competition, see UNFAIR COM- PETITION, 2, 3. Probate of copy of will, see WILLS, 109, 574. COPPERAS. Emptying of, into stream, see FISHERIES, 7. COPYRIGHT. Right of author to royalties on sales made by publisher's trustee in bankruptcy, see BANKRUPTCY, 118. Unwarranted use of uncopyrighted manu- scripts, see CONTRACTS, 13, 14; DAM- AGES, 303. As to property rights in uncopyrighted works, see LITERARY AND ARTISTIC PROP- ERTY. Strict construction of statute conferring copyright, see STATUTES, 271. 1. The exclusive right of multiplying copies ot a work already published can be preserved only by complying with the act of Congress providing for that purpose. State v. State Journal Co. 9: 174, 106 N. W. 434, 75 Neb. 275. 2. Under the statute of 8 Anne, chap. 19, there was no subsisting copyright in the author of unpublished letters, which will vest in his legal representatives. Macmil- lan & Co. v. Dent, 3 B. R. C. 647, [1907J 1 Ch. 107. Also Reported in 76 L. J. Ch. N. S. 136, 95 L. T. N. S. 730, 23 Times L. R. 45. 3. Although at common law the writer of a letter and his legal representatives are entitled to prevent its publication, and this is a right of property, the copyright in a letter published after the death of the writer is vested in the proprietor of the letter it- self, i. e., of the paper and the writing upon it. Maomillan & Co. v. Dent. 3 B. R. C. 647, [1907] 1 Ch. 107. Also Reported in 76 L. J. Ch. N. S. 136, 95 L. T. N. S. 730, 23 Times L. R. 45. 4. Under the English copyright act of 1842, which provides that "copyright in every book which shall be published after the death of the author shall be the prop- erty of the proprietor of the author's manu- script from which such book shall first be published, and his assigns," the right to copyright, where the author is dead, is to be traced, not from the author, but from the first publisher of the author's manuscript; and therefore one to whom the proprietor of unpublished letters written by an author then deceased assigned "all copyright which we possess and the exclusive right of pub- lishing the entire collection of letters," the assignee undertaking to return all the manu- scripts when copied, is entitled to copyright therein as against one who subsequently pur- chased the original manuscripts from the assignors with any rights which they might Digest 1-52 L.R.A.(N.S.) still have therein, and who also took from the legal personal representative of the de- ceased author an assignment of the copy- right and all other rights of the author in the letters. Macmillan & Co. v. Dent, 3 B. R. C. 647, [1907] 1 Ch. 107. Also Re- ported in 76 L. J. Ch. N. S. 136, 95 L. T. N. S. 730, 23 Times L. R. 45. (Annotated) 5. A person who makes notes of a speech delivered in public, transcribes them, and publishes a verbatim report of the speech, is the "author" of the report with- in the meaning of a statute conferring prop- erty in the copyright of a book only upon its author and his assigns. Walter v. Lane, 2 B. R. C. 312, [1900] A. C. 539. Also Reported in 69 L. J. Ch. N. S. 699, 49 Week. Rep. 95, 83 L. T. N. S. 289, 16 Times L. R. 551. (Annotated) 6. Semble, that one who suggested the general idea and dramatic situations of a dramatic sketch to one who composed the dialogue in accordance with those sugges- tions is not, either alone or jointly with the composer of the dialogue, entitled to the protection of the copyright acts as the au- thor of the sketch. Tate v. Fullbrook, 2 B. R. C. 93, [1908] 1 K. B. 821. Also Re- ported in 77 L. J. K. B. N. S. 577, 98 L. T. N. S. 706, 24 Times L. R. 347, 52 Sol. Jo. 279. 7. An express agreement to that effect is not necessary to constitute the proprietor of an encyclopedia the owner of the copy- right in articles composed by others for pub- lication therein, within 18 of the copy- right act, 1842, which provides that where the proprietor of an encyclopedia employs and pays persons to compose articles for publication therein on the terms that the copyright in the articles shall belong to the proprietor, the copyright in the encyclo- pedia and in every article so composed and paid for shall be the property of the proprie- tor, who shall enjoy the same rights as if he were the actual author thereof; but it is a question of fact to be deprived from all the circumstances of the case what is the nature of the contract entered into between the parties. Lawrence & Bullen, Ltd. v. Aflalo, 1 B. R. C. 314, [1904] A. C. 17. Also Reported in 73 L. J. Ch. N. S. 85, 52 Week. Rep. 369, 89 L. T. N. S. 569, 20 Times L. R. 42. (Annotated) 8. The inference that the copyright in an article composed for publication in an encyclopedia was intended to belong to the proprietor may be fairly drawn where there are no special circumstances, and the only material facts are the employment to write the article and the payment therefor. Law- rence & Bullen, Ltd. v. Aflalo, 1 B. R. C. 314, [1904] A. C. 17. Also Reported in 73 L. J. Ch. N. S. 85, 52 Week. Rep. 369, 89 L. T. N. S. 568, 20 Times L. R. 42. 9. The acceptance by a publisher of a story offered for publication, and his pay- ment therefor in full, vests in him the rights of dramatization, as against the claims of the author. Dam v. Kirk La Shelle Co. 41: 1002, 175 Fed. 902, 99 C. C. A. 392. (Annotated) 684 COPYRIGHT. Notice. 10. The provision in the Berne Conven- tion, 1887, and the orders in council adopt- ing the same, that the enjoyment of the rights thereby given to foreign authors is to be subject to the conditions and formalities prescribed by law in the country of origin of the work, means that it is to be subject only to those conditions and formalities, and not to those required by the law of the country in which the right is being enforced ; therefore the declaration that public per- formance of musical works is forbidden, re- quired by such Convention to be made on the title page of the work, is sufficient if made in the language of the country of ori- gin. Sarpy v. Holland, 1 B. R. C. 769, [1908] 2 Ch. 198. Also reported in 77 L. J. Ch. N. S. 637, 99 L. T. N. S. 317, 24 Times L. R. 600. (Annotated) Publication; how right to copyright lost. 11. The common-law right of an author to control his intellectual productions is abandoned where he publishes them without complying with the provisions of the copy- right act. State v. State Journal Co. 9:174, 106 N. W. 434, 75 Neb. 275. (Annotated) What covered by. 12. The copyright of a number of a magazine with a proper notice thereof on the front page will cover a story published therein which is owned by the publisher, and entitle him to the exclusive right of translation and dramatization. Dam v. Kirk La Shelle Co. 41: 1002, 175 Fed. 902, 99 C. C. A. 392. 13. Direction as to time and expression placed upon sheets of music are protected by the copyright thereon only so long as they are used in connection with the musical score, and not being in themselves a "sheet of music" nor a "sheet of letter press sep- arately published" may be copied upon the margin of a perforated roll made for use in a mechanical organ which contains stops, swells, and pedals whereby variation of pace and expression may be effected at the will of the performer. Boosey v. Whight. 2 B. R. C. 85, [1900] 1 Ch. 122. Also Reported in 69 L. J. Ch. N. S. 66, 48 Week. Rep. 228, 81 L. T. N. S. 571, 16 Times L. R. 82. Effect of. 14. Protection against multiplication of copies and the incidents thereof is the only protection afforded by the copyright law. Bobbs-Merrill Co. v. Straus, 15: 766, 147 Fed. 15, 77 C. C. A. 607. 15. The statutory copyright does not confer the right to control the price at which copies of a book shall be sold. Bobbs-Merrill Co. v. Straus, 15: 766, 147 Fed. 15, 77 C. C. A. 607. (Annotated) 16. The owner of a manuscript surren- ders his common-law right of restricted pub- lication upon compliance with the require- ments for a statutory copyright. Bobbs- Merrill Co. v. Straus, 15: 766, 147 Fed. 15, 77 C. C. A. 607. Infringement. Measure of damages for, see DAMAGES, 605. Remedy for, see ELECTION OF REMEDIES, 8. Digest 1-52 L,.R.A.(N.S.) Injunction against, see INJUNCTION, 386. See also supra, 12, 13. 17. The making or circulating of erery unauthorized copy of a picture for which copyright has been acquired under the Fine Arts Copyright Act, 1862, is a separate offense in respect of which a penalty is incurred under 6 of the act. Hildesheim- er v. W. & F. Faulkner, Ltd. 1 B. R. C. 755, [1901] 2 Ch. 552. Also Reported in 70 L. J. Ch. N. S. 300, 49 Week. Rep. 708, 85 L. T. N. S. 322, 17 Times L. R. 737. 18. In an action brought to recover pen- alties in respect of a number of offenses under a -statutory provision that the violat- or of a copyright for every offense shall forfeit to the proprietor of the copyright for the time being a sum not exceeding 10, the court is not bound to award for each offense a penalty of at least the sum repre- sented by the smallest coin in the realm, but may award for all the offenses a lump sum which if divided by the number of of- fenses would give for each a very small fraction of such coin. Hildesheimer v. W. & F. Faulkner, Ltd. 1 B. R. C. 755, [1901] 2 Ch. 552. Also Reported in 70 L. J. Ch. N. S. 800, 49 Week. Rep. 708, 85 L. T. N. S. 322, 17 Times L. R. 737. (Annotated) 19. The performance of a piece of music by a band of hired musicians in the saloon lounge of a hotel, to which no admission is charged, for the purpose of attracting pat- ronage, is not a performance at a gratuitous public entertainment within a license for the performance of such music at any en- tertainments which are absolutely free. Sarpy v. Holland, 1 B. R. C. 769, [1908] 2 Ch. 198. Also Reported in 77 L. J. Ch. N. S. 637, 99 L. T. N. S. 317, 24 Times L. R. 600. 20. A court of equity cannot compel the owner of an infringed copyright to take damages instead of profits, against his will. Dam v. Kirk La Shelle Co. 41: 1002, 175 Fed. 902, 99 C. C. A. 392. 21. The copyright of a story is infringed by expanding it into a play, the theme of each being the same, although the language and names of characters in the two are dif- ferent, and incidents are found in the play which are not in the story. Dam v. Kirk La Shelle Co. 41: 1002, 175 Fed. 902, 99 C. C. A. 392. 22. A sale by a dealer of a lawfully printed copy of a copyrighted volume at a price below that named by the publisher is not, in the absence of any contract, condi- tion, or provisions for forfeiture, an in- fringement of the copyright law. Bobbs- Merrill Co. v. Straus, 15: 766, 147 Fed. 15. 77 C. C. A. 607. 23. Where a dramatic piece in which there is copyright is, as regards the verbal composition, in substance entirely different from another dramatic piece alleged to con- stitute an infringement of that copyright, the mere fact that accessorial matters, such as scenic effects, make-up of actors, or stage "business," in the latter piece, as performed, are similar to those employed in the per- formance of the former will not constitute CORN CORPORATIONS. 685 an infringement of the copyright therein, such matters, taken by themselves, not be- ing the subject of protection under the acts relating to dramatic copyright, though in cases where the verbal composition of the pieces is more or less similar such matters may be regarded as throwing light on the question whether there has been an infringe- ment. Tate v. Fullbrook, 2 B. R. C. 93, [1908] 1 K. B. 821. Also Reported in 77 L. J. K. B. N. S. 577, 98 L. T. N. S. 706, 24 Times L. R. 347, 52 Sol. Jo. 279. (Annotated) 24. Sheets of perforated paper represent- ing the musical score of copyrighted songs, sold for use in a mechanical organ, are part of the mechanism which produces the mu- sic and not "copies" of sheets of music, with- in the meaning of the copyright law. Boo- sey v. Whight, 2 B. R. C. 85, [1900] 1 Ch. 122. Also Reported in 69 L. J. Ch. N. S. 66, 48 Week. Rep. 228, 81 L. T. N. S. 571, 16 Times L. R. 82. (Annotated) Expiration. Using name of book after expiration of copy- right, see TBADENAME, 19. 25. Upon the expiration of the copyright upon a name used to designate a book, the right to the use of the name in connection Avith such book becomes public property. G. & C. Merriam Co. v. Ogilvie, 16: 549, 159 Fed. 638, 88 C. C. A. 596. (Annotated) CORN. As perishable property, see CARRIERS, 832. Defects in quality of corn sold, see SALE, 134. CORNER. Conspiracy to corner market, see MONOPOLY AND COMBINATIONS, 28, 43, 44, 56. CORNER LOT. Mode of assessing for public improvement, see PUBLIC IMPROVEMENTS, 69. CORONER. Bribery of, see BRIBERY, 4, 5. Inquest of, as evidence, see EVIDENCE, 75ft, 760, 1220, 1221. CORPORAL PUNISHMENT. Right of teacher to inflict on pupil, see SCHOOLS, 34. Digest 1-52 L.R.A.(N.S.) CORPORATE LIMITS. Limiting speed of mail train within, as in- terference with commerce, see COM- MERCE, 63. CORPORATION COMMISSION. See PUBLIC SERVICE COMMISSION. CORPORATIONS. J. Nature; creation; franchises; governmental regulation, 1-17. a. In general, 11O. 6. Corporate purposes, 1113. c. De facto corporation, 14:, 15. d. Names. e. Governmental regulation, 16, 17. II. Consolidation; reorganization; transfer of franchises or as- sets; control of other corpora- tion, 1832. III. Charters; articles of incorpora- tion, 3347. IF. Powers, liabilities, and officers, 4:8-200. a. Rights and powers general- l y> 4:8-54:. d. Owning stock of other com- panies, 55. c. Mode of corporate action; acts of agents, 5658. d. Contracts; ultra vires, 59 1O9. 1. Poiver to contract, 59 89. 2. Effect of ultra vires; right to set up as de- fense, 9O1O2. 3. Former requisites. 4. Ratification, 1O31O9. e. Property rights, 11O. f. Liabilities, Ill-ISO. g. Officers; meetings, 131 174. 1. In general; qualifica- tions, 131133. 2. Powers, 134149. 3. Compensation, 15O152. 4. Fiduciary relation, 153 158. 5. Liabilities, 159171. a. To stockholders or creditors, 159167. (1) In general, 159-166. (2) For failure to report, 1 67. (3) For excess of indebtedness. b. For torts or nui- sances, 1 681 7 1 . 6. Meetings, 172-174. K. Promoters, 175 2OO. 686 CORPORATIONS. F. Capital; stock and stockholders, 2O1-384. a. In general; issue of stock., 2O1, 2O2. 6. Subscriptions, 203218. 1. In general, 2O32O9. 2. Payment, 21O218. c. Transfers; lien, 219244a. 1. In general, 219244. 2. Prior right of purchase. 3. Lien, 244a. d. Forged or fraudulent issue, 245-248. e. Rights of shareholders, 249-299. 1. In general, 249268. 2. Actions by, 269284. 3. Right to inspect books, 285291. 4. Dividends; earnings, 292-299. f. Liability of shareholders, 3OO369. 1. In general, 3OO336. 2. Effect of transfer, 337 344. 3. For unpaid stock, 345 355. a. In general, 345 353. b. Stock paid for in property, 354, 355. 4. Proceedings to enforce, 356-369. g. Stockholders' meetings; vot- ing, 37 O 384. 1. In general, 37 O 376. 2. Voting, 377384. a. In general, 377 382. b. Who entitled to vote, 383, 384. FT. Dissolution; forfeiture; insol- vency, 385 41 0. a. In general, 385, 386. Z>. Grounds of forfeiture, 387, 388. c. Effect on property rights, 389, 39O. d. Effect on causes of action, 391-393. e. Procedure; power of equity as to, 394398. /. Insolvency; right and pref- erences of creditors, 399-4 1O. Jf. In general, 399 4O2. 2. Preferences, 4O341O. VII. Foreign corporations, 411452. a. In general, 411413. b. Doing business within state, 414-442. c. Actions by or against, 443 452. d. Winding up; insolvency. Acknowledgment of bill of sale by, before stockholder, see ACKNOWLEDGMENT, 2; ATTACHMENT, 21, 22. Digest 1-52 JL.R.A.(N.S.) Acknowledgment of mortgage executed by, before notary interested in corporation, See ACKNOWLEDGMENT, 3. Compelling production of books and papers, see APPEAL AND ERROR, 23, 103; CON- STITUTIONAL LAW, 364; CRIMINAL LAW, 110-112; DISCOVERY AND INSPECTION, 20, 22, 25-27. Objecting for first time on appeal that cor- poration is sued by a wrong name, see APPEAL AND ERROR, 757. Right of assignor for creditors to complain of sale of property to corporation in ex- change for stock, see ASSIGNMENT FOB CREDITORS, 7, 8. Who is agent of, entitled to execute affida- vit for attachment, see ATTACHMENT, 26, 27. Limiting to corporations transaction of banking business, see BANKS, 4, 5; CON- STITUTIONAL LAW, 435. Transfer of funds of, by officer who is also cashier of bank, to conceal misappropri- ations from bank, see BANKS, 43. What is a "manufacturing corporation," en- titled to discharge in bankruptcy, see BANKRUPTCY, 8. Malicious attachment of corporate property, see BANKRUPTCY, 96. Accommodation notes, see BILLS AND NOTES, 72, 73. Who may indorse note payable to the order of the directors of a corporation, see BILLS AND NOTES, 11. Bonds of, see BONDS, III. a. Right of action against stockholders for in- ducing suicide of officer of corporation, see CASE, 3. Inquiring into existence of, on certiorari to review condemnation proceedings by, see CERTIORARI, 19. Membership in chamber of commerce, see CHAMBER OF COMMERCE, 1, 3. Devise of property to, in excess of its char- ter authority to take, see CHARITIES, 39. Right of mortgagee of shares in, see CHAT- TEL MORTGAGE, 64. Interstate business of, see COMMERCE. Conflict of laws as to corporate matters, see CONFLICT OF LAWS, I. d. Self-executing provision as to, see CONSTI- TUTIONAL LAW, 31. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 3. Right to claim protection of due process of law clause, see CONSTITUTIONAL LAW, 371. Due process in service of process on, see CON- STITUTIONAL LAW, 540-543. Class legislation as to employees of, see CONSTITUTIONAL LAW, II. a, 5, c. Regulating time of payment of corporate em- ployees, see CONSTITUTIONAL LAW, 486- 490: MASTER AND SERVANT, 76. As to freedom of contract with employees, see CONSTITUTIONAL LAW, II. b, 4, b, (2 ) . Police regulation of matters pertaining to employees, see CONSTITUTIONAL LAW, II. c, 4, c. Impairment of obligation as to, see CONSTI- TUTIONAL LAW, II. g, 1, a, 2. CORPORATIONS. 687 Contract by brewing company to indemni- fy surety on bond of one retailing its product, see CONTRACTS, 447. Agreement between stockholder and credi- tors that he shall bid in property at judicial sale and pay corporate debts, see CONTRACTS, 482. Jurisdiction of, generally, see COURTS, I. b, 4; I. d; III. '--.. a. profit in stock of the corporation, are, as stockholders of the new corporation, en- titled to a disclosure, if the promoter ac- tually turns the property over at greater profit, for an increased portion of the cor- porate stock. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 N. E. 193. 203 Mass. 159. 199. The law will not approve a transac- tion by which property is purchased by a promoter of a corporation with money so- licited in substantial part from associates by representations that he intends to form a corporation with a specified capitaliza- tion, and sell the property to it for a cer- tain amount of stock, followed by its actual sale to the corporation for a much larger amount, the settlement with the associates at the price agreed upon, and the retention by the promoter of the difference as a se- cret profit, and taking cash subscriptions from the general public, who understand that the corporation is organized under a statute which requires property to be taken for stock only at its true value. Old Do- minion Copper Min. & Smelting Co. v. Bige- low, 40: 314, 89 N. E. 193, 203 Mass. 159. 200. That, at the time of the sale by pro- moters of property to a corporation organ- ized to purchase it, they are the owners of all the stock which has been issued, no issue having been made of that intended for the public, or that a ratification of the purchase is secured, does not, if at the time of the ratification a substantial portion of the stock intended for the public remains unissued, avoid the operation of the rule that promoters who organize a corporation to purchase property from them for stock the par value of which is largely in excess of the value of the property, and as part of the scheme sell to the general public as original subscribers a portion of the stock for cash at par, to secure a working capital, without providing an independent board of officers to pass upon the wisdom of the purchase, having the purchase ratified by such board, or disclosing their extraor- dinary profit to purchasers of stock, are liable to account to the corporation for the profit of the proceeding. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 N. E. 193, 203 Mass. 159. V. Capital; stock and stockholders. a. In general; issue of stock. HTO Atl. 568, 76 N. J. Eq. 592. 252. The decree in a suit to compel recog- nition of one's rights as a stockholder in a new corporation organized to take over the property of an old one of which he was a member should not give him a preference over holders of other stock of equal grade, who have paid cash for it the same as he did. Sparrow v. E. Bement & Sons, 10: 725, 105 N. W. 881, 142 Mich. 441. 253. Officers and stockholders of a cor- poration who, as its agents, sell its business and good will, are not, merely because they participate in the sale and, as stockholders, receive its benefits, bound by the stipula- tions of the contract against re-engaging in business. Hall's Safe Co. v. Herring-Hall- Marvin Safe Co. 14: 1182, 146 Fed. 37, 76 C. C. A. 495. 254. A stockholder of a mining corpo- ration has a right to inspect its mines 'or a legitimate purpose upon good cause shown. Hobbs v. Tom Reed Gold Mines b. 43: iii2, 129 Pac. 781, 164 Cal. 497. (Annotated) Preferred stockholders. Rights of preferred stockholders in divi- dends, see infra, 296-299. Making preferred stock nonvoting, see infra, 383, 384. Preference to, in case of insolvency, see in- fra, 407-410. Deprivation of property of, without due process of law, see CONSTITUTIONAL LAW, 442. CORPORATIONS, V. e, 1. 713 Right of holder of preferred stock to have concern placed in hands of receiver, see RECEIVERS, 15. 255. Upon dissolution of a solvent corpo- ration organized under an act authorizing the creation of two or more kinds of stock, with such preferences as may be stated or expressed in the certificate of incorporation, whose certificate of incorporation provided for the creation of preferred stock, and that the holders thereof were to receive a fixed yearly dividend before any dividend should be set apart or paid on the general stock, the preferred stockholders are entitled only to the preference set forth in the cer- tificate of incorporation, and cannot claim from the surplus the par value of their shares in preference to the common share- holders, since they are bound by the pref- erences made in such certificate. Lloyd v. Pennsylvania Electric Vehicle Co. (N. J. Err. & App.) 21: 228, 72 Atl. 16, 75 N. J. Eq. 263. (Annotated) Minerity stockholders. Secret division by bridge company, among portion of railroads using bridge, of funds accumulated by excessive tolls, see BRIDGE COMPANY. Taking minority stock under eminent do- main, see CONSTITUTIONAL LAW, 788; EMINENT DOMAIN, 18. Injunction against dissolution of corpora- tion at suit of minority stockholders, see INJUNCTION, 241. Effect of laches on rights of, see LIMITATION OF ACTIONS, 71. Appointment of receiver at suit of minority stockholders, see RECEIVERS, 13, 14. See also supra, 42, 43, 75; infra, 263, 265, 385, 395; V. e, 2. 256. The majority stockholders of a min- ing corporation may, against the consent of the minority, sell all its property for the purpose of terminating the existence of the corporation ; at least, if the property is not necessary to the continued existence of the corporation, so that its sale will not necessarily terminate such existence. Ma- ben v. Gulf Coke & Coal Co. 35: 396, 55 So. 607, 173 Ala. 259. (Annotated) 257. The officers of a corporation who after executing to one of their number a mortgage to secure its creditors, organize another corporation to take over the prop- erty under a mortgage foreclosure, cannot, after giving minority stockholders to under- stand that their stock will be protected, and permitting them to participate in meetings of the new corporation, refuse to recognize the stock. Sparrow v. E. Bement & Sons, 10: 725, 105 N. W. 881, 142 Mich. 441. ( Annotated) 258. A minority stockholder of a corpora- tion which has secured an injunction against organized labor to prevent unlaw- ful boycott out of which is alleged to have arisen a claim for damages under the Sher- man anti-trust act cannot prevent the di- rectors from abandoning the claim, and agreeing with the labor organizations to maintain union hours and wages in con- sideration of the withdrawal of their hos- Digest 1-52 L.R.A.(N.S.) tility to it. Post v. Buck's Stove & Range Co. 43: 498, 200 Fed. 918, 214 C. C. A. 918. (Annotated) 259. The holders of a majority if the stock of a corporation cannot compel dis- senting minority holders of full -paid stock to make additional contributions to the cor- poration for corporate purposes, when, by the terms of the original agreement, such contributions cannot be exacted. Garey v. St. Joe Min. Co. 12: 554, 91 Pac. 369, 32 Utah, 497. 260. A sale of the corporate property to a single holder of the majority of the stock, by authorization of the board of di- rectors at the annual meeting of the stock- holders, is voidable at the election of the minority of the stockholders, where the pur- chase price, although amounting to the fair value of the property, was less than could have been obtained for it from a stock- holder. Wheeler v. Abilene Nat. Bank Bldg. Co. 16: 892, 159 Fed. 391, 89 C. C. A. 477. (Annotated) 261. The court, on setting aside a void- able sale of the property of a corporation, made in pursuance of the authority of the board of directors to the holder of a ma- jority of the stock, for a smaller amount than could have been obtained from the complainant stockholder, may condition its decree of avoidance by a requirement that the complainant shall bid and deposit an amount equal to the amount paid at the sale and the expenses of a master's sale, to be applied in payment for the property in case no one bids more, or in case the de- positor is the highest bidder. Wheeler v. Abilene Nat. Bank Bldg. Co. 16: 892, 159 Fed. 391, 89 C. C. A.- 477. 262. The act of a majority of the direct- ors of a corporation in voting reasonable salaries to certain of their number for services performed for the corporation, while roidable, may be ratified by a meet- ing of the stockholders, against the pro- test of minority members, although the di- rectors, including those whose salary is in- volved, as stockholders, vote for the ratifi- cation. Russell v. Henry C. Patterson Co. 36: 199, 81 Atl. 136, 232 Pa. 113. (Annotated) Fiduciary relation. 263. The holder of a majority of the stock of a corporation stands in a fiduciary relation to the holders of the minority of the stock, because he has a community of interest with them in the same property, and because they can act and contract in relation to the corporate property only through him. Wheeler v. Abilene Nat. Bank Bldg. Co. 16: 892, 159 Fed. 391, 89 C. C. A. 477. 264. The power of a single holder of the majority of the stock of a corporation, to control and direct the action of the corpo- ration, devolves upon him the correlative duty to the holders of the minority of the stock to exercise good faith, care, and dili- gence to make the corporate property pro- duce the largest possible amount, to pro- tect the interest of the minority stockhold- 714 CORPORATIONS, V. e, 2. ers, and to secure and deliver to them their just proportion of the income and of the proceeds of the property. Wheeler v. Abi- lene Nat. Bank Bldg. Co. 16: 892, 159 Fed. 31) 1, 89 C. C. A. 477. On increase of stock. Damages to which stockholder whose por- tion of increase of stock is sold to stranger is entitled, see DAMAGES, 108. Relative rights of life tenants and remain- dermen as to stock right, see LIFE TEN- ANTS, 21-24. 265. A stockholder in a corporation has a right, upon the increase of stock to be sold for money, to subscribe for a proportion of the new stock at the price fixed for its is- suance, equal to that which his former hold- ings bear to the former issues, of which he cannot be deprived by the officers of the corporation and the majority stockholders. Stokes v. Continental Trust Co. 12: 969, 78 N. E. 1090, 186 N. Y. 285. (Annotated) 266. A stockholder in a corporation who is entitled to a share of an increase of stock saves his rights by protesting against the sale of it to another, without making a de- mand for his stock and tender of the price. Stokes v. Continental Trust Co. 12: 969, 78 N. E. 1090, 186 N. Y. 285. 267. Before the portion of an increase of corporate stock to which an existing stock- holder is entitled can be sold to a stranger against the stockholder's protest, even when the stranger has offered to pay for it above par, the directors must offer it to the stock- holder at the price bid. Stokes v. Conti- nental Trust Co. 12: 969, 78 N. E. 1090, 186 N. Y. 285. 268. A corporation which, against the pro- test of a stockholder, sells the portion of an increase of stock to which he is entitled to a stranger, is liable to him for the damages which he actually sustains. Stokes v. Con- tinental Trust Co. 12: 969, 78 N. E. 1090, 186 N. Y. 285. 2. Actions by. (See also same heading in Digest L.R.A. 1-10.) Action to dissolve corporation, see infra, 395, 396, 398. Restoration of benefits received as condi- tion precedent to action by stockholders, see ACTION OR SUIT, 26. Nature of action by stockholder, see ACTION OB SUIT, 71. Multifariousness of bill of stockholder, see ACTION OB SUIT, 125. Action by stockholder in bank, see BANKS, 16. By member of social club, see CLUBS, 7-9. Jurisdiction of action, see COUBTS, 46, 250. Estoppel to bring action, see ESTOPPEL, 258. Running of limitations ajrainst stockholder's right of action, see LIMITATION OF AC- TIONS, 150, 241. Necessary parties to suit by stockholder, see PABTIES, 177, 179. Pleading in action by stockholder, see PLEAD- ING, 173, 198, 411. Digest 1-52 L.R.A. (N.S.) Petition for appointment of receiver, see RECEIVERS, 13-15. See also supra, 246. 269. A stockholder who has not consented to. or acquiesced in. a threatened ultra ri'rr.s act of the corporation, may enjoin it. Vic- tor v. Louise Cotton Mills, 16: 1020, 61 S. E. 648, 148 N. C. 107. 270. Equity will not interfere to prevent the confirmation of a sale by the majority stockholders of the property of a business corporation, even though it is not insolvent, if, acting without fraud and upon reason- able ground, they conclude that the exigen- cies of the business and the best interests of all concerned require it, at least if the protesting members will not be likely to suffer any injury for which there is no other adequate remedy. Beidenkopf v. Des Moines L. Ins. Co. 46: 290, 142 N. W. 434, 160 Iowa, 629. 271. A dissenting minority stockholder in a corporation cannot take advantage of the fact that the majority purchased stock of other holders for less than its value before selling all the assets of the company, un- less they can establish a general scheme to defraud of which the sale attacked is mere- ly a part. Beidenkopf v. Des Moines L. Ins. Co. 46: 290, 142 N. W. 434, 160 Iowa, 629. 272. Any member of a mutual insurance company, suing for himself and others similarly interested, may invoke equity ju- risdiction to redress or prevent any wrong injuriously affecting the property rights of the corporation, when its officers will not move appropriately to that en n name heading in Digest L.R.A. 1-10.) 383. Preferred stock of a corporation may be made nonvoting under a statute giving the incorporators power to issue such stock and fix the preferences, priorities, classi- fication, and character thereof, although the Constitution and statutes provide that in all corporate elections each shareholder shall have a right to cast as many votes in the aggregate as shall equal the number of shares held by him. State ex rel. Frank v. Swanger, 2: 121, 89 S. W. 872, 190 Mo. 561. (Annotated) 384. Statutory and charter authority to deprive holders of preferred stock of the right to vote in the election of officers and Digest 1-52 L.R.A.(N.S.) directors of a corporation is invalid where the state Constitution provides that "each shareholder shall be entitled to one vote for each share of stock he may hold." Brooks v. State ex rel. Richards, 51: 1126, 79 Atl. 790, 1 Boyce (Del.) 1. VI. Dissolution; forfeiture; insolvency, a. In general. (See also same heading in Digest L.R.A. 1-10.) Rights of preferred stockholders on dissolu- tion of solvent corporation, see supra, 255. Fraud of officers in permitting dissolution of corporation, see supra, 270. Dissolution of benevolent society, see BENEV- OLENT SOCIETIES, V. Constitutionality of statute providing 1'or, see CONSTITUTIONAL LAW, 207. Reversion to grantor on dissolution of charitable corporation, see DEEDS, 92. Estoppel to ask for dissolution, see ESTOP- PEL, 150. Injunction against dissolution, see INJUNC- TION, 241. Retaining jurisdiction on refusal of injunc- tion against dissolution, see EQUITY, 119. Of insurance company, see INSURANCE, I. c. Laches in seeking injunction against sale, see LIMITATION of ACTIONS, 71. Dissolution to avoid competition with busi- ness rival, see MONOPOLY AND COMBINA- TIONS, 18. Dissolution of lessee corporation, effect on liability of surety on lease, see PKI.N CIPAL AND SURETY, 19. Forfeiture of street railway franchise, see STREET RAILWAYS, 7-10. Forfeiture of franchise of public water sup- ply company, see WATERS, 376. 385. The courts will not, save in rare and exceptional instances, interfere at the suit of minority stockholders of a corporation with proceedings of a majority to dissolve it as authorized by statute. White v. Kin- caid, 23: 1177, 63 S. E. 109, 149 N. C. 415. (Annotated) 386. The sale of all the assets of the cor- poration is not necessarily a dissolution within the meaning of a statute requiring unanimous consent of all the stockholders to a dissolution. Beidenkopf v. Des Moines L. Ins. Co. 46: 290, 142 N. W. 434, 160 Iowa, 629. b. Grounds of forfeiture. (See also same heading in Digest L.R.A. 1-10.) Forfeiture of charter of social club where fraudulently obtained to avoid Sunday law, see CI.DBS, 5. 38-7. A corporation cannot question the constitutionality of a statute morely be- CORPORATIONS, VI. c e. cause it provides a forfeiture of its fran- chises for certain acts constituting a mis- use thereof, while not providing such pen- alty for other acts of misuse. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. 388. Where a corporation, delinquent in the payment of an occupation fee, as pro- vided in 4260, Cobbey's Anno. Stat. (Neb.) 1911, applies to the secretary of state to be reinstated, as provided in 4261, and in good faith pays to such secretary the full amount of fee and penalty demanded by him, the fact that the secretary may, through oversight or under a misconstruc- tion of the law, have demanded a less sum than is required, will not, in the absence of a demand upon the corporation to pay the required balance and a refusal or failure on its part to make the payment, sustain a judgment of ouster against such corporation. State ex rel. Hartigan v. Sperry & Hutchinson Co. 49: 1123, 144 N. W. 795, 94 Neb. 785. c. Effect on property rights. (See also same heading in Digest L.R.A. 1-10.) 389. The supposed common-law rule that upon the termination of a corporation, its debts become extinguished, its realty re- verts to the grantors, and its personal prop erty goes to the sovereign, if it ever existed in fact, is wholly obsolete, except as to purely public corporations. Huber v. Mar- tin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 390. A lease to a corporation for a term of years determines if the corporation is dissolved without having assigned the lease. On dissolution of the corporation the lease does not vest in the Crown as bona vacant ia, but the reversion is accelerated and the land reverts to the lessor. Hastings Corp. v. Letton, 3 B. R. C. 617 [1908] 1 K. B. 378. Also Reported in 77 L. J. rt. B. N. S. 149, 97 L. T. N. S. 582, 20 Times L. R. 456, 15 Manson, 58. (Annotated) d. Effect on causes of action. (See also same heading in Digest L.K.A. 1-10.) By corporation. 391. Insolvency of a corporation and the appointment of a receiver to manage its business and wind up its affairs do not of themselves work a dissolution of the cor- poration, so as to prevent the corporation enforcing a judgment of foreclosure which it has obtained on a mortgage held by it, and legally purchasing the property at the judicial sale. Leonard v. Hartzler, 50: 383, 133 Pac. 570, 90 Kan. 386. (Annotated) Ajrainst corporation. 392. A writ of error sued out against a corporation which was dissolved by expira- tion of its charter pending the trial must be dismissed, as there is no party to be made defendant therein. Venable Bros. T. Digest 1-52 L.R.A.(N.S-) \ Southern Granite Co. 32: 446, 69 S. E. 822, 135 Ga. 508. 393. The attempt by stockholders to de- fend a suit against a corporation after its I dissolution by expiration of the charter will I not authorize a judgment against it as a corporation either de facto or by estoppel. Venable Bros. v. Southern Granite Co. 32: 446, 69 S. E. 822, 135 Ga. 508. (Annotated) e. Procedure; power of equity as to. (See also same heading in Digest L.K.A. 1-10.) 394. The law that corporate existence can- not be inquired into, except, by judicial proceedings in the name of the state, does not apply to a pretended, but not even a de facto, corporation. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. By whom petition made or proceed- ing brought. 395. The majority stockholders may, act- ing in good faith, dissolve a private busi- ness corporation against the protests of the minority, where no business has been done, or obligations incurred. Chilhowee Woolen Mills v. State ex rel. Majority Stockhold- ers, 2: 493, 89 S. W. 741, 115 Tenn. 266. (Annotated) 396. Majority stockholders of a corpo- ration may, under the provisions of a stat- ute that an action lies for dissolution of a corporation if it does acts which amount to a forfeiture of its rights, proceed for a judicial declaration of forfeiture of charter, where they have voted to dissolve the corpo- ration. Chilhowee Woolen Mills v. State ex rel. Majority Stockholders, 2: 493, 89 S. W. 741, 115 Tenn. 266. 397. The bondholders of a corporation are the beneficial owners of a decree for a de- ficiency, obtained against the corporation by a trustee in proceedings to foreclose a mort- gage given by the corporation to secure the payment of bonds issued by it, and, as such, are creditors of the corporation within the meaning of a statute providing that proceedings for the winding up of an insolv- ent corporation can be instituted only by the stockholders or the creditors thereof, any of whom are entitled to institute such proceeding for the purpose of having the corporation decreed to be insolvent and Tor the appointment of a receiver. O'Grady v. United States Independent Teleph. Co. (N. J. Krr. & App.) 21 : 732, 71 Atl. 1040, 7.') N. J. Eq. 301. 398. The holder of a "voting trust" cer- tificate, being the beneficial owner of the stock represented by it in the hands of the "voting trustees," is a stockholder within the meaning of a statute providing that proceedings for the winding up of an in- solvent corporation can be instituted only by the stockholders or the creditors of the company, and he is entitled to institute such proceeding. O'Grady v. United States Inde- pendent Teleph. Co. (N. J. Err. & App.) 21 : 732, 71 Atl. 1040, 75 N. J. Eq. 301. (Annotated) 726 CORPORATIONS, VI. f, 1, 2. /. Insolvency; right and preference* of creditors. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Effect of, on right of officer to salary, see supra, 152. Rescission of subscription to stock after in- solvency of corporation, see supra, 208, 209. Liability of stockholders for misconduct of receivers, see supra, 301. Liability of stockholders receiving dividends which make corporation insolvent, see supra, 303, 304. Laches of stockholders in complaining of action of receiver in disposing of funds of corporation, see supra, 305. Action bv receiver to enforce stockholder's liability, see supra, 336, 349, 361-384. Insolvency of foreign corporation, see infra, VII. d. As to bankruptcy, see BANKRUPTCY. Insolvency of bank, see BANKS, IV. b, 2; V. Action by stockholder of bank in hands of receiver, see Banks, 16. Insolvency of loan associations, see BUILD- ING AND LOAN ASSOCIATIONS, VII. Sale of personal property within state by insolvent foreign corporation, see CON- FLICT OF LAWS, 114. Exclusiveness of jurisdiction first acquired, see COURTS, 267. Of insurance company, see INSURANCE, I. c. Marshaling assets of insolvent corporation, see MARSHALING ASSETS, 1. Payment to corporation without notice of appointment of receiver, see PAYMENT, 21. Sufficiency of pleading on intervention for appointment of receiver, see PLEADING, 199, 409, 410. Appointment of receiver upon petition of minority stockholder, see RECEIVERS, 13, 14. Receivers for generally, see RECEIVERS. Subrogation of general creditors of, to rights of corporation, see SUBROGATION, 3. Conveyance of assets and good will of in- solvent corporation as conferring right to use tradename, see TRADENAME, 4. Venue of proceedings in insolvency, see VENUE, 11. Service of process on station agent of rail- road in hands of receiver, see WRIT AND PROCESS, 44. See also supra, 391, 397, 398. 399. The title of an insolvent corporation to its property continues until there is either an adjudication of insolvency or the appointment of a receiver or trustee, in view of N. J. Pub. Laws 1896, pp. 298. 299, $ 65, 68, providing that the officers of an insolvent corporation may be restrained from exercising any of its privileges or franchises, or from collecting or transfer- Digest 1-52 L.R.A. (N.S.) ring its assets except to a receiver appoint- ed by the court, in whom, upon such ap- pointment, all its rights and offoets ^liall 1 forthwith vest. Squire v. Princeton Light- ing Co. (N. J. Err. & App.) 15: 657, 68 Atl. 176, 72 N. J. Eq. 883. 400. One who receives assets of a corpora- tion upon its liquidation ia bound to re- spond to its creditors to the extent of the assets so received, in a suit by them to- reacli the assets or their value.* Williams- v. Commercial Nat. Bank, 11:857, 90 Pac. 1012, 49 Or 492. 401. The assets of a corporation are a trust fund, the equitable lien of the credi- tor upon which cannot be destroyed by an agreement by one purchasing them from the corporation to pay its debts. Da rev v. Brooklyn & N. Y. Ferry Co. 26: 267, 80 N. E. 461, 196 N. Y. 99. 402. An insolvent corporation has no power as against the rights of its creditors to purchase its own stock at a sale thereof for nonpayment of a balance due on the subscription, and thereby relieve the sub- scriber from further liability, since un- paid subscriptions are a trust fund for the benefit of creditors, of the benefit of which it cannot deprive them. Tiger v. Rogers Cotton Cleaner & Gin Co. 30: 694, 130 S. \V. 585, 96 Ark. 1. (Annotated). 2. Preferences. (See also same heading in Digest L.R.A 1-10.) Illegal preference by bankrupt corporation, see BANKRUPTCY, 78, 79. As to funds in insolvent bank, see BANKS, V. Exclusiveness of remedy provided by stat- ute making assets trust fund for benefit of creditors and stockholders, see ELEC- TION OF REMEDIES, 12. Preference of state in proceeds of insurance company, see INSURANCE, 23. Of claims against receivers, see RECEIVERS, III. Following trust property, generally, see TRUSTS, V. 403. An insolvent corporation cannot pre- fer creditors; and therefore a mortgage by one to whom its property had been trans- ferred for the benefit of creditors, with the understanding that preference should be given to certain ones, to secure the claim of a bank, is invalid whether the bank knew the character of the trar f er to the trustee, or the exact condition of the corporation when the mortgage was given, or not. Furber v. Williams-Flower Co. 8: 1259, 111 N. W. 548, 21 S. D. 228. 404. The receiver of an insolvent corpora- tion cannot, without a decree of dissolu- tion, maintain a bill to set aside a set-off by a bank of a fund deposited by the cor- poration with it, upon its unmatured note to the bank, as an unlawful preference to an indorser of 'flie note. Hayden v. Citi- zens Nat. Bank 46: 1059, 87 Atl. 672. 12* Md. 163. CORPORATIONS, VII. a. 405. The claims of creditors of a corpo- ration who undertake to conduct its busi- ness so as to enable it to pay its debts will be postponed to the debts incurred under their management, if the corporation sub- sequently passes into the hands of a re- ceiver and the assets are insufficient to satisfy all creditors, although they express- ly stipulated against personal liability for the acts of their manager. Davis v. Iowa Fuel Co. 24: 1166, 122 N. W. 815, 144 Iowa, 138. (Annotated) 406. One of several creditors of a cor- poration attempting to manage it to enable it to pay its debts, who lends money to it in furtherance of the enterprise before the execution of the agreement for such opera- tion, in which he subsequently joins, must be treated as an existing creditor with re- spect to such loan, so that it will be post- poned to debts incurred under their man- agement. Davis v. Iowa Fuel Co. 24: 1166, 122 N. W. 815, 144 Iowa, 138. Of stockholders. 407. A holder of preferred stock in a corporation, whose certificate provides that no lien shall be placed upon the corporate property without his consent, is not entitled to priority over corporate creditors in the distribution of its assets. Fryer v. Wiede- mann, 39: ion, 146 S. W. 752, 148 Ky. 379. 408. A holder of preferred stock in a corporation cannot enforce its redemption at par, as provided in his contract, if the assets of the company are not sufficient to pay its debts. Rider v. John G. Delker & Sons Co. 39: 1007, 140 S. W. 1011, 145 Ky. 634. (Annotated) 409. The claims of directors and holders of common stock of a corporation for money advanced to keep it a going concern will not be postponed in the winding up of the corpo- ration to the retirement of preferred stock, because at the time they assumed the management, the assets were sufficient to pay preferred stockholders in full, had the concern been wound up at that time. Frver v. Wiedemann, 39: ion, 146 S. W. 752, 148 Ky. 379. 410. Directors and holders of common stock in a corporation, although occupying a position of trust towards preferred stock- holders, do not, by lending money to the corporation to enable it to carry on its business, even as to such an amount as to render the preferred stock worthless, post- pone their claims to repayment to the re- tirement of the preferred stock, which was issued under an agreement that no lien should be placed on the property of the corporation without consent of the pre- ferred stockholders. Fryer v. Wiedemann, 39: ion, 146 S. W. 752, 148 Ky. 379. VII. Foreign corporations, a. In general. (See also same heading in Digest L.R.A. 1-10.) Attachment against, see ATTACHMENTS, 12, 13, 40. Digest 1-52 L.R.A.(N.S.) Attachment of bonds of nonresident corpo- ration, see ATTACHMENT, 24, 31. Foreign loan association, see BUILDING AND LOAN ASSOCIATIONS, VIII. License tax on sales by agents, see COM- MERCE, IV. Place of contract on sale of stock by foreign corporation, see CONFLICT OF LAWS, 5. Law of state where organized, denying cor- poration benefit of usury laws; effect in other state, see CONFLICT OF LAWS, 39. What law governs in action by creditors to recover unpaid stock subscriptions, see CONFLICT OF LAWS, 89. Applicability to, of statute for weekly pay- ment of employees, see CONSTITUTIONAL LAW, 313. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 2, c. Original jurisdiction of appellate court as to, see COURTS, 232. Jurisdiction to enforce liability of members, see COURTS, 23. Right to exercise power of eminent domain, see EMINENT DOMAIN, 11-15. Presumption against, from silence, see EVI- DENCE, 310. Evidence in prosecution for violation of state statute by, see EVIDENCE, 1892. Sufficiency of evidence to show that one acts as agent of corporation, see EVIDENCE, 2250, 2251. Garnishment of foreign corporation, see GARNISHMENT, 7, 8, 30, 41, 42. Garnishment of freight due nonresident car- rier, see GARNISHMENT, 20. Situs of debt due foreign corporation for purpose of garnishment, see GARNISH- MENT, 41. Injunction against, see INJUNCTION, 240. Right to enjoin domestic company from using tradename, see INJUNCTION, 390. As to foreign insurance companies, see IN- SURANCE, I. b. Who bound by judgment against, see JUDG- MENT, 210. Levy on registered bonds of, belonging to nonresident, see LEVY AND SEIZURE, 9. Mandamus to, see MANDAMUS, 65, 69. Illegal combinations by, see MONOPOLY AND COMBINATIONS. Action against sureties on void contract by foreign corporation, see PRINCIPAL AND SURETY, 5. Effect of sale by domestic railroad company to foreign corporation, see RAILROADS, 7. Receiver for foreign insurance company, see RECEIVERS, 16. Sufficiency of title of statute as to incorpo- ration within state, see STATUTES, 94. Construction of statute as to business of, see STATUTES, 225. Taxation of generally, see TAXES, 78-80, 131, 132. Duty to list property for taxation, see TAXES, 166. Where taxable, see TAXES, II. Taxation of shares of stock in, see TAXES, 28, 29, 134. Sale of property for taxes, see TAXES, 207. 728 CORPORATIONS, VII. b. Duty of court in possession of fund of in- solvent foreign corporation to pay taxes due by corporation, see TAXES, 258. Estoppel to require second payment of tax paid to wrong officer, see TAXES, 260. Tax on transfer of stock of foreign corpo- ration, see TAXES, 368. 411. A constitutional provision prohibit- ing foreign corporations from exercising within the state greater privileges than those possessed by similar domestic ones does not affirmatively confer upon them the power of domestic corporations. Spratt v. Helena Power Transmission Co. 8: 567, 88 Pac. 773, 35 Mont. 108. 412. That a railroad company is the crea- ture of another state, and is engaged in interstate commerce, does not make inap- plicable to it a statute of a state in which it is doing business forbidding such compa- nies to make contracts with their employees for the establishment of a relief or indem- nity plan which shall relieve them from a portion of the liability imposed upon them by law for injuries to employees. Mc- Guire v. Chicago, B. & Q. R. Co. 33: 706, 108 X. W. 902, 131 Iowa, 340. Property rights. 413. One seeking damages for personal in- juries from a domestic railroad company, which denies liability on the ground that it had conveyed its property to a foreign cor- poration, may question the right of the lat- ter to take the title, for the purpose of showing that defendant had not relieved itself from responsibility for the operation of the road. Plummer v. Chesapeake & O. R. Co. 33: 362, 136 S. W. 162, 143 Ky. 102. ft. Doing business within state. (See also same heading in Digest L.R.A. 1-10.) Regulation of foreign insurance company, see INSURANCE, I. b. 414. The regulation of foreign corpora- tions under Kan. Laws 1898, chap. 10, and Kan. Laws 1901, chap. 125 (Kan. Gen. Stat. 1901, 1259 et seq.), devolves upon the state, and a private individual cannot interfere, except in the single instance of the failure of the corporation to file its an- nual statement, and then only to the extent of abating a suit against him until such statement shall have been filed. State v. American Book Co. i: 1041, 76 Pac. 411, 69 Kan. 1. "What constitutes doing business in state. What constitutes doing business within state for jurisdictional purposes, see COURTS, 44. By foreign insurance company, see INSUR- ANCE, 18, 19. What is carrying on business within state to sustain service of process, see WRIT AND PROCESS. II. b. See also infra, 437. Digest 1-52 L.R.A. (N.S.) 415. The negotiations of a foreign cor- poration with the state school text-book commission, resulting in a contract and bond to supply the public schools with text-books, does not constitute the doing of business within the state by such cor- poration within the meaning of Kan. Laws 1898, chap. 10, and Kan. Laws 1901, chap. 125 (Kan. Gen. Stat. 1901, 1259 et seq.). State v. American Book Co. i: 1041, 76 Pac. 411, 69 Kan. 1. 416. A foreign railroad company having no transportation line within a state is not doing business there, within the meaning of a statute providing for service of process on foreign corporations doing business within the state by serving its agent, by maintain- ing within the state an agency to solicit shippers to direct the local carrier, to whom property is delivered for transportation, to bill it over the line of such foreign corpora- tion. Berger v. Pennsylvania R. Co. 9: 1214, 65 Atl. 261, 27 R. I. 583. (Annotated) 417. Taking assignments of valid claims against residents of a state, and bringing actions thereon is not doing business with in the state by a corporation not engaged in the business of such transactions, or in a business connected with the claims, with- in the meaning of constitutional and stat- utory provisions requiring foreign corpora- tions to do certain things before doing busi- ness within the state. A. Booth & Co. v. Weigand, 10: 693, 83 Pac. 734, 30 Utah, 135. (Annotated) 418. A sale of goods in store within a state pursuant to a commission contract, by a foreign corporation to parties within such state, is not within a statute requiring for- eign corporations doing business within the state to comply with certain conditions, since such sale constitutes interstate, as contradistinguished from intrastate, com- merce. Sucker State Drill Co. v. Wirtz, 18: 134, 115 N. W. 844, 17 N. D. 313. (Annotated) 419. A corporation carries on business in a state, within the meaning of a statute prescribing the conditions upon which for- eign corporations may transact business therein, when, for a valuable consideration, it makes a fifteen-year contract with a per- son to act as its agent to establish a "food" business in certain counties in the state, to look after a line of customers already estab- lished, to sell to wholesale dealers and sub- agents, and to make county contracts. Ney- ens v. Worthington, 18: 142, 114 N. W. 404, 150 Mich. 580. (Annotated) .420. A foreign corporation whose travel- ing salesmen solicit and receive orders in another state for intoxicating liquors which orders, when accepted by the cor- poration, are filled by shipping the liquors f. o. b. to the purchasers, is engaged in business in such other state, and is sub- ject to the statutory provisions thereof relating to foreign corporations doing busi- ness within the state. State ex rel. Jack- son v. Win. J. Lemp Brew. Co. 29: 44, 102 Pac. 504, 79 Kan. 705. CORPORATIONS, VII. b. 729 421. A foreign corporation conducting a correspondence school, whose business in- volves the solicitation of students in Kan- sas by local agents, who are also to collect and forward to the home office the tuition fees, and the systematic intercourse by cor- respondence between the company and its scholars and agents, wherever situated, and the transportation of the needful books, ap- paratus, and papers, is doing business with- in the state, within the meaning of Kan. Gen. Stat. 1901, 1283, which prohibits the maintaining of an action in the Kansas courts by any corporation doing business in the state which has not filed with the secretary of state the statement of its con- dition, provided for by that section. Inter- national Text-Book Co. v. Pigg, 27: 493, 30 Sup. Ct. Rep. 481, 217 U. S. 91, 54 L. ed. 678. 422. A sale within a state, by an agent of a foreign corporation who maintains an office there for securing orders to be sent to the domicil of the corporation to be filled, of a single cargo of the company's prod uct, which has been rejected by the orig- inal purchaser, is not within the meaning of a statute forbidding an action on its con- tract by a foreign corporation doing busi- ness within the state without procuring the proper certificate therefor. Penn Collieries Co. v. McKeever, 2: 127, 75 N. E. 035, 183 N. Y. 98. (Annotated) 423. The loss by a foreign corporation of its right to do business in a state does not deprive it of the right to defend an action arising out of a valid contract, com- menced while it was rightfully doing busi- ness therein, so as to render a judgment taken after such loss of right to do busi- ness void, as the prosecution and defense of actions respecting valid contracts do not constitute doing business within the mean- ing of statutes restricting the rights of foreign corporations. Billmyer Lumber Co. v. Merchants' Coal Co. 26: 1101, 66 S. E. 1073, 66 W. Va. 696. / Right to do business; conditions as to. Refusal of license to foreign insurance com- pany, see APPEAL AND ERROR, 697. As to foreign loan associations, see BUILD- ING AND LOAN ASSOCIATIONS, 31, 32. Regulations as to, as interference with com- merce, see COMMERCE, 45. Right of foreign corporation to lien for work where it has not complied with local statutes as to doing business, see COMMERCE, 98. Provisions as to doing business as inter- ference with interstate commerce, see COMMERCE, 99. Conditions impairing obligation of con- tract, see CONSTITUTIONAL LAW, 787. Embe/7,ling money from corporation not au- thorized to do business in state, see EMBEZZLEMENT, 3. Sufficiency of evidence to support finding that corporation was unlawfully en- gaged in business within state, see EVI- DENCE, 2347. Foreign insurance company, see INSURANCE, 14-17. Digest 1-52 L.R.A.(N.S.) Who bound by judgment against corpora- tion after it has been deprived of its right to do business, see JUDGMENT, 210. Partial invalidity of statute as to condi- tions of doing business, see STATUTES, 59. See also supra, 423; infra, 445-451. 424. A corporate charter obtained in one state cannot empower the corporation to carry on business in another state in viola- tion of its laws. Mandeville v. Court- right, 6: 1003, 142 Fed. 97, 73 C. C. A. 321. 425. A statute prescribing the conditions upon which a foreign corporation may do business within a state does not apply to foreign corporations engaged solely in trans- acting an interstate business, as it will be presumed that in the enactment of such statute the legislature did not intend to in- terfere in any manner with the exclusive power to regulate or restrict interstate com- merce, vested in Congress. Sucker State Drill Co. v. Wirtz, 18: 134, 115 N. W. 844, 17 N. D. 313. 426. A state has power to require foreign railroad companies to become domesticated as a condition to acquiring and operating railroads within the state. Plummer v. Chesapeake & O. R. Co. 33: 362, 136 S. W. 162, 143 Ky. 102. 427. A foreign railroad company wishing to purchase a railroad line within the state must comply with the statute applicable to such corporations which wish to purchase and hold lands for depot, tracks, and other purposes, and compliance with the statute applicable to those wishing to possess, con- trol, maintain, or operate a railway within the state is not sufficient. Plummer v. Chesapeake & O. R. Co. 33: 362, 136 S. W. 162, 143 Ky. 102. 428. A constitutional provision that no foreign railroad company shall have power to acquire a right of way or real estate for a depot or other uses, until it shall have become a domestic corporation, applies to the purchase of existing lines as well as to the construction of new ones. Plummer v. Chesapeake & O. R. Co. 33: 362, 136 S. W. 162, 143 Ky. 102. 429. An amendment to a statute pre- scribing certain conditions upon which for- eign corporations may do business in the state, and declaring that upon compliance with such conditions the corporation shall be to all intents and purposes a domestic corporation, which merely changes the conditions for doing business, and subjects such corporations to the jurisdiction of the local courts, does not prevent compli- ance with the statute from effecting the domestication of the corporation, by omit- ting the provision therefor. Stonega Coke & Coal Co. v. Southern Steel Co. 31 : 278, 131 S. W. 988, 123 Tenn. 428. Contracts of unauthorized company. Change of decision as to validity of con- tracts of unauthorized company, see CONSTITUTIONAL LAW, 803; COURTS, 298, 299. rso CORPORATIONS, VII. b. Cancelation of contract with foreign corpo- ration not complying with laws as to doing business, see EQUITY, 135. Estoppel of one contracting with corpora- tion to plead failure to comply with laws as to doing business, see ESTOPPEL, 73. Estoppel to set up mortgage as against cor- poration purchasing without authority, see ESTOPPEL, 180. By foreign insurance company, see INSUR- ANCE, 20, 21. See also supra, 422; infra, 445, 451; CON- TRACTS, 579. 430. Contracts made with a foreign cor- poration before it has obtained permission, under the provisions of Kan. Laws 1898, chap. 10, and Kan. Laws 1901, chap. 125 (Kan. Gen, Stat. 1901, 1259 et seq.), to do business in the state, are not, for that reason, invalid, or subject to cancelation at the suit of one of the contracting par- ties. State v. American Book Co. i: 1041, 76 Pac. 411, 69 Kan. 1. (Annotated) 431. A contract made by a foreign cor- poration which has not complied with the local law so as to be entitled to do busi- ness in the state, upon which the statute deprives it of the right to maintain an ac- tion, is not void so as to entitle the other contracting party to recover money paid up- on it on the theory that there was a fail- ure of consideration. Mahar v. Harring- ton Park Villa Sites, 38: 210, 97 N. E. 587, 204 N. Y. 231. (Annotated) 432. Express statutory language is neces- sary to make void and unenforceable con- tracts concerning a subject-matter itself harmless and lawful, the consideration for which has been fully received and retained by a citizen of the state, by a foreign cor- poration which has failed to meet the stat- utory conditions upon which it is permitted to do business within the state. A. Booth ft Co. v. Weigand, 10: 693, 83 Pac. 734, 30 Utah. 135. 433. The right to make a contract and sue thereon is not included in a provision of a statute that a foreign corporation failing to comply with the requirements of the lo- cal law before attempting to do business within the state "shall not be entitled to the benefits of the laws of this state relat- ing to corporations." A. Booth & Co. v. Weigand. 10: 693, 83 Pac. 734, 30 Utah, 135. 434. Title to real estate taken by a for- eign corporation without complying with the provisions of the local statute necessary to entitle it to do business in the state is sub- ject to an unrecorded mortgage lien for un- paid purchase money in favor of a prior vendor, where the statute provides that every contract in relation to real estate made by a corporation under such circum- stances shall be wholly void. Hanna v. Kel- sey Realty Co. 33: 355, 129 N. W. 1080. 145 Wis. 276. (Annotated) 435. A foreign corporation which con- tracted to pave a street without complying with the statutory requirements necessary to enable it to do business in the stute cannot enforce the paving assessment, if Digest 1-52 L.R.A.(N.S.) the statute provides that it shall not be lawful for it to do business in the state until it has complied with the statute, although the only penalty provided by the statute is a fine. Fruin-Colnon Contract- ing Co. v. Chatterson, 40: 857, 143 S. W. 6, 146 Ky. 504. (Annotated) 436. The rule preventing one who con- tracts with a corporation from denying its corporate existence does not prevent a tax- payer from denying the right of a corpora- tion with which a municipality contracted for a street improvement, to enforce the assessment against his property, because of failure to comply with the statutory re- quirements necessary to permit it to do business in the state. Fruin-Colnon Con- tracting Co. v. Chatterson, 40: 857, 143 S. W. 6, 146 Ky. 504. 437. The contract of a foreign construc- tion company to perform work within the state, before it complies with the law re- quiring the registration of foreign corpora- tions, is made void by provisions of the act that "no corporation shall do business" until it has complied with the provisions of the act, that "it shall not be lawful for any such corporation to do any business" until it shall have complied with the act, and making a violation of such provisions a misdemeanor, although the statute is com- plied with before any material portion of the work is done under the contract. Pitts- burgh Constr. Co. v. West Side Belt R. Co. ii : 1145, 154 Fed. 929, 83 C. C. A. 501. 438. A contract by a foreign corporation appointing an agent to look after its busi- ness within the state is not an agreement re- lating to interstate commerce. Neyens v. Worthington, 18: 142, 114 N. W. 404, 150 Mich. 580. 439. Compliance with the terms of the statute governing the rights of foreign cor- porations Ithin the sti.te after entering into, but before commencing, the perform- ance of a contract does not entitle the cor- poration to enforce it, where the statute provides that contracts by corporations which have not complied with the require- ments of the statute "shall be wholly void on its behalf." Allen v. Milwaukee, 5: 680, 106 N. W. 1099, 128 Wis. 678. 440. A contract entered into by a foreign corporation within the state before comply- ing with the statute forbidding it to trans- act business in the state without establish- ing a local office, an agent to receive serv- ice of process, and paying taxes, is void; and subsequent compliance with the terms of the statute will not enable the corpora- tion to maintain an action on the contract, although the statute provides a penalty for failure to comply with it, and declares that no corporation failing to do so "can main- tain any suit or action" in any of the courts of the state. Tri-State Amusement Co. v. Forest Park Highlands Amusement Co. 4: 688, 90 S. W. 1020, 192 Mo. 404. ( Annotated ) 441. It is a good defense to an action brought by a foreign corporation upon a CORPORATIONS, VII. c. 731 contract made in the prosecution of its business within the state, that it has not complied with a statute which expressly provides that it shall not be lawful for any corporation to carry on any business in the state until it shall have filed a statement giving the location of its place of business within the state, and the name of an agent thereat upon whom process may be served, and which further subjects to a penalty any corporation undertaking to transact any business in the state without complying with such requirements, although such stat- ute does not in terms declare that any con- tract made by a corporation before com- plying with the statute shall be void or not enforceable. Oliver Co. v. Louisville Realty Asso. 51: 293, 161 S. W. 570, 156 Ky. 628. 442. The obligation of a corporation to persons who subscribe to its stock affects its personal liability, within the meaning f a statute invalidating contracts affecting such liability made by any foreign cor- poration which has not complied with the local laws so as to be entitled to do busi- ness within the state, and a foreign cor- poration which has not complied with the laws cannot therefore enforce, in the courts of the state where the statute was enacted, contracts of subscription to its capital stock made within such state. Southwest- ern Slate Co. v. Stephens, 29: 92, 120 N. W. 408, 139 Wis. 616. (Annotated) c. Actions &i/ or against. (See also same heading in Digest L.R.A. 1-10.) Jurisdiction of action, see COURTS, I. b, 3. Actions by. Conflict of laws as to, see CONFLICT OF LAWS, 84. Defense to action by, to recover collection made by agent, see CONTRACTS, 579. Injunction suit by, see INJUNCTION, 390. Effect of commencement of action by corpo- ration not entitled to bring action, to interrupt running of limitations, see Limitation of Actions, 283, 284. Time for filing plea of statute of limita- tions in suit by foreign corporation, see PLEADING, 133. Pleading in action by, see PLEADING, 412. Mode of raising objection to complaint by, see PLEADING, 461. See also supra, 421, 422, 440, 442. 443. A foreign corporation which at one time did business in the state of Kansas, but never complied with the requirements of Kan. Gen. Stat. 1901. 1283, with re- spect to foreign corporations, after it has ceased to do such business may maintain an action upon a note taken by it while it was so engaged. Boggs v. 0. S. Kelly Mfg. Co. 15: 461, 90 Pac. 765, 76 Kan. 9. 444. A foreign corporation which has en- gaged in mining within the state without complying with its laws, which compliance is a statutory prerequisite of the right to maintain an action in the state courts, can- not secure the right to maintain a suit in- Digcst 1-52 L.R.A.(N.S-) stituted to restrain interference with its mine by complying with the local law after its institution. Amalgamated Zinc & L. Co. v. Bay State Zinc Min. Co. 23: 492, 120 S. W. 31, 221 Mo. 7. (Annotated) 445. A foreign corporation which at- tempts to engage in mining within a state under an assignment of a lease made and to be executed there, without complying with the requirements of the statutes neces- sary to give it the right to do business there, by reason of which its contracts are void under the statute, cannot validate the assignment so as to maintain an action upon it by complying with the statute sev- eral years after it began to do business, and after it had brought an action t ) protect its rights under the lease. Amalgamated Zinc & L. Co. v. Bay State Z.inc Min. Co. 23: 492, 120 S. W. 31, 221 Mo. 7. 446. Compliance by a foreign corporation with the laws of the state after securing a contract and commencing an action to en- force it will not enable it to maintain the action, where the statute provides that no action shall be commenced or maintained in the state courts by such corporation on any contract made by it in the state, un- less it shall have fully complied with the provisions of the statute. American Copy- ing Co. v. Eureka Bazaar, 9: 1176, 108 N. W. 15, 20 S. D. 526. 447. Compliance* with the law, by a for- eign corporation after instituting an action, will remove the right to defend on the ground of noncompliance, under a statute providing that no action shall be main- tained, or recovery had, in any court by a foreign corporation so long as it fails to comply with the law. National Fertilizer Co. v. Fall River Five Cents Sav. Bank, 14: 561, 82 N. E. 671, 196 Mass. 458. (Annotated) 448. That a foreign corporation which has attempted to place children under its care in homes within the state has exceeded its charter authority, and that it has not com- plied with the piovisions of the local law so as to be entitled to do business within the state, will not prevent its applying for a writ of habeas corpus to recover the custody of the children in case they are wrongfully seized by strangers. New York Foundling Hospital v. Gatti, 7: 306, 79 Pac. 231, 9 Ariz. 105. (Annotated) 449. A foreign corporation which accepts as security from its debtor, who is a ware- houseman, a warehouse receipt covering property owned by the latter, actually con- tained in his warehouse, may maintain an action for the conversion of the property, although it has never complied with N. D. Rev. Code, 1905, 4695, 4697, prescrib- ing the conditions upon which foreign cor- porations may do business in the state. State use of Hart-Parr Co. v. Robb-Law- rence Co. 16: 227, 115 N. W. 846, 17 N. D. 257. 450. A transaction by which a foreign corporation agrees to furnish its product manufactured at its place of business in another state through a contract approved 73i CORPORATIONS, VII. d CORPSE, II. a. there, free on board cars at the point of consummation within the state, for use in a public building, is interstate commerce, not within the provisions of a local statute denying foreign corporations the right to enforce claims in the local courts without complying with its laws. United States Gypsum Co. v. Gleason, 17: 906, 116 N. W. 238, 135 Wis. 539. 451. A foreign corporation which, at the time it entered into a contract, had filed its designation of agent and principal place of business, as required by statute, and had filed with the secretary of state a copy of its articles of incorporation, duly certified to by the secretary of state where organized, such copy not having been certified to by the county recorder of any county, and -.10 certified copy of its articles of incorporation having been filed with any state recorder, as required by the statute, fails substantial- ly to comply with the statutory require- ments, and, as such requirements are manda- tory, requiring substantial compliance as a condition precedent to the doing of business within the state, cannot maintain an action to enforce the contract entered into while thus in default. Tarr v. Western Loan & Sav. Co. 21:707, 99 Pac. 1049, 15 Idaho, 741. Actions against. First raising on appeal failure to allege appointment of agenl to receive service, see APPEAL AND ERROR, 764. Attachment against, see ATTACHMENT, 12, 13, 40. Due process in service on, see CONSTITU- TIONAL LAW, 543. Jurisdiction of action against, see COURTS, 44, 46, 47. Garnishment of foreign corporation, see GARNISHMENT, 7, 8, 30, 41, 42. Injunction against, see INJUNCTION, 240. Sufficiency of service to sustain decree against, see JUDGMENT, 19. Who bound by judgment, see JUDGMENT, 210. Opening default judgment against corpora- tion, see JUDGMENT, 346. Removal of cause by nonresident corpora- tion, see REMOVAL OF CAUSES, 15. Repeal of statute exempting actions against, from operation of limitations, see STAT- UTES, 330. Venue of action against, see VENUE, 12. Service of process on corporation, see WRIT AND PROCESS, II. b. See also supra, 423. 452. A statute denying to a foreign cor- poration which has not complied with the local laws the right to maintain an action in the state courts does not prevent its de- fending an action brought against it there. American Deforest Wireless Teleg. Co. v. Superior Court, 17: 1117, 96 Pac. 15, 153 Cal. 533. (Annotated/ d. Winding up; insolvency. (See also same heading in Digest L.R.A. 1-10.) Receiver of, see RECEIVERS, VI. Digest 1-52 L.R.A.(N.S.) CORPSE. /. Municipal regulations, 1. II. Private rights, 217. a. In general, 2 *. b. C tint of 1 1/, disposition, and burial, 6-17. Carrier's duty toward, see CARRIERS, II. p. Failure to transmit telegram as to shipment of corpse, see DAMAGES, 237, 661; TELEGRAPHS, 47, 48. Damages in respect to, see DAMAGES, 237, 281, 630-632, 651, 661. Acquiring prescriptive rights in private grounds by burial in, see EASEMENTS, 32. Right of one complying with request of tes- tator to remove remains of relative, to recover expense thereof from estate, see EXECUTORS AND ADMINISTRATORS, 100. See also CEMETERIES. /. Municipal regulations. (See also same heading in Digest L.R.A. 1-10.) Constitutionality of regulations as to bur- ial, see CONSTITUTIONAL LAW, 352. Burial permit. See also HEALTH, 6. 1. The board of health may require a certificate from the attending physician as to the cause of death as a condition to the issuance of a burial permit. Meyers v. Duddenhauser, 5: 727, 90 S. W. 1049, 122 Ky. 866. (Annotated) //. Private rights, a. In general. (See also same heading in Digest L.R.A. 1-10.) Carrier's duty toward, see CARRIERS, II. p. Proof of wanton mutilation of dead body, see EVIDENCE, 2316. 2. A railroad company owes to the widow of one killed upon its tracks the duty of gathering up the body and its fragments found on its track and decently protecting them and preparing them for burial, negli- gent failure to perform which will give her a right of action. Kyles v. Southern R. Co. 16: 405, 61 S. E. 278, 147 N. C. 394. Autopsy. 3. An undertaker who has taken charge of a dead body may be held liable in dam- ages to the next of kin in case he, without authority, voluntarily assents to the mak- ing of an autopsy upon it. Meyers v. i Duddenhauser, 5: 727, 90 S. W. 1049, 122 Ky. 866. 4. Doctors are not liable for perform- ing an unauthorized autopsy on a dead body for the purpose of complying with a rule of the board of health and securing a bur- ial permit. Meyers v. Duddenhauser, 5: 727, 90 S. W. 1049/122 Ky. 866. (Annotated) CORPSE, II. b CORRUPT PRACTICES ACT. 733 6. Custody, disposition, and burial. Excluding father from burial service of child whose custody was awarded to mother, see CASE, 12. 6. One is not punishable for burying his child in a wood lot rather than in a burying ground. Seaton v. Com. 42: 211, 149" S. W. 871, 149 Ky. 498. 7. A father cannot be punished for us- ing a pasteboard box with a rough board covering for the burial of his child rather than a regularly made coffin. Seaton v. Com. 42: 211, 149 S. W. 871, 149 Ky. 498. (Annotated) 8. A man is under no legal liability for refusing to permit his relatives or those of his wife or other persons to be present at the burial of his child. Seaton v. Com. 42: 211, 149 S. W. 871, 149 Ky. 498. 9. There is no legal duty to have a re- ligious ceremony in connection with the burial of the dead. Seaton v. Com. 42: 211, 149 S. W. 871, 149 Ky. 498. Interference with, after burial. Desecration of burial ground, see CEMETER- IES, 6, 7. Injunction against removal of, from grave, see INJUNCTION, 114. Amendment of pleading in action for inter- ference with bodies in burial lot, see PLEADING, 104. 10. The death of the grantee of a lot in a public cemetery does not revoke the li- cense to bury therein, so as to destroy a right to damages for interference with the bodies on the lot. Anderson v. Acheson, 9: 217, 110 N. W. 335, 132 Iowa, 744. 11. That one brings ejectment for a bur- ial lot will not, although that form of ac- tion will not lie, prevent his recovering damages for wrongful interference with bod- ies interred therein, under a statute provid- ing that a person shall not be compelled to prove more than is necessary to entitle him to the relief asked for, or any lower degree included therein. Anderson v. Acheson, 9: 217, 110 N. W. 335, 132 Iowa, 744. 12. One who has removed the remains of a decedent to a new resting place cannot plead the fact that the remains ought not to be disturbed, as a defense to an action for the removal. Anderson v. Acheson, 9: ai7, 110 N. W. 335, 132 Iowa, 744. 13. The consent, by one child, to the re- moval of his parent's remains from a burial lot, is no defense to an action by other chil- dren for damages therefor. Anderson v. Acheson, 9: 217, 110 N. W. 335, 132 Iowa, 744. 14. Children who own a burial lot upon which the remains of their mother were in- terred beside her husband according to her expressed wish will not be required to ex- hume the remains, at the instance of rela- tives, of a child of the husband because its grave was used for the wife's body, where at the time of her burial the child's re- mains had entirely disappeared. Wilson v. Read, 16: 332, 68 Atl. 37, 74 N. H. 322. 15. One who has moved the earth in Digest 1-52 L.R.A.(N.S.) which a body was buried will not be re- quired to restore the remains of the body to their former resting place if no trace of them was discovered in the grave. Wil- son v. Read, 16: 332, 68 Atl. 37, 74 N. H. 322. (Annotated) 16. A court before which is pending an indictment for murder has authority, at the instance of accused, to order the disinter- ment of the body of deceased, and the per- formance thereon of an autopsy, even against the will of the latter's relatives, where it is necessary to determine the facts upon which the guilt or innocence of accused rests, and for the due administration of justice. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep. 90. (Annotated) 17. Where the question of the guilt of one accused of murder depends upon wheth- er the wound causing death was inflicted on the front or back of the body, and such fact can be determined by disinterment of the body and the holding of an autopsy thereon, and in no other way, the court should order such disinterment and au'- topsy. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep. 90. CORPUS DELICTI. In arson case, see ARSON, 1, 2. Evidence to prove, see EVIDENCE, 1982, 2349, 2378, 2379, 2387. CORRESPONDENCE SCHOOLS. Instruction by, as interstate commerce, see COMMERCE, 10, 99. What constitutes doing business within state by, see CORPORATIONS, 421. Contract by infant for course of instruc- tion, see INFANTS, 77. CORROBORATION. Of accomplice or associate in crime, see EVIDENCE, 2366-2371. Of witness, see EVIDENCE, 190-203. Of relatrix in bastardy proceeding, see EVI- DENCE, 2054. Of confession, see EVIDENCE, 2352, 2353. Necessity for, in action for divorce, see EVI- DENCE, 2207-2209. CORRUPT PRACTICES ACT. See ELECTIONS, III. d. 734 COSTS AND FEES, I. COSTS AND FEES. 7. Bight to recover; liability for, 1 18. II. Amount; practice; collection, 19 32. Appealability of decree for, see APPEAL AND ERROR, 36-39. Right to review order as to, see APPEAL AND ERROR, 339, 570-575. Right to reversal of decree for purpose of avoiding, see APPEAL AND ERROR, 1551. On appeal, see APPEAL AND ERROR, VIII. d. Recovery back of fees wrongfully exacted by officer, see ASSUMPSIT, 30. Power of attorney to bind client for cost of transcript on appeal, see ATTORNEYS, 43. What fund chargeable with costs of sale when encumbered property is sold in bankruptcy free of liens, see BANKRUPT- CY, 30. Who liable for costs of administration of bankrupt's estate, see BANKRUPTCY, 134. Priority of claim for cost of preserving bankrupt's estate, see BANKRUPTCY, 137. Right of clerk to fees, see CLERKS. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 6. Construction of lessee's agreement to pay cost of conveyance to him, see CON- TRACTS, 379. Validity of contract to pay costs of contest- ing will out of the estate, see CON- TRACTS, 438, 439. Recovery of, in action for contribution, see CONTRIBUTION AND INDEMNITY, 9. Liability of grantor for costs of defending title against action by stranger, see COVENANTS AND CONDITIONS, 25. Payment of, as satisfaction of criminal sen- tence, see CRIMINAL LAW, 271. Payment of, on discontinuing eminent do- main proceedings, see EMINENT DOMAIN, 150. On appeal in condemnation proceedings, see EMINENT DOMAIN, 177, 178. Injunction suit, see INJUNCTION, 97. Liability under policy indemnifying against liability for injuries, for costs of suit brought by person injured, see INSUR- ANCE, 911. When covered by employers' liability insur- ance, see INSURANCE, 921, 922. Finding on motion for security for, as res judicata, see JUDGMENT, 121. Counsel fees, in action to annul marriage, see MARRIAGE, 28-30, 44. Statute as to costs in action against city, see MUNICIPAL CORPORATIONS, 484. Motion to require security for costs as ex- tending time for answer, see PLEADING, 135. Liability of person procuring appointment of receiver for expenses of receivership, see RECEIVERS, 44. Right of receiver to reimbursement for costs incurred in successfully defending ac tion against him for fraud, see RE- CEIVERS, 46. Digest 1-52 L.R.A.(N.S.) Judgment for, by state court in case which has been removed, see REMOVAL or CAUSES, 27, 30. Right of sheriff to fee for selling property under execution, see SHERIFFS, 1. Permitting recovery of nominal damages in order to allow plaintiff costs, see TRIAL, 694. 7. Right to recover; liability for. (See also same heading in Digest L.R.A. 1-10.) 1. An action for the conversion of the proceeds of a note taken with knowledge that it had been procured by fraud sounds in tort, and not in contract, within the rule governing costs, where there was no orig- inal contract relation between plaintiff and defendant. German Xat. Bank v. Prince- ton State Bank, 6: 556, 107 N. W. 454, 128 Wis. 60. 2. One who has resisted performance of liis contract to convey real estate, on the theory that the contract gave him the alter- native right to pay liquidated damages, can- not avoid payment of costs, when compelled to perform, because the deed tendered as the consideration was not according to con- tract. Powell v. Dwyer, n: 978, 112 N \V 499, 149 Mich. 141. 3. A census taker is a proper and nec- ossary party to a suit to set aside or correct an enumeration alleged to have been fraud- ulently made by him, and is therefore chargeable with costs therein, especially wlre he answers and defends; although he makes his return before the suit is brought, and his enumeration has been forwarded to the executive council of the state. Semones v. Needles, 14: 1156, 114 N. W. 904, 137 Iowa. 177. 4. Where a party failed to appear at the time and place designated in a notice for taking deposition and cross-examine the witness, and thereafter duly and regularly served notice of the taking of the deposi- tion of the same witness, and in pursuance thereof took the deposition of such witness which consisted of a cross-examination of the witness on the deposition previously given, the costs and expense of taking such subsequent deposition should not be allowed as a part of the costs of the case. Vaughn v. Johnson, 37: 816, 119 Pac. 879, 20 Idaho, 169. On dismissal. 5. Costs should not be awarded against a state board of health upon dismissal of the bill against one improperly made a par- ty to a suit to enforce its order. State Bd. of Health v. St. Johnsbury, 23: 766, 73 Atl. 581, 82 Vt. 276. > In condemnation proceedings. See also infra, 23; EMINENT DOMAIN. 150, 177, 178. 6. Where the statute providing for the opening of roads provides that the road shall be opened by condemnation, and that the sum to be paid the owner, and the cost of the procedure, be paid by applicant, the COSTS AND FEES, II. 735 landowner cannot be charged with any cost in the trial court, although he may file ex- ceptions to the commissioner's report, and demand a jury trial. Broadway Coal Min. Co. v. Smith, 26: 565, 125 S. W. 157, 136 Ky. 725. State liability for. 7. Costs cannot be awarded against the state in civil actions, in the absence of ex- press statutory authority. State v. Will iams, i: 254, 61 Atl. 297, 101 Md. 529. (Annotated) Criminal and penal cases. Amendment of judgment of conviction so as to charge accused with, see CRIMI- NAL LAW, 231. Effect of pardon to relieve convict from li- ability for, see CRIMINAL LAW, 299, 300. Sec also infra, 12. 8. Taxation of costs against one ac- cused of crime, upon affirmance of a con- viction, is not prevent ed by a constitution- al provision that in no instance shall any accused person before final judgment be compelled to advance money or fees to se- cure the rights herein guaranteed. Salt Lake City v. Robinson, 35: 610, 116 Pac. 442, 39 Utah, 260. 9. Where a criminal proceeding before a magistrate is discontinued, and the ac- cused bound over to the district court, where he is convicted of the crime with which he stood charged before the magis- trate, the costs in the district court should not be taxed against the accused. Larson v. State, 44: 617, 140 N. W. 176, 93 Neb. 242. Security for. Bond for, on appeal, see APPEAL AND ERROB, III. g. Taking security for, as waiver of solicitor's lien, see ATTORNEYS, 64, 65. 10. A lawyer who undertakes to prose- cute an action for a client who is unable to pay for his services, and agrees that his compensation shall be contingent upon re- covery, and payable out of the amount re- covered, is under no legal or moral obli- gation to give security for costs, even when the client is ordered to do so, and is unable to comply with the order: and the action should not be dismissed, either for the in- ability of the client to comply with the order, or for the neglect or refusal of his attorneys so to do. Stevens v. Sheriff, ii : 1153, 90 Pac. 799, 76 Kan. 124. (Annotated) 11. Dismissal of an action under the provisions of Kan. Code Civ. Proc. 584, be- cause of the plaintiff's failure to comply with an order for additional security for costs, constitutes an abuse of discretion, where the plaintiff filed an affidavit alleg- ing that he was unable, by reason of pov- erty, to give security, and the court did not find that he was financially able, or any fact indicating that he was not entitled to proceed under his poverty affidavit. Stev- ens v. Sheriff, n: 1153, 90 Pac. 799, 76 Kan. 124. 12. A statute requiring the prosecutor to give bond for costs in prosecutions for Digest 1-52 L.R.A.(N.S.) crimes does not apply to prosecutions for violation of municipal ordinances. Emer- son v. McNeil, 15: 715, 106 8. W. 479, 84 Ark. 552. Apportionment; division. Discretion of trial judge in taxing entire fee of auditor against one party, see APPEAL AND ERROR, 575. 13. The apportionment of costs is within the sound discretion of a court of equity where the plaintiff at the time he com- menced his action was entitled to some re- lief. Whelan v. Daniels, 48: 979, 143 N. W. 929, 94 Neb. 642. 14. When plaintiff obtains judgment on his demand, and defendant obtains judgment on hia demand in reconvention, each of the parties should pay the costs incurred in ob- taining the judgment against him. Gilly v. Hirsh, 20: 972, 48 So. 442, 122 La. 966. 15. The owner of a way of necessity may be charged with one half the cost of a suit to restrain his use of the way, although the injunction is denied, if he might have avoided the litigation by the exercise of care to keep the gates closed. Rater v. Shuttlefield, 44: 101, 125 N. W. 235, 146 Iowa, 512. 16. A plaintiff who is defeated on the principal issue in controversy cannot com- plain of an equal division of the costs of the action. Rater v. Shuttlefield, 44: 101, 125 N. W. 235, 146 Iowa, 512. 17. In an equitable action the entire fees of the auditor to whom the case has been referred may be taxed to either party, under statutes giving the judge in equitable ac- tions power in his discretion to tax all the costs to either party and power to fix the fees of an auditor, which are in the nature of costs of the reference. McGregor v. Fitz- patrick, 25: 50, 65 S. E. 859, 133 Ga. 332. 18. Refusal to divide costs does not con- stitute error, where the amount recovered by the plaintiff exceeds the amount for which defendant offered to confess judgment after the action was begun. Matheney v. Eldo- rado, 28: 980, 109 Pac. 166, 82 Kan. 720. II. Amount; practice; collection. (See also same heading in Digest L.R.A. 1-10.) Motion to retax costs, see MOTIONS AND ORDERS, 6. Fees of witnesses, see WITNESSES, V. 19. The taxation of a separate bill of costs in favor of each of two defendants whose defenses involve to some extent dis- tinct issues of fact and questions of law is not error because they appear by the same attorney. Rosenheimer v. Krenn, 5: 395, 106 N. W. 20, 126 Wis. 617. 20. A statute providing a penalty of $5 and costs for excluding a person of color from a place of amusement prevails over a prior general statute governing the mat- ter of costs. Jones v. Broadway Roller Rink Co. 19: 907, 118 N. W. 170, 136 Wis. 595. 736 COTENANCY. Extra allowance. 21. Extraordinary costs, such as allow- ance of expenses and compensation of re- ceivers, may, in a proper case, be pro- visionally allowed to the receiver out of the fund and ultimately decreed to be paid to the party entitled to the fund by his ad- versary. Nutter v. Brown, i: 1083, 52 S. E. 88, 58 W. Va. 237. Attorneys' fees. As to contract for attorney's fees, see AT- TORNEYS' FEES. Equal protection and privileges as to, see CONSTITUTIONAL LAW, II. a, 6. Allowance for, as element of damages, see DAMAGES, III. r. In divorce suit, see DIVORCE AND SEPARA- TION, V. b. In injunction suit, see INJUNCTION, 97. 22. The mere fact that the construction of a will is necessary to determine whether or not the relief sought shall be granted in a proceeding to partition real estate is not sufficient to entitle defendant to an allow- ance of a solicitor's fee as costs, although the relief is denied. Kendall v. Taylor, 37: 164, 92 N. E. 562, 245 111. 617. 23. Disbursements, costs, counsel fees, and extra allowances cannot be awarded to the property owner under a statute pro- viding for the condemnation of property by a municipal corporation, which author- izes the corporation counsel to designate counsel to represent the city, and provides that "such allowance for counsel fees as may be made by order of court, and all reasonable expenses incurred by said cor- poration counsel or other principal legal adviser of said counsel designated by him," shall be paid, "but such fees shall not be paid" until taxed by the court "upon five days' notice to the corporation counsel." Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. 24. A bank is not entitled to an allow- ance of counsel fees upon successfully pro- tecting itself from a claim to interest on a fund which had been deposited with it to protect a purchaser of real estate from an alleged lien on the property. De Witt v. Keystone Nat. Bank, 52: 522, 90 Atl. 340, 243 Pa. 534. 25. Trustees in a deed of trust are enti- tled to attorneys' fees in ca they are com- pelled to bring an action to foreclose it, 'o the extent to which it was necessary for them to act, and are not precluded from re- covering them by the fact that the real liti- gation is between the maker of the deed and the beneficiary. Mitau v. Roddan, 6: 275, 84 Pac. 145, 149 Cal. 1. 26. Complainant's solicitors' fees will not be paid out of the trust estate in a proceeding by an heir to annul his ances- tor's bequest for charity, especially where a judicial construction has already been given to the will which is sufficient for the purposes of the trustees. Tincher v. Arnold, 7: 471, 147 Fed. 665, 77 C. C. A. 649. 27. A tax collector is not entitled to an allowance for attorneys' fees far the serv- ices of the attorney by whom he was repre- Digest 1-52 L.R.A.(N.S.) sented in a suit to enforce payment of an inheritance tax, in view of the imperative statutory requirement that it shall be the duty of the district attorney to enforce the provisions of the inheritance tax law. Suc- cession of Levy, 8: 1180, 39 So. 37, 115 La. 377. 28. In a proceeding to secure the reduc- tion of an assessment which is reduced in part, attorneys' fees are properly allowed against the petitioner to the extent of 10 per cent of that portion of the assessment with respect to which no reduction is ob- tained. Metropolitan L. Ins. Co. v. Board of Assessors, 9: 1240, 39 So. 846, 115 La. 698. 29. In a proceeding to punish the vio- lation of an injunction order restraining the maintenance of a liquor nuisance, an allowance of $100 as attorneys' fees for the county attorney is not objectionable, al- though no evidence was introduced as to the value ,of the services rendered, where they had been brought to the attention of the court both on the trial and by various motions made in the case. State v. Porter, 13: 462, 91 Pac. 1073, 76 Kan. 411. 30. Upon foreclosure of a mortgage de- clared due for failure to pay instalments, the attorney's fee should be based on a re- covery of the entire indebtedness. Bartlett Estate Co. v. Fairhaven Land Co. 15: 590, 94 Pac. 900. 49 Wash. 58. 31. The attorneys' fee taxable as a part of the costs under the act of February 4, 1887, 8, where the cause of action is the doing of something made unlawful by some provision of the act, or the omission to do something required by the act, and there is a recovery of damages sustained in conse- quence of any such violation of the act, may not be taxed to the successful plain- tifl' in an action by a shipper against an initial carrier for a loss on a connecting line, in which the carrier's liability is de- pendent upon the Carmack amendment of June 29, 1906, since the cause of action is the loss of property which is in no way traceable to the violation of any provision of the statute. Atlantic C. L. R. Co. v. Riverside Mills, 31:7, 31 Sup. Ct. Rep. 164, 219 U. S. 186, 55 L. ed. 167. 32. In the absence of a statute allowing it, a successful plaintiff is not entitled to recover his attorneys' fee, even in an ac- tion for damages on account of the de- fendant's fraud or malicious misconduct. Evans v. Central L. Ins. Co. 41: 1130, 125 Pac. 86, 87 Kan. 641. COTENANCY. 7. In general, 1. II. Creation and existence, 2, 3. III. Rights and remedies as to each other, 415. IV. Transfers of interests, 1622. Right of cotenant of personalty to attack foreclosure of mortgage on interest of other cotenant, see ACTION* OK SUIT, 44. COTENANCY, I. III. 737 Affect of agreement by cotenants purchas- ing interest of other co-tenant to estab- lish an interest or trust in the property, see CONTRACTS, 252. Upholding deed between cotenants otherwise ineffective, as a covenant to stand seised to uses, see COVENANTS AND CON- DITIONS, 20. Community property held by parties as ten- ants in common after divorce, see DI- VORCE AND SEPARATION, 136. Right of widow of cotenant to dower in im- provements made by husband, see DOW- ER, 3. Extent 'of recovery in ejectment by tenant in common against stranger, see EJECT- MENT, 21, 22. Misleading information by one having crop- ping contract with cotenant, as to inter- est of such tenant, to the other coten- ant, see ESTOPPEL, 166. Presumption of grant from joint tenant, see EVIDENCE, 627. Evidence to establish ownership of coten- ant, see EVIDENCE, 1277. Garnishment of share awarded to debtor on sale in partition after transfer of his interest in property to cotenant, see GARNISHMENT, 19. Tenancy by entirety, see HUSBAND AND WIFE, *II. b. Interest payments by one tenant as affect- ing running of limitations in favor of cotenants, see LIMITATION OF ACTIONS, 327. Running of statute against one of several joint tenants as bar against all, see LIMITATION OF ACTIONS, 239. Effect of attempted amendment by one of parties suing as cotenants on running of limitations, see LIMITATION OF AC- TIONS, 297. Execution by cotenant of oil and gas lease, see MINES, 59, 61. Notice to mortgagee of interest of cotenant, see NOTICE, 75. Necessity that tenants in common join in suit in ejectment, see PARTIES, 144. Partners as tenants in common of real es- tate, see PARTNERSHIP, 49. Partition between cotenants, see PARTITION. Subrogation to rights of mortgage given by tenant in common, see SUBROGATION, 22, 23. Conveyance of land to one in trust for him- self and another, see TBUSTS, 34. I. In general. (See also same heading in Digest L R A 1-70.) 1. A joint tenancy in lands held by husband and wife has the same characteris- tics as to survivorship, under the statutes of the state of Wisconsin, as existed between joint tenants at common law. Bassler v. Rewolinski, 7: 701, 109 N. W. 1032, 130 Wis. 26 Digest 1-52 L.R.A.(N.S.) II. Creation and existence. (See also same heading in Digest L.R.A. 1-70.) Adverse possession by tenant, see ADVERSE POSSESSION, I. f. 2. A tenancy in common, entitling one of the cotenants to maintain an action for partition, and for rents and profits, the other catenants being in adverse possession under claim of title, exists where it ap- pe,ars that several brothers, by joint con- tribution of labor and money, purchased certain lands, taking the title in the names of all the brothers, with the understanding that such lands were to be so held by them. Schuster v. Schuster, 29: 224, 120 N. W. 948, 84 Neb. 98. 3. The grant to a father and son of a burial lot in a public cemetery does not make them joint tenants, so that, at the father's death, his interest will pass to the son to the exclusion of the other heirs, where the statute makes a conveyance to two create a tenancy in common; and it is immaterial that the ordinance of the munic- ipality for the government of the cemetery makes the lot indivisible. Anderson v. Ach- eson, 9: 217, 110 N. W. 335, 132 Iowa, 744. III. Rights and remedies as to each other. (See also same heading in Digest L.R.A. 1-70.) Adverse possession by grantee of cotenant, see ADVERSE POSSESSION, 20-31. Measure of damages in action against co- tenant for removing doors and windows, see DAMAGES, 468. Presumption of ouster of cotenant, see EVI- DENCE, 633, 634. Matters concluded by judgment in parti- tion instituted by co-tenant, see JUDG- MENT, 173. As to partition generally, see PARTITION. Subrogation to cotenant's right to contribu- tion, see SUBROGATION, 2. Right of tenant in common to maintain tres- pass against cotenant, see TRESPASS, 17. 4. A tenant in common who rightfully occupies and uses the common property cannot be compelled to pay rent to his co- tenants who are non'occupants, where there is no showing of exclusive possession on the part of the actual occupant, or that the other cotenants might not occupy the prop- erty at the same time. Thurstin v. Brown, 29:238, 109 Pac. 784, 83 K,n. 125. (Annotated) 5. A tenant in common may bind his own interest by authorizing a mortgagee of the property to enter under the mortgage, but cannot without express authority bind the rights of his cotenants. Barson v. Mul- ligan, 16: 151, 84 N. E. 75, 191 N. Y. 306. In mines. 6. A lease to take oil and gas executed 47 738 COTENANCY, IV. by a widow upon lands of which she owns an undivided half, is not void as authoriz- ing the commission of waste with respect to the interest of the 'owners of the other half of the property. Compton v. People's Gas Co. 10 : 787, 89 Pac. 1039, 75 Kan. 572. Accounting. When action to recover rents and profits from cotenant is barred, see LIMITATION OF ACTIONS, 256. See also supra, 2. 7. A tenant in common who is in sole, exclusive, and adverse possession under claim of title, is liable to his cotenant for an accounting for rents and profits. Schus- ter v. Schuster, 29: 224, 120 N. W. 945, 84 Neb. 98. (Annotated) Contribution. 8. A cotenant, acting in good faith and for the purpose of honestly bettering the property, and not for the purpose of em- barrassing his cotenants, or encumbering the estate, or hindering partition, will be entitled to compensation to the extent that his substantial and useful improvements have added to the value of the common property. Helmken v. Meyer, 45: 738, 75 S. E. 586, 138 Ga. 457. 9. A claim by a cotenant for com- pensation for improvements erected upon the common estate is an equitable charge upon the land, and not a title or interest in the land. Helmken v. Meyer, 45: 738, 75 S. E. 586, 138 Ga. 457. 10. A tenant in common cannot compel incompetent cotenants to contribute to the cost of improvements which he has put upon the property. Henrikson v. Henrikson, 33: 534, 127 N. W. 962, 143 Wis. 314. Purchase of outstanding title. Deed as color of title for adverse possession, see ADVERSE POSSESSION, 32. Laches of joint tenant in claiming right to share in benefit of purchase by cotenant, see APPEAL AND ERROR, 568; LIMITA- TION OF ACTIONS, 31, 32. Pleading as to, see PLEADING, 448. 11. One of the tenants in common of mortgaged property may secure a title ad- verse to his cotenant by purchasing the property from one who bids it in at a fore- closure sale. McLawhorn v. Harris, 37: 831, 72 S. E. 211, 156 N. C. 107. 12. One heir of a mortgagor may secure title through the foreclosure sale to the ex- clusion of his coheirs. Jackson v. Baird, 19: 591, 61 S. E. 632, 148 N. C. 29. ( Annotated ) Payment of taxes and interest. Laches as barring right of one cotenant to benefit of tax title obtained by other, see LIMITATION OF ACTIONS, 31. Form of assessment of land held in common, see TAXES, 169, 227, 245. 13. One of several joint contingent re- maindermen who is in possession of the property as lessee of the holder of the lim- ited fee, paying an annual rental therefor, is under no obligation personally to bear the expense of the taxes accruing during the time of his tenancy. Wilson v. Lindcr, 42: 442, 123 Pac. 487, 21 Idaho, 576. Digest 1-52 !L.R.A.(N.S.) 14. A tenant in common in possession of mortgaged real estate, with the acquiescence of the other cotenants, and in the absence of any contract to pay rent, owes a duty to the other cotenants to pay the interest maturing on the mortgage and taxes ac- cruing on the land. Ellis v. Snyder, 32: 253, 112 Pac. 594, 83 Kan. 638. 15. A tenant in common in possession of mortgaged real estate owes the duty to his cotenant to pay the interest maturing on the mortgage. Clute v. Clute, 27: 146, 90 N. E. 988, 197 N. Y. 439. IV. Transfers of interests. (See also same heading in Digest L.R.A. 1-10.) Validity as against one tenant in common, of oral contract of sale by his cotenant, see CONTRACTS, 274. Estoppel of cotenant to complain of plac- ing property in receiver's hands, see ESTOPPEL, 111. Right of tenant in common to share in pro- ceeds of sale for partition under deed of cotenant's interest, see JUDGMENT, 173. Delay as bar to enforcement of rights under grant from one cotenant, see LIMITA- TION OF ACTIONS, 25. As to partition of interests, see PARTITION. Right of purchaser of interest of one of several partners owning real estate as tenants in common to accounting, see PABTNEBSHIP, 60. Sale by one tenant in common as agent for cotenant, see PRINCIPAL AND AGENT, 52. Specific performance of oral contract to con- vey interest in property, see SPECIFIC PERFORMANCE, 46, 49. Specific performance of contract for sale of real property executed by tenant in common without authority, see SPECIF- IC PERFORMANCE, 97. 16. A married woman who is a joint tenant of property with her husband can- not, by devising her interest therein, affect the husband's right of survivorship; nor does Wis. Rev. Stat. 2342, abolishing the disabilities of married women as to the acquirement and enjoyment of property, con- fer upon her capacity to pass her interest in such property by devise. Bassler v. Re- wolinski, 7: 701, 109 N. W. 1032, 130 Wis. 26. (Annotated) 17. Where, at the cessation of use for church purposes of property granted with the proviso that it shall revert to the grant- or upon cessation of its use for church pur- poses, the right of reverter has become vest- ed in equal parts in two heirs of the grant- or, a deed by one after commencement of a suit by the other to recover possession of the property will confine his right of recov- ery to a moiety only. North v. Graham, 18: 624, 85 N. E. 267, 235 111. 178. 18. One of two cotenants cannot carve out a parcel of the estate and convey it by warranty deed to a stranger, so as to vest COTTAGES COUNTIES. 739 the absolute title in him, or render him a cotenant with the nonconsenting co-owner in the parcel conveyed. Fellow v. Arctic Iron Co. 47: 573, 128 N. W. 918, 164 Mich. 87. 19. The warranty deed of one cotenant, of a parcel of the common property by metes and bounds, is not void, but creates equities in the grantee which will be pro- tected so far as possible without injury to the non-granting cotenant, and' the remain- ing interest, if any, of the grantor, will be charged in a partition proceeding to make good the warranties contained in the deed. Fellow v. Arctic Iron Co. 47: 573, 128 N. W. 918, 164 Mich. 87. (Annotated) 20. A nonconsenting cotenant may, by a course of dealing with the remaining prop- erty after an attempted grant of a parcel of the property by the other cotenant, effect a ratification of the grant so as to estab- lish the rights of the grantee thereunder. Fellow v. Arctic Iron Co. 47: 573, 128 N. W. 918, 164 Mich. 87. 21. Katification by one of two cotenants of minerals underlying a tract of land, of an absolute grant by his cotenant of a parcel of the property, is effected by co- operating in leases of the minerals under the remaining property, and permitting the mines to be worked under them, and the re- sulting ore to be partitioned for a long series of years, until the equities of the grantees could no longer be protected in case he demanded partition of the parcels so granted. Fellow v. Arctic Iron Co. 47: 573, 128 N. W. 918, 164 Mich. 87. 22. After a sale by one tenant in com- mon of the whole common property in par- cels, the cotenant cannot ratify the sale as to some of the parcels and claim his interest out of the remainder, to the prejudice of its purchasers. Ft. Jefferson Improv. Co. v. Dupoyster, 2: 263, 66 S. W. 1048, 112 Ky. 792. j Imputing to owner of cotton negligence of compress company, see NEGLIGENCE, 255. Destruction of, by fire while in warehouse, see WAREHOUSEMAN, 8. COTTAGES. To whom listed for taxation, see TAXES, 168. COTTON. Statute making weight determined by public warehouse conclusive between buyer and seller of cotton, see CONSTITUTIONAL LAW, 625. Provision in restraint of trade in lease of compress, see CONTRACTS, 554; INJUNC- TION, 128. Attempt of corporation to control compress business, see MONOPOLY AND COMBINA- TIONS, 21. Conspiracy to control prices for, see MONOP- OLY AND COMBINATIONS, 56, 57. Declaring building used for storage of cot- ton seed to be a nuisance, see MUNICI- PAL CORPORATIONS, 144. Digest 1-52 L.R.A.(N.S.) COTTON SEED PRODUCTS. Illegal contract between manufacturers of cotton seed product, see MONOPOLY AND COMBINATIONS, 58. Adulteration of cotton seed meal, see STAT- UTES, 44. COUNCIL. Meetings of borough council, see MUNICIPAL CORPORATIONS, 36, Legislative functions of, see MUNICIPAL COR- PORATIONS, II. c. COUNSEL FEES. See ATTORNEYS, II. c; ATTORNEYS' FEES; DAMAGES, III. r. _ _ : > i! R nrbtO dvtTtraoV !/{ (\y "* ** 7~ ,fH .73 ; .v.-ffA'Jt COUNTERCLAIM. See SET-OFF AND COUNTERCLAIM. " : ' i'Kjrrtoo o? rioit')/ 1 ' COUNTERFEITING. Labels and trademarks, see TRADEMARKS, IV. Pretended sale of counterfeit money, see FALSE PRETENSES, 21. COUNTIES. /. As political divisions; organization; county seat, 1. a. In general; organisation. ft. County seat, 1. II. Rights and liabilities, 239. a. In general, 221. ft. Warrants; indebtedness, 22 3O. c. Power to tax; county purposes, 31. d. Contracts; power and proced- ure of officers, 3239. Adverse possession against, see ADVERSE POSSESSION, 41. Assumpsit by assignee of portion of claim against county, against second assignee who has collected full amount, see AS- SUMPSIT, 27. Assumpsit by, to recover taxes voluntarily refunded, see ASSUMPSIT, 38. ( . 3. ' 740 COUNTIES, I. a II. a. Recovery from, by bank of money paid upon faith of forged note, see ASSUMPSIT, 45. Auction sale of county property; discre- tion of officer to refuse bids, see AUC- TION, 1. Money of, as trust fund in case of insol- vency of bank, see BANKS, 223, 224, 226, 227. Liability on bonds of county officers, see BONDS, II. c. Subrogation of surety on bond of county officer, see SUBROGATION, 32, 33. Review by court of action of county board in rearranging school districts, see COURTS, 93. Classifying for purpose of elections upon local matter, see ELECTIONS, 18. Municipal authority to condemn land of county used for poor farm, see EMINENT DOMAIN, 26. Estoppel of, see ESTOPPEL, I. a. Judicial notice as to, see EVIDENCE, 16. Presumption of regularity of railroad aid bonds, issued by, see EVIDENCE, 540, 541. Mandamus to compel payment of judgment against, see JUDGMENT, 80. License tax on puchasers at sales for un- paid county tax, see LICENSE, 54-56, 86. Mechanics' lien on county jail, see ME- CHANICS' LIENS, 56. Ordinance of, see MUNICIPAL CORPORATIONS, 57, 64, 72; RECORDS AND RECORDING LAWS, 2. Authority of legislature to appoint coun- ty officer, see OFFICERS, 45. Bonds of county clerk, see PARTIES, 89. Action to compel removal of obstruction to operation of drawbridge, see PARTIES, 103; WATERS.. 106. Power of board of supervisors to fix situs of debt for purpose df taxation, see TAXES, 145. Liability of county auditor for negligence in ^,e failing to give notice of tax sale, see TAXES, 191, 238. Prescriptive right to take water from springs in highway, see WATERS, 313. Omission from summons of name of county in which suit is brouglit, see WRIT AND PROCESS, 2. I. As political divisions; organization; county seat. a. In general; organization. (See also same heading in Digest L.R.A. 1-70.) ,V.'V Quo warranto to question legality of organi- zation of, see Quo WABBANTO, 10, 11. b. County seat. (See also same heading in Digest L.R.A. 1-10.) : 'I'.nn.i it:;* i, ^^flor: -K,(. f.rf .- Effect of change of county seat on property dedicated for court house purposes, see DEDICATIPN, 43, 44. Digest 1-52 L.R.A,(N.S.) Injunction at suit of officers of, see INJUNC- TION, 310. Election as to change. 1. A constitutional provision that a county seat shall not be removed except by a majority vote of the qualified voters of the county voting at an election held for such purpose requires only a majority of the votes cast at the election, and not a ma- jority of all the electors in the county. Ex parte Owens, 8: 888, 42 So. 676, 148 Ala. 402. //. Rights and liabilities, a. In general. (See also same heading in Digest L.R.A. 1-10.) Action against, for money had and received, see ASSUMPSIT, 15. Duty in constructing and maintaining bridge, see BRIDGES, 2. Liability for cost of maintaining bridge, see BRIDGES, 6. Liability for unauthorized repairs to bridge, see BRIDGES, 3. Interference with local self-government of, see CONSTITUTIONAL LAW, 144. Liability on implied contracts, see CON- TBACTS, 41-43; DAMAGES, 104. Liability for interest, see INTEREST, I. g. When limitations begin to run in favor of, see LIMITATION OF ACTIONS, 117. Liability for expense of relieving pauper, see'PooR AND POOR LAWS, 5-7. Liability of property of, to public improve- ment assessment, see PUBLIC IMPROVE- MENTS, 44-46. Right to collect tolls for use of bridge, see TOLLS AND TOLL ROADS, 1. Liability for fees of witness in criminal case, see WITNESSES, 210, 211. 2. In Georgia a county may incur a lia- bility for a legitimate current expense, pro- vided it has at the time a sufficient sum in its treasury which may be lawfully used to pay the liability incurred, or if a sufficient sum to discharge the liability can be raised by taxation during the current year. Butts County v. Jackson Bkg. Co. 15: 567, 60 S. E. 149, 129 Ga. 801. 3. A board of health can impose no lia- bility on the county by its agreement to furnish help to care for crops of a person quarantined for a contagious disease. Beeks v. Dickinson County, 6: 831, 108 N. W. 311, 131 Iowa, 244. Authority to employ tax ferret. See also infra, 32, 33. 4. A county has no inherent power to employ a tax ferret. Pierson v. Minnehaha County, 38: 261, 134 N. W. 212, 28 S. D. 534. 5. A county is not given authority to employ a tax ferret by a statute providing that the taxing officers shall cause omitted property which they discover, to be placed on the list, and receive a percentage of the " '~ COUNTIES, II. a. 741 penalty imposed for the omission. Pierson v. Minnehaha County, 38: 261, 134 N. W. 212, 28 S. D. 534. (Annotated) 6. A county, in the absence of express legislative grant, has no power to enter into a contract for the employment of a tax ferret, even though the duty of discovering untaxed property has not been placed upon the public officials. Stevens v. Henry Coun- ty, 4: 339, 75 N. E. 1024, 218 HI. 468. (Annotated) Liability for tort or negligence. Liability as to bridges, see BRIDGES, 12-18, 20, 21; NEGLIGENCE, 263; PLEADING, 348; TRIAL, 412. Liability for injury on defective highway, see HIGHWAYS, IV. a. Liability for injury to pauper by failure to give aid to him, see POOR AND POOR LAWS, 9. 7. A county is not liable for the negli- gence of its health officers in quarantining a person erroneously supposed to have a contagious disease. Beeks v. Dickinson County, 6: 831, 108 N. W. 311, 131 Iowa, 244. 8. A county is not liable for losses to a person quarantined for contagious disease because of his inability to attend to his business, under a statute providing for the care of infected persons and for the pay- ment of expenses incurred on account there- of. Beeks v. Dickinson County. 6: 831, 108 N. W. 311, 131 Iowa, 244. 9. Neither a county nor its overseer of poor is liable for the loss by a transient pauper of his feet because it failed to give him proper attention when he came into its borders with frozen feet, although the stat- ute requires relief to be furnished under such circumstances, at least if the overseer did not know that it was dangerous to send a pauper on his way, as he was empowered by statute to do, without relief. Wood v. Boone County, 39: 168, 133 N. W. 377, 153 Iowa, 92. (Annotated) 10. A county, while engaged in building a bridge upon a public highway, acts as a subdivision of the state government, and is not liable for the negligent performance of such work, unless expressly made so by statute. Shawnee County v. Jacobs, 21: 209, 99 Pac. 817, 79 Kan. 76. (Annotated) 11. A county which has constructed a bridge where a stream crosses a public high- way, which is suitable for all purposes of the highway, but which, by reason of the abutments being too low, obstructs the flow of the water during unusually heavy rains, thereby overflowing adjacent farm lands, is not liable to the owner thereof for damages so caused, under Kan. Gen. Stat. 1901, 579, providing that any person who. without con- tributory negligence, sustains damages by reason of a defective bridge, may recover damages ftom the county which constructed such bridge, provided the county commission- ers have notice of the defect at least five days before such damages are sustained, since, under such statute, a bridge is de- fective only when the defect affects its safe- ty or usefulness as a part of the public .Digest 1-52 L.R.A.(N.S.) highway. Shawnee County v. Jacobs, 21: 209, 99 Pac. 817, 79 Kan. 76. 12. A county is liable to the owners of a line of steamboats, whose business is in- terfered with by the construction of a bridge over the river by the board of county com- missioners, without authority of law, in vio- lation of the act of Congress prohibiting such structures over navigable streams, and without express authority from the county, where the county did not repudiate the ultra vires acts of its commissioners. . Viebahn v. Crow Wing County, 3: 1126, 104 N. W. 1089, 96 Minn. 276. Liability for expense of jury. 13. Expenses Incurred in caring for a jury cannot be made a county charge in the absence of a statutory provision therefor. Schmelzel v. Ada County, 21: 199, 100 Pac. 106, 16 Idaho, 32. 14. An expense incurred by order of the court, for shaving and hair cutting while the jury was -kept together in the progress of a trial, is not such a necessary expense incident to and necessary in the administra- tion of justice as to become a county charge, aince the necessity for a juror's shaving and having his hair cut does not arise out of, or depend upon, his services on a jury, and is no greater while serving on a jury than at any other time. Schmelzel v. Ada County, 21 : 199, 100 Pac. 106, 16 Idaho, 32. (Annotated) 15. The payment by a county of a bill for shaving and hair cutting of jurors while kept together, either in the progress of a trial, or during their deliberations, is not included in or authorized by the provisions of a statute providing that the county shall provide a room, with suitable furniture, etc., for the use of the jury upon their retire- ment for deliberation, and that, when the jurors are kept together, they must be pro- vided, at the county's expense, with suitable and sufficient food and lodging. Schmelzel v. Ada County, 21: 199, 100 Pac. 106, 1G Idaho, 32. Counsel fees in criminal case. 16. A statute charging the county with the expense of supporting persons charged with or convicted of crime, and committed to the county jail, does not include fees of counsel designated by the court to defend them. Pardee v. Salt Lake County, 36: 377, 118 Pac. 122, 39 Utah, 482. 17. Under statutory authority to coun- ty commissioners to employ counsel to prosecute or defend actions to which the county is a party, they have no power to employ counsel to defend persons prose- cuted for crime by the state, and therefore the judge cannot be regarded as their agent in designating counsel for such persons so as to render the county liable for the fees. Pardee v. Salt Lake County, 36: 377, 118 Pac. 122, 39 Utah, 482. 18. Courts cannot charge counties with liability for compensation for attorneys designated, to defend criminals, in the ab- sence of statutory authority. Pardee v. Salt Lake County, 36: 377, *1 18 Pac. 122, 39 Utah, 482. 742 COUNTIES, II. b. Presentation of claims; conditions precedent to liability. 19. A statute requiring the presentation of claims against counties to the board of commissioners before suit can be brought on them does not apply to suits to enjoin interference with water rights or to quiet title to real estate. Kiser v. Douglas Coun- ty, 41: 1066, 126 Pac. 622, 70 Wash. 242. 20. Want of proper notice will not re- lieve a county from liability for the expense of medical attention to an indigent nonresi- dent in need thereof while within the coun- ty, under a statute requiring the commis- sioners to furnish aid in such cases "upon notice thereof," where, at the time the services are rendered, the commissioners are not in session, and immediate aid is neces- sary to save life. Sheridan County v. Den- ebrink, 9: 1234, 89 Pac. 7, 15 Wyo. 342. (Annotated) 21. A claim against a county for per- forming a surgical operation upon an in- digent person may consist of only a single item, although the operation is followed by the necessary medical attention, under a constitutional and statutoijy provision that no claim against a countylshall be audited until a full itemized statement in writing shall be filed with the proper officer. Sheri- dan County v. Denebrink, 9: 1234, 89 Pac. 7, 15 Wyo. 342. b. Warrants; indebtedness. (See also same heading in Digest L.R.A.. 1-70.) Accord and satisfaction by acceptance of part payment of claim against county, see ACCORD AND SATISFACTION, 6, 7. As to county bonds, see BONDS, III. b. Mandamus to compel publication of claims audited against, see MANDAMUS, 43. Issue by county auditor of tax refunding certificates to fictitious payees, see SUB- ROGATION, 33. See also supra, 2; infra, 37. 22. Territory annexed to a county is not excused from paying its proportionate share of the existing indebtedness of the county to which it is annexed, by a statute which provides that the faith, credit, and all taxa- ble property within the limits of a county as it was constituted at the time the in- debtedness was contracted, must continue pledged for the payment thereof. Blake v. Jacks, 27: 1147, 108 Pac. 534, 18 Idaho, 70. 23. In the absence of prohibitory stat- ute, territory annexed to a county is liable to pay its proportionate share of the exist- ing indebtedness of the county to which it is annexed. Blake v. Jacks, 27: 1147, 108 Pac. 534, 18 Idaho, 70. (Annotated) 24. On the dissolution, by the judgment of a court, of a county attempted to be organized out of a portion of the territory of an existing county, the original county is not liable for debts contracted by the new county while it existed as a de facto public corporation, either as successor of Digest 1-52 L.R.A.(N.S.) the latter, or on the ground that it has received territory or property from it. Barnard v. Polk County, 6: 791, 108 N. W. 204, 98 Minn. 289. (Annotated) Limit of indebtedness. Limit of municipal indebtedness, see MUNI- CIPAL CORPORATIONS, II. e, 2. Limitation of indebtedness of school district, see SCHOOLS, 56-58. See also TAXES, 37. 25. That a county has reached its con- stitutional debt limit does not prevent it from incurring liabilities for services nec- essary to the preservation of the peace and good order of the community. Cunning- ham v. Saling, 37: 1051, 112 Pac. 437. 57 Or. 517. 26. The time of letting the contract for a bridge, and not that of its acceptance and the issuance of warrants therefor, is that when the county becomes indebted, within the meaning of a constitutional provision forbidding it to become indebted to an amount exceeding in any year the income and revenue provided for such year, where the statute requires an appropriation to be made for the bridge before the contract is let; at least where the contract requires the bridge to be completed within the year in which the contract is let. Trask v. Liv- ingston . County, 37:1045, 109 S. W. 656, 210 Mo. 582. 27. In determining whether or not a debt incurred for a public building will exceed the constitutional limitation upon the in- debtedness which the county may incur, the aggregate amount of the contract price must be considered, although it is to be paid in instalments out of the tax levies for a series of years. Hagan v. Commis- sioners Court, 37: 1027, 49 So. 417, 160 Ala. 544. 28. A county cannot avoid the constitu- tional limitation upon its indebtedness by agreeing to pay the contract price of a public building, with interest, out of the proceeds of a special tax levy laid for a ser- ies of years for that purpose, although the contract expressly provides that no debt is created or incurred by the county. Hagan v. Commissioners Court, 37: 1027, 49 So. 417, 160 Ala. 544. 29. Where the Constitution provides that no county shall incur any liability in any manner in excess of the taxes for the current year, without assent of the tax- payers, an attorney who, upon designation of the court, has defended an indigent per- son accused of crime, cannot hold the coun- ty liable upon an implied contract for his fees, without showing that the claim would not cause the county to exceed the taxes ol the year, or that it had been authorized by the taxpayers. Pardee v. Salt Lake County, 36: 377, 118 Pac. 122, 39 Utah, 482. Warrants. Effect of acceptance of warrant for part of claim, see ACCORD AND SATISFACTION, 6. Right of bank which has credited fraudulent county warrants which it has received for collection, to charge off credit upon discovery of fraud, see BANKS, 182. ' COUNTIES, II. c, d. 743 Notice to, of fraud of county commissioner as to warrants, see LIMITATIONS OF ACTIONS, 170. Injunction against payment* of, see INJUNC- TION, 329. Ratification of void town warrants, see MU- NICIPAL CORPORATIONS, 261. Necessary parties to proceedings to have warrants adjudsred invalid, see PARTIES, 170. Subrogation of one making illegal loan to, see SUBROGATION, 7. 30. Warrants issued in Georgia by coun- ty commissioners for current expenses, some of which are held by one who paid them from the proceeds of a loan which he made to the county, whereby he became subrogated to the rights of the several holders, should be paid according to the priorities and in the proportion specified in Ga. Pol. Code, 361, 463-466. Butts County v. Jackson Bkg. Co. 15: 567, 60 S. E. 149, 129 Ga. 801. o(?8 ,j *Avjr*3 a/A c. Power to tax; county purposes. (See also same heading in Digest L.R.A. 1-10.) Purposes for which public money may be used, see PUBLIC MONEYS, II. Sufficiency of title of statute as to, see STAT- UTES, 103. As to taxes generally, see TAXES. 31. A county has no authority, unless given by statute, to collect taxes for pre- ceding years during which property was omitted from the tax list. Pierson v. Min- nehaha County, 38: 261, 134 N. W. 212, 28 8. D. 534. d. Contracts; power and procedure of officers. (See also same heading in Digest L.R.A. 1-10.) Power to bind contractor to pay claim of laborers and materialmen, see BONDS, 10. Statute requiring all county printing, bind- ing, etc., to be done within county, see COMMERCE, 7; CONSTITUTIONAL LAW, 454; CONTRACTS, 802. Liability on implied contracts, see CON- TRACTS, 41-43; DAMAGES, 104. Contract with county commissioners to dis- cover taxable property not assessed, see CONTRACTS, 600. Review by courts of determination of su- pervisors to levy emergency tax, see COURTS, 149. Injunction against execution of void con- tract by, see INJUNCTION, 335. Mandamus to county officer, see MANDA- MUS, I. d. Salary of officer, see OFFICERS, II. b. X/iability of officers, see OFFICERS, II. c. Power of board of supervisors to fix situs of debt for purpose of taxation, see TAXES, 145. Digest 1-52 L.R.A.(N.S.) Power to change sums levied as tax, see TAXES, 154. See also supra, 17. 32. Statutory power to a county board of commissioners to make all contracts and do all other acts in relation to the property and concerns of the county necessary to its corporate powers does not include power to employ a tax ferret, where the statutes give such board no authority over the acts of the officials charged with the assessment and collection of taxes. Stevens v. Henry Coun- ty, 4= 339, 75 N. E. 1024, 218 111. 468. 33. A contract by which a board of coun- ty commissioners undertakes to employ a private person or firm to render services in aid of the collection of taxes, which services the statute makes it the duty of certain township and county officers to render, is ultra vires, against public policy, and void. State ex rel. Coleman v. Fry, 16: 476, 95 Pac. 392, 77 Kan. 540. 34. The allowance by the county court of a claim for services rendered to the county by a detective ratifies an irregular employ- ment of him by the county attorney. Cun- ningham v. Saling, 37: 1051, 112 Pac. 437, 57 Or. 517. 35. A resolution of a board of supervi- sors employing a superintendent for con- struction of a building does not, although he enters upon the performance of his du- ties, constitute a binding contract which will sustain an action in case he is dis- charged if he does not accept the employ- ment or undertake to perform the duties imposed upon him, and the contract is con- strued by the parties as divisible payments to be made as the work progresses. Farrell v. Greenlee County, 49: 380, 136 Pac. 637, 15 Ariz. 106. (Annotated) 36. A county board may, under a stat- ute authorizing a county to provide and equip a public morgue which shall be under the control of the board of county com- missioners, appoint a morgue keeper, and enter into a contract with him to perform the services required for a period of one year, during which time he may only be discharged for causes which will justify the county in refusing to carry out the contract. Manley v. Scott, 29: 652, 121 N. W. 628, 108 Minn. 142. 37. County commissioners in Georgia have no authority to contract in behalf of a county for a loan of money to be used in defraying current expenses, and not ne- cessitated by casual deficiency of revenue, although the notes which evidence the loan are payable within the current year, and it is intended to discharge them from the an- ticipated revenue of that year. Butts County v. Jackson Bkg. Co. 15:567, 60 S. E. 149, 129 Ga. 801. Contracts beyond term of office. Public policy as to, see CONTRACTS, 521. 38. A county board may, just before the expiration of the term of office of a part of the members thereof, and the taking of office by their successors, employ a morgue keeper for a period of one year, 744 COUNTS COURTHO USE. as such a board is a continuing body, the existence of which is not affected by a partial change in the personnel thereof. Manley v. Scott, 29: 652, 121 N. W. 628, 108 Minn. 142. (Annotated) 39. A county board may, just before the expiration of the terms of its members and after the election of their successors, exer- cise the statutory authority to enter into a contract for the county printing for a term of two years, although such contract will extend over almost the entire life of the succeeding board. Piekett Pub. Co. v. Car- bon County, 13: 1115, 92 Pac. 524, 36 Mont. 188. COUNTS. In pleading, see ACTION OR SUIT, 107; PLEADING, 4, 5, 8, 186-188. Election between, see TRIAL, I. b. COUNTY ATTORNEY. See DISTRICT AND PROSECUTING ATTORNEYS. COUNTY AUDITOR. Failure of cotmty auditor to give notice of tax sale, see TAXES, 191, 238. COUNTY BOARD. Review by court of actions of, see COURTS, 93. COUNTY CLERK. Recovery back of fees wrongfully exacted by, see ASSUMPSO, 30. Bond "of, see PARTIES, 89. COUNTY COMMISSIONERS. Liability of, to surety of tax collector for failing to require proper settlement of accounts, see PRINCIPAL AND SUKETY, 68, 69. In general, see COUNTIES, II. d. COUNTY COURTS. Jurisdiction of, see COURTS, 206. Digest 1-52 L.R.A.(N.S.) COUNTY SEAT. See COUNTIES, I. b. COUNTY TREASURER. Eligibility of woman to hold office of, see OFFICERS, 12. Rights of. as to public money, see PUBLIC MONEYS. COUPLERS. * Admissibility of reports of car inspectors as to defective condition of coupler, see EVIDENCE, 826. Negligence as to, see MASTER AND SERVANT, 419-424. Contributory negligence as to, see M-VSTEB AND SERVANT, 695-698. COUPONS. Right of bank paying coupons on bonds of depositor under mistaken belief that there are funds to meet them, see BANKS, 88. Execution on judgment obtained in action on, see LEVY AND SEIZURE, 4. Detached coupons a* within protection of clause in mortgage securing bonds, see MORTGAGE, 145. Who may maintain action on, see PARTIES, 43. COUPON TICKET. See CARRIERS, II. m, 2. COURSE OF BUSINESS. Presumption from, see EVIDENCE, II. j. COURT COMMISSIONERS. Conferring upon, powers over juvenile of- fenders, see CONSTITUTIONAL LAW, 105. COURTHOUSE. As to removal of countv seat, see COUNTIES, 1. Dedication of property for, see DEDICATION, 43, 44. COURT REPORTERS COURTS. 745 COURT REPORTERS. Transcript of notes of, as bill of exceptions, see APPEAL AND ERROR, 229, 242. Dismissal of appeal because of imperfect stenographic report of testimony, see APPEAL AND EBBOB, 398. COURT REPORTS. Accounting for proceeds of sale of court re- ports made from unauthorized use of uncapyrighted manuscripts and stereo- type plates, see ACCOUNTING, 7. Right of one publishing, under contract with state, to print and sell copies of reports, see CONTRACTS, 13, 14. Right of publishing company printing court reports for state to sell reports on its own account, see PRINCIPAL AND AGENT, 3. COURT RULES. As to index of transcript on appeal, see AP- PEAL AND ERROB, 152. As to statement on appeal, see APPEAL AND ERROR, 221. Judicial notice of, see APPEAL AND ERROR, 238. As to admission of attorneys, see ATTOR- NEYS, I. a. Imposing fine on attorney for ignoring, see ATTORNEYS. Constitutionality of rules as to procedure, see CONSTITUTIONAL LAW, II. a, 7. As to allowance of costs, as affecting valid- ity df agreement that costs of contest- ing will be paid out of estate, see CON- TRACTS, 439. COURTS. I. Jurisdiction and powers in gen- eral, 1-197. a. In general; inherent powers, 1-11. b. Over nonresidents; territorial litnittitions, 1247. 1. Generally, 1223. 2. Crimes, 2434. 3. Real property, 3541. a. In general, 35, 36. b. In other state, 3741. 4. Foreign corporations, 42 47. c. Relation to other departments of government, 48166. 1. In general; political ques- tions, 48 8O. 2. Legislative department; statutes, 81134. a. JF-n general, 81111. Digest 1-52 L.R.A. /. continued. b. Police power, 112 116. c. Public purpose; tax; eminent domain, 117124. d. Offices ; elections, 125 127. e. Regulation of busi- ness; license; rates, 128134. 3. Municipal and count;/ matters, 1351-66. a. In general, 135152. b. RevieTv of ordinances, 153166. d. Jurisdiction over associations, etc. ; conclusiveness of decisions of their tribu- nals, 167-193. 1. Associations generally, 167-178. 2. Religious societies, 179 193. e. Legislative power as to, 194 196. f. Power of municipality over, g.. Loss of jurisdiction, 197. II. State and territorial courts, 198 246. a. Jurisdiction, 198246. 1. In general, 198212. 2. Original jurisdiction of appellate court; superin- tending control, 213 235. 3. As dependent on amount, 236, 237. 4. Matters as to title, 238. 5. Trusts; probate; insol- vency; infants, 239 246. 6. Crimes. b. Terms; place of sitting. c. Transfer of cause. d. Opinions. III. Federal courts, 247264. a. In general; suits by or against state or state officers, 247, 248. b. Suits against United States. c. Federal questions, 249252. d. As dependent on citizenship, 253, 254. e. As dependent on amount, 255. f. In equity; following state practice; effect of state lairs, 256-261. g. Ancillary jurisdiction, 262. h. Crimes, 263. i. Districts, 264. IV. Conflict of authority; relation of state to Federal, 265295. a. Exclusivetiess of jurisdiction first acquired, 265277. b. Interference with other courts; injunctions, 278 29O. c. Property in custody of courts or officers, 291, 292. 746 COURTS. IV. continued. d. When state or Federal juris- diction exclusive ; limi- tations upon, 293296. 1. In general, 293295. 2. Criminal proceedings. T. Rules of decision, 296-328. a. In general, 296. b. Stare decisis; previous de- cisions of same court, 297 309. c. Construction and constitution- ality of statutes or ordi- nances. d. State courts following Federal decisions, 310312. e. Kollou-ing decisions of courts of other state or country, 313315. f. Federal courts following state decisions, 316328. Of admiralty, see ADMIBALTT. Alien's right to resort to, see ALIENS, 5. Rule of, as to index of transcript on ap- peal, see APPEAL AND ERROR, 152. Rule of, as to statement on appeal, see AP- PEAL AND ERROR, 221. Judicial notice of rules of, see APPEAL AND ERROR, 238. Imposing fine on attorney for ignoring rules of, see ATTORNEYS, 31. Constitutionality of rules as to procedure, see CONSTITUTIONAL LAW, II. a, 7. Of mediation, conciliation and arbitration, see ARBITRATION. Effect of agreement for arbitration on right to resort to courts, see ARBITRATION, 2. Of bankruptcy, see BANKRUPTCY. Determining whether equipment of carrier is adequate and road properly operated, gee CARRIERS, 987, 988. Enforcement and control of charitable be- quests, see CHARITIES, II. Clerks of, see CLERKS. Performing business of, through commis- sioner, see COMMISSIONERS. Vested rights in erroneous decision, see CON- STITUTIONAL LAW, 49. Effect of giving courts power to review ac- tion of commission to whom power is delegated, see CONSTITUTIONAL LAW, 90. Imposing upon, duty to declare result of local-option election, see CONSTITU- TIONAL LAW, 126. Review by court of award by commission under workmen's compensation act, see CONSTITUTIONAL LAW, 135. Authorizing county superintendent to re- voke teacher's license as depriving of access to, see CONSTITUTIONAL LAW, 375. Depriving employee of recourse to, see CON- STITUTIONAL LAW, 574. Penalizing resistance by judicial interfer- ence to enforcement of law, see CONSTI- TUTIONAL LAW, 535. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 3. Constitutional guaranty of justice in, see CONSTITUTIONAL LAW, II. f. Digest 1-52 L.R.A.(N.S.) Change of decisions as affecting contracts, see CONSTITUTIONAL LAW, II. g, 1, b. Contempt of, see CONTKMPT. Rule as to allowance of costs as affecting validity of agreement that costs of con- testing will, shall be paid out of es- tate, see CONTRACTS, 439. Public policy as to attempt to modify or control procedure, see CONTRACTS, 442. Aiding in enforcement of illegal contract, see CONTRACTS, III. g. Courts martial, see COURTS MARTIAL. What constitutes dicta, see DICTA. Validity of act providing for election of judicial officers, see ELECTIONS, 5, 27. Presumption in favor of judicial acts, see EVIDENCE, 502-508. Oral evidence of transactions in, see EVI- DENCE, 711. Decision of Federal court sitting in state as evidence of law of that state, see EVI- DENCE, 771. Parol evidence as to records of, see EVI- DENCE, 1040, 1041. Judicial notice by, see EVIDENCE, I. Enforcement by, of orders of board of health, see HEALTH, 4. Acts of, on holiday, see HOLIDAYS, 2, 3. Indictment for corruptly attempting to in- fluence officers of, see INDICTMENT, etc.. 107. Source of power to grant injunction, see INJUNCTION, 2. By-law of benefit society denying member's right to resort to, see INSURANCE, 112- 114. Judicial review of decision of interstate commerce commission, see INTERSTATE COMMERCE COMMISSION, 11. As to judges, see JUDGES. Power to appoint person to represent class of which no member is in existence, see JUDGMENT, 219. As to justices of the peace, see JUSTICE OF THE PEACE. As to juvenile courts, see JUVENILE OFFEND- ERS. Judicial proceedings as privileged commu- nications, see LIBEL AND SLANDER, II. e, 4. Mandamus to compel one usurping office to turn over papers, see MANDAMUS, 13. Mandamus to, see MANDAMUS, I. b. Trial of offense by military tribunals, see MARTIAL LAW, 3-5, 8. Use of initials of name in court proceed- ings, see NAME, 4. Grant of new trial by, see NEW TRIAL. Lack of authority to provide remedy for invasion of right of privacy, see PRI- VACY, 1. Prohibition to restrain, see PROHIBITION. Review by, of order of public service com- mission, see PUBLIC SERVICE COMMIS- SION, 10-19. Power in quo warranto, see Quo WARRANTO. Records of, see RECORDS AND RECORDING LAWS, II. As to removal of causes, see REMOVAL OF CAUSES. COURTS, I. a. 747 Effect of inability to enforce judgment by levy and sale as reason for declining jurisdiction, see STATE INSTITUTIONS, 8. Partial invalidity of statute as to, see STATUTES, 65, 66. Special legislation regulating practice in, see STATUTES, 166. Constitutionality of act providing for elec- tion of judicial officers by separate bal- lot, see STATUTES, 184. Subrogation of surety on bond of court clerk, see SUBROGATION, 32. Judicial proceedings on Sunday, see SUN- DAY, I. Effect of resort to, by legatee to resist de- duction of succession tax from legacy, see TAXES, 294. Binding effect upon both state and Federal courts of treaty, see TREATIES, 3. Functions of, on trial, see TRIAL, II. Interference with water rates, see WATERS, 418. Process of, see WEIT AND PROCESS. I. Jurisdiction and powers in general, a. In general; inJierent poii'ers. (See also same heading in Digest L.R.A. 1-10.) Jurisdiction of court under submitted ques- tion, see AGREED CASE, 2. Jurisdiction on appeal, see APPEAL AND ER- ROR. Considering on appeal question of jurisdic- tion, see APPEAL AND ERROR, VII. j, 2. Waiver of question of jurisdiction, see AP- PEARANCE, 16-21. Jurisdiction to enforce attorney's liens, see ATTORNEYS, 74, 75. Jurisdiction of bankruptcy court, see BANK- RUPTCY, 3, 4, 17. Conferring upon, jurisdiction to make con- clusive determination that absentee is dead, see CONSTITUTIONAL LAW, 396. Validity of attempt to oust court of juris- diction, see CONSTITUTIONAL LAW, 455; CONTRACTS, 441. Statute limiting jurisdiction of, as term for which it may impose imprisonment, see CRIMINAL LAW, 259. Jurisdiction of controversy between divorced father and guardians appointed for children after mother's death, see DI- VORCE AXD SEPARATION, 148. Waiver of objection to equitable jurisdic- tion, see EQUITY, 17. Presumption as to jurisdiction, see EVI- DENCE, 509, 510. Sufficiency of indictment presented by pri- vate person to give court jurisdiction, see INDICTMENT, 1. Effect of lack of jurisdiction to issue in- x junction to render unnecessary employ- ment of counsel to secure dissolution, see INJUNCTION, 432. Effect of absence of jurisdiction to enjoin prosecutien, on bond given in proceed- ing for that purpose, see INJUNCTION, 435 Digest 1-52 L.R.A.(N.S.) Question whether suit is within jurisdiction of courts or interstate commerce com- mission, see INTERSTATE COMMERCE COMMISSION, 2. Collateral attack on judgment for lack of jurisdiction, see JUDGMENT, 128-138, 144. 1. Even though defectively organized a municipal court authorized by law is at least a de facto court, and the officers there- of de facto officers, and the right of the court to exercise judicial functions can be inquired into only at the instance of the state in di- rect proceedings brought for that purpose. State ex rel. Bales v. Bailey, 19: 775, 118 N. W. 676, 106 Minn. 138. 2. The criminal court of appeals is charged with the duty of seeing that we have a uniform system of criminal juris- prudence in Oklahoma, and it is the court of last resort and the supreme arbitrator for the settlement of all questions relating to criminal law in this state. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. 3. Authority to test the jurisdiction of a commission, which depends upon consent of the parties to be affected by its action, is conferred by a statute empowering the court to set aside the award in case the board acted without or in excess of its powers. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 4. A court which has constitutional power to decide only questions of law will not determine whether or not questions raised in a cause are of sufficient import- ance to require an injunction against cer- tain proceedings alleged to be unconstitu- tional, until they can be determined after a trial of the issues. Smith v. Smythe, 35: 524, 90 N. E. 1121, 197 N. Y. 457. 5. The jurisdiction of a court in which an indictment is found or an accusation is lodged is not impaired by the manner in which the accused is brought before the court. Re Moyer, 12: 227, 85 Pac. 897, 12 Idaho, 250. 6. The jurisdiction of a judge over a case ends with his granting a change of venue to another court. Priddy v. Boice, 9: 718, 99 S. W. 1055, 201 Mo. 309. Powers generally; inherent powers. To correct record after appeal, see APPEAL AND ERROR, 100. To require physical examination, see AP- PEAL AND ERROR, 627, 628; DISCOVERY AND INSPECTION, 28. To obviate defect of unincorporated associa- tion's incapacity to take charitable be- quest, see CHARITIES, 38. To punish for contempt, see CONTEMPT, III. b. t '" 1 . 06 To charge county with liability for compen- sation of attorneys designated to de- fend criminals, see COUNTIES, 18. To suspend sentence or execution thereof, see CRIMINAL LAW, 273-282. To double damages allowed by verdict, see DAMAGES, 731. 748 COURTS, I. b, 1. To compel private corporation to produce books and papers, see DISCOVERY, 25. To award alimony, see DrvoBCE AND SEPARA- TION, V. To control discretion vested in executrix, see EXECUTORS AND ADMINISTRATORS, 41. To surcharge executors' account without ex- ception thereto, see EXECUTORS AND AD- MINISTRATORS, 128. To appoint amicus curice to except to execu- tors' account, see EXECUTORS AND AD- MINISTRATORS, 129. To control discretionary power to appoint between definitely described individual's, see POWERS, 4. To add interest to amount awarded by jury, see TRIAL, 1161. Over attorneys, see ATTORNEYS, I. Discretion as to permitting revival, see ABATEMENT AND REVIVAL, 31. Discretion as to granting bail, see BAIL AND RECOGNIZANCE, 10. Discretion as to permitting view by jury, see EVIDENCE, 898. Interference by, with practice of transpor- tation companies, see CARRIERS, 989. Enforcement and control of charitable be- quests, see CHARITIES, II. Delegation of power to, see CONSTITUTIONAL LAW, I. d, 3. Conferring upon, power to appoint experts in criminal case, see CONSTITUTIONAL LAW, 618. Division of property by, where donee of power to appoint dies without exercis- ing discretion vested in him, see POW- ERS, 3. 7. Courts of justice have the inherent power and authority to incur and order paid all such expenses as are necessary for the holding of court, and the discharge of the duties thereof, in the administration of justice. Schmelzel v. Ada County, 21: 199, 100 Pac. 106, 16 Idaho, 32. 8. A court has inherent power to issue a commission to an officer in another state to take a deposition necessary to secure evidence for the trial of an. action pending before it. McClure v. McClintock, 42: 388, 150 S. W. 332, 849, 150 Ky. 265, 773. 9. The supreme court of Mississippi has no power to prescribe rules for he government of the trial courts of the state. Yazoo & M. V. R. Co. v. Kirk, 42: 1172, 58 So. 710, 834, 101 Miss. 822. 10. A court which has jurisdiction of the subject-matter, and which acquires juris- diction of the person of the defendant by service of process, is vested with full power and authority to hear and determine all questions that occur in the case and are essential to determine the merits of the is- sues raised, and it likewise has authority and jurisdiction to make such orders and is- sue such writs and process as may be neces- sary and essential to carry the decree into effect and render it binding and operative. Taylor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. Power of parties to affect. 11. ^Failure of the defendants to object Digest 1-52 L.R.A.(N.S.) to tbe jurisdiction of the court over a pro- ceeding to compel taxing districts claim- ing jurisdiction over the same proper- ty, to come into coiut and settle thejr claims thereto, will not confer jurisdic- tion on the court, since it is against public policy for a court of equity to interfere with the collection of taxes, where the stat- utes have prescribed a method for deter- mining the validity of the tax by paying it and bringing an action to compel its re- turn. Welch v. Boston, 35: 330, 94 N. E. 271, 208 Mass. 326. b. Over nonresidents; territorial limi- tations. 1. Generally. (See also same heading in Digest L.R.A. 1-70.) As to Federal districts, see infra, III. i. Jurisdiction to render personal judgment against nonresident in attachment pro- ceedings, see ATTACHMENT, 30. Right of courts of one state to enforce laws of, or causes of action arising fn, an- other state, see CONFLICT OF LAWS. Jurisdiction of garnishment proceedings against nonresident, see GARNISHMENT, 6. Effect of domicil on jurisdiction of action to annul marriage, see MARRIAGE. 27. Partial invalidity of statute as to, see STATUTES, 65, 66. As to venue, see VENUE. 12. The courts of a state in which a car- rier is doing business are not deprived of jurisdiction of a suit to compel it to re- ceive property for transportation into an- other state, on the theory that it involves property and rights of the carrier beyond the territorial reach of the court. Louis- ville & N. R. Co. v. F. W. Cook Brew. Co. 40: 798, 172 Fed. 117, 96 C. C. A. 322. 13. The courts of a state have no juris- diction of an action against a railroad owned and operated by a foreign sovereign. the revenue from which becomes part of the public revenue of his country, to recover damages for personal injuries received with- in his dominion and caused by the negli- gent operation of the road. Mason v. In- tercolonial R. Co. 16: 276, 83 N. E. 876, 197 Mass. 349. (Annotated) 14. An action to recover rent for use and occupation of premises of which de- fendants were tenants by sufferance is not within a statute requiring actions for the determining of questions affecting title to .real property to be brought in the county where the land is located, although the an- swer sets up title in defendants, and there- fore the action may be maintained in a state other than that where the land is located. Sheppard v. Cceur d'Alene Lumber Co. 44: 267, 112 Pac. 932, 62 Wash. 12. (Annotated) 15. An action in the name of the stat* to which the bond runs may be maintained COURTS, I. b, 2. 749 upon it by one for whose benefit it is tak- en, in the courts of another state, which is the domicil of the obligers, to compel pay- ment of the fund to the court which grant- ed the administration, that it may be dis- tributed according to law, where, the lat- ter being the state of testator's residence, one of its citizens, to get possession of his personal property located in the former one, secures an appointment as administrator by its court, gives an administration bond running to the state, and then removes the fund without authority, and converts it to his own use, and becomes insolvent. Cut- rer v. State ex rel. Leggett, 35:333, 54 So. 434, 98 Miss. 841. (Annotated) 16. A receiver cannot confer upon the court jurisdiction of members of a mutual insurance company who are nonresidents of the county, by joining them in a single equity suit to compel payment of assess- ments which were overdue at the time of liis appointment, where no facts exist to give equity jurisdiction of the action, the liabilities of the respective members upon their assessments being several, and not joint. Burke v. Scheer, 33: 1057, 130 N. W. 962, 89 Neb. 80. 17. The temporary presence within a state of a child with its father, whose dom- icil is in another state, gives the court of that state no jurisdiction of a suit by its mother, who is also a nonresident, to se- cure custody of it. Lanning v. Gregory, 10 : 690, 99 S. W. 542, 100 Tex. 310. (Annotated) 18. The superior court of a county wherein land upon which an execution has been levied lies, before which the trial of a statutory claim which had been inter- posed by a nonresident is pending, hag jurisdiction of an ancillary petition in aid of the levy, instituted by the plaintiff in execution against such claimant, as to mat- ters germane to the issue involved in the claim case, since as to such issues the non- resiripiit by filing his claim waived the constitutional guaranty that a person may not be sued outside of the county of his residence. Thomason v. Thompson, 26: 536, 59 S. E. 236, 129 Ga. 440. Cause of action arising on river form- ing state boundary. See also BOUNDARIES, I. 19. The grant by Congress to states of concurrent jurisdiction over rivers which separate them, so far as they form a common boundary, extends only to the body of the stream which constitutes the common high- way of commerce, and not to the interlacing unnavigable water belts, streams, and streamlets which emerge from the main body, and make their way inland so as to come within the body of the counties, but over the latter the state within which they are found has exclusive jurisdiction, and may enforce its fish and game laws upon them. Little v. Green, 25: 649, 123 N. W. 367, 144 Iowa, 492. Rights in interstate stream. 20. The jurisdiction of the courts of one 'state to ascertain and determine water ap- Bigest 1-52 L.R.A.(N.S.) propriations within the state is not ousted on defeated by the fact that a defendant sets up in his answer that Ire has an appro- priation of the waters of the stream in con- troversy, and that he diverts the waters from such stream in another state for use and application in irrigating lands situated within that state. Taylor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. 21. The courts of one state, in ascertain- ing, decreeing, and protecting property rights in water appropriations within the jurisdiction of the state, ma,y, at the same time and for the same purpose, inquire into and determine rights and priorities that are located and situated higher up the stream and beyond the state line, in order fairly and finally to determine judicially the relative rights of the parties, and decree the extent of title and right of possession of the sub- ject-matter located ami situated within the state. Taylor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. (Annotated) 22. A state court which has jurisdiction of both the subject-matter and of the person of the defendants, in an action by a resident of the state against nonresidents, to deter- mine their respective rights in an interstate stream, has jurisdiction to grant an injunc- tion to prevent the diversion, in another state,, of the waters of the stream by the nonresident defendants, to the detriment of the plaintiff, the injunction being merely ancillary to, and in aid of, a decree estab- lishing and quieting the latter's title, and being a remedy in personam, acting only upon the person of the party enjoined. Tay- lor v. Hulett, 19: 535, 97 Pac. 37, 15 Idaho, 265. Liability of stockholder of foreign corporation. See also supra, 16. 23. Holders of unpaid stock in a foreign corporation cannot defeat an action by its trustee in bankruptcy to set aside a fraudu- lent dividend applied in satisfaction of such subscriptions, and compel their payment, on the theory that it is an attempt to regulate the internal affairs of such corporation, which is not a party to the proceeding, where all solvent stockholders are parties, since the corporation and creditors are rep- resented by the trustee, and all necessary parties are therefore before the court. Ed- wards v. Schillinger, 33: 895, 91 N. E. 1048, 245 111. 231. (Annotated) 2. Crimes. (See also same heading in Digest L.R.A. 1-10.) Rights of courts of one state to enforce laws of another as to, see CONFLICT OF LAWS. Venue of action, see VENUE, 17-19. 24. One accused of crime cannot object to the jurisdiction of ^ie court upon the ground that he was forcibly brought within it tinder a writ of habeas corpus by which he was removed from a prison where he was (.?.. V ).f.. Ti . J <:.:-- f i*v.i. 750 COURTS, I. b, 3. serving a penal sentence within the state. Com. v. Ramunno, 14: 209, 68 Atl. 184, 219 Pa. 204. 25. The court within whose jurisdiction a fraudulent scheme is first devised has jurisdiction of the offense regardless of where the formal contract was executed. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. 20. The courts of one state have no jurisdiction to try one for the murder of a person who dies there as the result of an act done in another state after the perform- ance of which the deceased removes from one state to the other. Com. v. Apkins, 39: 822, 146 S. W. 431, 148 Ky. 207. (Annotated) 27. A nonresident may be prosecuted in a police court of a city, the jurisdiction of which is limited to offenses occurring with- in its limits, for permitting his cow to be at large within the city, contrary to a mu- nicipal ordinance, although he was not per- sonally within the city at the time, if proc- ess is subsequently served upon him within the jurisdiction. Tutt v. Greenville, 33: 331, 134 S. W. 890, 142 Ky. 536. (Annotated) 28. A state may provide for the punish- ment of anyone who circulates a libel with- in the state, although he may be a nonresi- dent and subject to punishment for his act elsewhere. State v. Piver, 49: 941, 132 Pac. 858, 74 Wash. 96. 29. The fact that at the time of the enactment of a statute making it criminal for a husband to fail to provide for the support and maintenance of his wife in destitute circumstances, the husband was a resident of another state, is no defense to his prosecution in the state enacting tha statute, where he has voluntarily come into the latter state. State v. Gillmore, 47: 217, 129 Pac. 1123, 88 Kan. 835. 30. A husband, resident of another state, who has not shown that his wife wrongfully refused to follow him to such state, and who has voluntarily come into the state of his wife's residence, may be prosecuted in the latter state for neglect- ing and refusing to provide for the sup- port and maintenance of his wife. State v. Gillmore, 47: 217, 129 Pac. 1123, 88 Kan. 835. (Annotated) 31. The mere fact that some time after a father was brought into a state in custody of an officer, his child was actual- ly in destitute circumstances, would not of itself constitute a crime, or vest the courts of the state with jurisdiction to try him, where the father was without fault as to the child's coming into the state. Re Fowles, 47: 227, 131 Pac. 598, 89 Kan. 430. 32. A father who permitted the mother to remove his child to another state under such circumstances that he was obligated for the support of the child, and with knowledge or reasonable means of knowl- edge that the child was destitute and like- ly to become a public burden in the latter state, is punishable under the laws of the latter state. Re Fowles, 47: 227, 131 Pac. 598, 89 Kan. 430. Digest 1-52 L.R.A.(N.S.) Committed in more than one state. 33. A continuing crime is a continuous unlawful act or series of acts set on foot by a single impulse and operated by an un- intermittent force, however long it may oc- cupy; and where such act or series of acts run through several jurisdictions, the of- fense is committed and cognizable in each, although complete in the jurisdiction where first committed. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 34. The offense of giving or receiving a rebate or concession, whereby property in interstate or foreign commerce is transport- ed at a less rate than that legally filed and published, in violation of the Elkins act (act February 19, 1903, chap. 708, 32 Stat. at L. 847; U. S. Comp. Stat. Supp. 1905, p. 599), is a continuous crime judicable in any court of the United States having jurisdic- tion of crimes, through whose district the transportation is conducted. Armour Pack- ing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 3. Real property. a. In general. (See also same heading in Digest L.R A. 1-10.) Venue of action, see VENUE, 5-9. In other country. 35. A court has no jurisdiction to parti- tion land located in a foreign country. Holt v. (jluerguin, 50: 1136, 163 S. W. 10, Tex. 36. A court has no jurisdiction to annul a deed of land located in a foreign country although it was executed within its juris- diction and the parties in interest are all before it. Holt v. Guerguin, 50: 1136, 163 S. W. 10, Tex. . b. In other state. (See also same heading in Digest L.R. A.. 1-70.) Power to authorize guardian of incompetent to consent to conveyance of real estate in another state, see INCOMPETENT PER- SONS, 40. 37. The courts of the state in which an explosion occurs have jurisdiction of an ac- tion brought to recover for injury done to a building located cross the line in another state. Smith v. Southern R. Co. 26: 927, 123 S. W. 678. 136 Ky. 162. (Annotated) 38i A court cannot, in a suit to enforce a fire insurance policy on property in another state, which was assigned to plaintiff in consideration of his releasing a lien given him by the laws of the state where the property was located, adjudicate the inva- lidity of the release of the lien and reinstate it for the benefit of the insurer, although it had jurisdiction of the person of the prop- ' COURTS, I. b, 4, c, 1. 751 erty owner, if it does not attempt to effect the reinstatement through him. Burton- Lingo Co. v. Patton, 27: 420, 107 Pac. 679, 15 N. M. 304. (Annotated) 39. Equity has no jurisdiction to re- strain acts of trespass on lands in another state where the principal fact involved and upon which the right to exercise the re- straint depends is that of title to the land, even though the necessary parties are prop- erly before it. Columbia Nat. Sand Dredg- ing Co. v. Morton, 7: 114, 28 App. D. C. 288. (Annotated) Injury to. 40. The courts of one state have no jurisdiction of an action to recover damages for injury to and destruction of fences, tim- ber, and trees on land in another state, due to the negligent setting out of fire. Bris- bane v. Pennsylvania R. Co. 44: 274, 98 N. E. 752, 205 N. Y. 431. 41. An action to recover the proceeds of timber wrongfully severed from real estate is transitory and may be brought in the courts of a state other than that where the land is located. Brady v. Brady, 44: 279, 77 S. E. 235, 161 N. C. 324. 4. Foreign corporations. (See also same heading in Digest L.R.A. 1-10.) 42. A foreign corporation cannot com- plain if the court exercises a jurisdiction to which it has submitted itself. Fleming v. Warrior Copper Co. 51: 99, 136 Pac. 273, 15 Ariz. 1. 43. A court of equity has no jurisdiction to regulate the management of the internal affairs of a foreign corporation, which is not a party to the suit, through the medium of an injunction against the members of the board of directors individually, who are parties. Jackson v. Hooper (N. J. Err. App.) 27: 658, 75 Atl. 568, 76 1ST. J. Eq. 592. Against corporation generally. Venue of action, see VENUE, 12. 44. A corporation cannot b said to be doing business within a state from the mere fact that it sells goods there through the efforts of traveling salesmen, so as to bring it within the jurisdiction of the state courts. Saxony Mills v. Wagner & Co. 23: 834, 47 So. 899, 94 Miss. 233. (Annotated) 45. The courts of the state within which is situated property alleged to have been fraudulently transferred by a domestic to a foreign corporation have jurisdiction of a suit to set aside the transfer. Fleming v Warrior Copper Co. 51: 99, 136 Pac. 273 15 Ariz. 1. 46. Courts of one state have no juris diction of a suit by a stockholder of a foreign corporation which does not transac its business within that state, against its directors, because of their failure to en force contracts in its favor and to protec its property since those are matters of in ternal management. Kelly v. Thomas, 51: 122, 83 Atl. 307, 234 Pa. 419. Digest 1-52 L.B.A.(N.S.) 47. Compelling a corporation to trans- fer stock on its books into the name of a purchaser is not such an interference with its internal affairs that a court of a state other than that of its creation will not de- cree it. Westminster Nat. Bank v. New ngland Electrical Works, 3: 551, 62 Atl. J71, 73 N. H. 465. (Annotated) i. Relation to other departments of government. 1. In general; political questions. (See also same heading iw Digest L.R.A. 1-10.) Conferring on appellate court jurisdiction of appeal from railroad commission, see APPEAL AND ERBOB, 71. tleview by, of orders of public service com- mission, see CARRIERS, 1086; CONSTITU- TIONAL LAW, 616, 619; JURY, 15; PUB- LIC SERVICE COMMISSION, 10-19. onferring upon, jurisdiction over questions of governmental or administrative pol- icy, see CONSTITUTIONAL LAW, 125. Power of, to set aside award by commis- sioners in condemnation proceedings, see EMINENT DOMAIN, 166, 167. Review by courts, of discretion of postmas- ter general, see POSTOFFICE, 2. 48. The determination of where the seat of government is, is a judicial question. State ex rel. West v. Huston, 34: 380, 113 Pac. 190, 27 Okla. 606. 49. So long as a public governing body acts within the limits of its legal powers and jurisdiction, the exercise of its judg- ment and discretion is not subject to review or control by the courts at the instance of citizens, taxpayers, or other interested persons, in the absence of a statute author- izing such review or control. Spedden v. Board of Education, 52: 163, 81 S. E. 724, W. Va. . 50. The decision of the city clerk under 36, art. 3, chap. 14a, Neb. Comp. Stat. 1911, relating to the recall of municipal officers in cities which have adopted the commission form of government, and re- quiring the city clerk to ascertain and de- clare whether the requisite number of quali- fied signers had signed a petition for a recall election, is conclusive, and in the absence of fraud or mistake not subject to review. State ex rel. Topping v. Houston, 50: 227, 143 N. W. 796, 94 Neb. 445. 51. Where the state board of dental examiners, acting within its jurisdiction, revokes the license of a dentist for alleged misconduct, and an action is brought to enjoin the enforcement of the order on the ground that it was fraudulently made, a finding by the court that the members of the board acted honestly and impartially, and not arbitrarily, ' compels a judgment sustaining their decision, notwithstanding a further finding that their action was op- pressive. Richardson v. Simpson, 43: 911, 129 Pac. 1128, 88 Kan. 684. 752 COURTS, I. c, 1. 52. A board appointed tp hear and de- termine any complaint made against any person holding a physician's license, and revoke such license for specified causes, is, while BO acting, not a judicial tribunal, nor governed by the technical rules applied to law courts; and its findings are, in the absence of fraud, corruption, or oppression, conclusive upon the court. Meffert v. Packer, i: 811, 72 Pac. 247, 66 Kan. 710, affirmed in 25 Sup. Gt. Rep. 790, 195 U. S. 625, 49 L. ed. 350. Executive department. Mandamus to governor, see MANDAMUS, 31- 36. 53. ATI judicial power is conferred upon the courts even though the exercise there- of may affect the executive of a state. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. 54. The courts of a state have no power, in the absence of express constitutional provisions, to control the action of the governor, even in ministerial acts. State ex rel. West v. Huston, 34: 380, 113 Pac. 190, 27 Okla. 606. 55. Whenever the action of the governor of a state in any matter is authorized by law, and comes before the court for review, it is its duty to sustain the governor. Ex parte Williams, 51:668, 136 Pac. 597, Okla. Crim. Rep. . 56. As to mere error of judgment on the part of a governor in the exercise of his lawful authority, his acts are not review- able by the courts. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. 57. On grounds of public policy the court will not act coercively as to the gov- ernor except in case of extreme urgency. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. 58. The public policy which protects the governor as a co-ordinate department of the government from being interfered with by judicial mandate, except in dire emer- gency, does not apply with full force to sub- ordinates, acting by his authority. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. 59. The acts of the governor in exercising his constitutional power to suppress in- surrection cannot be interfered with by the courts so long as he does not exceed the power conferred upon him. Re Moyer, xa: 979, 85 Pac. 190, 35 Colo. 159. 60. The declaration of a state of in- surgency or war by the governor of a state is conclusive upon the court. Ex parte Jones, 45-: 1030, 77 S. E. 1029, 71 W. Va. 667. 61. It is within the exclusive province of the executive and legislative depart- ments of the government to say whether a state of war exists, and neither their declaration thereof, nor executive acts un- der the same, are reviewable by the courts while the military .occupation continues. State ex rel. Mays v. Bro\vn, 45: 996, 77 S. E. 243, 71 W. Va. 519. 62. The cour-t lias no power under a Constitution dividing the government into departments, to rpview by direct proceed - IHgest 1-52 L.R.A.(N,S.l ings the action ef the governor in removing a mayor for cause under authority con- ferred by statute, although the proceeding for removal is quasi judicial. Gi-rmaine v. Ferris, 46: 857, 142 N. W. 738, 176 Mich. 585. 63. While the power of removal of an officer for cause established by satisfactory proof is administrative in character, as dis- tinguished from that judicial power lodged by the constitution only in courts, it in- cludes that species of judicial power denom- inated quasi judicial and, as to that element, the result of the exercise of the power is reviewable by the court as to all matters of jurisdiction. Ekern v. McGov- ern, 46: 796, 142 N. W. 5J95, 154 Wis. 157. 64. Proceedings for the removal of a public officer from his office are of a ju- dicial character, so that, although the pow- er of removal is conferred by statute upon the governor, his action is subject to review by the courts. State ex rel. Kinsella v. Eberhart, 39: 788, 133 N. W. 857, 11C Minn. ai3. (Annotated) 65. The power to appoint to a public office is not the exercise of a judicial func- tion, but is executive or administrative in its nature. State ex rel. Thompson v. Ne- ble, 19: 578, 117 N. W. 723, 82 Neb. 267. 66. Requiring the judges of the district court to appoint park commissioners, whose duties are wholly administrative and ex- ecutive, and over whom the judges are given no supervision or control, the power of su- pervision being expressly and exclusively delegated to the mayor and city council, vio- lates the provision of the Constitution di- viding the government into three depart- ments, and prohibiting persons of one de- partment from exercising powers properly belonging to either of the others. State ex rel. Ihompson v. Neble, 19: 578, 117 N. W. 723, 82 Neb. 267. (Annotated) 67. Requiring a police judge to notify the county attorney of violations of the pro- hibitory liquor law that come to his notice, and to furnish him with the names of the witnesses by whom such violations may be proved, under penalty of a fine and fore- leiture of his office, does not violate the con- stitutional provision as to the separation of the departments of government, since the police judge, although exercising judicial functions, is not a repository of judicial power, within the meaning of the constitu- tional provision vesting the judicial power in a supreme court, district court, etc., and "such other courts, inferior to the supreme court, as may be provided by law," to which courts alone the constitutional doctrine of the separation of powers applies. State v. Keener, 19:615, 97 Pac. 860, 78 Kan. 649. ( Annotated ) 68. A court of competent jurisdiction has authority to enjoin the ministerial offi- cers of a state, other than tlie governor, from attempting to remove their offices and public records, books, and papers from the seat of government to another city, and from misapplying or disbursing pubjic funds in furtherance of suc^h scheme. State ex rel. West v. Huston, ft: 380, 113 Pac. 190, 27 Okla. 606. COURTS, I. c, 2. 753 69. The court will not interfere with the exercise of statutory discretion by the secretary of state as to the assessment necessary to make good an impairment of the capital of a bank, unless a clear abuse is shown. Corbin Bkg. Co. v. Mitchell, 31: 446, 132 S. W. 426, 141 Ky. 172. 70. The judicial department has no juris- diction to interfere with the performance of functions of a governmental nature of an executive or administrative board ap- pointed by the legislature, in the first in- stance and in advance of action by it. State Railroad Commission v. People ex rel. Den- ver & R. G. R. Co. 22: 810, 98 Pac. 7, 44 Colo. 345. School authorities. 71. The supervision of the eogrt* over school authorities in matters in whieh they are acting beyond the scope of their au- thority, or in violation of law, is not de- stroyed by a statutory provision that. i all controversies arising under the school law, the advice of the county superintendent shal I be sought, from whose decisions an appeal may be taken to the state board of educa- tion, the decision of which shall be final. Hobbs v. Germany, 22: 983, 49 So. 516, 94 Miss. 469. His?rliw:f3y authorities. 72. The courts will not, except in a rare case and one of manifest abuse of power, interfere with a decision of a board of su- pervisors, which has constitutional and stat- utory jurisdiction over highways, that a certain use of public roads is unlawful. Covington County v. Collins, 14: 1087, 45 So. 854, 92 Miss. 330. Board of health, See also infra, 97. 73. The interpretation given by a state board of health to a rule or regulation adopted by it will be followed by the court, unless it appears to be clearly unreasonable and arbitrary. Thomas v. State Bd. of Health, 49: 150, 79 S. E. 725, 72 W. Va. 776. 74. The power conferred upon the state board of health to revoke a physician's license for cause is an administrative, and not a judicial, function; and the Hmit of judicial interference in such cases is to protect the acciised in his right to a hear- ing upon specific charges, after reasonable notice of the time and place of hearing, and against a conviction unless upon competent evidence. Munk v. Frink, 17: 439, Il6 N. W. 525, 81 Neb. 631. 75. Statutory permission to the court to enforce an order of the state board of health forbidding use of a polluted water supply does not make the order conclusive so as to deprive persons affected thereby of a right to a hearing before the court. State Bd. of Health v. St. Johnsbury, 23: 766,' 73 Atl. 581, 82 Vt. 27C. Board of equalization. Statute providing for appeal by taxpayer from decision of board of equalization, see CONSTITUTION AL LAW, 127. 76. The courts are not deprived of pow- er to interfere with an arbitrary inequality Digest 1-52 I,.R.A.(N.S.) in property values throughout the state, and an undervaluation of a portion of it, effected by the state board of equalization in violation of the provisions of the statute, on the theory that the act of the board is an exercise of discretion and beyond the control of the courts. Huidekoper v. Had- ley, 40: 505, 177 Fed. 1, 100 a C. A. 395. Political questions. Power of equity as to, see EQUITY, 4. Injunction to protect political rights, see INJUNCTION, I. h. 77. Whether or not a state has a repub- lican form of government is a political, and not a judicial, question. State ex rel. Wagner v. Summers, 50: 206, 144 N. W. 730, S. D. . 78. The power granted to electors of a city to remove certain public officers is political in its nature, and is not the ex- ercise of any judicial function. State ex rel. Topping v. Houston, 50: 227, 143 N. W. 796, 94 Neb. 445. 79. Executive recognition of the obliga- tion of the United States to surrender its own citizens under the extradition treaty with Italy of 1868, and the supplemental frreaty of 1884, notwithstanding the refusal of the Italian government to surrender fu- gitives of Italian nationality committing crimes in the United States, is a waiver of the breach, if any and leaves the treaty in force as the supreme law of the land, which must -be recognized by the courts. Charlton v. Kelly, 46: 397, 33 Sup. Ct. Rep. 945, 229 U. S. 447, 57 L. ed. 1274. 80. The court is not, in enjoining the consummation of conspiracy to carry an election by fraud, exercising a political,, rather than a judicial, function. People ex rel. Miller v. Tool, 6: 822, 86 Pac. 224, 35 Colo. 225. 2. Legislative department; statutes. a. In general. (See also stfme heading in Digest L.R.A 1-70.) Delegation of legislative power to judiciary, see CONSTITUTIONAL LAW, I. d, 3. Delegation of judicial power by legislature, 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. As to validity of statutes generally, see STATUTES, I. c. 81. It is a judicial question whether the common law invoked in a judicial proceed- ing has been modified by any of the means pointed out in a statute governing the force of the common law, and consequently to what extent i't remains in force. . Cooper v. Seaverns, 25: 517, 105 Pac. 509, 81 Kan. 267. 82. The court will not examine the legis- lative journals o~r other records to deter- mirie whether or not a statute properly au- 48 754 COURTS, I. c, 2. tlienticated and duly enrolled and deposited by the secretary of state received the requisite number of votes, or was subject to any irregularity which would invalidate it. Atlantic Coast Line R. Co. v. State. 32: 20, 69 S. E. 725, 135 Ga. 545. 83. A court has no discretion as to the enforcement of a law if it is constitutional. State ex rel. Weinberger v. Miller, 44: 712, 9!) \. E. 1078, 87 Ohio St. 12. 84. While the Executive, Legislative and Judicial branches of government are, within their respective spheres, supreme, it is for the court to determine whether the boundaries of a particular field have been overstepped, and, if so, to nullify the trans- gression. State ex rel. Mueller v. Thomp- son, 43: 339, 137 N. W. 20, 149 Wis. 488. 85. When a law is clearly in conflict with the Constitution under authority oi which it was enacted, it is the duty of the court to sustain the paramount law, and refuse to enforce any and all legislation in contravention thereof; but unless it is thus clearly in conflict, the act of the legis- lature should be sustained. State ex rel. Weinberger v. Miller, 44: 712, 99 N. E. 1078, 87 Ohio St. 12. 86. The court may determine the question of the constitutionality of a statute, al- though it is not absolutely necessary to the disposition of the cause, if it is in- volved in the suit, and the settlement of the question is one of public importance. Borgnis v. Falk Co. 37:489, 133 N. W. 209. 147 Wis. 327. 87. A court, upon its jurisdiction being properly invoked for the purpose, is in duty bound to test a legislative enactment by ail constitutional limitations bearing thereon, and condemn it if it be found illegitimate, and thus uphold the Constitution as supe- rior to legislative will. Bonnett v. Vallier, 17: 486, 116 N. W. 885, 136 Wis. 193. 88. Legislative declaration as to the construction to be given to a previous stat- ute is not conclusive on the courts. Straub v. Lyman Land & Invest. Co. 46: 941, 138 N. W. 957, 141 N. W. 979, 30 S. D. 310. 89. The courts can give effect, legally, only to the intentions of the law-making body, expressed in a statute or necessarily implied, and may not lawfully assume a secret intention on the part of the legisla- ture, and interpret it into a statute the language of which is plain and unambigu- ous. United States v. Colorado & N. W. R. Co. 15: 167, 157 Fed. 321, 85 C. C. A. 27. 90. The question of the reasonableness of a constitutional act of the legislature can- not be passed upon by the courts. State v. Mayo, 26: 502, 75 Atl. 295, 106 Me. 32. 91. Ordinarily the courts will not sub- stitute their opinions for the judgment of the legislature a* to the reasonableness of an act fixing the rate of speed at which motor vehicles may be lawfully driven. Srhultz v.. State, 33: 403, 130 N. W. 972, 89 Neb. 34. 92. The court will not interfere with a statute requiring the appointment of mem- bers of a commission from the two domi- Digcst 1-52 L.R.A..(N.S.) mint political parties, on the theory that its provisions are arbitrary and unreasonable in requiring a political test as a qualifica- tion for olliee. State ex rel. Jones v. Sar- gent, 27: 719, 124 X. \V. 33'.), 145 Iowa, 298. 93. Where, upon a petition, filed under the proviso of Minn. (li-u. Laws 1!)07, chap. 188 (Rev. Laws Supp. 1909, 1286), for the enlargement of a school district, the county board, in rearranging the districts affected by the change, included in one of the districts land situated in another, under the belief that the same already belonged to the former, such land, furthermore, not being mentioned in either the petition or the notice of hearing, and there being no appearance at the hearing in behalf of the district to which the land belonged, the action of the district court, on appeal from the order of the board, in modifying such order by omitting therefrom the land thus erroneously included therein, did not con- stitute an excess of jurisdiction as being a usurpation of legislative power or other wise; the action of the board with ref- erence to such land being a mere nullity. Oppegaard v. Board of County Comrs. 43: 936, 139 N. W. 949, 120 Minn. 44:?. 94. The courts cannot ingraft an excep- tion of losses caused by negligence of the railroad company on a general statute sub- rogating railroad companies whose opera- tions destroy neighboring property to any insurance upon the property, upon their paying the loss. Boston Ice Co. v. Boston & *M. R. Co. 45: 835, 86 Atl. 356, 77 N. H. 6. 95. Whether rates which have been charged by an irrigation company for water service are unreasonable is a proper subject for judicial inquiry ; and the determination of the question is not a legislative act. Salt River Valley Canal Co. v. Nelssen, 12: 711, 85 Pac. 117, 10 Ariz. 9. 96. The action of the board of control leasing land on which to work state convicts is not, even though corruption is charged, subject to the control of the courts, when it is in the exercise of the discretion com- mitted to it by the legislature. State ex rel. Greaves v. Henry, 5: 340, 40 So. 152, 87 Miss. 125. 97. The power to define and abate nui- sances dangerous to the public health, vest- ed in the boards of health of the different parishes and municipalities by the Consti- tution and laws of the state of Louisiana, is legislative in its nature, and the courts have no right to interfere with its exercise, except in clear cases of abuse. Naccari v. Rappelet, 13: 640, 44 So. 13, 119 La. 272. Inquiry into wisdom of legislation. See also infra, 129, 130. 98. A constitutional statute cannot be declared inoperative because opposed to pub- lic policy. Borgnis v. Falk Co. 37: 489, 133 N. W. 209, 147 Wis. 327. 99. Courts are bound by the expressions of public policy found in constitutional stat- utes. McGuire v. Chicago, B. & Q. R. Co. 33: 706, 108 N. W. 902, 131 Iowa, 340. 100. The extent to which electors of a COURTS, I. c, 2. 755 municipality shall be permitted directly to discharge legislative functions in local af- fairs is purely a question of policy, with which the courts have nothing to do. Ex parte Pfahler, n: 1092, 88 Pac. 270, 150 Cal. 71. 101. The courts cannot interfere with the judgment of the legislature as to how far it will exercise supervision and control of minors, unless its enactments are mani- festly unreasonable. State v. Shorey, 24: 1 121, 86 Pac. 881, 48 Or. 396. 102. The requirement of a full crew on railroad trains for the safety of travelers and employees being within the police power of the legislature, the court will not declare it unconstitutional because it holds views inconsistent with the propriety of the legis- lation. Pennsylvania R. Co. v. Ewing, 49: 977, 88 Atl. 775, 241 Pa. 581. (Annotated) 103. The court will not set aside an em- ployees' indemnity act on the ground that it will prove unnecessarily costly and bur- densome to those whose interests will be affected by it, and will lead to public and private abuses, where it was adopted by the legislature after expert advice and careful consideration of the objections urged against it. State ex rel. Davis-Smith Co. v. Clausen, 37: 466, 117 Pac. 1101, 65 Wash. 156. Determination or finding of fact. 104. A fact once determined by the legis- lature and made the basis of an act, is not thereinafter open to judicial investigation. Woodall v. Darst, 44: 83, 77 S. E. 264, 71 W. Va. 350. 105. The legislative determination of the necessity of a statute prohibiting the casting of mill refuse into a stream, for the protec- tion of food fish, is conclusive upon the courts upon demurrer to a petition seeking to enforce the statute which attempts to question its constitutionality. State v. Has- kell. 34: 286, 79 Atl. 852, 84 Vt. 429. 106. A determination by proper legisla- tive authority that public interests require or justify the vacation of a park way or public grounds of any description is final and conclusive upon the courts, except when reviewed in the manner prescribed by law, and will be presumed to have been based up- on a consideration of public interest. State x rel. Townsend v. Board of Park Comrs. 9: 1045, HO N. W. 1121, 100 Minn. 150. 107. The question of the necessity of clos- ing a public alley is exclusively for the legislature. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. Constitutional amendment. 108. In the absence of some other exclu- sive method of determination provided by the Constitution, whether an amendment has been properly proposed and adopted, ac- -cording to the requirements of the existing Constitution, and has become a part of the fundamental law of the state, is generally -a judicial question. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. 109. Where an act of the legislature pro- posing an amendment to the Constitution of the state directed the governor to publish auch proposition and submit it for ratifica- Digest 1-52 L.R.A.(N.S.) tion at the next general election, the fact that after the election he published a procla- mation declaring that the amendment had been ratified was not conclusive on the courts. Hammond v. Clark, 38: 77, 71 S. E. 479, 136 Ga. 313. Appropriation. 110. Whether an appropriation is for a public or a private purpose is a judicial question; but if it does not clearly appear from the act of appropriation that it is for a purely private purpose, the court cannot so decide. Woodall v. Darst, 44: 83, 77 S. E. 264, 71 W. Va. 350. 111. Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold void a special act appropriat- ing money to t a member of the National Guard, as contravening 39, art. 6, of the State Constitution (Code 1906, p: Ixii), unless it clearly appears that a general law would have accomplished the legislative purpose as well. Woodall v. Darst, 44: 83, 77 S. E. 264, 71 W. Va. 350. b. Police power. (See also same heading in Digest L.R.A. 1-10.) 112. The courts may inquire whether an act, the constitutionality of whiclif is as- sailed, is a valid exercise of the police pow- er and calculated to promote the health, comfort, safety, and welfare of society. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. 113. It is a judicial function to determine the proper subjects for police regulations, and a legislative function to determine primarily the expediency of regulation and the character thereof, subject to judicial supervision to the extent of determining, in cases as they arise, whether the boundaries of reason have been so clearly exceeded as to violate some constitutional prohibition, express or implied. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 114. A legislative declaration respecting the character of a law as, that its purpose is to promote public health is not abso- lutely binding on the courts, but it is their function to determine the real intent of the law, and to give effect to the Constitution by Condemning the enactment if its osten- sible purpose is not its real one. State v. Redmon, 14: 229, 114 N. W. 137, 134 Wis. 89. 115. While what amounts to a reasonable interference with private property under the police power is primarily a question for the legislature, which must determine all matters of expediency in respect thereto, yet in the ultimate it is a question for the courts, which must determine what con- stitutes a proper subject for regulation, and how far the interference may properly ex- tend. Bonnett v. Vallier, 17:486, 116 N. W. 885, 136 Wis. 193. 116. The court has no power to refuse to apply to the proprietor of an hotel, a stat- ute making it a penal offense to discharge 756 COURTS, I. c, 2. any refuse matter into a running stream, on the theory that an act of that character is a mere technical violation of the statute, and not embraced by it. People v. Hupp, 41: 792, 123 Pac. 651, 53 Colo. 80. c. Public purpose; tax; eminent do- main. (See also Same heading in Digest L.R.A 1-10.) Taxes. County tax, see infra, 149. Review of tax generally, see TAXES, III. d. 317. The courts cannot interfere with the rate of taxation which is levied by the leg- islature for the maintenance of highways. State v. Wheeler, 5: 1139, 53 S. E. 358, 141 N. C. 773. 318. An action will not lie to recover taxes paid because the assessment was too high in that proper credits were not given, where no complaint has been made to tire assessing officers, since it calls upon the court to correct an assessment, which it has no jurisdiction to do in the first in- stance. First Nat. Bank v. Hopkinsville, 16:685, 108 S. W. 311, .128 Ky. 383. (Annotated) 119. Whether a distinction should be made between collateral and lineal descend- ants i a matter of legislative discretion, and not a judicial question. State ex rel. Foot v. Ba'zille, 6: 732, 106 N. W. 93, 97 Minn. 11. Eminent domain. See also infra, 143. 120. The expediency and propriety of ex- tending the right of eminent domain to electric power, heat, light, and traction companies, provided each member of the community is given equal rights and priv- ileges in respect thereto, ts a legislative question, and the courts are limited in their inquiry to the question whether the service provided for is a public service. Pittsburg Hydro-Electric Co. v. Listen, 40*: 602, 73 S. E. 86, 70 W. Va. 83. 121. The legislative determination as to what is a public use for the exercise of the rig-ht of eminent domain is not conclusive. Coxad v. Kanawha Hardwood Co. i : 969, 51 S. E. 932, 139 N. C. 283. 122. The question of the necessity of the taking of a parcel of land by right" of ^emi- nent domain in order to effect the abject of the organization of the petitioner is not subject to review by the courts. Pittsburgh, Ft. W. & C. R. Co. v. Sanitary District, 2: 226, 75 N. E. 892, 218 111. 286. 123. The courts have no power to re- exaraine the question of necessity or exigency of a taking of private property for a public library by a municipal corporation to which the legislature has delegated the authority to acquire such property, or the extent to which the property shall be taken, although the Constitution provides, that private property shall not be taken for public use unless the public exigencies re- Digest 1-52 L.R.A.(N.S.) quire it. Hayford v. Bangor, n: 940, 66 Atl. 731, 102 Me. 340. (Annotated) 124. Whether or not there is a sufficient public demand for electrical current to war- rant the granting of the power of ejninent domain to a corporation to enable it to supply the demand is a legislative question. Rutland R. Light & P. Co. v. Clarendon Power Co. 44: 1204, 83 Atl. 332, 86 Vt. 45. d. Offices; elections. (See also same heading in Digest L.R.A. 1-70.) 125. Courts have no inherent power to interfere with the judgment of committees and tribunals of established political par- ties with respect to the filing of notifica- tions of candidacy at a primary election. Roussel v. Dornier, 41: 557, 57 So. 272, 129 La. 930. 126. That property interests are involved in an election because franchises are to be voted on does not give inferior courts hav- ing jurisdiction of all cases, both at law and in equity, jurisdiction to supervise the election. People ex rel. Graves v. District Court, 13: 768, 86 Pa*. 87, 37 Colo. 443. 127. Under a Federal constitutional pro- vision that each house of Congress shall be the judge of the elections, returns, and qual- ifications of its own members, the question whether or not a state statute permitting the electors of r.:ch political party to ex- press their choice of a candidate for the United States Senate contravenes a consti- tutional requirement that United States Senators be elected by the state legisla- tures, cannot be raised by an elector as a judicial question for the courts to deter- mine, but rests entirely with the United States Senate. State ex rel. McCue v. Blaisdell, 24: 465, 118 N. W. 141, 18 N. D. 55. e. Regulations of business; license; rates. (See atso same heading in Digest L.R.A. 1-10.) Municipal license, see infra, 138-140. 128. The courts will not nullify a statute authorizing the sale of intoxicating liquors, on the theory that it violates the spirit of the Constitution or the unwritten Constitu- tion. Campbell v. Jackman. 27: 288, 118 N. W. 755. 140 Iowa, 475. 129. Whether the public good requires that the sale of intoxicating liquor as a beverage shall be wholly or only partially prohibited is a legislative question. State v. Roberts, 16: 1115, 69 Atl. 722, 74 N. H. 476. 130. The discretion of the legislature in classifying those trades and occupations which shall be prohibited un^der the Sun- day rest law will not be interfered with by the courfs, unless in so doing the legisla- ture has violated some constitutional pro- COURTS, L. c, 3. 757 vision. State v, Dolan, 14: 1259, 92 Pac. 995, 13 Idaho, 693. Regulation of rates. Rates established by municipality, see infra, 150-152. 131. The case must be a clear one before the courts should be asked to interfere by injunction with state legislation regulating gas rates, in advance of any actual experi- ence of the practical result of such rates. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 132. A court of equity ought not to inter- fere by injunction with state legislation fixing gas rates before a fair trial has been made of continuing the business under such rates, where the rates complained of show a very narrow line of division between pos- sible confiscation and proper regulation, as based upon the findings as to the value of the property, and the division depends upon variant opinions as to value and upon the results in the future of operating under such rates. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 133. While the fixing of rates, of the de- termination of the facilities to be afforded, in the first instance, is a legislative ques- tion, the determination of the reasonable- ness and lawfulness of the rate or other requirement is a judicial function. Seward v. Denver & R. G. R. Co. 46: 242, 131 Pac. 980, 17 N. M. 557. 134. Where it reasonably appears from a consideration of all the evidence that .ex- press rates fixed by statute are not con- fiscatory, but afford the express company at least some measure of profit for carry- ing on its business, the courts will not in- terfere with the operation of the statute, but will require the party complaining to apply for relief to the rate-making power, or the tribunal provided by the statute with power to increase such rates, if they are al- leged to be unreasonable. State v. Adams Express Co. 42: 396, 122 N. W. 691, 85 Neb. 25. S. Municipal and county matters. a. In general. (See also same heading in Digest L.R.A. 1-10.) See also supra, 50; MUNICIPAL CORPORA- TIONS, 247. 135. In the absence of a statutory right of supervision or control, a court cannot, at the instance of citizens and taxpayers, in any manner restrain or control the gov- erning body of a municipal corporation, in the exercise of powers and functions vested in it by law, whether the discretion and power so vested is legislative, executive, or administrative. Charleston v. Littlepage, 51: 353, 80 S. E. 131, 73 W. Va. 156. 136. The governing body of a city must determine the fact whether one who pre- Digest 1-52 L.R.A.(N.S.) sents a bid for a contract, under a statute requiring it to be let to the lowest respon- sible bidder, is in fact sudi; and such de- termination cannot be set aside by a court unless the action of such tribunal is arbi- trary, oppressive, or fraudulent. Williams v. Topeka, 38:672, 118 Pac. 864, 85 Kan. 857. As to offices. 137. A mayor's act in appointing a ma- jority of the members of a board of com- missioners from the minority, rather than the dominant, political party, will not be interfered with by the courts where the statute provides that as far as practicable two members of the board shall be appoint- ed from the dominant political party, and one from the party next in numerical strength, where there is nothing to show that he abused his discretion or was guilty of fraud or collusion. State ex rel. Jones v. Sargent, 27: 719, 124 N. W. 339, 145 Iowa, 298. As to licenses. See also infra, 146, 147. 138. The discretion of municipal authori- ties in fixing the amount of a license fee will be disturbed by the courts only in case of manifest abuse of power. Schmidt v. In- dianapolis, 14: 787, 80 N. E. 632, 168 Ind. 631. 139. The discretion of the municipal corpo- poration in exercising its taxing power up- on the business of peddling within its limits is not beyond the power of the courts to review, so far as it affects the reasonable- ness of the tax. Iowa City v. Glassman, 40: 852, 136 N. W. 899, 155 Iowa, 671. 140. The courts cannot review the deci- sion of a city council exercised pursuant to an ordinance enacted under charter au- thority, providing that it shall, if the appli- cant for a liquor license is in its opinion a proper person to carry on such business, direct the issuance of a license, refusing to grant a license thereunder on the ground that the applicant is an unfit person to carry on such business, where no provision is made therefor, and it does not appear that the discretion thereby vested in the council has been abused or that it acted arbitrarily or 5n an unlawful manner, al- though it is alleged that the applicant is a person of good moral character and fit to carry on such business. Darby v. Pence. 27: 1194, 107 Pac. 484, 17 Idaho, 697. (Annotated) As to highways. Inquiry into reasonableness of ordinance, see MUNICIPAL CORPORATIONS, 125. See also supra, 107; CONSTITUTIONAL LAW, 596. 141. The courts cannot interfere with a declaration of a municipality that it is necessary that certain streets shall be opened, unless it is made to appear that they are not to be for the use of the public, but are for the exclusive advantage of an individual. Louisville & N. R. Co. v. Louis- ville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 142. The courts will not inquire into the motives of municipal authorities in closing 758 COURTS, I. c, 3. a public alley, unless it is manifest that a flagrant wrong has been perpetrated upon the public and valuable rights have been surrendered ostensibly for the public good, but really for the benefit of private individ- uals. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 143. The expediency or necessity of ex- tending a city street across a railroad right of way is a question to be determined by the city council, and its determination is con- clusive, and not reviewable by the court in a proceeding to condemn a strip of land for the street across the railroad. Grafton v. St. Paul M. & M. R. Co. 22: i, 113 N. W. 598. 16 N. D. 313. (Annotated) 144. A contract by a municipal corpora- tion to grant the use of its streets for gas mains, and relinquish rights under for- mer contracts, is not, although in the form of an ordinance, a legislative act with which the courts have no power to interfere if fraud appears. State ex rel. Abel v. Gates, 2: 152, 89 S. W. 881, 190 Mo. 540. ( Annotated ) 145. The courts will not interfere with the exercise of discretion of a municipal corporation in locating street car tracks along the side, rather than in the center, of a street, unless such exercise of discretion is fraudulent or manifestly abusive or op- pressive. Wagner v. Bristol Belt Line R. Co. 25: 1278, 62 S. E. 391, 108 Va. 594. 146. A declaration of forfeiture of a street railway privilege in a street by the council of a town, effected by repeal of the ordinance by which the privilege was grant- ed, pursuant to a reservation of power so to do, for cause and after notice, has not the force and effect of a judicial determina- tion of the existence of cause for forfeiture, and does not preclude a resort to the courts by the railway company for vindication of its rights. Wheeling & E. G. R. Co. v. Triadelphia, 4: 321, 52 S. E. 499, 58 W. Va. 487. (Annotated) 147. The court will not interfere with the act of a municipal corporation in re- voking authority to a railroad company to lay an additional track in a public street, unless it is arbitrary, unreasonable, capricious or whimsical. Grand Trunk W. R. Co. v. South Bend, 36: 850, 89 N. E. 885, 91 N. E. 809, 174 Ind. 203. Local improvements. 148. The decision of municipal authorities that an improvement is local, the cost of which/ may be met by special assessments, is subject to review by the court. Wauke- gan v! De Wolf, 45: 918, 101 N. E. 532, 258 111. 374. Tax. Appeal to courts from tax assessments, see TAXES, 199-201. 149. A determination by a board of supervisors that a great emergency or neces- sity exists, so as to justify the exercise of charter authority to levy a special tax, is not conclusive on the courts. San Christina Invest. Co. v. San Francisco, 52:676, 141 Pac. 384, 167 Cal. 762. Digest 1-52 I,.R.A.(N.S.) Rates. 150. A rate established by a municipal corporation under legislative authority for furnishing gas to its inhabitants is pre- sumed to be reasonable, and will not be interfered with by the court unless it is shown to be so low as to operate as a con- fiscation of the property of the gas com- pany without due process of law. Cedar Rapids Gaslight Co. v. Cedar Hapids, 48: 1025, 120 N. W. 966. 144 Iowa, 4-26. 151. The court will not interfere with a rate for gas to be furnished by a public service corporation which allows a profit of 7 or 8 per cent on the value of the plant over the encumbrance. Cedar Rapids Gas- light Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 152. The courts will not interfere with rates fixed for telephone service which allow a return of over 9 per cent on the corpora- tion's own valuation of its property. Home Teleph. Co. v. Carthage, 48: 1055, 139 S. W. 547, 235 Mo. 644. b. Revieiv of ordinances. (See a/so same heading in Digest L.R.A. 1-10.) Injunction against ordinances, see INJUNC- TION, 299, 300, 303, 338-348. Interference with enforcement of ordinance, see MUNICIPAL COBPOBATIO.NS, 76. 153. In the absence of facts pleaded, showing a fixed and continuous policy of un- just discrimination on the, part of the mu- nicipality in enforcing an ordinance, the courts will not enter upon a consideration of that question as affecting the rights of persons' complaining of its enforcement. Schmidt v. Indianapolis, 14: 787, 80 N. E. 632, 168 Ind. 631. Inquiry into purpose or motive. See also supra, 142. 154. Courts have a right to determine whether or not ordinances sought to be up- held as police regulations were in fact passed for the purpose of raising revenue. Wisconsin Teleph. Co. v. Milwaukee, i: 581, 104 N. W. 1009, 126 Wis. 1. 155. The courts will not, in passing upon the validity of a municipal ordinance \vkich is clearly within the charter power of the municipality, consider allegations in a plead- ing that the intent in passing the ordinance was to discriminate in favor of domestic enterprises against those located elsewhere, but doing business within the city. Schmidt v. Indianapolis, 14: 787, 80 N. E. 632, 168 Ind. 631. As to nuisances. 156. The courts cannot declare invalid an ordinance prohibiting the location of a hospital within a certain distance of resi- dences without the consent of their owners, because it was passed upon their solicita- tion. Shepard v. Seattle, 40: 647, 109 Pac. 1067. 59 Wash. 363. 157. The determination by a municipal corporation that a building infected with f.r. "-.A f,T r;---. . f t*,ict COURTS, I. d, 1. 759 smallpox is a nuisance which should be summarily destroyed does not prevent the owner from testing the question of nuisance vel non in an action to hold the municipal- ity liable for its value. Sings v. Joliet, 22: 1128, 86 N. E. 663, 237 111. 300. 158. The declaration by a municipal coun- cil that an exhibition of human anatomy in connection with a place where medical treatment is offered or medicine sold is a nuisance is conclusive on the courts. Chi- cago v. Shaynin, 45: 23, 101 N. E. 224, 258 111. 69. 159. Charter authority to a municipal corporation to prevent the carrying on of a business which may be dangerous or detri- mental to public health, and to declare and abate nuisances, does not deprive the courts of power to review its determination that the operation of a brickyard within certain prescribed limits within the city is a nui- sance. Denver v. Rogers, 25:247, 104 Pac. 1042, 46 Colo. 479. 160. Where a common council, without a full hearing, declares a bowling alley to be a nuisance, with the view of having the mat- ter submitted to the courts for adjudica- tion, the action of the council will be deemed to be arbitrary, and will be set aside. Shreveport v. Leiderkrantz Soc. 40: 75, 58 So. 578, 130 La. 802. 161. The determination by a munici- pality having power to declare what shall be a nuisance, that any rooms where bil- liard and pool tables are kept or operated for hire shall be deemed a public nuisance, is conclusive upon the courts. Re Jones, 31: 548, 109 Pac. 570, 4 Okla. Crim. Rep. 74. Minimum wage. 162. The court will not pronounce an ordinance fixing a minimum wage of $2.75 per day for common labor on public con- tracts unreasonable in the absence of evi- dence showing it to be so, although such wage is 25 per cent higher than the pre- vailing price for such labor. Malette v. Spokane, 51:686, 137 Pac. 496, 77 Wash. 205. Milk. 163. The method to be adopted by the health authorities to insure a supply of pure milk, and the standard by which the same shall be determined, is a legislative question, and the adoption of a particular method cannot be reviewed by the courts, unless so arbitrary as to be violative of the constitutional rights of the citizens affect- ed. Nelson v. Minneapolis, 29: 260, 127 N. W. 445, 112 Minn. 16. 164. The courts will not interfere with an ordinance requiring cattle from which milk is to be sold in the city to be tested with tuberculin, on the ground that the scientific theory on which the ordinance is based is incorrect or unsound, although there are conflicting scientific beliefs upon the question, and the tuberculin test is not an infallible means of determining whether or not the cattle have tuberculosis, while there is a lack of evidence that tuberculosis of the human lungs is caused by the bovine type of bacillus, if milk from tubercular Digest 1-52 I,.R.A.(N.S.) cows is shown to be harmful to health. Adams v. Milwaukee, 43: 1066, 129 N. W. 518, 144 Wis. 371. Lights at railroad crossing. ,-.* 165. A railroad company directed by mu- nicipal ordinance to light its street cross- ings has no right to question in the courts the necessity of the ordinance, or the fair- ness, honesty, or propriety of the exercise of the power. Pittsburg, C. C. & St. L. R. Co. v. Hartford City, 20: 461, 82 N. E. 787, 170 Ind. 674. Prevention of fires. 166. The court will not ordinarily super- vise the action of municipal authorities in establishing fire limits. State v. Lawing, 51: 62, 80 S. E. 69, 164 N. C- 492. f'. .;, ,ji ;,[$ , ';, , ( i-( ti'li I!' II .! : . 'T'l I d. Jurisdiction over associations, etc. ; conclusiveness of decisions of their tribunals. 1. Associations generally. (See also same heading in Digest L.R.A. 1-10.) .,- ..> 10 4tOttO'>'i9H Jurisdiction of action by corporate stock- holders, see COBPORATIONS, V. e, 2. Effect of constitution or by-laws of insur- ance company, see INSUBANCE, 1*11- 114. Provision in benefit certificate making con- clusive decisions of associations as to rights of member, see INSUBANCE, 87. 167. A claxise in a mutual benefit certifi- cate, relating to appeals, which provides that the decision of the supreme court of the order shall be final and conclusive, will be construed as intending only to mark the distinction between the effect of the decision of the supreme court of the order and that of its other courts, and not to exclude the jurisdiction of the legal tribunals. Gilroy v. Supreme Court I. 0. F. (N. J. Err. & App.) 14: 632, 67 Atl. 1037, 75 N. J. L. 584. 168. A stipulation by which a holder of a benefit certificate agrees to seek the rem- edy for all his rights on account of such membership in the tribunals of the order does not prevent his resorting to the courts in the first instance to enforce payment of a benefit due under the contract. Kelly v. Trimont Lodge, 52: 823, 69 S. E. 764, 154 N. C. 97. (Annotated) 169. The courts will not control the dis- cretion of the officers of an insurance asso- ciation in refusing to reinstate a member who has forfeited his rights by nonpay- ment of dues, where the contract provides that any person in such circumstances may be reinstated "in the discretion of the of- ficers," "upon his furnishing them satisfac- tory evidence that he is in good health:" at least, where there are facts bearing upon the question of his health which might in- fluence the sound judgment and good con- science of an officer to decide against re- instatement. Conway v. Minnesota Mut. L. Ins. Co. 40: 148, 112 Pac. 1106, 62 Wash. 49. (Annotated) 760 COURTS, I. d, 2. 170. The court cannot hold that a mis- representation by an insured as to his age and the amount of intoxicants used during 'a day is not so material to the risk as to influence against reinstatement the sound judgment and good conscience of officers of the company in whom is vested the discre- tion as to his reinstatement after forfeiture of the policy for nonpayment of dues, upon his furnishing satisfactory evidence of health. Comvay v. Minnesota Mut. L. Ins. Co. 40: 148, 112 Pac. 1100, 02 Wash. 49. 171. While a complaining member of a labor union should exhaust the remedies provided by the laws of the organization be- fore applying to the courts, yet where those laws provide no remedy, and the organixa- tion provides none, but meets the demands therefor with futile correspondence and vexatious and unnecessary delays, it be- comes a question for the courts to deter- mine whether or not the member has done all within his organization that could rea- sonably be expected of him. Schneider v. Local Union No. 00, 5: 891, 40 So. 700, 116 La. 270. Rejection of claim; duration of dis- ability. 172. The doctrine that an award of arbi- trators may oust the courts of jurisdic- tion does not apply to the rejection by the officers of a mutual benefit society, of a claim on a member's certificate. Supreme Council, C. B. L. v. Grove, 36: 913, 96 N. E. 159, Ind. . 173. A regulation of a railway relief as- sociation that the right of a member to benefits shall depend upon his incapacity to earn a livelihood in* any employment suited to his capacity, which fact shall be conclusively determined by the advisory committee of the association, one half the members of which are chosen by the bene- ficiaries, is valid, and a decision of the board cannot be reviewed by the courts in the absence of fraud or mistake. Pennsyl- vania Co. v. Reager, 52: 841, 164 S. W. 412, 152 Ky. 824. 174. A railroad relief department may make the determination of its own tribunals as to the duration of a disability for which a member is entitled to benefits conclusive in case he resorts to such tribunal, in the absence of fraud or undue influence, so as to prevent the member from subsequently re- sorting to the courts for a determination of the question. Nelson v. Atlantic Coast Line R. Co. 52: 829, 72 S. E. 998, 157 N. C. 194. 176. A determination by a fire depart- ment relief association, that a member thereof previously entered upon the pension roll had fully recovered from his disability, is not final and conclusive, where the mem- ber had no notice, and was not afforded an opportunity to be heard upon the ques- tion. Stevens v. Minneapolis Fire Depart. Relief Asso. 50: 1018, 145 N. W. 35, 124 Minn. 381. 176. The right of a court to set aside the determination of a fireman's relief associa- tion that one of its members who had been Digest 1-52 L.R.A.(N.S-) placed upon the pension roll had recovered from his disability, and was therefore no longer entitled to receive the pension, is not limited to instances of manifestly ar- bitrary action by the association, where the person affected was given no notice or opportunity to be heard as required by the by-laws of such association, but in such a situation the court is controlled by the rule of preponderance of evidence. Stevens v. Minneapolis Fire Depart. Relief Asso. 50: 1018, 145 N. W. 35, 124 Minn. 381. Expnlsi-on. 177. One wrongfully expelled from a fra- ternal benefit society is not bound to ex- haust his remedy within the order before suing for damages for the wrong. Inde- pendent Order ot S. & D. of J. of A. v. Wilkes, 52: 817, 53 So. 493, 98 Miss. 179. (Annotated) 178. The courts cannot review the pro- ceedings of a benefit society leading to the expulsion of a member, or re-examine the merits of the expulsion. Wilcox v. Supreme Council, R. A. 52: 806, 104 N. E. 624, 210 X. Y. 370. (Annotated) 2. Religious societies. (8 (# also same heading in Digest L.R.A 1-10.) Jurisdiction of equity to reinstate pastor, see EQUITY, 16. Powers of ecclesiastical tribunals, generally, see RELIGIOUS SOCIETIES, IX. 179. Where a local church or parish is a member of a general organization hav- ing general rules for the government and conduct of all its adherents, congregations, and officers, the final orders and judgments of the general organization through its governing authority, so far as they relate exclusively to church affairs and church government, are binding on the local asso- ciations and their members and officers, and courts will not ordinarilv review such final orders and judgments for the purpose of determining their regularity, or accordance with the discipline and usages of the gen- eral organization. Parish of the Immacu- late Conception v. Murphy, 35: 926, 131 N. W. 946, 89 Neb. 524. 180. A civil court has no jurisdiction to examine into the regularity and validity of a church tribunal, and restrain its proceed- ings for nonconformity with its own laws, in a matter concerning only spiritual or ecclesiastical rights. Ramsey v. Hicks, 30: 665, 91 N. E. 344, 92 N. E/164, 174 Ind. 428. 181. A court of chancery has no power, apon ascertaining, in a suit between fac- tions of a religious society to compel trans- fer of the legal title of its property from one trustee to another, that the result of an election by the society or the choice of the trustee is unsatisfactory and doubt- ful, to order and conduct another election for the purpose of settling the question of the choice of the society, although it is COURTS, I. d, 2. roi consented to by the parties to the action. Mazaika v. Krauczunas, 31:686, 77 Atl. 1102, 229 Pa. 47. (Annotated) As to property rights. See also infra, 192. 182. A voluntary religious society which constitutes a subordinate part of a religious organization haviftg established tribunals authorized to decide all questions of faith, discipline, rule, or ecclesiastical government is bound by the decisions thereof on all questions within their jurisdiction; and when a right of property asserted in a civil court is dependent upon a question decided by the highest tribunal within the organi- zation, to which it has been regularly and properly carried, while acting within its proper jurisdiction, the civil courts will ac- cept that decision as conclusive and be gov- erned by it. Mack v. Kime, 24: 675, 58 S. E. 184, 129 Ga. 1. 183. Civil courts, as a general rule, where property rights are involved, will interfere to protect the members of an ecclesiastical organization 'who adhere to the tenets and doctrines which the organization was organ- ized to promulgate, and to protect them in their right to use the property, as against those members of. the organization who are attempting to divert the same to purposes utterly foreign; and the constituted author- ities of a ehurch will not, where members' rights are involved, be permitted entirely to abandon the purposes for which the church was organized. Mack v. Kime, 24: 675, 58 S. E. 184, 129 Ga. 1. 184. When property acquired by an ec- clesiastical orgaaization is devoted, by the express terms of a gift, grant, or sale, to support any specific religious doctrine or belief, the civil courts, when necessary to protect the trust to which the property has been devoted, will inquire into the religious faith or practice of the parties claiming its use or control, and will see that i-t shall not be diverted from that trust; but if property is acquired in the ordinary way, by purchase or gift, for the use of a re- ligious society, the civil courts will only inquire as to who constitute that society, or its legitimate successors, and award to them the use of the property, and will not, in case of a schism in the organization, in- quire into the existing religious opinion of those who adhere to the acknowledged or- ganization. Mack v. Kime, 24: 675, 58 S. E. 184, 129 Ga. 1. Consolidation. 185. The decision by the highest tribunal of a religious society, to which is committed the supreme legislative, judicial, and execu- tive power of the church, that it has power to enter into a union with another religious society, is not subject to review by the civil courts. Brown v. Clark, 24: 670, 116 S. W. 360, 102 Tex. 323. (Annotated) 186. The decision by the highest tribunal of a religious society, to which is committed the supreme legislative, judicial, and execu- tive power of the Church, that th fact that another religious society admits, under cer- tain conditions, negroes to participate in Digest 1-52 L.R.A.(N.S.) its courts and public meetings, which is not permitted by its own constitution, is not inimical to a union of the two societies, is not subject to review by the civil courts. Brown v. Clark, 34: 670, 116 S. W. 30'0, 102 Tex. 323. 187. The decision of the highest tribunal of an ecclesiastical body, having authority to decide all controversies of doctrine, that a change made by another religious body in its confession of faith has removed all ob- stacles to the union of the two bodies, is binding on the civil courts. Brown v. Clark, 24: 670, 116 S. W. 360, 102 Tex. 323. 188. The decision of a proper church tri- bunal proceeding in manifest good faith, under color of authority, that it has juris- diction to form a union with another church, is binding on the civil courts, al- though such authority is not expressly con- ferred by the constitution of the church. Ramsey v. Hicks, 30: 665, 91 N. E. 344, 92 N. E. 164, 174 Ind. 428. 189. The act of a church judicatory which has authority to amend its Confession of Faith and constitution so as to make them conform to those of another ecclesiastical society, in effecting a union with such other society rather than a specific amendment of the Confession and constitution, is one of policy or expediency rather than of pow- er or authority, and therefore cannot be questioned by the civil courts. Ramsey v. Hicks, 30: 665, 91 N. E. 344, 92 N. E. 164, 174 Ind. 428. 190. The decision of the General Assem- bly of the Cumberland Church, that the revised Confession of Faith of the Presby- terian Church was in substantial accord with its own doctrinal tenets, is binding and conclusive upon the membership of the church arid upon the civil courts. Ramsey v. Hicks, 30: 665, 91 N. E. 344, 92 N. E. 164, 174 Ind. 428. Change of constitution or doctrine. 191. A civil court, in determining whether there has been an abandonment of tenets and doctrines in an ecclesiastical organiza- tion, will look to the decisions of the con- stituted tribunals thereof having jurisdic- tion to decide differences as to teachings and doctrines, and will never revise the judgment of such a tribunal as to a question within its jurisdiction, and will interfere only when it is manifest that what the ehurch tribunal has adjudicated is not a difference of opinion as to doctrine or teach- ing, but is an attempt, in the form of such adjudication, utterly to abandon the pur- poses for which the church was organized. Mack v. Kime, 24: 675, 58 S. E. 184, 120 Ga. 1. (Annotated) Expulsion; excommunication. Mandamus to reinstate expelled member, see MANDAMUS, 12. 192. Equity will aid a member of a church expelled for the fraudulent pur- pose of devoting the church property to purposes entirely foreign to that of the church organization, to preserve the trust property, notwithstanding the -rules of the organization permit the expulsion of mem- 762 COURTS, I. e II. a, 1. bers without formal trial. Hendryx v. Peo- ple's United Church, 4: 1154, 84 Pac. 1123, 42 Wash. 336. (Annotated) 193. A final judgment of a Roman Cath- olic ecclesiastical court excommunicating a priest from the Roman Catholic Church is not reviewable by the courts to determine the regularity or accordance with the pro- ceeding of the discipline and usages of such church organizations. St. Vincent's Parish v. Murphy, 35: 919, 120 N. W. 187, 83 Neh. 630. (Annotated) e. Legislative power as to. (See also same heading in Digest L.R.A 1-10.) To abridge court's inherent power as to contempt, see CONTEMPT, 98. Partial invalidity of statute as to, see STATUTES, 65, 66. 194. Constitutional provisions establish- ing courts of justice are not infringed by statutory provisions making the decision of trustees of a police' pension fund upon a claim final and conclusive. Board of Trus- tees v. McCrory, 21: 583, 116 S. W. 32$, 132 Ky. 89. 195. Under a constitutional amendment that no provision of the Constitution shall be considered as a limitation upon the au- thority of the legislature to confer powers upon the railroad commission created by such amendment, declaring that the power of the legislature to confer powers upon the commission is plenary and unlimited by any provision in the Constitution, the legis- lature may limit a review of the decisions of the commission to the supreme court, thereby interfering with the constitutional powers of the superior court, and permit a review by the supreme court of constitution- al questions, thereby enlarging its consti- tutional powers. Pacific Teleph. & Teleg. Co. v. Eshleman, 50: 652, 137 Pac. 1119, 166 Cal. 640. 196. Permitting the chancery court to set aside the verdict upon an issue directed by it to the law court in a suit to quiet title to real estate does not violate the constitu- tional preservation to courts of law and equity of their respective powers and juris- diction. Brady v. Cartaret Realty Co. (N. J. Err. & App.) 8: 866, 64 Atl. 1078, 70 N. J. Eq. 748. (Annotated) f. Power of municipality over. (See same heading in Digest L.R.A. 1-70.) g. Loss of jurisdiction. (Sec also same heading in Digest L.E.A. 1-70.) Loss of jurisdiction to impose criminal sen- tence by suspension, see CRIMINAL LAW, 283-287. Loss of jurisdiction by justice of the peace, see JO-STICK OF THE PEACE, 7. Digest 1-52 L.R.A.(N.S.) 197. Where the court once legally ac- quires jurisdiction of an unborn heir by representation through living heirs of the same class, its subsequent birth without thereafter being made a direct party to the cause does not devest the court of jurisdic- tion to decree against it, though to do so is error. Boal v. Wood, 42: 439, 73 S. E. 978, 70 W. Va. 383. 77. State and territorial courts, a. Jurisdiction. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Jurisdiction in particular kinds of actions and proceedings, see ACCOUNTING; AD- MIRALTY; ATTACHMENT; CEBTIORARI; CLOUD ON TITLE ; CORPORATIONS ; CREDI- TORS' BILL; DIVORCE AND SEPARATION, II.; EQUITY, I.; EXECUTOR^ AND ADMIN- ISTRATORS; FRAUD AND DECEIT, VIII.; FRAUDULENT CONVEYANCES, VIII. ; GAR- NISHMENT; GUARDIAN AND WARD, 5, 6; HABEAS CORPUS; INCOMPETENT PER- SONS; INFANTS; INJUNCTION; INSUR- ANCE, VI. h; MANDAMUS; MARRIAGE, IV.; MORTGAGE, VI.; NUISANCES, II.; PARTNERSHIP; PROHIBITION, I.; RE- CEIVERS, I., IV.; REPLEVIN; SPECIFIC PERFORMANCE; TRESPASS; TROVER; WILLS, IV. Nature of case brought before mayor's court, see ACTION OR SUIT, 56. Appellate jurisdiction of, see APPEAL AND ERROR, II. c. Jurisdiction of action to enforce stockhold- ers' liability, see CORPORATIONS, 358. Statute limiting review of decision of rail- road commission to supreme court, see COURTS, 195. Jurisdiction to enjoin filing of rates with interstate commerce commission, see INTERSTATB COMMERCE COMMISSION, 3. 198. A proceeding in a division of a cir- cuit court of general jurisdiction is none the less entitled to the presumptions at- tending the proceedings of such courts be- cause of the fact that in a matter of detail in the administration of justice certain criminal cases are assigned to it which may take up its whole time. Ex parte Clark, 15: 389, 106 S. W. 990, 208 Mo. 121. 199. A civil district court has jurisdic- tion of a complaint to compel police au- thorities to destroy pictures of the plaintiff intended for the rogues' gallery, and taken after the plaintiff had been accused of a crime for which he has never been tried, since the action relates to a personal right. Schulman v. Whitaker, 7: 274, 42 So. 227, 117 La. 704. 200. A state court has jurisdiction of an action for damages for breach of contract by a carrier to transport property from such state into or through others, which is not founded on the rights created by the - COURTS, II. a, 1. 763 Federal interstate commerce act. St. Louis S. W. R. Co. v. Wallace, 22: 379, 118 S. W. 412, 90 Ark. 138. 201. Under a 'statute giving mayors the jurisdiction and powers of justices of the peace, they have authority to hear a com- plaint in a bastardy proceeding, and bind accused over to the circuit court. Evans v. State ex rel. Freeman, 2: 619, 74 N. E. 244, 165 Ind. 369. 202. The general jurisdiction of the dis- trict court to grant injunctions is not ousted by a constitutional provision conferring authority upon county courts to grant in- junctions when the controversy is within their limited jurisdiction. Ex parte Alli- son, 3: 622, 90 S. W. 492, 48 Tex. Crim. Rep. 634. 203. The district court is not deprived, on the ground that the case involves a set- tlement of the accounts of an executor, of jurisdiction to decree performance of a contract made by a devisee to divide the residue of real property charged with the support of a person for life with an heir, in case he withdrew objections to the pro- bating of the will, although it is necessary to ascertain incidentally the expense in- curred for support, and to determine a claim of the heir that he is also entitled to share in the residue of the personal prop- erty. Grochowski v. Grochowski 13: 484, 109 N. W. 742, 77 Neb. 506. 204. A declaration alleging the wilful re- fusal of a telegraph company to pay money in its hands, to which the plaintiff was en- titled, with full knowledge that the plaintiff would thereby be compelled to travel with- out food for more than twenty-four hours, states a bona fide claim within the jurisdic- tion of the circuit court, even though the money withheld be below the jurisdictional amount of that court. Western U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, 50 Fla. 474. Election contests. 205. Okla. Const, art. 7, 2, 10, pro- viding that the supreme court and the dis- trict court shall have power to issue writs of quo warranto, simply fixes the ancient remedies secured by such writs, leaving to the legislature the right to prescribe the procedure, and under the statute providing that the remedies theretofore obtainable in that form might be had by civil action, and extending the remedy so as to permit a private person to contest with another pri- vate person the right or title to a public office, the district court has jurisdiction of a civil action in the nature of quo war- ranto, to try title to the office of county judge, as between two contestants therefor. Newhouse v. Alexander, 30: 602, 110 Pac. 1121, 27 Okla. 46. 206. County courts are not deprived of their statutory jurisdiction to decide elec- tion contests as to municipal offices, by the enactment of a statute granting cities power by ordinance to decide such contests, since, as the latter act merely provides a new remedy for an existing right, that neither denies the existing remedy nor is incompatible with it, the new remedy is Digest 1-52 L.R.A.(N.S.) cumulative; and a contestant can invoke either of the remedies at his election, as they are concurrent. State ex rel. Love v. Cosgrave, 26: 207, 122 N. W. 885, 85 Neb. 187. (Annotated) Maritime lien. 207. Liens upon vessels created by state statute are enforceable by state courts, where they are not within the admiralty jurisdiction. West v. Martin, 21:324, 97 Pac. 1102, 51 Wash. 85. Condemnation proceedings. 208. The creation of a superior court for a county with jurisdiction equal to, and con- current with, the circuit court in all civil actions and proceedings in law and in equi- ty, the statute declaring that, whenever any statute shall mention the circuit court, the words shall be deemed to apply to the judge of the superior court, will entitle that court to entertain jurisdiction of condemnation proceedings, power of which is conferred by statute upon the circuit court or the judges thereof. Wisconsin River Improv. Co. v. Pier, 21 : 538, 118 N. W. 857, 137 Wis. 325. Trademarks. 209. A state court has jurisdiction of a suit to recover profits made through the in- fringement of a trademark. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. Action under Federal employers' lia- bility act. 210. The enforcement of rights under the employers' liability act of April 22, 1908, regulating the liability of interstate rail- way carriers for the death or injury of their employees while engaged in interstate com- merce, cannot be regarded as impliedly re- stricted to the Federal courts, in view of the concurrent jurisdiction provision of the judiciary act of August 13, 1888, 1, and of the amendment made by the act of April 5, 1910, to the original employers' liability act, which, instead of granting jurisdiction to the state courts, presupposes that they already possess it. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 211. Jurisdiction of an action to enforce the rights arising under the employers' lia- bility act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their e'mployees while engaged in interstate commerce, may not be declined by the courts of a state whose ordinary jurisdiction as prescribed by local laws is adequate to the occasion, on the theory that such statute is not in harmony with the policy of the state, or that the exercise of such jurisdiction will be attended by inconvenience and confusion because of the different standards of right established by the congressional act and those recog- nized by the laws of the state. Mondou v. New York, N. H. & H. R. Co. 38: 44, 32 Sup. Ct. Rep. 169, 223 U. S. 1, 56 L. ed. 327. 212. State courts may, on the ground of comity, take jurisdiction of actions by em- ployees to recover damages from railroad companies for personal injuries arising un- der the employer's liability act of Congress 764 COURTS, II. a, 2. relating to interstate commerce, of April 22, 15)08. Bradbury v. Chicago, R. I. & P. R. Co. 40: 684, 128 N. W. 1, 149 Iowa, 51. (Annotated) 2. Oriffinal jurisdiction of appellate court; superintending control. (See also same heading in Digest L.R\A. 1-10.) Amendment in exercise of original jurisdic- tion of alternative writ of mandamus, se MANDAMUS, 117. Power to issue writ of prohibition, see PBO- HIBITI.ON, 2. 213. A constitutional provision conferring upon the supreme court jurisdiction of civil cases in which the state is- a party includes any civil action in which the state has such an interest that the action may be brought and prosecuted in its name. State v. Chi- cago, B. & Q. R. Co. 34: 250, 130 N. W. 295, S^Neb. 669. 214. The jurisdiction conferred upon the supreme court of a state by the Constitu- tion, "in all civil cases in which the state shall be a party," is not confined to cases in which the state has a mere pecuniary interest, but may extend to all cases in which the state, through its proper officers, seeks the enforcement of public right or the restraint of public wrong. State v. Pacific Exp. Co. 18: 664, 115 N. W. 619, 80 Neb. 823. 215. A suit to enjoin violation of a stat- ute forbidding intoxication and the drink- ing of intoxicating liquors upon railway trains may be brought in the supreme court by the attorney general, upon application of the state railway commissioners, where that court has original jurisdiction of civil actions in which the state is a party. State v. Chicago, B. & Q, R. Co. 34: 250, 130 N. W. 295, 88 Neb. 6C9. 216. A court-martial is not an inferior court within the meaning of a constitutional provision giving a supreme court appellate jurisdiction and a general superintending control over inferior courts, since such court, although exercising judicial func- tions, belongs to the executive department of the government, and not to the judicial. State ex rel. Poole v. Nuchols, 20: 413, 119 N. W. 632, 18 N. D. 233. (Annotated) 217. To invoice the ordinary original ju- risdiction of the supreme court, leave to proceed must in all cases be first obtained from the court itself, upon a prima facie showing 1 by affidavit that the case is a proper one for its cognizance. State ex rel. West v. Cobb, 24: 639, 104 Pac. 361, 24 Okla. 662. 218. The writs, power to issue which is conferred upon the supreme court by a con- stitutional provision authorizing it to issue writs of habeas corpus, mandamus, quo war- ranto, certiorari, injunction, and other reme- dial writs, are the prerogative writs of the common law, and the jurisdiction over them conferred by such grant of power, is exchi- Digest 1-52 L.R.A.(N.S.) sive. People ex rel. Graves T. District Court, 13: 768, 86 Pac. 87, 37 Colo. 443. (Annotated) 219. Concurrent original jurisdiction to issue remedial writs is not conferred upon the district and supreme courts by consti- tutional provisions conferring upon the one original jurisdiction of all cases both at law and in equity, and upon the other power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and oth- er remedial writs. People ex rel. Graves v. District Court, 13: 768, 86 -ac. 87, 37 Cold. 443. 220. The supreme court may, in the exer- cise of its original jurisdiction, issue a writ of mandamus to compel an inferior court to execute a decree in favor of a pri- vate citizen, if its refusal would amount to a denial of justice. People ex rel. Farmers' Reservoir & Irrig. Co. v. District Court, 24: 886, 104 Pac. 484. 46 Colo. 386. 221. Writs on behalf of the state to pre- vent frauds at elections can be issited only by courts having jurisdiction to issue pre- rogative writs. People ex rel. Graves v. District Court, 13: 768, 86 Pac. 87, 37 Colo. 443. 222. The supreme court has original juris- diction to enjoin the consummation of a conspiracy to carry an election by fraud, under a constitutional provision giving it power to issue writs of habeas corpus, man- damus, quo warranto, certiorari, injunction, and other remedial writs, with the authority to hear and determine the same. People ex rel. Miller v. Tool, 6: 822, 86 Pac. 224, 35 Colo. 225. 223. The supreme court will not exercise its original jurisdiction merely to determine which of two candidates for a county office received the greater number of votes at a nominating election. State ex rel. Rinder v. Goff, 9: 916, 109 N. W. 628. 129 Wis. 668. 224. The supreme court will exercise ita original jurisdiction to determine whether or not, under a new primary election law, the certificate of nomination, when once is- sued, is conclusive and cannot be rescinded by the canvassing board, since the question is one of general importance to the state and could not be decided in the regular way in the short time between the primary and gen- eral election ; but the court will not decide the ancillary question, which of two candi- dates for nomination for a certain office re- ceived the greater number of votes. State ex rel. Rinder v. Goff, 9: 916, 109 N. W. 628, 129 Wis. 668. 225. An application to the supreme court for an original writ to enjoin the secretary of state from certifying to the various county auditors the names of candidates for nomination for the office of United States Senator for the purpose of having such names placed upon the general election ballots presents and involves a question of public right, or one affecting the sovereignty of the state, its franchises and prerogatives, or the liberty of the peqple. State ex rel. McCue v. Blaisdell, 24: 465, 118 N. W. 141, 18 N. D. 55. :.8.7 V^.H.J So-! COURTS, II. a, 3. 705 226. Where the office of the attorney general has rendered an opinion declaring a statute providing for the enrolment of electors in parties for the purpose of pri- mary elections unconstitutional, and cer- tain officers are about to commence their duties under such statute, and are ignorant whether to follow the opinion of the attor- ney general or the statute, thereby causing a, want of state-wide uniformity in suffrage proceedings and consequent doubt as to the legality of the nominations made at primary elections, a proper condition exists for the exercise of the original jurisdiction of a court of last resort to determine by mandamus the construction of such law. State ex rel. Miller v. Flaherty, 41 : 132, 136 N. W. 76, 23 N. D. 313. 227. The superintending control extends to reviewing the decision of the trial court that a grand juror was incompetent to act, which results in its refusal to proceed with the trial, and to requiring it to do so by mandamus if the decision was erroneous. State ex rel. McGovern v. Williams, 20:941, 116 N. W. 225, 136 Wis. 1. (Annotated) 228. An application to the supreme court for a writ of mandamus directed to the state auditor to require him to credit the account of the state board of tax commissioners under authority of chap. 303, N. D. Laws 1911, with certain appropriations therein made, and to issue warrants upon the state treasvirer to pay the salaries and meet the expenses of a tax commission, involves the prerogatives, rights, and franchises of the state government, and invokes the orig- inal jurisdiction of the supreme court. State ex rel. Birdzell v. Jorgenson, 49: 67, 142 N. W. 450, 25 N. D. 539. 229. The supreme court has no original jurisdiction of an action by an insurance company against the state insurance com- missioner, seeking a writ of mandamus to compel the issuance of a permit to the in- surance company to do business within the state, since, as the insurance business is of a private nature, no question of major im- portance which is publici juris is involved. The Homesteaders v. MeComb, 38: 1000, 103 Pac. 691, 24 Okla. 201. 230. The supreme court has no original jurisdiction of an action by an insurance company against the state insurance com- missioner, seeking a writ of mandamus to compel the issuance of a permit to the in- surance company to do business within the state, on the ground that the insurance com- missioner is within the purview of an in- ferior court or board or commission created by law, as the word "com/missions" and "boards," used in connection with the term "inferior courts," mean only such commis- sions and boards as judicial powers are vested in and from which appeals may be taken, and the insurance commissioner, being an executive officer, has only such ju- dicial powers as are incident to the adminis- tration of his department. The Homestead- ers v. McComb, 38: 1000, 103 Pac". 691, 24 Okla. 201. (Annotated) Digest 1-52 L.R.A.(N.S.) 231. The supreme court has original juris- risdiction of a suit to enjoin the attempted enforcement of a statute requiring the de- struction of all dams in the navigable wa- ters of the state, the alleged result of which will be to destroy and confiscate private property, and to abate all improvements to navigation constructed under authority of the legislature. State ex rel. Wausau Street R. Co. v. Bancroft, 38: 526, 134 N. W. 330, 148 Wis. 124. 232. The supreme court may, in aid of its original jurisdiction in quo warranto to punish a foreign insurance company for at- tempting a usurpation and abuse of power, issue a temporary restraining order to pre- vent such conduct pending the hearing. State ex rel. Barker v. Assurance Co. 46: 955, 158 S. W. 640, 251 Mo. 278. 233. The supreme court will, when an application for issuance of a writ of quo warranto to a municipal corporation requir- ing it to show cause why its franchise should not be declared null and void, is made to it by the attorney general, exer- cise the discretion given it by statute; and if, in its judgment, the application sliould have been made to the district court, will deny the information. State ex rel. Young v. Kent, i: 826, 104 N. W. 948, 96 Minn. 255. 234. The supreme court, although having original jurisdiction in actions in the na- ture of quo warranto when the issues in- volved are publici juris, must dismiss an ac- tion to oust from office a county judge, in which it appears that an issue of fact is involved, or will be involved, for which a jury trial will be demanded, where neither power nor procedure exists therein for sum- moning, impaneling, or paying a jury, nor warrant exists to send the action, upon the raising of such an issue, to any other tribunal possessing such authority, for trial thereof. State ex rel. West v. Cobb, 24: 639, 104 Pac. 361, 24 Okla. 662. 235. Where a statute affords adequate proceedings for determining whether a pub- lic water supply franchise has been abused and should be forfeited, the supreme court will not determine such questions where the initial right to use the franchise appears, and no good cause is shown for trying com- plicated issues of fact in tire supreme court rather than *in proceedings specially pro- vided for in local courfe with jury trials. State ex rel. Ellis v. Tampa Waterworks Co. 22: 680, 48 So. 639, 57 Fla. 533. 8. As dependent on amount. (See also same heading in Digest L.R.A. 1-10.) To confer appellate jurisdiction, see AP- PEAL AND ERROR, II. c, 4. Covenants as to, see COVENANTS AND CON- DITIONS, 2, 27, 117, 134, 135. Jurisclictional amount in justice's court, see JUSTICE OF THE PEACE, 4. See also supra, 204. 766 COURTS, II. a, 4, 5. Amount in controversy. 236. In determining whether or not a court whose jurisdiction is limited to suits in which the amount in controversy does not exceed a certain sum has jurisdiction of an action on a note providing for a counsel fee, the amount of the fee must be added to the face of the note. Parks v. Granger, 27: 157, 51 So. 716, 96 Miss. 503. (Annotated) 237. Attorneys' fees provided for in a promissory note and fixed at a certain per cent are to be included in determining the jurisdiction of the court in a suit on the note. Humphrey v. Coquillard Wagon Works, 49: 600, 132 Pac. 8ff9, 37 Okla. 714. (Annotated) 4. Matters as to title. (See also same heading in Digest L.R.A. 1-10.) Action to quiet title, see CLOUD ON TITLE. 238. A decree of the county court con- firming in a widow the absolute title to a homestead asserted and selected from the hinds of her deceased husband is void in the absence of constitutional or statutory grant to such court of power so to act other than an act purporting to confer such power, which act, subsequent to the assertion, has been held unconstitutional and void. Draper v. Clayton, 29: 153, 127 N. W. 369, 87 Neb. 443. 5. Trusts; probate; insolvency; infants. (See also same heading in Digest L.R.A. 1-10.) Appeal from judgment of probate court, see APPEAL AND ERROR, 9, 45. General equitable jurisdiction over trusts, see EQUITY, I. d. Necessity that order committing person to insane asylum should show existence of jurisdictional facts, see INCOMPETENT PERSONS, 38. Repeal of statute as to probate jurisdiction, see STATUTES, 347. Probate and contest of wills, generally, see WILLS, I. e. 239. A probate court may dissolve a part- nership one member of which has died, not- withstanding a clause in his will providing that the business shall be continued by his executors, where the surviving partner Is abusing his trust, misappropriating the funds, and a disagreement has arisen be- tween him and the executors. Parnell v. Thompson, 33: 658, 105 Pac. 502, 81 Kan. 119. Estates of decedents. Jurisdiction of probate court over descent of right in mining claim, see DESCENT AND DISTRIBUTION, 29. Jurisdiction to appoint administrators, see EXECUTORS AND ADMINISTRATORS, 3--6. 240. A proceeding pending on petition Digest 1-52 L.R.A.(N.S.) for the allotment of dower in personalty be- longing to an estate in course of adminis- tration in one of the United States courts in Indian territory sitting in probate, at the time of admission of the state into the Union, was, by 19 of the enabling act (Act Cong. June 16, 1906, chap. 3335, 34 Stat. at L. 277), and 23 of the schedule of the Constitution, transferred to the county court of the county in which was located the court in which said case was pending. Burdett v. Burdett, 35: 964, 109 Pac. 922, 26 Okla.. 416. 241. The United States courts for Indian Territory, sitting in probate, were, by act of Congress of May 2, 1890, chap. 182, 26 Stat. at L. 81, which extended to and put in force in Indian Territory Mansf. Dig. chap. 53, on "dower," vested with jurisdiction to allot dower in personalty belonging to estates in course of administration therein. Burdett v. Burdett, 35: 964, 109 Pac. 922, 26 Okla. 416. 242. Under a statute permitting a court of probate to appoint commissioners to ex- amine and adjust all claims and demands against deceased, the court may allow against the estate claims for alimony which accrued between a divorce decree and the remarriage of decedent's wife, and is not precluded from so doing by the fact that jurisdiction over decrees for alimony is, by statute, vested in the chancery court. Mar- tin v. Thison, 18: 257, 116 N. W. 1013, 153 Mich. 516. (Annotated) 243. Power may be conferred upon the orphans' court to administer the estates of persons who have been absent from their places of abode and unheard of for seven years, under a constitutional provision that such courts shall have all the powers now vested in the orphans' courts of the state, subject to such changes as the legislature may prescribe. Savings Bank of Baltimore v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. 244. The proper court of the county in which is located land ceded by a state to the Federal government for a soldiers' home has jurisdiction to grant an administra- tion on the estate of a soldier dying in the home. Divine v. Unaka Nat. Bank, 39: 586, 140 S. W. 747, 125 Tenn. 98. (Annotated) As to infants. 245. The district court, being one of gen- eral legal and equitable jurisdiction, may, in the exercise of its equity powers, deter- mine the question of the right of visita- tion of a parent denied the custody of a child. Allison v. Bryan, 30: 146, 109 Pac. 934. 26 Okla. 520. 246. Under Idaho Const, art. 5, 21, pro- bate courts have original jurisdiction in all matters of probate and appointment of guardians; and under and by virtue of such constitutional power and jurisdiction it is competent for the legislature to authorize and direct probate courts to make investi- gation of charges preferred .concerning de- linquent children, and to make all necessary orders in relation thereto, as has been pro- vided by Idaho Sess. Laws 1905, p. 106, en- titled "An Act To Provide for the Care ot (.<2.JT).A.H.J[ Sfl I COURTS, II. a, 6 III. c. 767 Delinquent Children." Re Sharp, 18: 886, 96 Pac. 563, 15 Idaho, 120. 6. Crimes. (See also same heading in Digest L.R.A. 1-70.) Territorial limitations as to, see supra, I. b, 2. Conflict of authority as to, see infra, IV. d, 2. Effect of pending prosecution in other court see CRIMINAL LAW, II. e. 6. Terms; place of sitting. (See also same heading in Digest L.R.A. 1-10.) Relief against judgment after term, see JUDGMENT, 339, 398-403. What time referred to by statute fixing time for termination of term of court, see TIME, 1. c. Transfer of cause. (See also same heading in Digest L.R.A. 1-10.) Transfers between state and Federal courts, see REMOVAL OF CAUSES. d. Opinions. (See also same heading in Digest L.R.A. 1-10.) Opinion as part of record on appeal, see APPEAL AND ERROR, IV. j. Admissibility of opinions of, in evidence, see EVIDENCE, 763. III. Federal courts. a. In general; suits by or against state or state officers. (See also same heading in Digest L.R.A. 1-10.) Appellate jurisdiction of, see APPEAL AND ERROR. II. a; II. b. Right of Federal court to direct taking of deposition in perpetuuam rei memori- am, see DEPOSITIONS, 1, 2. Habeas corpus in, see HABEAS CORPUS, II. Effect of voluntary discontinuance of ac- tion in state court after judgment, to bar action in Federal court, see JUDG- MENT, 118. Immunity of state from suit, see STATE, 17-32. 247. A Federal court may grant an order protecting a citizen of a state other than that in which it is sitting, who, having been adjudged sane by its courts, has brought suit before such court to recover, on the theory that the appointment was vid for lack of jurisdiction, his property from a Digest 1-52 L.R.A.(N.S.) committee appointed by the courts of the state where it is sitting which had ad- judged plaintiff insane, and committed him to an asylum "from which he had escaped, from reincarceration aa an escaped patient in case he comes into the state to try his suit. Chanler v. Sherman, 22: 992, 162 Fed. 19, 88 C. C. A. 673. (Annotated) 248. A Federal court should grant a suit- or who had been adjudged insane by the courts of the state in which it is sitting, and committed to an asylum, from which he escaped to another state where he was ad* judged sane, a writ of protection to enable him to come before it to try his case brought to secure possession of his property, if the issues require his presence, but not if his testimony may as well be taken by deposi- tion. Chanler v. Sherman, 22: 992, 162 Fed. 19, 88 C. C. A. 673. ft. Suits against United States. (See same heading in Digest L.R.A. 110.) c. Federal questions. Federal question as conferring appellate jurisdiction on Federal Supreme Court, see APPEAL AND ERROR, 60-63. Federal question as giving right to remove cause to Federal Court, see REMOVAL OF CAUSES, 2. 249. Whether or not the enforcement of a state statute providing for the establish- ment of rates for railroad transportation will take property of the railroad compa- nies without due process of law raises a Federal question within the jurisdiction of a circuit court of the United States, if the requisite amount is involved, although its determination may incidentally involve a question of fact. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. 250. The circuit court of the United States has jurisdiction at the suit of stock- holders of a railroad company, to enjoin the company from putting in force transporta- tion rates established by a state statute, which are so low as to be confiscatory of the company's property, and, as preliminary thereto, to institute an inquiry as to wheth- er or not the rates are in fact too low. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. 251. Whether or not a railroad company is deprived of the equal protection of the laws, and its property rendered liable to be taken without due process of law, by a state statute providing for the establishment of rates of transportation, because the penal- ties fixed for violation of the statute are so enormous as to require obedience to the law rather than risk the penalties in testing it, although such obedience might, in the end. result in confiscation of the railroad prop- erty, is a Federal question, within the ju- risdiction of the circuit court of the United States. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. " T68 COURTS, III. d f. 252. A Federal circuit court, if properly appealed to, cannot decline, on the ground of discretion or comity, to take jurisdic- tion of a suit to enjoin the enforcement of state statutes fixing gas rates which are asserted to violate the Federa'l Constitution. Willcox v. Consolidated Gas Co. 48: ii34> 29 Sup. Ct. Rep. 192, 212 U. S. 39. 53 L. ed. 382. d. As dependent on citizenship. (Sec also same heading in Digest L.R.A. 1-10.) As to Federal districts, see infra, III. i. Presumption and burden of proof as to citi- zenship, see EVIDENCE, 124-126. Jurisdictional averment of residence, nee PLEADING, 166-168. Removal of action on ground o f citizenship, see REMOVAL OF CAUSES, I. b. 253. If a cross bill in a suit in a Federal court assumes the character of an original bill, jurisdiction of which depends upon di- verse citizenship of the parties, it will be dismissed if such element is wanting. Pat- ton v. Marshall, 26: 127, 173 Fed. 350, 97 C. C. A. 610. Assignees as parties. 254. That the purpose to bring a cause of action within the jurisdiction of a Federal court is the motive which induces an as- signment of the property out of which the cause of action arises, which assignment is real and absolute, does not deprive the as- signee of his right to invoke the jurisdic- tion of that court to determine the cause, under a statute providing that, if it appear to the satisfaction of a Federal court that a suit therein does not involve a controver- sy properly within the jurisdiction thereof, or that the parties thereto have been col- lusively made or joined for the purpose of creating Federal jurisdiction, the court may dismiss or remand the suit, as it is sham or fictitious transfers which colorably place titles and rights in assignees to enable them to maintain suits in the Federal courts for the benefit of the assignors which are ob- noxious to such statutes, and not the mo- tive or purpose of real transfers. O'Neil v. Wolcott Mining Co. 27: 200, 174 Fed. 527. 98 C. C. A. 309. e. As dependent on amount. vox; '.in fi in !> -rarfterf.7/ -.tftfi. (See also same heading in Digest L.R.A. 110.) Jurisdictional amount to confer appellate jurisdiction, see APPEAL AND ERROR. II. c, 4. -inoil-fo 'jii'rptti nj tr. .u<>:nv<;i 255. An amount in controversy within the jurisdiction of the circuit court of the Unit- ed States is shown by a bill to enjoin in- terference with complainant's right to do business in a state the value of which is laid at more than $25,000, which is not controverted by defendant, although the bill Digest 1-52 L.R.A.(N.S.) does not set up the value of the business, or specifically allege the extent to which it will be damaged by defendant's acts. Even- sen v. Spaulding, 9: 964, 150 Fed. 517, 82 C. C. A. 263. /. In itfi; following state practice; effect of state laws. (See also same heading in Digest L.R A 1-70.) Rule ae to difference between causes of ac- tion at law and in equity, see ACTION OB SUIT, 70. Effect of state laws to restrict' or en- large. 256. Rights created and remedies provided by the statutes of the states to be pursued in the state courts may be enforced and administered in the national courts either at law, in equity, or in admiralty, as the nature of the rights and the remedies may require, where the citizenship of the par- ties and the amounts involved bring the actions within the provisions of the Con- stitution and the acts of Congress. Harri- son v. Remington Paper Co. 3: 954, 140 Fed. 385, 72 C. C. A. 405. 257. The power of the Federal courts, de- rived from the Constitution and laws of the United States, to enforce their judgments and decrees, and to decide every contro- versy affecting their complete execution, cannot be destroyed or limited by the legis- lation of the states or the decisions of then- courts. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 258. The jurisdiction of the national courts was not granted by, and may not be revoked, annulled, or impaired by, the law or act of any state. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590, 105 C. C. A. 128. 259. A state statute prohibiting actions to recover intoxicating liquors or their value is net sufficient to prevent an action for that purpose in the Federal court, al- though the transaction occurred within the state. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590, 105 C. C. A. 128. 260. In the absence of an adequate reme- edy at law in the Federal courts, they may exercise equitable jurisdiction, although an adequate remedy at law may exist in the state courts. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 261. In a suit in equity in the United States circuit court to prevent the enforce- ment of an order of the railroad commis- sioners of South Dakota, requiring the plaintiff express company to receive at a specified time and place all moneys ten- dered to it for transportation, in which suit there is diversity of citizenship, and the defendants have answered and have filed a cross bill to enforce the order, the United States circuit court on the hearing, and the circuit court of appeals on the appeal, have the same power to hear and determine the COURTS, III. g IV. a. 7G9 original question and "to do justice in the premises" as is conferred upon the circuit courts of South Dakota by the state act to regular commerce. Platt v. Lecocq, 15: 558, 158 Fed. 723, 85 C. C. A. 621. g. Ancillary jurisdiction. (See also same heading in Digest L.R.A. 1-70.) 262. A suit in equity dependent upon a former action of which a Federal court had jurisdiction may be maintained in such court without diverse citizenship or in the absence of a Federal question, for the pur- pose of aiding, enjoining, or regulating the original suit, or to restrain or enforce its judgment or decree therein, or to enforce or obtain an adjudication of liens upon or claims to property in custody of the court in the original suit. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. h. Crimes. (See also same heading in Digest L.R.A. 1-10.) Territorial limitations as to, see supra, I. b, 2. Jurisdiction of Federal court to punish un- lawful sale of intoxicating liquors on military reservation, see INTOXICATING LIQUORS, 185. 263. The absence of a valid indictment destroys the jurisdiction of a Federal court to try one accused of an infamous crime, and proceedings taken without such indict- ment are absolutely void. Renegar v. Unit- ed States, 26: 683/172 Fed. 646, 97 C. C. A. 172. i. Districts. (See also same heading in Digest L.R.A. 1-10.) 264. The presence of one of the defendants in the Federal district in which suit by the United States under the anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3201), 4, is brought to restrain violations of that act, gives the circuit court jurisdiction, and justifies it in making an order under 5 for the service of process upon all the other defendants, wherever they may be found. Standard Oil Co. v. United States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. IV. Conflict of a^l tliority ; relation of state to Federal. a. Exclusiveness of jurisdiction first acquired. (See also same heading in Digest L.R.A. 1-10.) Suit in other state as ground for abate- ment, see ABATEMENT AND REVIVAL, 27- 30. Digest 1-52 L.B.A.(N.S.) Offenses against different sovereignties, see CRIMINAL LAW, III. Estoppel to object to jurisdiction of state court, see ESTOPPEL, 214. 265. After a court of equity has acquired jurisdiction of the property and parties in a suit brought to subject real estate to the payment of a judgment, subsequent proceed- ings by any of the parties in other courts, without leave of the court which first ac- quired jurisdiction, are ineffectual to estab- lish claims to the property or its proceeds adverse to those of the complainant, but the duty is imposed upon the court first ac- quiring jurisdiction to see and determine such adverse claims when seasonably pre- sented to it. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 266. Actual seizure of the property is not necessary to give jurisdiction exclusive of all other courts to a court of competent jurisdiction which has appointed a receiver of the property in a proceeding in which the relief sought cannot be obtained ex- cept by an actual seizure of the property. State v. Palmer, 22: 316, 158 Fed. 705, 85 C. C. A. 603. 267. A district court having jurisdiction of an insolvency proceeding against a corpo- ration under chap. 79, N. M. Laws 1905, in which a mortgagee of the insolvent corpo- ration is made a party defendant and an- swers, setting up his mortgage, is entitled to retain the jurisdiction thus acquired by it, and to administer the estate of the corporation to the exclusion of another dis- trict court in which, pending the former proceeding, .said mortgagee obtained a de- cree of foreclosure and sale of the insolv- ent's property thereunder. State ex rel. Parsons Min. Co. v. McClure, 47: 744, 133 Pac. 1063, 17 N. M. 694. As between state and Federal courts. Effect of appeal from order appointing re- ceiver to enable court of concurrent ju- risdiction to take jurisdiction, see AP- PEAL AND ERROR, 102. Judgment of Federal court dismissing suit removed to it as bar to further prose- cution in state court, see JUDGMENT, 67. 268. The rule that the court which first acquires jurisdiction of specific property, in a suit or proceeding to enforce a lien upon it or subject it to sale, may retain the ex- clusive legal custody of it until the suit is at an end, does not deprive a Federal court, in the exercise of its general jurisdiction, from decreeing the sale of lands for the satisfaction of a judgment rendered by it, although the estate of the deceased judg- ment debtor is being administered in the county court, where the jurisdiction of the latter tribunal is not broad enough to per- mit it to make such a decree, but the power to do so is limited to state courts of general jurisdiction. Brun v. Mann, 12:154, 151 Fed. 145, 80 C. C. A. 513. (Annotated) 269. A Federal court has jurisdiction to decree the sale of lands of a deceased judg- ment debtor, for the payment of a judgment which it rendered against him in his lifetime, 49 ro COURTS, IV. b. although administration of his estate is pending in a state court, where his adminis- tratrix refuses to comply with her statutory duty to institute a proceeding in the state court to sell the unexempt real property of the decedent to pay debts. Brim v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 270. The Federal courts, although without jurisdiction of the administration of the estates of deceased persons as such, have jurisdiction of controversies arising during the pendency of the administration of the estates of deceased persons in the state court, which condition the enforcement of their judgments or decrees; and their deci- sions and decrees prevail over the stat- utes of the states and the decisions of their courts. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 271. In the exercise of its jurisdiction to enforce its judgments, a Federal court may decree a sale of the real estate of a deceased judgment debtor during the pendency of ad- ministration proceedings in a state court, where a statute of the state in which the Federal court is sitting and the land is situ- ated confers power upon the state courts of general jurisdiction to make such a decree. Brun v. Mann, 12: 154, 151 Fed. 145, 80 C. C. A. 513. 272. A Federal court, in which is first raised the question of the validity, under the Federal Constitution, of a state statute, has a right to decide that question to the ex- clusion of the state courts, and may en- join criminal proceedings subsequently com- menced under it in the state court until its duty is performed. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. 273. An attachment from a state court cannot reach property of a bankrupt after the commencement of bankruptcy proceed- ings against him in the Federal court. French v. White, 2: 804, 62 All. 35, 78 Vt. 89. 274. The Federal court from which a writ of attachment is sued out has authority to determine whether or not the levy is valid, and not a state court by which a receiver of the property is appointed in a suit in- stituted after the levy of the attachment. Beardslee v. Ingraham, 3: 1073, 76 N. E. 476, 183 N. Y. 411. 275. A receiver appointed by a Federal court in a suit by the trustee to fore- close a mortgage cannot oust by summary motion a receiver of the property pre- viously appointed by a state court at the suit of a holder of bonds secured by the mortgage, Avho had a right to sue in case of the refusal of the trustee to do so, upon the ground that the allegations upon which his suit was founded were untrue. Young v. Hamilton, 31: 1057, 69 S. E. 593, 135 Ga. 339. 276. A new action may be maintained in the Federal court to enforce the statutory liability of a stockholder, where the first action was prosecuted in the state court, and voluntarily dismissed without prejudice to a future action, notwithstanding a state Digest 1-52 UR.A.(N.S.) statute providing that if an action is com- menced in time, and the plaintiff fails in it otherwise than upon the merits, he may commence a new action within one year af- ter the failure, the effect of which is to- make an exception to the general statute of limitations of the state, which is jus- ticiable in the Federal as well as in the state court. Harrison v. Remington Paper Co. 3: 954, 140 Fed. 385, 72 C. C. A. 405. 277. After the removal to the Federal court of an action in which jurisdiction was secured by attachment of real estate, the state court has no jurisdiction to protect the interests of the attaching creditor against trespassers, but lie must resort to the Feu eral court for protection; and the fact that the trespassers are residents of the state is- immaterial. Coffin v. Harris, 6: 624, 54 S. E. 437, 141 N. C. 707. (Annotated) b. Interference ivitli other courts; in- junctions, (See also same heading in Digest L.R.A ' 1-70.) Injunction against prosecution of suit in court of co-ordinate jurisdiction, see CORPORATIONS, 273. On habeas corpus, see HABEAS CORPUS, II. See also RECEIVERS, 47. 278. The courts of one state in which a litigation has progressed to a final decree, from which an appeal has been taken, may enjoin the defeated party from maintain- ing a suit in another state, to enjoin his adversary from proceeding with the prose- cution of the cause. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 N. E. 193, 203 Mass. 159. As between state and Federal courts. See also supra, 268-277. 279. The Federal court has no jurisdic- tion by reason of U. S. Rev. Stat. 720, I*. S. Comp. Stat. 1901, p. 581, to enjoin prosecution of an action in a state court by brokers to recover compensation for ef- fecting a sale of real estate, which has pro- ceeded to issue before the suit in the Federal court is instituted. Patton v. Marshall, 26: 127, 173 Fed. 350, 97 C. C. A. 610. 280. An injunction will not issue out of the Federal court before which a suit founded on a creditors' bill is pending for misappropriation of corporate property, to stay subsequent actions at law instituted in a state court for the recovery of personal judgments upon a debt and certain notes in- volved in the former suit, where such subse- quent actions will not prevent the effectual determination of the issues in the equity suit over which it had acquired exclusive jurisdiction, and will not withdraw or interfere with the dominion it had acquired over specific property to such an extent that its determination of the controversy about it and the enforcement of its decree con- cerning it may be in any degree prevented, notwithstanding the equitable remedy of COURTS, IV. c. 771 an accounting would be more complete, prompt, and adequate, and it had been stipulated in the equitable action that a final settlement of the issues of indebted- ness raised in the legal actions should be had therein. Guardian Trust Co. v. Kansas City S. R. Co. 28: 620, 171 Fed. 43, 96 C. C. A. 285. 281. An order issued out of a suit found- ed on a creditors' bill in a Federal court, whereby the defendant is restrained from directly or indirectly selling, transferring, assigning, pledging, or otherwise disposing of, or parting with the possession or con- trol of, any of the property, assets, notes, stocks, bonds, claims and demands of the debtor mentioned in the complaint, does not prevent the bringing of actions at law by the debtor to recover upon any of such notes and claims, as such order cannot be construed as requiring the debtor to allow the statute of limitations to run upon its causes of action. Guardian Trust Co. v. Kansas City S. R. Co. 28: 620, 171 Fed. 43, 96 C. C. A. 285. 282. A state court has no authority to enjoin a sale under an execution issued by a Federal court in a matter within its jurisdiction. Beardslee v. Ingraham, 3: 1073, 76 N. E. 476, 183 N. Y. 411. 283. The prosecution of one in a Federal court under an invalid Federal statute can- not be enjoined by a state court, since the remedy at law is adequate, by showing the invalidity of the statute. Thompson v. Van Lear,' 5: 588, 92 S. W. 773, 77 Ark. 506. 284. An injunction issued by a Federal court against the enforcement of a state penal statute which is alleged to violate rights secured by the Federal Constitution is no obstacle to the enforcement of the statute by the state courts against the one in whose favor the injunction was issued. State v. Southern R. Co. 13:966, 59 S. E. 570, 145 1ST. C. 495. 285. No injunction ought to be awarded by a Federal court against the enforcement of a state railroad rate law which is alleged to violate the Federal Constitution, unless the case is reasonably free from doubt. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. 286. The power of a Federal court to en- join state officials from enforcing a state statute the validity of which, under the Fed- eral Constitution, has been questioned before it, does* not extend to restraining a state court from acting in a case brought before it to enforce the statute, nor investigation or action by a grand jury under it.. Ex parte Young, 13: 932, 209 U. S. 123, 28 Sup. Ct. Rep. 441, 52 L. ed. 714. 287. The Federal court cannot, in a suit to enjoin further prosecution in a state court of an action which has been removed to it, undertake to decide the truth or falsity of allegations of fraudulent joinder of parties, on which the right of removal depends, but must leave that question to be determined in the action which was so re- moved; nor will it determine, on the facts Digest 1-52 L.R.A.(N.S.) disclosed in the injunction suit, that the removal was improper, and dismiss the case under the power conferred upon it by act of Congress of March 3, 1875, chap. 137, 5. Donovan v. Wells, Fargo, & Co. 22: 1250, 169 Fed. 363, 91 C. C. A. 609. j Courts of different states. 288. An injunction will not be granted fty the courts of one state to restrain the pros- ecution of an action on promissory notes in, another state, where the only basis for the application is that the notes are con- tracts of the former state, that both par- ties and the complainant's witnesses reside in the former state, and that the complain- ant has no property in the other state, where there is nothing to show that the laws of the other state differ in any re- spect from those of the former state, or that the complainant will not receive the full benefit of the statute of the former state upon which he relies as a defense to the notes. Freick v. Hinkly, 46: 695, 141 N. W. 1096, 122 Minn. 24. 289. A court of one state in which a suit instituted by an alleged widow for the par- tition of lands situated therein which were owned by her husband at his death is pend- ing, may restrain the prosecution of a suit subsequently instituted by defendants in an- other state to quiet title to land therein which was also owned by the husband at his death, where all the interested parties reside within the jurisdiction of the former court, are properly impleaded in the suit therein pending, and the rights of the wid- ow to any interest in all the lands so owned depends upon the validity of her marriage and upon the effect of an alleged antenup- tial agreement and its alleged release, which issues are paramount in both suits but were first joined in the court of the state in which the motion for the restraining order was made. Munn v. Gordon, 25: 917, 106 Pac. 286, 81 Kan. 537. 290. That wages due from a railroad op- erating in two states, to an employee resi- dent in one of them, are subject to the ju- risdiction of the courts of the other state in a proceeding to subject them to a claim of a creditor of the employee residing in the same state with him, does not impair the right of the courts of the latter state, acting in personam, to compel observance of its exemption laws. Wierse v. Thomas, 15: 1008, 59 S. E. 58, 145 N. C. 261. c. Property in custody of courts or offi- cers. (See also same heading in Digest L.R.A. 1-10.) Prohibition to prevent inferior court from interfering with property in hands of receiver, see PROHIBITION, 21. 291. An attachment secures such posses- sion of real estate upon which it is levied that a receiver subsequently appointed by another court has no authority to interfere COURTS, IV. d, 1 V. b. with it. Beardsloe v. Ingraham, 3: 1073, 76 N. E. 476, 183 N. Y. 411. ( Annotated ) 292. Neither the granting of an appeal upon the refusal of the court to set aside an order appointing a receiver, nor an un- authorized order, upon the approval of the appeal bond, requiring him to turn back the assets in his hands to their owner, will release such assets from the custody of the court which has acquired jurisdiction in ihe matter, so as to make them subject to seizure by a receiver appointed by another court of concurrent jurisdiction. State ex rol. Sullivan v. Reynolds, 15: 963, 107 S. W. 487, 209 Mo. 161." (Annotated) d. When state or Federal jurisdiction exclusive; limitations upon. 1. In general. {See also same heading in Digest L.R.A. 1-10.) Matters affecting commerce. 293. The jurisdiction of the state courts of an action by a shipper against a common carrier for damages resulting from unlaw- ful discrimination against him in rates is not affected by the provisions of the Fed- eral interstate commerce act (act Feb. 4, 1887, chap. 104, 24 Stat. at L. 379, U. S. Comp. Stat. 1901, p. 3154), where the ship- ments involved are within points within the state and the transportation is wholly there- in ; and where such appears from the com- plaint a demurrer for lack of jurisdiction "by reason of such act should be overruled, especially where there is no suggestion in the complaint that the defendant was ever engaged in interstate commerce, or that its road is so situated as to enable it to engage therein. Sullivan v. Minneapolis & R. R. R. Co. 45: 612, 142 N. W. 3, 121 Minn. 488. Admiralty and maritime cases. Jurisdiction in admiralty generally, see AD- MIRALTY, I. 294. A mere provision of a Federal stat- ute empowering the Secretary of War to remove vessels sunken in navigable harbors of the United States does not deprive the state in which the harbor is located of ju- risdiction over the subject-matter. Hagan v. Richmond, 3: 1120, 52 S. E. 385, "l04 Va. 723. Bankruptcy cases. Jurisdiction of bankruptcy court, generally, see BANKRUPTCY, 3, 4. 295. The state and Federal courts have concurrent jurisdiction of ' *i action brought by a trustee in bankruptcy to avoid a pref- erence or to recover property fraudulently conveyed by the bankrupt; but of all other actions brought by a trustee to recover property belonging to the bankrupt, the state court has sole jurisdiction. Drew v. Myers, 17: 350, 116 N. W. 781. 81 Neb. 750. 2. Criminal proceedings. (See same heading in Digest L.R.A. 1-10.) Digest 1-52 L.R.A.(N.S.) V. Rules of decision, a. In general. (See also same heading in Digest L.R.A. 1-10.) On appeal, see APPEAL AND ERROR, 411-415. Refusal to follow rule of decision at com- mon law, see COMMON LAW, 3. 296. General expressions in every opinion are to be taken in connection with the case in which those expressions are used. Peo- ple v. Bank of San Luis Obispo, 37: 934, 112 Pac. 866, 159 Cal. 65. ft. Stare decisis; previous decisions of same court. (See also same heading in Digest L.R.A. 1-10.) Law of case, see JUDGMENT, 94. 297. The rule of stare decisis, stated in simple form and considered in relation to its effect upon private affairs, is really noth- ing more than the application of the doc- trine of estoppel to court decisions. It finds its support in the sound principle that when courts have announced, for the guid- ance and government of individuals and the public, certain controlling principles of law, or have given a construction to statutes upon which individuals and the public have relied in making contracts, they ought not, after these principles have been promul- gated and after these constructions have been published, to withdraw or overrule them, thereby disturbing contract rights that had been entered into, and property rights that had been acquired, upon the faith and credit that the principle an- nounced or the construction adopted in the opinion was the law of the land. Oliver Co. v. Louisville Realty Asso. 51: 293, 161 S. W. 570, 156 Ky. 628. 298. A court of last resort will not feel bound to adhere to an earlier decision that a party entering into a contract with a corporation is estopped, in an action there- on, from setting up as a defense the failure of the corporation to comply with a statute, enacted pursuant to the Constitution, for the purpose of carrying out a wise public policy, which provides that it shall not be lawful for any corporation to carry on any biisiness in the state until it shall have filed a statement giving the location of its place of business within the state, and the name of an agent thereat upon whom process may be served. Oliver Co. v. Louisville Realty Asso. 51:293, 161 S. W. 570, 156 Ky. 628. 299. A corporation which subjects itself to a fine by prosecuting its business within the state without complying with statutory requirements is not in a position to invoke the doctrine of stare decisis to induce the court not to overrule an earlier d*ecision to the effect that the other contracting par- COURTS, V. c, d. 773 iy is estopped from setting up as a defense the failure of the corporation to comply with such requirements. Oliver Co. v. Louisville Realty Asso. 51: 293, 161 S. W. 570, 156 Ky. 628. 300. A judicial interpretation of the words in a railroad charter permitting the corporation to "farm out" the right of transportation is stare decisis, and binding in a subsequent case, although the latter is between different parties. Hill v. Atlan- tic & N. C. R. Co. 9: 606, 55 S. E. 854, 143 N. C. 539. 301. That an assignment of a bill of lad- ing as collateral security for a draft was made while a decision was in force that the assignee thereby assumed the obligation of the consignor for breach of warranty in the sale does not prevent the application in his favor, against the consignee, of the correct doctrine that he did not assume such obli- gations. Mason v. Nelson, 18: 1221, 62 S. E. 625, 148 N. C. 492. 302. The courts cannot change a rule of Jaw that has been in force for fifty years, that proof of seduction cannot be allowed to aggravate damages in an action for breach of promise of marriage. Wrynn v. Downey, 4: 615, 63 Atl. 401, 27 R. I. 454. 303. The doctrine of stare decisis does not preclude a departure from the estab- lished rule of evidence that dying declara- tions are admissible only in criminal cases. Thurston v. Fritz, 50: 1167, 138 Pac. 625, 91 Kan. 468. 304. The rule that one inducing another, by trick, device, or false representation, to part with his property for an illegal pur- pose, is not guilty of larceny, cannot be changed by the courts without usurping leg- islative power and violating the constitu- tional rights of those entitled to the pro- tection of the rule as one of personal liberty. People v. Tompkins, 12: 1081, 79 N. E. 326, 186 N. Y. 413. (Annotated) Obiter dicta. 305. The doctrine of stare decisis is not applicable to dicta found in 'opinions of the court. Friedman v. Suttle, 9: 933, 85 Pac. 726, 10 Ariz. 57. 306. A ruling in a case is not dictum merely because it was necessary, on account of the conclusion reached upon that ques- tion, to consider another question the de- cision of which controlled the judgment. Galloway v. Darby, 44: 782, 151 S. W. 1014, 105 Ark. 558. Erroneous decisions. Vested right in erroneous decision, see CON- STITUTIONAL LAW, 49. 307. The doctrine of stare decisis does not require or permit a court to adhere to a de- cision found to be clearly erroneous, which affects injuriously the general business law. Mason v. Nelson, 18: 1221, 62 S. E. 625, 148 N. C. 492. 308. When it appears that a party was not misled to his prejudice by reliance on a.decision that the court rendering it subse- quently concluded was erroneous, the court will not feel estopped to overrule it by the insistence of the party claiming to have Digest 1-52 L.R.A.(N.S.) acted under it that it will overturn con- tracts and engagements that he has entered into the faith of it. Oliver Co. v. Louis- ville Realty Asso. 51:293, 161 S. W. 570, 156 Ky. 628. Rule of property. 309. A decision that a foreign adoption gives the child no rights of inheritance to real estate within the state establishes a rule of property which will not be changed by the court after the lapse of years. Brown v. Finley, 21: 679, 47 So. 577, 157 Ala. 424. c. Construction and constitutionality of statutes or ordinances. (See also same heading in Digest L.R.A. 1-10.) Jurisdiction to review constitutionality of statute, see supra, I. c, 2. Presumption and burden of proof as to, see EVIDENCE, II. a. Validity of statutes generally, see STATUTES, I. c. Construction of statutes generally, see STAT- UTES, II. d. State courts following Federal de- cisions. (See also same heading in Digest L.R.A. 1-10.) Denial of due process by failure to follow decision of Supreme Court, see CON- STITUTIONAL LAW, 559. 310. The mere contrary conclusion reached by the Supreme Court of the United States upon a similar state of facts is not alone a sufficient consideration of a state court's overruling one of its own decisions. Old Dominion Copper Min. & Smelting Co. v. Bigelow, 40: 314, 89 N. E. 193, 203 Mass. 159. 311. A judgment of a Federal court di- recting a call upon the stockholders of an insolvent corporation to meet a deficiency in its assets to cover its obligations is not conclusive in an action in the courts of the state of a stockholder's residence that he is bound, under his subscription contract, to pay more than he agreed to pay for the stock, although that was less than the par value. Southworth v. Morgan, 51: 56, 98 N. E. 490, 205 N. Y. 293. 312. A state court may impose a fine and imprisonment for a definite term for con- tempt in violating a prohibitory injunc- tion of a civil nature where the fine in such cases is regarded as a penalty inuring to the public, although the Supreme Court of the United States has ruled that a con- tempt proceeding in such case was a mere private remedy for which imprisonment for a definite term cannot be imposed. Roth- schild & Co. v. Steger & Sons Piano Mfg. Co. 42: 793, 99 N. E. 920, 256 111. 196. (Annotated) 774 COURTS, V. e, f. e. Following decisions of courts of other state or country. (See also same heading in Digest L.R.A. 1-10.) 'Full faith and credit rule as compelling court to follow rules of court of other state, see JUDGMENT, 279. 313. In determining the common law of another state, the decisions of the courts of final resort of. that state will be followed, regardless of precedents to the contrary, in the state where the trial is held; and this rule applies to the law merchant as well as to other branches of the common law. Sykes v. Citizens' Nat. Bank, 19: 665, 98 Pac. 206, 78 Kan. 688. 314. Where the rules of the common law relating to a particular matter are not ex- pressly stated in the reported cases of the English courts prior to 1775, the statement of the courts of this country and of Eng- land subsequent to that time especially when they do not purport to modify the common law are entitled to great weight in determining the common-law rule prior to that date. Horace Waters & Co. v. Gerard, 24: 958, 82 N. E. 143, 189 N. Y. 302. 315. A decision of a foreign state holding a promissory note which is uncertain and indefinite as to time, negotiable at common law, will not be accepted as determining the law of that state where the decision was rendered by an intermediate court, and is in conflict with the well-settled common law doctrine of the state in which the action arises. Sykes v. Citizens' Nat. Bank, 19: 665, 98 Pac. 206, 78 Kan. 688. /. Federal courts following state de- cisions. (See also same heading in Digest L.R.A. 1-70.) 316. The Federal courts, in exercising their jurisdiction founded on diverse cit- izenship, in cases involving the administra- tion of the common law, do not hold them- selves bound by the decisions of the courts of the state in which they are sitting, un- less such decisions have so clearly estab- lished a settled rule in the premises as to make it a part of the peculiarly local law of the state, but will resort to the same sources of information as to what such law is as are open to the state courts. Snare % 85. An outstanding mortgage upon prop- erty conveyed constitutes a technical breacli of the covenant against encumbrances as soon as the deed is delivered, but it gives rise to an action by the covenantee for nominal damages only. Re Hanlin, 17: 1189, 113 N. VV. 411, 133 Wis. 140. 86. An easement of a continuing right of way over land granted by a deed con- taining a covenant against encumbrances, which materially affects the value of the land, entitles the covenantee at once to substantial damages, whether the easement be in actual use, or be only potential. Smith v. White, 48: 623, 78 S. E. 378, 71 W. Va. 639. 87. When land is granted to a city upon a valuable consideration, to be used for streets and other purposes, the title will not, in the absence of an express stipula- tion to that end, revest in the grantor be- cause the land is subsequently used for street and railroad purposes. Cleveland Terminal & V. R. Co. v. State ex rel. Ellis, 39: 1219, 97 N. E. 967, 85 Ohio St. 251. ' 88. The remainder as well as the life es- tate falls by forfeiture of the life estate for breach of condition, in case of the convey- ance to one for life, with remainder to his children living at his death, and, in the event of no children living, then over, upon condition that the life tenant shall keep the property in repair, pay taxes and an annui- ty to the grantor, breach of which shall entitle the grantor to declare a forfeiture. Lumsden v. Payne, 21: 605, 114 S. W. 483, 120 Tenn. 407. " (Annotated) 784 COVENANTS AND CONDITIONS, III. c, 1, 2. c. Who may enforce. 1. In general. (See also Covenant, II. c, 1, in Digest L.R.A. 1-10.) As to right of party to antenuptial contract who is in default, to enforce covenants of other party, see HUSBAND AND WIFE, 130. Joinder of parties in suit to enforce or to restrain violation of, see PARTIES, 151, 154. 89. The assigns of the grantors of cer- tain land to a canal company in considera- tion and on condition of the erection of a basin upon it and the benefits resulting to the grantors therefrom cannot force the as- signs of the company to restore the basin on the ground of a breach of a condition, since, if the agreement be treated as a con- dition, it is a condition subsequent and the property would revert to the heirs of the grantors. Dawson v. Western Maryland R. Co. 14: 809, 68 Atl. 301, 107 Md. 70. 90. A partnership, one member of which secures the good will of a business, and afterwards becomes bankrupt, may main- tain an action for breach of the covenant r conveying the good will, where, after the bankruptcy, the title to the good will, by mesne conveyances, becomes vested in the partnership. Foss v. Roby, 10: 1200, 81 N. E. 199, 195 Mass. 292. Restrictions as to use of property. 91. The owner of a lot; for the benefit of which restrictive covenants have been placed upon other lots in the tract, may main- tain an action to enforce the covenant. Riverbank Improv. Co. v. Bancroft, 34: 730, 95 N. E. 210, 209 Mass. 217. 92. A purchaser of a lot in a tract of land opened for residence purposes, the deeds to each of which contain covenants as to the character of building to be placed on the lot; may enforce such covenant against the purchaser of another lot. Mc- Neil v. Gary, 46: 1113, 40 App. D. C. 397. 93. A remote grantee of a portion of a tract of land cannot enforce against a re- mote grantee of another portion a restric- tive covenant in a 'grant of the entire tract before its subdivision, as to the character of buildings to be placed on the property, although the original grantor parted with his. entire interest in all property in the neighborhood, where deeds and mortgages were given by a subsequent grantee in sub- dividing the tract, and foreclosure sales made on the various subdivisions, without any reference to such covenant. Korn v. Campbell, 37: i, 85 N. E. 687, 192 N. Y. 490. 94. A grantor may, although he has parted with all property in the neighbor- hood, enforce restrictive covenants on the use of city property against an assignee of his grantee with notice. Vansant v. Rose, 49: 186, 103 N. E. 194, 260 111. 401. 95. The absence from the deed of Ian- Digest 1-52 L.R.A.(N.S.) guage showing that a covenant restricting the uses to which the land can be put is for the benefit of the remaining tract of j the grantor will not prevent the enforce- l nient of the condition in favor of subse- ! quent owner of such remainder, if, from the surrounding circumstances, it appears that the intention was to benefit such tract. Ball v. Milliken, 37: 623, 76 Atl. 789, 31 R. I. 36. 96. A covenant in a deed of a parcel of a tract being divided into city lots, which is stated to run with the land, and requires the covenantor to construct a specified build- ing on the property which shall be a cer- tain distance from street and side lines, cannot be enforced by a purchaser of an ad- joining lot, whose deed forbids the placing of a building on the lot within the same distance from the street specified in the former deed, on the theory that the obliga- tions are reciprocal. Berryman v. Hotel Savoy Co. 37: 5, 117 Pac. 677, 160 Cal. 55'J. * 97. A finding-that covenants in a deed of a parcel of a tract of city property, re- quiring the erection of a building of a cer- tain character placed in a certain way upon the property, were for the benefit of the en- tire tract, does not require its enforcement at the suit of an adjoining owner, where it is also found that there was no intention to create an easement in favor of any land whatever. Berryman v. Hotel Savoy Co. 37: 5, 117 Pac. 677, 160 Cal. 559. 98. A mortgagee of real estate may maintain a suit to enjoin violation of a building restriction which has been im- posed upon neighboring property for the benejfit of that which is subject to his mort- gage. Stewart v. Finkelstone, 28: 634, 92 N. E. 37, 206 Mass. 28. 2. Covenants running icith the land. (See also Covenant, II. c, 2, in Digest L.R.A. 1-70. j See also supra, 96. 99. An action to recover damages for the breach of covenants of warranty cannot be maintained by one who has neither privity of estate nor of contract. Bull v. Beiseker, 14: 514, 113 N. W. 870, 16 N. D. 290. Subsequent grantees. 100. Eviction under foreclosure of a mortgage existing on property at the time it is conveyed with a covenant of general warranty gives a remote grantee a right of action on the covenant, notwithstanding there were other covenants in the deed which would have given the immediate grantees a right of action because of the encumbrance as soon as the deed was exe- cuted. Williams v. O'Donnell, 26: 1094, 74 Atl. 205, 225 Pa. 321. 101. Covenants in a deed of real property executed by one who had neither title nor possession, do not run with the land so as to transfer a cause of action for their breach to remote grantees by operation of assumed COVENANTS AND CONDITIONS, III. d, 1. 785 conveyances of the property by the execu- tion and delivery of deeds purporting to con- vey it. Bull v. Beiseker, 14: 514, 113 N. W. 870, 16 N. D. 290. 102. A provision in a deed granting a strip of land to a city for a street, that "I shall never be compelled to" build a pavement, is a mere personal exemption, and does not run with the remaining land for the benefit of a grantee. Richmond v. Ben- nett, 16: 548, 109 S. W. 904, 33 Ky. L. Rep. 279. 103. A warranty of seisin of an inde- feasible estate in fee simple in a deed of real estate, which is broken at the time it is made runs with the land, so that a sub- sequent grantee can maintain an action for damages for breach thereof against the orig- inal vendor. Colenian v. Lucksinger, 26: 934, 123 S. W. 441, 224 Mo. 1. Assignees. 104. The assignee of a remote grantee cannot maintain an action to recover dam- ages for breach of covenants in a deed of real property which the covenantor neither had title to nor possession of at the time of the execution and delivery of the deed, in the absence of any transfer of the cause of action by the covenantee to the plaintiff's assignor. Bull v. Beiseker, 14: 514, 113 N. W. 870, 16 N. D. 290. (Annotated) 105. A provision in a deed poll to a canal company that the company, in consideration and on condition of the transfer of certain land to it, and the resulting benefit to the grantors as the owners thereof, will con- struct a basin connected with the canal upon the property, cannot be enforced by the assigns of the grantors on the ground that it is a covenant running with the land, since the company did not sign or seal the deed, and since the provision relied on as a covenant referred to things not in being, and there was nothing that could be con- strued either as a covenant with the grant- ors and their assigns, or by the canal com- pany for itself and assigns. Dawson v. Western Maryland R. Co. 14: 809, 68 Atl. 301, 107 Md. 70. d. Who liable or bound. 1. In general. (See also Covenant, II, d, 1, in Digest L.R.A. 1-70.) Personal liability of executors on warranty in deed, see EXECUTORS AND ADMINIS- TRATORS, 61. Liability of decedent's estate to covenantee, see JUDGMENT, 174. Covenant in lease as to repairs by landlord, see LANDLORD AND TENANT, 26. See also supra, 93, 94. 106. The vital question in an equitable action to enforce a restrictive covenant in a deed of conveyance, controlling the use or enjoyment of the land conveyed, is not whether there is a covenant running with the land, but whether the restriction as- Digcst 1-52 L.R.A.(N.S.) serted and relied on was one imposed upon the servient estate for the benefit of the land in behalf of which it is sought to be enforced. Brown v. Huber, 28: 705, 88 N. E. 322, 80 Ohio St. 183. 107. A grantee of the exclusive right to use and control all of the springs and branches upon a described tract of land, if he enters upon the land and accepts the deed in other matters, will be bound by covenants contained theVein, although he did not sign it. Atlanta, K. & N. R. Co. v. McKinney, 6: 436, 53 S. E. 701, 124 Ga. 929. (Annotated) 108. Purchasers and assigns of real prop- erty are not bound by a personal covenant of the former owner, contained in a writ- ten agreement made with the owner of ad- joining property, but not forming a part of a deed or indenture in the chain of title, un- less they have such knowledge or notice of it as to imply that the burden was assumed as a part of the consideration. Sjoblom v. Mark, 15: 1129, 114 N. W. 746, 103 Minn. 193. 109. That restrictive building covenants were not inserted in deeds to lots in a plat will not prevent the enforcement of them against the owners if they were part of a general plan for the tract and the lots were all sold with the understanding that the conveyances were subject to such restric- tions. Allen v. Detroit, 36: 890, 133 N. W. 317, 167 Mich. 464. 110. A covenant by a grantor whereby he stipulates and agrees for himself, his heirs, and assigns, that the only building upon an adjacent lot owned by him shall be a resi- dence and the necessary attachments, and that it shall be used for no other purposes than that of a family residence, is binding upon one claiming under him, who took with notice thereof. Brown v. Huber, 28: 705, 88 N. E. 322, 80 Ohio St. 183. 111. Equity will enforce against a grantee witji notice an agreement between adjoin- ing property owners that an air space shall be left along the division boundary line in placing buildings on the lots. Cotton v. Cresse, 49: 357, 85 Atl. 600, 80 N. J. Eq. 540. (Annotated) 112. A provision in a deed that the land is granted in consideration and on condition of the erection of a canal basin thereon is enforceable in equity by the grantors against the assigns of the grantee with no- tice, notwithstanding the provision does not amount to a covenant running with the land. Dawson v. Western Maryland R. Co. 14: 809, 68 Atl. 01, 107 Md. 70. 113. One who buys land subject to a lease containing a covenant whereby the lessor expressly stipulates that the lessee, at his option, may make necessary repairs, alter- ations, additions, or improvements upon the leased premises, and that he will reimburse him therefor, is not bound for the breach of the purely personal covenant of his predeces- sor, made prior to the sale to him. Willcox v. Kehoe, 4: 466, 52 S. E. 896, 124 Ga. 484. Municipality. 114. A municipal corporation which pur- 50 786 COVENANTS AND CONDITIONS, III. d, 2, IV. chases for public use a parcel of land which is subject to building restrictions in favor of adjoining landowners cannot place upon the property a building which violates such restrictions without terminating the ease- ments represented by the covenants, either by purchase or condemnation. Allen v. De- troit, 36: 890, 133 N. W. 317, 107 Mich. 464. 2. Covenants running with the land. (See also Covenant, II. d, 2, in Digest L.R.A. 1-70.) See also supra, 112. 115. The statutory extinguishment of the title of the dispossessed owner of land, under a statute providing that at the de- termination of the period limited to any person for the bringing of an action to establish his right and title therein, the right and title of such person "shall be ex- tinguished," does not have the effect of destroying the negative easement created by a restrictive covenant entered into by such owner ; and consequently the 'covenantee can enforce the covenant against the squatter both before and after he has acquired his possessory title, and also against any sub- sequent owner of the land not being a bona fide purchaser for value without notice. Re Nisbet, 2 B. R. C. 844, [1906] 1 Ch. 386. Also Reported in 75 L. J. Ch. N. S. 238, 54 Week. Rep. 286, 94 L. T. N. S. 297, 22 Times L. R. 234. (Annotated) Covenantor. 116. A covenant by a grantee perpetually to maintain a division fence, which rur.s with the land and is therefore binding upon a subsequent grantee of the covenantor, is not binding upon the latter after he has parted with his title. Sexauer v. Wilson, 14: 185, 113 N. W. 41, 136 Iowa, 357. Grantee. . See also supra, 115. 117. A covenant by the purchaser of water rights to convey to an adjacent lot occupied by the vendor as a residence suf- ficient water for the ample use and accom- modation of its occupants runs with the land, and binds the successor in title of the covenantor. Atlanta, K. & N. R. Co. v. Mc- Kinney, 6: 436, 53 S. E. 701, 124 Ga. 929. 118. Acceptance of deed poll binds the grantee to the performance of covenants contained therein. Sexauer v. Wilson, 14: 185, 113 N. W. 941, 136 Iowa, 357. 119. A covenant on the part of the gran- tee perpetually to maintain a tight fence between the land described and other prop- erty of the grantor adjacent thereto runs with the land, and is therefore binding upon a subsequent grantee, although there was no fence in existence at the time the cove- nant was made, and the word "assigns" is not used in the covenant. Sexauer v. Wil- son, 14: 185, 113 N. W. 941, 130 Iowa, 357. (Annotated) Digest 1-52 L.R.A.(N.S.) 120. An agreement of a water company to furnish water from its canal from year to year at an agreed price for irrigation purposes, which provides, in effect, that the obligation imposed on the company shall have the force and effect of a covenant run- ning with its canal, is not a mere personal covenant, and does not create a lien on the canal, but is, in substance and effect, an agreement for the sale of real property of the company, binding on a successor oi ; the company with notice. Stanislaus Water Co. v. Bachman, 15:359, 93 Pac. 858, 152 Cal. 716. 121. A negative covenant when validly created binds the land in equity, and can be enforced as against subsequent owners of the land, subject only to the limitation that, being equitable, it cannot be enforced as against a bona fide purchaser without notice. Re Nisbet, 2 B. R. C. 844, [1906] 1 Ch. 386. Also Reported in 75 L. J. Ch. N. S. 238, 54 Week. Rep. 286, 94 L. T. N. S. 297, 22 Times L. R. 234. IF. Running with the land. (See also Covenant, III. in Digest L.R.A. 1-10). Who may enforce, see supra, III. c, 2. Who bound by, see supra, III. d, 2. In lease, as to repairs by landlord, see LANDLOBD AND TENANT, 26. When action is barred, see LIMITATION OF ACTIONS, 257. See also supra, 96. 122. A negative covenant validly created, entered into by an owner of land with an adjoining owner, such as a covenant re- stricting the user of the land, binds the land in equity, as being in the nature of a nega- tive easement. Re Nisbet, 2 B. R. C. 844, [1906] 1 Ch. 386. Also Reported in 75 L. J. Ch. N. S. 238, 54 Week. Rep. 286, 94 L. T. N. S. 297, 22 Times L. R. 234. 123. A covenant imposing a burden on real estate for the benefit of the grantor personally does not follow the land into the possession of an assignee. Berryman v. Hotel Savoy Co. 37: 5, 117 Pac. 677, 160 Cal. 559. 124. A covenant in a deed of a parcel of a tract of city property, that the grantee ahall place a certain described building on the property, having certain relations to the side lines of the lot, is personal to the grantor, and does not run with the remain- der of the tract, although the deed states that the covenant runs with the land "here- in conveyed." Berryman v. Hotel Savoy Co. 37: 5, 117 Pac. 677, 160 Cal. 559. 125. A covenant against eviction runs with the land. Williams v. O'Donnell, 26: 1094, 74 Atl. 205, 225 Pa. 321. 126. An agreement by an owner of land with an adjoining owner that for the pe- riod of ten years he will not sell, or permit to be sold, upon the premises, any intoxi- cating liquor, is not a covenant running with COVENANTS AND CONDITIONS, V. CREAM. the land. Sjoblom v. Mark, 15:1129, 114 N. W. 746, 103 Minn. 193. 127. A covenant by a lessor to convey a fee to the lessee, his heirs and assigns, upon the performance of certain conditions, runs with the land. Hollander v. Central Metal & S. Co. '23: 1135, 71 Atl. 442, 109 Md. 131. 128. A provision in a deed whereby the grantee assumes and agrees to pay an ex- isting mortgage does not create a covenant which runs with the land, although insert- ed in connection with the covenants of sei- sin and against encumbrances. Clement v. Willett, 17: 1094, H7 N. W. 491, 105 Minn. 267. 129. A covenant by a railroad company to leave at a siding on property of the cove- nantee any car in which articles weighing a certain amount shall be laden for him, and on which the charges for transportation are paid, does not run with the land. Whalen v. Baltimore & 0. R. Co. 17: 130, 69 Atl. 390, 108 Md. 11. Stopping trains; maintenance of sid- ing. 130. A covenant in a grant of a railway right of way, to stop trains at a point near the residence of the grantor, although refer- ring to something not in being, and specific- ally stated to be for the benefit of assignees of the landowner, runs with the land into possession of his devisees. Ford v. Oregon Electric R. Co. 36: 358, 117 Pac. 809, 60 Or. 278. 131. A covenant by a railroad company with one. his heirs and assigns, to construct and maintain a siding on his property, and to run trains to and from it, runs with the land. Whalen v. Baltimore & 0. R. Co. 17: 130, 69 Atl. 390, 108 Md. 11. Party wall. See also PARTY WALL, 11. 132. A party wall agreement is in the nature of a covenant running with the land. Hawkes v. Hoffman, 24: 1038, 105 Pac. 156, 56 Wash. 120. 133. A contract made between the re- spective owners of adjoining lots, expressed to be binding upon their heirs and assigns, providing that the wall of a building one of them is about to erect shall be placed upon the dividing line, and that, when the other builds, he shall use it as a party wall, and pay him half its value, in effect creates covenants running with the land of each party ; and where, after such first building is erected, conveyances are mad? of each lot, the subsequent owner of the vacant lot, who builds thereon and makes use of the party wall, is required to make payment therefor to the then owner of the lot first built upon. South worth v. Perring, 2: 87, 81 Pac. 481, 82 Pac. 785, 71 Kan. 755. (Annotated) "Water rights. License running with land, see LICENSE, 2 See also supra, 117. 134. A stipulation in a deed, that the grantee of even-numbered water lots shall build a dam, with a canal or race of a spe- cified character extending through the prop- erty, including the odd-numbered lots, and Digest 1-52 L.R.A.(N.S.) that the lots conveyed, with their improve- ments, shall be forever liable for the pay- ment of any damage sustained by the own- ers of the odd-numbered lots by reason of the failure to complete the race or canal and kee.p it in good repair, is a covenant run- ning with the land. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S. E. 1028, 126 Ga. 210. 135. A covenant by the grantee of water rights to supply water to the residence of the grantor does not extend to a thing not in esse, so as to prevent it from running with the land, although the machinery for conveying the water to the residence was not in existence when the covenants was made. Atlanta, K. & X. R. Co. v. McKinney. 6: 436, 53 S. E. 701, 124 Ga. 929. V. Extingtiishment of, or discharge from, covenant. (See also Covenant, IV. in Digest L.R.A 1-10.) 136. As a general rule, a covenant in a deed of land, restricting the mode of its use, and inserted for the benefit of adjoin- ing land of the grantor, will be extinguished by the subsequent vesting in one person of the title to both tracts of land. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S. E. 1028, 126 Ga. 210. COVERS. Injunction against erection of, for shoot- ing purposes, see INJUNCTION, 49, 50. COVERTURE. Effect of, on acquirement of title by adverse possession, see ADVEESE POSSESSION, 11, 12. Effect of, on running of limitations, see LIMITATION OF ACTIONS, II. m. As to disability of coverture generally, see HUSBAND AND WIFE, I. b. COWS. Liability for injury by, see ANIMALS, 14. Frightening of horse by, while at large in highway, see ANIMALS, 21, 22. Breach of warranty on sale of, see SALE, 200. CREAM. Injunction to restrain enforcement of stat- ute regulating shipment of cream, see INJUNCTION, 354. See also FOOD, 37-42. 788 CREDIBILITY CREDITORS' BILL, I. CREDIBILITY. Presumption as to credibility of evidence, see EVIDENCE, 293, 296. Of witness, see WITNESSES, IV. CREDIT. Withdrawing from shipper privilege of shipping goods on credit, see CABBIERS, 757. To convicts for good behavior, see CONSTITU- TIONAL LAW, 97. Liability on oral representations as to an- other's credit, see CONTRACTS, 199. Loan of credit by corporation, see CORPORA- TIONS, 73. Damages for injuries to, see DAMAGES, 43. Fraud in obtaining, see FRAUD AND DECEIT, V. Right to proceed in bankruptcy against in- solvent purchasing goods on credit with- out disclosing facts, see FRAUD AND DE- CEIT, 22. Situs of, for purpose of garnishment, see GARNISHMENT, I. d. To guardian for services, see GUARDIAN AND WARD, 7. Agent's powers to purchase or sell on cred- it, see PRINCIPAL AND AGENT, II. b. Taxation of, see STATUTES, 63-69, 80-82, 137-148, 185, 340, 342-344. CREDITORS' BILL. I. When maintainable, 11O. II. Exhausting legal remedies, 11, 12. III. What property may ~be reached, 13- 2O. IV. Liens; priorities between creditors. V. Decree; relief generally. Waiver of error in trial court, see APPEAL AND ERROR, 820. As action in rem; effect on, of discharge in bankruptcy, see BANKRUPTCY, 145, 146. To compel payment of stock subscriptions, see CORPORATIONS, 342. To enforce statutory liability of stockhold- ers, see CORPORATIONS, 368, 369. Effect of injunction in suit in Federal court founded on, on subsequent actions at law by debtor, see COURTS, 281. Proceeding in aid of execution contrasted with, see EXECUTION, 12. As to supplementary proceeding, see EXE- CUTION, II. Sufficiency of complaint, see PLEADING, 423. Against person converting debtor's property, see TROVER, 3. I. When maintainable. (See also same heading in Digest L.R.A. 1-10.) For tax, see TAXES, III. e. See also FRAUDULENT CONVEYANCES, 4, 5. Digest 1-52 L.R.A.(N.S-) 1. The absence or fraud cm the part of a debtor, or of a lien or a trust in favor of the creditor, is fatal to the maintenance of a creditors' bill. Raymond v. Blancgrass, 15:976, 93 Pao. 648, 36 Mont. 449. 2. A creditor of a debtor corporation may proceed in equity to set aside a trans- fer by a corporation of investment bonds of another corporation, held by it in considera- tion of shares of its own stock. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 3. A court of equity, in the absence of fraudulent transfer, and in the absence of su.?h other fraud as would positively impede an action at law and proceeding in garnish- ment, has no jurisdiction to subject the choses in action of the debtor to the pay- ment of his debts. Hall v. Alabama Ter- minal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 4. Incorporating into a garnishment statute a provision for bringing in an as- signee of defendant's choses in action, and the trial of the bona fides of the assign- ment does not oust' equity of its jurisdiction to subject such choses -to the claims of creditors. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 5. A creditor may, notwithstanding the garnishment statutes, apply to a court of equity to set aside an assignment of a chose in action in fraud of his rights. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 6. A creditor whose debtor has fraudu- lently conveyed his property may, if lie chooses, before reducing his claim to writ- ing, commence an action aidea by attach- ment, and seize tlu estate fraudulently con- veyed, and, after judgment in the attach- ment suit, enforce his lien by an action in the nature of a creditors' bill, whether the debtor resides within or without the state. Ainsworth v. Roubal, 2: 988, 105 N. W. 248, 74 Neb. 723. 7. An attachment or judgment lien is not necessary to enable a judgment creditor of a corporation to go into equity to reach its assets which have been transferred to a stranger, where he has exhausted his rem- edies at law. Williams v. Commercial Nat. Bank, n: 857, 90 Pac. 1012, 49 Or. 492. 8. The duty imposed upon children by their mother's will to furnish care, support, and necessaries to their father, which is made a charge on property devised to them j by her, is not to pay money which can be reached by the father's general creditors, until the children have failed to perform it. Merchants' Nat. Bank v. Crist, 23: 526, 118 M. W. 394, 140 Iowa, 308. 9. The surrender by a husband of his statutory rights in his wife's estate, and his acceptance of a provision for support in lieu thereof, contained in her will, does not en- title his creditors to subject the benefit ac- cruing to him under the will to the payment of their claims if it could not otherwise be reached by them. Merchants' Nat. Bank v. Crist, 23: 526, 118 N. V. 7 . 394, 140 Iowa, 308. CREDITORS' BILL, II. CREMATORIES. 10. A judgment creditor of one whose support is made a lien upon property de- vised to persons charged with the duty of furnishing it may maintain a bill in equity to subject the property so far as necessary to the payment of whatever amount should be paid towards the satisfaction of it by such persons. Merchants' Xat. Bank v. Crist, 23: 526, 118 N. W. 394, 140 Iowa, 308. ( Annotated ) II. Exhausting legal remedies. (See also same heading in Digest L.R.A. 1-10.) See also supra, 7. \ .n 11. A party cannot maintain an action in the nature of a creditor's suit to reach property of his debtor fraudulently con- veyed, until the claim has been reduced to judgment; and until judgment is obtained by the creditor the statute of limitations will not, under ordinary circumstances, com- mence to run against such a suit, notwith- standing the existence of a remedy by at- tachment before reducing the claim to judgment. Ainsworth v. Roubal, 2: 988, 105 N. W. 248, 74 Neb. 723. (Annotated) 12. A cause of action for conversion in favor of a debtor, if property, must be pro- ceeded against by execution by the creditor before he can maintain a creditors' bill un- der statutes making all forms of property, real and personal, subject to levy. Raymond v. Blancgrass, 15:976, 93 Pac. 648, 36 Mont. 449. (Annotated) ///. What property may T>e readied. (See also same heading in Digest L.R.A 1-10.) 13. Choses in action are within the pro- visious of a statute permitting the filing of a bill in equity to subject to the payment of a debt any property which has been fraud- ulently conveyed by the debtor. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 14. Money paid by a debtor corporation for shares of its own stock is property fraudulently transferred, which may be reached and subjected by a creditor to his claims by a bill in equity. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 15. A creditor's bill will not lie to reach the surrender value of the debtor's life in- surance policies, which were, prior to the contracting of the indebtedness and not in contemplation thereof, made payable, in case of the debtor's death, to his wife and chil- dren, althoug'- he had power to change the beneticiari -a,' and in case he lived r-t the term of the policies, the amounts due on them were payable to him. National Bank v. Appel Clothing Co. 4: 456, 83 Pac. 965, j 35 Colo. 149. (Annotated) Digest 1-52 L.R.A.(N.S.) 16. The interest of one who, living at the death of testator, is a beneficiary in a will giving the income of property to his father for life, and, upon the father's death, giving the property to him if living, may be reached by a creditors' bill. Clarke v. Fay, 27: 454, 91 N. E. 328, 205 Mass. 228. (Annotated) 17. A creditors' bill will not lie to reach an interest under a will which depends upon an aunt of the beneficiary dying without issue after the death of the father of the beneficiary, and while the beneficiary is yet alive. Clarke v. Fay, 27: 454, 91 N. E. 328, 205 Mass. 228. 18. The court has power to ascertain the value of the interest of one who is be- queathed certain property in case he sur- vives his father, although its amount may be changed by the death before distribution of other possible distributees, or the birth of other children to his father so as to bring it within the operation of a statute permitting creditors to reach such interests. Clarke v. Fay, 27: 454, 91 N. E. 328, 205 Mass. 228. 19. The contract of a husband and wife to support his father in their family and furnish him with a stated sum per year during his life is a personal contract, and the rights of the father under the contract cannot be subjected by a court of equity to the payment of a judgment against him. Valparaiso State Bank v. Schwartz, 42: 1213, 138 N. W. 757, 92 Neb. 575. ( Annotated ) 20. Where the consideration for a con- tract to support a father, by a son and his wife, is, on the part of the father, the con- veyance of his homestead to a third party, who in turn conveys real estate to the son and his wife, upon which the father re- tains a lien to secure the performance of the contract, the father's interest in the proper- ty so conveyed to the son and wife will not be subjected to the payment of a judgment upon an indebtedness incurred after the transfer of the property to the husband and wife. Valparaiso State Bank v. Schwartz, 42: 1213, 138 N. W. 757, 92 Neb. 575. IV. Liens; priorities between creditors. (See same heading in Digest L.R.A. 1-70.) V. Decree; relief generally. (See same heading in Digest L.R.A. 170.) CREMATORIES. Constitutionality of regulations as to, see CONSTITUTIONAL LAW, 373. Judicial notice of method of operating, see EVIDENCE, 24. Contraction of debt by city for, see MUNICI- PAL CORPORATIONS, 275. 790 CREOSOTE CRIMINAL LAW. CREOSOTE. Duty to warn servant handling timber treat- ed with, see MASTER AND SERVANT, 219, 220. Liability for injury by fumes of, see NEG- LIGENCE, 38. Fumes arising from creosote paving blocks as nuisance, see NUISANCES, 199. Allegation of, see INDICTMENT, ETC., II. b. Question for jury ue to, see TRIAL, 292, 293. CRIME. Injunction against, see INJUNCTION, I. d. Charge of, as libel, see LIBEL AND SLANDER, II. b. Misappropriation of money amounting to criminal offense as natural consequence of failure to use due care in recommend- ing broker, see PROXIMATE CAUSE, 154. Suicide as, see SUICIDE. In general, see CRIMINAL LAW. CRIME AGAINST NATURE. Indictment for, see INDICTMENT, ETC., 99. In general, see SODOMY. CRIMINAL ASSAULT. See ASSAULT AND BATTERY. rod'//' .OS airs o-t ioj CRIMINAL CONSPIRACY. See CONSPIRACY; MONOPOLY AND COMBINA- TIONS. CRIMINAL CONTEMPT. See CONTEMPT, 13-14, 66, 95, 106. CRIMINAL CONVERSATION. Validity of agreement in settlement of cause of action for, see CONTRACTS, 494. Damages for, see DAMAGES, 637. Mode of proving marriage in action for, see EVIDENCE, 2203. Husband's right of action for, see HUSBAND AND WIFE, 161. Wife's right of action for, see HUSBAND AND WIFE, 191. CRIMINAL INTENT. As element of crime, see CRIMINAL LAW, 8-18. Presumption and burden of proof as to, see EVIDENCE, II. e, 6. Digest 1-52 L.R.A.(N.S.) CRIMINAL LAW. I. Criminal liability, 159. a. In general, 123. It. Capacity to commit; irrespon- sibility, 24-42. c. Attempts, 4347. d. Solicitation. e. Parties to offenses, 4S56. f. Instigation or consent, as de- fense; entrapment, 5759. II. Procedure, 6O22O. a. In general, 6O71. b. Protection and rights of ac- cused generally, 72131. c. Warrant; commitment, 132. d. Necessity of indictment, pre- sentment or information, 133144. e. Concurrent proceedings. f. Pleading; motions; demurrer, 145166. g. Former jeopardy, 167 22O. 1. In general, 167205. 2. Different offenses; differ- ent modes of describing same act, 2O622O. h. Determining sanity of ac- cused; proceeding 'with trial. III. Offenses against different sov- ereignties, 221225. IV- Sentence and imprisonment, 226 314. a. In general, 226237. 6. Cruel and unusual punish- ment, 238244. C. Extent of punishment general- ly ; excessive fines, 245251. d. Time of imprisonment; cumu- lative and indeterminate sentences, 252264. e. Place of imprisonment. /. Punishment of second offenses and habitual criminals, 265 269. g. Suspension or stay of sen- tence; time of imposing, 27O-2SS. h. Parole; reprieve; pardon, 289-314. 1. In general, 289 3O2. 2. Conditional, 3O3314. V. Record; validity of conviction, 315-317. Various particular crimes, see ABDUCTION AND KIDNAPPING; , ABORTION; ADUL- TERY; ANIMALS, II.; ARSON; ASSAULT AND BATTERY; BANKS, VII.; BASTARDY; BETTING; BIGAMY; BLASTING, 10-12; BREACH OF PEACE; BRINGING STOLEN GOODS INTO STATE; BUILDINGS, 26; BURGLARY ; CARRIERS, III. k ; CARRYING WEAPONS: CIGARETTES; DISORDERLY HOUSES; DISTURBING MEETING; DRUGS AND DRUGGISTS, 1; ELECTIONS, III. d; EMBEZZLEMENT ; EXTORTION ; FALSE CRIMINAL LAW. 791 PRETENSES; FORGERY; GAME LAWS; ] GAMING; HOMICIDE; HUSBAND AND WIFE, IV.; INCEST; INFANTS, 10-14, 16-18; INTOXICATING LIQUORS, III.; LARCENY; LOTTERY; MALICIOUS IN- JURY; MALICIOUS MISCHIEF; MAYHEM; MONOPOLY AND COMBINATIONS; NUI- SANCES, III.; OBSCENITY; OBSTRUCTING JUSTICE ; PERJURY ; PERVERSION OF JUS- TICE; POINTING WEAPON; POSTOFFICE, III.; PROSTITUTION; RAPE; RECEIVING STOLEN PROPERTY; ROBBERY; SEDUC- TION, II.; SMUGGLING; SODOMY; S"m- CIDE; TRESPASS, II.; WAREHOUSEMEN, 3. Question whether action is civil or criminal, see ACTION OR SUIT, 59-69. Appeal in criminal contempt case, see AP- PEAL AND ERROR. As to arrest, see ARREST. Disbarment of attorney for crime, see AT- TORNEYS, 14-18, 24, 29. Duty of Attorney General to prosecute li- quor case at request of Governor, see ATTORNEY GENERAL, 3. Right of attorney compelled to defend in- digent person to recover compensation from public, see ATTORNEYS, 59. Statute making criminal, issue of bill of lading unless goods have actually been received, see BILLS OF LADING, 6. Statute making it criminal to jump on or off railway cars, engines, etc., see CAR- BIERS, 992, 993. Indictment of carrier for exacting excessive fares, see CARRIERS, 1025. Statute making giving or acceptance of rail- road pass a criminal offense, see CAR- BIERS, 1059, 1062, 1063, 1067, 1068. Statute making giving of rebate a criminal offense, see CARRIERS, 1072-1076. Right of convicted person to maintain action against witness for negligently giving false evidence, see CASE, 7. Status of convict, see CIVIL DEATH. Effect of adoption of common law on Can- adian criminal code, see COMMON LAW, 1. Compounding crime, see COMPOUNDING CRIME. Enforcing penal statute of other state, see CONFLICT OF LAWS. Conflict of laws as to crime, see CONFLICT OF LAWS, I. e, 3. Conspiracy to commit crime, see CONSPIR- ACY. Effect on pending informations of adoption of constitutional amendment, see CON- STITUTIONAL LAW, 15. Making criminal violation of rules as to street car transfers, see CONSTITUTION- AL LAW, 76. Making payment of less than prescribed 'wage to teachers a penal offense, see CONSTITUTIONAL LAW, 627; SCHOOLS, 31. Forbidding publication of details of crimi- nal execution, see CONSTITUTIONAL LAW, 753. Eos post facto laws, see CONSTITUTIONAL LAW, I. b, 1. Digest 1-52 L,.R.A.(N.S.) Equal protection and privileges in criminal matters, see CONSTITUTIONAL LAW, II. a, 8. Due process as to criminal matters, see CON- STITUTIONAL LAW, 570-573. Police power as to crime, see CONSTITUTION- AL LAW, II. c, 5. Contempt by person on trial for crime, see CONTEMPT, 1. Criminal contempt, see CONTEMPT, 13-14, 66, 95, 106. Validity of contract to detect crime, see CONTRACTS, 459. Liability for injury committed by convict, see CONVICTS, 1, 2. Criminal liability of corporation, see COR- PORATIONS, 124-130. Costs of criminal prosecution, see COSTS AND FEES, 8, 9, 12. Recovery of fees by counsel appointed to de- fend one accused of crime, see COUN- TIES, 16-18, 29. Discretion of courts in applying penal stat- ute, see COURTS, 116. Injunction against criminal proceedings, see COURTS, 272; INJUNCTION, 298-309; JUDGMENT, 122. Decision of criminal court as rule of de- cision, see COURTS, 304. Delinquent children, see DELINQUENT CHIL- DREN; JUVENILE OFFENDERS. District attorneys, see DISTRICT AND PROSE- CUTING ATTORNEYS. Criminal liability of father for failure to support children after divorce, see DI- VORCE AND SEPARATION, 158. Threat to bring criminal prosecution, as du- ress, see DURESS, 8-15. Effect of conviction of crime on right to . vote, see ELECTIONS, 7, 8. Criminal liability of discharged convict for registering as voter, see ELECTIONS, 86. Escape from jail as a criminal offense, see ESCAPE. As to extradition, see EXTRADITION. Civil liability for false arrest and imprison- ment, see FALSE IMPRISONMENT. Grand jury, see GRAND JUBY. Habeas corpus to secure release of prisoner, see HABEAS CORPUS. Violation of quarantine, see HEALTH, 11. Misdemeanor in obstructing highway, see HIGHWAYS, 86. Failure to perform road work as a crime, see HIGHWAYS, 141-146. Trial on holiday of one accused of crime, see HOLIDAYS, 2. Responsibility for failure to furnish medi- cal attendance to infants, see INFANTS, 10-14. Criminal liability for failure to support chil- dren, see INFANTS, 16-18. Injunction against acts punishable as mis- demeanors or felony, see INJUNCTION, 163-172; NUISANCES, 159-167. injunction against criminal proceedings, see INJUNCTION, 298-309; STATE, 23. Duty of insurer against liability for auto- mobile accidents to defend prosecution 792 CRIMINAL LAW, I. a. against insured for manslaughter growing out of accident, see INSUR- ANCE, 941. Acquittal on criminal charge as bar to civil action, see JUDGMENT, 150. Acquittal of criminal charge as bar to in- junction, see JUDGMENT, 195. Acquittal in criminal prosecution as res judicata in civil suit, see JUDGMENT, 194. Effect of acquittal of one joint defendant as against codefendant, see JUDGMENT, 223. Legislative power to make taking of usury a crime, s -e LEGISLATURE, 4. Enforcing excise tax by criminal prosecu- tion, see LICENSE, 131. Civil liability for bringing prosecution, see MALICIOUS PROSECUTION. Penal statute as to time of payment of wages, see MASTER AND SERVANT, 76. Indefiniteness of ordinance as to misdemean- ors, see MUNICIPAL CORPORATIONS, 85. Power of municipality to employ detective to ascertain whether criminal laws are violated, see MUNICIPAL CORPORATIONS, 35. Effect of repeal without saving clause of penal ordinance upon prior conviction under it, see MUNICIPAL CORPORATIONS, 52. Ordinance making misdemeanors all of- fenses which are misdemeanors under laws of state, see MUNICIPAL CORPORA- TIONS, 85. Enforcing rates prescribed by ordinance by criminal penalty, see MUNICIPAL COR- PORATIONS, 221. Criminal liability of municipality, see MU- NICIPAL CORPORATIONS, II. j. Injury to one of two parties engaged in act violating penal law, by negligence of the other, see NEGLIGENCE, 205. Prohibition against criminal prosecution, see PROHIBITION, 1, 8, 15. Proximate cause of injury by crime, see PROXIMATE CAUSE, 159. Right of person under indictment to insti- tute proceedings to test validity of or- ganization of county, see Quo WAR- RANTO, 11. Violation of criminal statute as negligence, see RAILROADS, 135. Penal prosecution against railroad company for dangerous speed of trains at street crossings, see RAILROADS, 165. Reward for criminal, see REWARD. Sale of adulterated confectionery, see SALE, 25, 26. Residence for school purposes of children committed to citizens on probation by juvenile court, see SCHOOLS, 8. Violation of compulsory education law, see SCHOOLS, 13, 14. Search of accused person, see SEARCH AND SEIZURE. Injunction to restrain enforcement of penal law of state, see STATE, 23. , Ambiguity in penal statute, see STATUTES, 35, 42-44. Strict construction of penal statute, see STATUTES, 189, 264-269. Digest 1-52 L.R.A.(N.S.) Forbidding tapping of telephone wires, see TELEPHONES, 2. Sufficiency of tender of fine imposed on con- vict, see TENDER, 7. Witnesses in criminal case, see WITNESSES. Fees of witnesses on criminal trial, see WIT- NESSES, V. Exemption from service of process of non- resident present in state to defend crim- inal proceedings, see WRIT AND PROC- ESS, 86, 87. /. Criminal liability, a. In general, (See also same heading in Digest -L.R A. 1-10.) Duress as defense to criminal liability for selling pooled tobacco contrary to stat- ute, see DURESS, 6. Of master for acts of servant or agent, see MASTER AND SERVANT, 893. Of municipality, see MUNICIPAL CORPORA- TIONS, II. j. 1. Mere belief on the part of an express company that a transaction by which it transports and delivers intoxicating liquor contrary to loc ' law is interstate commerce will nr 1 shield it from punis? .ent if it is not in fact such. Adams Exp. Co. v. Com. 5: 630, 92 S. W. 932, 124 Ky. 160. 2. Naming the offense is not necessary to warrant its punishment, where it Is de- scribed by statute sufficiently to justify a resort to the common law for its definition, although no common-law offenses are recog- nized in the state. State v Ayers, 10: 992, 88 Pac. 653, 49 Or. 61. 3. Prescribing a punishment for an act forbids it, within the meaning of a statute providing that a crime is an act forbidden by law and to which is annexed upon con- viction a punishment. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. 4. The tearing down of a temporary "for rent" sign from a building is not with- in the provisions of a statute making it a misdemeanor to cut or destroy timber or trees, or sever from the freehold anything attached thereto. Whipple v. Gorsuch, 10 : 1133, 101 S. W. 735, 82 Ark. 252. 5. The existence of a preliminary order enjoining the enforcement of a statute re- lating to the inspection of oil pending a suit to test the constitutionality of the statute does not relieve one who makes sales in violation of the terms of the stat- ute from prosecution thereunder, if the statute is ultimately held to be valid. State v. Wadhams Oil Co. 40: 607, 134 N. W. 1121, 149 Wis. 58. Unwritten law. 6. What is known as the '^higher law" has no place in the jurisprudence of Okla- homa. Litchfield v. State, 45:153, 126 Pac. 707, 8 Okla. Grim. Rep. 164. CRIMINAL LAW, I. a. 793 What law in point of time governs. What law governs as to length of imprison- ment, see infra, 254. 7. One cannot be punished for selling intoxicating liquor at a time when the pro- hibitory law is, by decision of the highest court of the state, unconstitutional, al- though that court subsequently .changes its opinion and holds the law to be valid. State v. O'Neil, 33: 788, 126 N. W. 454, 147 Iowa, 513. (Annotated) Intent; motive; knowledge^ Intent as element of assault, see ASSAULT AND BATTEBY, 3, 22-25. Intent as necessary element of violation of statute against illegal voting, see ELECTIONS, 58. Presumption as to intent, see EVIDENCE, 255-257. Sufficiency of evidence to show malice, see EVIDENCE, 2096. In case of forgery, see FORGERY, 10. Intent as element of homicide, see HOMI- CIDE, 24-32. Illegal sale of liquor to minor in ignor- ance of his age, see INTOXICATING LI- QUORS, 155. Intent as necessary element of offense of pointing gun, see POINTING WEAPON. Question for jury as to intent, see TRIAL, 292, 293. Instructions as to, see TRIAL, 825, 929. See also infra, 24; INTOXICATING LIQUORS, 103. 8. In criminal law "malice" may de- note that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse, Alt v. State, 35: 1212, 129 N. W. 432, 88 Neb. 259. 9. In a trial for bigamy under a statute which does not make intent an element of the crime, it is no defense for accused to prove he acted in good faith on advice of counsel that a former marriage to his cousin was void, and that a deputy county attorney threatened him with prosecution for living with her, where such former marriage is valid. Staley v. State, 34:613, 131 N. W. 1028, 89 Neb. 701. (Annotated) 10. Criminal intent is not an element of the offense under a statute making guil- ty of larceny one who, having possession of state funds, converts them to his own use. State v. Ross. 42:601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 11. A criminal intent to violate the El- kins act (act February 19, 1903, chap. 708, 32 Stat. at L. 847 ; U. S. Comp. Stat. Supp. 1905. p. 599). forbidding the giving or re- ceiving of a rebate or concession from the established rate for the transportation of goods, is disclosed where the shipper* knew that it was receiving, and intended to se- cure, a concession whereby its property was transported in foreign commerce at a less rate than that legally filed and published. Armour Packing Co. v. United States, 14: 400, 153 Fed. 1, 82 C. C. A. 135. 12. Religious belief is no excuse for vio- lation of a statute making it a misdemean- Digest 1-52 L.R.A.(N.S.) or not to furnish medical attendance to a child. Owens v. State, 36: 633, 110 Pac. 345, 6 Okla. Crim. Rep. 110. (Annotated) 13. A statute making it a misdemeanor to buy or receive fittings which have been unlawfully removed from railway tracks or cars, without knowledge of the facts, is un- constitutional. Kilbourne v. State, 35: 766, 95 N. E. 824, 84 Ohio St. 247. 14. Knowledge of the age of the person named in the complaint is not essential to the violation of a statute forbidding the owner, keeper, or manager, of a dance house to permit any person under twenty-one years of age to be or remain therein, when not so provided by the statute. State v. Rosenfield, 29: 331, 126 N. W. 1068, 111 Minn. 301. 15. Under a statute making it a penal offense to unite "in wedlock any of the per- sons whose marriage is declared invalid" by a statute which is directed against mar- riages between persons within the prohibit- ed degrees of consanguinity, and males un- der eighteen and females under fifteen, knowledge by the officiating officer that a female whom he has united in marriage was under fifteen years of age is not an essen- tial element of the offense. Territory v. Harwood, 29: 504, 110 Pac. 556, 15 N. M. 424. (Annotated) 16. That a girl falsely represented her- self to be over eighteen years of age, that her appearance warranted defendant in so believing, and that he did' so believe, will not release him from liability, under a, stat- ute making it a misdemeanor to harbor any female under the age of eighteen years for the purpose of sexual intercourse, for so harboring such girl, as intent and knowl- edge are not essential elements of the crime, especially wnere the harboring of any female for such purpose is unlawful. Brown v. State} 25: 661, 74 Atl. 836, 7 Penn. (Del.) 159. 17. In a prosecution for selling grain in violation of a statute forbidding any per- son operating a warehouse to sell or per- mit to be removed beyond his custody any grain for which a receipt has been given by him without the written assent of the hold- er of such receipt, the defendant cannot show that he had contracted to purchase the grain alleged to have been illegally sold, and that he thought he had a right to sell and dispose of it, as the motive or intent with which the sale was made is immaterial, it being sufficient that the act itself was done voluntarily, at least, where the stat- ute itself is silent on the subject of intent. State v. Henzell, 27: 159, 107 Pac. 67. 17 Idaho, 725. (Annotated) 18. Ignorance on the part of a waiter at a lunch counter that material furnished by him as butter is in fact oleomargarine will not absolve him from liability to punishment under a statute providing for punishment of anyone who furnishes oleo- margarine for butter without first inform- ing the customer of the fact. State v. Welch, 32: 746, 129 N. W. 656, 145 Wis. 86. (Annotated) 794 CRIMINAL LAW, I. b. Continuing crimes. 19. Under a statute defining the practice of medicine as prescribing or recommending for a fee any drug or medicine, or using the word or letters "Dr.," "Doctor," "M. D.," or any other title which in any way repre- sents one as engaged in the practice of medi- cine, or representing or advertising one's self as authorized to practise medicine; and providing a penalty for the practice without having received and recorded a certificate from the board of registration and examina- tion, one who has set himself up to prac- tise medicine without the required certifi- cate may be convicted as for separate of- fenses for opening an office and placing a sign over the door indicating that he is au- thorized to practise medicine, and also, for each specific act of practice by treating dif- ferent persons, although two such treat- ments occur on the same day. State v. Cotner, 42: 768, 127 Pac. 1, 87 Kan. 864. (Annotated) 20. One who fraudulently disposes of property and omits it from his bankruptcy schedule for more than twelve months be- fore his indictment for fraudulent conceal- ment of the property, cannot, on the theory that the concealment was a continuing of- fense, be punished therefor, jn view of the provision of the bankruptcy act that the in- dictment must be found within one year after the commission of the offense if he did nothing after filing his schedule except to remain passive. Warren v. United States, 43: 278, 199 Fed. 753, 118 C. C. A. 191. (Annotated) 21. One who takes from different recep- tacles in the same room, as one continuous transaction, a watch belonging to one per- son and money belonging to another, can be convicted of but one offense. State v. Sampson, 42: 967, 138 N. W. 473, 157 Iowa, 257. (Annotated) 22. Several sales by a merchant on the Lord's Day constitute but one offense under a statute providing a penalty for exercising one's ordinary trade on that day. State v. James, 18: 617, 62 S. E. 214, 81 S. C. 197. 23. Only one conviction can be secured for giving several performances in the thea- ter on Sunday, under a statute providing that any proprietor of any place of amuse- ment who shall permit it to be open on that day shall be fined. Muckenfuss v. State, 20: 783, 116 S. W. 51, 55 Tex. Grim. Rep. 229. (Annotated) b. Capacity to commit; irresponsibility. (See also same heading in Digest L.R.A. 1-10.) Criminal liability of corporation, see CORPO- RATIONS, 124-130. Effect of statute fixing age of consent to render girl under age incapable of com- mitting sexual crime, see WITNESSES, 129. Digest 1-52 L.R.A.(N.S.) Insanity; irresistible impulse. Attempt to deprive accused of defense of insanity, see CONSTITUTIONAL LAW, 581. Presumption and burden of proof as to sanity, see EVIDENCE, 221-223. Sufficiency of presumption of sanity to sup- port conviction, see APPEAL AND ERROR, 930. Opinion evidence as to insanity, see EVI- DENCE, VII. e. Evidence generally on question of sanity, see EVIDENCE, 1602-1606. Sufficiency of proof of sanity, see EVI- DENCE, 2358-2361. Right to show insanity of accused in pro- ceedings for extradition, see EXTRA- DITION, 4. Forgery as evidence of insanity, see INCOM- PETENT PERSONS, 1. Conclusiveness of decision on special issue as to insanity, see JUDGMENT, 89. Right to have question of sanity tried by jury, see JURY, 29, 53. Insanity as question for jury, see TRIAL, 238-241. Instructions as to, see TRIAL, 908, 914, 915. 24. An insane person cannot legally be guilty of a criminal intent. State v. Brown, 24: 545, 102 Pac. 641, 36 Utah, 46. 25. The term "insanity" in the law, means such an abnormal condition of the mind, from any cause, as to render the afflicted one incapable of distinguishing be- tween right and wrong in the given in- stance, and so rendering him unconscious of the punishable character of his act. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 26. A person is not immune from pun- ishment for a wrongful act if he has, at the time of perpetrating it, capacity to dis- tinguish between right and wrong in re- spect thereto, if he has such capacity and is conscious of the wrongfulness of his con- duct. Oborn v. State, 31 : 966, 126 N. W. 737, 143 Wis. 249. 27. Under a statute making all persons capable of committing crime except luna- tics, insane persons, persons of unsound mind, including persons temporarily or par- tially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of know- ing its wrongfulness, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental ca- pacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act. Alberty v. State, 52: 248, 140 Pac. 1025, 10 Okla. Grim. Rep. 616. 28. A statutory provision that an act done by a person in a state of insanity can- not be punished as a public offense does not in effect modify a previous statutory pro- vision that insane persons, if at the time of committing the act charged against them were incapable of knowing its wrong- fulness, are incapable of committing a CRIMINAL LAW, I. c. 795 crime; but under these provisions the test of criminal responsibility is the mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act, or to know its wrongfulness, and the defendant is not criminally re- sponsible if, by reason of insanity, he did not have the will and mental power to refrain from committing the act. Adair v. State, 44: 119, 118 Pac. 416, 6 Okla. Crim. Rep. 284. 20. Insanity of a murderer cannot be predicated merely on the atrocity of the crime and the fact that it was inspired by a sentimental motive. Turner v. State, 15: 988, 108 S. W. 1139, 119 Tenn. 663. 30. Delusional insanity or uncontrollable impulse is not a defense to a charge of mur- der unless at the time accused was unable to distinguish moral right from wrong. Smith v. State, 27: 461, 49 So. 945, 95 Miss. 786. (Annotated) 31. That one accused of murder is a somnambulist, and while in this state is without self-control, and commits acts of which he has no recollection, and that his offense was committed while he was in that state, constitutes no defense other than that embraced in a plea of insanity. Tibbs v. Com. 28: 665, 128 S. W. 871, 138 Ky. 558. 32. Mental disease, or temporary de- thronement of reason, at the time of killing another, will prevent one from being guilty of murder, although such state is brought about by his own fault in yielding to anger or passion. Duthey v. State, 10: 1032, 111 1ST. W. 222, 131 Wis. 178. (Annotated) 33. That the determination to commit murder was reached during a period of sani- ty does not render one guilty of that crime if he actually became insane before consum- mating the act. Duthey v. State, 10: 1032, 111 N. W. 222, 131 Wis. 178. 34. Insanity superinduced by long-con- tinued intoxication, and known as "delirium tremens," renders the person so afflicted ir- responsible for the commission of homicide, if 'his insanity be of such a character as to deprive him of the power to distinguish be- tween right and wrong, whether he be under the influence of liquor at the time of the commission of the crime or not; but to do so his affliction must be settled or fixed in- sanity, and not a mere fit of drunkenness. State v. Kidwell, 13: 1024, 59 S. E. 494, 62 W. Va. 466. 35. A sane person who voluntarily be- comes intoxicated to such an extent and for such a period of time as to cause uncon- sciousness of his acts, and affliction with delusions and hallucinations, is not irre- sponsible, under the law, for a homicide com- mitted by him while in such mental condi- tion. State v. Kidwell, 13: 1024, 59 S. E. 494, 62 W. Va. 466. (Annotated) 36. An irresistible impulse to steal is no defense to an indictment for burglary, if accused knew the difference between right and wrong. State v. Riddle, 43: 150, 150 S. W. 1044, 245 Mo. 451. (Annotated) Digest 1-52 L.R.A.(N.S.) Intoxication. Erroneous instruction as to effect of intoxi- cation on liability for homicide, see APPEAL AND EBBOK, 863. Fear induced by intoxication as defense to killing in alleged self-defense, see HOMI- CIDE, 104. See also supra, 34, 35; TRIAL, 914. 37. Intoxication of one accused of homi- cide cannot be relied upon to reduce mur- der in the second degree to voluntary man- slaughter, although it is a proper subject of inquiry in determining whether the deliberate premeditation necessary to con- stitute murder in the first degree is pres- ent. State v. Cooley, 52: 230, 140 Pac. 1111, N. M. . " (Annotated) 38. Drunkenness so extreme as to pre- vent the forming of a purpose to kill re- duces homicide from murder to manslaugh- ter under a statute providing that to con- stitute murder an intent to take life must precede the killing. State v. Rumble, 25: 376, 105 Pac. 1, 81 Kan. 16. (Annotated) 39. That drunkenness may have rendered one charged with a homicide incapable of knowing the nature and quality of his act, or of distinguishing between right and wrong, does not constitute a defense where no specific intent is necessary. State v. Rumble, 25: 376, 105 Pac. 1, 81 Kan. 16. 40. That, at the time of committing a homicide, one is so intoxicated, as the re- sult of the use of ardent spirits, that he does not know what he is doing, does not re- lieve him of the guilt of murder, although it may have some effect upon the degree of the crime. Atkins v. State, 13: 1031, 105 S. W. 353, 119 Tenn. 458. 41. A person who, being sane and respon- sible for his acts, voluntarily becomes in- toxicated, with or without a preconceived design to commit murder or other crime, and, while intoxicated, though it be to such a degree as to render him wholly oblivious to his acts or conduct, commits a homicide, or does any other act which, if done by a person capable of distinguishing between right and wrong, is criminal, if not excused or justified in some way, is held responsible by the law for his act, notwithstanding his mental condition at the time. State v. Kidwell, 13: 1024, 59 S. E. 494, 62 W. Va. 466. 42. That one is intoxicated when he commits a homicide does not lessen the de- gree of his crime if he deliberately planned the killing and became intoxicated to nerve himself up to the commission of the deed. Marshall v. Com. 31: 379, 132 S. W. 139, 141 Ky. 222. c. Attempts. (See also same heading in Digest L.R.A. 1-10.) ft, To commit arson, see ARSON, 3. To commit suicide, see SUICIDE, 2. 43. One cannot be convicted of attempt- ed subornation of perjury for attempting 796 ( KIM1NAL LAW.. 1. d, e. to secure false testimony which is so imma- terial to the issue that the witness could not have been convicted of perjury had he given the testimony in the action. People v. Teal, 25: 120, 89 N. E. 1086, 196 N. Y. 372. (Annotated) 44. The procurement by a prisoner of tools adapted to jail breaking does not ren de. him guilty of an a 1 tempt to break jail. State v. Hurley, 6: 804, 64 Atl. 78, 79 Vt. 28. (Annotated) 45. An offer to purchase property under the belief that it has been stolen, but which, although it had been stolen, has been re- turned to the control of its owner, does not render one liable to conviction of an at- tempt ID receive stolen property, under a statute providing for the punishment of one who receives stolen property "knowing the same to have been stolen." People v. Jall'e, 9: 263, 78 N. E. 169, 185 N. Y. 497. ( Annotated ) To commit robbery. 46. A prosecution for attempted robbery will not fail because the evidence does not show whether the true owner of the prop- erty was a partnership or a corporation, where it was charged to be the property of one who was shown to be rightfully in pos- session of it, since he has sufficient title to support a conviction. State v. Carroll, 21:311, 113 S. W. 1051, 214 Mo. 392. (Annotated) To commit murder. 47. An overt act sufficient to convict one of attempt to murder has been committed when he hires another to commit the act, procures a loaded gun, and goes with the person hired, to the point where they are to lie in wait for the victim, although he is arrested before the victim appears. Stokes v. State, 21 : 898, 46 So. 627, 92 Miss. 415. (Annotated) d. Solicitation. (See also same heading in Digest L.R.A. 1-10.) Instigation as a defense, see infra, I. f. Application of rule as to liability for so- liciting person to commit a felony to solicitation by Indian of sale of liquor to himself, see INTOXICATING LIQUORS, 114. e. Parties to offenses. (See also same heading in Digest L.R.A. 1-70.) 48. All persons who take part, partici- pate, or engage in an offense are guilty as principals, and it is immaterial as to whether they have any interest in or re- jteive any financial gain from the commis- sion of such crime. Buchanan v. State, 36: 83, 112 Pac. 32, 4 Okla. Grim. Rep. 645. 49. One accepting aid to escape from jail is not an accomplice of the one who furnishes it. State v. Duff, 24: 625, 122 N. W. 829, 144 Iowa, 142. (Annotated) Digest 1-52 L.R.A.(N.S-) Co-conspirators. 50. When two, in furtherance of a com- mon design, enter upon thj perpetration of a burglary, armed and prepared to kill if op- posed, and while so em-aged are discovered, and in the effort to escape one of the bur- glars kills one who is trying to arrest him^ both burglars are eaually guilty f the hom- icide, although one of them was not armed with a deadly weapon, and : Itliough such killing was not part of the prearranged plan. Conrad v. State, 6: 1154, 78 N. K. 057, 75 Ohio St. 52. (Annotated) 53. One who accompanies another to aid and assist him in assaulting a third cannot escape liability for manslaughter if his com- panion kills the victim by the use of a 'dead- ly weapon, on the theory that he did not know of the intended use of it or consent thereto. State v. Darling, 23: 272, 11", S. W. 1002, 216 Mo. 450. (Annotated) 52. One of two persons who confederate to commit* a robbery may be convicted of murder in case his companion kills the one upon whom the felony was to be committed in carrying out the enterprise, although the killing was not intended, and accused only remained to watch while his companion at- tempted to secure the money. People v. Friedman, 45:55, 98 N. E. 471, 205 N. Y. 161. (Annotated) Agent. Procuring liquor for another as his agent, as illegal sale, see INTOXICATING LI- QUORS, III. c. Where sale of adulterated confectionery by agent takes place, see SALE, 25, 26. 53. The fact that a defendant was act- ing as the agent of another in the com- mission of an offense will afford no excuse or justification for the act in a prosecution therefor. Alt v. State, 35: 1212, 129 X. W. 432, 88 Neb. 259. 54. The law of agency as applied in civil cases has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as agent for any party. Buchanan v. State, 36: 83, 112 Pac. 32, 4 Okla. Crim. Rep. 645. Principal. 55. Under a statute imposing a fine upon one who distributes or causes to be distributed free or trial samples of medi- cine in such a manner that children may become possessed of them, a person is liable to fine in case his servant employed to dis- tribute such packages delivers one to a child, although it is done against the express orders of the employer. State v. Cray, 36: 630, 81 Atl. 450, 85 Vt. 99. Advice and encouragement. 56. A railroad company does not become liable to punishment as an accessory for misdemeanor by counseling its agent to violate a statute fixing maximum rates for transportation, which act is made a mis- demeanor on the part of the agent, where the statute provides a penalty recoverable for the benefit of the person aggrieved, for violation of the act by the railroad com- CRIMINAL LAW, I. f, II. a. 797 pany. State v. Southern R. Co. 13: 966, 59 8. E. 570, 145 N. C. 495. ,/. Instigation or consent, as defense; entrapment. (See also same heading in Digest L.R.A. 1-10.) 57. Consent to a robbery, so as to ab- solve the robber from criminal liability, is not shown by merely providing one's self with money which may be taken, and going where the deed may be done in anticipation of the commission of the crime, for the purpose of apprehending th^ criminal. Tones v. State, i: 1024, 88 S. W. 217, 48 Tex. rim. Rep. 363. 58. One cannot escape punishment for illegal sale of intoxicating liquor because it was made to one employed by the police department to procure it, such department furnishing the money to pay for it. State v. Smith, 30: 946, 67 S. E. 508, 152 N. C. 798. (Annotated) 50. A conviction of unlawfully selling intoxicating liquor may be based upon the testimony of the police officers who solicited the sale, where it is apparent that it was their purpose in so doing to ascertain wheth- er defendant was engaged in an unlawful business rather than to induce or solicit the commission of crime. State v. Gibbs, 25: 449, 123 N. W. 810, 109 Minn. 247. II. Procedure, a. In general. (See also same heading in Digest L.R.A. 1-10.) As to bail, see BAIL AND RECOGNIZANCE. Certifying questions in criminal case, see CASES CERTIFIED, 4-6. Continuance in criminal case, see CONTINU- ANCE AND ADJOURNMENT. Jurisdiction in criminal case, see COURTS, I. b, 2; II. a, 6; III, h. Jurisdiction of equity, see EQUITY, 2, 3. Jurisdiction of magistrate, see JUSTICE OF THE PEACE, 5-7. When statute of limitations begins to run against criminal prosecution, see LIMI- TATION OF ACTIONS, II. f. When prosecution is barred, see LIMITATION OF ACTIONS, 270, 271. Unreasonable searches and seizures, see SEARCH AND SEIZURE. Computation of time in criminal case, see TIME, 5. Defense to prosecution for unlawfully prac- tising medicine, see PHYSICIANS AND SURGEONS, 15-17. Interference with constitutional guaranties as to criminal procedure by statute pro- viding for care of delinquent children, see INFANTS, 3. Error in finding accused guilty of lower de- gree than that established by evidence, see APPEAL AND ERROR, 524. Right to appeal in criminal case, see AP- PEAL AND ERROR, I. c. Digest 1-52 L.R.A.(N.S.) Effect of escape on right to appeal, see APPEAL AMD ERROR, 93, 402. Question whether appeal should be taken to civil or criminal court, see APPEAL AND ERROR, 75. What regarded as criminal proceeding for purpose of determining method of re- view, see APPEAL AND ERROR, 50. Amendment of record on appeal in criminal prosecution, see APPEAL AND ERROR, 176. Sufficiency of bill of exceptions on appeal, see APPEAL AND ERROR, 246. Right to dismiss criminal case on appeal, see APPEAL AND ERROR, 1576. Striking appellant's argument on appeal, see APPEAL AND ERROR, 364. Effect on appeal of expiration of term of imprisonment, see APPEAL AND ERROR, 393. Interpretation of record on criminal appeal, see APPEAL AND ERROR, 415. Who may complain of error on appeal, see APPEAL AND ERROR, 421. What questions may be raised by accused upon appeal by the state, see APPEAL AND ERROR, 419. Presumptions on appeal, see APPEAL AND ERROR, 473-479. Discretion of trial judge as to trial of ac- cused persons jointly, see APPEAL AND ERROR, 558. Error in compelling counsel to make open- ing statement to jury, see APPEAL AND ERROR, 1485. Review of conviction on consolidated indict- ments, see APPEAL AND ERROR, 1538. Prejudicial error in criminal case gener- ally, see APPEAL AND ERROR, 1043-1049. Effect of conviction upon family of defend- ant as ground for reversal, see APPEAL AND ERROR, 1575. Motion to reconsider opinion on appeal be- fore it is certified down, see APPEAL AND ERROR, 1670. Prejudicial error in appointment of assist- ant prosecutor, see APPEAL AND ERROR, 1479. Employment of private counsel to assist prosecution, see APPEAL AND ERROR, 362; DISTRICT AND PROSECUTING AT- TORNEYS, 2, 3. Evidence in criminal cases generally, see EVIDENCE. Presumption and burden of proof, see EVI- DENCE, 94, 95, 102-109, 221-223, 689- 698. Secondary evidence to identify record of conviction, see EVIDENCE, 731. Documentary evidence, see EVIDENCE, 772, 778, 779, 784, 806, 808, 817, 820, 834, 837, 838, 840, 843, 877. Demonstrative evidence, see EVIDENCE, 880, 882, 883, 885, 891. Opinion evidence, see EVIDENCE, VII. Hypothetical questions to expert witnesses, se EVIDENCE, 1071. Admissibility of finger prints as evidence, see EVIDENCE, 1176-1179. Admissibility of admissions by accused, see EVIDENCE, 1239-1242. 798 CRIMINAL' LAW, n. a. Evidence of admissions by attorney, see EVIDENCE, 1254, 1255. Evidence as to declarations or acts of ac- cused, see EVIDENCE, 1353-1359. Evidence as to acts and declarations of third persons, generally, see EVIDENCE, 1384, 1385, 1397-1407. Evidence of complaint of suffering by de- ceased on trial for homicide, see EVI- DENCE, 1476. Evidence as to character or reputation of accused, see EVIDENCE, 1551-1557. Evidence as to character and reputation of person killed, see EVIDENCE, 1560-1567. Evidence as to character or reputation of person assaulted, see EVIDENCE, 1568- 1572. Evidence as to chastity, see EVIDENCE, 1575, 1576. Evidence as to knowledge or notice, see EVIDENCE, 1592, 1593. Evidence on question of mental responsi- bility, see EVIDENCE, 1602-1606. Evidence as to intent or purpose, see EVI- DENCE, 1633-1641. Evidence as to motive, see EVIDENCE, 1649- 1657. Evidence of suggestive facts, see EVIDENCE, 1824-1839. Evidence of other crimes, see EVIDENCE, 1884, 1887-1915. Evidence of experiments, see EVIDENCE, 2020, 2021. Evidence admissible under allegations, see EVIDENCE, 2447-2451. Variance between pleading and proof, see EVIDENCE, 2502-2512. Admissibility of evidence wrongfully ob- tained, see EVIDENCE, VIII. Evidence of confessions, see EVIDENCE, VIII. Proof of acts or declarations of co-conspira- tors, see EVIDENCE, X. g. Evidence of threat, see EVIDENCE, X. i. Admissibility of dying declarations, see EVI- DENCE, X. 1. Explanation and rebuttal in criminal case, see EVIDENCE, XI. 1. Relevancy of evidence generally, see EVI- DENCE, XI. t. Sufficiency of evidence, see EVIDENCE, XII. 1. Effect of failure to object to question asked witness by juryman, see APPEAL AND ERROR, 774. Raising objection to evidence for first time on appeal, see APPEAL AND ERROR, 778, 780. Review of discretion as to admission of evi- dence, see APPEAL AND ERROR, 609. Prejudicial error in admission of evidence, see APPEAL AND ERROR, 1119-1129, 1150-1155, 1174-1177, 1187-1189, 1199. Prejudicial error in exclusion of evidence, see APPEAL AND EBROE, 1229, 1246, 1259, 1266-1268, 1274. Reception of evidence on trial, see TRIAL, 23-26. As to order of proof generally, see TRIAL, 37-39. Discretion as to order of proof, see APPEAL AND ERROR, 653, 655. Prejudicial error as to order of proof, see APPEAL AND ERROR, 1488. Digest 1-52 L.R.A.(N.S.) Striking out evidence, see TRIAL, 49, 51. Objections to evidence, see TRIAL, 81-83. Summoning and selection of jury generally, see JURY, II. Prejudicial error in summoning and selec- tion of jury, see APPEAL AND ERROR, VII. m, 7, b. Prejudicial error in conduct of, or inter- ference with, jury, see APPEAL AND ERROR, 1505-1507. Swearing jury in advance of arraignment and plea of accused, see APPEAL AND ERROR, 1502. Setting aside verdict because juror was given wrong name, see APPEAL AND ERROR, 1501. Permitting jury to take dying declaration to jury room, see APPEAL AND ERROR, 1477. Duty to declare mistrial where juror be- comes insane, see APPEAL AND ERROR, 1482. Communication with jurors during trial, see TRIAL, 5, 6. Separation of jury, see APPEAL AND ERROR, 648, 649; TRIAL, 11, 12. Discharge of jury, see TRIAL, 9. Waiver of error in failing to withdraw jury, see APPEAL AND ERROR, 810. Prejudicial error in matters as to jury or conduct of trial generally, see APPEAL AND ERROR, 1477-1482, 1485, 1488. New trial generally, see NEW TRIAL. Review of discretion as to new trial, see APPEAL AND ERROR, 671, 679, 680. New trial on appeal, see APPEAL AND ERROR, 1624-1626. Submission of case or question to jury, see TRIAL, II. Directing verdict ia criminal case, see TRIAL, 774-783. Instructions in criminal case generally, see TRIAL, III. Sufficiency of compliance with request for instructions, see TRIAL, 825. Necessity or propriety of instructions in criminal case, see TRIAL, 879, 906-932. Failure or refusal to instruct as preju- dicial error, see APPEAL AND ERROR, 1407, 1408, 1419-1424, 1430-1432, 1436, 1437. Instructions on evidence, see TRIAL, 940, 941, 943, 947-953, 958-963, 972. Instructions as to credibility of witness, see TRIAL, 958-963. Prejudicial error in instructions as to credi- bility of witness, see APPEAL AND ER- BOR/1376, 1377. Instructions on failure of accused to tes- tify, see TRIAL, 976. Failure to request instructions, see TRIAL, 845. Correctness of instructions in criminal case, see TRIAL, III. e, 5. First objecting to instructions on appeal, see APPEAL AND ERROR, 798, 799. Waiver or cure of error in instruction, see APPEAL AND ERROR, 848, 849, 851, 858, 850, 863, 864. Prejudicial error in instructions, see AP- PEAL AND ERROR, 1322-1330, 1389-1395. CRIMINAL LAW, II. a. 799 Election between counts, see TRIAL, 17-20. Argument or conduct of counsel generally, see TRIAL, 57, 60, 05-67, 68, 69, 72-75. Discretion in limiting time for argument of counsel, see APPEAL AND ERROR. 640, 641. Discretion as to misconduct of county at- torney, see APPEAL AND ERROR, 657. Prejudicial error in argument of prosecut- ing attorney, see APPEAL AND ERROR, 1447-1449, 1451-1456, 1460. As to right to open and close, see TRIAL, 67. Peading of law to jury by counsel, see TRIAL, 68, 69. Reading shorthand notes to jury, sec TRIAL, 84. Remarks by court during prosecution, see TRIAL, 86, 87, 89, 90. Prejudicial error in remarks or conduct of judge, see APPEAL AND ERROB, 1465- 1472. Verdict in criminal case generally, see TRIAL, V. c, 2. Reception of verdict in criminal case on Sunday, see SUNDAY, 1. Review on appeal of findings of court, see APPEAL AND ERROR, 964, 974, 975. Review of verdict, see APPEAL AND ERROR, 919-932. Venue of criminal case, see VENUE, 17-19, 24-27. Review of discretion as to change of venue, see APPEAL AND ERROR, 660-662. Cure of error in refusing change of venue, see APPEAL AND EBEOR, 873. Competency of witnesses, see WITNESSES, I. Examination of witness, see WITNESSES, II. Cross-examination of witnesses, see WIT- NESSES, II. b. Impeachment or discrediting of witness, see WITNESSES, III. Corroboration of witness, see WITNESSES, 193-200. Credibility of witnesses, see WITNESSES, IV. Indorsing names of witnesses on informa- tion or indictment, see WITNESSES, 20. Error in excluding expert witnesses from court room during testimony, see AP- PEAL AND ERROR, 1484. 60. A prosecution by information for a felony is commenced on the date the war- rant which is executed is placed in the hands of an officer for service, and not on the date the information is filed. State v. White, 14: 556, 92 Pac. 829, 76 Kan. 654. 61. A trial court, by discharging a pris- oner from the custody of the sheriff on his surrender by his bail in open court, does not thereby lose jurisdiction of the indict- ment, or thereafter to retake the accused on a new capias and put him upon his trial upon the indictment. Denham v. Rob- inson, 45: 1123, 77 S. E. 970, 72 W. Va. 243. 62. That an illegal sale of intoxicating liquor is made in local option territory does not require the proceedings against the vendor to be taken under the local option law if the act also constitutes an offense against the general liquor law. Com. v. Barbour, 3: 620, 89 S. W. 479, 121 Ky. 463*. ( Annotated ) Digest 1-52 L.R.A.(N.S.) 63. That one is serving a term of im- prisonment under sentence of . court for crime will not prevent his being brought be- fore the court and placed on trial for a capital offense committed before the im- position of the sentence under which he 13 serving. Re Tranmer, 41 11095,. 126 Pac. 337, 35 Nev. 50. (Annotated) 64. The trial upon a second charge of one who is serving a term of imprisonment under sentence of court is not prevented by a statute which provides that if one has been convicted of two or more of- fenses before judgment on either, the judg- ment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses, at least, where the statute pro- vides for a person serving a term of im- prisonment being brought before the court when necessarv. Re Tranmer, 41: 1095, 126 Pac. 337, 35 Nev. 56. 65. One accused of crime cannot object to being prosecuted by an unofficial member of the bar, rather than by the prosecuting attorney. State v. Bartley, 24: 564, 74 Atl. 18, 105 Me. 212. (Annotated) 66. The rule that mere error in decid- ing a question which the court has power to hear and determine does noj; render the judgment void applies in criminal cases. People v. Ham Tong, 24: 481, 102 Pac. 263, 155 Cal. 579. 67. Failure of the state to prove absence of knowledge by the grand jury of material facts omitted from the indictment entitles accused merely to a new trial under a prop- er indictment, and not to his discharge. People v. Hunt, 36: 933, 96 N. E. 220, 251 111. 446. 68. That the crime of murder is charged to have been committed by the administra- tion of poison, under Idaho Rev. Stat. 1887, 6562, declaring the offense to be murder in the first degree, does not relieve the jury of the duty of finding the degree of the of- fense, as required by 7925, 7926. State v. Phinney, 12: 935, 89 Pac. 634, 13 Idaho, 307. (Annotated) Trial at one time on two indictments. 69. One may be tried at one time upon two separate indictments, one charging ab- duction and the other adultery witli the girl abducted since the several offenses would be proved by substantially the same evidence, or evidence connected with a single line of conduct or growing out of essential- ly one transaction. Com. v. Rosenthal, 47: 955. 97 N. E. 609, 211 Mass. 50. (Annotated) 70. A defendant may consent to the trial at the same time and before the same jtry of different indictments charging him with separate offenses of burglary and grand larceny. Lucas v. State, 3: 412, 39 So. 821, 144 Ala. 63. ' (Annotated) Nolle prosequi; dismissal of indict- ment. 71. The entry of a nolle prosequi by the prosecuting attorney, though the attorney general joins therein, without the consent of the court, is ineffective to discontinue 800 CRIMINAL LAW, II. b. a prosecution upon an indictment by a grand jury. Denham v. Robinson, 45: 1123, 77 S. E. 1)70, 72 W. Va. 243. (Annotated) b. Protection and rights of accused generally. (See also name heading in Digest L.R.A. 1-10.) Time for objection that accused was prose- cuted under wrong name, see APPEAL AND ERROR, 300. Time for objection that indictment was not read in open court in presence of jury, see APPEAL AND ERROR, 361. Objecting for first time on appeal to mode of proving defendant's testimony given on former trial, see APPEAL AND ERROR, 771. Effect of demonstration on part of specta- tors in court room, see APPEAL AND ERROR, 1049. Permitting proof of former conviction be- fore identifying person convicted with accused, see APPEAL AND ERROR, 655. Failure of record on appeal to show pres- ence of accused, see APPEAL AND ERROR, 3 09. Presumption on appeal as to presence of defendant, see APPEAL AND ERROR, 474, 475: Error in arguing motion in absence of ac- cused, see APPEAL AND ERROR, 1480, 1481. Right to discharge one released on bail un- der writ of habeas corpus and to cancel his bond during his absence from court, see HABEAS CORPUS, 69. Allowing governor, in case execution of criminal is delayed beyond time fixed, to designate another day, see CONSTI- TUTIONAL LAW, 138. Disqualification of judge, see JUDGES, II. Right to jury, see JURY, I. b, 2 ; I. d. Cross-examination of accused, see WIT- NESSES, 111-121. 72. A person charged with crime is not entitled to an inspection of a stenographic transcript of a private interview between a witness who afterwards testified before the grand jury which found the indictment, con- cerning matters disclosed in the interview, and a city solicitor, who delivered the tran- script to the prosecuting attorney, upof? the calling of the interviewed witness to testify in support of the indictment, and reference to the transcript by the prosecuting attor- ney, for the purpose of aiding in the carry- ing on of his examination of such witness. Stlito v. Rhoads, 27: 558, 91 N. E. 186, 81 Ohio St. 397. 73. One accused of crime is not, in the absence of express statutory provision to the contrary, entitled to the minutes of the evidence taken before the grand jury which indicted him, nor to an inspection of a tran- script thereof which the prosecuting at- torney is using as an aid in the examina- tion of witnesses. State v. Rhoads, 27: 558, 91 N. E. 186, 81 Ohio St. 397. (Annotated) Digest 1-52 L.R.A.(N.S.) 74. A statute providing for the inspec- tion in civil proceedings of the papers con- taining evidence relating to the merits of the action or defense, which are in the pos- session of the adverse party, cannot be in- voked in a criminal case, so as to allow an accused to inspect a transcript of the tes- timony given before the indicting grand jury, where such transcript is not and can- not be itself evidence. State v. Rhoads, 27: 558, 91 N. E. 186, 81 Ohio St. 397. 75. The question of infringement of the right of accused to know the names of the jurors by whom he is to be tried, on de- pletion of the regular panel through im- properly sustained challenges, so that re- sort must be had to talesmen, cannot be raised where all jurors excused were dis- qualified. Demato v. People, 35: 621, 111 Pac. 703, 49 Colo 147. 76. If one charged with crime desires to rely upon the attendance of witnesses under subpoena by the state, he may notify them and the court of such fact, or may cause them to be subpoenaed in his own be- half; but he has no right to rely upon the attendance of a witness merely because the state may have caused a subpoena to issue for such witness. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. 77. In a criminal action, the state is not obliged to place upon the stand every wit- ness whose name is indorsed upon the in- dictment. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. Opportunity to consult -with counsel. 78. Where a person is confined in jail pending a trial upon a criminal prosecu- tion, he has the right to have an oppor- tunity to consult freely with his counsel without having any person present to hear what passes between them, whose presence is objectionable to such defendant. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. (Annotated) 79. It is the duty of officers having cus- tody of persons charged with the commis- sion of crime to afford them a reasonable opportunity privately to consult their at- torneys; and no officer has the right to be present and hear what is said during such consultation; but the officers must take such precautions as may be necessary, ac- cording to the circumstances of each case, to prevent the escape of such prisoners. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. 80. It is the duty of the trial courts of Oklahoma to make such orders as will se- cure to every person imprisoned upon an accusation of crime a reasonable oppor- tunity to consult privately and freely with his counsel, without let or hindrance from any sheriff, jailer, or other officer. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Crim. Rep. 94. 81. As to just when and where consulta- tions between prisoners and their attorneys may be had will vary with the circum- stances of each case, within the discretion of the officer having the custody of such prisoner; but this discretion is subject to CRIMINAL LAW, II. b. 801 the review of the courts, and it must not be arbitrarily used. State ex rel. Tucker v. Davis, 44: 1083, 130 Pac. 962, 9 Okla. Grim. Rop. 94. Opportunity to plead. Absence from record of affirmative showing that accused was given opportunity to plead, see APPEAL AND ERROB, 170. Omission of arraignment and plea as ground for reversal, see APPEAL AND ERROR, 1046, 1047. 82. Absence of opportunity to plead, which, by statute, is made a part of the arraignment in a prosecution for felony, the plea being also made essential to an issue, is fatal to a conviction, although accused manifests no desire to enter a plea, and there is nothing to show that he was in any way injured by not being given an op- portunity to do so. State v. Walton, 13: 811, 91 Pac. 490, 50 Or. 142. (Annotated) Public trial. Waiver of right to, see APPEAL AND ERROR, 813. 83. The right to a public trial, guaran- teed one accused of crime by Minn. Const, art. 1, 6, is not invaded by an act for- bidding the publication of the details of criminal executions. State v. Pioneer Press o. 9: 480, 110 N. W. 867, 100 Minn. 173. 84. An order made by the court on the trial of an indictment for rape, excluding from the courtroom, during the taking of the evidence of witnesses likely to give im- moral cr obscene testimony, all persons ex- cept the jury, defendant's counsel, members of the bar, newspaper men, and one other person, a witness for defendant, exceeds the power of the court; and its enforcement is a, denial to defendant of his constitutional right to a public trial. State v. Hensley, 9: 277, 79 N. E. 462, 75 Ohio St. 255. (Annotated) 85. One on trial for rape is not deprived of a public trial by the exclusion from the court room of all spectators, if the court officers, including members of the bar and witnesses, are allowed to remain. Reagan v. United States, 44: 583, 202 Fed. 488, 120 C. C. A. 627. (Annotated) 86. The statutory and constitutional right to a "public trial" is not violated by the making and enforcing, on the trial of a prosecution for rape, of a court order ex- cluding all persons from the court room dur- ing the taking of evidence, except "all ju- rors, officers of the court, including attor- neys, litigants and their attorneys, wit- nesses for both parties, and any other per- son or persons whom the several parties to the action may request to remain," at least where no restrictions are placed on the num- ber of persons that may remain on request of the defendant, and it does not appear that he desires that anyone remain, or that anyone coming within the class permitted to remain is refused admittance. State v. Nyhus, 27: 487, 124 N. W. 71, 19 N. D. 326. (Annotated) Speedy trial. Right of appellate court to consider delay of trial, see APPEAL AND ERROR, 491. Digest 1-52 KR.A.(N.S.) Certifying to supreme court questions in- volving construction of statutes as to speedy trial, see CASES CERTIFIED, 5. Habeas corpus to secure release because of delay, see HABEAS CORPUS, 5, 20. 87. A prisoner is not entitled to be dis- charged because not brought to trial within two terms after his arrest, where the delay was caused by his own conduct or condi- tion. Com. v. Fisher, 26: 1009, 75 Atl. 204., 226 Pa. 189. 88. A defendant who has never demand- ed or been refused a trial is not entitled to be discharged upon the ground that he was not brought to trial at the next term of the court after that at which the in- dictment or information was presented, un- less he shows that the laches was on the part of the state, through its prosecuting officers ; otherwise the presumption will pre- vail that the delay was caused by or with the consent of the defendant himself; and when a defendant is on bail, he must de- mand a trial of his case, or resist a con- tinuance of the case from term to term. Head v. State, 44: 871, 131 Pac. 937, 9 Okla. Crim. Rep. 356. (Annotated) 89. An adjourned term of a circuit court, or of the criminal court of a county, had pursuant to 4, chapter 112, West Va. Code 1906, is not a "new term," but a con- tinuance of the term adjourned; and one then under indictment, and who would at the end of that term, if not tried, be en- titled to his discharge, because three terms had elapsed after indictment found, with- out trial, is not entitled to such discharge, if brought to trial at such adjourned term. Denham v. Robinson, 45: 1123, 77 S. E. 970, 72 W. Va. 243. 90. The constitutional rights of one ac- cused of murder to a speedy trial are not denied because he was not placed on trial at the first term after the indictment if the cause was, without objection on his part, put over the term to allow his trial on another indictment, upon which he was convicted and sentenced to imprisonment. Re Tranmer, 41: 1095, 126 Pac. 337, 35 Nev. 56. 91. The terms of court which intervene pending an appeal by the state from a judg- ment quashing an indictment are not to be counted in determining whether the person under indictment and held to bail is entitled to be discharged because not brought to trial before the end of the third term of court after the finding of the indictment, as re- quired by Kan. Code Crim. Proc. 221. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. 92. Imprisonment cannot be coHtinued by finding another indictment, where a prisoner has become entitled to release be- cause of failure to prosecute, under a consti- tutional provision guaranteeing him a speedy trial and a statute requiring the trial to take place within a certain time after the indictment is found. People ex rel. Nagel v. Heider, n: 257, 80 N. E. 291, 225 111. 347. (Annotated) 93. The constitutional right of one ac- 51 802 CRIMINAL LAW, II. b. cused of crime to a speedy trial prevents his trial on the second charge where, being accused of two offenses, he is tried and con- victed of one, and the state permits him to be sentenced and imprisoned on that with- out moving the other charge, although it is ready for trial, and takes no steps to prose- cute'the second charge until the termination of the sentence, which is not until after the pa'ssage of several terms of court in excess of the number fixed by statute for the trial of persons accused of crime. State v. Keefe, 22: 8g6, 98 Pac. 122, 17 Wyo. 227. 94. The fact that one accused of crime is confined in the penitentiary upon conviction of another offense does not prevent the ap- plication of a statute requiring a person in- dicted for an offence and committed to pris- on to be brought to trial before the end of the second term of court or discharged so far as relates to the offense for which he is committed. State v. Keefe, 22: 896, 98 Pac. 122, 17 Wyo. 227. Right to meet witnesses. Prejudicial error in introduction of de- cree based on ex parte affidavits, see APPEAL AND ERROR, 1126. Prejudicial error in conduct of judge, see APPEAL AND ERROR, 1465, 1466. Right to be confronted by witnesses in sum- mary proceeding to punish for con- tempt, see CONTEMPT, 78. 95. The constitutional rights of one ac- cused of crime to meet the witnesses face to face is not infringed by refusal to compel the production of evidence before a com- mitting magistrate. Farnham v. Colman, x: 1135, 103 N. W. 161, 19 S. D. 342. 96. The constitutional right of one ac- cused of crime to be confronted with wit- nesses contemplates that they shall be ex- amined in his presence and be subject to cross-examination by him. Ralph v. State, 2: 509, 52 S. E. 298, 124 Ga. 81. 97. The manner of communicating to a deaf person on trial for a crime the evidence of witnesses for the state depends upon the circumstances, and must, to a large extent, . left to the sound discretion of the trial court. Ralph v. State, 2: 509, 52 S. E. 298, 124 Ga. 81. 98. The presiding judge should permit some reasonable mode of having the evidence of witnesses for the state communicated to one accused of crime who is deaf. Ralph v. State, 2: 509, 52 S. E. 298, 124 Ga. 81. (Annotated) 99. Permitting the state, in a criminal prosecution, to ask a question of a witness who is so ill that the court thinks it would be inhuman to subject him to examination, and whose physician states that examina- tion might result fatally, deprives the ac- cused of the constitutional right to be con- fronted by the witnesses against him, al- though the right of cross-examination is not expressly denied, since the risk of terminat- ing the witness's life cannot be imposed upon the accused as a condition of the exer- cise of his right. Wray v. State, 15:493, 45 So. 697, 154 Ala. 36. (Annotated) 100. The constitutional guaranty of the Digest 1-52 L.R.A.(N.S.) right of the accused person in a criminal prosecution to meet the witnesses face to face does not extend to mere official au- thenticators of official documents offered in evidence on the subject of competency of a person produced as a witness to testify. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 101. A constitutional provision guaranty- ing defendants the right to be confronted by witnesses against them is complied with when defendant has had the opportunity to cross-examine witnesses in a preliminary trial before a justice of the peace, and their testimony may be approved on a subsequent trial if the witnesses are shown to have be- come unavailable. Warren v. State, 34: 1121, 115 Pac. 812, 6 Okla. Crim. Rep. 1. 102. A constitutional provision that one accused of homicide shall be furnished with a list of witnesses against him does not apply to witnesses . called merely to testify as to the residence of absent witnesses, and that they testified at defendant's prelimin- ary examination, at which defendant was present and had an opportunity to cross-, examine them. Warren v. State, 34: 1121, 115 Pac. 812, 6 Okla. Crim. Rep. 1. 103. Constitutional and statutory provi- sions to the effect that an accused has a right to be confronted with the witnesses against him in the presence of the court, and to meet them face to face, do not pre- vent the reading at the trial of testimony of witnesses given before the committing magistrate, should they leave the state since giving the same, where accused had an op- portunity to cross-examine them, and it is immaterial that the complaint before the magistrate and the information before the court lay the offense on different days, if the precise time is immaterial and the of- fenses charged are shown by the record to be one and the same. State v. Heffernan, 25: 868, 118 N. W. 1027, 22 S. D. 513, 123 N. W. 87, 24 S. D. 1. (Annotated) Compulsory process for witnesses; costs. Discretion of court in determining whether statutory requirements have been com- plied with, see APPEAL AND ERROR, 611. 104. The provisions of Fla. Laws 1903, chap. 5132, p. 71, prescribing that one ac- cused of crime, in order to procure witnesses for his defense at the cost of the county, shall make affidavit of insolvency and set forth the substance of the facts sought to be proved by the witnesses, are not in conflict with either 11 or 14 of the Declaration of Rights of the Florida Constitution of 1885, providing that one accused of crime shall have compulsory process for the at- tendance of witnesses in his favor, and shall not be compelled to pay costs except after conviction on a final trial. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. (Annotated) 105. The constitutional right of one ac- cused of crime to have compulsory process for obtaining witnesses in his favor, con- ferred by the 6th Amendment to he Federal Constitution, has reference only to powers CRIMINAL LAW, II. b. 803 exercised by the government of the United I States, and not to those exercised by the states. Pittman v. State, 8: 509, 41 So. 385, I 51 Fla. 94. 106. Applications under Fla. Laws 1003, chap. 5132, p. 71, for the procurement of witnesses, at the cost of the county, for the defense of parties charged with crime, should be seasonably made at the earliest reasonable opportunity, and not withheld until the case is actually called for trial. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. Crimination of self. Eight of attorney to immunity from disbar- ment based on his own testimony, see ATTORNEYS, 5. Forbidding driver of automobile to leave place of accident without giving his name and address, see AUTOMOBILES, 4. Admissibility of statement by accused be- fore accusation, see EVIDENCE, 779. Evidence of confessions, see EVIDENCE, VIII. Privilege of witnesses generally, see WIT- NESSES, II. c. See also, infra, 131 ; PERJURY, 8, 10. 107. Forcibly taking shoes from an ac- cused person for purposes of comparison with footprints does not violate his constitu- tional right not to be compelled to give evi- dence against himself. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. (Annotated) 108. A constitutional provision that no person in a criminal case shall be compelled to give evidence against himself which will tend to incriminate him is violated by a demand on defendant, in the presence of the jury, to produce a document contain- ing incriminating evidence against him, though no order for the production of the paper is made. Gillespie v. State, 35: 1171, 115 Pac. 620, 5 Okla. Crim. Rep. 546. ( Annotated ) 109. The constitutional protection against giving evidence against one's self applies to the involuntary production of private books and papers in response to any process or order of court addressed to the owner in the character of a witness, as well as to the giv- ing of oral testimony. State v. Pence, 25: 818, 89 N. E. 488, 173 Ind. 99. 110. The officers of an insolvent state bank in the hands of a state bank com- missioner cannot disobey, on the ground of the constitutional protection against self- crimination, an order of court to produce and deliver the books, records, and papers of such bank to the commissioner. Bur- nett v. State ex rel. West, 47: 1175, 129 Pac. 1110, 8 Okla. Crim. Rep. 639. (Annotated) 111. The mere statement by an officer of a corporation who has been directed to turn its books over to a receiver, that he has been indicted for an offense connected with the management of the corporation, and that the contents of the books may tend to incriminate him, is not sufficient to excuse him from obeying the order of the court, but it is necessary to state facts from which 1 the court can determine that such is Digest 1-52 L.R.A.(N.S.) the fact. Manning v. Mercantile Securities Co. 30: 725, 90 X. E.. 238, 242 111. 584. 112. An officer of a corporation cannot re- fuse to comply with an order of an equity court to turn over its books to a receiver, because they may have a tendency to in- criminate him, since in such cases the books go into the custody of the court, afld the constitutional protection of witnesses does not apply, because the court can pro- tect the officer from the use of the books against him. Manning v. Mercantile Securi- ties Co. 30: 725, 90 N. E. 238, 242 111. 584. (Annotated) 113. The legislature cannot require a stockbroker to permit an examination of his private books and papers to enable a tax officer to determine whether or not a record which he is, under penalty, required to keep, of stock transfers to furnish evidence for their taxation, has been correctly kept, where the Constitution forbids compelling one in a criminal case to be a witness against himself. People ex rel. Ferguson v. Reardon, 27: 141, 90 N. E. 829, 197 N. Y. 236. 114. No prosecution for the illegal sale of intoxicating liquors can be based upon records which accused is compelled to pro- duce against his will, and which he is re- quired to keep by a statute permitting him to make sales for medicinal and mechanical purposes, upon prescriptions and applica- tions, upon which he is required to indorse his opinion as to their honesty, where noth- ing in the statute makes such records public documents, since they are merely private papers subject to the constitutional protec- tion against giving evidence against one's self. State v. Pence, 25: 818, 89 N. E. 488, 173 Ind. 99. (Annotated) 115. Written prescriptions of practising' physicians on which a licensed druggist has made sales of intoxicating liquors are quasi public documents, and the constitutional privilege against self-incrimination is not violated by compelling a druggist who stands indicted for unlawfully selling spirit- uous liquors to produce them in court in order that they may be used as evidence against him on his trial, where his keeping them was a condition of his right to sell generally. West Virginia v. Davis, 32: 501, 69 S. E. 639, 68 W. Va. 142. 116. The written prescriptions of prac- tising physicians on which a licensed drug- gist has made sales of intoxicating liquors, and which he has preserved in his posses sion, as the statute directs, are not his "private papers and documents." within the meaning of the constitutional guaranty against compulsory self-crimination. State v) Davis, 32:501/69 S. E. 639, 68 W. Va. 142. 117. Schedules filed in a bankruptcy pro- ceeding are, when attempted to be used in evidence in a prosecution against the bank- rupt for concealing property from the trus- tee, within the operation of a statute for- bidding the admission in any criminal prose- cution against him of any pleading of, or discovery or evidence obtained from, a 804 CRIMINAL LAW, II. b. party by means of a judicial proceeding. Johnson v. United States, 18: 1194, 163 Fed. 30, 89 C. C. A. 508. (Annotated) 118. The books of a bankrupt which have been transferred to the trustee in accord- ance with the bankrupt act of July 1, 1898 (30 Stat. at L. 565, chap. 541, U. S. Comp. Stat. Supp. 1911, p. 1511), 70, may be produced before the grand jury and before the petit jury at the trial of the bankrupt for concealing money from the trustee, without infringing the bankrupt's ccnsti- tutional privilege against self-crimination. Johnson v. United States, 47: 263, 33 Sup. Ct. Rep. 572, 228 U. S. 457, 57 L. ed. 919. (Annotated) 119. The admission of evidence showing that one charged with murder produced .from a hiding place a revolver similar to that with which the homicide was known to have been committed does not violate the rule that a defendant cannot be com- pelled to be a witness against himself, al- though such production was induced by intimidation. State v. Turner, 32: 772, 109 Pac. 654, 82 Kan. 787. (Annotated) 120. A forged note found in an attorney's desk when it was being searched by private individuals for papers belonging to his client is not ^inadmissible against him in a prosecution for the forgery, as violating his constitutional right not to be a witness against himself, although there is no other evidence of the corpus delicti, so that its use, in effect, is to force from him an extra- judicial confession thereof. People v. Camp- 'bell, 34: 58, 125 N. W. 42, 160 Mich. 108. (Annotated) i 121. Making it a felony for one who has caused injury by the operation of a motor vehicle, to leave the place of accident with- out leaving his name, address, and license inumber, does not violate the constitutional protection against giving self-incriminating evidence. Ex parte Kneedler, 40: 622, 147 S. W. 983, 243 Mo. 632. (Annotated) Photographing and measuring. Action to compel destruction of pictures taken for rogues' gallery, see ACTION OB SUIT, 68; COUBTS, 199. Injunction against sending photograph to rogues' gallery, see INJUNCTION, 110. 122. The photographing and measuring before trial for purposes of identification by the Bertillon system of one arrested on a criminal charge does not violate any of his constitutional rights if the photograph is not to be placed in the rogues' gallery, 01 the means of identification distributed prior to his conviction, unless he becomes a fugi- tive from justice. Downs v. Swann, 23: 739, 73 Atl. 653, 111 Md. 53. (Annotated) 123. Police commissioners, who are re- quired by statute to preserve the public peace, prevent crime, arrest offenders, and protect rights of persons and property with- in a city, and cause to be followed any per- son whom they have reason to believe in- tends leaving the city for the purpose of violating the laws of the state, have a right to adopt the most approved means of iden- Digest 1-52 I*R.A.(N.S.) tifying probable wrongdoers, including that of photographing and measuring persons ar- rested for crime. Downs v. Swann, 23: 739, 73 Atl. 653, 111 Md. 53. 123a. The destruction of photographs tak- en under the direction of the police authori- ties, of a person accused but not yet con- victed of a crime, with the intention of placing them in the rogue's gallery, should be directed when the portraits are not nec- essary to prove his guilt, identify his per- son, or guard against escape. Schulman v. Whitaker, 7: 274, 42 So. 227, 117 La. 704. ( Annotated ) Waiver or loss of right. Presumption as to, on appeal, see APPEAL AND EBBOB, 447. Waiver of right to be present when motion is argued, see APPEAL AND EBBOB, 1480. Waiver of disqualification of juror, see JURY, 74. Waiver of right to jury trial, see JUBY, I. c. See also infra, 156, 201-205. 124. An accused person in a criminal case is competent to waive irregularities and rights, whether constitutional or statutory, very much the same as a party may in a civil action. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 125. The right of the defendant to be present when a verdict is returned, secured to him by the statutory provision that "no person indicted or informed against for felony can be tried unless he be personally present during the trial," is one that may be waived; and if, while at liberty on bond, he is voluntarily absent, without having been excused by the court, when the jury reaches an agreement, a verdict against him may lawfully be received in his absence. State v. Way, 14: 603, 93 Pac. 159, 76 Kan. 928. (Annotated) 126. One on trial for felony waives his right to be present when the verdict is re- ceived, by absenting himself on bail for a period of eighteen hours so that he cannot be found after the court has exhausted all reasonable means to secure his presence in court. State v. Gorman, 32: 306, 129 N. W. 589, 113 Minn. 401. (Annotated) 127. One on trial for a capital offense can- not waive his right to be present when the verdict is rendered, even by voluntarily ab- senting himself from the court room in case he is on bond; and it is immaterial that the verdict actually returned is for an of- fense not capital. Slierrod v. State, 20: 509, 47 So. 554, ;j3 Miss. 774. 128. One upon trial for homicide may waive his right to be heard in person or by counsel in the argument of his cause and the right to be present during such argument. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. 129. One on trial for misdemeanor who, without leave, voluntarily departs from the ! court room after the case has been sub- mitted to the jury, and before the court has adjourned, and remains away when the ver- dict against him is received, waives his's-tat- CRIMINAL LAW, II. c, d. 805 utory right to be present at that time. State v. Waymire, 21: 56, 97 Pac. 46, 52 Or. 281. (Annotated) 130. Failure of the deputy sheriff to com- ply with his promise to notify a person on trial for misdemeanor, who has left the court room pending the deliberation of the jury, when the jury is ready to report, will not alter the effect of his waiver of the right to be present when the verdict is re- ceived by voluntarily departing from the room. State v. Waymire, 21: 56, 97 Pac. 46, 52 Or. 281. 131. An accused who consents to the use of his shoes for comparison with footprints cannot claim that his constitutional right not to be compelled to give evidence against himself, and- to be free from unreasonable seizures, is infringed by evidence as to the result of the comparison. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. c. Warrant; commitment. (See also same heading in Digest L.R.A. 1-10.) 132. A warrant issued by a coroner pur- suant to a statute requiring him, upon the rendition by the coroner's jury of a verdict of guilty, to issue his warrant for the ar- rest of the accused, and providing that such warrant shall take the place of a complaint and be sufficient foundation for a prelimi- nary examination before a magistrate, is sufficient authority for the holding of such examination, notwithstanding another stat- ute providing that a written complaint un- der oath shall be filed with the magistrate before a warrant shall issue. State v. Bre- count, 28: 187, 107 Pac. 763, 82 Kan. 195. d. Necessity of indictment, present- ment or information. (Kee also same heading in Digest L.R.A 1-70.) Statute depriving accused of right to indict- ment by grand jury, see CONSTITU- TIONAL LAW, 36. Effect of absence of valid indictment on jurisdiction of Federal court, see COURTS, 263. As to requisites and sufficiency of indict- ment, information or complaint, see INDICTMENT, etc. Prohibition to restrain action upon invalid information, see PROHIBITION, 8. 133. A court of record cannot summarily commit for perjury one who has filed an affidavit for change of judge for prejudice, under a statute authorizing courts of record to so commit any person when it appears probable that he has committed perjury in testifying before such court, since, if the statute were effective in such case, it would make the court the judge of his own case in violation of the maxim, Nemo debet esse judex in propria sua causa. Ex parte Digest 1-52 L.R.A.(N.S.) Ellis, 25: 653, 105 Pac. 184, 3 Okla. Crim. Rep. 220. 134. An original prosecution cannot be instituted in a court of record except by presentment of indictment by a grand jury, or by an information exhibited by the coun- ty attorney or some other officer thereto au- thorized by law. Evans v. Willis, 19: 1050, 97 Pac. 1047, 22 Okla. 310. 135. The court has no jurisdiction to try a criminal case in the absence of an indict- ment, where defendant has a constitutional right to be accused by indictment only. Garnsey v. State, 38: 600, 112 Pac. 24, 4 Okla. Crim. Rep. 547. 136. A crime punishable by imprison- ment for a term of years at hard labor is an infamous crime, within the provision of a Constitution to the effect that no person shall be held to answer for an infamous crime unless on presentment or indictment of a grand jury. Garnsey v. State, 38: 600, 112 Pac. 24, 4 Okla. Crim. Rep. 547. 137. Article 5 of the Amendments to the Constitution of the United States, provid- ing that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," guarantees to a defendant charged with the commission of a felony in Oklahoma territory, prior to statehood, an unalterable right to be accused by in- dictment only. Garnsey v. State, 38: 600, 112 Pac. 24, 4 Okla. Crim. Rep. 547. 138. By a proceeding under a statute providing for an information and the im- position of an additional sentence upon a convict who has been twice before convicted and sentenced to a penitentiary, the convict is not held to answer for a crime so as to require presentment or indictment of a grand jury, nor is he thereby twice put in jeopardy for an offense. State v. Graham, 40: 924, 69 S. E. 1010, 68 W. Ya. 248. 139. Indictment is not required by a con- stitutional provision that no one shall be deprived of his liberty "except by the laws of the land," even in case of common-law felonies; and the legislature may there- fore authorize the institution of prosecu- tions by information. State v. Stimpson, i: 1153, 62 Atl. 14, 78 Vt. 124. ( Annotated ) 140. The constitutional guaranty of im- munity from criminal prosecution except by indictment does not prevent the legislature from permitting the grand jury of one coun- ty to indict for crimes committed in an ad- joining county, since, although indictment requires a grand jury, venue is not an es- sential element of it. State v. Lewis, 7: 669, 55 S. E. 600, 142 N. C. 626. (Annotated) 141. The statute permitting amendments of an indictment when the name of any per- son injured by the commission of an offense is misstated therein, if the court shall con- sider that the defendant cannot be preju- diced thereby, is not violative of the con- stitutional provision that no person shall be held to answer for any criminal of- fense, except on the presentment or indict- 806 CRIMINAL LAW, II. e, f. ment of a grand jury. State v. Tolla, (N. J. Err. & App.) 3: 523, 62 Atl. 675, 72 N. J. L. 515. 142. A paper indorsed "A True Bill," and handed by the foreman of the grand jury to tne clerk of court when the court is not in session, and when none of the grand jurors except the foreman is present, is not sufficient to place an accused on trial for an infamous crime, under the provisions of the Federal Constitution that no per- son shall be held to answer for such a crime unless by an indictment of the grand jury, since to constitute a valid indictment the paper must be brought publicly into court by all the members of the jury. Kenegar v. United States, 26: 683, 172 Fed. 646, 97 C. C. A. 172. (Annotated) 143. The presentment of an alleged in- dictment by the foreman of the grand jury to the clerk of court, at a time when the court is not in session, is not a mere irregu- larity, which is cured by a statute cur- ing defects or imperfections in matters of form only, not tending to prejudice ac- cused. Renegar v. United States, 26: 683, 172 Fed. 646, 97 C. C. A. 172. 144. Although the court might replace with a copy an indictment lost from the files after accused was arraigned and the trial had begun, yet its failure to do so will not prevent the receiving of the verdict or the pronouncing of judgment thereon, since the rights of accused can be protected by the substitution of the copy afterwards. State v. Ireland, 41: 1079, 83 Atl. 453, 109 Me. 158. (Annotated) e. Concurrent proceedings. (See also same heading in Digest L.R.A. 1-10.) As to offenses against different sovereign- ties, see infra, III. /. Pleading; motions; demurrer. (See also same heading in Digest L.R.A. 1-10.) Appeal from judgment entered on plea of guilty, see APPEAL AND EBBOR, 47. Review of discretion as to permitting ac- cused to withdraw plea of not guilty and attack indictment, see APPEAL AND ERROR, 584. Discretion as to permitting withdrawal of plea of guilty and allowing jury trial, see APPEAL AND ERROR, 585, 590. Cure of error in refusing to permit with- drawal of plea of not guilty, see AP- PEAL AND ERROR, 826. )mission of arraignment and plea, as ground for reversal, see APPEAL AND ERROR, 1046, 1047. Prejudicial error in summarily overruling plea in abatement, see APPEAL AND ERROR, 1088. Right of accused to statutory time in which to plead on amendment of indictment, see APPEAL AND ERROR, 1478. Digest 1-52 HR.A.(N.S.) Effect of general denial to throw burden of proof on state, see EVIDENCE, 94. Admissibility of evidence under pleading, see EVIDENCE, 2447-2451. Plea of guilty on agreement that imprison- ment shall not exceed certain time, see HABEAS CORPUS, 42. Quashing of indictment, see INDICTMENT, ETC., IV. Right to enter judgment without calling jury where accused enters plea of guilty, see JURY, 31. Verification of plea to jurisdiction, see PLEADING, 14. Prohibition to prevent entertaining plea to indictment, see PROHIBITION, 15. Absence from record of affirmative showing that accused was given opportunity to plead, see APPEAL AND ERROR, 170. See also supra, 82; infra, 228. 145. In a criminal case, a plea to the jurisdiction, which goes only to matters of defense, may properly be denied. State v. Gillmore, 47': 217, 129" Pac. 1123, 88 Kan. 835. 146. Although a plea of nolo contendere cannot be employed where the punishment must be imprisonment, it may be allowed in a prosecution for violation of the in- ternal revenue laws, containing several counts in an indictment under some of which the punishment must or may be im- prisonment, if under other counts the punishment could be fine alone, since it might be regarded as in the nature of a compromise between the prosecution and defendant. Tucker v. United States, 41: 70, 196 Fed. 260, 116 C. C. A. 62. ( Annotated ) 147. A ground of demurrer to an accusa- tion, "because there is no legal contract set out in said accusation, and no payment or advances made are set out," only raises the question as to whether such contract and such payment are set out in the accusation at all, and not whether they are stated with sufficient particularity. Banks v. State, 2: 1007, 52 S. E. 74, 124 Ga. 15. 148. A plea in bar to a criminal prosecu- tion that a consular court (with jurisdic- tion only to hold a preliminary examination with a view to holding accused for trial in a higher court) dismissed the charges against defendant and served upon him new charges upon which he was held to answer before the court now trying him does not necessarily aver an ac- quittal of the charges of which he is now accused, but is consistent with the conclu- sion that the consular court did not de- termine the question of guilt pr innocence, but merely required a new complaint to be filed, and held him to answer before the court having jurisdiction of the cause. Price v. United States, 15:1272, 156 Fed. 950, 85 C. C. A. 247. 149. Where by statute the jury are au- thorized to inflict the death penalty for a crime which otherwise would be punishable by imprisonment, the court has no au- thority to receive a plea of guilty, and CRIMINAL LAW, II. f. 807 thcreby withdraw the case from the jury. Green v. United States, 46: 1117, 40 App. D. C. 426. 150. Accepting a plea of guilty of murder in the first degree, and sentencing the ac- cused to death, without cautioning him as to the gravity of his admission, or taking evidence as to the circumstances of the crime, is not according to the forms of law. State v. Johnson, 22:463, 96 Pac. 26, 21 Okla. 40, 1 Okla. Grim. Rep. 154. ( Annotated ) 151. One who, upon the day he is indicted for homicide, enters a plea of guilty because lie is informed that the trial judge has stated that if he is to do so, he had better do it before the train leaves which would take him to a jail in another county, as mob violence is feared, and is immediately found guilty, sentenced to death, and taken to such jail, is entitled to a new trial and permission to withdraw his plea. Little v. Com. 34: 257, 133 S. W. 1149, 142 Ky. 92. (Annotated) 152. An accomplice who, under an agree- ment or understanding with the prosecut- ing attorney, approved by or known to the . court, that he shall be immune from fur- ther prosecution, testifies fully and truth- fully as to the whole matter, has an equit- able right to such immunity, which the court has no discretion to take away; and, in case he has pleaded guilty, he should be permitted to withdraw the plea to per- mit the entry of a nolle pros, or the case should be continued to permit him to ap- ply for a pardon. Lowe v. State, 24: 439, 73 Atl. 637, 111 Md. 1. (Annotated) 153. Where a prisoner has pleaded guilty to an indictment, the court has jurisdiction to allow him, before sentence, to withdraw his plea and plead not guilty. King v. Plummer, 4 B. R. C. 917, [1902] 2 K. B. 339. Also Reported in 71 L. J. K. B. N. S. 805, 66 J. P. 647, 86 L. T. N. S. 836, 18 Times L. R. 659, 51 Week. Rep. 137, 20 Cox, C. C. 243. Mode of raising question. Proper remedy to question compliance with statute requiring preliminary examina- tion, see INDICTMENT, etc., 12. 154. The question whether an informa- tion states facts sufficient to constitute an offense, is duplicitous, or is defective in the description of the offense, cannot be raised by motion to set aside, but on'v by demurrer. Childs v. State, 33: 563, 113 Pac. 545, 4 Okla. Crim. Rep. 474. 155. Whether it is necessary to allege in an information charging larceny from the person the value of the property taken is a question of the sufficiency of the informa- tion, and does not go to the jurisdiction of the court; and the only manner in which such question can be raised is by demurrer to the information at the trial under the plea of not guilty, or after the trial in ar- rest of judgment. Ex parte Dawson, 35: 1146, 117 Pac. 696, 20 Idaho, 178. Waiver or admission by plea or fail- uie to plead. 156. The objection that the record fails Digest 1-52 L.R.A.(N.S.) to show that the grand jury, or any grand juror, was sworn, is not waived by a plea of guilty to the indictment. People v. Grav, 49: 1215, 103 N. E. 552, 261 111. 140. Motions generally. Prejudicial error in arguing motion in ab- sence of accused, see APPEAL AND EK- BOR, 1480, 1481. 157. Upon the hearing of a motion to quash an information which states an of- fense, on the ground that the prosecution is apparently barred, the court may examine the prior proceedings to ascertain the time when the action was in fact begun. State v. White, 14: 556, 92 Pac. 829, 76 Kan. 654. 158. When a motion is made, supported by affidavit, to withdraw a criminal case from the consideration of, and to discharge, a jury, on account of improper action of the officer who selected and summoned the jury or talesmen, and such motion is made as soon as the facts stated therein come to the knowledge of the defendant or his counsel, and the matters of fact therein stated are not denied under oath, they will be taken as confessed, and will be con- strued most strongly against the prosecu- tion, and in favor of the defendant. United States v. Hargo, 20: 1013, 98 Pac. 1021, 1 Okla. Crim. Rep. 590. 159. A motion for an order to enable ac- cused to secure additional evidence cannot be held to have been made for delay, where two trials have occurred since it was first made, resulting in disagreement of the jury, and the motion is renewed in time to secure the evidence before the next trial. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep. 90. 160. Even though one accused of murder provoked the difficulty, so as to be de- prived of the right of self-defense, he is en- titled to an order to enable him to secure evidence that he shot the other person in the front instead of the back of the body, as the state contends he did, since he could thereby place his case in a better light be- fore the jury. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep., 90. Motion in arrest of judgment. Raising for first time on motion in arrest of judgment, objection to indictment, see APPEAL AND EKROR, 361. 161. Matters that are covered by the ver- dict in a prosecution for crime will not be inquired into on a motion in arrest of judg- ment. State v. Hogg, 29: 830, 53 So. 225, 126 La. 1053. 162. An objection that one accused of crime was tried on a statutory holiday is not available when urged for the first time on a motion in arrest of judgment. State v. Duncan, 10: 791, 43 So. 283, 118 La. 702. 163. A judgment convicting defendant of depositing newspapers containing obscene matter in the mail should not be arrested on the ground that the indictment did not set forth the names of any of the persons to whom the newspapers were addressed, but stated that they were unknown to the grand jury, whereas the evidence produced at the trial showed that the grand jury had 808 CRIMINAL LAW, II. g, 1. been informed of the names of at least two of these persons, since judgment can be arrested only for matter apparent on the face of the record, and the evidence is not part of the record for this purpose. Demolli v. United States of America, 6:424, 144 Fed. 363, 75 C. C. A. 365. 164. A motion in arrest of a judgment convicting a person of a lesser, under an in- dictment charging a greater, offense, is prop- erly overruled, where such indictment con- tains allegations essential to constitute a charge of the lesser, since, upon the hearing of such a motion, the court looks only at the indictment and the verdict, the presumption being that the evidence authorized the ver- dict. Watson v. State, 21: i, 43 S. E. 32, 116 Ga. 607. 165. A judgment of conviction should be arrested if based upon an indictment ma- terially different from that found by the grand jury. Duty v. State, 22: 469, 114 S. W. 817, 54 Tex. Crim. Rep. 613. 166. A conviction for obtaining money by false pretenses cannot be arrested because the indictment charged intent to defraud a fictitious person, while the evidence shows that the real person was not known in the transaction, where the statute provides that it shall be sufficient to charge intent to de- fraud without alleging an intent to defraud any particular person. State v. Ice & Fuel Co. 52: 216, 81 S. E. 737, 166 N. C. 366. g. Former jeopardy. t. In general. (See also same heading in Digest L.R.A. 1-70.) Raising question of, on niotion for new trial, see APPEAL AND ERROR, 679. Effect of acquittal in criminal court on right of association to try member for same acts, see ASSOCIATIONS, 8. Federal constitutional provision as to jeop- ardy as limitation on states, see CON- STITUTIONAL LAW, 26. Setting aside conviction to enable accused to plead former jeopardy, see NEW TBIAL, 11. Who may plead that statute is in conflict with constitutional provision as to for- mer jeopardy, see STATUTES, 34. Refusal to instruct as to, see TBIAL, 879. See also supra, 138, 148. 167. Jeopardy, in its constitutional and common-law sense, has a strict application to criminal prosecutions only; and the word "jeopardy," as used in the Constitution, sig- nifies the danger of conviction and pun- ishment which the defendant in a criminal prosecution incurs when put upon trial be- fore a court of competent jurisdiction, un- der an indictment or information sufficient in form and substance to sustain a con- viction. ' Rupert v. State, 45: 60, 131 Pac. 713, 9 Okla. Crim. Rep. 226. 168. A statute providing that a nolle prosequi cannot be entered after any tes-ti- Digest 1-52 !L.R.A.(N.S.) mony has been introduced for the defend- ant is unconstitutional in so far as it at- tempts to give the right to dismiss at any time before the defendant offers proof, since to that extent it would take away from citi- zens the constitutional guaranty of immu- nity from second jeopardy. United States v. Aurandt, 27: 1181, 107 Pac. 1064, 15 N. M. 292. 169. The constitutional provision that no person shall "be twice put in jeopardy of life or liberty for the same offense," and the common-law principle therein declared, are broad enough to mean that no one can be twice lawfully punished for the same of- fense; and therefore, when a court has ren- dered judgment and imposed sentence upon a plea of guilty for an offense charged, and such judgment and sentence have been exe- cuted and satisfied, the court is without jurisdiction to render a second judgment and sentence upon the same charge. Ru- pert v. State, 45: 60, 131 Pac. 713, 9 Okla. Crim. Rep. 226. 170. The terms "jeopardy of life and lib- erty for the same offense," "jeopardy of life and limb," "jeopardy for the same offense," "twice in jeopardy of punishment," and other similar provisions used in the vari- ous Constitutions, are to be construed as meaning substantially the same thing. Stout v. State ex rel. Caldwell, 45: 884, 130 Pac. 553, 36 Okla. 744. 171. A constitutional provision that no person shall "be twice put in jeopardy of life and liberty for the same offense" is not intended to apply to a civil proceeding which affects merely property rights, even though such proceeding is in part a pun- ishment for an offense. Stout v. State ex rel. Caldwell, 45: 884, 130 Pac. 553, 36 Okla. 744. 172. One placed on trial under an indict- ment which names no offense is not in jeopardy. Bennett v. Com. 43: 419, 150 S. W. 806, 150 Ky. 604. 173. A statute imposing as the punish- ment for an offense therein described, a penalty to be recovered at the suit of the state and a fine and imprisonment to be administered in a criminal prosecution, is not in conflict with a constitutional pro- vision that no person shall "be twice put in jeopardy of life and liberty for the same offense." Stout v. State ex rel. Cald- well, 45: 884, 130 Pac. 553, 36 Okla. 744. 174. Where one accused of a felony is put upon trial under an information defective upon its face, and, after trial begun, the information is amended and the trial pro- ceeded with, there being no change in the offense charged, the accused is not thereby placed in jeopardy a second time. McKay v. State, 39: 714, 132 N. W. 741, 90 Neb. 63, 135 N. W. 1024, 91 Neb. 281. 175. One indictment for an offense is not a bar to a second, where the statute pro- vides that the second shall supersede the first. People v. Rosenthal, 46: 31, 90 N. E. 991, 197 N. Y. 394. 176. The judgment of a court having no jurisdiction of the subject-matter does not CRIMINAL LAW, II. g, 1. 809 constitute a bar to a second prosecution based upon the same charge as that upon which the first judgment was pronounced. Peterson v. State, 14: 292, 112 N. W. 306, 79 Neb. 132. 177. A prisoner is not in jeopardy while one juryman has not taken the required oath, and is not therefore entitled to dis- charge because of former jeopardy, if, upon discovering the failure to take the oath, the jury are resworn and the trial begun de novo. State v. Herold, 40: 1213, 123 Pac. 1076, 68 Wash. 654. (Annotated) 178. No jeopardy attaches where the jury is sworn before, and is not resworn after, arraignment and plea of the accused, al- though all the testimony was taken after arraignment and plea were had, and the trial continued to its conclusion. United States v. Aurandt, 27: 1181, 107 Pac. 1064, 15 N. M. 292. (Annotated) 179. In case of an accused person, after having been put in jeopardy, taking or consenting to any proceeding reudfering necessary a new or additional trial in order to fully conclude the case, he cannot in such further trial successfully claim immu- nity on the ground of former jeopardy cre- ated by the first proceeding. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 180. A statute permitting the commission of crime to be enjoined does not violate a constitutional provision forbidding second jeopardy, on the theory that, if it was not obeyed, defendant might be punished for contempt, and also for the commission of the crime. Ex parte Allison, 2: mi, 90 S. W. 870, 99 Tex. 455. (Annotated) 181. A pending appeal from conviction of an unlawful sale of intoxicating liquor will prevent the conviction from being a bar to another prosecution for the same offense. Dupree v. State, 23: 596, 120 S. W. 871, 56 Tex. Crim. Rep. 562. (Annotated) 182. One found by the jury to be insane at time of trial cannot plead former jeopar- dy when arraigned, a second time on the same charge, although the court accepted a verdict of guilty, which the jury returned together with its finding of insanity, if it subsequently set aside such verdict and granted a new trial. Com. v. Endrukat, 35: 470, 80 Atl. 1049, 231 Pa. 529. (Annotated) 183. A statute providing for increased punishment of persons convicted of certain crimes where it appears that they had previ- ously been convicted of a felony is not in violation of the constitutional provision that no person shall be twice put in jeop- ardy of punishment for the same offense. State v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. 184. A defendant who, upon his plea of guilty of a violation of game laws, which by statute was made a misdemeanor, was sentenced to pay a fine, a punishment that was authorized by the statute, and who, on the same day, paid the fine and satisfied the judgment, cannot thereafter, although in the same term of court, bo re- arrested and again sentenced to pay a fine Digest 1-52 L.R.A.(N.S-) and suffer imprisonment. Rupert v. State, 45: 60, 131 Pac. 713, 9 Okla. Crim. Rep. 226. 185. Placing one on trial for perjury which secured his acquittal of another of- fense is not placing him twice in jeopardy for the same offense. Allen v. United States, 39: 385, 194 Fed. 664, 114 C. C. A. 357. (Annotated) What constitutes an acquittal. See also infra, 195. 186. The entry of a nolle prosequi after the jury had been sworn and a part of the testimony for the prosecution taken is tan- tamount to an acquittal upon the charge made by the indictment, since jeopardy re- sults when,, upon a valid indictment and issue joined before a competent court, the jury has been impaneled and sworn to try defendant's cause. United States v. Au- randt, 27: 1181, 107 Pac. 1064, 15 N. M. 292. 187. An erroneous instruction withdraw- ing from the consideration of the jury in a criminal case the minor grades of the of- fense is not an acquittal of them which will sustain a plea of former jeopardy upon a subsequent trial. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. 188. Convicting one of murder in which premeditated design is an element is not necessarily an acquittal of manslaughter, which requires a finding of heat of passion for conviction. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. 189. The finding of the appellate court that the evidence was not safficient to sus- tain a verdict convicting one of murder in the first degree is not an acquittal of that offense. Montgomery v. State, 18: 339, 116 N. W. 876, 136 Wis. 119. Trial without arraignment or plea. See also infra, 192, 193. 190. One is not put in jeopardy by an in- dictment upon which he is not arraigned and to which he does not demur or plead. People v. Rosenthal, 46: 31, 90 N. E. 991, 197 N. Y. 394. Discharge of jury. 191. In case the trial judge in the progress of a trial, because of any emer- gency, concludes that it is imperatively necessary for him to suspend the trial in- definitely, and especially if counsel for the accused concurs in that view without pro- test by the accused brought to the atten tion of the court, and in such situation the jury is discharged, leaving the trial to be taken up again before another jury, the jeopardy created by the partial trial is thereby wholly superseded. Oborn v. State. 31: 966, 126 N. W. 737, 143 Wis. 249. 192. The discharge of the jury against the objection of accused in a criminal case, be- cause the trial had been begun without ar- raigning him and requiring him to plead to the indictment, is an acquittal which will entitle him to the constitutional protection against second jeopardy. State v. King- horn, 27: 136, 105 Pac. '234, 56 Wash. 131. (Annotated) 193. That the trial of an accused is begun before he is arraigned and required to plead to the indictment does not prevent the com- 810 CRIMINAL LAW, II. g, 1. pletion of the trial after he has been ar- raigned and required to plead, so as to au- thorize the discharge of the jury and the summoning of another. State v. Kinghorn, 27: 136, 105 Pac. 234, 56 Wash. Ibl. 194. The discharge of a jury in a criminal case after they have deliberated for two hours and have reported that they cannot agree will not support a plea of former jeopardy interposed on a subsequent trial, unless the court in discharging the jury manifestly abused its discretion. State v. Harris, ix: 178, 44 So. 22, 119 La. 297. (Annotated) 195. An entry upon the docket of a justice of the peace in a misdemeanor case, reciting that the jury, after being out for a reason- able time, reported that it was impossible for them to agree, and that the court, after being satisfied of that fact, discharged them, shows that, as a result of a judicial investi- gation of the question, a finding was made that the discharge of the jury was neces- sary, and prevents it from having the effect of an acquittal. State v. Huff, 12: 1094, 90 Pac. 279, 75 Kan. 585. 196. The abandonment by the prosecuting attorney, after the evidence is in, of one of two counts contained in the information, will not operate as a bar to a further prose- cution, although thereafter the jury is neces- sarily discharged and the case properly dis- missed without prejudice. State v. Huif, 12: 1094, 90 Pac. 279, 75 Kan. 585. 197. Disclosure by a juror after a crimi- inal trial has commenced, of the fact that he entertained a prejudice growing out of an incident that occurred in his father's family, revived in his mind by the testi- mony given in the case, and which unfitted him to sit as an impartial juror, is an "accident" within the meaning of the term as used in Kan. Code Civ. Proc. 281 (Gen. Stat. 1905, p. 5176), providing that the jury may be discharged by the court on account of the sickness of a juror or other accident or calamity. State v. Hansford, 14: 548, 92 Pac. 551, 76 Kan. 678. 198. The accused will not be deemed to have been twice put in jeopardy for the same offense, where the jury impaneled to try him was discharged by the court, upon learning and determining from an inquiry judicially conducted, that one of the jurors was prejudiced and unfit to sit in the case. State v. Hansford, 14: 548, 92 Pac. 551, 76 Kan. 678. (Annotated) 199. The discharge of a jury in a criminal case on Sunday, if unlawful, and thereby equivalent to an acquittal, will not entitle the defendant, afterwards committed on a judicial day for further trial, to discharge on habeas corpus, since the unlawful dis- charge of the jury does not devest the trial court, where the question of former jeopardy must be determined, of jurisdiction. Hovey v. Sheffner, 15: 217, 93 Pac. 305. 16 Wyo. 254. (Annotated) 200. The discharge of the jury in a crimi- inal case without the consent of accused, Digest 1-52 L.R.A.(N.S.) after they had deliberated more than forty- three hours and announced that they were not able to agree unless given an instruc- tion as to the possible future disposition of accused, to which they were not entitled, is not an acquittal, which will prevent his re- trial on the same charge. State v. Barnes, 23: 932, 103 Pac. 792, 54 Wash. 932. Reversal of first conviction; new trial. Infringement of guaranty of equal protec- tion of the laws, see CONSTITUTIONAL LAW, 330. Due process of law as to, see CONSTITUTION- AL LAW, 629. 201. Under a constitutional provision that no person shall be put in jeopardy of life or liberty more than once for the same of- fense, save on his own motion for a new trial, after conviction or in case of mistrial, a person who has been indicted for murder, and convicted of voluntary manslaughter, by voluntarily seeking and obtaining a new trial subjects himself to another trial gen- erally for the offense charged in the indict- ment; and, upon such trial, cannot success- fully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto. Brantley v. State, 22: 959, 64 S. E. 676, 132 Ga. 573. (Annotated) 202. One procuring a reversal of a con- viction of a lesser crime than that with which he was charged, for mistrial, irreg- ularity, or prejudicial error, and the grant- ing of a new trial, cannot avoid trial on the original charge on the theory of prior ac- quittal, where the statute provides that the granting of a new trial places the parties in the same condition as if no trial had been had. Gibson v. Somers, 24: 504, 103 Pac. 1073, 31 Nev. 531. 203. The setting aside, upon motion of accused, of a verdict finding him guilty of manslaughter upon an indictment for mur- der, opens the case for trial on the original indictment for the higher offense, since he thereby waives the constitutional protec- tion against second jeopardy. State v. Gillis, 5: 571, 53 S. E. 487, 73 S. C. 318. (Annotated) 204. The reversal for a new trial upon de- fendant's appeal of a conviction of man- slaughter upon a charge of murder, sub- jects him to a retrial upon the original ac- cusation. State v. Ash, 39: 611, 122 Pac. 995, 68 Wash. 194. 205. One securing a new trial after being convicted of an attempt on an indictment for rape can, on the second trial, be tried only for the attempt, where the statute provides that if a verdict be set aside and a new trial granted, the accused shall not be tried for any higher offense than that of which he was convicted on the last trial, and it is immaterial that the maximum punishment is the same for attempt as for the principal offense. Gates v. Com, 44: 1047, 69 S. E. 520, 111 Va. 837. (Annotated) CRIMINAL LAW, II. g, 2. 811 2. Different offenses; different modes of describing same act. -Biwftf i-.riKiiJh'io 'I i\> :'<'''' ; ' .i'.i; (See also same heading in Digest L.R.A. 1-10.) As to offenses against different sovereign- ties, see infra, III. 206. In a criminal action where the de- fendant in a plea in bar relies upon the fact that, after a jury had been impaneled, the state abandoned one of two counts in a complaint formerly prosecuted against him, and such counts appear to have been in- tended as different methods of charging the same offense, he must show, in order for the plea to be good upon its face, not only that the e< mt which was abandoned charged the identical offense for which he is now prose- cuted, but that the two counts related to separate offenses. State v. Huff, 12: 1094, 90 Pac. 279, 75 Kan. 585. 207. Where, during the trial of a mis- demeanor before a magistrate, it appears that the defendant should be put upon his trial for a felony, and the magistrate or- ders a new complaint to be filed, and under a statutory provision that in such cases the magistrate shall stop all further pro- ceedings before him, and proceed as in other criminal cases exclusively cognizable before the district court, proceeds to sit as an examining magistrate, finds probable cause, and binds the accused over to the district court to answer to the felony, the fact that the accused had entered upon his trial before the court having jurisdiction of the misdemeanor will not constitute a good plea in bar to the information for the felony in the district court. Larson v. State, 44: 617, 140 N. W. 176, 93 Neb. 242. ( Annotated ) 208. Conviction of failure to maintain one's wife, contrary to the provisions of the statute, is not a bar to a prosecution for continued failure to maintain her after serving the sentence on the former convic- tion. State v. Morgan, 40: 615, 136 N. W. 521, 155 Iowa, 482. (Annotated) 209. Acquittal of a sales agent upon a charge of embezzlement and larceny in re- taining funds collected from customers is no bar to a subsequent prosecution for for- gery in making false notes of the customers, although the two indictments relate to the same transaction. Spears v. People, 4: 402, 77 N. E. 112, 220 111. 72. (Annotated) 210. A conviction of simple larceny before a justice of the peace will bar a subsequent prosecution for larceny from a dwelling based on the same transaction, although the justice had no jurisdiction of the latter of- fense. State v. Sampson, 42: 967, 138 N. W. 473, 157 Iowa, 257. 211. The state cannot, after prosecuting before a justice of the peace for an offense within his jurisdiction, avoid the effect of the judgment upon the theory that such an offense was an ingredient of a higher crime of which the justice had no jurisdiction. Digest 1-52 L.B.A.(N.S.) State v. Sampson, 42: 967, 138 N. W. 473, 157 Iowa, 257. 212. One tried upon an indictment char- ging embezzlement of a letter containing a draft for $31 was not thereby placed in for- mer jeopardy as to a second indictment identical with the first, with the exception that the contents of the letter was stated to be an article of value with further de- scription unknown, where the proof under the latter showed that the article of value was a war settlement warrant for $31.57, since the testimony introduced to sustain the latter charge would not have been ad- missible to sustain the former. United States v. Aurandt, 27: 1181, 107 Pac. 1064, 15 N. M. 292. 213. A verdict of guilty, under rulings and instructions of the court that an in- formation charges robbery, which is set aside because the information only charges grand larceny, does not entitle accused to a discharge on the theory that he has been in jeopardy on the latter charge. People v. Ham Tong, 24: 481, 102 Pac. 263, 155 Cal. 579. (Annotated) 214. A conviction of felonious assault at a time when the victim is still alive is no bar to a subsequent prosecution for murder in case he dies. Com. v. Ramunno, 14: 209, 68 Atl. 184, 219 Pa. 204. (Annotated) 215. The fact that the Constitution pre- scribes the punishment for the sale of in- toxicating liquors does not prevent the leg- islature from imposing other and different or greater punishment for using one's prem- ises, or permitting them to be used, for the sale of intoxicating liquors, as the two of- fenses are separate and distinct, and re- quire different proof to support them. Stout v. State ex rel. Caldwell, 45: 884, 130 Pac. 553, 36 Okla. 744. 216. An acquittal of the charge of sell- ing intoxicating liquor to a certain person on a specified date prevents a subsequent prosecution for the sale of liquor to the same person on another date prior to the first trial, where proof of the date of sale was not necessary to conviction. State v. Freeman, 45: 977, 77 S. E. 780, 162 N. C. 594. (Annotated) 217. A conviction of keeping a bawdy- house, upon an instruction authorizing con- viction if the jury find that accused had kept such house at the place alleged within twelve months before the filing of the in- formation, bars another prosecution for the maintenance of such house at the place alleged within the twelve months, although on different days from those specified in the first information. State v. Lismore, 29: 721, 126 S. W. 855, 94 Ark. 211. 218. A conviction of illegal registration to vote is not a bar to a prosecution for false swearing which was necessary to ef- fect the registration, because the right to it was challenged, where accused might have been guilty of the former offense with- out taking an "oath. Hughes v. Com. 31 : 693, 115 S. W. 744, 131 Ky. 502. (Annotated) 219. A statute providing that a prisoner 812 CRIMINAL LAW, II. h IV. a. in a state prison for a term less than life, who shall escape, shall be punishable by impris- onment for a term equal to the term he is serving, the second term of imprisonment to commence from the time he would otherwise have been discharged, does not place a per- son churged thereunder a second time in jeopardy for the same offense. Re Mallon, 22: 1123, 102 Pac. 374, 16 Idaho, 737. (Annotated) 220. Acquittal of a conspiracy to induce a railroad company to give rebates is not a bar to a prosecution for inducing shippers to receive them. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. h. Determining sanity of accused; pro- ceeding with trial. (See also same heading in Digest L.R.A. 1-70.) Presumption and burden of proof as to san- ity, see APPEAL AND ERROR, 930; EVI- DENCE, 221-223. Opinion evidence as to insanity, see EVI- DENCE, VII. e. Relevancy of evidence as to, generally, see EVIDENCE, 1602-1606. Sufficiency of proof of insanity, see EVI- DENCE, 2358-2361. Forgery as evidence of insanity, see INCOM- PETENT PERSONS, 1. Conclusiveness of decision against accused on special issue i. to insanity, see JUDG- MENT, 89. Right to have question of sanity tried by jury, see JURY, 29, 53. Permitting reading to jury of evidence taken upon issue of sanity of accused, see TRIAL, 24. Insanity as question for jury, see TRIAL, 238-241. Instructions as to insanity, see TRIAL, 908, 914, 915. III. Offenses against different sov- ereignties. (See also same heading in Digest L.R.A. 1-10.) Concurrent proceedings in different courts, see supra, II. e. State and municipal. 221. Conviction for violation of a district ordinance is no bar to a prosecution by the state for the same acts. Ehrlick v. Com. 10 : 995, 102 S. W. 289, 125 Ky. 742. 222. A conviction for a violation of a city or village ordinance is not a bar to a sub- sequent conviction upon the same state of facts, for a violation of a state statute. Re Henry, 21: 207, 99 Pac. 1054, 15 Idaho, 755. 223. Conferring upon a city council exclu- sive legislative power, and authorizing the prevention of gaming and gambling houses, do not make inapplicable within the city limits a statute punishing public nuisances consisting of the keeping of gambling Digest 1-52 L,.R.A.(N.S.) houses. State v. Ayers, 10: 992, 88 Pac. 653, 49 Or. 61. 224. A valid municipal ordinance provid- ing for the punishment of anyone maintain- ing or participating in a gambling game is not superseded by a subsequent statute making the carrying on of a gambling game a felony. Seattle v. Macdonald, 17: 49, 91 Pac. 952, 47 Wash. 298. (Annotated) 225. The maintenance of a place of any character where persons are allowed to bet, oflfer to bet, place an order for a bet, or telegraph or telephone bets, on races of any sort, cannot, in the absence of express legis- lative authority, properly be made penal by a municipal ordinance, as it is prohibited by Ga. Pen. Code 1895, 398. Thrower v. At- lanta, i: 382, 52 S. E. 76, 124 Ga. 1. (Annotated) IV. Sentence and imprisonment, a. In general. (See also same heading in Digest L.R.A. 1-10.) Effect of error in sentence favorable to con- vict, see APPEAL AND ERROR, 523. Validity of sentence imposed upon plea of guilty where co-conspirators are ac- quitted, see CONSPIRACY, 10. For violation of health regulation, see CON- STITUTIONAL LAW, 116. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 337-340. Denial of due process by statute fixing punishment for crime, see CONSTITU- TIONAL LAW, 630. Right to recall and sentence to longer term person found guilty of contempt of court, see CONTEMPT, 104. Review of sentence on habeas corpus, see HABEAS CORPUS, 36, 41-47. Turning over pay of convict to abandoned wife, see HUSBAND AND WIFE, 213. Execution for crime as risk insured against, see INSURANCE, 702-704. Uniformity of punishment for illegal sale of liquors, see INTOXICATING LIQUORS, 30. In case of illegal combination in restraint of trade, see MONOPOLY AND COMBINA- TIONS, 22. Sufficiency of title of statute as to mode of inflicting punishment of death, see STATUTES, 149. Retrospective operation of statute as to, see STATUTES, 294, 307-309. Submitting to jury question of form of punishment, see TRIAL, 92. Sufficiency of verdict to sustain sentence, see TRIAL, 1151. Commutation of sentence as affecting credi- bility of convict, see WITNESSES, 164. See also supra, 3. 226. Where no penalty is prescribed for an offense described by statute the common- law penalty may be imposed. Union Col- liery Co. \. Reg. 2 B. R. C. 222, 31 Can. S. C. 81. 227. A provision in a sentence for selling CRIMINAL LAW, IV. b. 813 intoxicating liquor contrary to law after the imposition of fine and imprisonment, to the effect that the imprisonment part shall be canceled on payment of the fine if the accused shall recognize to refrain from fur- ther sales, if construed as imposing an alternative sentence, is void. State v. Sturgis, 43: 443, 85 Atl. 474, 110 Me. 96. 228. A plea of guilty to an indictment charging burglary and receiving stolen property will support a sentence for burg- lary, if the evidence shows accused to have been guilty of that crime, although there was but a single transaction and he could not therefore be guilty of both crimes. People v. Carr, 41: 1209, 99 N. E. 357, 255 111. 203. Delay in executing. 229. A sentence is not invalid because of a direction by the court to the clerk not to issue capias upon it for a specified num- ber of days. Re Hinson, 36: 352, 72 S. E. 310, 156 N. C. 250. 230. One who, upon receiving a sentence of imprisonment which the clerk is instruct- ed not to enforce for a specified number of days, leaves the county, and remains absent for the specified term, cannot avoid serv- ing the sentence upon returning into the county, upon the plea that the specified time had expired. Re Hinson, 36: 352, 72 S. E. 310, 156 N. C. 250. Correction of judgment. See also infra, 300. 231. The court may, after the close of the term, amend a judgment of conviction in a criminal case nunc pro tune, so as to charge accused with the costs as required by statute. Villines v. State, 43: 207, 151 S. W. 1023, 105 Ark. 471. Of insane criminals. Statute providing for confinement of insane criminals as ex post facto law, see CON- STITUTIONAL LAW, 37. Due process of law as to, see CONSTITUTION- AL LAW, 547, 568, 569, 602, 603. Police power as to, see CONSTITUTIONAL LAW, 750. Sufficiency of evidence to show insanity, see EVIDENCE, 2361. Habeas corpus to secure release of one com- mitted to asylum for insane criminals, see HABEAS CORPUS, 52. Right of one acquitted of murder on ground of insanity to have question of sanity submitted to jury, see JURY, 53. Retroactive effect of statute as to liberation of insane criminals, see STATUTES, 309. See also infra, 242, 262. 232. Authorizing the commitment to pris- on of persons acquitted of crime on the ground of insanity, when their going at large shall be considered by the court mani- festly dangerous to the peace and safety of the community, is not against public poli- cy. State ex rel. Thompson v. Snell, 9: 1191, 89 Pac. 931, 46 Wash. 327. 233. One acquitted of murder because of insanity is manifestly dangerous within the meaning of a statute authorizing the com- mitment of such persons to prison. State Digest 1-52 L.R.A.(N.S.) ex rel. Thompson v. Snell, 9: 1191, 89 Pac. 931, 46 Wash. 327. 234. A state hospital for the insane is in- cluded within the meaning of a statute au- thorizing the commitment to prison of one acquitted of murder on the ground of in- sanity. State ex rel. Thompson v. Snell, 9: 1191, 89 Pac. 931, 46 Wash. 327. 235. A statute requiring an examination of persons alleged to be insane does not ap- ply to those acquitted of crime on the ground of insanity, as to whom another stat- ute provides that the court may order them to be committed to prison. State ex reL Thompson v. Snell, 9: 1191, 89 Pac. 931, 46 Wash. 327. 236. Under a statute providing that, if, in the opinion of the court, the release of a person acquitted of crime because of in- sanity would be dangerous to the peace and safety of the community, it may order him committed to the hospital for treatment, he is entitled to his discharge upon his recov- ery in fact and in the opinion of the super- intendent of the hospital. Northfoss v. Welch, 36: 578, 133 N. W. 82, 116 Minn. 62. Necessity of formal commitment. 237. A commitment is not, although the statute directs its preparation, and states it shall be sufficient authority for the execu- tion of the sentence, necessary to render legal the custody of one who has been regu- larly sentenced to imprisonment for crime, and he may therefore be punished for at- tempting to escape from such custody, al- though no commitment is in existence. State v. Hatfield, 38: 609, 118 Pac. 893, 66. Wash. 9. (Annotated) ft. Cruel and unusual punishment* (See also same heading in Digest L.R.A. 1-10.) Prejudicial error in sentence, see APPEAL AND ERROR, 1552. 238. The fact that a statute authorizes the disbarment of an attorney for and on account of his conviction of a felony or misdemeanor involving moral turpitude does not amount to a violation of any of his constitutional rights prohibiting the infliction of cruel and unusual punishment, nor is it an additional punishment to that inflicted by the judg- ment of conviction. Re Henry, 21: 207, 99 Pac. 1054, 15 Idaho, 755. (Annotated) 239. That a licensee, upon conviction of a violation of a statute making it unlawful for a licensed saloon keeper to traffic in intoxicating liquor after and before certain hours, is subjected thereby to a fine and forfeiture of the license, does not invalidate the statute, as inflicting cruel and unusual punishment. Dinuzzo v. State, 29: 417, 123 N. W. 309, 85 Neb. 351. 240. A statute fixing the punishment for opening on Sunday any room except a drug store where intoxicating liquors are sold or kept for sale, at a fine of from $50 to $250, imprisonment for six months, revocation of 814 CRIMINAL LAW, IV. c. the license, and the closing of the business for one year, does not violate the constitu- tional injunction against cruel or unusual punishment, or the infliction of penalties disproportionate to the offense. State v. Woodward, 30: 1004, 69 S. E. 385, 68 W. Va. 66. (Annotated) 241. The penalties prescribed by Kan. Laws 1903, chap. 487, p. 735, limiting the charges that may be made for the use of stockyards, and imposing a fine of $100 for the first conviction; of not more than $200 for the second conviction; of not more than $500 and six months' imprisonment for the third conviction; and of snch imprisonment and a fine of not less than $1,000 for each subsequent offense, do not constitute cruel and unusual punishment in violation of the state Constitution. Ratcliff v. Wichita Union Stockyards Co. 6: 834, 86 Pac. 150, 74 Kan. 1. Imprisonment of insane criminals. 242. No cruel punishment is inflicted by committing one who has been acquitted of the crime of murder on the ground of in- sanity to prison, where it appears to the court that his discharge from custody will be manifestly dangerous to the peace .- nd safety of the community. Ex parte Brown, i: 540, 81 Pac. 552, 39 Wash. 160. i -a- (Annotated) Sterilization of criminals. 243. Sterilization by means of vasectomy which can be performed, without pain or danger, in a few moments, is not a cruel punishment so to render it unconstitutional when applied to a person convicted of statutory rape. State v. Feilen, 41: 418, 126 Pac. 75, 70 Wash. 65. (Annotated) Imprisonment at hard labor. 244. A statute relating to desertion and nonsupport of a wife by her husband, which provides a penalty of hard labor in a peni- tentiary or reformatory for not exceeding two years upon conviction, is not void as containing a punishment that is unusual. State v. Gillmore, 47:217, 129 Pac. 1123, 88 Kan. 835. c. Extent of punishment generally; ex- cessive fines. ', ii', ; )iiii-.f; IK: T( -'-' :I 'M laiwumi aJ V(! h-.L">"J(" -Jl.'J* 'Ji tUTI! (See also same heading in Digest L.R.A. 1-10.) Right to consider on appeal question wheth- er convict was given too light a sen- tence, see APPEAL AND ERROR, 421. Reducing or increasing punishment on ap- peal, see APPEAL AND ERROR, 1600-1603. Change in punishment as ex post facto, see CONSTITUTIONAL LAW, 38-40. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 337-340. In contempt proceedings, see CONTEMPT, V. Review of, on habeas corpus, see HABEAS CORPUS, 41-47. See also infra, 291. Digest 1-52 L.R.A.(N.S.) 245. A statute depriving a life insurance agent of the right to prosecute that busi- ness if he gives special rates to applicants is not invalid as imposing too severe a penalty. People v. Hartford L. Ins. Co. 37: 778, 96 N. E. 1049, 252 111. 398. 246. Sections 5168 and 5169, Minn. Rev. Laws 1905, the former of which provides that every person violating the statute shall be punished by fine or imprisonment, and the latter of which provides that every do- mestic corporation violating the act shall, "in addition to the penalties imposed upon the members thereof" by the former seo- tion, forfeit its charter, rights, and fran- chises, do not render a domestic corpora- tion which has violated the statute subject to the penalty imposed in the former sec- tion, and also to the penalty of forfeiture as provided in the latter, but only to a forfeiture of its charter. State v. Minneap- olis Milk Co. 51:244, 144 N. W. 417, 124 Minn. 34. 247. The board of pardons is a branch of the executive department of the state gov- ernment, and its powers and prerogatives, as such, are those of granting clemency to convicted prisoners; and it has no power to increase or extend penalties or punishment pronounced by the sentence of a court. Ex parte Prout, 5: 1064, 86 Pac. 275, 12 Idaho, 494. 248. The governor of a state is without lawful right to set aside and nullify the law inflicting the death penalty for crime in all cases, upon the ground that he is opposed to capital punishment. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. Excessive fines. 249. Requiring one who has embezzled over $500,000 of state funds to pay a fine equal to the amount of the embezzlement, or suffer lifs imprisonment, is cruel and un- usual punishment, within the prohibition of the Constitution, both as to the term of imprisonment and as to the fine, where ac- cused has not the power to pay it present- ly, or secure the necessary funds by a life- time of effort. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. Validity of legal part of excessive sentence. Reversal of, conviction Avhere part of sen- tence is illegal, see APPEAL AND ERROR, 1552. 250. A prisoner under sentence for a long- er term than the court had jurisdiction to impose cannot be relieved from custody un- til the expiration of the time which was within the court's jurisdiction. Harris v. Lang, 7: 124, 27 App. D. C. 84. 251. The imposition of cumulative sen- tences in a criminal action, the aggregate of which exceeds the jurisdiction of the court to impose, does not render the entire sen- tence void, but it will be valid for the term which the court has jurisdiction to impose. Harris v. Lang, 7: 124, 27 App. D. C. 84. (Annotated) CRIMINAL LAW, IV. d. 815 d. Time of imprisonment; cumulative and indeterminate sentences. (See also same heading in Digest L.R.A. 1-10.) Equal protection and privileges as to, see CONSTITUTIONAL LAW, 338, 339. Habeas corpus to secure release because of excessive sentence, see HABEAS CORPUS, 41-47. Construction of statute as to, see STATUTES, 231. See also infra, 310. 252. A single sentence for a term in excess of the period specified by statute for a single offense, upon a conviction of separate crimes charged in several counts of the in- dictment, is void as to such excess, although it is for a less term than the court might have imposed in the form of cumulative sen- tences. United States v. Peeke, 12: 314, 153 Fed. 166, 82 C. C. A. 166. 253. A convicted defendant who is at lib- erty and has not served his sentence, which has not been stayed, as provided by law, may be arrested as on escape, and ordered into custody on the unexecuted judgment, although the term of sentence has expired. Ex parte Eldridge, 27: 625, 106 Pac. 980, 3 Okla. Grim. Rep. 499. 254. The right to require a convict whose sentence was illegally suspended by the court, to serve his full term of imprison- ment, is not affected by the fact that, since suspension took effect, the legislature short- ened the term for which persons convicted of the offense involved could be imprisoned, to a period less than that imposed by the original sentence. State v. Abbott, 33: 112, 70 S. E. 6, 87 S. C. 466. When time begins to rnn. 255. Under a statute which provides that "in all cases the court shall award the sen- tence and fix the punishment or penalty prescribed by law," the power of the court extends to fixing the kind and amount or du- ration of the punishment, rather than the time Avhen it shall be executed, which is not an essential part of the sentence; and expiration of the time fixed by the order of the court for the execution of a sentence, without imprisonment, is in no sense an execution of the sentence. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 256. A prisoner who has been paroled by the board of pardons, and thereafter re- arrested and returned to the penitentiary, is entitled to his discharge at the expiration of the period of time for which he was sen- tenced by the court; and he cannot be law- fully detained under such sentence for the purpose of serving an additional term equal- ing the time he was out on parol. Ex parte Prout, 5: 1064, 86 Pac. 275, 12 Idaho, 494. 257. A delay after expiration 'of a period allowed for the perfecting of an appeal from a sentence of imprisonment, during which the convict is allowed his liberty, in com- pelling him to begin service of the sentence, Digest 1-52 I,iR.A.(N.S.) does not operate to reduce the term of im- prisonment, as such a sentence, unless re- mitted by death or some legal authority, can be satisfied only by the actual serving of the term of imprisonment imposed, the expiration of time without imprisonment be- j ing in no sense an execution thereof. Ex parte Eldridge, 27 : 625, 106 Pac. 980, 3 Okla. Grim. Rep. 499. Cumulative sentence. See also supra, 251. 258. One sentenced to separate terms of imprisonment under three counts of an in- dictment is not entitled to discharge upon expiration of the first term, upon the sen- tence under the second count proving errone- ous; but the sentence under the third count will begin immediately. United States v. Carpenter, 9: 1043, 151 Fed. 214, 81 C. C. A. 194. 259. A sentence of fine, in default of pay- ment of which there shall be imprisonment for a certain time, imposed upon conviction for assault, and one subsequently imposed upon the same defendant of imprisonment for another assault upon a different person, to which he pleaded guilty at the time of his former conviction, which term is to be- gin at the expiration of the former one, are not cumulative within the meaning of a statute limiting the jurisdiction of the court as to the term for which it may impose im- prisonment, and declaring that cumulative sentences shall be regarded as one. Harris v. Lang, 7: 124, 27 App. D. C. 84. (Annotated) 260. Where a person who has been con- victed and sentenced to the penitentiary for one felony appeals from the judgment, and, while enjoying his liberty under a bond given to stay the execution thereof, com- mits a second felony, for which he is con- victed and sentenced to a term to begin upon the expiration of the former term, such second sentence is valid. State v. Finch, 20: 273, 89 Pac. 922, 75 Kan. 582. Indeterminate sentences; deductions. Delegation of power to fix credits for good behavior, see CONSTITUTIONAL LAW, 97. Review of, on habeas corpus, see HABEAS CORPUS, 42. Construction of statute as to, see STATUTES, 231. Retrospective effect of indeterminate sen- tence law, see STATUTES, 307, 308. 261. No constitutional right of an accused is violated by a statute permitting an in- determinate sentence, where the maximum term is provided by statute, although au- thority to shorten it rests with a com- mission. State v. Duff, 24: 625, 122 N. W. 829, 144 Iowa, 142. 262. The committal of a person acquitted of murder on the ground of insanity to prison until the further order of the court is not void for uncert unty. Ex parte Brown, i: 540, 81 Pac. 552, 39 Wash. 160. ( Annotated ) 263. The courts will not recognize a de- duction from the sentence of a criminal of time for good behavior, which has been al lowed under authority of an unconstitution- 816 CRIMINAL LAW, IV. e-g. al statute. Fite v. State ex rel. Snider, i: 520, 88 S. W. 941, 114 Tenn. 646. (Annotated) 264. A law allowing specified deductions from terms of imprisonment for good be- havior is not an unconstitutional infringe- ment of the prerogative of the governor to pardon, as it does not restrict or inter- fere with such power in any way, but sim- ply fixes the term of imprisonment in cer- tain cases and upon certain conditions, thus entering into and becoming a part of the judgment and sentence of the court. Re Ridley, 26: no, 106 Pac. 549, 3 Okla. Crim. Rep. 350. e. Place of imprisonment. (See also same heading in Digest L.R.A.. 1-70.) Constitutionality of statute authorizing prison board to transfer prisoners from reformatory to state prison, and vice versa, see CONSTITUTIONAL LAW, 139. Habeas corpus to review question of pro- priety of place of confinement, see HA- BEAS 'CORPUS, 43, 47. /. Punishment of second offenses and habitual criminals. (See also same heading in Digest L.K.A. 1-70.) Ex post facto law as to, see CONSTITU- TIONAL LAW, 38. Judicial notice of prior conviction, see EVI- DENCE, 8. Necessity of proving that judgment of con- viction in former prosecution had not been reversed, see EVIDENCE, 95. See also supra, 183, 260. 265. One is not subject to the penalty im- posed by statute for a second offense, for an act committed after a verdict had been returned against him for the first offense, but before sentence thereon. Com. v. Mc- Dermott, 24: 431, 73 Atl. 427, 224 Pa. 363. (Annotated) 266. In the absence of some statute regu- lating the procedure, to authorize a court to impose the increased punishment pro- vided for by a statute relating to second offenders, the fact of the prior conviction must be set forth in the indictment, estab- lished by proper evidence, and passed upon by the jury. State v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. 267. To warrant the application of a stat- ute authorizing additional punishment of one convicted of crime upon proof of former convictions, the identity of accused and the one against whom the former judgments were entered must be established by affirma- tive evidence; mere proof of identity of names not being sufficient. State v. Smith. 4: 539, 106 N. W. 187, 129 Iowa, 709. (Annotated) 268. Failure of proof of identity of ac- cused and those convicted in former prose - Digest 1-52 L.R.A.(N.S-) cutions prevents the court from applying the statute authorizing additional punishment in case of successive convictions, but in case of a finding of guilt it can impose only the punishment provided for the offense for which accused is on trial. State v. Smith, 4: 539, 106 N. W. 187, 129 Iowa, 70'J. 269. A statute providing for the filing of an information in the circuit court of the county in which the penitentiary is situat- ed, of the fact that one who had been sen- tenced to confinement in such penitentiary had before been sentenced to a like punish- ment, whether or not it was so alleged in the indictment on which he was convicted, and directing that, upon such information, a sentence of life imprisonment be imposed upon a convict who had been twice before sentenced to confinement in a penitentiary, is constitutional and valid. State v. Gra- ham, 40: 924, 69 S. E. 1010, 68 W. Va. 248. g. Suspension or stay of sentence; time of imposing. (See also same heading in Digest L.R.A. 1-70.) Right to jury trial on issue of violation of condition of suspended sentence, see JURY, 27. See also supra, 254. 270. A judgment suspending sentence up- on condition of payment of costs and giv- ing bonds to appear from term to term and show that accused has demeaned him- self as a good and law-abiding citizen is not void for uncertainty. State v. Everett, 47: 848, 79 S. E. 274, 164 N. C. 399. 271. A suspension of sentence upon pay- ment of costs does not render such pay- ment a satisfaction of the judgment, so that the court cannot afterward proceed with the sentence. State v. Everett, 47: 848, 79 S. E. 274, 164 N. C. 399. 272. Imposing a sentence which was sus- pended during good behavior, upon viola- tion of law by the accused, is not void as a punishment for something occurring after the original conviction. State v. Everett, 47: 848, 79 S. E. 274, 164 N. C. 399. Power to suspend sentence on execu- tion thereof. Review of discretion as to, see APPEAL AND ERROR, 667. Estoppel of convict to assert invalidity of suspension of sentence, see ESTOPPEL, 116. 273. Whenever a verdict or plea of guil- ty has become final, the court is under an absolute duty to pronounce- sentence, and has no discretion to suspend it under an agreement that it may never be pronounced at all. State ex rel. Dawson v. Sapp, 42: 249, 125 Pac. 78, 87 Kan. 740. 274. The power of suspending sentence be- longs of common right to every tribunal invested with authority to award execu- tion in a criminal case. St^te v. Everett, 47: 848, 79 S. E. 274 164 N. C. 399. 275. There is no power to make the serv- CRIMINAL LAW, IV. h, 1. 817 ing of sentence for crime depend upon the subsequent conduct of the convict. Re Pe- terson, 33: 1067, 113 Pac. 729, 19 Idaho, 433. 276. A court has no power to suspend a sentence of imprisonment during the good behavior of the convict. State v. Abbott, 33:112, 70 S. E. 6, 87 S. C. 466. ( Annotated ) 277. A court has no inherent power to suspend the execution of a sentence pro- nounced upon one convicted of crime for the purpose of inducing good behavior on his part. Fuller v. State, 39: 242, 57 So. 6, 806, 100 Miss. 811. (Annotated) 278. A court has no power to suspend exe- cution of a sentence which has been im- posed in a criminal case as a reformatory measure, to secure future good behavior on the part of the accused. Spencer v. State, 38: 680, 140 S. W. 597, 125 Tenn. 64. 279. The fact that the Constitution places in the governor power to grant re- prieves and pardons "after conviction" does not limit his authority to cases in which the court has pronounced judgment, so as to authorize conferring upon the court prior to that time jurisdiction to remit punish- ment by a suspension of sentence. Snod- grass v. State, 41: 1144, 150 S. W. 162, Tex. Crim. Rep. . 280. Power to suspend sentence on per- sons convicted for crime, during good be- havior, and ultimately to annul the judg- ment of conviction, cannot be conferred upon courts where the Constitution requires the passing of laws depriving persons con- victed of such crimes of certain civil rights. Snodgrass v. State, 41: 1144, 150 S. W. 162, Tex. Crim. Rep. . 281. Under a Constitution conferring upon the governor power to grant reprieves and pardons, the legislature cannot confer upon the court power to remit the punish- ment upon a verdict finding one guilty of crime and imposing imprisonment upon him, by suspending its execution during good behavior and finally annulling the con- viction. Snodgrass v. State, 41: 1144, 150 S. W. 162, Tex. Crim. Rep. . 282. A constitutional provision that no power of suspending laws shall be exercised except by the legislature is violated by a statute permitting the court to release from custody one convicted of abandoning his wife, upon his entering into a recognizance to pay her a weekly sum. Ex parte Smythe, 23: 854, 120 S. W. 200, 56 Tex. Crim. Rep. 375. (Annotated) Loss of jurisdiction to impose sen- tence, or enforce execution there- of, by suspension. Habeas corpus to release person recommit- ted after suspension of sentence, see HABEAS CORPUS, 21. 283. A court which has imposed a judg- ment of imprisonment on plea of guilty or conviction, which is not stayed as provided by law, should forthwith commit the de- fendant to the proper officer for incarcera- tion; but, where this is not done, and an order is made under which the defendant is discharged from custody, the court has no Digest 1-52 L.R.A.(N.S.) power or jurisdiction after the lapse of the time involved in the sentence, and after the term, to issue commitment on such judg- ment. Ex parte Clendenning, 19: 1041, 97 Pac. 650, 1 Okla. Crim. Rep. 227. ( Annotated ) 284. Where an attempt to stay an execu- tion of a criminal sentence is void, the court may, even after the expiration of the term, cause a capias to issue to take accused into custody, that the execution of his sentence may proceed. Spencer v. State, 38: 680, 140 S. W. 597, 125 Tenn. 64. 285. Where, after a verdict or plea of guil- ty, the defendant is permitted to go at large under an arrangement that he shall escape punishment unless the court shall in the future determine to impose a sentence, expiration of the term, and no valid sen- tence can thereafter be pronounced ; and this rule applies notwithstanding the sen- tence purports to be suspended until a cer- tain date, for the purpose of retaining con- trol of the defendant, who is ordered to appear at that time and show that he has not violated the law in the interval. State ex rel. Dawson v. Sapp, 42: 249, 125 Pac. 78, 87 Kan. 740. 286. Where, upon a plea of guilty, ac- cused is sentenced to a term of imprison- ment and payment of a fine, or alterna- tive imprisonment for a further term in case of its nonpayment, with a proviso that in case it is paid, the sentence of imprison- ment shall be suspended until further or- der, if the fine is paid and the accused released without bail, .the court has no power to compel him afterwards to serve out his term. Re Peterson, 33: 1067, 113 Pac. 729, 19 Idaho, 433. 287. The invalidity of an attempt by a court to suspend a sentence of imprison- ment during good behavior of the convict does not affect the validity of the sentence, and it may be enforced even though the time covered by the sentence has expired. State v. Abbott, 33: 112, 70 S. E. 6, 87 S. C. 466. Stay. Effect of repeal or amendment of statute to arrest execution of sentence, see STAT- UTES, 307. 288. A court which has sentenced a con- vict to death may stay the execution to in- quire as to his sanity, and, if insane, may continue the stay until his recovery. Ex parte State ex rel. Wilson, 10: 1129, 43 So. 490, 150 Ala. 489. h. Parole; reprieve; pardon. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Presumption as to pardon, see APPEAL AND ERROR, 437. Sufficiency of identification of person named in pardon, see EVIDENCE, 2217. 52 818 CRIMINAL LAW, IV. h, 2. Convicted prisoner under parole who goes into another state as a fugitive from justice, see EXTRADITION, 10. Legality of revocation of parole in foreign state, see EXTRADITION, 12. Commutation of sentence as affecting credi- bility of convict as witness, see WIT- NESSES, 154. See also supra, 152, 247, 264. 289. A "parole" in criminal law is the release of a convict from imprisonment up- on certain conditions to be observed by him, and a suspension of his sentence dur- ing his liberty thus granted. Re Ridley, 26: no, 106 Pac. 549, 3 Okla. Crim. Rep. 350. 290. A prisoner who is paroled without statutory authority cannot, upon violation of his parole, be required to remain in pris- on beyond the time when the original sen- tence expired. Scott v. Chichester, 16: 304, 60 S. E. 95, 107 Va. 933. (Annotated) Validity of pardon. Review of, on habeas corpus, see HABEAS CORPUS, 17. 291. A pardon granted by the lieutenant governor of a state during the temporary absence of the governor is valid under a constitutional provision conferring upon the lieutenant governor the powers and duties of the office of governor upon the removal from the state of the governor. Re Crump, 47: 1036, 135 Pac. 428, 10 Okla. Crim. Rep. 133. (Annotated) Governor's power as to pardon. See also supra, 264, 279. 292. Conferring power on a commission to permit prisoners confined in the peniten- tiary to go on parole outside of the build- ings does not empower it to reprieve, par- don, or commute sentences, so as to consti- tute a violation of the constitutional par- doning power of the governor. State v. Duff, 24: 625, 122 N. W. 829, 144 Iowa, 142. 293. The governor of the state has no au- thority to order a sheriff to release a pris oner committed to his custody by judgment of a court. Re Campion, 11:865, 112 N. W. 585, 79 Neb. 364. 294. The governor has no power to pardon a prisoner found guilty of bastardy and ad- judged to be the reputed father of an il- legitimate child, since he has not been con- victed of an offense within the meaning of Neb. Const, art. 5, 13, empowering the chief executive of the state to grant pardons after convictions for all offenses except trea- son and case? of impeachment. Re Campion, ii : 865, 112 N. W. 585, 79 Neb. 364. 295. The constitutional pardoning power of the governor does not prevent the legis- lature from conferring upon municipal au- thorities the power to remit penalties for violation of municipal ordinances. Allen v. McGuire, 38:^196, 51 So. 217, 100 Miss. 781. (Annotated) 2fl6. A statute creating a state board of pardons, defining its duties, and restrict- ing the governor in the exercise of the pardoning power, is unconstitutional and void, when the pardoning power is by the Digest 1-52 L.R.A.(N.S.) Constitution vested exclusively in the chief executive of the state, subject to such reg- ulations as may be prescribed by law, as such provision merely vests the legislature with power to provide regulations relative to the manner of applying for pardons, and not with power to restrict the power of the governor to grant them. Re Ridley, 26: 1 10, 106 Pac. 549, 3 Okla. Crim. Rep. 350. Effect of pardon. Effect of pardon of attorney convicted of forgery to prevent disbarment, see AT- TORNEYS, 29. Effect of pardon on right to divorce, see DIVORCE AND SEPARATION. Effect of pardon on competency as witness, see WITNESSES, 18. 297. Pardoning the offender, and not the offense for which the pardon is granted, does not destroy its effect. Thompson v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. 298. A pardon is an act of grace and mercy, bestowed by the state through its chief executive, upon offenders against its laws, after conviction; and a full, uncondi- tional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal con- templation the offense itself; and hence its effect is to make the offender a new man. Re Crump, 47: 1036, 135 Pac. 428, 10 Okla. Crim. Rep. 133. 299. A pardon does not release a convict from liability to pay the costs of prosecu- tion. Villines v. State, 43: 207, 151 S. W. 1023, 105 Ark. 471. 300. A pardon will not prevent the subse- quent entry of a nunc pro tune order char- ging a convict with costs of suit, which should have been made a part of the judg- ment. Villines v. State, 43: 207, 151 S. W. 1023, 105 Ark. 471. (Annotated) Recall of pardon. 301. The governor cannot recall a pardon which he has forwarded to the sheriff for delivery to a prisoner, after the prisoner has complied with the conditions precedent on which it was granted. Ex parte Wil- liams, 22: 238, 63 S. E. 108, 149 N. C. 436 (Annotated) 302. A full, unconditional pardon granted by the lieutenant governor of a state dur- ing the absence from the state of the gov- ernor takes effect upon delivery to one who is acting for the subject of the pardon, and cannot thereafter be revoked by the governor upon his return to the state. Re Crump, 47: 1036, 135 Pac. 428, 10 Okla. Crim. Rep. 133. 2. Conditional. (See also same heading in Digest L.R.A. 1-10.) Parole of husband on condition that he sup- port his abandoned wife, see HUSBAND AND WIFE, 2] 4. See also supra, 256. CRIMINAL LAW, IV. h, 2. 819 303. Conditions attached to a parole or pardon by the board of pardons, that are to extend beyond, or be performed after, the expiration of the term for which the prison- er was sentenced, are illegal, and cannot be enforced after the expiration of the term for which the prisoner was sentenced. Ex parte Prout, 5: 1064, 86 Pac. 275, 12 Idaho, 494. (Annotated) Right to grant conditional pardon. 304. The board of pardons has power to parole prisoners upon such terms and con- ditions as it may see fit, so long as those terms and conditions are neither immoral nor illegal. Ex parte Prout, 5: 1064, 86 Pac. 275, 12 Idaho, 494. 305. Under a constitutional provision that the pardoning power "may, upon such con- ditions and with such limitations and re- strictions as they may deem proper, grant pardon after conviction, in all cases except treason and impeachment, sxibject to such regulations as may be prescribed by law relative to the manner of applying for pardons," the pardoning power may, in granting a pardon after conviction, impose any condition, limitation, or restriction that is not illegal, immoral, or impossible of per- formance, and the acceptance of the pardon binds the person accepting it to all such conditions, limitations, and restrictions con- tained therein that are legal, moral, and possible of performance. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. Breach of condition. Due process in revoking parol for violation of conditions, see CONSTITUTIONAL LAW, 573. Habeas corpus to secure release of convict rearrested for violation of parole, see HABEAS COBPTJS, 36. Right to jury to determine whether condi- tion has been broken, see JURY, 28. 306. A conditional pardon may, by its express terms, provide that, upon violation of the conditions, the offender shall be liable to summary arrest and recommitment for the unexpired portion of his original sen- tence, and such stipulations upon acceptance of the pardon become binding upon the con- vict, and authorize his rearrest and recom- mitment in the manner and by or through the officials authorized as stipulated in the pardon. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 307. If the condition of a pardon upon which a convict secures his release from im- prisonment is violated, the pardon becomes void, and the convict may be arrested as though no pardon had been granted, and compelled to undergo so much of the original sentence as he had not suffered at the time of his release. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 308. A conditional pardon by virtue of which a prisoner accepting its terms has been released from imprisonment does not, upon his failure to perform the conditions, or his violation of them, take effect where the con- tingency specified is a condition precedent, and it becomes void where it is a condition Digest 1-52 L.R.A.(N.S.) subsequent. State v. Home, 7: 719, 42 So. 388, 25 Fla. 125. 309. A convict who has been released up- on a conditional pardon cannot be rear- rested and recommitted upon breach of the condition, upon the mere order of the gover- nor alone, unless such a course is authorized by a statute or by the express terms of the pardon ; but he is entitled to a hearing before a court of general criminal jurisdiction, in order that he may show, if he can, that he has performed the conditions of the pardon, or that he has a legal excuse for not hav- ing done so, or that he is not the same per- son who was convicted. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 310. A provision in a conditional pardon that, upon breach of the condition on winch the pardon is granted, it shall be the duty of the sheriff of any county immediately to arrest the person pardoned and return him to the penitentiary, to serve out the remain- der of his term, refers to the length of im- prisonment fixed by the sentence, and not to the particular period of time mentioned in the sentence during which it was to be exe- cuted ; since the latter is not a material or effective part of the sentence. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 311. A provision in a pardon, requiring reimprisonment, upon breach of a condition of the pardon, for the remainder of the or- iginal sentence of imprisonment, after the expiration of the particular period of time fixed by the court within which the sentence imposed shall be executed, is not immoral or impossible of performance during the life of the convict; nor is it illegal, since the partic- ular period of time within which the sen- tence is to be suffered by the convict as specified in the sentence is not a part of the legal sentence, except so far as it fixes the quantum of time that he must suffer such penalty; nor does it increase the pun- ishment imposed by the court in the sen- tence; and it is not forbidden by law. State v. Home, 7: 719, 42 So. 388, 52 Fla. 125. 312. A prisoner accepting a pardon upon condition that, if he subsequently violates any law of the United States, state, or municipality, the pardon may be revoked, and the governor may direct his return to prison to serve his unexpired term, is bound by its terms; and he cannot question the governor's authority to order his rearrest without intervention of the courts. Re Houghton, 9: 737, 89 Pac. 801, 49 Or. 232. 313. The expiration of the term for which a convict was sentenced does not make in- operative a provision in a conditional par- don that, if he is subsequently convicted of crime, he shall serve the unexpired time in addition to that imposed by the new sentence; but he may be compelled to serve out such unexpired term, although his sub- sequent conviction does not occur until after the expiration of the term of the original sentence. Re Kelly, 20: 337, 99 Pac. 308, 155 Cal. 39. 314. A governor having exclusive power to parole a convict, with such restrictions 820 CIM.MIXAL LAW, V. CROPS. and limitations as he may deem proper, may, upon violation of the parole, direct the rear rest and return to custody of the CRITICISM. Of book, see LIBEL AND SLANDER, 21. convict to serve out the unexpired part of I Of public officers or candidates, see LIBEL his sentence as though no parole had been granted, although the original term would have expired but for the suspension there- of. Re Ridley, 26: no, 106 Pac. 549, 3 Okla. Crim. Rep. 350. V. Record; validity of conviction. (See also same heading in Digest L.R.A. 1-10.) Record on appeal, see APPEAL AND ERROR, IV. See also supra, 156. 315. It is essential to the validity of the record in a criminal case that it show that the proceedings were had in a court regu- larly organized. People v. Gray, 49: 1215, 103 N. E. 552, 261 111. 140. (Annotated) 316. The omission from a judgment en- tered in a criminal case of the offense for which the sentence is imposed may be sup- plied by reference to what appears in other parts of the record. Demolli v. United States, 6: 424, 144 Fed. 363, 75 C. C. A. 365. Co-defendants; conviction of one or more. 317. The acquittal of part of several town officers jointly indicted for larceny in mak- ing false town orders, and securing and appropriating to their own use the cash upon them, will not render void a conviction of one who is shown to have cashed and received the money upon orders fraudulent- ly issued as charged. Vought v. State, 32: 234, 114 N. W. 518, 135 Wis. 6. CRIMINAL LIBEL. See COURTS, 28; LIBEL AND SLANDER, 115. CRIMINAL NUISANCE. Injunction against, see NUISANCES, 159-167. CRIMINATION OF SELF. See AUTOMOBILES, 4; CRIMINAL LAW, 107- 121, 131; PEBJURY, 8, 10; WITNESSES, II. c. CRIPPLE. Contributory negligence of crippled person, see CARRIERS, 550, 575. Digest 1-52 L.R.A.(N.S.) AND SLANDER, II. d; II. e, 5. CROPPERS. Damages for wrongful expulsion of, see DAMAGES, 153. Misleading information by one having crop- ping contract witli c-otenant, as to in- terest of such tenant to the other co- tenant, see ESTOPPEL, 166. Effect of partition on cropping contract made by one cotenant, see PARTITION, 18. Question for jury as to need of supplies to make crop, see TRIAL, 215. Question for jury as to whether possession of cropper was adverse, see TRIAL, 617. 1. A milch cow and medical supplies may be found to be needed by one who has undertaken to make a crop on another's land, to enable him to perform his contract, within a provision permitting the landowner to deduct from his* share of the crop the value of supplies furnished by him and needed to make the crop. Bourland v. McKnight, 4: 698, 96 S. W. 179, 79 Ark. 427. 2. Under a contract by which one un- dertakes to make a crop on the land of an- other, who is to have title to it and keep a portion for the use of land, team, and tools, and from the proceeds of the remainder de- duct the amount due him for supplies and necessaries furnished the cropper and turn the balance over to him, the cropper is only an employee, and has no title to any portion of the crop which he can mortgage as against the claim of the landowner for the value of cattle and medicines and services of a physician furnished to him. Bourland v. McKnight, 4: 698, 96 S. W. 179, 79 Ark. 427. (Annotated) 3. One who has undertaken to make a crop on another's land for a share of it may mortgage his interest in it. Bourland v. McKnight, 4: 698, 96 S. W. 179, 79 Ark. 427. 4. A cropper forfeits all interest in the crop by voluntarily abandoning it without reasonable cause or excuse. Salley v. Cox, 46: 53, 77 S. E. 933, 94 S. C. 216. (Annotated) CROPS. Injury to, by animal, see ANIMALS, 27, 28; TRESPASS, 20. Error in admitting proof of purchaser's right to inspect, see APPEAL AND ERROR, 1132. Damages for injury to or destruction of, see APPEAL AND ERROR, 1549; DAMAGES, 460, 461, 479-490. Attachment against, to enforce lien for rent, see ATTACHMENT, 3, 4. CROSS CROSSING. 821 Extension of note for crop failure, see BILLS AND NOTES, 56. Mortgage on, see CHATTEL MORTGAGE, 10. Oral contract to superintend making and gathering of, see CONTRACTS, 235. Oral reservation of, see CONTRACTS, 270- 272; EVIDENCE, 940. Severability of contract to thresh, see CON- TRACTS, 353. County's liability for loss of, during quaran- tine, see COUNTIES, 3. Duty 'to dig ditch to protect crops from back water, see DAMAGES, 19 ; LANDLORD AND TENANT, 14. Breach of contract to furnish water to irri- gate crops, see DAMAGES, 122; LAND- LORD AND TENANT, 21. Passing of, on conveyance of real estate, see DEEDS, 49 ; VENDOR AND PURCHASER, 19. Who entitled to matured crop on recovery in ejectment of land on which stand- ing, see EJECTMENT, 30. Evidence as to damages to, see EVIDENCE, 1128, 1132, 1739-1742, 2321. Evidence as to value of, see EVIDENCE, 1702. As assets of decedent's estate, see EXECU- TORS AND ADMINISTRATORS, 82. Right to re-enter for purpose of cultivating, harvesting, and removing, see FORCIBLE ENTRY AND DETAINER, 1 ; LANDLORD AND TENANT, 98. Liability of health officer for loss of, see HEALTH, 18. Exemption of crops grown on homestead, see HOMESTEAD, 15. Receipt by landowner of part of crop from one claiming as tenant, as evidence of relation of landlord and tenant, see LANDLORD AND TENANT, 5. Right of purchaser of growing crop from assignee of lease as against execution creditor of the tenants, assignor and assignee, see LANDLORD AND TENANT, 88. Right of tenant to gather after expiration of lease, see LANDLORD AND TENANT, 126. Landlord's lien on, see LANDLORD AND TEN- ANT, 199, 200. Right to, on re-entry by landlord, see LAND- LORD AND TENANT, 213-216. Conversion of, by tenant as larceny, see LARCENY, 5. Levy on growing crop, see LEVY AND SEIZ- URE, 20-23. Lien upon, for wages of farm laborers, see LIENS, 10. When right of action for injury to accrues, see LIMITATION OF ACTIONS, 198, 199. Liability for injury to, through negligence of independent contractor, see MASTER AND SERVANT, 1013. Priority of lien for advances over mortgage on, see MORTGAGE, 44. Landlord's right of action for injuries to, see PARTIES, 148. Pleading in action for breach of contract as to, see PLEADING, 78. Excuse for appointment of receiver of, with- out notice, see RECEIVERS, 6. Replevin for, see REPLEVIN, 16. Digest 1-52 L.R.A.(N.S.) Liability for loss of, due to selling unfit seed, see SALE, 92. Gathering on Sunday, see SUNDAY, 16. Shading of, by trees on boundary line, see TREES, 1. Conversion by purchaser of crop upon which another has a lien, see TROVER, 21. Injury to, by overflow of water, see WATERS, 205. As to croppers, see CROPPERS. 1. A testamentary direction as to the disposition of crops growing on the laud in case testator's death shall occur within a specified year will cease to have any effect at the expiration of the year; and after that time the matter will be governed by the statute. Gordon v. James, 1:461, 39 So. 18, 86 Miss. 719. 2. A railroad company that has cut a gap through a fence inclosing a field of growing crops is liable for injuries caused to the growing crop by cattle entering through the gap, where it is not shown that the company had procured a right of way through the land, nor that it had any other right to break and destroy the fence. Missouri, 0. & G. R. Co. v. Brown, 50:1124, 136 Pac. 1117, 41 Okla. 70. CROSS. On ballots, see ELECTIONS, 40. CROSS BILL. Questioning propriety of, for first time on appeal, see APPEAL AND ERROR, 762, 763. In suit to remove cloud on title, see CLOUD ON TITLE, IV. Dismissal of, for lack of jurisdiction, see COUBTS, 253. In general, see PLEADING, IV. Reversal on bill of review, of decree found- ed on matters set up in, see REVIEW, 3. CROSS ERRORS. Assignment of, see APPEAL AND ERROR, IV. p, 3. CROSS-EXAMINATION. Of witnesses, see WITNESSES, II. b. _ -- CROSSING. Railroad crossings generally, see RAILROADS, II. b. Injuries at railroad crossings, see RAIL- ROADS, II. d, 3; II. e, 2. 822 CROSSWALKS CURTESY. CROSSWALKS. Accumulation of snow on, see HIGHWAYS, 244, 245. CROWDING. Injury to passenger by, see CARRIERS, 172, 244, 247, 282, 312, 321, 363-373, 500- 503, 551 ; EVIDENCE, 1875 ; PLEADING, 292 ; STREET RAILWAYS, 25 ; TRIAL, 382, 383. Injury to customer in store by, see NEGLI- GENCE, 82, 83. CROWN. Vesting of lease in crown on dissolution of lessee corporation, see CORPORATIONS, 390. Word "Crown" as valid trademark, see TRADEMARKS, 9. CRUEL AND UNUSUAL PUNISH- MENT. See CRIMINAL LAW, IV. b. CRUELTY. To animals, see ANIMALS, II. As ground for divorce, see DIVORCE AND SEP- AKATION, III. a. CUL-EE-SAC. Dedication of, as highway, see DEDICATION, 13a. Change in highway causing, see HIGHWAYS, 409. CULM BANK. VI Loss of title to portion sliding over bounda- ry line, see ADJOINING LANDOWNERS. CULVERT. Negligence of street railway company as to, causing injury to passenger, see CAB- RIERS, 271. Presumption of negligence from collapse of covering of, see EVIDENCE, 447. Duty to guard, see HIGHWAYS, 225. Injury to pedestrian through collapse of covering of, see HIGHWAYS, 383. In railroad embankment, see RAILROADS, II. f. Digest 1-52 L.R.A.(N.S.) Liability of successor of railroad company for latter's failure to construct, see NUISANCES, 116. In highway, right to conduct water through,, see WATERS, 318. CUMULATIVE DIVIDENDS. On preferred stock, see CORPORATIONS, 296, 297. CUMULATIVE EVIDENCE. Prejudicial error in exclusion of, see AP- PEAL AND ERROR, 1255. New trial for, see NEW TRIAL, 55, 56. CUMULATIVE SENTENCE. See CRIMINAL LAW, 251, 258-260. CURATIVE LAW. See ACKNOWLEDGMENT, IV.; CONSTITUTION- AL LAW, I. b, 2, b; DRAINS AND SEWEES, 4, 5; MUNICIPAL CORPORATIONS, 87, 88. CURB. Right of abutting owner to construct in street, see HIGHWAYS, 76, 148. CURRENCY. Rule of express company as to time of de- livery of currency for transportation, see CARRIERS, 777. In general, see MONEY. CURTESY. Adverse possession of estate by, see ADVERSE POSSESSION, 27. Right of tenant by, to have set aside as fraudulent deed conveying his interest in his wife's property, see CONTRACTS, 744; LIMITATION OF ACTIONS, 30. Right to, as condition to benefit of statute entitling husband to half the estate of childless wife, see DESCENT AND DIS- TRIBUTION, 24a. Presumption of intention to cut off, by con- veyance to wife, see EVIDENCE, 224. Liability of curtesy initiate to attachment for husband's' debts, see LEVY AND SEIZURE, 13. Effect of, on running of limitations, see LIMITATION OF ACTIONS, 188, 235. CUSTODIA LEGIS CUSTOM AND USAGE. 823 1. A man who joins in a mortgage of his wife's property is entitled to compute his curtesy interest only on the surplus after satisfying the mortgage and tax liens, not on the entire value of the property, under a statute giving him one third of all the real estate of which she was seised in fee simple during coverture, unless the right shall have been barred or relinquished. Ketterer v. Nelson, 37: 754, 141 S. W. 409, 146 Ky. 7. In what. 2. A husband has an estate by the cur- tesy, after the death of his wife, in lands which he had voluntarily settled upon her, if he did not, in express terms or by plain implication, relinquish such right in the in- strument of conveyance. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. (Annotated) 3. Curtesy exists in the equity of re- demption of the wife's lands. Jackson v. Becktold Printing & B. Mfg. Co. 20: 454, 112 S. W. 161, 86 Ark. 591. (Annotated) What will defeat. 4. That an estate^ purchased by funds from the wife's separate estate is conveyed to husband and wife jointly does not de- prive him of his curtesy in the property. Donovan v. Griffith, 20: 825, 114 S. W. 621, 215 Mo. 149. 5. Under a statute entitling a husband to an estate by curtesy in land in which his wife died seised of an estate of inherit- ance, a husband is not entitled to curtesy in land of which his wife was disseised during her lifetime by adverse possession, although he was under disability during this time. Calvert v. Murphy, 52: 534, 81 S. E. 403, 73 W. Va. 731. (Annotated) 6. The conveyance to a man of land pur- chased with funds from the separate es- tate of his wife, and his holding the legal title at the time of her death, will not pre- vent his having curtesy in the property. Donovan v. Griffith, 20: 825, 114 S. W. 621, 215 Mo. 149. 7. That the wife's title to real estate is not acquired until after the death of the only child of the marriage will not deprive the husband of curtesy in the property. Donovan v. Griffith, 20:^825, 114 S. W. 621, 215 Mo. 149. (Annotated) 8. A surviving husband is entitled to curtesy out of a determinable fee owned by his wife with issue born alive, notwith- standing the contingency upon which the fee is to terminate exists at the time of her death. Carter v. Couch, 20: 858, 47 So. 1006, 157 Ala. 470. (Annotated) 9. An alien husband may take an es- tate by the curtesy in land of which his wife died seised, under a statute providing that aliens shall be capable of taking by descent lands within the state, in the same manner as citizens may do. Cooke v. Doron, 7: 659, 64 Atl. 595, 215 Pa. 393. (Annotated) 10. If an estate by the curtesy is an estate by purchase, it is covered by a pro- vision of a statute permitting aliens to Digest 1-52 L,.R.A.(N.S.) purchase and hold real estate. Cooke v. Doron, 7: 659, 64 Atl. 595, 215 Pa. 393. Rights of tenant by curtesy. 11. Where a wife owning, as tenant in common with her brothers and sisters, an undivided share of land subject to the dower and homestead right of their mother, to- gether with such brothers and sisters and upon a sufficient consideration, enters into an agreement with the mother not to par- tition said lands during the lifetime of the mother, such agreement is binding upon her husband when claiming as tenant by the curtesy after the death of the wife and dur- ing the lifetime of the mother. Glockel v. Mathews, 18: 1208, 117 N. W. 404, 82 Neb. 201. 12. A tenant by the curtesy of land con- taining unopened mines becomes, upon sale of the mines by himself and the remain- derman, entitled to the income on the pro- ceeds during liie. DerTenbaugh v. Hess, 36: 1099, 74 Atl. 608, 225 Pa. 638. (Annotated) CUSTODIA LEGIS. See CUSTODY OF LAW. 4 CUSTODY. Of corpse, see CORPSE, II. b. Of children, see DIVORCE AND SEPARATION, VII.; INFANTS, I. c. Of law, see CUSTODY OF LAW. CUSTODY OF LAW. Sale of property in, see CHATTEL MORTGAGE, 60. Interference with, by other court, see COURTS, IV. c. Garnishment of property in, see GARNISH- MENT, I. c, 2. Replevin for property in, see REPLEVIN, I. b. As to money in court, see MONEY IN COURT. CUSTOM AND USAGE. Effect of, on liability of title abstracter, see ABSTRACTS, 2. Error in admitting evidence of, see APPEAL AND ERROR, 1132. Effect of, on liability of garage keeper as bailee, see BAILMENT, 22. Banking custom, see BANKS; CHECKS, 27. As to commercial paper, see BILLS AND NOTES. To permit persons to ride on hand cars, see CARRIERS, 78. To permit passengers to ride in vestibule of street ears, see CARRIERS, 363. To permit shippers to reship goods on origi- nal waybills without payment of freight, see CARRIERS, 757. 824 CUSTOM AND USAGE. To receive freight at other point than at reg- ular station, see CARRIERS, 771, 784, 785. As to unloading stock, see CARRIERS, 910. Notice to carrier as to, see CARRIERS, 861. As to giving fog signal, see COLLISION, 2. As basis for statement by court as to com- mon law, see COMMON LAW, 2. Creation of contract by, see CONTRACTS, 4. As part of contract, see CONTRACTS, 345. Effect of, to make stock certificate negotiable instrument, see CORPORATIONS, 222. Creation of easement by, see EASEMENTS, 4. Estoppel of bank to deny right to refuse to pay check to buna fide purchaser, see ESTOPPEL, 189. Judicial notice as to, see EVIDENCE, 52-56. Effect of existence of, to establish lack of negligence, see EVIDENCE, 2116, 2117. Parol evidence of, see EVIDENCE, VI. b. Evidence as to, under pleading, see EVI- DENCE, 2458. Evidence as to, generally, see EVIDENCE, XI. b. Sufficiency of evidence of, to show negli- gence, see EVIDENCE, 2149. Sufficiency of evidence to show, see EVI- DENCE, 2326. Effect of, to give exclusive right of fishery, see FISHERIES, 13. As to system of reckoning time, see INSUR- ANCE, 183. / continued. 4:. Sales of personalty; war- ranty, 162199. a. Seller's failure to de- liver, 162-172. b. Buyer's failure to complete purchase, 173-182. C. Breach of warranty, 183-199. B. Of employment, 2OO2O7. 6. To advance money; non- payment of, or failiire to collect, checlcs, 208214=. 7. Liquidated damages, 215 231. t. For telegrams, 232252. c. Expulsion of, or failure in duty to, passenger, 253 277. 1. In general, 253269. 2. Ejection, 27O-277. d. In respect to freight or bag- gage, 278 3O1. e. Torts generally; breach of promise, 3O232O. f. Fraud, 321-331. g. Assault; seduction; false im- prisonment; malicious prose- cution; abuse of process, 332340. h. Libel or slander; insult, 341 346. 826 DAMAGES. III. continued. i. Personal injuries; death, 347 444. 1. In general, 347377. 2. Injuries to married wom- en, 3 7 S 386. 3. Death, 387-4O3. 4. Instances of amount, 4O4444. a. In general, 4O4434. b. Death, 435444. j. Injury to, or taking or deten- tion of, personal property, 445-458. fc. Injury to real property; nui- sance, 459 5O7. 1. In general, 459467. 2. Injury to, or destruction of, buildings, trees, or crops, 468-49O. 8. Injury to water rights; overflows, 491498. 4. Nuisances, 499 5O7. fcfc. Injury to business, 508, 509. I. Condemnation or depreciation in value by eminent do- main, 51O59O. 1. In general, 51O516. 2. Value; estimate of, 517 541. a. In general, 517531. b. Value for special use, 532-541. 8. Consequential injuries, 542-556. 4. As to abutting owners, 557561. a. In general; railroads and street railroads in streets, 557561. b. Elevated railroads. 6. In highway cases, 562 574. 6. Advantages; offsets, 575 590. a. In general, 575581. b. Special benefits, 582 59O. m. In injunction cases, 591593. n. In trademark, patent, and copyright cases, 594 6O5. o. Mental anguish, 6O667O. 1. Accompanying physical suffering, 6O6614. H. Unaccompanied by phys- ical injury, 615 670. a. In general, 615637. b. Default as to telegram or telephone message or the transmission of money, 638661. c. Failure of duty to pas- senger, 662 67O. p. Loss of profits, 671 7O6. 1. In general, S7168O. 2. From breach of contract, 681-7O6. q. Time for which recoverable; prospective, 7O7, 7O8. r. Counsel fees, 7O9. Digest 1-52 L.R.A.(N.S.) ///. continued. s. Mitigation; reduction, 71O 724. t. A(/ffravation, 725 73O. u. Apportionment. IV. Assessment; double or treble dam- ayes, 731735. Including in bill for accounting claim for damages recoverable at law, see ACTION OB SUIT, 123. Review of, on appeal, see APPEAL AND ER- BOR, VII. 1, 2, b. Instruction as to, see APPEAL AND EBROB, 796, 797, 1427; VII. m. 4, a, 3; 889- 892 ; III. e, 2. Discretion in submitting damages to be awarded various parties to one jury, see APPEAL AND EBROB, 647. New trial for error as to, see APPEAL AND ERROR, 672-075, 677, 1619, 1620; NEW TBIAL, 31-35. Objecting for first time on appeal to award of, see APPEAL AND EBBOR, 804-806. Prejudicial error as to measure of, see AP- PEAL AND ERROR, 185, 1540-1551. Increasing or reducing on appeal, see AP- PEAL AND EBROB, 1587-1599. Effect of absence of exception on right to correct excessive allowance of, on ap- peal, see APPEAL AND EBBOR, 358. Assignment of right of action for, see AS- SIGNMENT, 1-3. For failure to transfer on books bank stock purchased, see BANKS, 13. Conflict -of laws as to measure of, see CON- FLICT or LAWS, 160-165. Class legislation as to, see CONSTITUTIONAL LAW, 333. Due process of law as to, see CONSTITUTION- AL LAW, 552, 553, 558-562, 565. Federal courts following state decision as to measure of, see COUBTS, 327, 328. Right to recover expense of preparing for suit in case of dismissal by plaintiff, see DISMISSAL AND DISCONTINUANCE, 6. Retaining jurisdiction for assessment of, see EQUITY, I. h. Opinion evidence as to, see EVIDENCE, VII. f. Relevancy of evidence as to, generally, see EVIDENCE, XI. g. Admissibility of evidence as to, under plead- ing, see EVIDENCE, 2436-2438. Sufficiency of proof of, see EVIDENCE, 2317- 2323. Extent of recovery on insurance policy, see INSUBANCE, VI. c. Interest on amount recovered as, see IN- TEREST, I. c. Right to jury to assess damages on default judgment, see JUBY, 16. Necessity of proving special damages, see LIBEL AND SLANDEB, 160-162. Sufficiency of allegations in mandamus pro- ceeding to support judgment for, see MANDAMUS, 112. Remittitur of, see NEW TRIAL, V. e; TBIAL, V. e. Deduction from recovery by father of wages of minor son, for necessaries furnished by employer, see PARENT AND CHILD, 11, 12. .?./..). A. >.,. ;::;-. r ;**; id DAMAGES, I. 827 Right to recover from photographer for at- tempting to use photograph for his own purposes, see PHOTOGRAPHS, 1. Allegations as to, see PLEADING, II. f. Amendment of allegations as to, see PLEAD- ING, 98. Assailing by demurrer right to, or measure of, see PLEADING, 622-632. Liability of property in hands of receiver for damages resulting from his negligence, see RECEIVERS, 43. Recovery of, on counterclaim, see SET-OFF AND COUNTERCLAIM. Set-off of unliquidated damages, see SET-OFF AND COUNTERCLAIM, 8. Sufficiency of evidence to carry question of, to jury, see TRIAL, 105-112. Nonsuit because of failure to prove sub- stantial damages, see TRIAL, 694. /. General principles; nominal dam- ages ; preventing unnecessary amount. (See also same heading in Digest L.R.A. 1-10.) Nominal damages. Grant of new trial in suit involving nomi- nal damages only, see APPEAL AND EB- BOR, 681. Prejudicial error in instruction as to, see APPEAL AND ERROR, 1359. Prejudicial error in failing to award, see APPEAL AND ERROR, 1540-1543. Setting aside verdict for nominal damages, see APPEAL AND ERROR, 1544. Judgment on appeal where damages are nominal only, see APPEAL AND ERROR, 1604. Nominal recovery on insurance policy, see INSURANCE, 779. Sufficiency of declaration to state cause of action for, see PLEADING, 626, 628, 632. Permitting recovery of nominal damages in order to allow plaintiff costs, see TBIAL, 694. See also infra, 36, 312; PLEADING, 608. 1. Nominal damages only can be awarded a remote grantee for breach of covenants of seisin and warranty in a deed of real estate, where there is no proof of the consideration paid by him or the in- termediate grantor for the property. Cole- man v. Lucksinger, 26: 934, 123 S. W. 441, 224 Mo. 1. 2. The recovery for breach of a contract by a lessee of the right to remove gravel, not to interfere in so doing with the lateral support of adjoining property the division fence between which and his own land the lessor is bound to maintain, by excavating so closely to the division line that the fence and a part of the adjoining land fall into the excavation, is more than nominal, al- though the lessor has not been called upon to respond in damages or incur any expense because of the trespass. Orr v. Dayton & M. Traction Co. 48: 474, 96 N. E. 462, 178 Ind. 40. Digest 1-52 L.R.A.(N.S.) 3. Substantial damages cannot be re- covered from one who interferes to pre- vent another from securing a government contract for which he has bid, where the government has the right to reject any bid, so that there is nothing to show that the contract would have been secured in the absence of interference. Hardison v. Reel, 34: 1098, 70 S. E. 463, 154 N. C. 273. 4. The damage sustained by the owner of lands abutting upon a highway, by the taking of a strip immediately adjoining his property line, for the purpose of con- structing thereon a telephone and telegraph line, is not, as a matter of law, merely nominal, but is substantial in the sense that the owner is entitled to recover com- pensation for all damage actually sustained. Tri-State Teleph. & Teleg. Co. v. Cosgriff, 26: 1171, 124 N. W. 75, 19 N. D. 771. 5. Nominal damages only should be awarded the owner of the fee and the abut- ting owners, in case of the taking by the city of the fee of a street which had been platted by the owner, who had sold all the lots upon the street, so that a perpetual easement in it had been dedicated to the lot owners. Re New York, 37: 281, 89 N. E. 829, 196 N. Y. 286. 6. A mere change of a street grade does not entitle an abutting properly owner to nominal damages as matter of course, under a constitutional provision that private prop- erty shall not be damaged for public use without compensation. Swift & Co. v. New- port News, 3: 404, 52 S. E. 821, 105 Va. 108. 7. A railroad company is liable in nomi- nal damages for carrying a passenger be- yond his station, into its yards, without giving him an opportunity to alight at the station. Natchez, C. & M. R. Co. v. Lam- bert, 37: 264, 54 So. 836, 99 Miss. 310. 8. Nominal damages will be awarded In a libel action, for purposes of vindication, where no special damages have been sus- tained. Levert v. Daily States Pub. Co. 23: 726, 49 So. 206, 123 La. 594. 9. Nominal damages at least may be recovered by a property owner in case snow is permitted to slide onto his property from the roof of a building on neighboring prop- erty. Bishop v. Readsboro Chair Mfg. Co. 36: 1171, 81 Atl. 454, 85 Vt. 141. 10. A lower riparian owner who is dam- aged by an illegal invasion of his property rights, such as the continuous, unreason- able diminution and detention of the water in a stream by an upper owner, is entitled to nominal damages, even though he show no special damage. Price v. High Shoals Mfg. Co. 22: 684, 64 S. E. 87, 132 Ga. 246. 11. One upon whose land water is backed by the obstruction of the drainage outlet is entitled at least to nominal damages. Har- vey v. Mason City & Ft. D. R. Co. 3:973, 105 N. W. 958, 129 Iowa, 465. 12. One is entitled to nominal damages at least for the pollution of a stream run- ning through his property by the casting of chemicals into it, although he shows no special damage from the injury. Hodges v. 828 DAMAGES, I. Pine Product Co. 33: 74, 68 S. E. 1107, 135 Ga. 134. 13. The recovery by a voter whose bal- lot is wilfully and maliciously rejected, against the election officers who rejected it, is not limited to nominal damages. Lane v. Mitchell, 36: 968, 133 N. W. 381, 153 Iowa, 139. 14. A patient in a sanitarium who was caused intense suffering by the negligent ct of a nurse, who applied alcohol to his eye instead of the mild solution prescribed, is entitled to recover nominal damages from the proprietor of the institution, where no permanent injury resulted from the mis- take. Stanley v. Schumpert, 6: 306, 41 So. 565, 117 La. 255. Preventing unnecessary amount. Effect of physician's lack of skill, see infra, 359. Refusal to seek medical or surgical relief, see infra, 369-371. Effect of prior disease or infirmity, see infra, 372-377. Reduction or mitigation of damages, see infra, III. s. Aggravation of damages, see infra, III. t. Duty of consignee to receive goods injured in transportation and allow value upon claim against carrier, see GABBLERS, 793. See also CARBIEBS, 382. 15. The rule that a party aggrieved by a trespass will not be allowed to recover damages resulting from his neglect to em- ploy the obvious and ordinary means of pre- venting or lessening them is simply one of good faith and fair dealing; but whenever one's right to his property is wilfully or criminally invaded by a continuing tort, and injury arises therefrom, he may recover for any damages sustained by reason of such invasion, and is not bound under such circumstances to do any act to relieve the tort feasors of the ordinary consequences of their wrongs; and this is especially true where the trespassers have profited by their tort. Shannon v. McNabb, 38: 244, 120 Pac. 268, 29 Okla. 829. (Annotated) 16. A property owner is under no obli- gation to attempt to minimize the injury caused by a nuisance created by the wash- ing of filth from neighboring property onto the public street near his property, by clearing it away. Cumberland Grocery Co. v. J. S. Baugh's Admr. 43: 1037, 152 S. W. 565, 151 Ky. 641. 17. No duty rests upon the owner of property which is beinjy injured by a nui- sance to take active measures to prevent fur- ther injury in order to minimize the dam- ages for which the wrongdoer may be liable. Niagara Oil Co. v. Ogle, 42:714, 98 N. E. 60, 177 Ind. 292. 18. A lower riparian owner who is dam- aged because of the continuous, unreason- able diminution and detention of the water in a stream by an upper owner is under no legal obligation to exercise ordinary care to avoid or lessen the damages, as such acts constitute a continuous tort which is an illegal invasion of the lower owner's prop- Digest 1-52 L.R.A.(N.S.) erty rights. Price v. High Shoals Mfg. Co. 22: 684, 64 S. E. 87, 132 Ga. 246. (Annotated) 19. A lessee of a farm is under no obliga- tion to dig a ditch to protect his crops from water obstructed by a railroad em- bankment, in order to minimize the inju- ries. Yazoo & M. V. R. Co. v. Sultan, 49: 760, 63 So. 672, Miss. . (Annotated) 20. Damages resulting from the breach of a contract to lease lands and tenements cannot be recovered in so far as plaintiff could have prevented them by the exercise of reasonable exertion or care. Moses v. Autuono, 20: 350, 47 So. 925, 56 Fla. 499. 21. Though the measure of damages, in an action by a lessee against the lessor for failure to give possession of the leased prem- ises tit the time stipulated for the com- mencement of the term, is a legal rule, it is. founded upon equitable considerations, which bind the injured party to such pru- dent action and reasonable exertion as will mitigate the injury, and deny to him re- covery of such damages as he could have prevented thereby. Huntington Easy Pay- ment Co. v. Parsons, 9: 1130, 57 S. E. 263, 62 W. Va. 26. 22. A lessee of property with covenant for renewal is not bound, upon notification of anticipatory breach of the covenant, to accept an offer of a renewal at an in- creased rental prior to the time for incep- tion of the new term, in order to minimize the covenantor's damages. Neal v. Jeffer- son, 41: 387, 99 N. E. 334, 212 Mass. 517. 23. Upon refusal of the seller to comply with his contract to furnish lumber for a building, the buyer is under no obligation to purchase from him at an advanced price, in order to minimize the damages for which he may be liable for delaying the completion of the structure by his breach of contract. Campfield v. Sauer, 38: 837, 189 Fed. 576, 111 C. C. A. 14. (Annotated) 24. When the refusal of a telegraph com- pany to pay over money causes one without funds to act quickly, and, instead of seeking to recover from a sleeping car company the money theretofore paid for a section and awaiting the possibility of getting the money next day, he decides to travel home- ward, a finding of the jury that the injury was not self-imposed will not be disturbed. Western U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, 50 Fla. 474. 25. A shipper is not, in order to min- imize the damages and relieve himself from the charge of contributory negligence, bound to remove from a car in which his cattle are placed a notice erroneously placed thereon by the carrier indicating that the cattle are from an infected district, where such notices are provided by government regulation, and interference with them is prohibited under penalty. Wabash R. Co. v. Campbell, 3: 1092, 76 N. E. 346, 219 111. 313. (Annotated) 26. Where the effect of an attachment was to prevent a sale of property attached, the duty to mitigate damages did not re- quire the giving of a bond to dissolve the DAMAGES, II. a. 829 attachment. Malone v. Belcher, 49: 753, 103 N. E. 637, 216 Mass. 209. II. Exemplary or punitive, a. In general. (See also same heading in Digest L.R.A. 1-70.) Reversing verdict because of excessive puni- tive damages, see APPEAL AND ERROR, 935. Instructions as to, see APPEAL AND ERROR, 1370, 1371; TRIAL, 1004-1006. Error in failing to require separation of compensatory and punitive damages in verdict, see APPEAL AND ERROR, 1428. Refusal to submit question of, to ju*y, see APPEAL AND ERROR, 1514. Prejudicial error in allowance of, see AP- PEAL AND ERROR, 1545. Due process of law in statute as to, see CONSTITUTIONAL LAW, 561. Presumption of malicious intent giving right to, see EVIDENCE, 245. Evidence as to, see EVIDENCE, 1754, 1755. Variance between pleading and proof as to, see EVIDENCE, 2495. Amendment of pleading to permit recovery of, see PLEADING, 99. Sufficiency of evidence to carry question of, to jury, see TRIAL, 107, 108. Duty of court to define punitive damages, see TRIAL, 882. 27. Punitive damages are allowed for the public good and for the purpose of deterring others from a like offense, and never for the purpose of enriching the in- jured person. Yazoo & M. V. R. Co. v. Hardie, 34: 740, 55 So. 42, 100 Miss. 132. 28. A wrongful act done under a* bona fide claim of right, and without malice in any form, constitutes no basis for punitive damages. Jopling v. Bluefield Waterworks t Improv. Co. 39: 814, 74 S. E. 943, 70 W. Va. 670. 29. Exemplary damages cannot be re- covered in an action for breach of contract other than actions against a banker for refusing to pay a customer's check when ho has in his hands funds of the customer to meet it, and actions for breach of promise of marriage, and actions where the vendor of real estate without any fault on his part fails to make title. Per Lord Atkinson in Addis v. Gramophone Co. Ltd. 3 B. R. C. 98, [1909] A. C. 488. Also Reported in 78 L. J. K. B. N. S. 1122, 101 L. T. N. S. 46G. ( Annotated ) Liability of surety on bond. 30. In the absence of statute providing for punitive damages, such damages are not recoverable in an action against the sureties for breach of an attachment bond. Floyd v. Anderson, 43: 788, 128 Pac. 249, 36 Okla. 308. 31. A surety on the bond of a marshal is not liable for the punitive damages al- lowed by statute against one killing another with firearms in case the marshal commits Digest 1-52 L.R.A.(N.S.) such act. Growbarger v. United States Fi- delity & G. Co. ii : 758, 102 S. W. 873, 126 Ky. 118. Torts or negligence generally. Conflict of laws as to right to, see CONFLICT OF LAWS, 97. See also infra, 315. 32. There may be an allowance of puni- tive damages in an action of tort, although no actual damages are shown. Fields v. Lancaster Cotton Mills, n: 822, 58 S. E. 608, 77 S. C. 546. 33. To authorize a judgment for exem- plary damages, in an action sounding in tort, the proof must show some element of fraud, malice, or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence such disregard of another's right as is deemed equivalent to such in- tent. Ft. Smith & W. R. Co. v. Ford, 41: 745, 126 Pac. 745, 34 Okla. 575. 34. To render the owner of a milldam immune from liability for injury to lower riparian property by its giving way, it must have been constructed sufficiently strong to resist not merely ordinary fresh- ets, but such extraordinary floods as may reasonably be anticipated. City Water eower Co. v. Fergus Falls, 32: 59, 128 N. W. 817, 113 Minn. 33. 35. Exemplary damages may be awarded for wanton or malicious interference with another's business to the extent of driving c-ustomers away, or if the act is done under circumstances of aggravation. Sparks v. McCrary, 22: 1224, 47 So. 332, 156 Ala. 382. 36. Punitive damages may be allowed for the infringement of a trademark, al- though the actual damages are only nomi- nal. Lampert v. Judge & Dolph Drug Co. 37= 533. 141 S. W. 1095, 238 Mo. 409. 37. The placing by a retailer of inferior cigars in trademarked boxes, and making sales therefrom, is legal malice, which will justify punitive damages in favor of the owner of the trademark. Lampert v. Judge & Dolph Drug Co. 37: 533, 141 S. W. 1095, 238 Mo. 409. 38. Punitive damages may be allowed against persons who, after rightfully en- tering upon property to remove poles there- from, use loud, profane, and lewd language in the presence of the wife of the occupant, and enter his dwelling without authority, frightening her to her injury. May v. Western U. Teleg. Co. 37: 912, 72 S. E. 1059, 157 N. C. 416. 39. Ordinarily the damage recoverable by a tenant for interference with his im- plied right to light and air from the adjoin- ing land of the landlord is the depreciated rental value of the tenement; but if the structure which obstructs the light and air be so constructed as to project the rainwater through the window of the tenement to the injury of the tenant's bedroom furnishings and to his personal discomfort, and this is done with the view of causing the tenant to abandon his lease, punitive damages may 830 DAMAGES, II. a. be allowed. Darnell v. Columbus Show Case Co. 13: 333, 58 S. E. 631, 129 (Ja. til. 40. Punitive damages may be awarded against a railroad company in favor of an adjoining landowner who is injured by its refusal to remove from its right of way the carcasses of animals killed by its train, so that they become a nuisance. Yazoo & M. Valley R. Co. v. Sanders, 3: 1119, 40 So. 163, 87 Miss. 607. (Annotated) label and slander. Relevancy of evidence on question of, see EVIDENCE, 1631. Question for jury as to sufficiency of re- traction of libel to mitigate exemplary damages, see TRIAL, 340. 41. In an action for slander, punitive damages can be allowed only where the de- fendant is found to have been actuated by express, as distinguished from implied, malice. Wood v. Custer, 38: 1176, 121 Pac. 355, 86 Kan. 387. 42. Exemplary damages may be allowed for maliciously charging one with being an habitual drunkard, where actual damages are shown. Thompson v. Rake, 18: 921, 118 N. W. 279, 140 Iowa, 232. 43. In jurisdictions where punitive dam- ages are recoverable only when provided for by statute, in the absence of such statute a retail merchant who is erroneously reported as delinquent by a member of a wholesaler's protective association, so that he is denied credit by other wholesalers, can recover only the actual damages which he can show to have resulted from such report, which may include such damages for injury to char- acter, reputation, and feelings, and for mental suffering, as are supported by the evidence. Woodhouse v. Powles, 8: 783, 86 Pac. 1063, 43 Wash. 617. Breach of marriage promise. 44. The law in reference to the damages recoverable in an action for breach of promise of marriage is analogous to that in actions for torts, and exemplary dam- ages may be awarded upon like grounds. Baumle v. Verde, 41: 840, 124 Pac. 1083, 33 Ok la. 243. (Annotated) 45. Under a statute providing that ex- emplary or punitive damages are allowable only where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, a plaintiff in an action for breach of promise of marriage is not entitled to exemplary damages upon a simple refusal on the part of the defendant, without legal excuse, to carry out the contract of mar : riage. Baumle v. Verde, 41: 840, 124 Pac. 1083, 33 Okla. 243. 46. Punitive damages cannot be recov- ered in a breach-of-promise action on the ground of a defense that the plaintiff was the subject of a "chronic disease of an epi- leptic nature," in th. absence of allegation and proof that the defendant acted mali- ciously or wantonly or in bad faith in plead- ing and attempting to prove the defense. Hively v. Golnick, 49: 757, 144 N. W. 213, 123 Minn. 498. Digest 1-52 L.R.A.(N.S-) Seduction. 47. The fact that punitive damages have been allowed in an action by a woman for her own seduction is no bar to an allow- ance of similar damages in an action by her father for loss of services, expense, and humiliation caused thereby. Luther v. Shaw, 52: 85, 147 N. W. 18, 157 Wis. 234. 48. The allowance of $5,000 as punitive damages as a punishment deterrent and ex- ample in a seduction case cannot be set aside for perversity, although larger than might have been allowed bv other men. Luther v. Shaw, 52: 85, 147 N. W. 18, 157 Wis. 234. (Annotated) Alienation of affections. Evidence as to damages, see EVIDENCE, 1754. 49. Punitive damages may be awarded against a woman who entices away another woman's husband wantonly and malicious- ly, with the design of humiliating her. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. Fraud. 50. Punitive damages may be allowed for selling hogs infected with cholera un- der the fraudulent representation that they were sound in health where the statute au- thorizes such damages in actions not found- ed on contract where defendant has been guilty of misrepresentation, fraud, or mal- ice. Hobbs v. Smith, 34: 697, 115 Pac. 347. 27 Okla. 830. (Annotated) Assault and battery. On passenger, see infra, 78-81, 90. Evidence as to, see EVIDENCE, 1743. 51. The jury may, in its discretion, award exemplary damages for an assault. where the act complained of was wanton, malicious, fraudulent, or oppressive, and dis- closed a reckless disregard of the rights of the person injured. Anderson v. Inter- national Harvester Co. 16: 440, 116 N. W. 101, 104 Minn. 49. 52. One wrongfully and unlawfully as- saulted by another may be awarded exem- plary damages, in the discretion of the jury, in the absence of actual malice, since an as- sault of that nature is, in legal contem- plation, malicious. Anderson v. Inter- national Harvester Co. 16: 440, 116 N. W. 101, 104 Minn. 49. (Annotated) 53. Punitive damages may be awarded for an unprovoked and malicious assault. Hanna v. Sweeney, 4: 907, 62 Atl. 785, 78 Conn. 492. 54. The punitive damages which may be awarded for a malicious assault and battery cannot exceed the expenses of the litigation in the suit less taxable costs. Hanna v. Sweeney, 4: 907, 62 Atl. 785, 78 Conn. 492. (Annotated) 55. Punitive damages may be awarded against a member of a mob who assists in forcing a person to seek refuge in his owu home by threats and hostile demonstrationa, and fires a pistol at him after he reaches there, if he has not been punished for his offense against the public. Saunders v. Gil- bert, 38:404, 72 S. E. 610, 156 N. C. 463. DAMAGES, II. b. 831 Abuse of process. See also infra, 82. 56. Counsel fees in case of the malicious suing out of an attachment are not limited to those reasonable with reference to the actual damages sustained, by a statute pro- viding that, for wrongfully suing out an attachment, recovery may be had for the actual damages sustained and reasonable attorneys' fees to be fixed by the court; and if it be shown that the attachment was sued out maliciously, exemplary damages may be recovered. International Harvester Co. v. Iowa Hardware Co. 29: 272, 122 N. W. 951, 146 Iowa, 172. 57. Exemplary damages may be recov- ered for suing out an attachment merely because the debtor does not pay money due when demanded without any belief that he has any purpose of defrauding his creditor. International Harvester Co. v. Iowa Hard- ware Co. 29: 272, 122 N. W. 951, 146 Iowa, 172. (Annotated) 58. The allowance of $500 as exemplary damages and $300 as counsel fees for the suing out of an attachment to compel pay- ment of $600 which had matured on notes aggregating $2,400, without any reason to believe that the debtor intended to defraud the creditor, will not be interfered with on appeal, although the actual damages are only $40. International Harvester Co. v. Iowa Hardware Co. 29: 272, 122 N. W. 951, 146 Iowa, 172. 59. Punitive damages cannot be awarded for detaining and searching one suspected of shoplifting, unless the wrong was inflicted maliciously or wantonly, or with circum- stances of contumely and indignity. Bern- heimer v. Becker, 3: 221, 62 Atl. 526, 102 Md. 250. 60. A showing of illness resulting from unnecessarily rough treatment under a war- rant of arrest, of a frail, sick man, and his confinement in a cold jail, will sustain a recovery of exemplary damages, although the extent of the actual damage in money is not shown. McConathy v. Deck, 4: 358, 83 Pac. 135, 34 Colo. 461. Removal of telephone or failure to answer call. 61. The malicious or wilful removal of a subscriber's telephone in wanton or reck- less disregard of his rights may carry puni- tive damages. Carmichael v. Southern Bell Teleph. & Teleg. Co. 39: 651, 72 S. E. 619, 157 N. C. 21. (Annotated) 62. Punitive damages cannot be assessed against a telephone company for mere neg- lect to answer the call of the subscriber, in the absence of anything to show inten- tional wrong or wilfulness, or conscious in- difference to consequences, from which malice may be inferred. Southern Teleph. Co. v. King, 39: 402, 146 S. W. 489, 103 Ark. 160. Personal injuries or death. Prejudicial error in refusal of instruction as to, see APPEAL AND ERROR, 1414. Due process of law in statute as to, see CONSTITUTIONAL LAW, 561. Digest 1-52 L.R.A.(N.S.) Presumption of gross negligence from in- jury to passenger entitling him to, see EVIDENCE, 351. Sufficiency of evidence to entitle one to, see EVIDENCE, 2495. Question for jury as to, see TRIAL, 107. 63. Exemplary damages may be award- ed in case a motorman in charge of an elec- tric car, seeing a horse in charge of a lady, plunging and rearing near the track, and thereby placing her in obvious peril, takes no action to lessen the speed of the car un- til it is too late to prevent a collision. Cleveland v. South Covington & C. Street iL. Co. ii : 853, 100 S. W. 283, 30 Ky. L. Rep. 1072. 64. Punitive damages may be awarded against a railroad company for killing a person at a railroad crossing which was manifestly dangerous, if it had failed to comply with warnings by the public offi- cials to make it safe. Thompson v. Sea- board A. L. R. Co. 20: 426, 62 S. E. 396, 31 S. C. 333. 65. Exemplary damages may be awarded against one who places a patient applying for dental work in the hands of an unskilled employee for treatment, which results in the needless fracture of the jawbone. Mande- ville v. Courtright, 6: 1003, 142 Fed. 97, 73 C. C. A. 321. 66. Punitive damages may be allowed for the killing of a railroad fireman by the collision with his train, which is a regular train on time, of a special, which is bound to keep out of the way of the regular, but fails to take the proper sidetrack to clear the way for it, since the trainmen are bound to keep in mind the schedule of regular trains, and their failure to do so will cause a resulting collision to be re- garded as due to recklessness. Chesapeake & 0. R. Co. v. Johns, 50: 853, 159 S. W. 822, 155 Ky. 264. Injury to real property. 67. A corporation may be liable for puni- tive damages where, to save expense, its superintendent directs its servants to se unnecessarily large charges of explosives in blasting, to the injury of neighboring prop- erty, in wanton disregard of the rights of the owner, and against his protest. Funk v. Kerbaugh, 22: 296, 70 Atl. 953, 222 Pa. 18. Inducing breach of contract. 68. Causing breach of another's contract to furnish supplies merely to secure the opportunity to furnish them one's self is not such malice as will sustain an award of exemplary damages in favor of the con- sumer. Knickerbocker Ice Co. v. Gardiner Dairy Co. 16: 746, 69 Atl. 405, 107 Md. 556. b. For act of servant; carrier's lia- bility. (See also same heading in Digest L.R.A. 1-70.) I As question for jury, see TRIAL, 108. See also supra, 65. 832 DAMAGES, II. b. 69. Exemplary damages are not recov- erable against a principal in an action baaed on the act of an agent, where there is a total absence of evidence showing that the principal participated in the wrongful act, or that he expressly or impliedly authorized or approved it, either before or after its commission. Chicago, R. I. & P. R. Co. v. Newburn, 30: 432, 110 Pac. 1065, 27 Okla. 9. 70. Exemplary damages may be allowed against a railroad company for the wanton act of its fireman in throwing live embers from the engine onto a person standing at a private crossing. Louisville & N. R. Co: v. Eaden, 6: 581, 93 S. W. 7, 122 Ky. 818. 71. Punitive damages may be allowed against a gas company whose servants, in doing work in a house, cut the connections of a rival company, and throw its meter into the ash barrel, merely to render their own work more convenient and less ex- pensive, thereby depriving the consumer of heat necessary to render his house habitable. Kentucky Heating Co. v. Hood, a: 588, 118 S. W. 337, 133 Ky. 383. Liability of carriers generally. 72. Where the employees of a carrier wilfully neglect and refuse to give a pas- senger information requested as to a change of trains necessary to reach her destination, such passenger may recover exemplary damages. Lilly v. St. Louis & S. F. R. Co. 39: 663, 122 Pac. 502, 31 Okla. 521. 73. Punitive damages may be recovered by a passenger who was not notified by a sleeping car company of her arrival at her destination, and was put off the train in a manner attended with circumstances of ag- gravation; and a verdict of $500 therefor is neither oppressive, nor excessive. Pull- man Co. v. Lutz, 14: 907, 45 So. 675, 154 Ala. 517. 74. Punitive damages may be allowed for the wanton failure of a railroad company to furnish a passenger with sleeping car ac- commodations which it has agreed by tele- graph to do upon his purchasing transpor- tation tickets. Speaks v. Southern R. Co. 38: 258, 73 S. E. 625, 90 S. C. 358. (Annotated) 75. A carrier is not liable in punitive damages to a passenger on a mixed train for laying the train off over night because of traffic conditions, instead of running it to his destination, according to schedule, to his inconvenience, where there is nothing to show wilful disregard of his rights or rude- ness or disrespect, either in receiving him as a passenger or in laving off the frrain. Black v. Charleston & W. C. R. Co. 31: 1184, 69 S. E. 230, 87 S. C. 241. Putting white person into car for colored persons. 76. Punitive damages cannot be recov- ered by a white person required to enter a car for colored people, in the absence of in- sult. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. 77. For wrongfully placing a white pas- senger in a car set apart for colored per- sons, to her mortification and humiliation, Digest 1-52 L.R.A.(N.S.) so that actual damages might be awarded, punitive damages may be awarded although actual damages are not awarded. Louisville & N. R. Co. v. Ritchel, 41: 958, 147 S. W. 411, 148 Ky. 701. Assault on passenger. See also infra, 90. 78. Section 6562, North Dakota, Rev. Codes 1905, authorizing the recovery of punitive damages by way of punishment, and their inclusion in the verdict "when the defendant has been guilty of oppression, fraud, or malice," has no application to a common carrier for an assault by one of its employees, in the absence of proof that such common carrier authorized, sanctioned, or ratified the malicious act of the em- ployee. Voves v. Great Northern R. Co. 48: 30, 143 N. W. 760, 26 N. D. 110. 79. A common carrier is not liable for punitive damages because of the conduct of an ordinary employee, who, while dis- charging his duties in the course of his em- ployment, makes an unwarranted assault upon a passenger then in the safe-keeping and under the protection of the carrier. Voves v. Great Northern R. Co. 48: 30, 143 N. W. 760, 26 N. D. 110. ^ Annotated) 80. A street car company is liable not only for actual and compensatory damages, but for punitive damages also, if its con- ductor wilfully refuses to honor a valid transfer under circumstances of insult and aggravation, followed by an assault ' upon the passenger. Little Rock R. & E. Co. v. Goerner, 7:97, 95 S. W. 1007, 80 Ark. 158. 81. For injuries inflicted upon a pas- senger by pushing another against him in committing a malicious assault, punitive damages may be allowed within the amount claimed in the complaint. Chesapeake & O. R. Co. v. Robinett, 45: 433, 152 S. W. 976, 151 Ky. 778. Arrest of passenger. 82. Exemplary or punitive damages may be imposed upon a railroad company liable for the act of its train conductor in unlaw- fully arresting and imprisoning a person on the train, where such act was maliciou-. wanton, wilful, or reckless. Davis v. Ch<- apeake & 0. R. Co. 9: 993, 56 S. E. 400, 61 W. Va. 246. Ejection. 83. Punitive damages are recoverable against a railroad company for the forcible expulsion of a passenger without justifica- tion or excuse by the conductor or other employees in charge of the train. Seaboard Air Line R. Co. v. O'Quin, 2: 472, 52 S. E. 427, 124 Ga. 357. 84. Exemplary damages may be awarded against a railroad company for the expul- sion of a passenger holding a valid ticket without allowing him an opportunity to ex- plain an apparent discrepancy in the punch marks upon it. Illinois C. R. Co. v. Gorti- kov, 14: 464, 45 So. 363, 90 Miss. 787. 85. Punitive damages may be allowed a passenger who has been wrongfully ex- pelled from a railroad train, where the ex- pulsion is wanton, malicious, or committed in a rude and insulting manner. Ann Arbor DAMAGES, III. a, 1. 833 R. Co. v. Amos, 43: 587, 97 N. E. 978, 85 Ohio St. 300. 86. Exemplary damages may be awarded for wanton and oppressive expulsion of a passenger from a railroad train, in viola- tion of his contract rights. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 87. Exemplary damages may be awarded against a railroad company for the wanton and oppressive acts of its train agent, with authority to take up void tickets, and re- move passengers from the train, in unlaw- fully taking up a ticket and removing the holder from the train, although it does not direct the act or ratify it. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. (Annotated) 88. Punitive damages may be awarded against a carrier for wrongful expulsion of a passenger from a train, or for compell- ing him to pay money under threat of ex- pulsion. Smith v. Southern R. Co. 34: 708, 70 S. E. 1057, 88 S. C. 421. 89. A railroad company is not liable in punitive damages for the act of its con- ductor in pushing a woman passenger down the steps of the car, when she is a member of a party which, in the line of his duty, he is ejecting from the train, some of whom refuse to go and are disorderly, where she herself is insisting that she is being un- lawfully expelled, although the ejection proves to be in violation of an agreement of the carrier's ticket agent as to the stop- ping of the train at the place where they wish to get off. Louisville & N. R. Co. v. Scott, 34: 206, 133 S. W. 800, 141 Ky. 538. 90. A passenger who has been wrong- fully required to leave a car cannot hold the carrier liable in punitive damages be- cause, after having reached the ground and returned to the steps of the car, to inter- fere in an altercation between the conduc- tor and a fellow passenger, he is then shoved by the conductor against the door with undue violence. Louisville & N. R. Co. v. Scott, 34: 206, 133 S. W. 800, 141 Ky. 538. 91. Members of a party who are wrong- fully ejected from a passenger train can- not hold the railroad company liable in punitive damages because during the ejec- tion the conductor uses abusive and in- sulting language, and draws a pistol and threatens to shoot someone, if the abuse and threat are not directed toward them personally. Louisville & N. R. Co. v. Scott, 34: 206, 133 S. W. 800, 141 Ky. 538. Failure to stop at station. 92. A carrier is liable for exemplary damages where a negligent failure of its servants to discharge a passenger at desti- nation was accompanied by insolence and indifference to the passenger's rights. Ft. Smith & W. R. Co. v. Ford, 41 : 745, 126 Pac. 745, 34 Okla. 575. (Annotated) 93. The refusal of a railroad company to back a train which has started from one station to another, to permit a passen- ger for the former, who has been negli- gently carried past, to get off, is not such wilfulness as will justify an award of punitive damages against it, where, because Digest 1-52 L.R.A.(N.S.) i of necessary statutory precautions, it would entail considerable delay, since the rights I of other passengers required the train to proceed on its journey. Yazoo & M. V. R. Co. v. Hardie, 34: 740, 55 So. 42, 100 Miss. 132. 94. The question whether or not puni- tive damages can be assessed against a rail- road company for carrying a passenger past her station cannot be affected by the facts that she was in impaired health, was bound for a hospital, and upon being returned* to the station later in the day, was compelled to get off in the rain, which aggravated her condition of ill health. Yazoo & M. V. R. Co. v. Hardie, 34: 740, 55 So. 42, 100 Miss. 132. 95. A railroad company is not liable for punitive damages merely for failure to notify a passenger of the train's arrival at his station, and refusal to return with him when the fact that he has been car- ried past is discovered, where the failure is the result of mere neglect. Yazoo & M. V. R. Co. v. Hardie, 34: 740, 55 So. 42, 100 Miss. 132. 96. Punitive damages may be awarded against a railroad company which refuses to stop a train upon request at a flag sta- tion at which a passenger is entitled to alight. Mobile & 0. R. Co. v. Moreland, 46: 52, 61 So. 424, 104 Miss. 312. 97. Refusal of a conductor to listen to the explanation of a passenger on a through train as to a special contract that he should be let off at a way station where the train was not scheduled to stop, and compelling him to leave the train at the last regular stop before the station is reached, is evi- dence of wilfulness and wantonness which will justify the assessment of punitive dam- ages against the railroad company. Illi- nois C. R. Co. v. Reid, 17: 344, 46 So. 146, 93 Miss. 458. (Annotated) As to baggage. Instructions as to, see TRIAL, 1005. 98. Punitive damages may be allowed against a carrier for wilful and wanton failure to transport baggage with reasonable despatch. Webb v. Atlantic Coast Line R. Co. 9: 1218, 56 S. E. 954, 76 S. C. 193. (Annotated) 99. Punitive damages may be awarded against a street car company for refusal to permit a passenger to take into the car as personal baggage, a small piece of ice wrapped so as to prevent dripping, which is needed by a sick person, notice of which has been given to the conductor. Mclntosh v. Augusta & A. R. Co. 30: 889, 69 S. E. 159, 87 S. C. 181. III. Measure of compensation. a. On contracts. 1. Generally. (See also same heading in Digest L.R.A. 1-10.) For breach of contract as to telegram or telephone message, see infra, III. b, III. o, 2, b. 53 834 DAMAGES, III. a, 1. Loss of profits from breach, see infra, III. p. 2. Mental anguish for, see infra, 623-629. Punitive damages, see supra, 29. Election to seek injunction or damages for breach of contract, see ELECTION OF REMEDIES, 13. Evidence as to, see EVIDENCE, 1697. Sufficiency of proof as to, see EVIDENCE, 2272. Interest on, see INTEREST, 17, 53. Allegations as to, see PLEADING, II. f. In action on replevin bond, see REPLEVIN, 30. For breach of contract to give security, see SPECIFIC PEBFOBMANCE, 5. Right to, for nonacceptance, nonpayment and protest, see BILLS AND NOTES, IV. d. 100. The measure of the damages result- ing from a breach of an implied contract to use reasonable care that the person recom- mended should answer the description of a good stock broker, arising from a letter in response to an offer made by a newspaper to answer inquiries from readers desiring financial advice, asking for a safe invest- ment for a certain sum, and also for the name of a good stock broker, is not limited to the sum named, but is the sum actually sent to and misappropriated by the broker. De La Bere v. Pearson, Ltd., 1 B. R. C. 21, [1908] 1 K. B. 280. Also Reported in 77 L. J. K. B. N. S. 380, 98 L. T. N. S. 71, 24 Times L. R. 120. 101. The damages sustained by a bank by reason of the depositor's neglect to examine his bank book and vouchers with reasonable care and diligence are susceptible of proof and measurement as in any other case of breach of duty imposed by contract. Nation- al Dredging Co. v. President, etc., of Farm- ers' Bank, 16: 593, 69 Atl. 607, 6 Penn. (Del.) 580. 102. In an action for the breach of a continuing covenant contained in an instru- ment not under seal, the recovery will be limited to damages sustained during the six years preceding the filing of the suit. Atlanta, K. & N. R. Co. v. McKinney, 6: 436, 53 S. E. 701, 124 Ga. 929. 103. Where a contractor has been de- layed, but not ultimately defeated, in the collection of an amount due him on a con- tract for the construction of a drain, ow- ing to the failure of a township trustee to proceed as required by law for the collec- tion of the sum from the property owners, the measure of damages in an action against such trustee is the interest on the amount for the time payment has been delayed. Hupe v. Sommer, 43: 565, 129 Pac. 136, 88 Kan. 561. 104. The reasonable value which may be recovered for printing done for a county and accepted by it without a valid contract, and which resulted in a financial benefit to the county sufficient to pay therefor, is the actual cost of rendering the services and furnishing the material necessary, including all expenses incurred, but excluding profits, 1 Digest 1-52 L.R.A.(N.S.) and not exceeding the legal rate. Miles v. Holt County, 27: 1130, 125 N. W. 527, 86 Neb. 238. 105. Damages recoverable from a bidder for public work upon his refusal to comply with his contract cannot be fixed at the difference between his bid and the price at which the contract is awarded to a nonbid- der, where the authorities have no power to award the contract to the latter. Cedar Rapids Lumber Co. v. Fisher, 4: 177, 105 N. W. 595, 129 Iowa, 332. 106. For breach of contract to take a livery rig for a certain number of days the contract price is not the proper measure of damages. Kilpatrick v. Inman, 26: 188, 105 Pac. 1080, 46 Colo. 514. 107. The damages for breach of contract to deliver corporate stock to the purchaser thereof are the difference between the con- tract price and the highest market price which the stock attains during such reason- able time after that set for delivery as would enable the purchaser to secure the stock elsewhere. Vos v. Child, H. & Co. 43: 368, 137 N. W. 209, 171 Mich. 595. (Annotated) 108. The measure of damages to which a stockholder whose portion of an increase of stock is sold to a stranger against his pro- test is entitled, is the difference between the sale price fixed by the corporation and the market value of the stock. Stokes v. Continental Trust Co. 12: 969, 78 N. E. 1090, 186 N. Y. 285. 109. The damages for revocation of a con- tract to permit an advertisement to run in a periodical for a year is prima facie the contract price for the service. Ware Bros. Co. v. Cortland Cart & Carriage Co. 22: 272, 85 N. E. 666, 192 N. Y. 439. (Annotated) 110. One failing to perform his contract to erect in an office building an elevator ,vhich will work at its rated capacity is not lia- ble to the owner of the building for loss of rents during the time the unsatisfactory service continues; for, even if such damages could be regarded as having been within the contemplation of the parties, they are tco uncertain and contingent to form a basis for recovery. Winslow Elevator & Mach. Co. v. Hoffman, 17: 1130, 69 Atl. 394, 107 Md. 621. (Annotated) Agreement to give legacy. 111. Only the reasonable value of the services can be recovered under an agree- ment ia consideration of past services, to give the promisee a legacy of a specified amount. Murtha v. Donohoo, 41:246, 136 N. W. 158, 149 Wis. 483. (Annotated) Contract to form partnership. 112. Actual losses in the form of expenses incurred and time lost may be recovered for breach of a contract to form a partnership and establish a business in a distant and sparsely settled country. Webster v. Beau, 51: 81, 137 Pac. 1013, 77 Wash. 444. (Annotated) Telephone contract. Punitive damages, see supra, 61, 62. For breach of contract as to telephone mes- sage, see infra, III. 2, b. DAMAGES, III. a, 2. 835 Evidence on question of damages, see EVI- DENCE, 1704. 113. The damages recoverable by a sub- scriber whose telephone is wrongfully re- moved after he has paid the rental are not limited, even in an action for breach of con- tract, to the amount of rent wrongfully ex- acted, but may include compensation for the inconvenience to which he is put by breach of the contract. Carmichael v. Southern Bell Teleg. & Teleph. Co. 39: 651, 72 S. E. 619, 157 N. C. 21. (Annotated) Insurance contract. Extent of recovery on policy, see INSUR- ANCE, VI. c. See also infra, 304, 305. 114. The measure of damages for wrong- ful cancelation, for alleged nonpayment of premiums, of an assessment insurance pol- icy upon the life of one who at the time of cancelation is no longer an insurable risk, is the amount of the policy, less cost of car- rying it to maturity had it remained in force, all amounts entering into the cal- culation to be calculated upon the basis of the legal rate of interest as of the date of cancelation. Mutual Reserve Fund L. Asso. v. Ferrenbach, 7: 1163, 144 Fed. 342, 75 C. C. A. 304. . (Annotated) 115. The amount of premiums paid, with interest, is not the measure of damages for the wrongful cancelation for alleged non- payment of premiums of a life-insurance policy issvied on the assessment plan. Mu- tual Reserve Fund L. Asso. v. Ferrenbach, 7: 1163, 144 Fed. 342, 75 C. C. A. 304. (Annotated) Building contract. 116. The measure of damages in case of substantial performance only, of a building contract, is the reasonable cost of remedy- ing the defects which can be practicably remedied so as to make the structure ex- actly conform to the agreement, and the difference between the value of the structure so completed and one like the building agreed upon. Foeller v. Heintz, 24: 327, 118 N. W. 543, 137 Wis. 169. 117. In an action of quantum meruit for the value of labor and materials furnished upon a building contract upon the owner's wrongful termination of it, the rule for measuring damages is the value of the la- bor and materials furnished; and the rule allowing the total of what the contractor would have received under the contract, less what it cost to complete the building, de- ducting any payments already made, is not applicable. Valente v. Weinberg, 13: 448, 67 Atl. 369, 80 Conn. 134. 118. The measure of damages for defects in the construction work of buildings sub- stantially completed according to the plans and specifications is the cost of repairing the defects, and not the difference in value of the building as constructed and what it would have been if constructed strictly ac- cording to the plans and specifications. Graves v. Allert & Fuess, 39: 591, 142 S. W. 869, 104 Tex. 614. (Annotated) 119. That the erection of a building on a lot does not increase the value of the Digest 1-52 L.R.A.(N.S.) property to the extent of the cost of the building will not prevent the contractor from holding the owner responsible for such cost, in case the parties do not agree as to the contract price, so that the amount to be paid is left to implication of lav.. Vickery v. Ritchie, 26: 810, 88 N. E. 835, 202 Mass. 247. Not to engage in business. Stipulated damages, see infra, 231. 120. The measure of damages for breach of a contract not to compete with one pur- chasing a business and good will is the in- jury which the buyer has sustained which may include loss of profits and diminution in value of the property purchased. Brad- ford v. Montgomery Furniture Co. 9: 979, 92 S. W. 1104, 115 Tenn. 610. To supply water. 121. The damages for breach of contract to supply water for irrigating unbroken prairie land is the difference in the rental value of the land with and without water, and not the value of what might have been raised on the land had water been supplied. Wade v. Belmont Irrigating Canal & W. P. Co. 31: 743, 128 N. W. 514, 87' Neb. 732. ( Annotated ) 122. The measure of damages for breach of contract to furnish water to irrigate growing crops so that they become worth- less is the value of the crops on the market at maturity, less the cost necessary to put them in condition for and upon the closest market. Smith v. Hickg, 19: 938, 98 Pac. 138, 14 N. M. 560. (Annotated) 2. On "bonds. (See also same heading in Digest L.R.A. 1-70.) Duty to give bond to dissolve wrongful at- tachment and minimize damages, see supra, 29> Punitive damages, see supra, 30, 31. Presumption as to damages on bond, see EVIDENCE, 656. Right to damages on injunction bond, see INJUNCTION, 432-434, 436-440. 123. The penalty named in a marshal's bond is not the limit of the surety's liabil- ity under a statute providing that the re- covery against principal and surety for the defaults of the marshal shall not be limited to the amount of the penalty named in the bond. Growbarger v. United States Fidel- ity & G. Co. u : 758, 102 S. W. 873, 126 Ky. 118. 124. The liability of a surety on a liquor bond is limited to the penalty specified therein, although the statute provides that the principal and sureties shall be jointly and severally liable with the person selling the liquor, and that plaintiff shall have a right to recover actual and exemplary dam- ages. Merrinane v. Miller, 25: 585, 118 N. W. 11, 122 N. W. 82, 157 Mich. 279. 836 DAMAGES, III. a, 3. 3. As to real property. (See also same heading in Digest L.R.A. 1-10.) Stipulated damages, see infra, 219. For fraud in sale or exchange of, see infra, 325-329. 125. Upon failure of a party to an ex- change of lands to comply with his agree- ment to construct buildings on the property conveyed by him, the other party is entitled to recover as damages the value of the build- ings which were to be erected, with interest. Braddy v. Elliott, 16: 1121, 60 S. E. 507, 146 N. C. 578. Contract to devise lands. 126. The cause of action for breach of contract to devise land in consideration of services rendered arises upon breach, and recovery may be had for the value of all the services, although part were rendered beyond the statutory limitation period prior to the breach. Goodloe v. Goodloe, 6: 703, 92 S. W. 767, 116 Tenn. 252. ( Annotated ) Contract to convey. Liqviidated damages, see infra, 217, 218. Admissibility of evidence on question of, see EVIDENCE, 787. 127. The true measure of damages arising from the refusal of a purchaser of land under an executory contract of sale to per- form his agreement is the difference between the contract price ana the market value of the land at the time of the breach. Cow- drey v. Greenlee. 8: 137, 55 S. E. 918, 126 Ga. 786. 128. The measure of damages for the breach by a vendor of an executory contract for the conveyance of real estate, where the breach is caused either by the refusal or the inability of the vendor, acting in good faith, is the difference between the value of the land at the time of the breach, and the con- tract price; and, in addition, the purchaser may recover an amount advanced upon the contract price. Beck v. Staats, 16: 768, 114 N. W. 633, 80 Neb. 482. (Annotated) 129. The measure of damages in an ac- tion by a grantee whose unrecorded title has been destroyed by a subsequent con- veyance by the original grantor of the same land to an innocent purchaser, and the recording of the subsequent deed, is the value of the land at the time he lost title thereto, less the taxes thereon and the amount received by him from the second grantee for a deed of the land executed subsequent to the loss of title, but prior to the bringing of the action for such loss. Hilligas v. Runs, 26: 284, 124 N. W. 925, 86 Neb. 68. 130. Where one who has made a parol contract to convey real estate has received the consideration for his promise, the value of the land may be given to the other con- tracting party as damages for its breach. Doty v. Doty, 2: 713, 80 S. W. 803, 118 Ky. 204. (Annotated) Digest 1-52 !L.R.A.(N.S.) Breach of covenants. Nominal damages, see supra, 1. Loss of profits, see infra, 689. Mitigation of damages, see infra, 713. See also supra, 102; infra, 145-150, 708, 70'J. 131. The rental value of the property dur- ing the time the purchaser is kept out of possession is the measure of damages for breach of covenant in a deed of real es- tate, consisting of an outstanding lease. Browne v. Taylor, 4: 309, 88 S. W. 933, 115 Tenn. 1. 132. The measure of damages for breach of covenant in a deed of real estate, con- sisting of an outstanding lease which pre- vents the grantee from obtaining immediate possession of the property, will not include the special damages resulting from inabil- ity to make a contemplated subdivision of the property, although the grantor had knowledge of such intended use of the property, where the subdivision could not have been perfected before the time for the expiration of the lease had possession been secured, because the connecting streets had not been opened to the property. Browne v. Taylor, 4: 309, 88 S. W. 933, 115 Tenn. 1. 133. The damages for a breach of war- ranty in the sale of real estate by one hav- ing notice that the purchaser desires im- mediate possession, which consists of an uri- expired lease with tenant in possession, will not include the loss occasioned by the pre- mature dismantling of the power plant of his factory by the purchaser, which he in- tends to install on the property purchased, if the vendor had no notice that he intended to effect such dismantling until he had se- cured possession. Beutel v. American Mach. Co. 35: 779, 137 S. W. 799, 144 Ky. 57. (Annotated) 134. The measure of damages for misrep- resentation, in the sale of a parcel of land, of the existence of a public alley, where a covenant of the existence of a private right of way is implied from the conveyance, is the difference between the value of the property with the private right of way and what it would be had the public alley ex- isted. Talbert v. Mason, 14: 878, 113 N. W. 918, 136 Iowa. 373. 135. The ordinary measure of damages on breach of the covenants of a warranty deed is the consideration paid, with interest, to gether with costs and expenses, including an attorney's fee, reasonably and in good faith incurred in defending title and resist- ing the eviction. Brooks v. Mohl, 17: 1195, 116 N. W. 931, 104 Minn. 404. 136. If a covenantee who has been com- pelled to purchase an outstanding para- mount title has been actually deprived of part only of the subject of his bargain, the damages recoverable by him in an action for breach of covenant must correspond. Brooks v. Mohl, 17: 1195, 116 N. W. 931, 104 Minn. 404. 137. If a covenantee buys an outstanding paramount title under which he has been evicted, the measure of damages recoverable DAMAGES, III. a, 3. 837 by him in an action for breach of covenant is the amount paid for such title, and inter- est, provided the sum does not exceed the consideration money and interest. Brooks v. Mohl, 17: 1195, 116 N. W. 931, 104 Minn. 404. 138. In an action for damages for breach of covenant of title, the grantee cannot re- cover the value of improvements made upon the premises, where by statute he cannot be deprived of the land without payment for the improvements; but his measure of damages is the value of the outstanding title at the time he obtained his deed, or that interest in the land of which he might be deprived through the outstanding title. Webb v. Wheeler, 17: 1178, 114 N. W. 636, 80 Neb. 438. 139. The measure of damages to be adopt- ed where a vendor having a good and perfect title conveys the property with covenants of warranty and for peaceable and quiet pos- session, and thereafter deeds the same prop- erty to another purchaser, and the latter places his deed of record prior to the record- ing of the first conveyance, and thereby takes the paramount title and right of posses- sion, and the vendee is evicted, and sues his vendor for damages for breach of the cov- enant, is the same as in cases where the ven- dor has contracted and agreed to convey, and thereafter, having good title and right to convey, declines and refuses to do so, that is adequate compensation for the ac- tual injury sustained, including such rea- sonable attorneys' fees as were necessarily expended by the prior vendee in an endeavor to sustain his title and right of possession. Madden v. Caldwell Land Co. 21: 332, 100 Pac. 358, 16 Idaho, 59. 140. Where a vendor having a good and perfect title conveys the property with cov- enants of warranty and for peaceable and quiet possession, and thereafter deeds the same to another purchaser, and the latter places his deed of record prior to the record- ing of the first conveyance, and thereby takes the paramount title and right of pos- session, and the vendee is evicted by a court of competent jurisdiction, and sues his ven- dor for damages for breach of the covenants, the evicted vendee is entitled to fix the amount of damages sustained as of the date on which he learned of the subsequent con- veyance and of the prior record of the latter deed. Madden v. Caldwell Land Co. 21: 332, 100 Pac. 358, 16 Idaho, 59. 141. In case of the failure of a vendor's title to a particular portion of the land granted, the amount to be abated from the purchase price on account thereof is not ascertained by the average price per acre for the whole tract, but is the relative value of the land lost. Smith v. White, 48: 623, 78 S. E. 378, 71 W. Va. 639. 142. One who has warranted title to real estate is not, in case the covenantee is evict- ed, liable for the counsel fee expended in de- fending the suit which resulted in the evic- tion. Morgan v. Haley, 13: 732, 58 S. E. 564, 107 Va. 331. 143. The measure of damages for breach Digest 1-52 L.R.A.(N.S.) of a covenant against encumbrances by a permanent irremovable easement is the dif- ference between market value of the land subject to the easement, and its market value if an easement did not exist. Smith v. White, 48: 623, 78 S. E. 378, 71 W. Va. 639. Breach of lessor's contract. Preventing unnecessary amount, see supra, 20-22. Loss of profits, see infra, 689. Necessity of recovering damages in single action, see ACTION OK SUIT, 90. 144. For breach of a contract to lease lands and tenements the measure of dam- ages is generally the difference between the stipulated rent and the value of the use of the premises; though, under special circum- stances, damages may also be recovered for losses that are the natural, direct, and necessary consequence of the breach, when they are capable of being estimated by re- liable data. Moses v. Autuono, 20: 350, 47 So. 925, 56 Fla. 499. 145. The damages to be allowed for breach by a lessor of his implied covenant to place the tenant in possession is the difference between the rent agreed upon and the mar- ket value of the term plus any special dam- ages alleged and proved. Sloan v. Hart, 21: 239, 63 S. E. 1037, 150 N. C. 269. 146. The damages recoverable for a breach of the implied covenant in a lease that the demised premises shall be open to entry by the lessee at the time fixed for the com- mencement of the term is the difference be- tween the rental value of the premises and the rent reserved in the lease, together with such special damages as the lessee pleads and proves to have necessarily resulted from the breach of the agreement. Her- polsheimer v. Christopher, 9: 1127, 111 N. W. 359, 76 Neb. 352. 147. A tender of possession of the prem- ises, made by a lessor to the lessee a short time after the date on which he was, by the terms of the lease, entitled thereto, the sit- uation of the lessee then being such as to enable him to accept the same without seri- ous inconvenience or detriment, will limit the recovery of general damages for breach of the covenant for quiet enjoyment to the period intervening between the date on which possession should have been given and the date of the tender. Huntington Easy Payment Co. v. Parsons, 9: 1130, 57 S. E. 253, 62 W. Va. 26. 148. The damages for breach of covenant to renew a lease of property used for and best adapted to the purposes of a hotel is the difference between the agreed rent and the value of the property for such use for the agreed term. Neal v. Jefferson, 41: 387, 99 N. E. 334, 212 Mass. 517. 149. The general rule that, on the breach of the covenant by the landlord to make re- pairs, the measure of damages is the dif- ference between the rental value of the premises as they were, and what it would have been if they had been put and kept in repair, will not preclude a tenant from re- covering damages for injury to goods in a 838 DAMAGES, III. a, 4. storeroom on the leased premises, due to rain leaking through the roof, which the landlord had agreed and attempted to re- pair, where the extent of the damage is shown with reasonable certainty. Miller v. Sullivan, 16: 737, 94 Pac. 266, 77 Kan. 252. 150. The measure of damages for breach of a covenant by a landlord to repair is the cost of the repairs, where they are not expensive in comparison with the rent. Young v. Berman, 34: 977, 131 S. W. 62, 96 Ark. 78. 151. A landlord who wrongfully evicts a tenant during the term is liable for neces- sary loss of time on account of the removal. Wade v. Herndl, 5: 855, 107 N. W. 4, 127 Wis. 544. 152. The expense of removing from a building because of a wrongful constructive eviction on the part of the landlord cannot be denied to the tenant on the theory that a like expense would have been necessary had the removal occurred at the expiration of the term. Wade v. Herndl, 5: 855, 107 N. W. 4, 127 Wis. 544. 153. In determining the damages to be awarded a tenant cropping on shares who is wrongfully expelled from the property be- fore the crop is matured, from the value of his share of the matured crop must be de- ducted such sums as he and the members of his family turned out of employment could, by reasonable diligence, have earned else- where during the remainder of the cropping period, as well as the actual sums which he would have been compelled to expend for labor and other items in bringing the crop to maturity and harvesting it, but not neces- sarily what it cost the landlord to mature and harvest the crop. Crews v. Cortez, 38: 713, 113 S. W. 523, 102 Tex. 111. (Annotated) 154. In an action for rent by a landlord against his tenant under a lease, the meas- ure of defendant's damages, in a cross ac- tion for failure to fence, is the difference between the rental value of the premises as they were and what they would have been if repaired as covenanted in the lease, tak- ing into consideration the purposes for which they were to be used. Partridge v. Dykins, 34: 984, 113 Pac. 928, 28 Okla. 54. Breach of lessee's contract. 155. The measure of damages for failure to take possession according to agreement of a building which one agrees to erect for another's use and lease to him is the dif- ference between the amount stipulated in the contract as rent, and the sum for which the premises would rent to other parties during the stipulated term, plus such spe- cial damages as the lessor may plead and prove to have necessarily resulted from the breach of agreement. Oldfield v. Angeles Brewing & Malting Co. 35: 426, 113 Pac. 630, 62 Wash. 260. 156. The measure of damages for breach of covenant by a tenant to leave the prem- ises in as good condition as when he entered upon them and free from burrs, by permit- ting them to become infested with burrs, is the difference in rental value of the prem- Digest 1-52 L.R.A.(N.S.) ises in the condition required by the cove- nant and as surrendered, for such time as, by reasonable and proper methods, the agreed condition can be restored, together with the cost of the additional labor, and the expense involved in effecting that re- sult, where the premises are intended for rent, and not for sale. Brown Land Co. v. Lehman, 12: 88, 112 N. W. 185, 134 Iowa, 712. (Annotated) 157. The damages for breach by a lessee of its agreement to carry out the lessor's contract for supplies is the amount of the judgment which the contractor recovers against the lessor in an action for breacli of the contract, of which the lessee had notice together with the costs and reasonable at- torneys' fees incurred in resisting the re- covery, at least, where the lessee covenant- ed to save the lessor harmless from any damages which might be recovered against it because of the lessee's default, and the lessor undertook to notify the lessee of any cause of action for which the lessee would be liable, and tender defense of the action to the lessee. Atlantic & N. C. R. Co. v. Atlantic & N. C. Co. 23: 223, 61 S. E. 185, 147 N. C. 368. 158. The measure of damages in an action brought after expiration of the term for breach of covenant by a tenant to keep the premises in repair is the cost of putting them into repair. Appleton v. Marx, 16: 210, 83 N. E. 563, 191 N. Y. 81. (Annotated) 159. The damages for breach by a tenant of his covenant not to remove straw from the premises is the injury to the land by reason of the fact that the straw was re- moved, instead of being consumed on the property. Munier v. Zachary, 18: 572, 114 N. W. 525, 138 Iowa, 219. 160. The measure of damages recoverable by a lessor against the lessee for hauling away manure from a leased farm, instead of hauling and spreading it upon the farm, as stipulated in the lease, is the reasonable cost or value of the manure spread as agreed. Sassen v. Haegle, 52: 1176, 147 N. W. 445, 125 Minn. 441. 161. The measure of damages for fail- ure to develop property held under an oil and gas lease which provides a rental of $50 per year from each well from which gas is marketed is that amount per year for each well from the time it ought to have been drilled. Howerton v. Kansas Natural Gas Co. 34: 34, 106 Pac. 47, 81 Kan. 553. 4. Sales of personalty; warranty. a. Seller's failure to deliver. (See also same heading in Digest L.R.A.. 1-10.) Preventing unnecessary amount, see supra, 23. Fraud in making sale, see infra, 330. Recovery for loss of profits, see infra, 697- 700, 702, 703. DAMAGES, III. a, 4. 839 Provision in contract of sale that accept- ance shall waive claim for damages for delay, see CONTRACTS, 74. Premature breach of contract so as to fix time for computation of damages, see CONTRACTS, 695. Acceptance of article as waiver of, see SALE, 53, 67. 162. Venders who have repudiated their contract to sell chattels cannot object to the computation of the buyer's damages on the theory that the contract was executory, and title had not passed to the buyer. Driggs v. Bus \ 15: 654, 115 N. W. 985, 152 Mich. 53. 163. The precise day when a contract for delivery of malt was broken is immaterial upon the question of damages, where the evidence shows that at nc time between the disputed dates did the price go below that allowed by the jury. Mount Vernon Brew- ing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. 164. A lessor cannot make the loss of rent a ground for special damages for failing to comply with a contract to supply furnish- ings for the leasehold within a specified time without showing a valid contract ex- empting the lessee from liability for the rent during the period of delay. America Theater Co. v. Siegel, C. & Co. 4: 1167, 77 N. E. 588, 221 111. 145. 165. The damages to be awarded to one who has contracted to drive entries in a mine, because of the failure of the other contracting party to perform his agreement to furnish the pumps, piping, and tools nec- essary to keep the mine free from water, which might be procured at small cost, is the cost of such appliances, and not the cost of the labor of bailing entailed by failure to provide them. Stonega Coke & Coal Co. v. Addington, 37: 969," 73 S. E. 257. 112 Va. 807. 166. The measure of damages for refusal to ship a car load of shingles according to contract is the difference between the con- 4 tract price and their value at the date of the seller's refusal to comply with a de- mand for performance. R. J. Menz Lumber Co. v. E. J. McNeeley & Co. 28: 1007, 108 Pac. 621, 58 Wash. 223. 167. The rental value of a cotton gin is the measure of damages for delay in com- plying with a contract to furnish machinery for the establishment of a new plant, where the operation of the gin depends on the machinery, which fact is fully explained to the seiler when the contract is made, and the failure to comply with the contract pre- vents the operation of the gin. Standard Supply Co. v. Carter, 19: 155, 62 S. E. 150, 81 S. C. 181. (Annotated) Goods not maintainable elsewhere. 168. The measure of damages for failure to deliver food shipped to supply the needs of cattle which are being fattened for mar- ket is the injury thereby caused to the cat- tle, where no other supply is obtainable. Bourland v. Choctavv. 0. & G. R. Co. 3: mi, 90 S. W. 483, 99 Tex. 407. Digest 1-52 I,.R.A.(N.S.) Articles purchased with intent to re- sell. 169. The measure of damages for failure to deliver lumber which, to the knowledge of the vendor, was purchased for resale, where the vendee, using reasonable care and diligence, purchased the best substitute obtainable in order to fulfil his subcontract of sale, is the difference between the contract price and the price paid for the substitute, plus the cost of shipment to the place of delivery, where there was no market at the time and place of delivery and the ven- dee in purchasing the substitute resorted to the nearest available market. Hard- wood Lumber Co. v. Adam, 32: 192, 68 S. E. 725, 134 Ga. 821. 170. Failure by one who has contracted to furnish machinery for a building, and who is required to purchase it from a man- ufacturer, to insert in his contract with the latter a stipulation for payment of dam- ages to which he will be subjected by a failure to furnish it within a specified time, will not prevent his holding the manufac- turer liable therefor if the fact that such damages would follow delay in delivery is known to the manufacturer when the con- tract is made. Iowa Mfg. Co. v. Sturtevant Mfg. Co. 18: 575, 162 Fed. 460, 89 C. C. A. 346. (Annotated) 171. The intention of a contractor for state work, who has been compelled to pay liquidated damages for a failure to com- plete his work on time, to apply to the leg- islature for a return of the amount, does not prevent his recovering the amount from a manufacturer whose breach of contract to furnish necessary material on time caused the delay which subjected him to the loss. Iowa Mfg. Co. v. Sturtevant Mfg. Co. 18: 575, 162 Fed. 460, 89 C. C. A. 346. 172. A materialman who, knowing of a provision for penalty in case the contractor fails to complete a building in time, delays the completion of the building by refusal to comply with his contract to furnish ma- terial, cannot avoid liability to reimburse the contractor to the amount of penalty paid, on the theory that the amount of it was a large fraction of the value of the material to be furnished, and greatly ex- ceeded the profit which could have been made on the contract, and therefore could not have been within the contemplation of the parties. Campfield v. Sauer, 38: 837, 189 Fed. 576, 111 C. C. A. 14. b. Buyer's failure to complete pur- cliase, (See also same heading in Digest L.R.A.. 1-10.) Liquidated damages, see infra, 220. Recovery for loss of profits, see infra, 705, 706. Opinion evidence as to, see EVIDENCE, 1121. Relevancy of evidence on question of, see EVIDENCE, 1706. Resale for purpose of fixing, see SALE, 117- 120. 840 DAMAGES, III. a, 4. 173. If an executory contract of sale has been broken by the vendee before the title has passed, the measure of damages in an ac- tion by the vendor is the difference between the contract price and the value of the prop- erty. Acme Food Co. v. Older, 17: 807, 61 S. E. 235, 64 W. Va. 255. 174. In an action brought by the payee against the maker of a negotiable note giv- en in consideration of an executory contract for the sale of goods, under which title to the property did not pass, the recovery, in case of the vendee's refusal to accept the goods, is limited to the difference between the contract j-rice and the value of the prop- erty at the time and place at which it was when the contract was broken. Acme Food Co. v. Older, 17: 807, 61 S. E. 235, 64 W. Va. 255. 175. The measure of damages arising from the refusal of a purchaser of personal prop- erty to execute notes for the purchase price is the contract price for which the notes were to be given. Kelly v. Pierce, 12: 180, 112 N. W. 995, 16 N. D. 234. 176. The damages for breach of contract to purchase cattle at or about a certain date are the difference between the contract price and their market value at the place of delivery at the time for performance. Bell v. Hatfield, 2: 529, 89 S. W. 544, 121 Ky. 560. 177. The damages for breach of a con- tract to purchase a quantity of material to be delivered in instalments is, in addition to what may be due at the time of breach, the aggregate of the differences between the market and contract prices of the respective instalments at the time they should have been delivered. Alpha Portland Cement Co. v. Oliver, 38: 416, 140 S. W. 595, 125 Tenn. 135. 178. The measure of damages for breach of a contract to purchase a specifically des- ignated mortgage within sixty days after its delivery by the mortgagor to the mort- gagee is the price, and not the difference between the price and the market value of the mortgage, since the title passes when the contract is made. Henderson v. Jen- nings, 30: 827, 77 Atl. 453, 228 Pa. 188. Manufactured articles. See also infra, 705, 700. 179. The measure of damages for refusal to take an article manufactured to order is the contract price, with interest from the time when delivery should have been ac- cepted under the contract, if the maker elects to hold the article for the purchaser. Bond v. Bourk, 43: 97, 129 Pac. 223, 54 Colo. 51. 180. The damages for refusal to comply with a contract to purchase ties to be manu- factured is the difference between the con- tract and the market price, where the evi- dence shows that the contract price was in excess of that at which the manufacturer could purchase and deliver ties at the point of delivery called for by the contract. Louisville & 1ST. R. Co. v. Coyle, 8: 433, 97 S. W. 772, 123 Ky. 854. 181. The damages for failure to take ties Digest 1-52 I/.R.A.(N.S.) according to contract, where there is no purchaser near the place of delivery except the contracting party, so that there is no market value for them, may be fixed by the difference between the contract price and what the owner is compelled to sell them for. Louisville & N. R. Co. v. Coyle, 8: 433, 97 S. W. 772, 123 Ky. 854. 182. The measure of damages for cancela- tion, after the work is partially done, of an order for a machine to be constructed in such form that there is no market in which it can be readily sold, is, where the material is used for other purposes, the difference be- tween the actual cost of manufacturing and delivering it and the contract price. Ridge- way Dynamo & E. Co. v. Pennsylvania Ce- ment Co. 18: 613, 70 Atl. 557, 221 Pa. 160. (Annotated) c. Breach of warranty. (See also same heading in Digest L.R.A. 1-10.) Recovery for loss of profits, see infra, 696, 701, 704. 183. Recovery by a merchant of damages for delivery of a consignment of merchan- dise of a quality inferior to that contracted for is not prevented by the fact that be- cause of an advance in the market price it is disposed of at a profit. Ellison v. John- son, 5: 1151, 54 S. E. 202, 74 S. C. 202. (Annotated) 184. The measure of damages for filling an order of merchandise to be resold with articles inferior in quality to those con- tracted for is the difference in value between those delivered and those agreed to be de- livered, at the time and place of delivery. Ellison v. Johnson, 5: 1151, 54 S. E. 202, 74 S. C. 202. 185. For breach of warranty that material used in manufacture will not ignite in the ordinary course of manufacture so as to cause a conflagration in the shop and a de- struction of property, the result of which is such conflagration, a rule of damages more liberal than the difference' between the value of the material delivered and that called for by the contract must prevail. Leavitt v. The Fiberloid Co. 15:855, 82 N. E. 682, 196 Mass. 440. 186. A manufacturer of a composition ma- terial used in making combs, who, in filling an order for the material by name, delivered an article of inferior quality, liable to burst into flame in the ordinary process of work- ing it, which fact is not discoverable by in- spection, may, under his implied warranty of quality, be liable to indemnify the pur- chaser for loss by fire caused by the ignition of the material during ordinary, careful, and prudent methods of using it, if such loss should have been reasonably anticipated. Leavitt v. The Fiberloid Co. 15: 855, 82 N. E. 682, 196 Mass. 440. 187. The damages for breach of warranty that strawberry plants, which do not bear the first year, are true to name, are the DAMAGES, III. a, 4. 841 difference between the value of the crop pro- duced the first bearing year, and what it would have been had the plants been as war- ranted, plus the cost of replacing the plants and of cultivating them during the nonboar- ing year. Smeltzer v. Tippin, 49: 1156, 100 S. \V. 221, 109 Ark. 275. 188. The damages for breach of a war- ranty in the sale of horses which prove to be worthless is the loss to the vendee of the value of the horses in the condition warranted by the vender when sold. Wig- gins v. Jackson, 43: 153, 121 Pac. 662, 31 Okla. 292. 189. Where, upon the purchase of a team of horses, the purchaser states that the horses are desired for the purpose of culti- vating a cotton crop, and the vender guarantees the horses sound and in good health and capable of rendering the services for which they are desired, and it after- wards develops that the horses are un- sound and by reason thereof a part of the land remains uncultivated, in the absence of notice of rentals to the vender, such rentals on the uncultivated land constitute no element of the damages for breach of such warranty. Wiggins v. Jackson, 43: 153, 121 Pac. 662, 31 Okla. 292. 190. One whose business is injured by at- tempting to sell goods which he purchased under a false representation as to their quality may, upon repudiating his purchase, hold the seller liable for the special dam- ages thereby inflicted upon him. American Pure Food Co. v. Elliott, 31: 910, 66 S. E. 451. 151 N. C. 393. (Annotated) 191. Damages for loss of time, expenses, and attorneys' fees incurred in preparing a defense to an action on a promissory note for the purchase price of a threshing ma- chine, which action was afterwards dis- missed by plaintiff, with prejudice, upon payment of all legal costs, cannot be recov- ered in an action for breach of warranty upon which the machine was purchased, no malice, want of probable cause, or bad faith having been alleged, since the dismissed suit, and not the breach of warranty, was the proximate cause of such damages. John Deere Plow Co. v. Spatz, 20: 492, 99 Pac. 221, 78 Kan. 786. 192. One is not precluded from recovering damages to which he is entitled for breach of warranty of a machine which he has pur- chased, by the fact that he also claims dam- ages to which he is not entitled. Houser & Haines Mfg. Co. v. McKay, 27: 925, 101 Pac. 894, 53 Wash. 337. 193. One who rescinds a purchase of a harvesting machine for breach of warranty cannot recover damages from the vendor for the loss he has sustained because of inabil- ity to harvest crops because of breach of the contract. Houser & Haines Mfg. Co. v. McKay, 27: 925, 101 Pac. 894, 53 Wash. 337. (Annotated) 194. The purchaser of a harvesting ma- chine may, upon rescinding the contract for Digest 1-52 L.R.A.(N.S.) breach of warranty, recover the freight which he has paid for transportation of the ma- chine from the factory to his residence. Houser & Haines Mfg. Co. v. McKay, 27: 925, 101 Pac. 894, 53 Wash. 337. 195. That plaintiff in an action for dam- ages for breach of warranty of a machine purchased for resale alleges loss of a sale does not confine his right to recover to the question of his diligence with respect to such sale, if he also alleges that the ma- chine was wholly unsalable, useless, and without value. Loxterkamp v. Lininger Im- plement Co. 33: 501, 125 N. W. 830, 147 Iowa, 29. 196. In an action to recover the purchase price of steel pipe bands, many of which contained latent defects which caused them to break when an attempt was made to use them, the purchaser is entitled to recover under a counterclaim, as damages natural- ly arising from the vendor's breach of con- tract, the expense of hauling the bands which were defective from the railroad station to which they were sent under the contract to the place of their use, a few miles distant, of loading, unloading, dis- tributing, gathering, counting, painting, and of placing them upon, and of taking them off, the pipes when broken; but damages on account of delays, loss of time, trouble, and extra work of superintendence are too re- mote and speculative for allowance. Mc- Donald v. Kansas City Bolt & Nut Co. 8: 1 1 10, 149 Fed. 360, 79 C. C. A. 298. 197. The wages and board of a gang of men rendered idle in consequence of a breach of contract to furnish an efficient boiler and engine for a sawmill are re- coverable by way of damages for such breach where the purchaser kept them ready to proceed with his work in reliance upon the seller's statement that the engine would be put in repair and returned to him in a few days. Corbin v. Thompson, 2 B. R. C. 70, 39 Can. S. C. 575. 198. Ordinarily, as in the absence of a promise to repair immediately, the measure of damages recoverable for breach of war- ranty of the fitness of an engine for service is the sum for which another engine might have been hired while the first was being repaired. Corbin v. Thompson, 2 B. R. C. 70, 39 C. S. C. 575. Defects causing persona,! injuries. 199. Loss of the society and services of his wife, who died in consequence of eating tinned salmon sold by defendant, is an ele- ment of damages recoverable by a husband in an action for breach of an implied war- ranty that the salmon so sold was fit for human food, since the death of the wife is not an essential part of the cause of action, but only an element in ascertaining the damages arising therefrom. Jackson v. Watson, 3 B. R. C. 182, [1909] 2 K. B. 193. Also Reported in 78 L. J. K. B. N. S. 587, 100 L. T. N. S. 799, 25 Times L. R. 454, 53 Sol. Jo. 447. (Annotated) 842 DAMAGES, III. a, 5, 6. 5. Of employment. (See also same heading in Digest L.R.A 1-10.) Loss of profits from breach, see infra, 682- 085. Time for which damages recoverable, see infra, 707. 200. The damages for breach of a contract of employment are not limited to the wages which have accrued at the time of trial in the nisi prius court. Webb v. Depew, 16: 813, 116 N. W. 560, 152 Mich. 698. 201. The measure of damages for the wrongful discharge of a servant is the amount which the servant would have earned had he been permitted to perform the service, less what he had received or could have earned from other employment. Smith v. Cashie & C. R. & Lumber Co. 5: 439, 54 S. E. 788, 142 N. C. 26. (Annotated) 202.. A corporation is not liable in dam- ages for the improper termination by it, as principal, of an agency contract, beyond the period for which it was organized, where no definite period was fixed by the contract itself, and no offer was made to show that the corporation intended to extend its arti- ficial existence beyond such period. Newhall v. Journal Printing Co. 20: 899, 117 N. W. 228, 105 Minn. 44. 203. The damages to be awarded for breach of a contract to employ a tax ferret for a share of the penalty provided by stat- ute for omission of the property cannot be ascertained until delinquent taxes are col- lected, where the statute provides that the officers placing unlisted property on the list shall be entitled to a share of the penalty to be paid at such times as the tax is col- lected on the assessment. Pierson v. Minne- haha County, 38: 261, 134 N. W. 212, 28 S. D. 534. 204. The damages for wrongfuly dis- charging an architect who had undertaken to draw plans for and superintend the con- struction of a building for a percentage of its cost are the difference between the con- tract price and what it would have cost them to complete their undertaking at tlie time of their discharge. Gould v. McCor- mick, 47: 765, 134 Pac. 676, 75 Wash. 61. 205. The measure of damages which one who has given notes for the implements and good will of another's business and his agreement to render for a certain time per- sonal services in the business is entitled to counterclaim against his liability on the notes in case of the death of the other per- son before the services were rendered, is t:ie difference between the value of the contract made with him and that which could have been made with another person equally skilled and competent. Mendenhall v. Davis, 21:914, 100 Pac. 336, 52 Wash. 169. 206. Where a servant is wrongfully dis- missed from his employment, the damages for the dismissal cannot include compensa- tion for the manner of dismissal, for his injured feelings, or for the loss he may sus- Digest 1-52 L.R.A. (N.S.) tain from the fact that the dismissal of it- self makes it more dilficult for him to ob- tain fresh employment. Addis v. Gramo- phone Co. Ltd. 3 B. R. C. 98, [1909] A. C. 488. Also Reported in 78 L. J. K. B. N. S. 1122, 101 L. T. N. S. 466. 207. Commissions on sales which there is reasonable ground to think might have been effected during the unexpired portion of the term, are not too vague or conjectural to be taken into consideration in assessing damages for the unlawful termination of a contract of employment, where there is a sufficient evidentiary basis for their assess- ment. Laishley v. Goold Bicycle Co. 1 B. R. C. 115, (1903) 6 Ont. L. Rep. 319. Also Reported in 23 Canadian Law Times, Occ. N. 304, 2 Ont. Rep. Week. 780. ( Annotated ) 6. To advance money; nonpayment of, or failure to collect, checks. (See also same heading in Digest L.R.A. 1-10.) To advance money. Allowing for loss of profits, see infra, 691. 208. Losses directly incurred as well as gains prevented, may furnish a legitimate basis for compensation to the party injured by repudiation of a contract to loan money. Holt v. United Security L. Ins. & T. Co. (N. J. Err. & App.) 21:691, 72 Atl. 301, 76 N. J. L. 585. 209. Where the profits prevented by re- pudiation of an agreement to loan money cannot be recovered, by reason of the want of definite proof, expenditures fairly in- curred by the injured party in preparation for performance, or in part performance of the agreement, form a proper subject for consideration, where the party injured, while relying upon his contract, makes the expenditures in anticipation of the advan- tages that will come to him from completed performance. Holt v. United Security L. Ins. & T. Co. (N. J. Err. & App.) 21:691, 72 Atl. 301, 76 N. J. L. 585. 210. The damages to be awarded for breach of a contract to lend money to re- place a milldam cannot include the amount advanced by the disappointed party to carry on the work, where the contract provided for use of his money only in the event that the money to be advanced under the con- tract proved insufficient to complete the work. Bixby-Theison Lumber Co. v. Evans, 29: 194, 52 So. 843, 167 Ala. 431. 211. For breach, after the disappointed party has entered upon the work of tear- ing out the old dam, of a contract to lend money to replace a milldam and furnish logs to be sawed in the mill, the value of the service to be applied in satisfaction of the loan, damages may be recovered which will make him whole, without the necessity of his showing that he could not have ob- tained the money from any other source. Bixby-Theison Lumber Co. v. Evans, 29: 194, 52 So. 843, 167 Ala. 431. (Annotated) DAMAGES, III. a, 7. 843 Nonpayment of checks. Prejudicial error in instruction as to, see APPEAL AND EKROR, 1360. 212. The damages recoverable in a suit brought by a customer against a bank for the wrongful dishonor of his check are such temperate damages as would be reasonable compensation for the injury. Hilton v. Jesup Bkg. Co. ii : 224, 57 S. E. 78, 128 Ga. 30. Failure to collect check. 213. Credit, to the depositor, of a check received for collection, followed by negli- gence in making the collection, so that the rights on the paper are lost, does not make the bank liable for the face of the paper, but only for the amount lost through the neglect. Jefferson County Sav. Bank v. Hendrix, 1:246, 39 So. 295, 147 Ala. 670. (Annotated) 214. The measure of damages for the neg- ligence of a bank in attempting to collect a check and in giving notice of dishonor is the actual loss sustained, which the plain- tiff must allege and prove; and even under the doctrine of full prima facie liability the bank cannot be held for the face value of the check when there are assets of the bank- rupt bank on which it is drawn, and a 44 per cent dividend has been declared, and the payee is still the owner of the check. Hendrix v. Jefferson County Sav. Bank, 14: 686, 45 So. 136, 153 Ala. 636. 7. Liquidated damages. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to in- tent of parties, see EVIDENCE, 226. Waiver by landlord of right to retain de- posit by tenant as liquidated damages, see LANDLORD AND TENANT, 106. Effect of provision for, on right to specific performance, see SPECIFIC PERFORM- ANCE, 6, 85, 107, 108. Tender of, see TENDER, 22. 215. A deposit by one leasing for a five- year period, of two months' rent to indem- nify the lessor against any loss or dam- age which he may sustain by reason of any violation of the contract by the lessee, as liquidated damages, may be retained by the lessor in case he is compelled to evict the tenant for nonpayment of rent, although he acts immediately upon the default, so that the deposit more than equals the rent due and unpaid. Barrett v. Monro, 40: 763, 124 Pac. 369, 69 Wash. 229. 216. The provision in a contract for the payment of the purchase price of real es- tate in instalments, with interest, that in case all instalments are paid on or before maturity interest will be remitted, does not render the provision for interest a penalty, and therefore the purchaser is not entitled to a conveyance upon paying the principal without interest, if he has not paid the in- stalments according to the contract, al- t-.^ugh the delays were only slight and of Digest 1-52 L.R.A.(N.S.) little importance. Wrenn v. University Land Co. 46: 897, 133 Pac. 627, 65 Or. 432. (Annotated) 217. A stipulation in a contract for the exchange of several parcels of real estate for the payment of $500 as liquidated dam- ages in case of breach will be regarded as a provision for stipulated damages, and not for a penalty, since the damages to be suffered from breach are uncertain in their nature, and the sum stipulated is not so dis- proportionate to the probable damages suf- fered as to appear unconscionable. Mad- ler v. Silverstone, 34: i, 104 Pac. 165, 55 Wash. 159. (Annotated) 218. A stipulation that, upon breach of a contract for the conveyance of land, the I measure of damages shall be a certain sum for which the party willing to comply shall have a claim which he may recover in court, will be upheld as for liquidated damages, there being no evidence that a penalty was intended, and the sum named not being dis- proportionate with the values involved in the deal, nor inconsistent with the nature of the contract or the circumstances of the transaction. Selby v. Matson, 14: 1210, 114 N. W. 609, 137 Iowa, 97. 219. Under a contract for the purchase of a mining claim, which provides for periodic payments, which, together with any other sums which may have been paid, shall be forfeited to the seller as liquidated damages in case of the purchaser's breach of contract, no recovery can be had In case the purchaser surrenders possession for the value of de- velopment work which the purchaser agreed, but failed, to do on the property. K. P. Mining Co. v. Jacobson, 4: 755, 83 Pac. 728, 30 Utah, 115. (Annotated) 220. A provision in a contract to pur- chase a large number of cattle, involving about $40,000, that failure to perform shall cause a forfeiture of the advanced payment of $3,000, which sum shall be returned in case the seller fails to deliver, in addition to paying damages caused by the shortage, is a stipulation for a penalty, and not liquidated damages. Evans v. Moseley 50: 889, 114 Pac. 374, 84 Kan. 322. (Annotated) 221. In a contract to support and main- tain one for the remainder of his life, fix- ing a sum to be paid in case of breach and denominating it a "penal sum," the amount cannot be construed to be liquidated dam- ages, when there is nothing in the nature of the case and the tenor of the agreement indicating that the parties themselves fair- ly estimated and adjusted the damages at the time of making the contract. Wilkes v. Bierne, 31: 937, 69 S. E. 366, 68 W. Va. 82. (Annotated) 222. An agreement by a man to convey real estate to his wife in case he resumes il- licit relations with his paramour, in case she condones his offense and discontinues di- vorce proceedings against him, provides for liquidated damages, and not a penalty or forfeiture. Darcey v. Darcey, 23: 886, 71 Atl. 595, 29 R. I. 384. 223. A sum provided by a contract ap- 844 DAMAGES, III. b. pointing a sales agent, which is designated | 228. A stipulation in a contract to build t _ i 11* i f cn~ At\f\ --.I.--1 .LI- liquidated damages, and is to be reserved from commissions and retained by the prin- cipal upon default of the agent, will be re- garded as liquidated damages, and not a penalty, where it is not disproportionate to the probable damages which might result from violation of the covenants, which are wholly uncertain and incapable of being readily ascertained in advance. Bilz v. Powell, 38: 847, 117 Pac. 344, 50 Colo. 482. (Annotated) 224. That a fund designated by a contract of sales agency as liquidated damages, to be retained by the employer upon default of the agent, is to be accumulated up to a specified maximum by a retention of a per- centage of commissions earned, so that it increases as the time for termination of the contract approaches, does not require a hold- ing that the sum provided is a penalty, where there was reason to anticipate that the maximum would be accumulated early in the employment. Bilz v. Powell, 38: 847, 117 Pac. 344, 50 Colo. 482. 225. A contract by one to enter the em- ploy of another as his representative for the sale of automobiles, to conduct himself in a sober and gentlemanly manner, to use his best efforts to make sales, and to give his whole time and energy to the business, does not impose upon him duties of such various kinds and importance that a provision of a sum as liquidated damages to be retained by the employer upon his default will be held to be a penalty. Bilz v. Powell, 38: 847, 117 Pac. 344, 50" Colo. 482. For delay in completing contract. Determination of owner's responsibility foi delays in building contract containing stipulation for, see CONTRACTS, 638. Question for jury whether manufacturer's delay was responsible for contractor be- ing compelled to pay, see TRIAL, 102. See also supra, 171, 172. 226. A provision in a contract for placing an improvement in a building, that if the owner shall require any deviation, the same may be made without annulling or invali- dating the contract, will not operate to re- new a right to liquidated damages for de- lay in completion of the work after the pro- vision therefor has been abrogated by de- lays to which the owner materially contrib- uted. Mosler Safe Co. v. Maiden Lane Safe Deposit Co. 37: 363, 93 N. E. 81, 199 N. Y. 479. 227. Where a contract expressly provides stipulated or liquidated damages for failure to complete a building within a specified time, and the breach alleged is a refusal to perform any part of the contract, and it appears that the parties, in stipulating for liquidated damages, did not contemplate such refusal, but only a failure to complete within the specified time, the damages sus- tained by the alleged breach of the con- tract should be determined not by the stip- ulation contained in the contract, but by proper rules of law. Moses v. Autuono, 20: 350, 47 So. 925, 56 Fla. 499. Digest 1-52 L.R.A.(N.S.) (Annotated) a dwelling house for $5,400, which the own- er, who was boarding, wishes to occupy as a residence, because of the delicate condi- tion of his wife, for $10 damages for each day that the structure remained uncom- pleted after a specified time, is enforce- able, and not invalid as a penalty. Craw- ford v. Heatwole, 34: 587, GO S. E. 46, 110 Va. 358. (Annotated) 229. Liquidated damages, and not a penal- ty, are provided for by a contract for plac- ing a safe and vault in a building within a specified time, and declaring that, whereas failure to complete the work within the time limited will cause serious loss, the pre- cise extent of which might be difficult of estimation, therefore the contractor agrees to pay a specified amount for each day's delay; and the amount specified is not plainly disproportionate to the injury. Mosler Safe Co. v. Maiden Lane Safe De- posit Co. 37: 363, 93 N. E. 81, 199 N. Y. 479. 230. The right of the owner of a build- ing to liquidated damages for failure to complete a vault within a specified time is abrogated if he is responsible for a sub- stantial part of the delay, and he cannot therefore recover such damages for delay beyond the time for which he is respon- sible. Mosler Safe Co. v. Maiden Lane Safe Deposit Co. 37: 363, 93 X. E. 81, 199 X. Y. 479. Breach of covenant against engaging In business. 231. A provision in a contract obligating one party not to compete in business with another, that, if he does so, he shall for- feit a certain amount per annum for a spec- ified period, is for a penalty, and not liqui- dated damages. Buckhout v. Witwer, 23: 506, 122 N. W. 184, 157 Mich. 406. ft. For telegrams. (See also same heading in Digest L.R.A. 1-10.) Preventing unnecessary amount, see supra, 24. Mental anguish for, see infra, III. o, 2, 6. For libelous telegram, see infra, 345. Conflict of laws as to, see CONFLICT OF LAWS, 161-165. Relevancy of evidence as to, see EVIDENCE, 1707, 1708. Sufficiency of allegations as to, see PLEAD- ING, 209, 213. Proximate cause of, see PROXIMATE CAUSE, 42. As to telegrams generally, see TELEGRAPHS, II. Limitation of liability by telegraph com- pany, see TELEGRAPHS, II. d. 232. The fact that telegraph companies are by law, in this state made common car- riers, and must use the utmost diligence in the transmission and delivery of messages intrusted to them, does not change the rule at common law with reference to their lia- bility for damages, where the injury sus- DAMAGES, III. b. 845 taincd is not the proximate and natural re- sult of the negligent act. Western U. Teleg. Co. v. Foy, 49: 343, 124 Pac. 305, 32 Okla. 801. 233. A telegraph company which wrong- fully refuses to accept a message for trans- mission under circumstances of aggravation is liable for the damages caused thereby, whether they could have been reasonably anticipated or not. Cordell v. Western U. Teleg. Co. 22:540, 63 S. E. 71, 149 N. C. 402. 234. In an action in tort against a tele- graph company for the breach of a public duty in negligently transmitting an incor- rect copy of a message delivered to it for transmission, damages may be recovered by the plaintiff for the loss or injury sustained as a proximate consequence of the defend- ant's negligent act, and which was con- templated by the parties, or should have been contemplated by them as probable or likely to follow the negligence. Western U. -Teleg. Co. v. Milton, n: 560, 43 So. 495, 53 Fla. 484. 235. The damages to be recovered in an action in tort by the sendee of a telegram, against the telegraph company, for delay in delivery, are governed by the same rule which would govern in an action by the sender on the contract. M. M. Stone & Co. v. Postal Teleg. Cable Co. 46: 180, 87 Atl. 310. 35 R. I. 498. 236. The actual damages sustained by the addressee of an intelligible message through its erroneous transmission may be recovered by him from the company in an action of tort. Baily v. Western U. Teleg. Co. 43: 502, 76 Atl. 736, 227 Pa. 522. 237. Compensation for loss of time and for money expended in fruitlessly meeting trains to receive a corpse for burial may be recovered against a telegraph company whose negligence in failing to transmit a telegram was responsible therefor. Cumberland Teleph. & Teleg. Co. v. Quigley, 19: 575, 112 S. W. 897, 129 Ky. 788. 238. An award of $2,000 is not excessive for the suffering of a pregnant woman, who was ruptured and suffered a dry birth, with intense agony, because of the failure of a telegraph company to deliver a message an- nouncing her arrival in the night, at a station where there were no accommoda- tions, so that, upon finding herself there with no one to meet her, she was com- pelled to seek shelter through the dark, on foot. Western U. Teleg. Co. v. Crawford, 35: 930, 116 Pac. 925, 29 Okla. 143. Summoning physician. Recovery for mental anguish, see infra, 648. 239. A physican may hold a telegraph company liable for loss of the fee which he would have received from the consultation, where it fails to deliver a telegVam summon- ing him to attend a patient. Barker v. Western U. Teleg. Co. 14: 533, 114 N. W. 439, 134 Wis. 147. (Annotated) Announcing illness or death. Recovery for mental anguish, see infra, 649-659. 240. The appellate court will not inter- Digest 1-52 L.R.A.(N.S.) fere with an award of $1,000 for compensa- tion to a sister for being deprived, by the negligence of a telegraph company in failing to deliver a telegram, of the opportunity to attend the funeral of her brother. Western U. Teleg. Co. v. Caldwell, 12: 748, 102 S. W. 840, 126 Ky. 42. 241. Nine hundred and fifty-five dollars and fifty cents is not excessive to award a widow for the negligent failure of a tele- graph company to deliver a message in time to permit her to reach the bedside of her dying husband before he sank into final unconsciousness. Western U. Teleg. Co. v. Price, 29: 836, 126 S. W. 1100, 137 Ky. 758. Business telegrams generally. Relevancy of evidence as to, see EVIDENCE, 1707. 242. The damages for which a telegraph company which fails to deliver a message from an insurer, cancelling a policy, so that the property is destroyed before the policy is canceled, is liable, are the amount which the insurer is compelled to pay for the loss, and not merely the difference be- tween the reasonable value of carrying the risk for the additional time and the amount of unearned premium on the policy. Provi- dence-Washington Ins. Co. v. Western U. Teleg. Co. 30: 1170, 93 N. E. 134, 247 111. 84. 243. A telegraph company which fails to deliver a message from a bidder for public work directing the addition of a certain amount to his bid is liable in damages for such amount in case the contract is award- ed at the original price and the increase would have been added and received by him had the message been delivered. Postal Teleg. Cable Co. v. Nichols, 16: 870, 159 Fed. 643, 89 C. C. A. 585. 244. One who sends a telegram while en route from one place to another, in re- sponse to a telegram from a business as- sociate in the latter place, announcing the time of his expected arrival in the latter place, cannot at common law recover of the telegraph company for his time and the ex- penses of the trip, which is rendered use- less because of the failure of the company to deliver the message, where there is noth- ing in the language of the message to ap- prise the telegraph company that a failure to deliver it may result in the trip proving valueless, and no special circumstances are communicated to the company, since the breach of the telegraph company's contract is not the proximate cause of such loss of time and expense of the trip. Kolliner v. Western U. Teleg. Co. 52: 1180, 147 N. W. 961, 126 Minn. 122. (Annotated) 245. One who sends a message to another inquiring as to the price of pineapples of a specified quality, and who promptly re- ceives a telegram from a third person quot- ing prices, in pursuance of which he pur- chases a car load of pineapples which prove to be of inferior quality, can only recover from the telegraph company which failed to deliver the message sent by him the cost of sending the telegram, or nominal damages, since the maxim Causa proximo, non remota, spectatur applies. Western U. 846 DAMAGES, III. c, 1. Teleg. Co. v. Barlow, 4: 262, 40 So. 491, 51 Fla. 351. (Annotated) 24G. The recovery in tort by the addressee of a telegram for a negligent mistake of the telegraph company in increasing the price at which he is directed to buy goods, where he buys them in good faith at the increased price, in accordance with the message, is the amount of the damages that proximately result to him from the purchase. Stewart v. Postal Teleg. Cable Co. 18: 692, Cl S. E. 1045, 131 Ga. 31. 247. The measure of damages for the negligent altering of a telegram quoting a price at which stock will be sold, where the price as quoted was accepted and the stock was shipped and paid for in accordance with the terms of the telegram as received, and the vendors acted prudently and with due diligence after discovering the mistake, so as to minimize the loss, is the difference between the market value of the stock on the day the message was received, and the price paid by the purchaser. Strong v. Western U. Teleg. Co. 30: 409, 109 Pac. 910, 18 Idaho, 389. 248. A sheep buyer who contracts for sheep on the faith of prices at price quota- tions in a telegram which was altered dur- ing transmission may hold the company liable for the difference between the price which he is compelled to pay under his contract and the market price plus the cost of sending the message, although he is not shown to have ultimately suffered loss in the transaction. Henry v. Western U. Teleg. Co. 46: 412, 131 Pac. 812, 73 Wash. 260. (Annotated) 249. To determine the damages to be paid by a telegraph company for error in trans- mitting a message quoting prices on sheep, their market value may, where there was no market where they were located, be de- termined by the ruling price at the nearest market, less cost of getting them there and the probable shrinkage in transportation. Henry v. Western U. Teleg. Co. 46: 412, 131 Pac. 812, 73 Wash. 260. 250. A telegraph company which, through the erroneous transmission of a message to a commission merchant, causes him to sell a quantity of the product of a mill at less than the price named by the manufacturer, cannot compel him to apply his commission in reduction of the loss, so as to relieve it from liability therefor. Baily v. Western U. Teleg. Co. 43: 502, 76 Atl. 736, 227 Pa. 522. 251. Substantial damages cannot be re- covered from a telegraph company by a man- ufacturer for delay in messages from his factor to him, asking if he will accept a certain offer if it can be secured, and his reply that he will do so if better offers can- not be obtained, although the factor had the offer and lost the sale by the delay, where the telegraph company had no notice of that fact. Clark Mfg. Co. v. Western U. Teleg. Co. 27: 643, 67 S. E. 329, 152 N. C. 157. 252. One who submitted by telegraph a proposal to purchase oats at a designated Digest 1-52 JL.R.A.(N.S.) price for future delivery, which message as delivered contained a proposal for immedi- ate delivery, which was accepted, but on dis- covery of the mistake was treated as not binding, cannot recover from the telegraph company on the basis of a contract of resale which might have been concluded in the event the addressee of the message had ac- cepted the proposal for delivery at a future time, or for commissions which would have accrued to him in case of resale. Bass v. Postal Teleg. Cable Co. 12:489, 56 S. E. 465, 127 Ga. 423. c. Expulsion of, or failure in duty to, passenger. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Punitive damages for, see supra, II. b. Recovery for mental anguish, see infra, 612- 614; III. o, 2, c. Prejudicial error in instruction as to, see APPEAL AND ERROR, 1361. Limitation of amount of carrier's liability, see CARRIERS, 11. m, (J. Recovering against initial carrier damages for injuries on other road, see CARRI- ERS, 736. Relevancy of evidence, see EVIDENCE, 1744. See also infra, 364, 373, 402, 409, 422, 424 : CARRIERS, 382. 253. One refused passage on a sleeping car, in violation of the company's contract to carry him, is entitled to recover at least the auiount paid for his ticket. Pullman Co. v. Krauss, 4: 103, 40 So. 398, 145 Ala. 395. 254. If a passenger could not, by the exercise of ordinary care, have discovered that she was invited by the conductor to dis- embark at a point short of her destination, she is entitled to recover damages arising from illness brought about by exposure to the weather after leaving the car. Georgia R. & E. Co. v. McAllister, 7: 1177, 54 S. E. 957, 126 Ga. 447. 255. Damages for injuries caused by the misdirection of a passenger, by a railroad ticket agent, as to the best route by which to reach his destination, will include com- pensation for injuries resulting from neg- ligence of the carrier on its own route, and for those suffered on account of having to make more changes, and because of being necessarily longer on the way than would have been required on the proper route. St. Louis Southwestern R. Co. v. White, 2: no, 89 S.' W. 746, 99 Tex. 359. 256. One injured by a strain in attempting to board a train by the use of steps so high as not to be reasonably safe may recover reasonable compensation for the loss of time and mental and physical suffering which directly and approximately resulted from the injury. Louisville & N. R. Co, DAMAGES, III. c, 1. 847 v. Dyer, 48: 816, 153 S. W. 194, 152 Ky. 264. " 257. In an action for damages for delay in the transportation of a passenger, there can be no recovery for expenses which it is not shown would not have been incurred had no delay occurred. Central of Georgia R. Co. v. Wallace, 49: 429, 80 S. E. 282, 141 Ga. 51. 258. Seven hundred and fifty dollars is excessive to award a passenger as damages for being, in breach of contract, excluded from the train at a place where he was without funds or friends, where the evidence merely shows that he was compelled to stop in the depot over night, and was next day furnished with food by someone who inter- ested himself in his behalf. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. Failure to stop to take on passenger. 259. Injuries to a passenger, due to his walking to his destination to meet an im- portant business engagement, are not the proximate result of the carrier's failure to stop its train for him; and the carrier can- not be held liable therefor. Malcomb v. Louisville & N. R. Co. 18: 489, 46 So. 768, 155 Ala. 337. 260. One for whom a train refuses to stop, according to schedule, may recover damages for having to walk to his destination; and is not bound to wait for the next train, and recover merely for the delay. Wil- liams v. Carolina & N. W. R. Co. 12: 191, 57 S. E. 216, 144 N. C. 498. 261. $250 is not an excessive award of damages to a person who was forced, be- cause a train which he had gone to a flag station to board wrongfully refused to stop upon his signal, to walk 7 miles over a muddy road on a night when the weather was cold and bad, with the result that he was made sick and confined to his bed for some time, suffering severe pain. Southern R. Co. v. Wallis, 30: 401, 66 S. E. 370, 133 Ga. 553. Putting white person in coach for negroes. Punitive damages, see supra, 76, 77. 262. Three thousand seven hundred and fifty dollars is not excessive to award as actual and punitive damages for placing a young white woman of culture and refine- ment in a car set apart for colored passen- gers, in a rude and insulting manner, causing her to suffer a nervous shock. Louisville & N. R. Co. v. Ritchel, 41: 958, 147 S. W. 411, 148 Ky. 701. Insult; abuse; threat to expel. See also supra, 262. 263. An award of $600 as damages to a passenger for insult and abvise by a con- ductor on a railroad train will not be inter- fered with on appeal, as excessive, although there is evidence tending to show that the conductor was insane when committing the offense, if there is also evidence that he was merely under the influence of liquor at the time, while he was continued in his posi- tion for some time afterwards. Chesapeake Digest 1-52 L.R.A.(N.S.) & 0. R. Co. v. Francisco, 42: 83, 148 S. W. 46, 149 Ky. 307. 264. One thousand eight hundred dollars is not so excessive as an award to a woman abused and insulted, and threatened with ejection from a train, and the privacy of whose sleeping-car berth was, without warn- ing, invaded by the conductor while she was disrobed, because not supplied with a ticket through the fault of the railroad company, as to evince partiality, prejudice, corrup- tion, or unaccountable caprice on the part of the jury. Cincinnati, N. 0. & T. P. R. Co. v. Harris, 5: 779, 91 S. W. 211, 115 Tenn. 501. 265. In an action brought to recover dam- ages for a threat made by a conductor to ex- pel from the street car a passenger who presented a transfer defective because of a mistake made by the conductor issuing it, the measure of damages is not limited to the amount paid to prevent an expulsion, but general damages may be recovered as for an inexcusable trespass, even though no aggravating circumstances were connected with the threat of expulsion. Georgia R. & E. Co. v. Baker, 7: 103, 54 S. E. 639, 125 Ga. 562. Carrying beyond station. Punitive, see supra, 92-97. Question for jury as to amount of, see TRIAL, 660. Power of trial court to reduce amount of verdict, see TBIAL, 1165. 266. A passenger on a railroad who is negligently carried beyond his destination is entitled, in the absence of other exculpatory circumstances, to recover as damages there- for a reasonable sum for loss of time, nec- essary expenses incurred, and, in addition thereto, a fair compensation for inconven- ience experienced, if any, on account of such action of the railroad company. Dalton v. Kansas City, Ft. S. & M. R. Co. 17: 1226, 96 Pac. 475, 78 Kan. 232. (Annotated) Causing passenger to miss train. 267. The measure of damages for the mis- take of the agent of a railroad company which prevents a woman who has engaged a berth on a sleeping car from going forward on the intended train is. where there are con- venient hotels at hand, the necessary ex- pense of the delay and the value of her lost time, and will not include sickness brought on by her attempt to drive several miles to her home in the night. Cincinnati, N. 0. & T. P. R. Co. v. Rose, 21: 681, 115 S. W. 830, Ky. . 268. A railroad company which negligent- ly causes a passenger to miss a train on a connecting road so that she is compelled to stop over at a way station and return home is not liable for injury to her through go- ing into a cold room of a hotel and sitting up all night, or for vexation or personal in- convenience because of the delay, but may be chargeable for hotel bills and lost time. Cincinnati, N. 0. & T. P. R. Co. v. Raine, 19: 753, 113 S. W. 495, 130 Ky. 454. 269. For breach of contract on the part of a carrier that one of its regular train.-j 848 DAMAGES, III. c, 2, d. should make its connections, which is nec- essary to enable a passenger to reach his destination at a specified time, the impor- tance of which is known by the company, the passenger may hold the company liable for the expense of a special train, necessary to effect the desired result. Hayes v. Wa- cash R. Co. 31:229, 128 N. W. 217, 103 Mich. 174. 2. Ejection. (See also same heading in Digest L.R.A. 1-10.) Threat to expel, see supra, 264, 265. Punitive damages, see supra, 83-91. Recovery for mental anguish, see infra, 667- 670". Instructions as to, see APPEAL AND ERROR, 1363. Relevancy of evidence as to, see EVIDENCE, 1745. Mental suffering as proximate result of ejection, see PROXIMATE CAUSE, 95. 270. Loss of time, as tp the value of which there is no evidence, cannot be con- sidered in assessing damages for wrongful ejection of a passenger from a train. Chi- cago, R. I. & P. R. Co. v. Newburn, 30: 432, 110 Pac. 1065, 27 Okla. 9. 271. Counsel fees are not a proper element of compensatory damages in an action for wrongful ejection from a street car. United Power Co. v. Matheny, 28: 761, 90 N. E. 154, 81 Ohio St. 204. (Annotated) 272. The measure of damages for the use of excessive force in ejecting from a train one who had become a trespasser by refusal to pay, or make a proper tender of, his fare, is an amount which will compensate him for his physical and mental suffering re- sulting from any injury so occasioned, and for any impairment of his earning capacity and loss of time resulting from the injury; and, if the trainmen's conduct was oppres- sive, malicious, or wanton, the jury are permitted to award punitive damages in addition. Louisville & N. R. Co. v. Cotten- gim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. Instances of amounts. New trial for excessive amount of, see AP- PEAL AND ERROR, 1622. 273. An award of $11,115, as damages for injury to a passenger put off a train while sick, without money, at a way sta- tion hundreds of miles from friends, and left to make his way as best he could by walking and riding on freight cars, by reason of which he contracted fatal illness after he had been insulted, his baggage searched, and his tickets wrongfully taken away from him by an agent who received a commission for doing so, and gloated over the fact that he had put other pas- sengers off, will not be disturbed. Forres- ter v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 274. Five hundred dollars is excessive to award a passenger wrongfully ejected Digest 1-52 KR.A.(N.S.) from a train without abuse, and compelled to walk 11 miles in the daytime, when neither road nor weather was bad and his only injury was the consequent fatigue. Louisville & N. R. Co. v. Fish, 43:584, 127 S. W. 519, Ky. . 275. Five hundred dollars is excessive to award as damages for the wrongful ejec- tion of a man from a train, compelling him to walk six miles on a summer evening, although there is evidence tending to show that it occasioned some soreness and stiff- ness. Light v. Detroit & M. R. Co. 34: 282, 130 N. W. 1124, 165 Mich. 433. 276. Eight hundred dollars is excessive to be allowed as damages for the ejection from a freight train of a mature man because of a mistake in the evidence of his right to transportation, where the manner of hia ejection would in no way reflect on him and he was subjected merely to slight delay and annoyance. Olson v. Northern P. R. Co. 18: 209, 96 Pac. 150, 49 Wash. 626. 277. A verdict of $1,000 is not excessive as compensatory damages for a passenger's wrongful discharge from a train by a sleep- ing car company, where she suffered men- tally from fright because of the time and place of the discharge, although she re- ceived no personal injury, and the fright was attended by no serious consequences whatever to her body or mind, and the only property loss sustained was the payment of 5 cents street-car fare. Pullman Co. v. Lutz, 14: 907, 45 So. 675, 154 Ala. 517. d. In respect to freight or b fere with a verdict of $12,500 for the loss of a leg below the knee, by a railroad brake- man and conductor thirty-nine years old, whose career in that calling is thereby terminated. Gibson v- Chicago G. W. R. Co. 38: 184, 134 N. W. 516, 117 Minn. 143. 434. A recovery of $15,000 as damages for loss of an arm by a railroad trackman, twenty-four years old, who was earning from $80 to $85 per month, was reduced to $12,000. Bradbury v. Chicago, E. I. & P. R. Co. 40: 684, 128 N. W. 1, 149 Iowa, 51. b. Death. (See also same heading in Digest L.R.A. 1-10.) Measure of damages for, generally, see su- pra, III. i, 3. Children. Increasing allowance on appeal, see APPEAL AND ERBOE, 1594. Sufficiency of evidence to sustain verdict, see EVIDENCE, 2318. 435. A judgment for $10,000 in an action by parents for the death of a son is exces- sive where all that is shown in evidence is that the deceased was the oldest of six children, and was earning $1.50 or $1.75 a day, and had at one time been deputy town- ship assessor at $3 a day; that the money was kept for him, he using what he needed for high school books and clothing, and nothing is shown as to the financial cir- cumstances of the parents beyond the fact that they owned their own home. Aaron v. Missouri & K. Teleph. Co. 45: 309, 131 Pac. 582, 89 Kan. 1S6. 436. Damages in the sum of $4,000 Digest 1-52 L.R.A.(N.S.) awarded parents for the wrongful death of their son sixteen years of age are not ex- cessive, where the deceased had been edu- cated at considerable expense and sacrifice on the part of the parents, and was receiv- ing a professional training, from which, in view of his intelligence, declarations, and conduct, the parents might reasonably entertain an expectation of prospective benefits. Atchison, T. & S. F. R. Co. v. Fajardo, 6: 681, 86 Pac. 301, 74 Kan. 314. 437. In an action brought against a rail- way company by parents to recover dam- ages for the death of their two children alleged to have been killed at a railway cross- ing by the negligent operation of a train of the defendant company, a judgment for $30,000 in favor of the plaintiffs should be reduced to $12,000, where the case is not one for the allowance of punitory damages. Cherry v. Louisiana & A. R. Co. 17: 505, 46 So. 596, 121 La. 471. Adult. 438. Fifteen thousand dollars are not ex- cessive to award as damages for the negli- gent killing of a strong, vigorous man of good character and habits, twenty-seven years old, although at the time of his death he was employed as a member of a switch- ing crew of a railroad, which is a hazard- ous business. Cincinnati, N. 0. & T. P. K. Co. v. Lovell, 47: 909, 132 S. W. 569, 141 Ky. 249. 439. Eight thousand dollars is inadequate to award as damages for the death of a healthy man, thirty-eight years old, earn- ing from $1.65 to $3 per day, and leaving a widow and three children, the eldest of which is six years old. Nations v. Lud ing- ton, W. & Van S. Lumber Co. 48: 531, 63 So. 257, 133 La. 657. 440. An allowance of $25,000 will not be interfered with on appeal, for recklessly killing a vigorous railroad fireman on a passenger train, who was thirty-four years old and earned upward of $115 per month, by running a special train into collision with his train, when it was its duty to keep out of the wav. Chesapeake & 0. R. Co. v. Johns, 50: 853, 159 S. -W. 822, 155 Ky. 264. 441. Three thousand seven hundred dol- lars is not excessive to award as damages for the wrongful killing of a strong man thirty-one years old, who is the sole sup- port of his wife and children, and who shortly before his death was earning from $50 to $60 per month, most of which he contributed to their support, although at the time of his death he was serving a short sentence for the commission of a misde- meanor. Tillar v. Reynolds, 30: 1043, 131 S. W. 969, 96 Ark. 358. 442. Damages in the sum of $5000 award- ed for the death of an industrious man" who leaves a wife and several children, some of whom are minors, and who had an expect- ancy of life of nineteen years, and who was earning a competency of $2.25 per day, are not excessive. Peterson v. Merchants' Ele- vator Co. 27: 816, 126 N. W. 534, 111 Minn. 105. 862 DAMAGES, III. j. 443. Ten thousand dollars is not excessive .to allow for the negligent killing of a strong, healthy man with a life expectancy of twenty-two years, who was earning $!)() per month, which he contributed to the sup- port of his family, he being of good habits, kind, and affectionate, and taking a great interest in the training of his children. Pulaski Gas Light Co. v. McCIintock, 32: 825, 134 S. W. 1189, 97 Ark. 576. 444. Twenty thousand dollars is excessive to award as damages for the death of a man forty-four years old with a life expectancy of twenty-five years, who was earning from $100 to $120 per month as a brakeman at the time of his death, anJ had served as stage driver, bridge carpenter, miner, sta- tionary engineer, locomotive fireman, and brakeman. Walters v. Spokane Internation- al R. Co. 42:917, 108 Pac. 593, 58 Wash. 293. j. Injury to, or taking or detention of, personal property. (See also same heading in Digest L.R.A. 1-10.) See also infra, 470. Injury or destruction. Nominal damages, see supra, 9. Loss of profits, see infra, 676-678. Prejudicial error as to, see APPEAL AND ERROR, 1546. Imposing penalty for failure to pay claim within certain time, see CONSTITUTION- AL LAW, 566. Evidence as to, see EVIDENCE, 1687, 2438. Question for jury as to. see TRIAL, 112, 659. 445. Where a suit is brought for damages arising from the destruction of property, and there is a basis of calculation as to the value, interest is not recoverable eo nomine. But the jury may consider the length of time damages have been withheld, the character of the tort, the conduct of the defendant, and all the circumstances of the transaction, and may, in their discre- tion, increase the amount of damages by adding to the value of the property de- stroyed a sum equal to the interest on such value; the entire sum found being returned as damages, and not exceeding the amount sued for. Central of Georgia R. Co. v. Hall. 4: 898, 52 S. E. 679, 124 Ga. 322. 446. The value of the property destroyed, and not the cost of making the repairs, or the difference in value of the premises with a perfect and defective radiator in, is the measure of damages for injury to property of a tenant of an apartment through the bursting of a defective steam radiator which the landlord was bound to keep in repair. O'Hanlon v. Grubb, 37: 1213, 38 App. D. C. 251. 447. The damages for negligent injury to a building containing a stock of goods, which injures them and requires their re- moval to another location, includes the value of stock and fixtures destroyed, and the injury to those not completely destroyed, the expense of removal, and the lo-,s of Digest 1-52 L.R.A.(N.S.) profits caused by the removal. Di Pal ma v. Weinman, 24: 423, 103 Pac. 782, 15 N. M. 68. 448. Under a statute providing that, where a person whose property is injured through the negligence of a railroad com- pany is himself negligent, the damages re- coverable shall be diminished or increased by the jury in proportion to the amount of default attributable to such person, a re- covery of $1,000 for the destruction at a railroad crossing, of an automobile valued at $1,600, is excessive, where the driver of such machine, was operating it at 20 miles an hour, on a country road, and had his attention engaged in passing some teams in the highway, at a point where it crosses the railroad track, of which crossing the owner knew, although notice of the ap- proach of the train was not given by the bell or whistle of the engine, but the ap- proach of the train could have been seen several hundred yards away. Atlantic Coast Line R. Co. v. Wier, 41: 307, 58 So. 641, 63 Fla. 69. 449. A civil engineer cannot hold one who negligently destroys his transit liable for the full amount which he could have earned in the use of such instrument while he is replacing it, in the absence of any evidence to show that he could not have secured oth- er employment in the line of his usual vocation without the use of the instrument during such time, which would have af- forded him some compensation. Parks v. Sullivan, 25: 625, 104 Pac. 1035, 46 Colo. 340. 450. Five hundred dollars is a proper amount to be awarded for loss of a manu- script manual on Greek grammar, where it might be reproduced in two years by de- voting such time to the work as a teacher might find at his disposal. Wood v. Cunard S. S. Co. 41: 371, 192 Fed. 293, 112 C. C. A. 551. 451. The damages to be allowed for negli- gent loss of a manuscript which has not been put upon the market for sale so as to have a market value may be based upon what it is worth to the owner, to ascertain which the cost of its production may be con- sidered. Southern Exp. Co. v. Owens, 8: 369, 41 So. 752, 146 Ala. 412. (Annotated) Conversion. Conversion by carrier, see supra, 290, 290a. Mitigation of damages, see infra, 716, 717. Evidence as to value of property, see EVI- DENCE, 1690. See also supra, 303. 452. The measure of damages for conver- sion en route, by a stranger, of property in possession of a carrier for transportation, may be measured by its value at destination less transportation and selling expenses, and is not limited to its value at the place of conversion or nearest market; and the lack of information on the part of the wrongdoer as to the particular destination of the prop- erty is immaterial. Wallingford v. Kaiser, 15:1126, 84 N. E. 295, 191 N. Y. 392. 453. The damages for the inadvertent DAMAGES, III. k, 1. 863 conversion by a railroad company of logs reserved by the former owner when deeding the right of way, and cut and piled along the right of way, awaiting removal by him, are the value of the logs where piled, and not their value after having been trans- ported to market. Gunstone v. Chicago, M. & P. S. R. Co. 52: 392, 140 Pac. 907, 79 Wash. 629. (Annotated) 454. The contract price may be taken as the measure of value in an action for con- version of articles sold a contractor to be installed in an electric plant for a mu- nicipality. Allis-Chalmers Co. v. Atlantic, 52: 561, 144 N. W. 346, 164 Iowa, 8. 4556. The damages recoverable by a ven- dor of machinery who reserved title thereto until the price was paid, against a condi- tional vendor of the realty to which it was attached for wrongfully converting it, is what remains unpaid at the time of the con- version, under a statute providing that, in case articles sold on condition that the 'itle shall remain in the vendor until the price is paid are retaken by the vendor, the vendee, or his successor in title, shall have thirty days in which to comply with the contract. Davis v. Bliss, 10: 458, 79 N. E. 851, 187 N. Y. 77. (Annotated) 457. The damages for conversion by a broker of stocks carried by him for a cus- tomer on margin may be based on the high- est market price within two months of the conversion, if such time is, under all the circumstances of the case, a reasonable one. Mullen v. J. J. Quinlan & Co. 24: 511, 87 N. E. 1078, 195 N. Y. 109. 458. The measure of damages where a stock of goods has been wrongfully taken by a creditor, and, on the order of the court, placed in the hands of a receiver, for loss of the goods or depreciation in value, is the difference between the market value thereof at the time of the taking, and their value at the time the receiver comes into posses- sion. Aylesbury Mercantile Co. v. Fitch, 23: 573, 99 Pac. 1089, 22 Okla. 475. k. Injury to real property; nuisance. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Preventing unnecessary amount, see supra, 15. Punitive, see supra, 67. Measure of damages for breach of contract as to, see supra, III. a, 3. For fraud on sale or exchange of, see supra, 325-329. Condemnation or depreciation in value by eminent domain, see infra, III. 1. Aggravation of damages for trespass, see in- fra, 727, 728. Prejudicial error as to measure of, see AP- PEAL AND ERROR, 1561. Retaining suit for injunction in order to as- sess damages, see EQUITY, 307. Digest 1-52 L.R.A.(N.S.) Evidence on question of, see EVIDENCE, 1692- 1701, 1735-1742, 2006. Interest on, see INTEREST, 22. Setting aside verdict for error in admission of evidence as to, see NEW TRIAL, 17. Correctness of instruction as to, see TRIAL, 990. Who entitled to, as between vendor and pur- chaser, see TRIAL, 996. 459. The measure of damages for injury to a portion of a bridge is the cost of re- pairing it. West v. Martin, 21: 324, 97 Pac. 1102, 51 Wash. 85. 460. The measure of damages for de- struction of a metdow by fire is the cost of reseeding it plus the rental value of the property during the time its owner is de- prived of crops therefrom by reason of the fire. Couch v. Kansas City, S. R. Co. 46: 555, 158 S. W. 347, 252 Mo. 34. 461. The measure of damages for render- ing rented land unfit for cultivation is the rental value of the property, although the owner was to receive a share of the crop for rental, where no crop was in fact raised. Quinn v. Chicago, M. & St. P. R. Co. 22: 789, 120 N. W. 884, 23 S. D. 126. 462. Damages for permanent injury may be recovered for destruction of the produc- tive power of land by casting oil and salt water thereon, although the continuance thereof may be abated. Niagara Oil Co. v. Ogle, 42: 714, 98 N. E. 60, 177 Ind. 292. 463. The owner of the fee from which mineral oil is taken by the owner of a right of way across property may recover what the latter receives from a sale of the oil, in the absence of any evidence showing the cost of bringing it to the surface. Right of Way Oil Co. v. Gladys City Oil, Gas, & Mfg. Co. 51: 268, 157 S. W. 737, Tex. 464. Injury to the reputation of an estate because of its use as a smallpox hospital is not an element of damages in an action against the lessee for waste. Delano v. Smith, 30: 474, 92 N. E. 500, 206 Mass. 365. (Annotated) Ejectment. Extent of recovery in ejectment, see EJECT- MENT, III. 465. Where the owner of the legal title to wild lands dispossesses a holder under a void tax deed who has reduced such lands to cultivation, the rent allowable for the use of the premises during such wrongful pos- session is to be determined from the cash price usually pa-id for the use of wild lands during the same time and in the same lo- cality. Gibson v. Fields, 20: 378, 98 Pac. 1112, 79 Kan. 38. Mining coal. 466. The damages for unlawfully mining and removing another's coal are the value of the coal in place if there is evidence from which that value can be ascertained. Kingston v. Lehigh Valley Coal Co. 49: 557, 88 Atl. 763, 241 Pa. 469. 467. The value of coal in place for the purposes of determining the damages for wrongfully mining and removing it, is its SG4 DAMAGES, III. k, 2. royalty value if, it is so located as to have I be regarded as excessive when supported by a present market value for operation as a testimony of its own witnesses. Louisville the growing mine, to be estimated as of time the trespass is committed. Kingston v. Lehigh Valley Coal Co. 49: 557, 88 Atl. 763, 241 Pa. 469*. 2. Injury to, or destruction of, build- ings, trees, or crops. (See also same heading in Digest L.R.A. 1-10.) Interest on amount recovered, see INTEREST, 21. Instructions as to, see TRIAL, 991. See also supra, 447 ; infra, 551, 552, 673. 468. A tenant in common in possession cannot, in an action against his cotenant for entering upon the common property and removing doors and windows therefrom, re- cover damages for actual suffering because of absence of the articles removed beyond the time when they could reasonably have been replaced. Davis v. Poland, 10: 212, 66 Atl. 380, 102 Me. 192. 469. A railroad company which negligent- ly sets fire to shacks used by one who has contracted to cut and saw a lot of stand- ing timber, for housing his help, is liable for the value of supplies destroyed and the cost of replacing the shacks. Thompson v. Seaboard Air 'Line R. Co. 52: 97, 81 S. E. 315. 165 N. C. 377. (Annotated) 470. Damages for injury caused by the construction upon another's building of a windmill so negligently that it falls may include the injury to the articles stored in the building. Flint & W. Mfg. Co. v. Beckett. 12: 924, 79 N. E. 503. 167 Ind. 491. 471. The damages to be allowed for in- jury to a building may include the loss of rent up to the time when, with reason- able diligence, it could have been restored, whether it was in fact restored or not. Higgins v. Los Angeles Gas & Electric Co. 34: 717, 115 Pac. 313, 115 Cal. 651. Cutting of, or injury to, timber or trees. 472. A person who cuts timber upon the land of another, in good faith, in the honest belief that it is upon his own land, is liable for its value at the stump, and not as man- ufactured into lumber. J. F. Ball & Bro. Lumber Co. v. Simms Lumber Co. 18: 244, 46 So. 674, 121 La. 627. (Annotated) 473. The measure of damages as between the landowner and the tort feasor, for in- jury to timber by fire, is not the difference between the value of the timber as it was at the time of the fire and its value there- after, but is the difference in the value of the land on which the timber is located before the fire, including the timber there- on, and its value after the fire in the con- dition that it then is. Reynolds v. Great Northern R. Co. 52: 91, 138 N. W. 30, 119 Minn. 251. (Annotated) 474. The damages awarded against a rail- road company for negligent destruction of N. J!. Co. v. Beeler, 11:930, 103 S. W. 300, 126 Ky. 328. 475. The measure of damages for the wrongful destruction of shade trees, the separable and independent value of which is nominal, is the difference between the value of the land before and after the de- struction. Cleveland School Dist. v. Great Northern R. Co. 28: 757, 120 X. W. 995, 20 N. D. 124. (Annotated) 476. The removal or destruction of or damage to trees planted by a lot owner or his grantor, and growing upon that part of the street contiguous to his lot, is a proper element of damages for. change of street grade so far as it may affect the difference in the value of the property before and after the change of grade. Stocking v. Lincoln, 46:107, 142 N. W. 104, 93 Neb. 798. 477. The measure of damages for negli- gent destruction of and injury to fruit trees is the fair and reasonable value of those de- stroyed, and the difference in value of those injured before and after the injury, and not the difference in value of the tract of land on which they stood, before and after the injury. Louisville & N. R. Co. v. Beeler, ii : 930, 103 S. W. 300, 126 Ky. 328. ( Annotated ) 478. An allowance of $275 for the ma- licious destruction by a property o*vner of a healthy and symmetrical shade tree 24 .inches in diameter, on the boundary be- tween his own and his neighbor's property, will not be interfered with, where evidence tends to show that the value of the neigh- boring property was diminished from two to five hundred dollars by the act. Bla- lock v. Atwood, 46: 3, 157 S. W. 694, 154 Ky. 394. Crops. Preventing unnecessary amount, see supra, 19. Prejudicial error as to measure of, see AP- PEAL AND ERROR, 1549. Opinion evidence as to, see EVIDENCE, 1128. Relevancy of evidence as to value of, see EVIDENCE, 1702, 1739-1742. Sufficiency of evidence to show amount of, see EVIDENCE, 2321. See also supra, 460, 461. 479. In a suit for damages for the de- struction of a growing crop, such damages are to be estimated as of the time of the injury, and the measure to be applied is compensation for the value of the crops in the condition in which they vere at the time of their destruction. Missouri 0. & G. R. Co. v. Brown, 50: 1124, 136 Pac. 1117, 41 Okla. 70. 480. The measure of damages to a grow- ing crop by a wrongful act which destroys it is its value at the time and place of its destruction. United States Smelting Co. v. Sisam, 37: 976, 191 Fed. 293, 112 C. C. A. 37. 481. The measure of the damage to a growing crop injured, but not rendered fruit trees by fire from its engines cannot worthless, is the difference between the Digest 1-52 L.R.A.(N.S.) DAMAGES, III. k, 3. 8C5 value of that crop before and after the injury, at the time and place thereof. United States Smelting Co. v. Sisam, 37: ducted from the market value of the crop, in awarding damages for loss of the crop because of defective character of the seed. | Fuhrman v. Interior Warehouse Co. 37:89, 976, 191 Fed. 293, 112 C. C. A. 37. 482. Where a crop is injured from time j 116 Pac. 666, 64 Wash. 159. to time throughout its growing season until its maturity, by sulphurous fumes and their products, but is not destroyed, so that it ia cultivated throughout the season, harvested 3. Injury to water rights; overflows. (See also same heading in Digest L.R.A. 1-10.) and marketed, the damage to it is the dif- ference between the value at maturity of | the probable crop, if there had been no As to nominal damages, see supra, 10-12. injury, and the value of the actual crop Preventing unnecessary amount, see supra, at that time, less the expense of fitting | 18. for market that portion of the probable | Evidence as to, see EVIDENCE, 1693, 2006. crop which was prevented from maturing by the injury. United States Smelting Co. v. Sisam, 37: 976, 191 Fed. 293, 112 C. C. A. Obstruction or diversion; overflow. As to nominal damages, see supra, 11. Evidence as to, see EVIDENCE, 1735, 2010. 483. The measure of damages for the im- | Liability of road supervisors in compensa- pairment of growing crops by the emission i tory damages for diverting surface of sulphurous fumes is the difference in the i water, see WATERS, 262. yield and the prices of the crops with and See also LIMITATION OF ACTIONS, 80. without the presence of the fumes com- plained of. International Agricultural Corp. v. Abercrombie, 49: 415, 63 So. 549, 184 Ala. 244. ( Annotated ) 484. The measure of damages for destruc- tion of a growing crop is its value as it stood on the ground at the time of destruc- 491. The damages for obstruction of a floatable stream may include depreciation in value of timber required to lie in the wa- ter an undue length of time, and the ex- pense of maintaining the men necessary to handle the drive pending the release of the timber from detention. Blackman v. Maul- tion, to be arrived at, not by ascertaining j din, 27: 670, 51 So. 23, 164 Ala. 337. what it has cost at that time, but from evi- dence of the probable yield of the land, multiplied by the market value of the crop, less cost of producing and marketing. Tel- ler v. Bay & River Dredging Co. 12: 267, 90 Pac. 942, 151 Cal. 209. (Annotated) 48o. The measure of damages for injuries 492. Damages arising from the occasional flooding of land by reason of an insufficient culvert upon the land of an adjacent pro- prietor are not original, so as to be assessed once for all. Harvey v. Mason City & Ft. D. R. Co. 3: 973, 105 N. W. 958, 129 Iowa, 465. to a growing crop not totally destroyed is j 493. The measure of damages for the oc- the difference in value thereof immediately j casional flooding of land because of the before and after the injury. Missouri P. R. Co. v. Sayers, 27: 168, 107 Pac. 641, 82 Kan. 123. 486. The measure of damages for the to- tal destruction of a growing crop, although practically ready for harvest, is the value of the crop in its condition at the time and place it was destroyed. Missouri P. R. Co. v. Sayers, 27: 168, 107 Pac. 641, 82 Kan. 123. (Annotated) 487. The measure of damages for the de- stmction of a growing crop is its value at the time and place, and in the condition, it was in when destroyed. Chicago, R. I. & P. R. Co. v. Johnson, 27: 879, 107 Pac. 662, 25 Okla. 760. 488. The measure of damages for the de- struction of a permanent or perennial crop, such as alfalfa, is the difference between the value of the land before and after the de- struction of the crop. Thompson v. Chi- cago, B. & Q. R. Co. 23: 310, 121 N. W. 447, 84 Neb. 482. ( Annotated ) 489. To ascertain the damages for loss of a crop because of defective seed, the cost of production which has actually been incurred should not be deducted from the market value of the crop which should have been produced. Fuhrman v. Interior Ware- house Co. 37: 89, 116 Pac. 666, 64 Wash. 159. 490. The contract price of seed purchased for use on land, if not paid, should be de Digest 1-52 L.R.A.(N.S.) 55 construction of an insufficient culvert is the difference between the fair market value of the land immediately before an injury and its fair market value immediately there- after, including therein the value and condi- tion of crops which may have been injured. Harvey v. Mason City & Ft. D. R. Co. 3: 973, 105 N. W. 958, 129 Iowa, 465. (Annotated) 494. The measure of damages sustained by a homesteader whose premises are overflowed by reason of the wrongful obstruction of a natural water way is not the same as if he owned the land in fee, but depends upon the improved condition of the premises, the length of time the homestead has existed, and all other facts that go to make up its value. McLeod v. Spencer, 17: 958, 95 Pac. 754, 21 Okla. 165. 495. Temporary damages only may be recovered for injuries to real property caused by the occasional and intermittent submergence thereof by the casting thereon of surface water caused by the grading and sewering of city streets. McIIenry v. Park- ersburg, 29: 860, 66 S. E. 750, 66 W. Va. 533. (Annotated) 496. The measure of temporary damages for injuries to a lot and dwelling house caused by the flooding thereof by the oc- casional and intermittent casting thereon of surface water from city improvements 86G DAMAGES, III. k, 4. is the cost of repairing the injury to the property, reimbursements for expenses di- rectly occasioned by the flooding thereof, and compensation for loss of use of the prop- erty and rentals, and destruction of, and damage to, personal property thereon. Mc- Henry v. Parkersburg, 29: 860, 66 S. E. 750, 66 W. Va. 533. Pollution. Nominal damages, see supra, 12. Mitigation of damages, see infra, 715. Questioning rule of damages for first time on appeal, see APPEAL AND ERROR, 797. See also infra, 510. 497. The measure of damages for render- ing land unfit or less valuable for pasture or other purposes for which it is adapted by turning chemicals into a stream running through it is the diminution of the market value of the property, if the injury is per- manent, or the diminution of the rental val- ue, if the injury is temporary. Hodges v. Pine Product Co. 33: 74, 68 S. E. 1107, 135 Ga. 134. 498. The measure of damages for wrong- fully polluting a spring is the diminution in value of the use of the property during the time the water is polluted. Long v. Louisville & N. R. Co. 13: 1063, 107 S. W. 203, 128 Ky. 26. 4. Nuisances. (See also same heading in Digest L.R.A. 1-10.) ,1*11! Preventing unnecessary amount, seo supra, 16, 17. Punitive damages, see supra, 40. Evidence on question of, see EVIDENCE, 1736. Correctness of instructions as to, see TRIAL, 989, 992. 499. The allowance .of $4,000 as damages for injury to the rental value of a $7,000 house for thirty-two months by the mainte- nance of a nuisance in the vicinity is ex- cessive. Louisville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. 500. The injury to the fee or permanent value of the property is the proper measure of damages where neighboring property is injured by the location and operation of railroad terminals which are intended to be permanent, and, notwithstanding their care- ful and proper operation, constitute a nui- sance diminishing the value of the property. Louisville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. 501. The measure of damages in case of injury to neighboring property by the care- less operation of a railroad, so that the presumption is that the evil will be rem- edied and recurring damages for injuries to the use and enjoyment of the property may be recovered, is to be governed to a large extent by the rental value of the property, and to what extent that value is diminished. Louisville & N. Terminal Co. v. Ltsllyett, i: 49, 85 S. W. 881, 114 Tenn. 368. Digest 1-52 Ii.B.A.(N.S.) 502. The true measure of damages for injury to land from noise and smoke from the roundhouse and yards of a railway com- pany is compensation for the loss or injury sustained ; and, as a general rule, the dam- ages are -measured by the depreciation in the market value of the property injured, where the injury caused by the nuisance is of a permanent nature. Choctaw, 0. & G. R. Co. v. Drew, 44: 38, 130 Pac. 1149, 37 Okla. 396. 503. The value at the date of trial should be considered in determining the damages to be allowed for diminution in value of property by the operation on neighboring property of an electric light plant in such manner as to constitute a nuisance. Sher- man Gas & Electric Co. v. Belden, 27: 237, 123 S. W. 119, 103 Tex. 59. 504. In determining the damages to be allowed for the diminution in value of property by the operation of an electric plant on neighboring property in such man- ner as to constitute a nuisance, the mar- ket value of the property for any use to which it might be appropriated after the beginning of the nuisance should be con- sidered, not merely the value for the use to which it was put prior thereto. Sherman Gas & Electric Co. v. Belden, 27: 237, 123 S. W. 119, 103 Tex. 59. 505. The owner of property which is to be let as a dwelling cannot recover damages for the temporary operation near it of a manufactory in such a manner as to con- stitute a nuisance, unless he shows a dim- inution in the rental value of the property because of the manner in which the manu- factory is conducted. McGill v. Pintsch Compressing Co. 20: 466, 118 N. W. 786, 140 Iowa, 429. 506. In an action to recover damages for the permanent diminution of the value of property by the use to which a factory is put some years after it was established, the increased value of the injured property bo- cause of the establishment of the factory which is common to all property in the neighborhood, cannot be considered ; but any incidental benefit to the injured property by reason of the operation of the plant, which is peculiar to such property, may be con- sidered. Brown v. Virginia-Carolina Chem- ical Co. 45: 773, 77 S. E. 1102, 162 N. C. 83. (Annotated) 507. The owner of a residence which is rendered inconvenient, uncomfortable, and unhealthy as a home by the nuisance of sulphurous fumes and their products thrown upon and into it by another, may prove and recover in an action therefor the damages he himself suffers from the discomfort and sickness thereby inflicted upon his wife and the other members of his family who live with him therein, although he may not, and his wife alone may, maintain the cause for the direct personal injury to her. Unit- ed States Smelting Co. v. Sisam, 37: 976, 191 Fed. 293, 112 C. C. A. 37. DAMAGES, III. kk-1, 2. 867 Tcfc. Injury to business. Punitive damages, see supra, 35. Loss of profits, see infra, 671, 679. Injury to business as result of exercise of eminent domain, see infra, 555, 556. Evidence as to, see EVIDENCE, 1729. 508. Loss of customers and employees is a natural consequence of wrongfully inter- fering with another's business by forbidding sales under threat of prosecution, for which the wrongdoer is liable in damages. Sparks v. McCrary, 22: 1224, 47 So. 332, 156 Ala. 382. 509. The damages to be awarded to an abutting property owner for the closing of a public alley do not include loss occa- sioned bv injury to his business. Hender- son v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. I. Condemnation or depreciation in value by eminent domain. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Payment of damages as abandonment of ap- peal, see APPEAL AND ERROR, 10. Review on appeal of award, see APPEAL AND ERROR, 941-944. Prejudicial error as to, see APPEAL AND ERROR, 1365-1367. Prejudicial error in admission of evidence on question of, see APPEAL AND ERROR, 1165. Interest on amount awarded, see APPEAL AND ERROR, 1550; INTEREST, 28, 29; TRIAL, 1161. Conferring upon public service commission power to determine, see CONSTITUTION- AL LAW, 128, 552; STATUTES, 352. Due process as to, see CONSTITUTIONAL LAW, 552, 559, 560. Effect of deed of land to convey right to damages for right of way appropriated, see DEEDS, 47. Who entitled to, see EMINENT DOMAIN, III. c, 2. Trial de novo of question of, on appeal, see EMINENT DOMAIN, 175. For consequential injuries from construc- tion of street grade, see HIGHWAYS, III. Sufficiency of evidence to take question of, to jury, see TRIAL, 109, 110. Instructions as to, see TRIAL, 993-996. Impeaching witness testifying on question of, see WITNESSES, 140. 510. The damages to be awarded for the turning of sewage into a stream by the permanent plant of a municipal corpora- tion should be assessed on the theory of a permanent taking under the right of emi- nent domain. McLaughlin v. Hope, 47: 137, 155 S. W. 910, 107 Ark. 442. 511. The measure of damages for perma- nent injuries to lands caused by the con- struction thereon of a public improvement Digest 1-52 L,.R.A.(N.S.) without right, which injuries do not totally destroy such lands, is the difference between the actual cash value thereof at the time immediately preceding the injury and the actual cash value immediately after the in- jury, with legal interest thereon to the time of trial. Bois6 Valley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. 512. The proper measure of damages on. appeal from condemnation proceedings to remove a mill-dam is the difference between the value of the mill property before the removal of the dam and loss of the water power, and its value after the removal has taken place. Maynard v. Drainage Dist. No. 2, 52: 1004, 143 N. W. 927, 94 Meb. 610. (Annotated) 513. The damages to be awarded for a right of way for a telegraph line is the value of the land occupied by the poles and the amount of decrease in the value of the land between the poles owing to the right to use it jointly with the property owner for stringing and maintaining the wires. Illinois Teleg. News Co. v. Meine, 26: 189, 90 N. E. 230, 242 111. 568. (Annotated) 514. Four thousand dollars is excessive to award the owner of the fee as damages for laying a pipe line for natural gas along a railroad right of way for a little over a quarter of a mile through a farm. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 515. A public utility company which has surrendered its franchise, and received an indeterminate permit under the Wisconsin utility law, is not entitled to compensation for such permit upon the exercise by the municipality of its right to purchase the property of the company. Appleton Water- works Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 516. In condemnation proceedings for the condemnation of a strip of land across a railway right of way for the purpose of a waterway with walks on each side, to con- nect two public navigable lakes in a city park system, and taking the place of a nat- ural water course between the lakes, the railway company is not entitled, as a part of the damages, to the cost of a bridge to carry its tracks over the waterway and walks. Chicago, M. & St. P. R. Co. v. Min- neapolis, 51: 236, 133 N. W. 169, 115 Minn. 460. 2. Value; estimate of. a. In general. (See also same heading in Digest L.R.A. 1-10.) As to abutting owners, see infra, III. 1, 4, a. Allowing for loss of profits, see infra, 679, 680. Admissibility of parol evidence, generally, as to what facts railroad commission based its award upon, see EVIDENCE, 904. Opinion evidence as to. see EVIDENCE, 1127. 808 DAMAGES, ill. 1, t. Relevancy of evidence as to, see EVIDENCE, 1694-1690, 1698, ]699, 1747, 1920. Correctness of instructions as to, see TRIAL, 993, 994. 517. The constitutional requirement of compensation for property taken for public use applies to property which has no mar- ket value ; but in such cases the value must be ascertained as nearly as possible by considering facts which would have weight between two persons bargaining for the property. Idaho & W. R. Co. v. Co- lumbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 518. In estimating the value of property taken for public use, it is the market value of the property which is to be considered, and the market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is not obliged to have the property. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 519. The fair market value of the land to seeking it by right of eminent domain is not the proper measure of compensation to be awarded for it. Sargent v. Merrimac, ii : 996, 81 N. E. 970. 196 Mass. 171. 520. The owner of two blocks of land, a portion of which is condemned by a rail- road company for its corporate use, is en- titled to compensation according to the most advantageous and profitable use he could make of his property; and his entire holding will not be treated as a farm in or- der to minimize his damages. Missouri, K. & T. R. Co. v. Roe, 15: 679, 94 Pac. 259, 77 Kan. 224. (Annotated) 521. The damages to be awarded for in- jury to land through the exercise of the right of eminent domain cannot be based on its earning capacity. White v. Pennsyl- vania R. Co. 38: 1040, 78 Atl. 1035, 229 Pa. 480. 522. The rental value of land is com- petent to be considered by the jury in deter- mining the compensation to be awarded in case it is taken under the power of eminent domain. Brown v. W. T. Weaver Power Co. 3: 912, 52 S. E. 954, 140 N. C. 333. 523. That land sought under the power of eminent domain is subject to an ease- ment in favor of a public-service corpora- tion is to be considered in fixing the com- pensation of the fee owner. Brown v. W. T. Weaver Power Co. 3:912, 52 S. E. 954, 140 N. C. 333. 524. The structural value of the build- ings may be considered in arriving at the amount to be awarded as damages for the condemnation of real estate, where the buildings are well adapted to the kind of land on which they are erected, and en- hance its value. Re New York, 41: 411, 91 N. E. 278, 198 N. Y. 84. (Annotated) 525. In determining the damages to be awarded for the construction of a railroad through a tract of land which has been platted as an addition to a city, but not yet opened up, the fact of its adaptability Digest 1-52 L.R.A.(N.S.) may be taken into consideration, and the market value of the property determined with reference to the value of the lots. St. Louis, I. M. & S. R. Co. v. Theodore Max- field Co. 26: i ii i, 126 S. W. 83, 94 Aik. 135. 520. A void contract for an exclusive right of way by a public service corpora- tion across the farm of a private citizen can form no basis for an award of damages in a proceeding by a rival company to con- demn a right of way across the .same farm. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 527. If a railroad commission in deter- mining the compensation to be paid a wa- terworks company for its plant, which is taken by a municipality, takes into con- sideration, in connection with other ditto bearing thereon, an estimate of the present cost of reproduction of the plant, such esti- mate cannot rightly include the cost of trenching, and of breaking up and relaying permanent pavements, for the laying of 'new service pipes from the main to tin- corpora- tion cock in the curb, since such expense properly belongs to the consumer. Apple- ton Waterworks Co. v. Railroad Commis- sion, 47: 770, 142 N. W. 476, 154 Wis. 121. (Annotated) 528. The compensation to be allowed a property owner for the opening of a road through the property should, under a Con- stitution requiring compensation for prop- erty taken, injured, or destroyed, be de- termined by finding the difference between the actual value of the general tract im- mediately before, and the actual value of the remainder immediately after, the tak- ing, excluding from consideration any en- hancement of or added value to the land not taken, by reason of the opening or use of the road. Broadway Coal Min. Co. v. Smith, 26: 565, 125 S. W. 157, 136 Ky. 725. Improvements. 529. The value of structures placed on land of an individual by a municipal corpo- ration against his command and without statutory authority in the construction of public improvements, prior to the institu- tion of proceedings to condemn the right under the power of eminent domain, must be taken into consideration in fixing the amount to bo paid for the land taken. St. Johnsville v. Smith, 5: 922, 77 N. E. 617, 184 N. Y. 341. (Annotated) 530. Damages in proceedings for the con- demnation of a site for a schoolhouse to not include the value of a school building and fences erected thereon by the school town- ship in reliance upon a judgment in con- demnation proceedings previously instituted against the husband of the real owner in the mistaken belief that he was the owner, where the real owner knew of such proceed- ings, and also knew of the erection of the improvements, and made no objections there- to until they were completed, and the sam had been used for some time as school prop- ertv. McClarren v. Jefferson School Twp. 13:^417. 82 N, E. 73, 169 Ind. 140. DAMAGES, III. 1, 3. SG9 531. One who has purchased a house re- moved from property needed for the widen- ing of a street, after it has been consid- ered in awarding compensation to the own- er of the property in the condemnation proceedings, cannot acquire a right to have its value again considered, by locating it within the line of the widened street upon property the title to which has not yet been acquired by the public. Re New York, 36: 273, 89 N. E. 814, 196 N. Y. 255. (Annotated) b. Value for (See also same heading in Digest L.R.A 1-10.) Due process of law as to, see CONSTITUTION- AL LAW, 559, 560. Ascertainment of going value of plant of public utility corporation, see EMINENT DOMAIN, 168. 532. Where property sought to be taken under condemnation proceedings has no market value, evidence is admissible to show that the property is valuable for some peculiar or specific purpose, or is especially valuable on account of its formation, lo- cation, natural or artificial adaptability to a particular use, or to the peculiar use to which it is then applied. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 533. In fixing the damages for the taking of a portion of the property of a college for railroad purposes, the jury may con- sider the character of the location, its special fitness and adaptability for the uses to which it is then or may be devoted, the state of development and improvement of the property, the nature of the improve- ments, and the depreciation that will re- sult to the remaining portion of the prop- erty after the severance therefrom of the part taken under condemnation. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 534. In a proceeding to assess damages for injury to school properly through the grounds of which a right of way is con- demned for railroad purposes, the jury can- not consider, upon the question of total de- struction of the property for school purposes, the fact that the officers, acting conscien- tiously, would be justified in abandoning the use of the building for such purposes. San Pedro, L. A. & S. L. R. Co. v. Salt Lake City Bd. of Edu. 11:645, 90 Pac. 565,' 32 Utah, 305. 535. That a farm lies on the direct route between gas wells and the market does not bring it within the rule that the fact that property has a peculiar adaptability and in- creased market value because of its suit- ableness for the purpose for which it is sought may be taken into consideration in awarding damages for taking it, so as to increase the damages in case a right of way across it is sought for a pipe line. Digest 1-52 L.R.A.(N.S.) Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 536. The value of land on a river bank sought under the power of eminent domain, for a pond to supply a water power, a* part of the natural power at that point, may be considered in fixing the compensa- tion to be paid. Brown v. W. T. Weaver Power Co. 3: 912, 52 S. E. 954, 140 N. C. 333. (Annotated) 537. The existence of a water supply in a tract of land sought by a municipal corpora- tion for that purpose cannot be considered, in fixing the damages to be allowed for it, any further than it would have added to the value of the land in the open market. Sargent v. Merrimac, n: 996, 81 N. E. 970, 196 Mass. 171. (Annotated) 538. The possibility that one seeking land by right of eminent domain may secure the right from the legislature to carry water contained in it to supply municipalities, can- not be considered in fixing the compen- sation to be awarded for it. Sargent v. Merrimac, u: 996, 81 N. E. 970, 196 Mass. 171. 539. The compensation to be allowed a railroad company for the taking of its. switch yards for park purposes includes not only the value of the land as land, but its value in connection with the uses to which it is being devoted, such as the effect of the taking on the traffic of the road, but dis- regards the cost of establishing other yards. Southern R. Co. v. Memphis, 41: 828, 148 S. W. 662, 126 Tenn. 267. 540. The damages to be awarded for the appropriation of a right of way for a log- ging railroad through a canyon cannot in- clude the value of the property for the purpose of such road, based upon the as- sumption that all the limber from the watershed of the stream which flows through it will eventually pass down the canyon, if the timber belongs to strangers to the proceeding, so that the route to be taken by it depends upon their will alone. Meskill & C. R. R. Co. v. Luedinghaus, 51: 1090, 139 Pac. 52, 78 Wash. 366. 54L A tract of shore land and an island lying in the adjoining river, which was se- cured under a separate title, are not to be considered as one tract in assessing dam- ages for a railroad right of way on the for- mer, where, although connected by a ferry, and, at times pf low water, by dry land, they have been subjected to an independent and distinctly separate use, and the fact that the owner had a theory that he might use the shore tract as a feed ground for cattle raised on the island is too indefinite to become a basis for assessment of dam- ages. St. Louis, M. & S. E. R. Co. v. An- buchon, 9: 426, 97 S. W. 867, 199 Mo. 352. ( Annotated j 3. Consequential injuries. (See also same heading in Digest L.R.A, 1-10.) Nominal damages, see supra, 4. 870 DAMAGES, III. 1, 3. To abutting owners, see infra, III. 1, 4. Right to compensation for, see EMINENT DO- MAIN, III. e. Instructions as to, see TRIAL, 995. See also supra, 513. 542. In the exercise of the right of emi- nent domain under the statute of Oklahoma, which provides for the appointment of com- missioners to assess the injuries sustained by individuals because of the exercise of such right, which statute contains a pro- vision with reference to the duties of such commissioners, as follows: "And they shall inspect said real property and consider the injury whicli such owner may sustain by reason of such railroad; and they shall as- sess the damages which said owner will sus- tain by such appropriation of his land," damages to be allowed are not limited to the real estate taken and injured, but may be such damages as the owner actually sus- tains to either his real or personal property by such appropriation of his land. Blincoe v. Choctaw, O. & W. R. Co. 4: 890, 83 Pac. 903. 16 Okla. 286. (Annotated) 543. Under the statutes of Oklahoma, damages in condemnation proceedings for railroad right-of-way purposes are not lim- ited to the real estate taken and injured, but may be such damages as the owner actu- ally sustains to either his real or personal property by the appropriation of his land, and by reason of such railroad. Arkansas Valley & W. R. Co. v. Witt, 13: 237, 91 Pac. 897, 19 Okla. 262. 544. A verdict returned by the jury in a proceeding to condemn land is excessive where it includes consequential damages, although no proof is offered from which any fair and reasonable estimate of the amount of such damages can be made, and when the amount awarded is far above the highest proved value of the land actually appropriated. Postal Teleg. Cable Co. v. Peyton, 3: 333, 52 S. E. 803, 124 Ga. 746. 545. The compensation to be awarded for taking a right of way for a railroad through a tract of land must include not only the value of the property taken, but the diminished value of the residue. St. Louis, I. M. & S. R. Co. v. Theodore Max- field Co. 26: mi, 126 S. W. 83, 94 Ark. 135. 546. Where a railroad company condemn- ing a part only of a tract of land does not indicate or stipulate the specific manner in which it intends to use the property, or the number of tracks it proposes to lay, or whether it will use the land for switching purposes, the jury may consider the prob- able damages that will be sustained by the remaining land if the land taken is put to the most injurious use to which the rail- road company may lawfully put it under the condemnation proceedings. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 547. The damages for a railroad right of way may include compensation for the burden imposed upon the landowner of furnishing lateral support to the road, with Digest 1-52 L.R.A.(N.S-) the tracks laid, and with any traffic and any speed which may be used thereon, to the full width. Manning v. New Jersey Short Line R. Co. (N. J. Err. & App.) 32: 155, 78 Atl. 200, 80 N. J. L. 34!). 548. A railroad company cannot be re- quired to ^pay for the total destruction of school property through the grounds of which it runs its tracks if the effect of operation of trains so near the building upon the efficiency and safety of the school can be reasonably overcome by those in charge of the school. San Pedro, L. A. & S. L. R. Co. v. Salt Lake City Bd. of Edu. ii : 645, 90 Pac. 565, 32 Utah, 305. 549. The fact that the school authorities have abandoned for school purposes a build- ing a portion of the grounds surrounding which has been taken for a railroad right of way cannot be considered by the jury in determining the injury to the property not taken. San Pedro, L. A. & S. L. 11. Co. v. Salt Lake City Bd. of Edu. n: 645, 90 Pac. 565, 32 Utah," 305. 550. In a proceeding to assess damages flowing to a landowner by reason of the construction across his premises of a tele- graph line under the power of eminent do- main, compensation may be awarded both for the land actually taken by the tele- graph company and for all consequential damages arising from the erection and main- tenance of its poles, wires, or other fixtures; but, before a recovery can be had for con- sequential damages, proof must be adduced which discloses the nature and extent there- of, and furnishes data from which a reasona- ble and proper estimate of the amount of compensation to which the landowner is en- titled may be made. Postal Teleg. Cable Co. v. Peyton, 3: 333, 52 S. E. 803, 124 Ga. 746. (Annotated) 551. The measure of damages for injuries to trees growing on land adjoining land condemned as a right of way for a tele- phone and telegraph line is that part of the depreciation in value, at the time of trial, of the entire tract not taken, caused by the injuries to the trees thereon con- sidered as a part of the realty, by the ap- propriation of a part of the land to the uses of the party condemning. Tri-State Teleph. & Teleg. Co. v. Cosgriff, 26: 1171, 124 N. W. 75, 19 N. D. 771. 552. The measure of damages for injuries to trees growing on land condemned as a right of way for a telephone and telegraph line is that part of the damage sustained at 'the time of the trial by the property taken which was caused by the injuries to the trees. Tri-State Teleph. & Teleg. Co. v. Cosgriff, 26: 1171, 124 N. W. 75, 19 N. D. 771. 553. The inconvenience resulting from the loss 'of a home is not to be taken into con- sideration in awarding damages for the con- demnation, under right of eminent domain, of a homestead. Madisonville. H. & E. R. Co. v. Ross, 13: 420, 103 S. W. 330, 126 Ky. 138. DAMAGES, III. 1, 4, 5. 871 Danger; possible injuries. See also infra, 556. 554. The danger to which occupants of the remaining land and the stock thereon will be exposed by the operation of a railway over land taken by eminent domain pro- ceedings cannot be considered in assessing the damages for injury to the land not taken. Indianapolis & C. Traction Co. v. Larrabee, 10: 1003, 80 N. E. 413, 168 Ind. 237. (Annotated) Injury to business. Loss of profits, see infra, 679. 555. Testimony by commissioners, who fixed the damages for land taken by right of eminent domain, five years after the award, aided by memoranda furnished by one of them, that they allowed a certain amount for interruption of business, is not sufficient to reduce the award by that amount, where there was evidence before them that the market value of the land was more than the sum awarded. Fitzhugh v. Chesapeake & O. R. Co. 17: 124, 59 S. E. 415, 107 Va. 158. 556. The compensation to be made for the taking by one railroad of an easement of crossing the tracks of another should be based on the depreciation in value of the property, resulting from the joint use of the tracks : and the value of the portion actual- ly used, and the consequent depreciation, if any, of the value of the remainder for rail- road purposes, should be considered; but mere interruption or inconvenience in the transaction of business, increased liability to accidents, and the stopping or flagging of trains at crossings, if required by statute or ordinances, do not constitute elements of damage. Kansas City, S. & G. R. Co. v. Louisiana Western R. Co. 5: 512, 40 So. 627, 116 La. 178. 4. As to abutting owners. a. In general; railroads and street railroads in streets. (See also same heading in Digest L.R.A. 1-10.) Nominal damages, see supra, 4. Setting off benefits, see infra, 581, 588, 589. Right to compensation, see EMINENT DO- MAIN, III. e, 2. As additional servitude for which compen- sation may be made, see EMINENT DO- MAIN, IV. b, 2. Evidence on question of, see EVIDENCE, 1G96. Instructions as to, see TRIAL, 995. 557. The measure of damages to which a property owner is entitled for the taking, in an adjoining highway, of a strip of land for a telephone and telegraph line, is the present value of the owner's interest in the land actually taken, and the depreciation in value sustained, at the time of the trial, by land adjoining that taken, by the ap- propriation to the uses of the party con- demning. Tri-State Teleph. & Teleg. Co. v. Cosgriff, 26: 1171, 124 N. W. 75, 19 N. D. 771. Digest 1-52 L.R.A.(N.S.) 558. The measure of damages to which a property owner is entitled for the con- struction, in the adjoining highway, of an interurban street railroad, is the difference in value of the property free from and sub- ject to the burden. Abbott v. Milwaukee Light, Heat & Traction Co. 4: 202, 106 N. W. 523, 126 Wis. 634. 559. Upon the question of damages to be awarded, abutting owners for the condemna- tion by an interurban railway of the right to operate cars along the tracks of a street railway operated under a limited franchise, the fact that the right to continue the tracks was made perpetual should be taken into consideration, and also, in mitigation of damages, the fact of the existence of the street railway, which under its franchise, must continue to operate the road for a con- siderable period of time. Gosa v. Milwau- kee Light, Heat, & Traction Co. 15:531, 114 N. W. 815, 134 Wis. 369. (Annotated) 560. A property owner is not entitled to be reimbursed any portion of the expense which has been assessed against him for paving the street in front of his property, as a condition to the laying of street rail- way tracks therein, although, had the tracks been laid before the pavements were con- structed, a portion of the cost would have been assessed against the railway company. Birmingham R. Light & Power Co. v. Smyer, 47: 597, 61 So. 354, 181 Ala. 121. 561. The damages for taking a right to construct a subway under a street, under a statute providing that, on the filing of the oath of the commissioners, the city shall be seised in fee of the property rights sought to be acquired, need not be limited to the value of the property immediately before and immediately after the filing of such oath, but may include compensation for in- jury to the property by the prosecution of the work, and that which with reasonable certainty will be inflicted by interference with lateral support throug.'i the proper construction and operation of the enter- prise, including the rental value of the premises during the period, if any, while they are actually untenantable. Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. b. Elevated railroads. (See same heading in Digest L.R.A. 1-10.) 5. In highivay cases. (See also same heading in Digest L.R.A. 1-10.) Nominal damages, see supra, 5. Presumption as to damages allowed when highway opened, see HIGHWAYS, 3. Right to compensation, see EMINENT DO- MAIN, III. e, 4. 562. The damage to be awarded to abut- ting owners for the closing of an alloy is the difference in the market value of the property with the alley open and closed. 872 DAMAGES, III. 1, 6. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 503. A city, in causing the construction of an approach to a bridge over a canal which was enlarged and maintained by a water power company across a public street un- der a contract giving the city drainage rights, and apportioning the burden of con- struction and maintenance of bridges, does not proceed under its charter power.over its streets, or to erect bridges, so as to require compensation for the resulting injury to private property to be measured by the rule governing the taking of property for public use under its charter powers. Kanson v. ,^ault Ste. Marie, 15:49, 107 N. W. 439, 143 Mich. 661. . 564. The building of a railroad embank- ment across that portion of a street which has been vacated by the city is not an element to be considered in assessing dam- ages caused by the vacation, of the street, to property abutting on that portion of the street not vacated, as the building of the railroad was no part of the street vacation. Newark v. Hatt (N. J. Err. & App.) 30: 637, 77 Atl. 47, 79 N. J. L. 548. Laying street out across railroad track. 565. A railroad company across whose tracks a street is opened is not entitled to compensation for the fee of the land taken, if the public acquires only an easement therein. Louisville & N. R. Co. v. Louis- ville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 566. The full compensation to which a railroad company is entitled for the open- ing of a street across its tracks is the difference in value between the exclusive and the joint use of the property. Louis- ville & N. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 567. The damages to he awarded a rail- road company for the opening of a street across its track should not include liabil- ity for injuries by surface water, which may result from the construction of the high- way, since, for negligence causing the water to flow upon the railroad property, the municipality would be liable in an action for damages. Louisville & N. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 568. The damages to be awarded to a railroad company for the construction of a highway across its tracks should not in- clude the cost of making and maintaining the crossing, or of protecting it by safety appliances, or compensation for increased liability to accidents because of the cross- ing. Louisville & N. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 569. In condemning a right of way for a street across railway tracks, the railway company may recover for the diminution in vahie of its exclusive right to the use for railway purposes of the property sought to be condemned, caused by the extension and use of the street, but it cannot re- cover for necessary structural changes, as such changes are "imposed by the statute, enacted under the police power of the state, Digest 1-52 L.R.A.(N.S.) which authorizes the laying out and con- demnation of land for the street. Grafton v. St. Paul, M. & M. R. Co. 22: i, 113 N. W. 598, 16 N. D. 313. 570. The cost of constructing the crossing cannot be recovered by a railroad company in eminent domain proceedings to lay out a highway across its tracks. New York, C. & St. L. R. Co. v. Rhodes, 24: 1225, 86 N. E. 840, 171 Ind. 521. Establishing or changing street grade. Nominal damages, see supra, 6. Setting off benefits, see infra, 579, 590. Right to compensation, see EMINENT DO- MAIN, 276-283. Opinion evidence as to, see EVIDENCE, 1125-1132. Interest on, see INTEREST, 23. 571. The measure of damages in case of injury to abutting property by reason of the first establishment of a street grade by the municipality is the difference in value of the property before and after the estab- lishment of the grade, except where the cost of restoring the property to its original con- dition with reference to the street is less than the difference in value, in which case the cosl of the restoration is the measure of the property owner's relief. Sallden v. Little Falls, 13: 790, 113 N. W. 884, 102 Minn. 358. 572. The measure of damages to abutting property for the change of a street grade is the difference between the fair market value of the property immediately before it became known that the work would be done and just after the work was com- pleted. Lexington v. Chenault, 44: 301, 152 S. W. 939, 151 Ky. 774. (Annotated) 573. The measure of damages sustained by property by reason of a change in the grade of the street on which it fronts is the con- sequential diminution of the market value of the property or of the improvements thereon by reason of the grading, as well as the necessary cost of changes and alter- ations of the improvements and of the premises in order to preserve them and to conform to the new grade. Manning v. Shreveport, 13: 452, 44 So. 882, 119 La. 1044. 574. The cost of laying a new sidewalk in consequence of a change in a street grade may be taken into consideration in esti- mating the damages of an abutting owner, under a constitutional provision that pri- vate property shall not be damaged for public use without compensation, although no allowance can be made for it as a sep- arate item. Swift & Co. v. Newport News, 3: 404, 52 S. E. 821, 105 Va. 108. 6. Advantages; offsets. a. In general. (See also same heading in Digest L.R.A.. 1-10.) 575. A constitutional provision to the ef- fect that damages in condemnation proceed- ings shall be assessed irrespective of bene- DAMAGES, III. 1, 6. 873 fits applies to damages assessed for diminu- tion in value of property not taken. St. Louis, I. JVI. & S. R. Co. v. Theodore Max- field Co. 26: mi, 126 S. W. 83, 94 Ark. 135. 576. The existence of a space under a pub- lic viaduct, which may be used by the pub- lic who shall make use of an alley to reach property of the abutting owner, to turn their vehicles to facilitate egress, may be taken into consideration in estimating the damage to his property by closing one end of the alley, although, by contract with the city, a depot company has been given a right to use such space in perpetuity, if the use by the depot company is not exclusive. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 577. Benefits from a public improvement to land not taken cannot be set off against the value of the land taken, under a con- stitutional requirement that private proper- ty shall not be taken for public use with- out just compensation, where no question of assessment of benefits is involved, and the taking vests the fee in the public, which may, at discretion, abandon the improve- ment and divert the land to other uses. New York v. Consolidated Gas Co. 16: 335, 83 N. E. 299, 190 N. Y. 350. Establishment of highway. See also supra, 528. 578. Benefits cannot be set off against the consequential injuries to property a portion of which is taken for a public road, where the Constitution requires com- pensation to be made for property taken, injured, or destroyed. Broadway Coal Min. Co. v. Smith, 26: 565, 125 S. W. 157, 136 Ky. 725. Change of street grade. Special benefits, see infra, 590. 579. No damages can be recovered by an abutting property owner for a change of a street grade if the improvement has added to the market value of the property not- withstanding the expense of adjusting it to the new grade, under a constitutional pro- vision that private property shall not be damaged for public use without compensa- tion. Swift & Co. v. Newport News, 3: 404, 52 S. E. 821, 105 Va. 108. Construction of railroad. 580. In assessing damages for injury to land not taken in a proceeding to secure a railroad right of way benefits may be set off whicli actually enhance the market value of the property, although they are common to other property in the vicinity. Peoria, B. & C. Traction Co. v. Vance, 9: 781, 80 N. E. 134, 225 111. 270. (Annotated) 581. The owner of the fee of a street and property abutting thereon is entitled, in case of the construction by the municipal- ity of a subway for rapid transit purposes thereunder, in its proprietary capacity, to compensation for the property actually taken, without a deduction for benefits, and also to just compensation for the injury done to the remainder. Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. (Annotated) Digest 1-52 r,.K.A.(N.S.) b. Special benefits. (See also same heading in Digest L.R~A.. 1-10.) Constitutionality of statute as to, see CON- STITUTIONAL LAW, 225. 582. Special benefits may be set off, in proceedings to condemn a right of way for a railroad company, against the value of the part taken and damages shown to have accrued to the remainder. Mantorville R. & T. Co. v. Slmtrerland, 11: 277, 112 N. W. 1033, 101 Minn. 488. 583. The term ''special benefits," as used in railway condemnation proceedings, has the same meaning as when employed in highway, drainage, or municipal improve- ment proceedings only so far as private property is taken for public use by such proceedings; in other respects, identity of meaning must be determined with reference to distinctions due to exaction of payment as a condition precedent to the subsequent use of railway facilities, to the natural dif- ference in accessibility to the improvement, and to the judicial nature of proceedings to condemn, as distinguished from the admin- istrative character of ordinary local im- provement assessments. Mantorville R. & T. Co. v. Slingerland, 11:277, 112 N. W. 1033, 101 Minn. 488. 584. The common benefits accruing to a community from the construction of a rail- way are not special benefits available as a set-off in condemnation proceedings. Man- torville R. & T. Co. v. Slingerland, n: 277, 112 N. W. 1033, 101 Minn. 488. 585. Mere increase in facilities of trans- portation by reason of the construction of a railway does not amount to a special bene- fit which may be set off in condemnation proceedings. Mantorville R. & T. Co. v. Slingerland, 11:277, 112 N. W. 1033, 101 Minn. 488. 586. Special benefits available as a set-off in condemnation proceedings must be pro tanto a fair equivalent for the land parted with and the damages inflicted, and to that end they must be special, not common; direct, not consequential ; substantial, not speculative; proximate, not remote; actual, and not constructive. Mantorville R. & T. Co. v. Slingerland, u: 277, 112 N. W. 1033, 101 Minn. 488. 587. Enhanced value of land for com- mercial or quarrying purposes, due to tho construction of a railway across the prem- ises, is not a special benefit which may be set off in condemnation proceedings against the value of the land taken for the rail- road right of way. Mantorville R. & T. Co. v. Slingerland, u: 277, 112 N. W. 1033, 101 Minn. 488. 588. The jury cannot be permitted to con- sider the question of setting off of special benefits against the damages to be allowed to abutting property owners for the construc- tion of an interurban railway in a city street where no such benefits are shown by the evi- dence. Gosa v. Milwaukee Light, Heat & S74 DAMAGES, III. m, n. Traction Co. 15: 531, 114 N. W. 815, 134 Wis. 369. 589. The operation of a street railway along a street cannot be considered as a benefit to be set off against the damages to be awarded abutting property owners upon the condemnation of the right to operate interurban cars along the railway tracks where the duty to operate the street cars will continue under the street-railway fran- chise after the acquisition of rights by the interurban company. Gosa v. Milwaukee Light, Heat & Traction Co. 15: 531, 114 N. W. 815, 134 Wis. 369. Change of street grade. See also supra, 579. 590. In estimating the value of property for the purpose of assessing the damages sustained by it from a change of the grade of the street on which it abuts, resulting benefits common to the community should not be taken into account, but only those which are peculiar to the property dam- aged. Manning v. Shreveport, 13: 452, 44 So. 882, 119 La. 1044. m. In injunction cases. (See also same heading in Digest L.R.A. 1-10.) Right to damages in injunction suit, see INJUNCTION, 432-434, 436-440. 59L The damages for wrongfully enjoin- ing the erection of a dwelling on a parcel of real estate are the reasonable rental value of the property with the building upon it, during the time its enjoyment was prevent- ed by the injunction, where the building would have been erected but for the injunc- tion, and was actually built as soon as the injunction was dissolved. Stone v. Hunter Tract Improv. Co. 39: 180, 122 Pac. 370, 68 Wash. 28. (Annotated) 592. In an action on an injunction bond, given in a suit brought to restrain the en- forcement of a judgment, the extent to which the amount collectable on the judg- ment has been reduced in consequence of the injunction is a proper element of dam- age. Stull v. Beddeo, 14: 507, 112 N. W. 315, 78 Neb. 114. Counsel fees. 593. A bond to pay all damages sustained by the issuance of an injunction may in- clude attorneys' fees necessary to secure its dissolution. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. (Annotated) n. In trademark,, patent, and copy- right cases. (See also same heading in Digest L.R.A. 1-10.) Trademark cases. Punitive damages, see supra, 36, 37. Evidence in action to recover, see EVIDENCE, 2083. 594. One guilty of simulating another's trademark, and also of unfair trade in lead- Digest 1-52 I*R.A.(N.S.) ing customers to believe that his product is that of the other, is liable not only for the profits realized from goods containing the fraudulent trademark, but also for the prof- its resulting from the wrongful acts commit- ted in the unfair competition. W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co. 4: 960, 62 Atl. 499, 100 Me. 461. 595. One who has made castings for a stove upon which another has placed a trademark, and placed thereon marks which infringe the trademark, and sold them as those of the owner of the trademark, can- not be regarded as an accidental and unin- tentional infringer, so as to avoid an ac- counting for profits. Reading Stove Works, Orr, P. & Co. v. S. M. Howes Co. 21: 979. 87 N. E. 751, 201 Mass. 437. 596. One infringing a trademark in the production and sale of a portion of his prod- uct cannot, in accounting with the owner of the trademark, charge against the profits thereon any portion of the general expenses of the business not shown to have been in- curred by dealing in the protected product. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 597. Failure of inf ringers of a trademark to keep accurate accounts of the amounts of their expenses and profits after notice to stop the infringement may be taken as evi- dence against them, in determining the prof- its for which they are accountable to tin- owner of the trademark. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 598. That the owner of .a trademark aided his licensee in acquiring the reputation of being the manufacturer of the product sold under it does not make it inequitable to re- quire the licensee to account for the profits which he made by continued use of the trademark after the license had been with- drawn. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 599. The sum fixed by the parties to be paid annually for the use of a trademark and business name is evidence of the dam- ages to be allowed for their wrongful use after the expiration of the contract right. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 600. The absence of evidence that the owner of a trademark has sustained damage because of anothei^s use of it does not make it inequitable to hold the latter liable to him for profits made by its use. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 601. A jobber who has acquired a trade- mark on the goods dealt in by him cannot, in case his manufacturer infringes his trade- mark, claim from him the manufacturer's profit, but only that which would have come to him as jobber, and which was protected by his trademark. Nelson v. J. H. Winchell Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 602. In ascertaining the profits of a busi- ness for which the infringer of a trademark is liable to account, the master may treat a cost sheet prepared by one of the original DAMAGES, III. o, 1. 875 firm of the infringers, who was fully ac- quainted with the business, as evidence of the cost, in the absence of explicit evidence to the contrary. Nelson v. J. II. Winchell & Co. 23: 1150/89 X. E. 180, 203 Mass. 75. 603. In determining the amount of profits for which an infringer of a trademark is li- able to account to its owner, sales for which the price cannot be collected should not be considered. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. Patent cases. Presumption and burden of proof, see EVI- DENCE, 657. 604. Such part only of the commingled profits are as attributable to the use of his invention can be recovered by the patentee in a suit against an infringer who has added noninfringing and valuable improve- ments contributing to the profits. West- inghouse Electric & Mfg. Co. v. Wagner Electric & Mfg. Co. 41:653, 32 Sup. Ct. Rep. 691, 225 U. S. 604, 56 L. ed. 1222. Copyright cases. 605. The owner of a copyrighted story is entitled to the profits accruing from the production o an unauthorized dramatiza- tion of it. Dam v. Kirk La Shelle Co. 41 : 1002, 175 Fed. 902, 99 C. C. A. 392. o. Mental anguish. 1. Accompanying physical suffering. (See also same heading in Digest L.R.A. 1-10.) Punitive damages, see supra, 38. Bar to recovery for, see ACTION OR SUIT, 91. Presumption and burden of proof as to, see EVIDENCE, 681, 682. Evidence as to, see EVIDENCE, 1806. Right of married woman to recover in her own right for mental anguish resulting from injury, see HUSBAND AND WIFE, 176. Railroad company' liability for failure of employees to gather up remains of per- son killed on tracks, see MASTER AND SERVANT, 885. Instructions as to, see TRIAL, 890. See also supra, 351, 383, 385; infra, 616. 606. The mental suffering for which the law permits an allowance of damages when it is caused by personal injuries inflicted by another's negligence may include the mental worry, distress, grief, and mortifica- tion which may be shown to exist because of the injury. Merrill v. Los Angeles Gaa & Electric Co. 31:559, 111 Pac. 534, 158 Cal. 499. 607. One suing for personal injuries may recover for the bodily suffering and mental pain which are inseparable, and which neces- sarily and inevitably result, from the in- jury, but not for the mortification and dis- tress of mind from the contemplation of Digest 1-52 L.R.A.(N.S-) his crippled condition and its effect upon the esteem of his fellows, as it is too remote, indefinite, and intangible. Southern P. Co. v. Hetzer. i: 288, 135 Fed. 272, 68 C. C. A. 26. 608. Mental suffering is not an element of damages for an accidental injury re- sulting in the slight shortening of a person's leg, a disfigurement which cannot render his presence objectionable to any person or make him an object of pity or ridicule. Dia- mond Rubber Co. v. Harryman, 15:775, 92 Pac. 922, 41 Colo. 415. (Annotated) 609. The allowance of damages for per- sonal injury cannot include mental suffer- ing which the injured person endures because, on account of his accident, his fam- ily has no means of support and his chil- dren no way of procuring an education. Ferebee v. Norfolk Southern R. Co. 52: 1114, 79 S. E. 685, 163 N. C. 351. 610. Damages for personal injuries to a pregnant woman may include compensation for mental suffering because of probable deformity of the child because of the in- jury, as well as for her disappointment at the birth of a deformed child, but not for regret because of the child's suffering on account of the deformity. Prescott v. Robin- son, 17: 594, 69 Atl. 522, 74 N. H. 460. (Annotated) 611. A pregnant woman who, by reason of injuries negligently inflicted, suffers a mis- carriage, is entitled to recover such dam- ages as will fairly compensate her for the pain and suffering occasioned by the mis- carriage, but not for the pain and suffering occasioned by the loss of the child. Mor- ris v. St. Paul City R. Co. 17: 598, 117 N. W. 500, 10 Minn. 276. To passenger. In absence of physical suffering, see infra, III. o, 2, c. Evidence as to, see EVIDENCE, 1720, 1721. See also supra, 256, 301. 612. Mental anguish for fear of going into consumption is not an element of damage to be allowed against a railroad company be- cause of whose neglect to heat its passenger station a passenger is made ill with cold and fever. St. Louis, I. M. & S. R. Co. v. Buckner, 20: 458, 115 S. W. 923, 89 Ark. 58. (Annotated) 613. The damages for wrongful assault of a passenger by pushing another against her, causing physical injury and mental suffer- ing, are such as will reasonably compensate her for the physical and mental suffering directly caused by the physical impact and fright. Chesapeake & O. R. Co. v. Robi- nett, 45: 433, 152 S. W. 976, 151 Ky. 778. 614. The damages to be allowed against a carrier for failing to protect a passenger from assault by a fellow passenger may in- clude compensation, not only for the bodily pain, but for the mental suffering, anxiety, suspense, and sense of wrong from insult, connected therewith. Jansen v. Minneapo- lis & St. L. R. Co. 32: 1206, 128 N. W. 826, 112 Minn. 496. 876 DAMAGES, III. o, 2. /. Unaccompanied by physical injury. a. In general. (See also same heading in Digest L.R.A.. 1-10.) Right of action for causing relapse of con- valescent woman by threatening and abusive language, see CASE, 2. Judicial notice as to effects of mental suffer- ing, see EVIDENCE, 61. Evidence as to, see EVIDENCE, 1750. Right to recover for fright or injuries due thereto, see FRIGHT. Proximate cause of injury from fright, see PROXIMATE CAUSE, X. See also supra, 310, 315, 320. 015. Damages may be recovered for men- tal suffering when caused by wilful and wanton wrongs or wrongs committed with malice and intention to cause mental dis- tress even when unaccompanied by bodily in- jury. Small v. Lohergan, 25: 976, 105 Pac. 27, 81 Kan. 48. 616. One who swallows several pieces of broken glass contained in a bottle of a bev- erage placed on sale, which are subsequently removed from his stomach leaving apparent- ly no permanent injury, may recover from the manufacturer of the beverage for men- tal suffering caused by fear of death while the glass was in his stomach, but not for the vague fear, after the removal of the glass and his restoration to health, that at some time in the future he may again suffer as the result of his injuries. Watson v. Augusta Brewing Co. i: 1178, 52 S. E. 152, 124 Ga. 121. 617. Damages cannot be allowed to a par- ent as compensation for the sorrow and dis- tress which results from the wrongful kill- ing of his child. Bond v. United Railroads, 48: 687, 113 Pac. 306, 159 Cal. 270. 618. In an action in behalf of a father for killing liis son by wrongful act or negli- gence, the jury is not confined to compen- sative damages for mere pecuniary injury, but may consider the sorrow, the mental distress, and bereavement of the father. Kelley v. Ohio River R. Co. 2: 898, 52 S. E. 520, 58 W. Va. 216. (Annotated) 619. In an action to recover for wrong- ful death, the jury are not limited to mere pecuniary damages, but may allow for mental anguish and suffering of near rela- tives of deceased, who are his distributees. Wigal v. Parkersburg, 52: 465, 81 S. E. 554, _ w. Va. . 620. A parent cannot recover damages for mental shock and distress on account of the unlawful arrest and prosecution of minor children on a charge of malicious mischief, nor for illness resulting from such shock. Sperier v. Ott, 7: 518, 41 So. 323, 116 La. 1087. (Annotated) 621. A man cannot recover damages for mental suffering because of a carrier's de- lay in delivering the baggage of his intended wife, which causes postponement of the wedding, at least, where the carrier was Digest 1-52 L.R.A.(N.S.) not notified of the anticipated wedding, ao that it could not have had such damages) in contemplation. Eller v. Carolina & W. R. Co. 3: 225, 52 S. E. 305, 140 N. C. 140. (Annotated) 622. Damages for mental pain and an- guish, illness, threatened miscarriage, and possibly permanent injuries, due to fright resulting from an assault committed by a stranger in the hearing of a pregnant wom- an, are too remote to form a basis of action on her behalf against the assailant. Reed v. Ford, 19: 225, 112 S. W. 600, 129 Ky. 471. Breach of contract. As to telegram or telephone message, see in- fra, III. o, 2, b. Caused by delay in delivering baggage, see ACTION OR SUIT, 105. Sufficiency of pleading to permit recovery for, see PLEADING, 84. See also supra, 206, 277; infra, 632. 623. Damages for mental anguish can be recovered in an action for breach of con- tract only where the breach amounts to an independent, wilful tort. Beaulieu v. Great Northern R. Co. 19: 564, 114 N. W. 353, 103 Minn. 47. 624. The liability of a bank which refuses to return a fund deposited with it to defray the expenses of the sick wife of the de- positor, by which treatment is delayed, does not include compensation for the mental suffering of the depositor. Smith v. San- born State Bank, 30: 517, 126 N. W. 779, 147 Iowa, 640. 625. One cannot recover damages for mental anguish because of the loss by a pho- tographer of undeveloped negatives of her child, who died after the exposures were made, although he was notified of the facts when they were delivered to him for de- velopment and printing, if they were de- livered by an agent who did not suggest or give notice that she was acting for the mother. Thomasson v. Hackney & Moale Co. 47: 1 120, 74 S. E. 1022, 159 N. C. 299. (Annotated) 626. Mental suffering by a man because a physician whom he has employed to at- tend his sick wife delays upon the way, and thereby fails to minister to her suffering, is not an element of damages to be recovered for breach of the contract. Adams v. Brosius, 51: 36, 139 Pac. 729, 69 Or. 513. (Annotated) 627. The damages to be awarded for wrongful removal by a telephone company of a subscriber's phone may include com- pensation for the necessary inconvenience and humiliation fairly attributable to the wrong done, and an allowance may be made for anxiety increased by loss of telephone communication with a relative sick in the hospital, of which fact the telephone com pany has notice. Carmichael v. Southern Bell Teleph. & Teleg. Co. 39: 651, 72 S. E. 619, 157 N. C. 21. 628. Mental suffering from humiliation is not an element of damages in an action for breach of contract for refusal to admit a ticket holder to a dance hall because in the uniform of a petty officer of the United DAMAGES, III. o, 2. 877 States Navy, especially where he knew, or could have ascertained without humiliation, that uniformed men were barred; and where he violated the naval regulations by appear- ing in civilian clothes in order to get the ticket; and where, when he presented him- self for admission, he was offered a civil- ian's coat, and was told that he could go in if he would put it on. Buenzle v. Newport Amusement Asso. 14: 1242, 68 Atl. 721, 29 R. I. 23. (Annotated) 629. One unlawfully expelled from a bathing establishment under humiliating circumstances, after having paid for ac- commodations therein, may, in an action for breach of contract, recover damages for the indignity attending the expulsion. Aaron v. Ward, 38: 204, 96 N. E. 730, 203 *T. Y. 351. (Annotated) A* *o corpse. Sufficiency of complaint to entitle one to recovery of, see PLEADING, 632. See also infra, 651. 630. Damages for mental anguish may be recovered in an action by a husband against a common carrier for soiling and ruining the casket containing the body of his dead wife, and mutilating and disfiguring the corpse, by negligently and wilfully exposing the casket to the rain. Lindh v. Great Northern R. Co. 7: 1018, 109 N. W. 823, 99 Minn. 408. 631. Parents are not entitled to recover iamasres for mental pain and anguish oc- casioned by the negligent mutilation of the dead body of their child, due to the careless handling of the casket containing it, by the employees of a carrier; but the actual dam- ages sust&ined from injury to the coffin or clothes of the corpse may be recovered. Long y. Chicago, R. I. & P. R. Co. 6: 883, 86 Pac. 289, 15 Okla. 512. (Annotated) 632. Damages for mental anguish cannot be recovered for breach of a contract by a railway company to transport a corpse over its line to a particular point, and to de- liver it there to an intersecting carrier, to be conveyed to its place of destination, where the breach consists in the negligence of the ompany in carrying the corpse beyond the connecting point, thus causing a delay in the funeral arrangements, in the absence of wilful or malicious misconduct on the part of the company or its agents. Beaulieu v. Great Northern R. Co. 19: 564, 114 N. VV. 353, 103 Minn. 47. (Annotated) Assanlt. See also supra, 622. 633. Damages for mental suffering may be awarded to one upon whom an assault is committed by seizing a box carried by her while trading in defendants' store and searching it for stolen goods in the presence of others, which insult and indignity was emphasised by the offering of no apology upon discovering that the contents had not been obtained in their store and by ordering her to leave the store when she complained of the treatment extended her, although there was no battery or bodily injury in- flicted, as an assault is a wilful infringe- Digest 1-52 L.R.A.(N.S.) ment of the absolute right of personal se- curity for which recovery may be had even in the absence of actual bodily injury. Small v. Lonergan, 25: 976, 105 Pac. 27, 81 Kan. 48. (Annotated) 634. One who decoys a woman from home in the night on a fictitious errand of mercy, attempts to take undue liberties with her, slanders her and subjects her to humiliating gossip of the neighborhood, may be liable to answer in damages not only for the as- sault, but to compensate her for the mental suffering, humiliation, and disgrace caused by his act. Kurpgeweit v. Kirby, 33: 98, 129 N. W. 177, 88 Neb. 72. (Annotated) Libel. Allegations of mental anguish in complaint for libel, see PLEADING, 218. 635. Mental suffering alone can be made the basis for damages for libel. Jozsa v. Moroney, 27: 1041, 51 So. 908, 125 La. 813. 636. The influence upon plaintiff's mind of the grief experienced by his wife upon read- ing a libelous article regarding him is not an element of damage recoverable in an ac- tion for the libel. Dennison v. Daily News Pub. Co. 23: 362, 118 N. W. 568, 82 Neb. 675. (Annotated) Criminal conversation. 637. Damages for criminal conversation may include compensation for the mental, suffering of the husband. Stark v. Johnson, 16: 674, 95 Pac. 930, 43 Colo. 243. (Annotated) b. Default as to telegram or telephone message or the transmission of money. (See also same heading in Digest L.R.A. 1-10.) Reducing recovery on appeal, see APPEAL AND ERROR, 1599. Conflict of laws as to, see CONFLICT OF LAWS, 161-165. Class legislation as to, see CONSTITUTIONAL LAW, 333. Due process in statute as to, see CONSTITU- TIONAL LAW, 5(i2. Failure promptly to transmit telegram to secure forwarding of corpse, see TELE- GRAPHS, 47. Notice of probable mental suffering, see TELEGRAPHS, 52-54, 56-64. See also supra, 627. 638. In the absence of statute, damages are not recoverable for mental distress alone, caused by negligent delay in deliver- ing a telegram. Western U. Teleg. Co. v. ( houteau, 49: 206, 115 Pac. 879, 28 Okla. 664. (Annotated) 639. A statute rendering telegraph com- panies liable for mental suffering due to negligence in receiving, transmitting, and delivering messages does not apply in case of the negligence of telephone companies. Southern Teleph. Co. v. King, 39: 402, 146 S. W. 489, 103 Ark. 160. 640. Prolonging mental suffering by fail- ing to deliver a telegram that would relievo 878 DAMAGES, III. o, 2. it is as much a ground for liability as caus- ing or producing the suffering originally. Middleton v. Western U. Teleg. C'o. 49: 305, 02 So. 744, 183 Ala. 213. (Annotated) 641. One cannot recover damages for mental suffering because of erroneous belief that some misfortune had befallen the sen- dee of an undelivered telegram because of his failure to respond to it. Western U. Teleg. Co. v. Garlington, 49: 300, 142 S. W. 854, 101 Ark. 487. 642. One sending a telegram to another to meet him and be ready to return with him by next train cannot, undei a statute per- mitting a recovery for mental anguish, re- cover as damages for delay in its delivery, by reason of which he is not able to return at that time, compensation for mental suf- fering because he fears something may have befallen the sendee, and, having only one day's leave of absence from his employ- ment, thinks he may be discharged for over- staying his time. Western U. Teleg. Co. v. Shenep, 12: 886, 104 S. W. 154, 83 Ark. 476. (Annotated) 643. One to whom a message of acquies- cence is sent by a surgeon who had been re- quested by telegraph to operate for appen- dicitis may recover substantial damages from the telegraph company for nondelivery of the message, because of the mental suffering endured by him, because uncertain whether or not relief would reach him in time to prevent death. Alexander v. West- ern U. Teleg. Co 42:407, 74 S. E. 449, 158 N. C. 473. 644. Mental distress suffered by a woman who, immediately after her confinement, telegraphs her husband to come home im- mediately, because his answer is delayed and she imagines that he is ill or indiffer- ent, will not sustain a recovery of damages against the telegraph company, where he promptly obeys the summons, and there is therefore no ground for actual sorrow or grief which the prompt delivery of the mes- sage would have relieved. Western U. Teleg. Co. v. McKenzie, 49: 296, 131 S. W. 684, 96 Ark. 218. (Annotated) 645. A woman cannot recover damages for mental anguish from a telegraph company because of its changing a message announcing her husband's arrival home by a certain day so as to announce a date earlier than she expected him, which arises from her assumption that he must be ill, and worrying because he did not come when the telegram says he would. Western U. Teleg. Co. v. Oaatler, 49: 325, 119 S. W. 285, 90 Ark. 268. 646. A telegraph company which causes a delay of a couple of days in the starting of a sick child for another climate through loss of a message is not answerable in dam- ages for the mental anguish suffered by the father pending the delay, because of the child's condition ; at least, if there was noth- ing to prevent the starting of the child without fixing definitely its accommodations at destination, which the message was in- tended to effect. Mackay Telegraph-Cable Digest 1-52 I*R.A.(N.S.) Co. v. Vaugfian, 51: 404, 163 S. W. Io8, 111 Ark. 504. 647. A woman who, in the exercise of reasonable care, passes the night in a rail- way station where rough-looking men are sleeping on the floor, because of the failure of a telegraph company to deliver a message requesting friends to meet her on a mid- night train, which on its face shows that their residence is 3 miles from the station, can hold the company liable for the mental suffering thereby caused; the local condi- tions, with notice of which the company is charged, being such that the street cars are not running, and to reach her friends sin; must pass through the red-light district. Postal Teleg. Cable Co. v. Terrell, 14: 927, 100 S. W. 292, 124 Ky. 822. (Annotated) Summoning physician. 648. The negligent failure of a telegraph company to transmit and deliver within u reasonable time a telegram summoning a physician, sent on behalf of a sick person, does not render it liable to such person for mental and physical suffering endured be- tween the time when the physician would have come if the telegram had been prompt- ly delivered, and the time when he actually arrived. Seifert v. Western U. Teleg. Co. ii : 1149, 58 S. E. 699, 129 Ga. 181. ( Annotated ) Concerning illness or death. Conflict of laws as to, see CONFLICT OF LAWS, 161-165. Presumption as to mental suffering, see EVI- DENCE, 681, 682. What evidence admissible to show, see EVI- DENCE, 1708. Sufficiency of proof of mental anguish, see EVIDENCE, 2319. Sufficiency of findings to support judgment for, see TBIAL, 1129. See also TELEGBAPHS, 52, 53, 56-60, 62. 649. Damages for mental anguish may be allowed against a telegraph company which negligently fails promptly to transmit and deliver a telegram announcing a death. Cates v. Western U. Teleg. Co. 24: 1286, 66 S. E. 592, 151 N. C. 497. 650. In the absence of any proof of gross or wanton negligence, a telegraph company is not liable for physical sickness which fol- lows as a result of a nervous shock or mental anxiety and distress because of negli- gent delay in delivering a te'egram an- nouncing the death of a relative, whereby, and on account of which delay, the ad- dressee, or party desirous of being communi- cated with, is prevented from attending the funeral services. Western U. Teleg. Co. v. Fy, 49: 343, 124 Pac. 305, 32 Okla. 801. (Annotated) 651. A telegraph company which fails to deliver a telegram directing preparation for a funeral is liable for mental suffering caused by the exposure of the corpse for several hours to the rays of the sun. and the delay of the burial to a very late hour of the night. Lyles v. Western U. Teleg. Co. 12: 534, 57 S.' E. 725, 77 S. C. 174. 652. The fact that plaintiff in an action to recover damages for mental anguish from DAMAGES, III. o, 2. 879 nondelivery of a telegram in time to enable him to attend his father's funeral testified in an oral cross-examination for the pur- pose of discovery that he would rather give $100 than miss going to his father's funeral, and that he would not take $100 and miss his father's funeral, will not preclude him from recovering a greater amount. Nitka v. Western U. Teleg. Co. 49: 337, 135 N. W. 492, 149 Wis. 106. 653. Eleven hundred dollars is not such an excessive allowance to a father for men- tal suffering in being deprived of the op- portunity to assist in preparing the body of his child for burial, through the neglect of a telegraph company in failing promptly to deliver a message to him, that the appel- late court can set the verdict aside as ar- bitrary or intended as punishment. West- ern U. Teleg. Co. v. Hill, 23: 648, 50 So. 248, 163 Ala. 18. 654. The intensification of the grief of a man by being delayed for twenty -four hours in reaching home after the death of his .vife, because of failure of a telegraph com- pany to deliver a message to him announc- ing her illness, entitles him to damages against the company although he could not have reached home before her death had the message been delivered, and he reached there in time fo*- the funeral. Maley v. Western U. Teleg. Co. 49: 327, 130 N. W. 1086, 151 Iowa, 228. 655. Where damages are allowed for men- tal suffering, a widowed mother may recover for such suffering caused by failure to de- liver her telegram by reason of which she is deprived of the consolation of her son at his brother's funeral and the days imme- diately following it. Western U. Teleg. Co. v. Garlington, 49:300, 142 S. W. 854, 101 Ark. 487. (Annotated) 656. Six hundred dollars is excessive as damages for delaying a man for twenty- four hours in reaching home after the death of his wife, because of failure to de- liver a telegram announcing her illness. Maley v. Western U. Teleg. Co. 49: 327, 130 N. W. 1086, 151 Iowa, 228. (Annotated) 657. Damages for mental suffering caused by failure to deliver an answer announcing the improvement of a sick relative in re- spouse to a message seeking information concerning him may be recovered under a statute allowing damages for mental suf- fering caused by failure to deliver tele- grams. Western U. Teleg. Co. v. Hollings- worth, ii : 497, 102 S. W. 681, 83 Ark. 39. ( Annotated ) 638. A mother may recover damages for mental anguish caused by failure to deliver to her husband a telegram announcing that their child had been sent to the pesthouse with a contagious disease, by reason of which she was deprived of his advice and counsel in her distress. Thurman v. West- ern U. Teleg. Co. 14: 499, 105 S. W. 155, 127 Ky. 137. (Annotated) 659. Damages cannot be recovered for mental suffering for nondelivery of a tele- gram in time to enable the sendee to at- Digest 1-52 L.R. A .(N.S.) tend the funeral of one to whom he was about to be married, but to whom he was not in the slightest degree related. Ran- dall v. Western U. Teleg. Co. 15: 277, 107 S. W. 235, 139 Ky. 373. (Annotated) Refusal to pay over money or delay in its transmission. 660. When the known probable result of the wilful refusal, without adequate excuse, of a telegraph company to pay over money to one entitled thereto, causes one to travel for more than twenty-four hours without food or funds, he may recover damages for bodily pain and suffering and for mental pain and anguish attendant thereon. West- ern U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, 50 Fla. 474. (Annotated) 661. A telegraph company which fails promptly to transmit money sent by a father to secure the forwarding of the corpse of his daughter for burial is liable to him for men- tal pain and anguish by reason of the de- lay in shipment of the corpse, and for loss of time and expenditure of money there- by caused. Cumberland Teleph. & Teleg. Co. v. Quigley. 19: 575, 112 S. W. 897, 129 Ky. 788. (Annotated) c. Failure of duty to passenger. (See also same heading in Digest L.R.A. 1-10.) Caused by delay in delivery of baggage, see ACTION OK SUIT, 105. Mental suffering as proximate result of ejec- tion of passenger, see PROXIMATE CAUSE, 95. 662. In the absence of physical injury, there can be no recovery for mental anguish arising solely from the circumstances that a railroad company failed to carry a passen- ger to his destination within the published schedule time, and that by reason of the delay the passenger failed to make a con- nection with the train of another railroad company upon which he expected to con- tinue his journey, although the carrier's agents were informed by the passenger while en route, of the urgency of arriving at his destination in time to connect witli the train of the other company. Central of Georgia R. Co. v. Wallace, 49: 429, 80 8. E. 282, 141 Ga. 51. (Annotated) 663. One accompanying her invalid sister on a railroad journey, who does not make the contract for the transportation, cannot recover damages for mental suffering due to the physical suffering of the invalid be- cause of the wrongful acts of the carrier in its manner of placing her on the train and neglecting to assist her off. Gulf, C. & S. F. R. Co. v. Overton, 19: 500, 110 S. W. 736. 101 Tex. 583. (Annotated) 664. Mental suffering due to disappoint- ment and humiliation because of refusal of a steamship company to receive and trans- port a passenger without a ticket which had been paid for, and which it had neglected to forward to him, could be taken into con- sideration as an element of the damages to 880 DAMAGES, III. p, 1. be allowed against the carrier for its neg- ligence. Zabron v. Cunard S. S. Co. 34: 751, 131 N. W. 18, 151 Iowa, 345. Insult a 'aid abuse. 665. A carrier is answerable in damages for mental suffering inflicted upon a pas- senger by insulting language addressed to him by the conductor without provocation, which is of a character calculated to humili- ate, mortify, and disgrace him. Bleecker v. Colorado & S. R. Co. 33: 386, 114 Pac. 481, 50 Colo. 140. (Annotated) 666. A carrier is not liable for mental suf- fering and humiliation of a passenger be- cause of abuse wilfully heaped upon him by the carrier's agent, in the absence of physi- cal injury. St. Louis, I. M. & S. R. Co. v. Taylor, 13: 159, 104 S. W. 551, 84 Ark. 42. (Annotated) Ejection. 667. In an action by an infant of ten- der years for wrongful ejectment from a railway car or train, which wrongful eject- ment was wilful and intentional, fright and terror are proper elements of damage, if such ejectment was under circumstances which would naturally cause fright and terror to the infant. Cincinnati Northern Traction Co. v. Rosnagle, 35: 1030, 95 N. E. 884, 84 Ohio St. 310. 668. A passenger wrongfully ejected from a train is entitled to recover reasonable com pensation for the indignity, humiliation, and mental suffering received and proximately resulting from the expulsion. Lindsay v. Oregon Short Line R. Co. 12: 184, 90 Pac. 984. 13 Idaho, 477. (Annotated) 669. Damages for humiliation cannot be allowed as part of the recovery for ejection of a passenger from a train, where he vol- untarily sutlers or seeks expulsion in order to lay the foundation for a damage suit. Brenner v. Jonesboro, L. C. & E. R. Co. 9: 1060, 100 S. W. 893, 82 Ark. 128. (Annotated) 670. Compensatory damages are recover- able for mental suffering due to momentary fright caused by the wrongful discharge of a passenger by a sleeping car company, al- though the fright was attended by no seri- ous circumstances whatever to her mind or body. Pullman Co. v. Lutz, 14: 907, 45 So. 675, 154 Ala. 517. p. Loss of profits. '.': 1. In general. (See also same heading in Digest L.R.A. 1-10.) In trademark, patent, or copyright cases, see supra, 594-605. Review of error as to, see APPEAL AND ERROR, 1546. Evidence as to, see EVIDENCE, 1752, 1753. Proximate cause of, see PROXIMATE CAUSE, 43. As question for jury, see TRIAL, 111. See also supra, 447. 671. The loss of profits proximately re- Digest 1-52 L.R.A.(N.S.) suiting from the destruction of an estab- lished business constitute an element of damages recoverable for such destruction. Wellington v. Spencer, 46:469, 132 Pac. 075, 37 Okla. 461. (Annotated) 672. The net profits of which the owner of a bridge has been deprived by wrongful in- jury to it by another may form part of the damages to be allowed against the latter. West v. Martin. 21: 324, 97 Pac. 1102, 51 Wash. 85. . 673. A railroad company which negligent- ly set fire to and destroyed standing tim- ber which another had contracted to cut, without knowledge of the contract, is not liable for his loss of profits thereby canst-d. Thompson v. Seaboard Air Line R. Co. 52: 97, 81 S. E. 315, 165 N. C. 377. (Annotated) 674. A gas company whose employees wrongfully sever the connections by which a rival company is supplying gas to heat a house in which rooms are let to boarders is answerable in damages not only for the cost of replacing the connection*, but also for reasonable compensation for the loss sus- tained by the proprietor of the house in be ing deprived of tenants, who leave because their rooms become untenantable, which will be measured by the profits which he had a right to expect would be received from the rentals, and for personal inconvenience and discomfort suffered by. himself. Kentucky Heating Co. v. Hood, 22: 588, 118 S. W. 337. 133 Ky. 383. (Annotated) Dn to personal injuries. 675. Speculative profits and commissions alleged to have been lost by reason of a personal injury cannot form a part of the damages to be awarded against the party responsible for the injury. Kirk v. Seattle Fl^ctric Co. 31: 991, 108 Pac. 604, 58 Wash. 283. D"-^rnn+jon of personal property. 676. Where a tenant sues a landlord for the loss of merchandise caused by a firo which the tenant alleges resulted from the carelessness and negligence of the landlord, but it is not alleged or shown that the negligence was criminal, or that the loss was caused through any fraud on the part of the landlord, and it was not shown or con- tended that the tenant had an old and well- established business and business reputation at the particular place, the measure of dam- ages is the value of the goods at the time of the loss, and injury to the business or loss of profits cannot be taken into consid- eration in assessing damages. Russell v. Little, 42: 36?, 126 Pac. 529. 22 Idaho, 429. 677. The profits which might have resiilt- ed from the working of logs into shingles cannot be recovered as part of the damages for wrongful destruction of the logs. Quay v. Duluth, S. S. & A. R. Co. 18: 250, 116 N. W. 1101, 153 Mich. 567. (Annotated) 678. A huckster whose wagon is destroyed through another's negligence is not entitled to recover as part of his damages the loss of profits due to such destruction. Weick v. Dougherty, 3: 348, 90 S. W. S66, 139 Ky. 528. DAMAGES, III. p, 2. 881 By exercise of power of eminent do- main. 679. The owner of land is not entitled to compensation for injury to the business con- ducted on property all of which is taken for public use, caused by loss of profits during its removal, under a constitutional provision requiring the making of just com- pensation for property taken for public use. Fitzhugh v. Chesapeake & 0. R. Co. 17: 124, 59 S. E. 415, 107 \ a. 158. (Annotated) 680. Prospective profits which may in the future be derived from the use of the water power for the development of elec- tricity are too remote and speculative to be taken as elements of damage in condemna- tion proceedings for the removal of a mill- dam, where there is no proof of a present and immediate intention and purpose to make such development. Maynard v. Drainage Dist. No. 2, 52: 1004, 143 N. W. 927, 04 Neb. 610. 2. From breach of contract. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence as to, see EVIDENCE, 2323. Right of consignee to hold carrier liable for profits lost through delay in transporta- tion, see PARTIES, 30. Notice to telegraph company of probable loss of profit in case of default as to mes- sage, see TELEGRAPHS, 70. See also supra, 120. 681. Anticipated profits are recoverable by way of damages for breach of contract only when they are such as would have ac- crued and grown out of the contract itself as the direct and immediate result of its fulfilment; but if they are such as would have been realized from other independent and collateral undertakings, although en- tered into in consequence and on the faith of the principal contract, they are too un- certain and remote to be taken into con- sideration as part of the damages, unless the defaulting contractor has expressly agreed to be bound for such consequences, or the special circumstances are such that he may be held to have impliedly contract- ed to be so bound. Corbin v. Thompson, 2 B. R. C. 70, 39 Can. S. C. 575. (Annotated) 682. A real-estate broker whose author- ity is wrongly revoked before the expira- tion of the time during which he is to have the right to make the sale may hold the property owner liable for the profits which he anticipates he will make on the sale, in the absence of any agreement as to the measure of damages in case of breach. S. Bluthenthal & Co. v. Bridges, 24: 279, 120 S. W. 974, 91 Ark. 212. 683. The damages to be awarded for rev- ocation of an agency to sell lots for a share of the profits, after the agent has entered upon the performance of his duties, may include the profits which he may be the contract, where the same are shown to have been in the contemplation of both parties at the time of the making of the contract, as the natural and proximate con- sequence of its breach by the defendant; and in determining the same and the amount recoverable, all facts relating to the subject-matter of the contract and con- cerning the execution thereof, known to both parties, and all facts which would reasonably tend to make certain the amount of injury inflicted, may be considered. Cloe v. Rogers, 38: 366, 121 Pac. 201, 31 Okla. 255. 684. The damages for breach of a con- tract to appoint certain persons exclusive agents for a specified time to sell a desig- nated per cent of the entire pack of fish of the other party at an agreed commission includes such loss of profits, past and future, as are shown to have approximately resulted from the breach of the contract, excluding all uncertain and conjectural profits. Em- erson v. Pacific Coast & N. Packing Co. i: 445, 104 N. W. 573, 96 Minn. 1. 685. Prospective profits during the re- mainder of the period for which a news- paper was incorporated may be recovered as damages for the improper breach, by the corporation, of its contract granting the ex- clusive right to sell its publication within certain specified territory, where no con- tract period was fixed by the contract it- self. Newhall v. Journal Printing Co. 20: 899, 117 N. W. 228, 105 Minn. 44. 686. Loss of profits is not a proper ele- ment of damages for breach of contract to establish a business in a distant and sparse- ly settled country. Webster v. Beau, 51: 81, 137 Pac. 1013^ 77 Wash. 444. 687. Profits on sales which might have been made upon compliance with a contract to exhibit a machine at an exposition can- not be considered by the jury in estimating damages for breach of the contract, al- though the breach was wilful and so late that no other provision for the exhibition of the machine could be made, where no contingent sales had been effected, and there is nothing to show that any would have been made. Winston Cigarette Mach. Co. v. Wells-Whitehead Tobacco Co. 8: 255, 53 S. E. 885, 141 N. C. 284. (Annotated) 688. The mere fact that the character of the soil through which a tunnel is being driven may change, or that the object may be accomplished so that under the contract the work would stop before the stipulated point is reached, will not prevent the court from allowing as damages for the wrongful termination by the owner of the contract be- fore it is completed the profits which would be made on the entire work called for by the contract at the rate realized on the com- pleted portion. McConnell v. Corona City Water Co. 8: 1171, 85 Pac. 929, 149 Cal. 60. 689. Upon lease of an hotel with privi- lege of renewal, with the understanding that the lessee will make no profits during the first term, but will during the renewal period, the loss of such profits is a proper able to show lie would have made under element of damages for breach of the cove- Digest 1-52 I*R.A.(N.S.) 56 882 DAMAGES, III. p, 2. nant to renew. Neal v. Jefferson, 41: 387, 99 N. E. 334, 212 Mass. 517. Due to failure to deliver telegram. 690. Failure to deliver a telegram making an offer for land does not render the com- pany liable for loss of profits which the bidder might have made by resale of the property had his bid been accepted, if he had no customer in sight, since they are too re- mote and uncertain to form a basis for a claim for damages. Western U. Teleg. Co. v. Lewis, 49: 927, 203 Fed. 832, 122 C. C. A. 150. (Annotated) Contract to lend money. 691. The damages to be awarded for breach of a contract to lend money to re- place a milldam cannot include the profits which were anticipated from the operation of the mill in its improved state. Bixby- Theison Lumber Co. v. Evans, 29: 194, 52 So. 843, 167 Ala. 431. By carrier. 692. In an action for damages against a carrier who had contracted to deliver a merry-go-round at a point on a connecting road by a certain day, with full knowledge of the purpose to which it was to be put, and of the importance of having it there on the day specified, and of the loss of profits which will result from the failure to deliver the same by such day, for failure, through lack of diligence, to deliver the merry-go-round until after the agreed day, the contemplated profits, being such as can be estimated with a reasonable degree oi accuracy, are a proper element of damages. Fort Smith & W. R. Co. v. Williams, 40: 494, 121 Pac. 275, 30 Okla. 726. 693. The damages to be allowed for the enforced idleness of a mill because of a car- rier's neglect to transport machinery to it will not include lost profits. Harper Fur- niture Co. v. Southern Express Co. 30: 483, 62 S. E. 145, 148 N. C. 87. (Annotated) 694. Loss of profits which would have accrued to plaintiffs upon the fulfilment of a collateral contract are not recoverable in an action against a carrier to recover dam- ages for delay in delivering machinery, where the contract from the fulfilment of which profits would have accrued was not in the contemplation of the parties at the time the carrier received the machinery for transportation. Goodin v. Southern R. Co. 6: 1054, 54 S. E. 720, 125 Ga. 630. 695. Breach by a railroad company of its contract to furnish cars to a coal miner will not render it liable for profits which the miner lost because of inability to de- liver coal under a contract which he se- cured after the contract with the railroad company was executed, although the rail- road company knew of it at the time of its breach, since such profits were not in contemplation of the parties when the con- tract was made. Clyde Coal Co. v. Pitts- burgh & L. E. R. Co. 26: 1191, 75 Atl. 596, 226 Pa. 391. (Annotated) By seller. 696. Profits anticipated as the result of the operation of a mill are not recoverable as damages for breach of a warranty of the fitness for service of a boiler and engine. Digest 1-52 L.R.A.CN.S.) Corbin v. Thompson, 2 B. R. C. 70, 39 Can. S. C. 575. 697. Damages for failure to deliver, ac- cording to contract, a portion of the wheels ordered by a carriage manufacturer, cannot be based on the theory that the purchaser had thereby been prevented from utilizing a portion of the capacity of the factory, with consequent loss of profits, since it can- not be known that the plant would have been utilized to its full capacity had the wheels been furnished. Connersville Wagon Co. v. McFarlan Carriage Co. 3: 709, 76 X. E. 294, 166 Ind. 123. (Annotated) 698. Loss of profits on the sales of tlu: completed product are not recoverable for breach of. a contract to deliver wheels for the manufacture of wagons. Connersville Wagon Co. v. McFarlan Carriage Co. 3: 709, 76 N. E. 294, 166 Ind. 123. 699. Failure of a manufacturer to fill the orders of a wholesaler according to con- tract does not render him liable for loss of profits which the wholesaler might have made by resale of the property. Holloway v. White-Dunham Shoe Co. 10: 704, 151 Fed. 216, 80 C. C. A. 568. 700. The damages to be allowed for breach of contract to furnish machinery for the establishment of a cotton gin, whereby the operation of the gin for a season is pre- vented, cannot be based upon the antici- pated profits for that season, nor the ad- vantage which the owner hoped to obtain because of the aid afforded by the gin in collecting his accounts. Standard Supply Co. v. Carter, 19: 155, 62 S. E. 150, 81 S. C. 181. 701. One who repudiates his purchase of goods to be resold, because of the seller's fraud, cannot hold him liable for the profits which he might have made upon the trans action. American Pure Food Co. v. Elliott, 31: 910, 66 S. E. 451, 151 N. C. 393. (Annotated ) 702. If a purchaser of hay makes a con- tract for the resale of such hay, and dis- closes that fact to his vendor, who under- takes to furnish the hay and deliver it at a specified time and place, but fails to do so. the vendor will be liable for damages on the basis of the reasonable profits the buyer would have realized from a resale of the hay. Trego v. Arave, 35: 1021, 116 Pac. 119, 20 Idaho, 38. 703. Where hay is purchased, to be sjld on open market, and the purchaser had con- tracted to sell the same for a certain price on said market, the vendor, who fails to comply with his contract, is liable for the reasonable profits that would have been made by the purchaser had he delivered the hay in accordance with his contract. Trego v. Arave, 35: 1021, 116 Pac. 119, 20 Idaho, 38. 704. Where, upon the purchase of a team of horses, the purchaser states that the horses are desired for the purpose of culti- vating a cotton crop, and the vender guar- antees the horses sound and in good health and capable of rendering the services for which they are desired, and it afterwards DAMAGES, III. q-s. 883 develops that the horses are unsound and by reason thereof the purchaser is unable to cultivate a part of the land desired, the anticipated profits on the cotton crop thus lost are not a proper element of damages for breach of the warranty. Wiggins v. Jack- son, 43: 153, 121 Pac. 662, 31 Okla. 292. ( Annotated ) By purchaser. 705. The recoverable damages for breach of an executory contract to purchase stock goods to be manufactured are the lost profits on the contract, which are the differ- ence between the agreed price and the fair market value of the goods at the time of the breach and the place for delivery, or, in case there is no market value at such place, some other place just to the vendee. Lin- coln v. Charles Alshuler Mfg. Co. 28: 780, 125 N. W. 908, 142 Wis. 475. 706. The profit which the contract would have produced is the measure of damages for breach of a contract to take goods to be manufactured upon order. Gardner v. Deeds, 4: 740, 92 S. W. 518, 116 Tenn. 128. ( Annotated ) q. Time for whicJi recoverable; pros- pective. (See also same heading in Digest L.R.A. 1-10.) Splitting cause of action for continuous in- jury, see ACTION OR SUIT, II. c. See also supra, 102, 126, 358. 707. The immediate bringing of an ac- tion by a servant wrongfully discharged during the term for which he was engaged will not prevent a recovery for the whole unexpired term if the trial does not take place until the term has expired. Howay v. Gomg-Northrup Co. 6: 49, 64 Pac. 135, 24 Wash. 88. (Annotated) 708. The damages for breach of covenant against encumbrances in a deed conveying real estate are to be assessed, not as of the date of the trial, but of the delivery of the deed, to which interest may be added to the date of the verdict. Bailey v. Agawam Nat. Bank, 3: 98, 76 N. E. 449, 190 Mass. 20. r. Counsel fees. (See also same heading in Digest L.R.A. 1-10.) Liability on injunction bond for, see IN- JUNCTION, 432-434. In action on replevin bond, see REPLEVIN, 30. See also supra, 135, 139, 191, 271, 593. 709. Counsel fees expended in a fruit- less attempt to eject the tenant are not recoverable in an action for breach of cove- nant in a sale of real estate because of an unexpired lease of the property. Browne T. Taylor, 4: 309, 88 S. W. !)33, 115 Tenn. 1. Digeat 1-52 L.R.A. (N.S.) s. Mitigation; reduction. (See also same heading in Digest L.R.A. 1-10.) Effect of physician's lack of skill, see supra, 359. Effect of prior disease or infirmity, see su- pra, 372-377. Refusal to seek medical or surgical relief, see supra, 369-371. Evidence in mitigation generally, see EVI- DENCE, XI. w. Right to give matters in mitigation in evi- dence under plea of general issue, see EVIDENCE, 2461. Sufficiency of retraction of libel to miti- gate damages as question for jury, see TRIAL, 340. 710. Under the statute of Georgia, the doctrine of diminution of damages may be invoked in an action by a servant against his master for injury, if the servant is guilty of some negligence, but not guilty of such negligence as will prevent a recov- ery. Elk Cotton Mills v. Grant, 48: 656, 79" S. E. 836, 140 Ga. 727. fcnul! 711. One who secures from a person in- jured by his negligence a release of damages, afterwards disregarded for fraud, upon con- sideration of the payment of a certain amount and his treatment by a medical man until cured of his trouble, is not entitled to credit in an action to hold him liable for the injuries, for the amount paid for treat- ment under the contract, where the cure is not effected. Pattison v. Seattle, R. & S. R. Co. 35: 660, 116 Pac. 1089, 64 Wash. 370. ( Annotated ) 712. That plaintiff, in an action for alienation of her husband's affections, had been living separate from him, and that he had paid such attention to other women as to indicate little affection for her, may be considered in mitigation of damages in an action for alienation of his affections. Phil- lips v. Thomas, 42: 582, 127 Pac. 97, 70 Wash. 533. 713. A grantor is not, in a suit for breach of covenant against encumbrances, because of the enforcement against the property of a lien for a share of the cost of a party wall between the property conveyed and that adjoining it, entitled to set off the value to the property of the easement rights acquired by the grantee in the adjoining property because of the party-wall agree- ment. Hoffman v. Dickson, 39: 67, 118 Pac. 737. 65 Wash. 556. 714. That the intent in illegally shadow- ing a person was good, or that his reputa- tion was so bad that the shadowing could not have damaged him, may be considered in mitigation of damages. Schultz v. Frankfort Marine Acci. & Plate Glass Ins. Co. 43: 520, 139 N. W. 386. 151 Wis. 537. 715. That land in the vicinity of a mine has increased in value because of its oper- ation cannot be relied upon to mitigate the damages to be awarded a landowner from pollution, by the mining operations, of a 884 DAMAGES, III. t. stream flowing through his property. Arminius Chemical Co. v. Landrum, 38: 272, 73 S. E. 459, 113 Va. 7. In case of conversion. 716. The return of property and its ac- ceptance by a debtor after conversion by his creditor, prior to the beginning of an ac- tion for the wrongful taking, must be con- sidered in mitigation of any damages recov- erable. Aylesbury Mercantile Co. v. Fitch, 23: 573, 99 Pac. 1089, 22 Okla. 475. 717. The return by a sheriff uninjured, and with notice to the mortgagee, of mort- gaged property seized for the debt of the mortgagor without satisfying the mortgage debt, as required by statute, may be con- sidered in mitigation of the damages which the mortgagee may recover for the con- version, although he does not consent to the return. Whittler v. Sharp, 49: 931, 135 Pac. 112, 43 Utah, 419. (Annotated) Breach of promise. 718. An offer to renew and perform a contract for marriage after a breach there- of, made after action is begun on the breach, cannot be heard in mitigation of damages or as bearing on the amount of the same. Kendall v. Dunn, 43: 556, 76 S. E. 454, 71 W. Va. 262. 719. An offer to renew and perform a con- tract of marriage after a breach thereof, if made before suit brought, may be given such weight by the jury as bearing on the amount of damages as they may deem the facts or circumstances in connection there- with to warrant. Kendall v. Dunn, 43: 556, 76 S. E. 454, 71 W. Va. 2G2. Libel or slander. 720. Intoxication of the defendant at the time of his use of slanderous words is a mitigating circumstance, proper for the con- sideration of the jury in estimating the damages. Alderson v. Kahle, 51: 1198, 80 S. E. 1109, 73 W. Va. 690. (Annotated) 721. In mitigation of damages for slander in accusing one of stealing cattle, the rule permitting evidence of reputation is not satisfied by showing merely that the general reputation of the person slandered for "honesty, fair dealing, and integrity" was bad. Wood v. Custer, 38: 1176, 121 Pac. 355, 86 Kan. 387. (Annotated) 722. The absence of actual malice in the publication of a libelous article on a mat- ter of public concern will be considered in mitigation of damages. Levert v. Daily States Pub. Co. 23: 726, 49 So. 206, 123 La. 594. 723. That mitigating circumstances are pleaded in defense of a libel suit does not prevent their use in mitigation of damages, under a statute providing that defendant may allege any mitigating circumstances to reduce the amount of damages. Rocky Mountain News Printing Co. v. Fridborn, 24: 891, 104 Pac. 956, 46~ Colo. 440. Provocation. Mitigation of damages for assault on pas- senger, see CARRIERS, 140. 724. Provocation by the plaintiff, induc- ing the utterance of slanderous words, is a mitigating circumstance. Alderson v. Digest 1-52 L.R.A.(N.S.) Kahle, 51: 1198, 80 S. E. 1109, 73 W. Va. 690. t. Aggravation. also same heading in Digest L.R.A.. As to preventing unnecessary amount, see supra, 15-26. Effect of physician's lack of skill, see au- pra, 359. Effect of prior disease or infirmity, see su- pra, 372-377. Refusal to seek medical or surgical relief, see supra, 369-371. Change of rule of law, as to, see COURTS, 302. As bar to recovery, see NEGLIGENCE, 214. 725. The aggravation of valvular heart trouble by sitting up all night is not the proximate result of a carrier's refusal to comply with its contract to furnish a pas- senger with a drawing-room on a certain train, so that such injury can be iiv.-1'iiled as damages for breach of the contract. where it offered to supply one on a train leaving a few hours later, or other sleeping accommodations on th same train, which he refused, although he coulu have accepted the offer without material inconvenience. Ingraham v. Pullman Co. 2: 1087, ti X. E. 237, 190 Mass. 33. (Annotated) 726. A consumer whose supply of water has been wronglully cut off by a watfr com- pany cannot rely on the fact that a m inlx-r of his family was ill at the time as an ag- gravating circumstance, unless it is shown that the agents of the company kiuw of such illness; nor can he recover anything on the ground that the action of th.- com- pany imperiled the health and lives of ki* entire household. Freeman v. Ma con (Jas- light & W. Co. 7: 917, 56 S. E. 61, l'2(i Ga. 843. 727. Matter in aggravation is something done by the defendant upon the occasion of the principal trespass, which is of a dif- ferent legal character from, but not incon- sistent with, the trespass. l\urpgeweit v. Kirby, 33: 98, 129 N. W. 177. 88 Neb. 72. 728. That one who wrongfully enters upon property occupied by another as a residence attempts to seduce his wife may be con- sidered in aggravation of damages for tres- pass, notwithstanding statutes enlarging the rights of married women and permitting them to sue alone for injuries to their per- sons. Brame v. Clark, 19: 1033, 62 S. E. 418, 148 N. C. 364. (Annotated) Breach of promise. Proof of seduction to aggravate damages, see EVIDENCE, 1813, 2015. 729. In an action for damages for the breach of a contract of marriage, seduction may be proved and considered in aggrava- tion of the damages. Dalrymple v. Green, 43: 972, 129 Pac. 1145, 88 Kan. 673. 730. Damages may be allowed for seduc- tion, by way of aggravation, in an action to recover for breach of promise of marriage, DAMAGES, III. u DAMS. 885 where the promise was the means of the se- duction. Stokes v. Mason, 36: 388, 81 Atl. 162, 85 Vt. 164. (Annotated) u. Apportionment. (See same heading in Digest L.R.A. 1-70.) IV. Assessment; double or treble dam- ages. (See also same heading in Digest L.R.A. 1-10.) Constitutionality of statute providing for, see CONSTITUTIONAL LAW, 576, 577. 731. The court, in entering judgment, is authorized to double the damages allowed by the verdict, where the statute al- lows double damages and the findings make it absolutely certain that the jury al- lowed only single damages. Jensen v. South Dakota C. R. Co. 35: 1015, 127 N. W. 650, -25 S. D. 506. 732. A statute imposing double liability upon a railroad company for baggage lost by its carelessness does not apply to sample cases transported as baggage. New Orleans & N. E. R. Co. v. Shackleford. 4: 1035, 40 So. 427, 87 Miss. 610. 733. Wilful holding must be alleged and proved to warrant the application of a stat- ute authorizing double damages for the wilful holding over by a tenant after notice upon the termination of a life estate under which he obtained possession, rather than of the statutory rule applicable in ordinary cases of ejectment. Barson v. Mulligan, 16: 151, 84' N. E. 75, 191 N. Y. 306. 734. In fixing the double damages to be recovered from one wilfully withholding property from those entitled to possession after the terminat'on of a life estate, the jury may fix the single damages, and the court will double th:ni. Barson v. Mulli- gan, 16: 151, 84 N. E. 75, 191 N. Y. 306. 735. Statutory provisions prescribing the damages to be recovered in ejectment do not prevent the application of a section of an- other statute which provides for double damages in case of the. wilful, i. e., deliber- ate, intentional, obstinate, unreasonable, or perverse, withholding after notice, of prop- erty from the possession of one entitled thereto upon termination of a life estate. Barson v. Mulligan, 16: 151, 84 N. E. 75, 191 A T . Y. 306. DAMS. Accounting in suit to compel abatement of, see ACCOUNTING, 2. Change of channel of boundary stream by construction of, sec BOUNDARIES, 4. Rights of one constructing dam to improve navigation under authority of legis- lature, see CONSTITUTIONAL LAW, 771. Right of state to declare dams properly erected to be nuisances, see CONSTITU- TIONAL LAW, 305; CORPORATIONS. 47. Digest 1-52 L.R.A.(N.S.) Jurisdiction of suit to enjoin enforcement of statute requiring destruction of, see COURTS, 231. Covenant to build, see COVENANT AND CON- DITIONS, 134. Damages for breach of contract to lend money to construct, see DAMAGES, 210, 211, 691. Damages for removal of, see DAMAGES, 512, 680. Right to use power from, as included in grant of property, see DEEDS, 53. Right to have milldam maintained, see EASEMENTS, 53-55, 81. Exercise of eminent domain for purpose of, see EMINENT DOMAIN, 15, 61, 104, 108. Condemnation of, see EMINENT DOMAIN, 22. Loss of right to flow lands by abandon- ment or nonuser, see EMINENT DO- MAIN, 112; EVIDENCE, 2197. Compensation to riparian owner for inju- ries by construction of, see EMINENT DOMAIN, 238, 242. Right to compensation for milldams re- moved in improving navigation, see EMINENT DOMAIN, 241. ' Equitable relief to obtain abatement of, see EQUITY, 20, 21. Suit in equity to compel lowering of, see EQUITY, 41. Estoppel to complain of erection of, see ESTOPPEL, 144. Construction of splash dams to float logs in stream, see EMINENT DOMAIN, 239, 240; INJUNCTION, 217. Estoppel to enjoin destruction of lake by, see ESTOPPEL, 160. Evidence in proceeding to condemn and re- move, see EVIDENCE, 751. Effect of impeding of flow of water by, see EVIDENCE, 2195. Injunction against, see INJUNCTION, 21, 217, 372, 373, 410. Lien for materials furnished for, see ME- CHANICS' LIENS, 27. Right of upper riparian owners whose lands are injured by dam to join in suit to abate, see PARTIES, 153. Codification of laws as to milldams, see STATUTES, 354. Abandonment of right to maintain as ques- tion for jury, see TRIAL. 639. Across floatable stream, see WATERS, 49-54. Across tidal water, see WAM:KS, 82. Prescriptive right to flow land by, seo WATERS, 320. Estoppel to remove, see WATERS, 328. Right to maintain. Right of riparian owner to maintain, see WATERS, 49-54, 185-190. 1. One who has wrongfully constructed a dam to the injury of a highway bridge will not be permitted to alter the bridge so that it will not be injured by the dam, and thereby acquire the right to maintain his dam. Bristol v. Palmer, 31:881, 74 Atl. 332, 83 Vt. 54. Liability as to. Defense to action for negligent maintenance of, see ACTIO>* OR SUIT, 33. S86 DANCE HALLS DATE. As nuisance, see CONSTITUTIONAL LAW, 305; COURTS, 47; NUISANCES, 13. Damages for flooding of land by govern- ment dam, see DAMAGES, 259. Right to compensation for injury from con- struction of splash dams to float logs, see EMINENT DOMAIN, 239, 240. Right to compensation for destruction of power caused by, see EMINENT DO- MAIN, 242. When statute of limitations begins to run against right to recover for injury, see LIMITATION OF ACTIONS, 107, 198, 202. Criminal liability for results of construct- ing dam across water course, see NUI- SANCES, 205. Pleading in action for negligence as to, see PLEADING, 285. Obstruction of floatable stream by, see WATERS, 49-54. Obstruction of navigation by, see WATERS, 108. Liability for damage by flood from giving way of, see WATER'S, 199, 200. Negligence in maintaining, causing over- flow, see WATERS, 205. DANCE HALLS. Constitutionality of regulations as to, see CONSTITUTIONAL LAW, 244, 245, 422, 695, 696. Requiring license to conduct, see CONSTI- TUTIONAL LAW, 422; LICENSE, 46, 61, 114. Forbidding presence of infants in, see CON- STITUTIONAL LAW, 696 : CRIMINAL LAW, 14; EVIDENCE, 2420; STATUTES, 249; INDICTMENT, ETC., 54. Damages for excluding officer of United States Navy from, see DAMAGES, 628. Validity of ordinance regulating, see MU- NICIPAL CORPORATIONS, 219. DANCES. See AMUSEMENTS; DANCE HALLS. DANCING. As nuisance, see NUISANCES, 48. See also DANCE HALLS; DANCING SCHOOLS. DANCING SCHOOLS. Requiring license for, see CONSTITUTIONAL LAW. 696. Digest 1-52 L.R.A.(N.S.) DANGER. Opinion evidence as to, see EVIDENCE, VII. j- Master's duty to warn or instruct employee as to, see MASTER AND SERVANT, II, a, 3. DANGEROUS AGENCIES. Automobile as, see AUTOMOBILES; PARENT AND CHILD, 22. As to electricity, see ELECTRICITY, III. Explosives, generally, see EXPLOSIONS AND. EXPLOSIVES. As to fire, see FIRES. Fireworks, see FIREWORKS. Master's liability for servant's use of, see MASTER AND SERVANT, 889-892, 914- 929, 983-989. Negligence as to, generally, see NEGLI- GENCE, I. b. Negligence as to, as question for jurv, see TRIAL, 324. Question for jury as to what constitutes, see TRIAL, 232. DANGEROUS ATTRACTIONS. See NEGLIGENCE, I. c, 2, b. DANGEROUS MACHINERY. Master's duty to guard, see MASTER AND- SERVANT, II. a, 4, b. DANGEROUS PREMISES. Liability for injuries on, see NEGLIGENCE, I. c. DATE. Alteration of date in note, see ALTERATION OF INSTRUMENTS, 10, 11, 16-18; EVI- DENCE, 604. Evidence on question of, see APPEAL AND ERROR, 1166. Judicial notice of date of general elections, see EVIDENCE, 14. Parol evidence as to, see EVIDENCE, 91fl, 930-933. Sufficiency of evidence to contradict jour- nal's showing of date of legislature's ad- journment, see EVIDENCE, 2256. Allegation of, in indictment, see INDICT- MENT, ETC., 20-25. Judicial sale on date other than that ap- pointed therefor, see JUDICIAL 4. DATION EN PAIEMENT DEATH. 887 DATION EN PAIEMENT. See HUSBAND AND WIFE, 149, 350. DAUGHTERS OF AMERICAN REVOLUTION. Exemption of property of, from taxation, see TAXES, 97. DAY. Meaning of term, see TIME, 4. DAYS OP GRACE. Conflict of laws as to, see CONFLICT OF LAWS, 22-26. For payment of insurance premium, effect of death of insured during, see IN- SURANCE, 380. Including, in computing amount of interest, see USURY, 31. DEAD ANIMALS. Ordinance providing for disposal of car- casses of, see CONSTITUTIONAL LAW, 195, 525. Failure to remove from railroad track, see DAMAGES, 40. Pollution of water by burying near spring, see TRIAL, 642; WATERS, 209. DEAD BODY. See CORPSE. DEAD FREIGHT. See CARRIERS, 741, 874, 875, 885. DEADLY WEAPON. Presumption from use of, see EVIDENCE, 257; TRIAL, 272. Base ball bat as, see HOMICIDE, 30. Commission of homicide while using, see HOMICIDE, 30, 59. Question for jury as to whether weapon is deadly, see TRIAL, 262. Digest 1-52 L.R.A.(N.S.) DEAF AND DUMB. Rights of deaf person accused of crime, see CRIMINAL LAW, 97, 98. Negligence of deaf person in attempting to cross railroad track, see RAILROADS, 212, 236. Exemption from taxation of institution for, see TAXES, 96. DEATH. I. In general. 11. Right of action for causing, 136. a. In general, 15. b. Who may maintain and for whom, 636. III. Who liable for causing. IV. Defenses, 37-51. V. Authority to compromise claim for, 5253a. VI. Effect of, 54. Right of court to consolidate actions for, see ACTION OR SUIT, 87. Joinder of causes of action for, see ACTION OR SUIT, 116. Joinder of action to recover for, with action to recover for suffering prior thereto, see ACTION OR SUIT, 115. Remittitur of damages for, on appeal, see APPEAL AND ERROR, 1592. Amendment of complaint in action for, see APPEAL AND ERROR, 591, 1645. Prejudicial error in admission of evidence in action for, see APPEAL AND ERROR, 1190. Instructions in action for, see APPEAL AND ERROB, 1415; TRIAL, 882, 884, 899, 1003, 1022. Argument of attorney in action for, see APPEAL AND ERROR, 1444. Right of attorney to pay parent money re- covered in action by administrator of child for its negligent killing, see AT- TORNEYS, 39. Liability on bond for wrongful shooting in making arrest, see BONDS, 58, 59, 63. Penalty of, see CAPITAL PUNISHMENT. As to civil death, see CIVIL DEATH. Conflict of laws as to liability for, see CON- FLICT OF LAWS, I. e, 2. Conflict of laws as to time for action for, see CONFLICT OF LAWS, 156, 157 Failure to deliver death message, see CON- FLICT OF LAWS, 161-165; DAMAGES, 649-653, 655, 656; EVIDENCE, 681. 682. Validity of statute as to registration of, see CONSTITUTIONAL LAW, 638. Punitive damages for negligent killing, see CONSTITUTIONAL LAW, 561 ; DAMAGES, 64, 66. Recovery for mental anguish because of, see DAMAGES, 617-619. Measure of damages for, generally, see DAMAGES, III. i, 3. Instructions as to damages, see TRIAL, 882, 884, 1003. 888 DEATH, I. Effect of dismissal as to one of two joint tort feasors in action for, see CON- TINUANCE AND ADJOURNMENT, 4. Right of one held liable for negligent death to contribution from one jointly re- sponsible, see CONTRIBUTION AND IN- DEMNITY, 5, 11, 17. Construction of contract to pay indemnity for death, upon release of all persons interested, see CONTRACTS, 363. By electrical shock, see ELECTRICITY. Presumption and burden of proof as to, see EVIDENCE, II. e, 3. Presumption and burden of proof as to per- sons found dead, see EVIDENCE, 482- 487, 491-493. Presumption ami burden of proof as to negligence of person killed at railroad crossing, see EVIDENCE, 482-487. Burden of proof in action by parent for death of minor employee, see EVIDENCE, 524. Presumption as to death without issue, see EVIDENCE, 684. Presumption and burden of proof as to cause of, see EVIDENCE, 327, 329. Sufficiency of evidence as to cause of, see EVIDENCE, 2071-2080, 2377. Secondary evidence in action for, see EVI- DENCE, 702. Admissibility of coroner's verdict, see EVI- DENCE, 759, 760. Admissibility of transcript of testimony at former trial as to transaction with per- son since deceased, see EVIDENCE, 776, 777. Right of physician to testify to result of autopsy, in action for, see EVIDENCE, 1292. Admissibility of declarations of deceased person, see EVIDENCE, 13741391. Evidence in explanation or rebuttal in ac- tion for, see EVIDENCE, 1918. Evidence of letters of inquiry in regard to absentee, see EVIDENCE, 1947. Evidence as to damages in action for, see EVIDENCE, 1725-1728. Weight and sufficiency of evidence in action for, see EVIDENCE, XII. d. Sufficiency of evidence as to death of in- sured, see EVIDENCE, 2213-2215. Sufficiency of evidence to sustain verdict in action for death, see EVIDENCE, 2318. Right of action for, as assets justifying appointment of administrator, see EX- ECUTORS AND ADMINISTRATORS, 2, 3. Assiirnment by administrator to widow of right of action for the death of in- testate, see EXECUTORS AND ADMINIS- TRATORS-:, 51. Rights of creditors of decedent in money recovered by administrator for wrong- ful death, see EXECUTORS AND ADMINIS- TRATORS, 86. Death by inhalation of gas, see GAS, 57. Transmission of homestead in case of, see HOMESTEAD, IV. b. Of insured; cause of, see INSURANCE, VI. b, 2, 3. Subrogation of insurer to right of action, see INSURANCE, 881. 883. Digest 1-52 L.R.A.(N.S.) Effect of death of insured during days of grace, but before payment of premi- um, upon right to insurance, see IN- SURANCE, 380. Estoppel to claim that death occurred at certain time, see INSURANCE, 481. Death of party as requiring revival of judgment in favor of state, see JUDG- MENT, 321. Limitation of action for, see LIMITATION OF ACTIONS, 227, 253, 299. Drowning of person caused by log jam in stream, see LOGS AND LOGGING, 5. Necessity of presenting claim for death caused by defective street to city, see MUNICIPAL CORPORATIONS, 469. Actionable negligence causing death, gen erally, see NEGLIGENCE. Imputing to child negligently killed negli- gence of parents, see NEGLIGENCE, 274. Rule of practice as to new trial on death of judge, see NEW TRIAL, 14. Pleading in action for, see PLEADING, 100, 106, 214, 215, 287, 296, 305-308, 342, 373, 374, 500. Demurrer to pleading in action for, see PLEADING, 633. Proximate cause of, see PROXIMATE CAUSE; TRIAL, 189, 190. From administration of anesthetic, as prox- imate result of accident, see PROXI- MATE CAUSE, 17. Right of one giving notes for good will of business and owner's services to coun- terclaim, in action on note, value of services not rendered because of death, see SET-OFF AND COUNTERCLAIM, 3. Prospective operation of statute as to mea- sure of recovery for negligent death, see STATUTES, 304. Succession tax on, see TAXES, 340, 342-344. Sufficiency of evidence to carry question of damages to jury, see TRIAL, 106. Cause of, as question for jury, see TBIAL, 164-169. Question for jury as to time of, see TRIAL, 629, 630. Question for jury as to value of child's services in action for its death, see TRIAL, 658. Nonsuit or direction of verdict in action for, see TRIAL, 698-700, 703, 705, 706, 764. Demurrer to evidence in action for death, see TRIAL, 795. Effect of verdict to settle fact of death, see TRIAL, 1117. Right of person to dispose by will of dam- ages recoverable for his wrongful kill- ing, see WILLS, 80. Right of mother of child negligently killed to testify in action by husband to re- cover for its death, see WITNESSES, 29. Proof of death of absentee, see WITNESSES, 147. Admissibility of evidence to impeach wit- ness in action for, see WITNESSES, 145. /. In general. (See also same heading in Digest L.R.A. 1-70.) DEATH, II. a, b. 889 //. Right of action for causing, a. In general. (See also same heading in Digest L.R.A. 1-70.) Survival of right of action for, see ABATE- MENT AND REVIVAL, 20, 21. Basis of action by one legally responsible for another's death against third per- son whose negligence caused the death, see ACTION OB SUIT, 3. For death of passenger, see CARRIERS, II. Accidental killing of passenger by conduct- or, see CARRIERS, 239. Right of action for inducing suicide, see CASE, 3. Exclusiveness of action for, under Federal employers' liability act, see COMMERCE, 62. For death occurring in other state, see CON- FLICT OF LAWS, I. e, 2. Exclusiveness of statutory remedy, see ELECTION OF REMEDIES/IO. Under civil damage act, see INTOXICATING LIQUORS, 188-190. Running of limitations against right of ac- tion, see LIMITATION OF ACTIONS, 227, 253, 299. Liability for death of child by drowning, see NEGLIGENCE, 368, 170, 172-175. Necessity of interest in premises affected by nuisance to sustain action for death therefrom, see NUISANCES, 70. Resulting from negligence of physician, see PHYSICIANS AND SURGEONS, 53-55. Release as bar to right of action, see RE- LEASE. Right of action under state statute for death from wrongful act on military reservation, see STATE, 33. Implied repeal of statute permitting re- covery for wrongful death, see STAT- UTES, 339. 1. A new and distinct cause of action is given by a statute permitting recovery for death resulting from personal injuries, the old common-law action allowing recovery only for conscious suffering up to the time of death. Anderson v. Wetter, 15: 1003, 09 Atl. 105, 103 Me. 257. 2. Section 4313, Okla. Stat. 1893 (5281, Rev. Laws 1910), does not operate as a con- tinuance of any right of action which the in- jured person would have had but for his death, but confers upon the beneficiary thereof a property right in the pecuniary value to him of the life of his decedent, and gives him a new or independent cause of action for the pecuniary loss he has sus- tained by reason of siich death. Shawnee v. Cheek, 51: 672, 137 Pac. 724, 41 Okla. 227. 3. Under an amendment of a statute permitting recovery for death caused by negligence by omitting the reference to negli- gence, and permitting a recovery in all actions surviving to an administrator for injuries resulting in death, a recovery can he had for death resulting from injuries intentionally inflicted, although the statute Digest 1-52 L.R.A.(N.S.) provides that the action must be brought within one year "from the neglect com- plained of." Kling v. Torello. 46: 930, 87 Atl. 987, 87 Conn. 301. (Annotated) 4. The independent right of action giv- en by Ohio Rev. Stat. 6134, 6135, for the benefit of the persons named in 6135, where death has resulted from personal in- juries negligently inflicted, to recover for such pecuniary loss as they have sustained by the decease of the injured person, is subject to the condition that the act, neg- lect, or default causing the fatal injury must be such as would have entitled the person injured to maintain an action and recover damages therefor had he lived to do so. Mahoning Valley R. Co. v. Van Alstine, 14: 893, 83 N. E. 601, 77 Ohio St. 395. 5. The enactment, many years after the adoption of a statute permitting a suit for the benefit of next of kin in case of death by wrongful act, of another statute per- mitting an executor or administrator to maintain an action for personal injuries which occur in the lifetime of Lis testator or intestate, permits the maintenance of an action under each statute in case death oc- curs from a wrongful act frem which injury occurred to the decedent in his lifetime. Stewart v. United Electric Light & P. Co. 8: 384, 65 Atl. 49, 104 Md. 332. (Annotated) &. Who may maintain and for whom. (See also same heading in Digest L.R.A. 1-10 J Under civil damage act, sec INTOXICATING LIQUORS, 188-190. Action for, by administrator as bar to hus- band's right of action, see JUDGMENT, 259. 6. To render one a dependent bene- ficiary under the Federal employers' liabil- ity act, he must have sustained some pe- cuniary loss on account of the death of de- cedent. Illinois C. R. Co. v. Doherty, 47: 31, 155 S. W. 1119, 153 Ky. 363. 7. A child begotten after the divorce of its parents is not kin to children of its father and his second wife within the mean- ing of the Federal employers' liability act, and therefore such children cannot recover under that statute for the wrongful death of such child, although he contribiited toward their support. Cincinnati, N. 0. & T. P. R. Co. v. Stephens, 51: 308, 163 S. W. 493, 157 Ky. 460. (Annotated) 8. Under a statute creating a right of action for wrongful death, to be brought by an administrator, for the exclusive benefit of the widow, children, or heirs at law of decedent, no action can be maintained in case he dies childless, leaving a widow, who dies before action brought. Hammond v. Lewiston, A. & W. Street R. Co. 30: 78, 76 Atl. 672, 106 Me. 209. (Annotated) 9. The widow and minor children by second marriage of one who loses his life through the negligence of another person 890 DEATH, II. b. can exercise the right of action conferred by La. act 1884, No. 71, p. 94, for the re- covery of the damages sustained by them, without joining as plaintiffs the decedent's minor children by a previous marriage. Robideaux v. Hebert, 12: 632, 43 So. 887, 118 La. 1089. 10, 11. A master cannot maintain an ac- tion for injuries which cause the immediate death of his servant. Clark v. London General Omnibus Co. Ltd. 2 B. R. C. 694, [1906] 2 K. B. 648. Also reported in 75 L. J. K. B. N. S. 907, 95 L. T. N. S. 435, 22 Times L. R. 691. Nonresident aliens. 12. Nonresident alien beneficiaries are within the operation of a statute permit- ting the personal representative of one killed by wrongful act, neglect, or default, which act would, had death not ensued, have en- titled the party injured to recover damages therefor from the person who or the corpo- ration which would have been liable if death had not ensued, to maintain an action for damages for the death, for the exclusive benefit of the widow and next of kin of such deceased person. Cetofonte v. Cam- den Coke Co. (N. J. Err. & App. ) 27: 1058, 75 Atl. 913, 78 N. J. L. 662. 13. Nonresident aliens are within the operation of a statute permitting the father of one killed by another's negligence to maintain an action for damages for the death, although the statute does not ex- pressly declare that they shall be entitled to its benefit. Petek v. American Smelting & Ref. Co. 2t: 273, 154 Fed. 190, 83 C. C. A. 284. 14. A statute giving the widow a right of action for the negligent killing of her hus- band operates in favor of a nonresident alien. Ferrara v. Auric Min. Co. 17: 964, 95 Pac. 952, 43 Colo. 496. 15. A statute giving a right of action to the widow and next of kin of one killed by another's negligence without conscious suf- fering on his part operates in favor of non- resident aliens. Anustasakas v. Interna- tional Contract Co. 21: 267, 98 Pac. i 93, 51 Wash. 119. (Annotated) 16. Nonresident alien parents, next of kin of a minor son whose death was wrong- fully caused by the negligence of another, may maintain an action to recover for his death. Atchison, T. & S. F. R. Co. v. Fajardo, 6: 681, 86 Pac. 301, 74 Kan. 314. 17. The provision of Kan. Code Civ. Proc. 422a, that, where the residence of a person wrongfully killed is in any other state or territory, an action to recover damages sustained on account of his death may be brought by his widow or next of kin, was designed to enable the next of kin to recover, where no administrator had been or could be appointed because of the absence of an estate to be administered, and does not exclude foreigners from the benefit of the remedy. Atchison, T. & S. F. R. Co. v. Fajardo, 6: 681, 86 Pac. 301, 74 Kan. 314. 18. The administrator or executor of a person whose death is alleged to have been Digest 1-52 L.R.A.(N.S.) caused by the wrongful act, neglect, or de- fault of any corporation or person, and whose next of kin are nonresident aliens, may maintain an action, under Ohio Rev. Stat. 1892, 6134, 6135, for their benefit, in the same manner as may be done in behalf of citizens of Ohio or aliens resi- dent therein. Pittsburgh, C. C. & St. L. R. Co. v. Naylor, 3: 473, 76 N. E. 505, 73 Ohio St. 115. (Annotated) 19. A treaty provision that citizens of the other contracting country shall enjoy, in states of the Union, in the protection and security of their persons and property, the same rights which are enjoyed by citizens of the United States, does not entitle per- sons not within the jurisdiction to the ben- efit of a statutory provision allowing a re- covery for the negligent killing of a rela- tive. Maiorano v. Baltimore & O. R. Co. 21 : 271, 65 Atl. 1077, 216 Pa. 402. Parents. Defense to action, see infra, 45-49. Father's sole right to recover for, see AP- PEAL AND ERROR, 1415. Effect of contributory negligence, see PROX- IMATE CAUSE, 166. Implied repeal of statute permitting parent to recover for wrongful death of child, see STATUTES, 339. See also supra, 13, 16. 20. A father cannot hold one negligently causing the death of his child liable for the loss of the value of its services between the time of death and its majority. Stevenson v. W. M. Ritter Lumber Co. 18: 316, 62 S. E. 351, 108 Va. 575. (Annotated) 21. A statute giving the personal repre- sentative of a person killed through anoth- er's negligence a right of action for the amount only which -his intestate could have recovered had death not ensued does not, by implication, in case the decedent is a minor, give the father a right of action for loss of services between the death and the child's majority. Stevenson v. W. M. Ritter Lumber Co. 18: 316, 62 S. E. 351, 108 Va. 575. i 22. An action for the benefit of a parent for the instantaneous death of his minor son through another's negligence is not pre- cluded under a statute providing that if the negligence is such as would, if death had not ensued, have entitled the person injured to maintain an action to recover damages in respect thereof, an action may be main- tained for the benefit of his next of kin, by the fact that recovery is limited to the loss of the child's earnings during minority and that the child could not have recovered for loss of such earnings. Lincoln v. Detroit & M. R. Co. 51: 710, 146 N. W. 405. 179 Mich. 189. (Annotated) 23. The parents of a child which dies soon after birth because of injuries negli- gently inflicted upon it before that event cannot maintain an action against the neg- ligent person for damages, under a statute providing that whenever a person shall die from any injury occasioned by negligence, the negligent person shall pay a penalty to the father and mother, if deceased is a DEATH, II. b. 891 minor unmarried. Buel v. United Rys. Co. 45: 625, 154 S. W. 71, 248 Mo. 126. (Annotated) 24. No reasonable expectation that the continued life of a boy will be of pecuniary benefit to his father so as to enable the lat- ter to recover substantial damages for the wrongful killing of the child, under statutes limiting the recovery under such circum- stances to the pecuniary loss inflicted, can be indulged, where the father had abandoned the child, and for a period of seven years had remained insensible to his parental obligations, although there is some slight evidence that they retained some affection for each other. Swift & Co. v. Johnson, i: 1161, 138 Fed. 867, 71 C. C. A. 619. (Annotated) 25. Speculation as to the possibility of restoration of the natural relations between a father and his child, whom he had aban- doned for a period of seven years, and com- pelled to assume the burden of his own support, cannot be made the basis of a re- covery by the father of substantial damages for the wrongful killing of the child. Swift & Co. v. Johnson, i: 1161, 138 Fed. 867, 71 C. C. A. 619. 26. When the legislature has created a right of actic i for wrongful death for the benefit of the next of kin of deceased, and has declared that the father, if living, is the next of kin of minor children who leave neither widow nor children, an action for the death of such child must be for the sole benefit of the father, although he has deserted his family, to whose support the deceased was, at the time of death, con- tributing, and has left the locality of their residence without apparent interest in what becomes of them. Swift & Co. v. Johnson, 1:1161, 138 Fed. 867, 71 C. C. A. 619. 27. The right granted by La. Rev. Civ. Code, art. 2315, to a surviving father or mother, to recover damages for the death of their son, does not extend to parents by adoption. Mount v. Tremont Lumber Co. 16: 199, 46 So. 103, 121 La. 64. (Annotated) 28. The right of action given by La. act 1884, No. 71, p. 94, to a surviving mother, to recover damages for the negligent killing of her minor child, refers only to legitimate children, and does not exist in favor of the mother of an illegitimate child, although the child had been acknowledged by her. Lynch v. Knoop, 8: 480, 43 So. 252, 118 La. 611. 29. In Louisiana a father and mother cannot maintain an action to recover dam- ages for the alleged negligent killing of their natural child who had not been legiti- mated by them, after their marriage, by a notarial act of acknowledgment. Landry v. American Creosote Works, 11:387, 43 So. 1016, 119 La. 231. 30. The mother of an illegitimate child is not within the meaning of a statute giv- ing a right of action for the benefit of the parent in case of the negligent killing of an infant. McDonald v. Southern R. Co. 2: 640, 51 S. E. 138, 71 S. C. 352. (Annotated) Digest 1-52 L.R.A.(N.S.) Children. See also supra, 9. 31. A statute permitting the personal representative of a deceased person to re- cover for the benefit of the children the dam- ages occasioned by the deprivation of the expectation of pecuniary advantage which would have resulted by a continuance of the parent's life, does not require the plaintiff to show that the children would probably have received from the deceased contribu- tions of money or of things purchased with money. Carter v. West Jersey & S. R. Co. (N. J. Err. & App.) 19: 128, 71 Atl. 253, 76 N. J. L. 602. (Annotated) 32. An action may be maintained, under a statute permitting the administrator of the mother to recover for the benefit of the children the damages occasioned by the dep- rivation of the expectation of pecuniary ad- vantage which would have resulted by a continuation of the mother's life, where the mother, who has performed ordinary house- hold duties, including such care of the chil- dren as a mother usually takes, has lost her life through the wrongful act of another, notwithstanding the children have been sup- ported in a home maintained with the earn- ings of the father. Carter v. West Jersey & S. R. Co. (N. J. Err. & App.) 19: 128,' 71 Atl. 253, 76 N. J. L. 602. 33. The legal liability of a father and husband to contribute to the support of his wife and minor child may be the basis of assessing damages against one who has negligently caused his death, although he had deserted the wife and child, and they did not know his whereabouts and were be- ing supported by the wife's father. Inger- soll v. Detroit & M. R. Co. 32: 362, 128 N. W. 227, 163 Mich. 268. (Annotated) Personal representative. Survival of right of action for death, see ABATEMENT AND REVIVAL, 21. Conflict of laws as to, see CONFLICT of LAWS, 99. Exclusiveness of statutory "remedy for, see ELECTION OF REMEDIES, 10. Bar to right of action, sec JUDGMENT, 81. Conclusiveness of judgment, see JUDGMENT, 216. Bar of statute of limitations, see LIMITA- TION OF ACTIONS, 253. Release by person injured as bar to action by personal representative to recover for his death, see RELEASE, 11. See also supra, 3, 5, 8, 17, 18, 21. 34. The administrator of one having a right of action for the wrongful death of his relative cannot maintain the action, in the absence of a statute expressly confer- ring the right. Gilkeson v. Missouri P. R. Co. 24: 844, 121 S. W. 138, 222 Mo. 173. (Annotated) 35. No right of action is given to the ad- ministrator of a child injured by the wrong- ful killing of his parent, to recover the damages shown, by a statute providing that for all wrongs done to property rights or interests of another, for which a right of action might have been maintained against the wrongdoer, such action may be brought 892 DEATH, III., IV. after tho death of the person injured by his executor or administrator, on the theory that the right of action which he impliedly had for the wrongful taking from him of his right to the care, support, and mainte- nance of his parent was a property right. Gilkeson v. Missouri P. R. Co. 24: 844, 121 S. W. 138, 222 Mo. 173. Creditor's right to share. 36. A statute making the sum recover- able for the death of a person killed by neg- ligence answerable for his debts includes lien debts on real estate which he has devised. Sturges v. Sturges, 12: 1014, 102 S. W. 884, 126 Ky. 80. III. Who liable for causing. '.9ee also same heading in Digest L.R.A. 1-10.) Landlord's liability for death of tenant's child caused by defect in premises, see LANDLORD AND TENANT, 149. Employer's liability for death of minor servant, see MASTEB AND SERVANT, 153. Liability of railway carrier, generally, un- der Federal employers' liability act, see MASTER AND SERVANT, 195. Master's liability for death resulting from servant's act, see MASTER AND SERV- ANT, 960, 975. Liability of municipality, see MUNICIPAL CORPORATIONS, 317, 318, 340-344, 369, 374, 385, 464. IV. Defences. (See also same heading in Digest L.R.A. 1-10.) In admiralty court, see ADMIRALTY, 6. Burden of establishing, see EVIDENCE, 91. Evidence to establish, see EVIDENCE, 2003. Judgment in action for personal injury as bar to recovery for death, see JUDG- MENT, 81. - Bar of statute of limitations, see LIMITA- TION OF ACTIONS, 253. 37. In an action for wrongful death un- der a statute authorizing the action when the intestate could have maintained an ac- tion for the same act if death had not en- sued, all defenses are available to defend- ant which would have been available had the action been brought by the person in- jured. Suell v. Derricott, 23: 996, 49 So. 895, 161 Ala. 259. 38. That the killing was in self-defense or to effect an arrest for felony is a good defense in an action for wrongful death un- der a statute giving the personal represent- ative a cause of action when the intestate could have maintained an action for the same act had death not ensued. Suell v. Derricott, 23: 996, 49 So. 895, 161 Ala. 259. (Annotated) 39. One is not liable in damages for killing another under the reasonably mis- taken belief that the killing was necessary to prevent a burglary of his residence, al- though in fact the supposed burglary was Digest 1-52 L.R.A.(N.S.) merely a jest or an attempt to frighten him. Foster v. Shepherd, 45: 167, 101 N. E. 41 1_ 258 111. 164. 40. One who negligently causes the death of a married woman cannot escape liability to her estate because her earnings belong to her husband. Hunter v. Southern 11. Co. 29: 851, 68 S. E. 237, 152 N. C. 682. 41. That the terror caused by blasting operations would cause the death of one ill with fever was not foreseen by the one- car ry ing on such operations will not relieve him from liability therefor, if they were performed in such manner that some injury was likely to result from them. Hunter v. Southern' R. Co. 29:851, 68 S. E. 237. loL' N. C. 682. 42. The failure of a husband who has been injured by the negligence of a city, to give the statutory notice necessary to- enable him to maintain an action against the city for such injury, does not, after his death, which occurred after the time for giving such notice had expired, prevent the maintenance of an action by his widow, who gave the statutory notice within the requisite time after his death, under a statute giving a right of action for dam- ages for death caused by wrongful act, in case the decedent might have maintained an action, had he lived, for injury for the same act or omission. Nesbit v. Topeka, 40: 749, 124 Pac. 166, 87 Kan. 394. (Annotated ) 43. Abusive language to a carrier's agent by a passenger who is angry at a charge for storage on his baggage, cannot justify or excuse the act of the agent in shooting him when he is going out of the office. Daniel v. Petersburg R. Co. 4: 485, 23 S. E. 327, 117 N. C. 592. (Annotated) Contributory negligence of deceased. Contributory negligence as defense, gen- erally, see NEGLIGENCE, II. 44. A constitutional or statutory provi- sion making one liable in damages for neg- ligently causing another's death does not preclude the defense of contributory negli- gence. Cincinnati, N. O. & T. P. R. Co. v. Lovell, 47: 909, 132 S. W. 569, 141 Ky. 249. Contributory negligence of bene- ficiary. See also Drugs and Druggists, 11 ; PROXI- MATE CAUSE, 166. 45. Where a father consents to, or is a party to, a contract of employment of his infant son under twelve years of age in a coal mine in violation of statute, and the son is killed by an explosion in the mine. and the father would be the sole beneficiary of any recovery, his contributory negligence in respect to such employment will bar ac- tion against the owner or operator of the mine for damages, in the absence of some other act of negligence, not of a fellow servant, on the part of the owner or oper- ator shown to have been the proximate cause of such explosion and consequential death of such infant employee. Dickinson v. Stuart Colliery Co. 43:335, 76 S. E. 654, 71 W. Va. 325. 46. A father who, with knowledge of the DEATH, V., VI. 893 danger, permits his son to work in a mine for twenty-six consecutive hours, until he becomes incapacitated to guard himself from danger, cannot recover for the personal loss suffered by him by the killing of the boy while asleep on a car track, nor can there be a recovery by an administrator of the boy's estate where the father would be sole beneficiary in case of a recovery. Lee v. New River & Pocahontas Consol. Coal Co. 45: 940, 203 Fed. 644, 122 C. C. A. 644. 47. That a father is the sole beneficiary and distributee of his son's estate does not render his contributory negligence a de- fense to an action by him as administrator to recover damages, for the sole benefit of the son's estate, for his conscious suffering through personal injuries negligently in- flicted tfpon him by another which resulted in his death. Nashville Lumber Co. v. Bus- bee, 38: 754, 139 S. W. 301, 100 Ark. 76. (Annotated) 48. Contributory negligence of a father is a defense to an action by him as a per- sonal representative for the death, by wrongful act, of a minor child, when he is the sole beneficiary. Scherer v. Schlaberg, 24: 520, 122 N. W* 1000, 18 N. D. 421. 49. The act of a mother in permitting her six-year-old child to cross, unattended, rail- road tracks used for switching cars, is such negligence as will prevent a recovery by the parents for the child's death in case she is run over by a train before she is seen by, or her presence known to, any member of the crew. Vinnette v. Northern P. R. Co. 18: 328, 91 Pac. 975, 47 Wash. 320. (Annotated) Release or compromise. Authority to compromise, see infra, V. Compromise of claim for death with one of two joint wrongdoers, see JOINT L'REDITOHS AND DEBTORS, II. 50. A release by an administrator of a claim for damages on account of the death of his intestate, fraudulently made with the adverse party, who participated in the fraud, is not a bar to an action by a suc- ceeding administrator to enforce the claim. Aho v. Jesmore, 10: 998, 112 N. W. 538, 101 Minn. 449. 51. A widow, by accepting benefits from the relief department of a railroad company in whose service her husband was killed, is precluded from thereafter maintaining for herself an action against the company for damages arising from the husband's death, where the contract of membership in the re- lief department provides that receipt of benefits shall bar all actions for damages; but she is not thereby precluded from maintaining an action, as administratrix of the estate of the deceased, fsr the bene- fit of her minor children. Chicago, B. & Q. R. Co. v. Healy, 10: 198, 107 N. W. 1005, 111 N. W. 598, 76 Neb. 783. V. Authority to compromise claim for. (See also same heading in Digest L.R.A. 1-10.) 52. The settlement of a claim for wrong- ful death by the one entitled to receive the Digest 1-52 L.R.A.(N.S.) damages therefor is ineffectual if made aft- er the administrator has begun an action to recover the damages, where the statute vests the right of action in the adminis- trator and empowers him to compromise and settle the claim for damages growing out of the injury. Louisville v. Schneider, 35: 207, 136 S. W. 212, 143 Ky. 171. (Annotated) 53. A settlement by the sole heir at law of a claim for damages for the suffering of one killed through another's negligence is binding upon an administrator of decedent's estate subsequently appointed, who does not need the assets in the administration of the estate, but will distribute any recovery by him to such heir. McKeigue v. Chicago & N. W. R. Co. ii : 148, 110 N. W. 384, 130 Wis. 543. (Annotated) 53a. An administrator may settle a claim for the negligent killing of his intestate without authority from the court. Olston v. Oregon Water Power & R. Co. 20: 915, 96 Pac. 1095, 97 Pac. 538, 52 Or. 343. VI. Effect of. (See also same heading in Digest L.R.A. 1-10.) To abate action, see ABATEMENT AND RE- VIVAL, II. Effect of infant's death on right to disaffirm deed made by him, see ABATEMENT AND REVIVAL, 6. Effect of death of party before appeal is taken, see APPEAL AND ERROR, 112. Effect of death of party between submission and decision of cause on appeal, see AP- PEAL AND ERROR, 1578. On authority of attorney, see ATTORNEYS, 37. Effect of death before settlement of case of attorney who has taken case on con- tingent'fee, see ATTORNEYS, 62. Effect of death pending appeal of one of several attorneys who have agreed to share contingent fee, see ATTORNEYS, 63. On check, see BANKS, 92. Effect of death of insured between mailing of acceptance of option and its receipt by the company, see COXTRACTS, 187. To take contract out of statute of frauds, see CONTRACTS, 241-243. To terminate contract, see CONTRACTS, 723- 726; MASTER AND SERVANT, 98, 99. Effect of death preventing rendition of services contracted for, see DAMAGES, 205. Effect of death of illegitimate before his mother on right of his children to in- herit from her, see DESCENT AND DIS- TRIBUTION. 14. Of husband; effect on alimony, see DIVORCE AND SEPARATION, 127. Effect of father's death on duty to support children after divorce, see DIVORCE AND SEPARATION, 155-157. Effect, on admissibility of book entries, of death of person making, see EVIDENCE, 800-802, 819, 844-846, 864. 8SI4 DEATH DUTIES DEBT. Effect on admissibilitv of evidence, see EVI- DENCE, 819, 1374-1391. Of homesteader, effect on creditors' rights, see HOMESTEAD, 19-23. Of members of family, effect on homestead, see HOMESTEAD, 41. Effect of death of beneficiary within life- time of insured, see INSURANCE, 478. On judgment, see JUDGMENT, 97. Right to vacate divorce decree after death of party, see JUDGMENT, 327-329. Vacation of judgment because of death be- fore judgment, see JUDGMENT, 338, 339, 375, 376. Effect to terminate lease, see LANDLORD AND TENANT, 57. Effect on contract to support person in part payment of rent, see LANDLORD AND TENANT, 185. Effect to start running of limitations, see LIMITATION OF ACTIONS, 218. On subcontractor's lien, see MECHANICS' LIENS, 70. Effect of death of judgment defendant on time for filing petition for new trial, see NEW TRIAL, 74. To create vacancy in office, see OFFICERS, 25, 30. To terminate agency, see PERPETUITIES, 6; PRINCIPAL AND AGENT, 46, 48. Release of surety on bond by, see PRINCIPAL AND SURETY, 34, 35. Effect of death of mortgagor in possession upon right of mortgagee under chattel mortgage, see REPLEVIN, 6. Of stallion, before purchaser has exercised right to return, see SALE, 123. To vest property, see WILLS, 300. Right to recover after death of one for whose benefit charge is made on property sums accruing during her lifetime, see WILLS, 384. Effect of death of proposed annuitant before purchase of annuity, see WILLS, 395. On competency of witness, see WITNESSES, I. c. See also SALE, 146. 54. The authority of one in whose hands securities are placed to make distribution of them among the owner's children to whom they are given by the owner, and for whom delivery is made to such person, is not re- voked by the latter's death. Mollison v. Rittgers, 29: 1179, 118 N. W. 512, 140 Iowa, 365. DEATH DUTIES. See TAXES, V. DEATH PENAiTY. See CAPITAL PUNISHMENT. Digest 1-52 I,.R.A.(N.S.) DEBASED FEE. See WILLS, 243. DEBATES. Resort to debates in Congress in construing statute, see STATUTES, 85, 206. DEBAUCHERY. Prohibiting interstate transportation of women for purposes of, see COMMERCE, 40, 41. DE BGNIS NON. Appointment of administrator de bonis non, see EXECUTORS AND ADMINISTRATORS, 17-19. Resignation of administrator de bonis non, see EXECUTORS AND ADMINISTRATORS, 39. Powers of administrator de bonis non, see EXECUTORS AND ADMINISTRATORS, 48, 49. Action by administrator de bonis non, see EXECUTORS AND ADMINISTRATORS, 89, 90. DEBRIS. Sale of debris after loss of insured property, see INSURANCE, 869. DEBT. Arrest for, see ARREST, 16-19. Imprisonment for, see CONTEMPT, 110, 111; IMPRISONMENT FOR DEBT. Liability for, of sum recoverable for death of person killed by negligence, see DEATH, 36. Liability of heirs for debt of ancestor, see DESCENT AND DISTRIBUTION, III.; EX- ECUTORS AND ADMINISTRATORS, 98. Alimony as, see DIVORCE AND SEPARATION, 80. Parol evidence to explain writing purport- ing to fix compensation for collecting debt, see EVIDENCE, 1019. Power of executor to create, see EXECUTORS AND ADMINISTRATORS, 47. Situs of, for purpose of garnishment, see GARNISHMENT, I. d.. Deduction of debts due insurer in paying insurance, see INSURANCE, 800. Interest on, see INTEREST. Actionability of charge of nonpayment of, see LIBEL AND SLANDER, 59. Assault by servant sent to collect, see MAS- TER AND SERVANT, 958. DEBTOR AND CREDITOR. 895 Debt limit of municipality, see MUNICIPAL CORPORATIONS, II. e, 2. Debt limit of school district, see SCHOOLS, 56-58. Deduction of, in assessment of taxes, see TAXES, 23, 185. Debt limit of county, see TAXES, 37. Situs of, for purpose of taxation, see TAXES, 137-148. Division of township as affecting its assets and liabilities, see TOWNS, 1, 2. Charging debts of testator on land devised, see WILLS, 385. Legacy given in satisfaction of, as subject to abatement, see WILLS, 406. Alimony as a debt, see DIVORCE AND SEPA- RATION, 80. DEBTOR AND CREDITOR. Accord and satisfaction between, see ACCORD AND SATISFACTION. Arrest for debt, see ARREST, 16-19. Assignments for creditors, see ASSIGNMENT FOR CREDITORS. W T hen relation of debtor and creditor be- tween attachment creditor and surety on bond arises, see ATTACHMENT, 32. Payment of creditor of bank official with funds of bank, see BANKS, 19, 22. Compromise and settlement between, see COMPROMISE AND SETTLEMENT. Constitutionality of statute subjecting spendthrift trust to execution, see CON- STITUTIONAL LAW, 382, 781. Obligation to pay debt of another within statute of frauds, see CONTRACTS, I. e, 2. Mutuality of contract between creditor and third person agreeing to pay debt, see CONTRACTS, 131. Construction of agreement to assume debt, see CONTRACTS, 371-373. Breach of agreement to pay "now" or "on demand," see CONTRACTS, 694. Statute forbidding posting of list of debtors, see CONTRACTS, 727. Liability of officers of corporation to credi- tors, see CORPORATIONS, IV. g, 5, a. Liability of incorporators to creditors, see CORPORATIONS, IV. h. Right of creditor of corporation to question the legality of its organization, see COR- PORATIONS, 7. Rights of creditor of corporation as against one to whom assets are transferred, see CORPORATIONS, 21-32. Right of creditor to enforce stockholder's liability, see CORPORATIONS, 364a. Who is a creditor entitled to institute pro- ceedings to wind up corporation, &ee CORPORATIONS, 397. Creditor's right to share in action for death, see DEATH, 36. Liability o'f heirs for debts of ancestor, see DESCENT AND DISTRIBUTION, III. ; EXECUTORS AND ADMINISTRATORS, 98. Appropriation of alimony for wife's debts, see DIVORCE AND SEPARATION, 94, 95. Digest 1-52 L.B.A.(N.S.) Rights of creditor on division of property in divorce suit, see DIVORCE AND SEPA- RATION, 129, 143. * Estoppel of one leaving his chattels in an- other's possession to claim title against the latter's creditors, see ESTOPPEL, 51, 52, 265. Presumption and burden of proof as to debtor's ability to pay, see EVIDENCE, 207, 208. Presumption that creditor of corporation relied upon representations that stock was fully paid, see EVIDENCE, 267. Parol evidence of condition on which sealed release of debt was delivered, see EVI- DENCE, 1025. Evidence to show notice to debtor of assign- ment of claim against him, see EVI- DENCE, 1582. Creditors of decedent, see EXECUTORS AND ADMINISTRATORS, IV. Right of creditor to letters of administra- tion on estate of debtor, see EXECUTORS AND ADMINISTRATORS, 12. Effect of appointment of debtor as adminis- trator of creditor's estate, see EXECU- TORS AND ADMINISTRATORS, 80. Procuring payment of just debt by false pre- tenses, see FALSE PRETENSES, 15, 16. Conveyances fraudulent as to creditors, see FRAUDULENT CONVEYANCES. Rights of creditors in community property, see HUSBAND AND WIFE, II. c. Rights of husband's creditors as affected by marital relations of debtor, see HUS- BAND AND WIFE, II. k. Contract by married woman to pay debt of other person, see HUSBAND AND WIFE, 39, 40. Effect of intermarriage between debtor and creditor upon the indebtedness, see HUS- BAND AND WIFE, 58. Liability of wife's separate estate for her deb't, see HUSBAND AND WIFE, 90, 95- 98. Wife's priority over husband's creditors, see HUSBAND AND WIFE, 145. Rights of creditor to life insurance, see IN- SURANCE, VI. d, 2, d. Statute permitting bankrupt to assign in- surance on his life to his wife free from claims of creditors, see INSURANCE, 449, 450. Joint creditors and debtors, see JOINT CREDI- TORS AND DEBTORS. Right of one taking mortgage from judg- ment debtor to challenge amount of judgment, see JUDGMENT, 126. Liability for use and occupation, of one taking possession of leasehold of debtor, see LANDLORD AND TENANT, ]83, 184. Libel in attempting to collect debt see LIBEL AND SLANDER, 15. Right of judgment creditor of life tenant to income from life estate, see LIFE TEN- ANTS, 2. When limitations begin to run on promise to pay a debt when able, see LIMITA- TION OF ACTIONS, 122. When limitation begins to run on promise to pay "at earliest possible convenience," eee LIMITATIONS OF ACTIONS, 126, 127. 896 DECEDENTS DEDICATION. Repeated posting on debtor's door of request to call and pay debt as probable cause ior arrest, see MALICIOUS PROSECUTION, 24. Liability for assault by servant sent to col- lect debt, see MASTER AND SERVANT, 958. Right of judgment creditor to redeem from mortgage foreclosure, see MORTGAGE, 159. Right of judgment creditors to maintain action to annul mortgage in fraud of their rights, see PARTIES, 20. Rights of creditors of partnership, see PART- NERSHIP, III. Payment by debtor, see PAYMENT. Validity of pledge as against creditors, see PLEDGE AND COLLATERAL SECURITY, 2- 10. Effect of recording laws on rights of credi- tors, see RECORDS AND RECORDING LAWS. Enforcement by creditor of taxing district, of tax lien, see TAXES, 266, 207. Conversion by creditor, see TROVER, 14, 15. Rights of creditors in trust fund, see TRUSTS, III. b. Priority of United States as creditor, see UNITED STATES, V. Right of creditor to enforce vendor's lien, see VENDOR AND PURCHASER, 80-82. Insolvency of debtor, see ASSIGNMENT FOR CREDITORS; BANKRUPTCY; BANKS, V.; CORPORATIONS, VI. f, VII. c; INSOL- VENCY; PARTNERSHIP, 35-38. As to remedies of creditor, see ATTACH- MENT; CREDITORS' BILL; FRAUDULENT CONVEYANCES, VII.; GARNISHMENT; LEVY AND SEIZURE. Lien of creditor, see LIENS ; MECHANICS' LIENS. As to exemptions, see EXEMPTIONS; HOME- STEAD. See also DEBT. DECEDENTS. Admissibility of declarations of, see EVI- DENCE, 1374-1391. Evidence as to character or reputation, see EVIDENCE, 1558-1567. Administration of estates of, see EXECUTORS AND ADMINISTRATORS. DECEDENTS' ESTATES. Administration of, see EXECUTORS AND AD- MINISTRATORS. Rights of heirs and distributees in general, see DESCENT AND DISTRIBUTION. Running of statute of limitations in action as to, se LIMITATION OF ACTIONS, II. j. Parties defendant in action respecting, see PARTIES, II. a, 4. Pleading as to, see PLEADING, II. n. "Set-off by or against, see SET-OFF AND COUN- TERCLAIM, I. e. Digest 1-52 L.R.A.(N.S.) DECEIT. See FRAUD AND DECEIT. DECENCY. Ambiguity of statute punishing conduct out- raging public decency, see STATUTES, 42. DECISIONS. Change of, as affecting contract, see CON- STITUTIONAL LAW, II. g, 1, b. Of association or religious society, conclu- siveness of, see COURTS, 1. d. DECLARATIONS. Evidence of, see EVIDENCE, X. In pleading, see PLEADING, II. DECOY. Effect of use of decoy letter to secure evi- dence against one suspected of crime, see POST OFFICE, 16, 16. DECREE. See JUDGMENT. DEDICATION. /. Mode and effect, 137. a. In general, 119. b. By map or plat, 2O36. c. Who may dedicate, 37. II. Acceptance, 3S41. III. Revocation; abandonment; revert- er, 4244. Tender of dedication of land defeated by adverse possession, see ADVERSE POS- SESSION, 40. Attempted dedication of property to public use by directors of corporation, see COR- PORATIONS, 110. Implied dedication of land as public park, see COVENANT, 18. Estoppel of municipality to assert title to land dedicated for street, see ESTOPPEL, 8, 9. Estoppel to deny, see ESTOPPEL, 124. Evidence of intent to dedicate land, see EVI- DENCE, 1628, ]629. Sufficiency of proof of, see EVIDENCE, 2189, 2190. Effect of judgment to bar rights of munici- pality under dedication, see JUDGMENT, 203. ' DEDICATION, I. a. 897 Power of legislature to determine use to which dedicated property shall be put, see LEGISLATURE, 8. Sufficiency of finding as to, see TRIAL, 1107. I. Mode and effect. a. In general. (See also same heading in Digest L.R.A. 1-70.) 1. The terms of a dedication of a strip of land "to be kept open as an alley" cannot be changed by the fact that at the time of the dedication it is obstructed by a por- tion of a building. Gaynor v. Bauer, 3: 1082, 39 So. 749, 144 Ala. 448. 2. A dedication of property to public use is not established by evidence of the recollection of officers of the corporation to which it belonged that it had been dedi- cated to public use, where the corporation continued to exercise absolute control over it, and the public never claimed it, levying and collecting the taxes on it as though the title remained in the former owner. Stacy v. Glen Ellyn Hotel & Springs Co. 8: 966, 79 N. E. 133, 223 111. 546. 3. Consent by a lot owner to the pla- cing of earth thereon as a lateral support to the adjoining street when its grade is raised above the level of the lot amounts to a dedi- cation to the public use; and he cannot sub- sequently require a removal of the support or compensation for the use of his property. Williams v. Hudson, 12: 727, 110 N. W. 239, 130 Wis. 297. 4. That a desert entryman and his suc- cessors in interest intended that the occu- pants of a town site should have the free use of water on the streets of such town site is not sufficient to show a perpetual dedication of said water to a public use. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 5. Mere failure to list shore property for taxation does not vest title thereto in the public. Poole v. Lake Forest, 23: 809, 87 N. E. 320, 238 111. 305. 6. No dedication to public use is effect- ed by the grant, by one disposing of lots in a tract of land, of a private right of way over a centrally located strip, to furnish grantees convenient access to the street. Brown v. Oregon Short Line R. Co. 24: 86, 102 Pac. 740, 36 Utah, 257. 7. A dedication to the public of a piece of land marked on a plat as a park is not shown by the mere planting of a few trees upon it, where it is never used as a park, and nothing is ever done to fit it for that purpose. Stover v. Steffey, 37: 856, 81 Ail. 33, 115 Md. 524. 8. A deed by a man and wife to trus- tees for the use and benefit of a religious sect, which was invalid at the date thereof for want of privy examination of the wife, 9. The dedication and acceptance of a strip of land as a public street is shown by the facts that the former owner recognized it in selling lots as a public highway, and that the municipality had policed it and authorized the construction of a railroad on it, although the street had not been im- proved or sidewalks laid. Southern R. Co. v. Caplinger, 49: 660, 152 S. W. 947, 151 Ky. 749. Shown by use. Presumption of right to visit object of pub- lic interest on private property from continued user, see EASEMENTS, 8. See also supra, 9, 35. 10. An implied common-law dedication of a plat of land for public use for burial purposes is effected by permitting its use by the entire neighborhood as a place for in- terment of the bodies of the dead for a long series of years. Roundtree v. Hutchinson, 27: 875, 107 Pac. 345, 57 Wash. 414. ( Annotated ) 11. To constitute dedication of water rights by user, it is necessary to find the probative facts which, of themselves, con- stitute dedication; and it is not enough to find facts which merely have a tendency to prove dedication, since the use found to ex- ist must be inconsistent with a permissive use or a mere license. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 48i. 12. Long-continued use, with the knowl- edge of the owner, of water upon streets and alleys in a municipality, is not incon- sistent with a permissive use and a license to use the same, and does not show an in- tention to perpetually dedicate the water to a public use. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 13. Purchasers of building lots which were laid out on the plat of a town site upon a desert entry, to which locality water was brought by ditches and used on the streets of the town for irrigation and domestic pur- poses continuously and uninterruptedly for a period of over twenty years, acquired a right to use the water by dedication, within the meaning of Idaho Const, art. 15, 4, and the statutes of the state; and the water can- not be withheld from the streets and lots of the town so long as the consumers pay the reasonable and legally established ren- tal therefor. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 13a. A public highway must prima facie lead from one public place to another. A cul-de-sac may be a public highway, but the dedication of a cul-de-sac as a highway will not be presumed from mere public user, without evidence of expenditure on the ' place in dispute for repairs, lighting, or other matters, by the public authority. Attorney General v. Antrobus, 4 B. R. C. 868 [1902] 2 Ch. 188. 74 L. J. Ch. N. S. 599, Also Reported in J. P. 141, 92 L. T. N. S. 790, 21 Times L. R. 471, 3 L. G. R. 1071. 14. A dedication of a part of the land cannot be upheld as a parol dedication of the property attempted to be conveyed, of a wharf company as a city street cannot Deepwater R. Co. v. Honaker, 27: 388^ 66 be implied from its us*, Dy the general pub- S. E. 104, 66 W. Va. 136. li c sucn as does not Interfere with the corn- Digest 1-52 L.R.A.(N.S.) 57 SOS DEIDCATION, I. b. pany's private enjoyment thereof, especially where the wharf company paid taxes on the property, and the same were received by the city. Savannah v. Standard Fuel Sup- ply Co. 48: 469, 78 S. E. 906, 140 Ga. 353. (Annotated) Effect. 15. Where, by statute, a dedication con- veys the fee, an owner of property abutting on a strip of land which has been dedicated for highway purposes cannot recover from the municipality the value of natural prod- ucts of the soil, grown upon the surface of the highway, and converted by the mu- nicipality to its own use. Carroll v. Elm- wood, 33: 1053, 129 N. W. 537, 88 Neb. 352. (Annotated) 16. The platting of a public square and its occupation, use, and improvement as a park, by the municipality within the lim- its of which it is situated, vests the title completely in the city, although there Is no conveyance by the county commissioners, who act as a medium through which the dedication of the land as a town plat is effected. Lacey v. Oskaloosa, 31: 853, 121 N. W. 542, 143 Iowa, 704. Diversion to other use. Establishment of pesthouse in park as di- version to illegal purpose, see INJUNC- TION. 374. 17. There is no diversion in running a subway under land deeded for common use as a training field and cow pasture, where there will be no interference with the sur- face except a slight enlargement of the ap- proaches to a station. Codman v. Crocker, 25: 980, 89 N. E. 177, 203 Mass. 146. ( Annotated ) 18. The erection of a public library building upon a portion of a tract of land devised to a city upon condition that it shall be used forever as a public park is inconsistent with the purpose for which the park was dedicated, and amounts to a di- version. Hopkinsville v. Jarrett, 50: 465, 162 S. W. 85, 156 Ky. 777. (Annotated) 19. The fact that a statutory provision empowering a city to permit the use of any property belonging to it, or dedicated to public use therein, for the purpose of erect- ing a public library building, was in effect at the time of the making of a will devising land to a city upon condition that it shall be used forever as a public park, does not prevent the use of a part of such land as a site for a public library from being a diversion from the purpose for which it was dedicated. Hopkinsville v. Jarrett, 50: 465, 162 S. W. 85, 156 Ky. 777. ' b. By map or plat. (See also same heading in Digest L.R.A. 1-10.) Admissibility of evidence to show intent of person dedicating, see EVIDENCE, 1628. Right of one dedicating to testify that he had no intent to dedicate, see WIT- NESSES, 12. ZHgest 1-52 L,.R.A.(N.S.) 20. The strip of land between the bluff and the water's edge is not dedicated to the public by leaving it blank when platting into lots, streets, and parks, the land on top of the bluff, and stating in the plat that the lake-front lots extend only to the top of the bluff. Poole v. Lake Forest, 23: 809, 87 N. E. 320, 238 111. 305. (Annotated) 21. Designation by the owner thereof of a block of land as a "square," on a record- ed town plat, sufficiently indicates an in- tention to dedicate the block to a public use, but is insufficient to designate any particular use to which it is to be devoted. Daughters v. Board of Commissioners, 27: 938, 100 Pac. 297, 81 Kan. 548. Extent of dedication. 22. The making and filing of a plat lay- ing out a town site upon a desert entry will not dedicate to the public the water used upon the streets and alleys of the town site, under a water right subsequently located and acquired. Hailey v. Eiley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 23. Evidence that a company owning a tract of land which it desired to develop as a residential district purchased a strip of land 80 feet wide, the conformation of which was such as to render it improbable, if not impossible, that it would be used for building purposes, stretching across a deep ravine adjacent to their property, which strip connected such property with the end of a public street; that they constructed across the ravine upon such strip a bridge connecting such public street with a road laid out by them; that they filed a plan conveying to the township lands shown thereon as highways, including the 80-foot strip referred to; and that the bridge, hav- ing fallen into disrepair, was rebuilt by the public authorities, is sufficient to show a dedication of such strip as a public high- way for its full width, and not merely for the width of the bridge. Gloster v. Toronto Electric Light Co. 1 B. R. C. 786, 38 Can. S. C. 27. Selling lots with respect to plat or map. Conclusiveness of judgment as to rights of purchasers, see JUDGMENT, 204, 205. 24. The filing of a map of a subdivision of a tract of land, with spaces marked thereon for streets, followed by the sale of lots with respect thereto, is an offer to ded- icate the streets to public use, which can- not be withdrawn after they have been accepted by ordinance, and it is immaterial that no names are attached to the spaces shown on the plat, or that they are cut off at one end by dotted lines. Los Angeles v. McCollum, 23: 378, 103 Pac. 914, 156 Cal. 148. 25. A dedication of land for a park is ef- fected by the exhibition of a plat on which the space is designated as a park when sell- ing lots bordering thereon, followed by per- mitting the public to use the tract generally as it pleases. Northport Wesleyan Grove Campmeeting Asso. v. Andrews, 20: 976, 71 Atl. 1027, 104 Me. 342. 26. The right to open streets shown up- DEIDCATION, I. c, II. 899 on a plat exhibited to purchasers of lots, but not referred to in the deed, does not exist against one who purchases the platted property before the streets were marked on the ground, without notice of the plat, actual or constructive. Green v. Miller, 44: 231, 76 S. E. 505, 161 N. C. 24. (Annotated) 27. The sale of lots with reference to a plat does not dedicate to public use lands shown on the plat as a park, if the lots sold are not contiguous or adjacent to the park. Stover v. Steffey, 37: 856, 81 Atl. 33, 115 Md. 524. 28. The purchaser of lots according to a plat is entitled to have the streets shown on the plat maintained only so far as their existence is material to the enjoyment of the lots purchased. Douglass v. Belknap Springs Land Co. 37: 953, 81 Atl. 1086, 76 N. H. 254. 29. One who upon purchasing lots with reference to a plat is informed that a por- tion of the platted tract belongs to a stran- ger, and that he will do what he wishes with respect to the streets on that portion, can- not prevent the closing of such streets. Douglass v. Belknap Springs Land Co. 37: 953, 81 Atl. 1086, 76 N. H. 254. 30. One selling lots with reference to a plat made and recorded by another is bound to maintain the streets shown on the plat, so far as his grantee is interested in them. Douglass v. Belknap Springs Land Co. 37: 953, 81 Atl. 1086, 76 N. H. 254. 31. The existence of a street shown on a plat upon the shore of a lake cannot be de- feated as against claims of persons who buy lots with reference to the plat, by the fact that when the requisite number of lots is laid out according to course and distance no space will be left for the street. Doug- lass v. Belknap Springs Land Co. 37: 953, 81 Atl. 1086, 76 N. H. 254. 32. A purchaser of a lot in a platted tract on the shore of a lake is entitled to have a street shown on the plat to exist along the lake shore kept open, and it is immaterial that by reason of the configu- ration of the ground for a portion or the distance it can be used only as a foot path. Douglass v. Belknap Springs Land Co. 37: 953, 81 Atl. 1086, 76 N. H. 254. 33. Where a city plat is recorded in ap- parent conformity with the statute, but is inoperative as to a part of the property in- cluded because the owner thereof does not join in the acknowledgment, the execution of a deed by such owner in which the tract conveyed is described by reference to the plat, there being nothing to show a purpose to disavow it, is such a recognition of its validity as will make it binding u.pon him. Wallace v. Cable, 42:587, 127 Pac. 5, 87 Kan. 835. (Annotated) 34. Conveyance by metes and bounds of lots on a street dedicated by plat to public use but vacated by the public before the conveyance is made does not carry title to the street, but the title thereto remains in the grantor and may be conveyed to Digest 1-52 L.R.A.(N.S.) another. White v. Jefferson, 32: 778, 124 N. W. 373, 125 N. W. 262, 110 Minn. 276. (Annotated) 35. The failure of occupants of property included in a town-site entry and their gran- tees to object to the designation, on the map filed by the trustee, of a strip along their water front as a public sidewalk, or to the use of the strip so designated and the acceptance of deeds bounded on the side- walk, is sufficient to effect a dedication of the strip to public use so as to cut off the riparian rights of the occupants in the water beyond the strip. McCloskey v. Pa- cific Coast Co. 22: 673, 160 Fed. 794, 87 C. C. A. 568. 36. Mere reference in a deed to an un- published, unrecorded plat on which a park is shown as part of the tract on which the property is located does not constitute a dedication of the park to public use where none of the land sold is bounded on the park, but all is separated therefrom by streets. Canton Co. v. Baltimore, ii: 129, 66 Atl. 679, 106 Md. 69. c. Who may dedicate. (See also same heading in Digest L.R.A. 1-70.) ' 37. The attempted dedication by a mort- gagor of a portion of the mortgaged prop- erty for a highway, without consent of the mortgagee, gives the public no more than an equity against the mortgagee to have the way open, provided it does not interfere with the mortgage security. Kiernan v. Jersey City (N. J. Err. & App.) 31: 1023, 78 Atl. 228, 80 N. J. L. 272. (Annotated) II. Acceptance. (See also same heading in Digest L.R.A. 1-70.) Acceptance of highway generally, see HIGH- WAYS, 9, 10. See also supra, 24. Necessity of. 38. Where a city plat which is recorded in apparent conformity with the statute is inoperative as to a part of the property in- cluded because the owner thereof does not join in the acknowledgment, the execution of a deed by such owner in which the tract conveyed is described by reference to the plat, there being nothing to show a purpose to disavow it, is a complete dedication of the tract designated on the plat as streets and alleys, irrespective of any acceptance on behalf of the public. Wallace v. Cable, 42: 587, 127 Pac. 5, 87 Kan. 835. 39. The release of a mortgage from which land is reserved as a public park, be- fore the acceptance on the part of the pub- lic of the dedication of the park, causes whatever offer to dedicate might be con- tained in the instrument to cease. Canton Co. v. Baltimore, u: 129, 66 Atl. 679, 106 Md. 69. 900 DEDICATION, ill. DEEDS. 'What constitutes. 40. Acceptance of a dedication of a short way leading from a street to the seashore may be shown by its use by a compara- tively small number of persons on foot dur- ing the summer season, if such was the user to be anticipated by the dedicator. Phillips v. Stamford, 22: 1114, 71 Atl. 361, 81 Conn. 403. (Annotated) 41. An ordinance adopting all streets and parks theretofore offered to the public for dedication is sufficient to render spaces marked as streets on a recorded plat pub- lic highways. Los Angeles v. McCollum, 23: 378, 103 Pac. 914, 156 Cal. 148. III. Revocation; abandonment; reverter. /See also same heading in Digest L.R.A. 1-10.) Abandonment; reverter. 42. A plat of land dedicated to public use for burial purposes loses its character as a resting place for the dead only when the bodies interred there are exhumed and re- moved by persons having authority to re- move them. Roundtree v. Butchinson, 27: 875, 107 Pac. 345, 57 Wash. 414. 43. A county to which land has been dedicated for the location of a courthouse cannot devest itself of the trust, and sur- render the title by reconveying the property to the heirs of the grantor. Gaskins v. Williams, 35: 603, 139 S. W. 117, 235 Mo. 563. 44. Land in a certain town dedicated to the county for courthouse purposes reverts to the owner when the county seat is locat- ed in another town, so that it is impossible to use the tract donated for such pur- pose, unless through some unanticipated action of the proper authorities, the county seat should be subsequently removed, since the possibility of such action is too remote to support the trust. Gaskins v. Williams, 35: 603, 139 S. W. 117, 235 Mo. 563. (Annotated) DE DONIS. Statute de donis, see DEEDS, 79. DEDUCTIONS. From sentence, see CRIMINAL LAW, 261--264. From share of distributee, see EXECUTORS AND ADMINISTRATORS, IV. c, 3. Of debt due insurance company from amount paid on policy, see INSURANCE, 800. Of debts in assessing property, see TAXES, 23, 185. From legacies, see WILLS, III. L Digest 1-52 L.R.A.(N.S.) DEED POLL. See COVENANTS AND CONDITIONS, 105, 118; EASEMENTS, 6. DEEDS. /. Form and requisites, 117. a. In general; execution, 16. b. Delivery and acceptance, 7 17. 1. In general, 713. 2. Delivery to third person, 1417. II. Construction; effect; validity, 18 99. a. In general; construction, 18 29. b. Description of parties, 3O33. c. Description of property con- veyed, 344:1. d. What property passes, 42 63. 1. In general, 4253. 2. Reservations and excep- tions, 5463. e. Estate or interest created, 64 95. 1. In general, 6467. 2. Life or fee, 6878. 3. Estates tail; rule in Shelley's case, 7986. 4. Remainders; vested or contingent interests ; re- versions ; limitation over, 8795. f. Revocation; destruction, etc., 96-98. g. Failure of consideration, 99. Of trust, see ASSIGNMENT FOB CREDITORS; MORTGAGE. Of timber, see CONTRACTS, 376; TIMBER. Of water rights, see WATERS, II. j. By incompetent person, see CONTRACTS, 755, 756, 759. By husband or wife to third person, see HUSBAND AND WIFE, II. f. To husband, see HUSBAND AND WIFE, 102, 103. To wife, see HUSBAND AND WIFE, 100, 105, 106, 147-151. In escrow, see ESCROW. In partition, see PARTITION, III. Effect of death on right to disaffirm, see ABATEMENT and REVIVAL, 6, 7. Cancelation of, see ACCOUNTING, 4; APPEAL and ERROR, 1570; CONTRACTS, 739-742, 744, 748, 755, 756, 758, 759, 764, 766- 770; EQUITY, 89-93; FRAUDULENT CON- VEYANCES, 11, 12; JUDICIAL SALE, 17; JURY, 21; PLEADING, 164. Acknowledgment of, see ACKNOWLEDGMENT. Alteration of, see ALTERATION of INSTRU- MENTS, 5; EVIDENCE, 605, 606. Record of, see RECORDS and RECORDING LAWS, III. Reformation of, see REFORMATION OF IN- STRUMENTS. DEEDS. 901 Prematurity of action to set aside, see AC- TION OR SUIT, 14. Condition precedent to suit to set aside, see ACTION OB SUIT, 15. Prematurity of action for procuring deed by fraud, see ACTION OB SUIT, 16. Effect on adverse possession of deed to third party not the owner, see ADVEBSE POS- SESSION, 88. Foreclosure of security deed as equitable mortgage, see APPEAL AND ERROR, 682, 1387; LIMITATION OF ACTIONS, 87. Sufficiency of record on appeal to show ex- istence of church at time of execution of deed to it, see APPEAL AND ERROR, 154. Prejudicial error in admission of evidence of recitals in, see APPEAL AND ERBOR, 1118. As to assignment for creditors, see ASSIGN- MENT FOB CREDITORS. Question whether instrument is deed or mortgage, see ASSIGNMENT FOR CRED- ITORS, 2. Liability of bank acting for patron, which pays money to imposter for a forged deed, see BANKS, 109. Intent to compromise doubtful right shown by, see COMPROMISE AND SETTLEMENT, 2. Law governing obligation of covenants for title in, see CONFLICT OF LAWS, 111. Law governing agreement in deed that gran- tee will assume mortgage debt, see CON- FLICT OF LAWS, 4. Conflict of laws as to infant's contract to deed property, see CONFLICT OF LAWS, 62, 63. Tax on transfer of property by deed to take effect at death of grantor, see CON- STITUTIONAL LAW, 228. Obligation of one accepting deed requiring him to make payment to stranger, see CONTRACTS, 8. Necessity of written authority to fill blank in, see CONTRACTS, 256. Effect of deed of real estate to aid defective description in contract to convey, see CONTRACTS, 285. Purchaser's duty to accept deed from third person, see CONTRACTS, 377. Covenants in, see COVENANTS AND CONDI- TIONS. Effect of conveyance and reconveyance of es- tate acquired by inheritance upon its course of descent, see DESCENT AND DISTRIBUTION, 7. Creation of easement by, see EASEMENTS, II. Recovery in ejectment on strength of, see EJECTMENT, 7. Loss of rights under, see ELECTION OF REMEDIES, 26. Estoppel by, see ESTOPPEL, II. a. Estoppel by attesting, see ESTOPPEL, 252. Estoppel of wife to claim right to real es- tate under husband's deed to her, see ESTOPPEL, 211. Fraud in failing to read to unlettered grant- or, see ESTOPPEL, 192. Digest 1-52 L.R.A.(N.S.) Presumption and burden of proof as to, see EVIDENCE, 558-562, 647. Burden of proving that mortgage was not merged in deed, see EVIDENCE, 570. Admissibility in evidence, see EVIDENCE, 743, 744, 785-789. Admissibility in evidence of certified copies of, see EVIDENCE, 729. Admissibility. of record of, see EVIDENCE, 754-756. Admissibility of copy of record of, see EVI- DENCE, 756. Evidence as to consideration for, see EVI- DENCE, 805, 811, 1006-1015. Parol evidence as to generally, see EVI- DENCE, 714, 909-912, 940, 941, 950, 957, 976, 978. Parol evidence as to consideration for, see EVIDENCE, 1006-1015. Parol evidence that deed was intended as a mortgage, see EVIDENCE, 1030-1033. Admissibility of grantor's declarations, see EVIDENCE, X. f. Evidence in action to set aside deed, see EVIDENCE, 1361. Evidence admissible in derogation of deed, see EVIDENCE, 1387, 1389, 1391. Evidence of habits of grantor, see EVIDENCE, 1519. Evidence of character of grantor, see EVI- DENCE, 1547. Evidence of quit-claim deed by littoral own- er to show intention to release littoral rights to public, see EVIDENCE, 1629. Sufficiency of evidence to impeach, see EVI- DENCE, 2257, 2258. Weight of recitals in, see EVIDENCE, 2261, 2265. Quitclaim deed by heir, see EXPECTANCIES. Fraud in securing signature to, see FRAUD AND DECEIT, 10. Representation of unborn children by trus- tees of deed of settlement in action to determine construction, see JUDGMENT, 220. Deed on judicial sale of property, see JU- DICIAL SALES, II. b. Execution of, pending suit, see Lis PENDENS, II. Merger of rights under covenant in, see MEBGEB, 2. Agreement in, for assumption of mortgage, see MORTGAGE, III. Giving of bond to secure release of lien im- posed on land by deed as a novation of the original obligation, see NOVATION, 5. Who may sue to set aside deed, see PARTIES, 24. Necessary party in proceeding to correct sheriff's deed, see PARTIES, 1G'4. Replevin to recover possession of title deed, see REPLEVIN, 15. Tax deeds, see TAXES, III. f. Tax on transfer of property by, see TAXES, 297. Identity of logs claimed under deed, as ques- tion for jury, see TRIAL, 606. Direction of verdict in favor of grantee, see TRIAL, 730. Creation of trust by, see TRUSTS. 902 DEEDS, I. a b, 2. Substitute conveyances, see VENDOB AND PURCHASER, 20. Rights of grantee of land containing ar- tesian wells, see WATERS, 287. J. Form and requisites, a. In general; execution. (See also same heading in Digest L.R.A. 1-70.) Execution of wills, see WILLS, I. b. 1. A written agreement reciting that a named person has "sold and transferred in favor of" another, a certain tract of land, and that he would execute documents of con- veyance as soon as a certain grant should be approved, and providing that the vendee should go into possession, which is signed by both parties, but not acknowledged be- fore an officer entitled to take acknowldg- ment of deeds, is an executory contract for the giving of a deed upon the approval of the grant mentioned. De Bergere v. Chaves, 51 : 50, 93 Pac. 762, 14 N. M. 352. 2. An undertaking by executors with power to sell real estate, to convey by good and sufficient deed, does not require a deed in which all the devisees and heirs at law shall join. Trogdon v. Williams, 10: 867, 56 S. E. 865, 144 N. C. 192. 3. A deed by an heir, conveying his in- terest in the estate to his mother, which is executed on the express condition that it shall not be effective until executed by the other heirs, is without effect, although de- livered, if not so executed. Haviland v. Haviland, 5: 281, 105 N. W. 354, 130 Iowa, 611. Witnesses. 4. Failure to attest a deed as required by statute does not prevent the title from passing. Eadie v. Chambers, 24: 879, 172 Fed. 73, 96 C. C. A. 561. Signature. 5. That a grantor could read does not invalidate a signature to a deed, affixed by another and attested by his mark, if he then makes the necessary acknowledgment certified by a notary public. Ford v. Ford, 6: 442, 27 App. D. C. 401. 6. Where one has a written power of attorney from another to sign deeds for the latter, such a deed which on its face pur- ports to be the indenture of the principal made by his attorney in fact therein desig- nated by name, may be properly signed by such attorney by his subscribing and af- fixing thereto the name of his principal alone. Tiger v. Button Land Co. 41: 805, 135 N. W. 368, 91 Neb. 63, 136 N. W. 46, 91 Neb. 433. (Annotated) 6. Delivery and acceptance. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Effect of delivery bak to grantor by gran- tee, see infra, 97. Digest 1-52 L.R.A.(N.S-) Power of equity to compel reconveyance of land where deeds have been delivered, see EQUITY, 25. Presumption of delivery, see EVIDENCE, 562 563. Presumption of acceptance, see EVIDENCE, 563-566. Parol proof of delivery upon condition, see EVIDENCE, 1023, 1024. Sufficiency of evidence of delivery, see EVI- DENCE, 2284. 7. The signing of a deed by an heir will not prevent the attachment of his interest in the estate if the deed has not been signed by the remaining heirs whose signatures are to be secured before delivery of the deed. Sheehy v. Scott, 4: 365, 104 N. W. 1139, 128 Iowa, 551. 8. A deed for land which, with the con- sent of the grantors, has been altered after delivery so as to make it describe a larger boundary, to be effective as a deed of the larger tract must be redelivered. Waldron v. Waller, 32:284, 64 S. E. 964, 65 W. Va. 605. Necessity; death of grantor. 9. No title will pass by a deed which is not delivered by the grantor or someone duly authorized by him. Horner v. Spen- cer, 17: 622, 95 Pac. 757, 21 Okla. 155. 10. A deed secured by the grantee and placed on record without delivery may be ratified by the grantor by treating the prop- erty as belonging to the grantee, and in- ducing him to assert title to it and incur obligations on account of it, under the be- lief that he has the title, so as to vest a good title in him. Phelps v. Pratt, 9: 945, 80 N. E. 69, 225 111. 85. (Annotated) 11. No title passes by a deed from a man to his wife, which, after its execution, he places in his money box or drawer, to which he carries the key, and in which it is found after his death, with nothing ex- cept the execution of the instrument to show an intention to vest title in her. Butts v. Richards, 44: 528, 140 N. W. 1, 152 Wis. 318. (Annotated) What constitutes; delivery for record. 12. Delivery of a deed to the grantee, with directions to place it among grantor's papers, and, if grantor did not recover from his existing illness, to record it after his death, but, in case of recovery, to destroy it, will not pass title to the grantee. Phelps v. Pratt, 9:945, 80 N. E. 69, 225 111. 85. 13. No sufficient delivery of a deed is effected by placing it in the hands of the scrivener or county official for safe-keeping with directions to place it on record upon death of the grantor. Renehan v. McAvoy, 38: 941, 81 Atl. 586, 116 Md. 356. (Annotated) 2. Delivery to third person. (See also same heading in Digest L.R.A.. 1-70.) In escrow, see ESCROW. DEEDS, II. a. 903 Passing of title to wife by delivery of deed to husband, see HUSBAND AND WIFE, 54. See also infra, 22, 23. 14. The delivery of a warranty deed ex- ecuted by the owner of land and placed, be- yond recall, in the hands of a third person, to be delivered at his death, if otherwise sufficient, will not be held ineffectual, at the instance of the heirs of the grantor, merely because the instructions given to the custodian included a direction to hold the instrument until the grantee had performed certain conditions, all of which were capable of performance within the lifetime of the grantor. Nolan v. Otney, 9: 317, 89 Pac. (iDO, 75 Kan. 311. (Annotated) 15. The manual deposit of a deed with a third party to receive and hold for the gran- tee, with intent thereby to give it effect as a conveyance and to place it beyond the cus- tody and control of the grantors, with a de- clared or manifest purpose of making a present transfer of title, is a sufficient de- livery. Harmon v. Bower, 17: 502, 96 Pac. 51, 78 Kan. 135. 16. An instrument in the form of a deed, executed and delivered to a custodian to be delivered to the grantee after the death of the grantor, is inoperative as a deed. Noble v. Tipton, 3:645, 76 N. E. 151, 219 111. 182. Relation back. 17. A deed delivered to a stranger with the intent to pass title to the grantee, with directions to deliver it to him at the grant- or's death, upon the second delivery relates back and passes the title as of the date of the first delivery. Grilley v. Atkins, 4: 816, 62 Atl. 337, 78 Conn. 380. II. Construction; effect; validity, a. In general; construction. (See also same heading in Digest L.R.A 1-70.) As color of title, see ADVERSE POSSESSION, 59-63, 91. Construction of conveyance of timber, see CONTRACTS, 376. Validity of deed by parents to avoid prose- cution of child, see CONTRACTS, 493. In consideration that grantee will not pro- test against application for patent for government land, see CONTRACTS, 601. Covenants in, generally, see COVENANTS AND CONDITIONS. Distinction between covenant and condition, see COVENANTS AND CONDITIONS, 4-10. Upholding deed otherwise ineffective, as a covenant to stand seised to uses, see COVENANTS AND CONDITIONS, 20. Procured by duress, see DURESS, 8, 12, 13; TRIAL, 312. Estoppel by, see ESTOPPEL, II. a. Evidence as to mental incompetency of per- son executing deed while ill, see EVI- DENCE, 1594. Digest 1-52 L.R.A.(N.S.) Opinion evidence as to capacity to make deed, see EVIDENCE, VII. e. Deed as mortgage, see ASSIGNMENT FOR CREDITORS, 2; EVIDENCE, 1030-1033, 4343; MORTGAGE, 13-15. Parol evidence to show that deed was in- tended to 'be a will, see EVIDENCE, 978. Right to avoid because of false impression induced by fraud as to contents or character of paper signed, see FORGERY, 8. Fraudulent conveyances, see FRAUDULENT CONVEYANCES. By incompetent person, see INCOMPETENT PERSONS, 10-15. Delay of suit to set aside, see LIMITATION OF ACTIONS, 29, 30. Presumption of validity of deed to pur- chaser at foreclosure sale, see MORT- GAGE, 130. Instruction as to undue influence in secur- ing execution of, see TRIAL, 1024. Competency of witness as to undue influence, see WITNESSES, 53. Distinction between deed and will, see WILLS, I. a, 2. See also CONTRACTS, 369. 18. A property owner free from undue influence, of sufficient mental capacity to convey property, has the right to decide for himself whether a deed made by him is rea- sonable. Coblentz v. Putifer, 42:298, 125 f&c. 30, 87 Kan. 719. 19. One who signs, seals, and delivers a deed is bound as a grantor, although not named therein, and the deed is operative as a conveyance of his estate. Sterling v. Park, 13: 298, 58 S. E. 828, 129 Ga. 309. (Annotated) 20. The unauthorized alteration of a deed by the grantee so as to make it de- scribe land not conveyed thereby does not effect its operation as an executed con- tract, or disturb the title vested by it, but the grantee is thereby deprived of all future benefits of an executory nature or obligation which he might have derived thereunder. Waldron v. Waller, 32:284, 64 S. E. 964, 65 W. Va. 605. (Annotated) 21. A sentence to the penitentiary for a term of years does not make void a convey- ance duly executed by the convict before he is imprisoned under the sentence, and while execution of the judgment of convic- tion is stayed by proceedings upon appeal to the supreme court. Harmon v. Bower, 17: 502, 96 Pac. 51, 78 Kan. 135. Time of taking effect. 22. A provision in a warranty deed, that it shall not take effect until the death of the grantor, will, in the absence of some con- trolling reason to the contrary, be construed to mean that the title is to vest at once, the enjoyment only being postponed until the death of the grantor, where the instrument after execution is placed in the hands of a third person, to be delivered to the grantee on the death of the grantor. Nolan v. Ot- ney, 9: 317, 89 Pac. 690, 75 Kan. 311. 23. A warranty deed conditioned to take effect on the death of the grantor, and 004 DEEDS, II. b, c. placed in escrow for delivery to the grantee on the happening of such event, will be construed to mean that the title is to vest at once, the enjoyment only being postponed until the death of the grantor, although it contains a recital that the grantee is to care for the grantor during the remainder of his life. Nolan v. Otney, 9: 317, 89 Pac. 690, 75 Kan. 311. Construction generally. 24. An instrument duly acknowledged and recorded, and which is in the form of a conveyance of a present interest in land in fee simple, with a reservation in the haben- dum of a life lease in favor of the grantor; and which further provides that the in- strument shall be in full force three days after the latter's death, is a warranty deed effectual to pass an estate In fee to the grantee, subject to a life estate in the grant- or, and is not a will. Pentico v. Hays, '9: 224, 88 Pac. 738, 75 Kan. 76. 25. In construing a deed, words which are repugnant to. and irreconcilable with, other terms clearly applicable to admitted and established facts recited in the deed, must be rejected, and all other words must be given some effect. Clayton v. Gilmer County Court, 2: 598, 52 S. E. 103, 58 W. Va. 253. 26. In construing a doubtful description in a conveyance, the court will keep in mind the position of the contracting parties, the circumstances under which they acted, and interpret the language of the instrument in the light of these circumstances. Aber- crombie v. Simmons, i: 806, 81 Pac. 208, 71 Kan. 538. 27. One who, in dealing with lots in plat- ted ground, refers to an alley therein, is presumed to refer to an alley included in the plat; and the implication is that a public alley was intended. Talbert v. Mason, 14: 878, 113 N. W. 918, 136 Iowa, 373. 28. A clause in a deed to one and his heirs and assigns, giving a privilege to take water from a spring on the grantor's re- maining land as occasion may require, in- ures to the benefit of the assigns. Cram v. Chase, 43: 824, 85 Atl. 642, 35 R. I. 98. 29. Deeds conveying coal with rights of removal should be construed in the same way as other written instruments, and the intention of the parties as manifest by the language iised in the deed itself should gov- ern. Griffin v. Fairmont Coal Co. 2: 1115, 53 S. E. 24, 59 W. Va. 480. b. Description of parties. (See also same heading in Digest L.R.A. 1-10.) 30. Naming as grantee in a deed of real estate a partnership the members of which have died, but the name of which has been perpetuated, and the property kept together by consent of all parties interested, after a sale of the business to strangers, for the purpose of collecting the accounts and set- tling up the partnership affairs, does not Digest 1-52 L.R.A. (N.S.) render the conveyance void. Walker v. Miller, 11.157, 52 S. E. 125, 139 N. C. 448. ( Annotated ) Necessity of using word "heirs" or- equivalent. 31. A grant to a trustee, without the use of the word "heirs," will pass a fee if the duties of the trust require him to possess the fee, and it is the clear intention of the grantor that he shall do so. Smith v. Proc- tor, 2: 172, 51 S. E. 889, 139 N. C. 314. (Annotated) Deed to "heirs." 32. A grant to the "heirs" of a living person will be construed as having meant children, and upheld, if such plainly ap- pears to have been the intention of the grantor. Roberson v. Wampler, i: 318, 51 S. E. 835, 104 Va. 380. (Annotated) 33. A mere restraint on alienation is not sufficient to cause the word "heirs" in a grant to one and his heirs to be construed as meaning "children," so as to limit the interest of the first taker to a life estate. Hauser v. St. Louis, 28: 426, 170 Fed. 906, 96 C. C. A. 82. c. Description of property conveyed. (See also same heading in Digest L.R.A. 1-10.) Mistake in description of property devised, see WILLS, 194-197. See also GRANT. 34. A deed conveying part of a lot lying west of the boundaries of a railroad is prop- erly construed to mean that part of the lot outside and west of the right of way. Illi- nois C. R. Co. v. Hasenwinkle, 15:129, 83 N. E. 815, 232 111. 224. 35. A grant of a certain quantity of land, to be taken from a larger tract, with- no other description than that it shall lie on both sides of a highway, is void for in- definiteness. Smith v. Proctor, 2: 172, 51 S. E. 889, 139 N. C. 314. 36. A grant of a known tract of land by name is not void because the quantity is erroneously stated at an amount much below what the tract actually contains. Smith v. Proctor. 2: 172, 51 S. E. 889, 13fr N. C. 314. 37. A deed to a railroad company de- scribing the land conveyed as a certain part of a quarter section "lying within 50 feet of the main track of the railroad" is not void for indefiniteness in the description, where, at the time of its execution, the line of the road had been surveyed and staked out, and within a few days thereafter u map and profile of the railroad was made by the company and subsequently filed, although- at the time of its execution no part of the railroad had been built. Abercrombie v. Simmons, i: 806, 81 Pac. 208, 71 Kan. 538. 38. If the description in a deed by quan- tity, location, and ownership, viewed in the' light of admissible extraneous evidence,, makes clear the intent of the grantor to con- vey only the land so described, the instru- DEEDS, II. d, 1. 905 ment is not void for uncertainty, although the other terms of the description are equiv- ocal and uncertain as to the identity of the land; and it will be given effect according to the manifest intent as gathered from the whole instrument. Barbour v. Tompkins, 3: 715, 52 S. E. 707, 58 W. Va. 572. 39. A deed of trust for benefit of credit- ors, of "all and singular, the real and personal estate" and "all other property, of every nature, kind, and description, where- soever situate," of the grantors, signed by a man and wife, is sufficient to identify with reasonable certainty, as required by statute, a vested remainder belonging to the wife under a will. Roberts v. Roberts, 1:782, 62 Atl. 161, 102 Md. 131. 40. A deed describing the premises by reference to lot number as laid down on a map made and filed by the grantor, and by its location on the southeast shore of an is- land in a river, adding the words, "The lot 126 feet front and 68 feet deep, supposed to contain 60 by 100 feet, the same more or less,' 1 carries the title to the entire width of a boulevard 50 feet wide, shown upon such map, extending to the water's edge, along the southerly shore of the island and inter- vening between the lot in question and the river, with the riparian rights attaching thereto the description by dimensions being ambiguous, if not meaningless, and there be- ing nothing to rebut the presumption that the grantor did not intend to retain the fee of the soil in the boulevard. Johnson v. Grenell, 13: 551, 81 N. E. 161, 188 N. Y. 407. (Annotated) 41. Where a conveyance of land describes it as "situate on the seashore at [a certain place] and measuring in front thereto 93 yards or thereabouts, and running in rear or depth backwards on the north and south sides thereof respectively 77 yards or there- abouts, and containing in the whole 7,101 superficial yards or thereabouts, be the said several said dimensions and admeasure- .ments respectively a little more or less, which same piece of land is bounded." [in manner described] and is stated to be more particularly delineated in an accompanying plan, the dimensions are an essential part of the description, and not a cumulative description in a case in which there is in the first place a sufficient certainty and demonstration. Per Vaughan Williams, L. J. in Mellor v. Walmesley, 4 B. R. C. 728, [1905] 2 Ch. 164. Also Reported in 74 L. J. Ch. N. S. 475, 53 Week. Rep. 581, 93 L. T. N. S. 574, 21 Times L. R. 591. d. What property passes. 1. In general. (See also same heading in Digest L.R.A. 1-10.) By deed of trust for creditors, see ASSIGN- MENTS FOR CREDITORS, 11. Effect of covenants in deeds, see COVENANTS AND CONDITIONS. Digest 1-52 L.R.A.(N.S.) Right of purchaser by deed, map, or plat showing dedication, see DEDICATION. 24-36. Effect of deed on wife's right of dower, see DOWER, 17, 19, 31-33. Creation of easement by, see EASEMENTS, II. c. Extinguishment of easement by, see EASE- MENTS, V. Estoppel by, see ESTOPPEL, II. a. Estoppel to rely on after-acquired title, see ESTOPPEL, 36, 37. Estoppel to claim after-acquired interest, see ESTOPPEL, 36, 37. Presumption as to land conveyed, see EVI- DENCE, 618, 619. Estates by entirety created by, see HUS- BAND AND WIFE, 66, 67. Effect of deed absolute on its face but in- tended as a mortgage, to convey the legal title, see MORTGAGE, 15. What passes by grant of public lands, see PUBLIC LANDS, 1. Right of railroad company to take oil from land conveyed for right of way, see RAILROADS, 28. Granting land to trustee for use of third person, see TRUSTS, 81. Passing of crops growing on land, under executory contract for sale of the land, see VENDOR AND PURCHASER, 19. Effect of quit-claim deed, see VENDOR AND PURCHASER, 95-103. What passes under grant by government of land bordering on navigable stream, see WATERS, 90-96. What passes by will, see WILLS, III. e. Rights of purchasers, generally, see VENDOR AND PURCHASER. 42. One who grants a thing is deemed, also, to grant that within his ownership, without which the grant itself would be of no effect; but this rule applies only to such things as are incident to the grant and di- rectly necessary to the enjoyment of the thing granted. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S. E. 1028, 126 Ga. 210. 43. No estate is granted by a clause in a deed which, after granting a life estate, declares that it is the purpose of the grant- or, by this deed, that, after the death of the life tenant, "said described lands shall be- come and be the property of" an institution named. McGarrigle v. Roman Catholic Orphan Asylum, i: 315, 79 Pac. 447, 145 Cal. 694. (Annotated) 44. A deed of trust signed by a man and his wife, conveying, all and singular, the real and personal estate, and all other prop- erty of every nature, kind, and description, "of us," is not limited to their joint es- tates, but will convey her separate property. Roberts v. Roberts, i: 782, 62 Atl. 161, 102 Md. 131. 45. Deeds conveying rights of flowage, al- though absolute in form, do not convey the right to flow according to their strict letter when there is no use for the water and when the flowage would be detrimental to the ser- vient estate, since the right conveyed is only 906 DEEDS, II. d, 2. an unlimited reasonable use of the privilege. Chapman v. Newmarket Mfg. Co. 15: 292, 68 Atl. 868, 74 N. II. 424. (Annotated) 46. A quitclaim deed by the owner of a mine, of all land lying east of his "patented mining ground," does not carry absolute title to all land east of the boundary line, so as to give the grantee the right to min- erals beneath the surface, but carries merely the land east of the entire claim, including the rights which the patentee has, to follow the dip of the vein. Central Eureka Min. Co. v. East Central Eureka Min. Co. 9: 940, 79 Pac. 834, 146 Cal. 147. 47. A conveyance of real estate does not carry a right to damages for a right of way which had been appropriated over the land prior to the conveyance, although they are not assessed until after the conveyance. Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. R. Co. 16: 537, 83 N. E. 665, l7(Und. 49. 48. A warranty deed of a farm and its appurtenances does not carry the right of a grantor as a member of a telephone company, each member of which had a right to place a telephone in his house, and to give the purchaser of his farm the first chance to purchase his interest, after which the company itself should have the right. Cantril Teleph. Co. v. Fisher, 42:1021, 138 N. W. 436, 157 Iowa, 203. (Annotated) Severed crops. 49. Crops severed from the soil do not pass with a conveyance of real estate. Speicher v. Lacy, 35: 1066, 115 Pac. 271, 28 Okla. 541. Appurtenances. Easements as appurtenant, see EASEMENTS, II. c. In sale of personal property, see SALE, 7. 50. A conveyance of real estate carries with it an rppurtenant right of way. Orea v. Higuera, 17: 1018, 95 Pac. 882, 153 Cal. 451. 51. Land cannot pass as appurtenant to land. Moss v. Chappell, xi: 398, 54 S. E. 968, 126 Ga. 196. 52. A grant of property will carry with it actual existing appurtenances, but will not create any appurtenances. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S. E. 1028, 126 Ga. 210. 53. If the right to use power from a dam has been acquired and affixed to a particu- lar mill or parcel of real estate, it will pass by a grant of the property, with appurte- nances; but, if the power was not an ap- purtenance of the property at the time of the grant, it will not pass as such, although the grantor had a right to make use of the power at that time. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S..E. 1028, 126 Ga. 210. 2. Reservations and exceptions. (See ateo same heading in Digest L.R.A. 1-10.) Implied reservation of burial rights in land conveyed, see CEMETERIES, 4. Digest 1-52 Oral reservation of growing crops, see CON- TRACTS, 270, 272; EVIDKNCE, 940. Restrictive covenants in deed, see COVE- NANTS AND CONDITIONS, II. d. Creation of easement by, see EASEMENTS, 5, 6, 36, 40, 41, 43, f>6, 58, 60, 86. Specific performance of provision in deed for easement of way, see SPECIFIC PERFORMANCE, 34. Effect of reservation on right to specific performance of contract to purchase, see SPECIFIC PERFORMANCE, 94. 54. A provision in a deed that a pas- sageway shall be kept open, although not valid as a reservation for failure to use the word "heirs," may be enforced against transferees with notice as a contract in writing capable of being specifically en- forced in equity. Bailey v. Agawam Nat. Bank, 3: 98, 76 N. E. 449, 190 Mass. 20. (Annotated) 55. One. purchasing land with notice of a public right of burial thereon takes sub- ject to such right, although no reservation thereof is made in his deed. Roundtree v. Hutchinson, 27: 875, 107 Pac. 345, 57 Wash. 414. Of minerals. Effect of reservation of coal, on liability for injury to surface support in re- moving coal, see MINES, 43. 56. A purchaser of lands takes no in- terest in the oil and gas therein where prior owners made a lease of the oil and gas privilege and thereafter conveyed the lands by warranty deed, excepting and re- serving all rights and privileges secured to them by the lease and all oil and gas privi- leges in and to the premises, although their grantee conveyed by general warranty to another without any reservation or excep- tion, and even though the oil and gas lease is canceled by consent of the parties there- to, where all t. ; conveyances are of record. The cancelation of the lease does not ex- tinguish the rights of the original owner, nor vest the right to the oil and gas in the owner of the lands at the time of such cancelation. Moore v. Griffin, 4: 477, 83- Pac. 395, 72 Kan. 164. (Annotated) 57. A provision in a deed of real estate reserving to the grantor all the rights, privileges, and benefits secured under an oil and gas lease executed by the grantor* with full power and right to renew or ex- tend, change or modify the lease as fully and to the same extent as though the deed had not been executed, constitutes an ex- ception, and not a reservation. The title to the oil and gas in the premises conveyed re- mains in the grantors. Moore v. Griffin, 4: 477, 83 Pac. 395, 72 Kan. 164. 58. Where a deed conveys the coal undeH a tract of land, together with the right to enter upon and under said land, and to- mine, excavate, and remove all of it, there is no implied reservation in such an instru- ment that the grantee must leave enough coal to support the surface in its original! DEEDS, 11. e, 1, 2. 907 position. Griffin v. Fairmont Coal Co. a: ii 15, 53 S. E. 24, 59 W. Va. 480. (Annotated) Of timber. Inheritance of reservation by grantor of right to cut timber, see DESCENT AND DISTRIBUTION, 28. Sufficiency of evidence of size of timber within reservation in deed, see EVI- DENCE, 2184.. Termination of reserved right to cut tim- ber, see TIMBEB, 4, 5, 11, 13, 14. 59. The reservation in a grant of real estate of the timber growing upon the prop- erty does not include saplings and under- growth which, at the time of the grant, are not of a size suitable to make lumber. Hicks v. Phillips, 47: 878, 142 S. W. 394, 146 Ky. 305. 60. A provision in a deed of real estate reserving certain described timber will be construed as an exception, so that the title will not pass to the grantee. Hicks v. Phillips, 47: 878, 142 S. W. 394, 146 Ky. 305. 61. A clause in a deed which conveys land from parents to a child as an advance- ment, reserving to the father and mother "the privileges of selling and removing any timber from said land that they may de- sire to sell or to use, and also the right of way through said lands to remove the same," does not reserve title to the tim- ber, but creates only an unassignable li- cense. United States Coal & 0. Co. v. Har- rison, 47: 870, 76 S. E. 346, 71 W. Va. 217. ( Annotated ) 62. Under a clause in a deed, reserving to the grantor therein standing timber on the land thereby conveyed, using the fol- lowing terms : "Said first party, M. J. A., reserves and still owns all timber," etc., and requiring the same to be removed from the land within a specified time, the grantor does not hold absolute and unconditional title to the timber as reserved, and such of it as remains unsevered at the expiration of the time limited is th. property of the owner of the land. Adkins v. Huff, 3: 649, 52 S. E. 773, 58 W. Va. 645. (Annotated) 63. An exception in a deed conveying real estate, of "a certain lot of timber" growing on a portion of the land granted, for the benefit of a stranger to the instrument, is an exception of the timber rather than of the land itself, for the benefit of the person named personally, and terminates with his death, the fee then being in the grantee in the deed. Stone v. Stone, 20: 221, 119 N. W. 712, 141 Iowa, 438. (Annotated) e. Estate or interest created. 1. In general. (See also Real Property, I. a, in Digest L.RJi. 1-10.) Evidence in an action to set aside a deed as fraudulently procured, see EVIDENCE, 2086. Digest 1-52 L.R.A.(N.S.) Estate by entireties, see HUSBAND AND WIFE, II. b. In consideration of marriage, see HUSBAND AND WIFE, 57. Effect of deed of husband directly to his wife and attempt by her to reconvey directly to him, see HUSBAND AND WIFE, 100. Estate conveyed by deed in trust for mar- ried woman, see HUSBAND AND WIFE, 114. Eights of grantee of mine, see MINES, 33- 38. By deed conveying standing timber, see TIM- BEE, 2. Estate or interest created by will, see WILLS, III. g. See also supra, 24; DESCENT AND DISTBIBU- TION, 1. 64. The vesting of a fee in the grantee of real estate is not prevented by the fact that the land was public and Congress au- thorized its purchase for the purpose of a public library, the patent, however, contain- ing no conditions or limitations upon the character of estate conveyed. Fordyce v. Woman's Christian Nat. Library Asso. 7: 485, 96 S. W. 155, 79 Ark. 550. 65. The fee will pass to the second grantee where, in one deed, land is granted to one person, "excepting and reserving" therefrom a strip of certain width, "to be used as a right of way," which strip is granted to another, reserving the timber thereon to the grantor; where it appears that the grantor removed the timber there- from, the second grantee paid the taxes thereon, and the wife of the grantor re- fused to sign the first deed until the strip had been conveyed to the second grantee. Pritchard v. Lewis, i : 565, 104 N. W. 989, 125 Wis. 604. 66. A fee does not vest in a man by a grant to him and his wife and her heirs, under a statute providing for the vesting of a fee by a grant without the word "heirs," where the statute provides that such shall not be the effect where it shall be plainly intended by the conveyance or some part thereof that the grantor meant to convey an estate of less dignity. Sprinkle v. Spain- hour, 25: 167, 62 S. E. 910, 149 N. C. 223. Shifting use. 67. A grant to one, his heirs and as- signs, habendum to him during the term of his natural life, remainder to such of his children as shall arrive at the age of twen- ty-one years, their heirs and assigns, cre- ates a fee in the first taker to hold for his use during life and then for the use of such of his children as shall attain majority, whether they do so before or after his death. Simonds v. Simonds, 19: 686, 85 N. E. 860, 199 Mass. 552. 2. Life or fee. By lease, see LANDLORD AND TENANT, 48. By will, see WILLS, III. g, 2. See also supra, 66. 908 DEEDS. II. e, 3. 68. The grantee of one whose title deed shows he has but a life estate acquires no interest against the remainderman. Acord v. Beaty; 41: 400, 148 S. W. 901, 244 Mo. 126. 69. A fee will pass by a deed from a man who, having received an absolute convey- ance of real estate from his wife, recites in the deed that he is entitled to a life estate in the property by right of survivorship un- der the laws of the state, which interest he has agreed to sell, and grants to his grantee, his heirs and assigns, forever, all the right he has in the property, to have and to hold the life estate and interest which the grantor has, and no more. Dickson v. Van Hoose, 19: 719, 47 So. 718, 157 Ala. 459. 70. A grantor in a deed conveying land to a trustee for the use and benefit of the grantor, who is to receive the net profits of the property on demand, and who reserves the absolute and unlimited power of dis- posing of the land in fee, which, if uncon- veyed upon the grantor's death, is to be conveyed to his children or their descend- ants, remains the owner at least of an equitable estate in fee simple in the land, where, upon consideration of the whole deed, it appears that the intention to re- serve to the grantor the absolute and un- limited power of disposition of the land in fee simple is paramount to and intended to prevail over any words of the deed indicat- ing that a life estate only in the land was reserved to the grantor. Meyer v. Barnett, 6: 1191, 56 S. E. 206, 60 W. Va. 467. (Annotated) 71. A deed which, in consideration of the love and affection which the grantor bears to his daughter and her children, the children being then alive, grants property to the parties of the second part, who are described as the daughter and her bodily heirs, conveys a life estate, to her and the remainder to her children, since the words "bodily heirs" are synonymous with "chil- dren." American Nat. Bank v. Madison, 38:597, 137 S. W. 1076, 144 Ky. 152. Enlarging or reducing by other pro- visions. By will, see Wills, 230-241. See also COVENANTS AND CONDITIONS, 33. 72. A proviso in a deed after a granting clause conveying a fee-simple estate, which attempts to dispose of the property in case the grantee dies without issue, is void for repugnancy. Carl-Lee v. Ellsberry, 12: 956, 101 S. W. 407, 82 Ark.. 209. (Annotated) 73. A deed to one and his heirs, haben- dum to him during life, and at his death to be equally divided among his children, con- veys to him only a life estate, where by statute the grantee would have taken the same estate without the use of the word "heirs" as with it, so that it has no par- ticular force. Triplett v. Williams, 24: 514, 63 S. E. 79, 149 N. C. 394. (Annotated) 74. Although the statute provides that words of inheritance are not necessary to convey a fee, a grant to a man and his wife, habendum to them for life, remainder to another by name, passes the fee to the Digest 1-52 LuR.A.(N.S.) latter. Husted v. Rollins, 42:378, 137 X. W. 462, 156 Iowa, 546. (Annotated) 75. A clause providing for the reverter of land in case the grantee dies without bodily heirs, in the habendum of a deed conveying property to the separate use of a married woman to have and to hold to her, her heirs and assigns, forever, is void, and the fee passes to the grantee. Hughes v. Hammond, 26: 808, 125 S. W. 144, 136 Ky. 694. 76. A conveyance by one to whom prop- erty is deeded to have and to hold to him and his heirs and assigns forever will defeat a clause in the habendum providing for a reverter in case the grantee dies with- out bodily heirs. Hughes v. Hammond, 26: 808, 125 S. W. 144, 136 Ky. 694. Qualified, conditional, or defeasible fee. (See also Real Property, I. a, S, in Digest L.R.A. 1-10.) Creation of, by lease, see LANDLORD AND TENANT, 108. Creation of, by will, see WILLS, 242-247. 77. If a grant of a life estate to one, habendum to him for life and the heirs of his body and their assigns in fee simple, should not be regarded as vesting a fee in the first taker under the rule in Shelley's Case, it conveys a conditional fee which, in states where the statute de donis is not in force, may, after the birth of a child to the life tenant, be conveyed by him in fee simple. Kepler v. Larson, 7: 1109, 108 N. W. 1033, 131 Iowa, 438. 78. A deed to a woman, habendum to her in fee providing that if she die without heirs, then to her husband, should he be liv- ing; and in case he is dead, then a share to vest in the next legal heirs of the grantee, the remainder to vest in the next legal heirs of the husband, creates a conditional fee in the first taker, with an absolute fee to her husband, should she die without heirs; and their deed will therefore convey the whole estate, since the words to "the next legal heirs" are used as words of in- heritance, and not of purchase. Hamilton v. Sidwell, 29: 961, 115 S. W. 204, 131 Ky. 428. (Annotated) 3. Estates tail; rule in Shelley's case. (See also Real Property, I. b, in Digest L.R.A. 1-10.) Provisions in will, see WILLS, III. g, 3. See also supra, 77, 78. 79. The statute de donis, being contrary to the spirit of its institutions, has never been in force in Iowa. Kepler v. Larson, 7: 1109, 108 N. W. 1033, 131 Iowa, 438. 80. A conveyance to a man and wife for life, remainder to the heirs of the wife, vests the fee in the wife subject to the hus- band's life estate. Cotton v. Moseley, 40: 768, 74 S. E. 454, 159 N. C. 1. 81. A conveyance to a man and his wife during their natural lives, and after their death to his heirs, vests the fee in him, DEEDS, II. e, 4. 909 under the rule in Shelley's Case, subject to her life estate. Bails v. Davis, 29: 937, 89 N. E. 706, 241 111. 536. (Annotated) 82. A deed to one for life, and at his death to his surviving heirs, vests a fee in the first taker, the word "surviving" not being sufficient to prevent an application of the rule in Shelley's Case, at least, where the warranty runs to him and to his as- signs forever. Price v. Griffin, 29: 935, 64 S. E. 372, 150 N. C. 523. (Annotated) 83. A grant to a trustee, to make title to a certain person for life, and, in case he has issue, to make title to his heir, will not vest the fee in the first taker, since the word "heir" is not intended to denote the whole line of succession, but is the descrip- tion of an individual who shall be a point from which the estate shall start. Smith v. Proctor, 2: 172, 51 S. E. 889, 139 N. C. 314. 84. A grant to one of a life estate, ha- bendum to him during his natural life and to the heirs of his body and their assigns in fee simple, conveys to him a fee under the rule in Shelley's Case, notwithstanding the deed also provides that the wife of the life tenant shall have merely the privilege of living on the premises during his life, and neither the life tenant nor his wife shall have any power to convey, or place encumbrances on, the property. Kepler v. Larson, 7: 1109, 108 N. W. 1033, 131 Iowa, 438. (Annotated) 85. A conveyance in trust, to stand seised to the use and benefit of a certain person for life, and at his death to transfer the property to such persons as he shall direct, or, in default of direction, to his heirs in fee, does not vest a fee in the first taker, under the rule in Shelley's Case, since it is an executory trust. Steele v. Smith, 29: 939, 66 S. E. 200, 84 S. C. 464. . (Annotated) 86. Although in case of a conveyance in trust for the life of a designated person, and at his death to convey the property to his appointees, or to his heirs in case the appointment is not made, the statute would execute the fee in the heirs immediately upon the death of the life tenant without appointment, such estate could not coalesce with that of the first taker, so as to vest the fee in him. Steele v. Smith, 29: 939, 66 S. E. 200, 84 S. C. 464. 4. Remainders; vested or contingent interests; reversions; limitation over. lso Real Property, I. c, in Digest L.R.A. 1-70.) Adverse possession against remaindermen or reversioners, see ADVERSE POSSESSION, I- g- Vested remainder passing by deed of trust for creditors, see ASSIGNMENT FOB CREDITORS, 11. Effect of deed by one cotenant after com- mencement of suit by the other to recover possession of property, see COTENACY, 17. Digest 1-52 L.R.A. (N.S.) Possibility of reverter under deed as estate that may descend, see DESCENT AND DISTRIBUTION, 31. Effect of deed to cause reverter of wife's interest, see DOWER, 19. Reversion to owner of title to land con-* demned for public use, see EMINENT DOMAIN, 120. Compensation for condemnation of reversion, see EMINENT DOMAIN, 251. As to suspension of alienation, see PER- PETUITIES. Reservation of lien in deed for support, see VENDOR AND PURCHASER, 65. Remainders under will, see WILLS, III. g, 5, III. g, 9, b. See also supra, 75, 89, 90. 87. Under a conveyance to one for life, and, at her death, to her children surviv- ing her, the remainder to the children is contingent until her death. Robertson v. Guenther, 25: 887, 89 N. E. 689, 241 111. 511- (Annotated) 88. If a grant to one for his natural life, habendum to him for life and then to the heirs of his body and their assigns in fee, should be construed as vesting in him a life estate with remainder to the heirs of his body, after the birth of a child to him a conveyance by the reversioners would not destroy the remainder and vest a fee in the life tenant. Kepler v. Larson, 7: 1109, 108 N. W. 1033, 131 Iowa, 438. 89. A provision in a deed of land to a county, that it is "to be used as and for a county high school ground and premises," does not create a condition subsequent which will entitle the grantor to re-enter if the county attempts to sell the property! Fitzgerald v. Modoc County, 44: 1229, 129 Pac. 794, 164 Cal. 493. 90. Property sold for a valuable con- sideration to school trustees authorized to acquire the fee, "to remain in common school grounds forever," without a provi- sion for reverter, does not revert upon abandonment of its use for school pur- poses and an attempt by the trustees to sell it. McElroy v. Pope, 44: 1220, 154 S. W. 903, 153 Ky. 108. (Annotated) 91. A deed which purports to convey land absolutely, though upon trust, for church purposes, does not create an estate upon condition, where the vesting of title is not made to depend upon conditions precedent or subsequent, and the language used does not, by its own force, import a condition, so as to cause the beneficial in- terest to revert to the grantors upon con- demnation of the land for public purposes. Deepwater R. Co. v. Honaker, 27: 388, 66 S. E. 104, 66 W. Va. 136. 02. Real estate conveyed for a valuable consideration, to an organization incor- porated for social and benevolent purposes, does not revert to the grantor upon dissolu- tion of the corporation. McAlhany v. Mur- ray, 35: 895, 71 S. E. 1025, 89 S. C. 440. ( Annotated ) 93. A quitclaim deed of a tract of land will not carry the right to reverter of a 910 DEEDS, II. f DEFAMATION. small parcel of it which had been granted in fee to a church with the proviso that it was to revert to the grantor when it ceased to be used as a church. North v. Graham, ^18: 624, 85 N. E. 267, 235 111. 178. 94. The rule that a limitation, if it can so operate, is to be construed as a remainder, and not as an executory devise, even if ap- plicable to springing and shifting uses, will not be applied if the effect will be to thwart the intent of the maker and defeat the terms of the instrument. Simonds v. Simonds, 19: 686, 85 N. E. 860, 199 Mass. 552. 95. An instrument which is in form a general warranty deed, conveying a strip of kind to a railroad company for a right of way for a railroad, will not vest an ab- solute title in the railroad company; but the interest conveyed is limited by the use for which the land is acquired, and, when that use is abandoned, the property will re- vert to the adjoining owner. Abercrombie v. Simmons, i : 806, 81 Pac. 208, 71 Kan. 538. (Annotated) /. Revocation; destruction, etc. (See also Deeds, II. e, in Digest L.R.A. 1-10.) Abatement, by death of grantor, of right to rescind deed, see ABATEMENT AND RE- VIVAL, 6, 7. Liability for costs on appeal in suit to set aside deed, see APPEAL AND ERROR, 1639. Cancelation of, generally, see CONTRACTS, V, c. Jurisdiction of equity to cancel, see EQUITY, 89-93. Right to avoid because of false impression induced by fraud as to contents or character of paper signed, see FOR- GERY, 8. Avoidance of deed by incompetent persons, see INCOMPETENT .PERSONS, 14. Disaffirmance of deed by infant, see IN- FANTS, I. d, 2, 6. Sufficiency of findings to support judgment in action to set aside deed, see JUDG- MENT, 42. Laches in bringing suit to set aside, see LIMITATION OF ACTIONS, 30, 31. Effect of loss of, see RECORDS AND RECORD- ING LAWS, 39. Revocation of deed of trust, see TRUSTS I, e. Rescission of deed or contract to purchase land, see VENDOR AND PURCHASER, I. e. See also supra, 75, 76; infra, 99. 96. A deed upon condition that it is to take effect from and after the death of the grantor is revocable at any time before death, especially where the grantor does not intend to part with the deed presently. Sappingfield v. King, 8: 1066, 89 Pac. 142, 49 Or. 102. 97. An equitable title in the original grantor is created by the delivery back by the grantee to him of an unrecorded deed. Digest 1-52 I*.B,.A.(N.S.) Grossman v. Keister, 8: 698, 79 N. E. 58, 223 111. 69. 98. The title to real estate is not af- fected by the destruction of the deed by the grantor, after its delivery, without the grantee's consent. Matheson v. Matlieson, 18: 1167, 117 N. W. 755, 139 Iowa, 511. (Annotated) g. Failure of consideration, (See also Deeds, II. f, in Digest L.R.A. 1-10.) As ground for cancelation of, see CON- TRACTS, 766-769; EQUITY, 91. Parol evidence as to consideration, see EVI- DENCE, 1006-1015. Suit by executor to set aside, see EX- ECUTORS AND ADMINISTRATORS, 87. In case of deed given in consideration of marriage, see HUSBAND AND WIFE, 57. Judgment in action to set aside deed for illegality of consideration, see JUDG- MENT, 42. 99. Absence of consideration for a deed delivered to a stranger to be delivered to the grantee at the grantor's death, will not entitle the grantor to revoke the grunt if it was accepted and complete before the at- tempted revocation. Grilley v. Atkinson, 4: 816, 62 Atl. 337, 78 Conn. 380. (Annotated) DEER. Providing close season for, see GAME LAWS, 2-4, 7. DE FACTO. Corporation, see CORPORATIONS, I, c. Court, see COURTS, 1. Judge, see JUDGES, 3. Officers, see OFFICERS, III. DEFALCATION. Sufficiency of proof of, see EVIDENCE, 2287. Subrogation of surety on guardian's bond making good a defalcation of guardian, see SUBROGATION, 35. Liability of trustee for defalcation by co- trustee, see TRUSTS, 123, 124. Embezzlement, see EMBEZZLEMENT. DEFAMATION. See LIBEL AND SLANDER. DEFAULT DEFENSES. DEFAULT. In payment of interest on note, see BILLS AND NOTES, 197. Judgment by, see CONSTITUTIONAL LAW, 582; JUDGMENT, 1-3, 22, 98, 99. Notice of, to guarantor, see GUARANTY, 30. Right to jury trial, on see JURY, 16. In payment, authorizing foreclosure of mortgage, see MORTGAGE, VI. b. Tiling of pleading after, see PLEADING, I. p. DEFEASIBLE FEE. Creation of, by deed, see DEEDS, 77, 78. Devise of, see WILLS, 242-247. DEFECTIVE EYESIGHT. Contributory negligence of person afflicted with, see HIGHWAYS, 370, 371. DEFENDANTS. Parties defendant, see PARTIES, II. DEFENDANTS' PLEADINGS. See PLEADING, III. DEFENSE OF DWELLING. Homicide in, see HOMICIDE, 78-82. DEFENSES. To action, generally, see ACTION OB SUIT, I. c. To action on account stated, see ACCOUNTS, II. In admiralty, see ADMIRALTY, 6. To charge of assault, see ASSAULT AND BATTERY, II. To disbarment proceedings, see ATTORNEYS, 26-29. To action to hold collecting bank liable for money paid on check, which it has re- funded, see BANKS, 154. To liability of officers of bank for conver- sion of funds, see BANKS, 246. To prosecution for bigamy, see BIGAMY, 2. To action on negotiable paper, see BILLS AND NOTES, III. c, VI. c. To action on bond of public officer, see BONDS, 49. To action for breach of promise, see BREACH OF PROMISE, II. Digest 1-52 L.R.A.(N.S.) To liability of county for injury by de- fects in bridge, see BRIDGES, IS, 20-23. To action to recover penalty for delay in transportation, see CARRIERS, 893. To action against drawer of check, see CHECKS, 45. In action to quiet title, see CLOUD ON TITLE, II. In proceeding for contempt, see CONTEMPT, 16. To liability on contract, generally, see CON- TRACTS, VI. b. To suit by corporation to compel repay- ment by promoters of illegal profits, see CORPORATIONS, 195, 197. To liability as stockholder, see CORPORA- TIONS, 348-353, 355, 364. To action by unauthorized corporation to enforce contract, see CORPORATIONS, 430-442. To local improvement assessments, see COR- PORATIONS, 435, 436; PUBLIC IMPROVE- MENTS, 74, 75. To action for breach of covenant, see COVE- NANTS AND CONDITIONS, 37. To criminal prosecution, instigation or con- sent as, see CRIMINAL LAW, I. f. To action for causing death, see DEATH, IV. To action for divorce, see DIVORCE AND SEPARATION, IV. To ejectment suit, see EJECTMENT, II. b. To prosecution for embezzlement, see EM- BEZZLEMENT, 3, 6, 8, 12. In condemnation proceedings, see EMINENT DOMAIN, 136-148. To action on executor's bond, see EXECU- TORS AND ADMINISTRATORS, 79. To action for false imprisonment, see FALSE IMPRISONMENT, III. To prosecution for false pretenses, see FALSE PRETENSES, 21, 22. To liability for interfering with extinguish- ment of fires, see FIRES, 24. To action for fraud, see FRAUD AND DECEIT, 72. To prosecution for violation of game laws, see GAME LAWS, 9. To liability for obstruction of sidewalk, see HIGHWAYS, 80. To prosecution for homicide, see HOMICIDE, III. To action by abandoned wife for support, see HUSBAND AND WIFE, 200, 209. To action on insurance policy, see INSUR- ANCE, VI. e. To action on premium note, see INSURANCE, 424. To prosecution for violation of Sunday closing law, see INTOXICATING LIQUORS, 162. To enforcement of bid at judicial sale, seo JUDICIAL SALE, 12-14. To libel or slander, see LIBEL AND SLANDER, III. c. In mandamus case, see MANDAMUS, II. d. To action for rent under oil and gas lease, see MINES, 70. In foreclosure suit, see MORTGAGE, VI. d. To violation of ordinance as to fire limits, see MUNICIPAL CORPORATIONS, 220. In proceedings to abate nuisance, see NUI- SANCES, II. d. 912 DEFERRED DIVIDEND DEFINITIONS. To prosecution for illegal practice of medi- cine, see PHYSICIANS AND SURGEONS, 15-17. To prosecution for illegal use of mails, see POSTOFFICE, 16. In replevin suit, see REPLEVIN, II. b. To action by vendee for shortage in quality of goods delivered, see SALE, 137, 138. To action for specific performance, see SPE- CIFIC PERFORMANCE. To collection of tax, see TAXES, 152. To liability of township trustees for failure to provide for collection of tax to pay contractor, see TOWNS, 13, 14. To action for infringement of trademark, see TRADEMARKS, V. To action for trespass, see TRESPASS, I. c. In trover, see TROVER, 44-49. To prosecution for alleged unlawful sale of .grain stored in warehouse, see WARE- HOUSEMEN, 3. Discharge in bankruptcy as, see BANK- RUPTCY, V. Maintenance as, see CHAMPERTY AND MAIN- TENANCE. Illegality of contract as, see CONTRACTS, III. g- Ultra vires, see CORPORATIONS, IV. d, 2. Laches as, see ESTOPPEL, III. g; LIMITA- TION OF ACTIONS, I. b. Infancy as, see INFANTS, I. d. Fraudulent use of trademark as, see IN- JUNCTION, 401. Fact that plaintiff is member of illegal combination, see MONOPOLY AND COM- BINATIONS, 52. Depreciation in pledged stock after matu- rity of note, see PLEDGE AND COL- LATERAL SECURITY, 27. Legislative authority as, see RAILROADS, 25. Violation of Sunday law as, see SUNDAY, V. Usury as, see USURY, II. Affidavit of, see APPEAL AND ERROR, 811; PLEADING, 480, 506. Effect of account stated on ? see ACCOUNTS, 10. Vested right to, see CONSTITUTIONAL LAW, 65. Due process as to, see CONSTITUTIONAL LAW, II. b, 7, b, (2). Presumption and burden of proof as to, see EVIDENCE, II. c. Evidence to establish, see EVIDENCE, 1677. Negation of, see INDICTMENT, etc., II. c; PLEADING, II. e. Necessity of pleading, see PLEADING, III. b. Sufficiency of plea to raise, see PLEADING, III. d. Pleading inconsistent defenses, see PLEAD- ING, 27, 28, 143. Striking out immaterial defenses, see PLEADING, 156. Review on appeal of refusal to permit amendment to -set up, see APPEAL AND ERROR, 598. First pleading of, on appeal, see APPEAL AND ERROR, 740-742. Error in entertaining motion to strike out separate offense, see APPEAL A ND ERROR, 1085. Digest 1-52 L.R.A.(N.S.) Right of party to illegal contract to set up illegality as defense, see CONTRACTS, 564. Tender of premium by insurer as condition of setting up defense in action on pol- icy, see INSURANCE, 434-444. Interposition of equitable defense in action on judgment, see JUSTICE OF THE PEACE, 2. Liability for damages caused by unjustified defense, see TORTS, 9. Establishment of, on cross-examination of witnesses, gee WITNESSES, 90. DEFERRED DIVIDEND. On preferred stock, see CORPORATIONS, 296, 297. DEFICIENCY. Second levy for, see JUDICIAL SALE, 22. On foreclosure, see MORTGAGES, VI. i. DEFICIENCY JUDGMENT. Statute forbidding, see ELECTION OF REME- DIES, 2. Validity of deficiency decree to enforce vendors' lien, see JUDGMENT, 125. DEFINTTENESS. Of objections and exceptions, see APPEAL AND ERROR, V. a. Of order of state railroad commission, see CARRIERS, 1077, 1078. Of charitable bequest, see CHARITIES, I. d. Of contract, see CONTRACTS, I. d, 3. Of ordinance, see MUNICIPAL CORPORATIONS, 85, 86, 119, 123. Of pleading, see PLEADING, I. c. Of statutes, see STATUTES, 35-44. Of tax levy, see TAXES, 157. Of tax deed, see Taxes, 220. Of offer of evidence, see TRIAL, 45, 46. Of verdict, see TRIAL, 1124. DEFINITIONS. Complaining of, for first time on appeal, see APPEAL AND ERROR, 166. In instructions, see APPEAL AND ERROR, 1318, 1324, 1325, 1346, 1429, 1430; TRIAL, 881-888. Absolutely free, see COPYRIGHT, 19. Accidental means, see INSURANCE, VI. b, 3, c. Accident arising out of and in the course of employment, see MASTER AND SERV- ANT. Adverse claimants, see NOTICE, 16. DEFINITIONS. 913 Apparent authority, see PRINCIPAL AND AGENT, 24. Assigns, see TAXES, 218. At, see CONTRACTS, 366. Author, see COPYRIGHT, 5, 6. Bank check, see CHECKS, 2. Bodily heirs, see DEEDS, 71. Bona"fide holder, see BILLS AND NOTES, 158a. Born previously to a certain period, see WILLS, 154, 155, 249. Boycott, see CONSPIRACY, 4. Building, see INSURANCE, 717. Champerty, see CRIMINAL LAW, 167, 170. Children, see WILLS, 208. Civil conspiracy, see CONSPIRACY, 2. Collision, see INSURANCE, 678. Confirmation, see CONTRACTS, 374, 375. Contemporaneously, see CARRIERS, 1055. Conversion, see TROVER, 13. Course of employment, see MASTER AND SERVANT, 895. Customer, see CONTRACTS, 365. Damages, see EMINENT DOMAIN, 180. Dance house, see STATUTES, 249. Dead freight, see CARRIERS, 741, 874. Dependent, see INSURANCE, 67, 69. Destitute of means of support, see INSCJR- ACE, 189. Dividend additions, see INSURANCE, 172, 173. Domicil, see HOMICIDE, 79. Earliest possible convenience, see LIMITA- TION OF ACTIONS, 123. Employ, see MASTER AND SERVANT, 2. Engage and employ, see MASTER AND SERV- ANT, 2. Equal protection of law, see CONSTITU- TIONAL LAW, 150. Excusable neglect, see JUDGMENT, 350. Express authority, see PRINCIPAL AND AGENT, 25. External violent and accidental means, see INSURANCE, VI. b, 3, c. Extraordinary flood, see WATERS, 194. False, see DUTIES, 1. Family, see HOMESTEAD, 9. Female, see PROSTITUTION. Fence, see COVENANTS AND CONDITIONS, 83. Fictitious person, see BILLS AND NOTES, 9. F. 0. B. cars, see CONTRACTS, 382. Front or nearest external wall, see BUILD- INGS, 10. Game of hazard, see CONTRACTS, 593. Going value, see GAS, 49. Good merchantable, see SALE, 76. Graft, see GRAFT. Habitual drunkard, see DIVORCE AND SEPA- RATION, 53. Hazard, see MASTER AND SERVANT, 755, 757. Head of family, see HOMESTEAD, 10-12. Heirs, see DEEDS, 32 ; WILLS, 162. Heirs at law, see WILLS, 161. Holographic will, see WILLS, 119. Immediate, see INSURANCE, 635. Implements of trade, see EXEMPTIONS, 13. Imprisonment, see FALSE IMPRISONMENT, 1. In expeditione, see WILLS, 120, 121. Insanity, see CRIMINAL LAW, 25. In terrorem, see WILLS, 281. Intoxicating liquor, see INTOXICATING LI- QUORS, 102. Invisible injury, see INSURANCE, 752, 753. Judicial officer, see BRIBERY, 4. Keeping, see INSURANCE, 269. Digest 1-52 L.R.A.(N.S.) J Legal heirs, see INSURANCE, 832. Legal malice, see HOMICIDE, 24. Legal representative, see INSURANCE, 833, 834. Lost property, see FINDER, 1, 2. Maliciously, see MALICIOUS MISCHIEF. Malum in se, see HOMICIDE, 38. Manslaughter, see TRIAL, 1088. Manufacturer, see GAS, 15. May, see INSURANCE, 188. Mob, see TRIAL, 1062. Money, see WILLS, 125. Moral turpitude, see ATTORNEYS, 16a. Natural heirs, see WILLS, 388. Next eldest brother, see WILLS, 156. Next of kindred, see DESCENT AND DISTRI- BUTION, 5. No notary present, see WILLS, 22. Noon, see INSURANCE, 183. Operation, see INSURANCE, 715. Option, see SPECIFIC PERFORMANCE, 15. Ordinary flood, see WATERS, 193. Overflowed lands, see PUBLIC LANDS, 7. Package, see FOOD, 2. Paraphernalia, see HUSBAND AND WIFE, 93. Parole, see CRIMINAL LAW, 289. Part performance, see CONTRACTS, 318. Pay, see EVIDENCE, 962. Permanent nuisance, see NUISANCES, 3. Person not otherwise a party, see BILLS AND NOTES, 91. Private nuisance, see NUISANCES, I. Process, see EXEMPTIONS, 2. Property, see BANKRUPTCY, 45, 48. Proximate cause, see PROXIMATE CAUSE, 1- 3. Public business, see EMINENT DOMAIN, 47. Public highway, see AUTOMOBILES, 2a; IN- SURANCE, 719. Public use, see EMINENT DOMAIN, 43. Public utility, see MUNICIPAL CORPORATIONS, 258; PUBLIC SERVICE CORPORATIONS, 12. Public way, see PUBLIC WAY. Purchaser for valuable consideration, see BANKRUPTCY, 57. Quarry, see QUARRY. Railroad hazard, see MASTER AND SERVANT, 755, 757. "Reasonable amount of work," see MASTER AND SERVANT, 73. Reasonable doubt, see APPEAL AND ERROR, 1325, 1391; TRIAL, 1071. Redemption, see MORTGAGES, 153-156. Religious meeting, see DISTURBING MEET- ING, 2. Reservoir, see WATERS, 307. Responsible, see CONTRACTS, 798. Rest of my money, see WILLS, 301. Riot, see MOBS AND RIOTS, 4. Roadbed, see INSURANCE, 720. Seashore, see BOUNDARIES, 15. Seised, see DOWER, 11. Shore, see WATERS, 159. Shore lien, see WATERS, 159. Shores of navigable river, see WATERS, 71. Special benefits, see DAMAGES, 583. Storing, see INSURANCE. Structure, see MECHANICS' LIENS, 32. Sum at risk, see INSURANCE, 791. Sun stroke, see INSURANCE, 729. Swamp lands, see PUBLIC LANDS, 5. Tenement, see FORCIBLE ENTRY AND DETAIN- ER, 2. 914 DEGENERACY DELEGATION OF POWER. Tide land, see WATEBS, 70, 77. "Trade dispute," see TRADE DISPUTE. Treasure trove, see TREASURE TBOVE, 1, 2, 5. Vice principal, see MASTER AND SERVANT, 830. Widow, see WILLS, 157. Widower, see DESCENT AND DISTRIBUTION, 9a. Wound, see MALICIOUS INJURT. DEGENERACY. As ground for divorce, see DIVOBCE AND SEP- ARATION, 58. DEGREES. Of homicide, see HOMICIDE. DELAY. In repudiating account stated, see AC- COUNTS, 9. In prosecution of criminal, see APPEAL AND ERROR, 491; CRIMINAL LAW, 87-94. In presentation of check, see ASSIGNMENT FOB CREDITORS, 16; CHECKS, 21-28; SALE, 186. In enforcing note, see BILLS AND NOTES, 203. In returning unsatisfactory insurance poli- cy, see BILLS AND NOTES, 209. In transportation of passenger, see CARRI- ERS, 193-195; DAMAGES, 75, 257, 662. In forwarding baggage car of orchestra com- pany, see CARRIERS, 694. In forwarding loaded cars, see CARRIERS, 996, 997; CONSTITUTIONAL LAW, 196. In furnishing cars, see CARRIERS, III. h. In delivery by carrier, see CARRIERS, III. d, 4. In removal of goods by consignee, see CAB- BIERS, 855-859. In delivering telegrams, see CONFLICT OF LAWS, 161-165. In performing or completing building or construction contract, see CONTRACTS, 399, 639-641, 665-667, 704. In rescinding contract, see CONTRACTS, V. c, 2. In enforcing sentence for crime, see CRIMI- NAL LAW, 229, 230. In making demand for proceeds of check on one who cashed it wrongfully, see EVI- DENCE, 1757. In sending in application for insurance, see INSURANCE, 34, 35. In rejecting receipt for renewal of insur- ance, see INSURANCE, 119. In settling estate, see INTEREST, 36. In seeking change of judges, see JUDGES, 22. In seeking relief from judgment, see JUDG- MENT, VII. e. In developing oil and gas mine, see MINES, 60. Digest 1-52 L.R.A.(N.S.) In running timber as proximate cause of loss from flood, see PROXIMATE CAUSE, 69. In furnishing goods sold, see SALE, 102, 106. In rejecting order for goods, see SALE, 6. In asserting right to reclaim property sold, see SALE, 185-187. In rescission of sale, see SALE, 214. In transmission of telegram, see TELE- GRAPHS, II. a, 2. In delivery of telegram, see TELEGRAPHS, 40-48; TBIAL, 744. In seeking to recover for infringeintnt of trademark, see TRADEMARKS, 29. Of motion papers sent by mail, see JUDG- MENT, 349. Of referee in making report, see REFERENCE, 18. Dismissal of appeal for, see APPEAL AND EBBOB, 400, 401. Provision in contract of sale that accept- ance shall waive all claims to damages for delay, see CONTRACTS, 74. Escheat of railroad property for delay in improvement, see ESCHEAT, 11. Estoppel by, see ESTOPPEL, III. g. Presumption from, see EVIDENCE, 551. As bar to right to maintain action, see LIM- ITATION OF ACTIONS. Release of surety by, see PBINCIPAL AND SUBETY, 58-63. As ground for refusing redelivery of re- plevined property, see REPLEVIN, 39, 40. Acceptance of article purchased as waiver of delay, see SALE, 53, 67. Recoupment of damages for, see SET-OFF AND COUNTERCLAIM, 18. As rendering service by publication invalid, see WRIT AND PROCESS, 73. DELEGATES. Duty of carrier toward delegates to conven- tion riding free, see CARRIERS, 170. To political convention, see ELECTIONS, IV. DELEGATION. Of duty by carrier, see CAHRIERS, 583, 584. Of master's duty, see MASTER AND SERVANT, II. e, 2; III. b. DELEGATION OF POWER. Constitutionality of, see CONSTITUTIONAL LAW, I. d. As to local option generally, see INTOXI- CATING LIQUORS, I. c. By voters to city council to fix amount of bonds, see BONDS, 76. By or to municipality, see MUNICIPAL COR- PORATIONS, II. b. By religious society, see RELIGIOUS SOCIE- TIES, VIII. By board of health, see WATERS, 129. DELIBERATION DEMONSTRATIVE EVIDENCE. 915 To employee, see MASTER AND SERVANT, 989. To furnish water for use of city, see WA- TEBS, 334. DELIBERATION. As element of murder, see HOMICIDE, 17-22, 41. DELINQUENT CHILDREN. Constitutionality of statute as to, see CON- STITUTIONAL LAAV, 357, 358. Jurisdiction in matters concerning, see COURTS, 246. Power of state over, see INFANTS, 3, 25. Binding effect on parent of order adjudging that child is delinquent, see JUDGMENT, 242. Right to jury of twelve in proceeding for restraint of delinquent child, see JURY, 10. Duty to keep record of proceedings as to, see RECORDS AND RECORDING LAWS, 12. Residence for school purposes of children committed to citizens on probation by juvenile court, see SCHOOLS, 8. See also JUVENILE OFFENDERS. DELIRIUM. Fall of person delirious from fever from window, see INSURANCE, 745. DELIRIUM TREMENS. Liability for homicide committed while suf- fering from, see CRIMINAL LAW, 34. Resulting from shock from being thrown from automobile, see HOMICIDE, 3. Injury which precipitates attack of, as proximate cause of death, see PROXI- MATE CAUSE, 30. DELIVERY. By carrier, see CABBIERS, III. d. Of indemnity bond, see BONDS, 3. Of deed, see DEEDS, I. b. Of gift, see GIFTS, III. Of insurance policy, see INSURANCE, 128- 137. Of intoxicating liquor, see COMMERCE, 124, 127; INTOXICATING LIQUORS, 166-179. Of pledged property, see PLEDGE AND COL- LATERAL SECURITY, 2-10. Of personalty sold, see SALE, I. b. Of telegram, see TELEGRAPHS, II. a, 5. ' In escrow, see ESCROW, 37-42. Indorsement of note before, see BILLS AND NOTES, III. b, 2. Digest 1-52 L.R.A.(N.S.) Requiring free delivery by express company as interference witli commerce, see COM- MERCE, 32-34. DELUSIONS. Effect of, on testamentary capacity, see WILLS, 71-73. DEMAND. As condition precedent to right of action, see ACTION OR SUIT, 28-30; CORPORA- TIONS, 280, 281; MANDAMUS, 100; RE- PLEVIN, I. c; TROVER, I. c. For payment of certificate of deposit, see BANKS, 147. For payment of note, see BILLS AND NOTES, IV. For delivery of freight, see CARRIERS, 744. For performance of option, see CONTRACTS, 184. For dower, see CONTRACTS, 255; DOWER, 34- 37, 47. For jury trial, see JURY, I. c. Upon guarantor, see GUARANTY, 3. Against city, see MUNICIPAL CORPORATIONS, II. g, 5. Maturity of note payable on demand, see BILLS AND NOTES, 126. Treaty requirements as to proof of formal demand for extradition, see EXTRADI- TION, 3. Interest on money payable on demand, see INTEREST, 5. Necessity of demand of payment to start running of interest, see INTEREST, I. h. Time within which demand for money pay- able on demand must be made, see LIM- ITATION OF ACTIONS, 50, 51. Necessity of, to start running of limita- tions, see LIMITATION OF ACTIONS, 139- 148. Waiver of, by conditional vendee, see SALE, 141. DEMAND NOTE. Mat.urity of, see BILLS AND NOTES, 126. DEMONSTRATION. On part of spectators in court room, see APPEAL AND ERROR, 1049. DEMONSTRATIVE EVIDENCE. See EVIDENCE, V. 916 DEMURRAGE DEPOSIT. DEMURRAGE. On cars, see CARRIERS, III. i. On vessel, see SHIPPING, 8-11. DEMURRER. To indictment or information, see CRIM- INAL LAW, 147, 154, 155; GRAND JURY, 4; INDICTMENT, ETC. 137. To evidence, see TRIAL, II. d, 4. Presumption of correctness of rulings on, see APPEAL AND ERROR, 446, 447. Review on appeal of rulings as to, see AP- PEAL AND ERROR, 553, 554. Affirmance or reversal of ruling as to, on appeal, see APPEAL AND ERROR, 1586. Limitation of judgment sustaining, see JUDGMENT, 27. Judgment sustaining, as one upon merits, see JUDGMENT, 70. Conclusiveness of judgment on, see JUDG- MENT, 100-102. Motion to strike out bill as in nature of de- murrer, see MOTIONS AND ORDERS, 1. In general, see PLEADING, VII. DENIALS. In pleading, see PLEADING, 105, 106, 109, 451-457, 483, 486, 498, 502, 509, 522, 549. DE NOVO. See TRIAL DE Novo. DENTISTS. Contracts by, in restraint of trade, see CON- TRACTS, 547, 552. Liability of members of corporation of, see CORPORATIONS, 307. Review by court of action of state board of dental examiners in revoking license, see COURTS, 51. Exemplary damages against, see DAMAGES, 65. Sale of good will of dental business, see GOOD WILL, 2-4. Injunction to restrain breach of contract not to enter into competition with em- ployer, see INJUNCTION, 78, 445. Injunction against enforcement of order for revocation of license, see INJUNC- TION, 312. Indefiniteness of statute as to revocation of license of, see STATUTES, 36. 1. A person who is licensed to "practise medicine and surgery" cannot, by virtue thereof, "practise dentistry" without secur- ing a license as a dentist, where the legis- lature has defined both the practice of medi- Digest 1-52 L.R.A.(N.S.) cine and the practice of dentistry, and made of them two distinct professions, with pre- scribed requirements for each. State v_ Taylor, 19: 877, 118 N. W. 1012, 106 Minn. 218. 2. The making of a promise without an intention to perform it may amount to a false statement as to an existing condition, within the meaning of a statute authoriz- ing a dentist's license to be revoked where he has obtained money by false represen- tations. Richardson v. Simpson, 43: 91 i f 129 Pac. 1128, 88 Kan. 684. (Annotated) DEPARTMENT OF INTERIOR. Appointment of receiver to preserve status quo pending contest before, see RE- CEIVERS, 3. DEPARTMENT STORE. Who are fellow servants in, see MASTER AND SEEVANT, 751. DEPARTURE. In pleading, see APPEAL AND ERROR, 166, 1055; PLEADING, 83, 107-110, 553-558, 582. DEPENDENT. Insurable interest of, see INSURANCE, 65-80. Who is dependent beneficiary under Federal employers' liability act, see DEATH, 6. DEPENDENT RELATIVE REVOCA- TION. Of will, see WILLS, 50. DEPORTATION. See ALIENS, I. + * DEPOSIT. In bank generally, see BANKS, III. a. Gift of bank deposit, see GIFT, 9, 11-18, 26. Forfeiture of, soe FORFEITURE, 3. DEPOSITIONS, L, II. 917 DEPOSITIONS. 7. In general, 17. II. Taking and returning, 8, 9. III. Objections. IV. Use on trial, 1O19. Review on appeal of discretion as to allow- ance of cost of taking, see APPEAL AND ERROR, 573. Review of discretion in refusing to quash, see APPEAL AND ERROR, 600. Refusal to order into court deposition taken by plaintiff but not filed, see APPEAL AND ERROR, 1216. Refusal to obey order as to, see CONTEMPT, 80, 81, 92-94. Striking out, as punishment for contempt, see CONTEMPT, 107. Cost of taking as part of costs of case, see COSTS AND FEES, 4. Right of one accused of murder to order to enable him to secure evidence, see CRIMINAL LAW, 159, 160. Admissibility as, of transcript of t'estimony at former trial as to transaction with person since deceased, see EVIDENCE, 777. Conclusiveness of deposition of witnesses as to facts stated therein, see Evidence, 2260. Right to object to admission of, see TRIAL, 79. Of attesting witnesses, see WILLS, 94. Supplying loss of suppressed deposition by cross examination of opposite party, see WITNESSES, 79. As to discovery an,d inspection, see DISCOV- ERY AND INSPECTION. 7. In general. (See also same heading in Digest L.R.A. 1-10.) Right to take. 1. To authorize a Federal court, as a court of equity, to direct depositions to be taken in perpetuam rei memoriam, un- der U. S. Rev. Stat. 866, U. S. Cornp. Stat. 1901, p. 663, it is not necessary for the bill to present a case where it is neces- sary that the depositions be taken to pre- vent a failure or delay of justice. Westing- house Machine Co. v. Electric Storage Bat- tery Co. 25: 673, 170 Fed. 430, 95 C. C. A. 600. 2. A manufacturer who is charged with making an article which infringes another's patent, and whose customers are notified of that fact, and who is threatened with suits for infringement, which are not brought, and who claims that he can prove the invalidity of the patent by witnesses presently available, but whose testimony may be lost by death or removal, may main- tain a bill in a Federal court under U. S. Rev. Stat. 866, U. S. Comp. Stat. 1901, p. 663, to take their depositions in per- petuam rei memoriam. Westinghouse Ma- chine Co. v. Electric Storage Battery Co. 25: 673, 170 Fed. 430, 95 C. C. A. 600. Digest 1-52 L.R.A.(N.S.) 3. A petition for abatement of taxes is a civil case within the meaning of a statute permitting the taking of depositions in such cases, for use at the trial. Boston & M. R. Co. v. State, 31: 539, 77 Atl. 996, 75 N. H. 513. 4. A provision of one section of a stat- ute that the testimony of nonresident par- ties to a cause may be taken in the same manner as the testimony of other nonresi- dent witnesses, "this to apply to courts of law and equity," will permit the taking of the depositions of nonresident witnesses not parties in equity suits, although the terms of the former section providing for depo- sitions of nonresident witnesses applied to courts of law only. Clark v. Callahan, 10: 616, 66 Atl. 618, 105 Md. 600. Who may take. 5. A commission to take testimony can- not be executed by an officer to whom it is not addressed. De Renzes v. Palestine, 2: 1089, 39 So. 805, 115 La. 675. 6. A commission to take testimony ad- dressed to "any judge, justice of the peace, or Louisiana commissioner" cannot be exe- cuted by a notary public. De Renzes v. Palestine, 2: 1089, 39 So. 805, 115 La. 675. Preliminary examination of party. Refusal to continue case to permit taking of plaintiff's deposition, see APPEAL AND ERROR, 1053. Preliminary physical examination, see DIS- COVERY AND INSPECTION, II. 7. A defendant has the right to take plaintiff's deposition before trial, under a statute providing that a party may be ex- amined at the instance of the adverse party by deposition, as any other witness, where the circumstances are such as to entitle him to take the deposition of a witness other than a party to the suit- Western U. Teleg. Co. v. Williams, 19: 409, 112 S. W. 651, 129 Ky. 515. 77. Taking and returning. (See also same heading in Digest L.R.A. 1-70.) Inherent power of court to issue commission to take, to officer in other state, see COTTRTS, 8. Requiring production of privileged commu- nication on taking of, see DISCOVERY AND INSPECTION, 14, 15. Privilege of witness on taking of, see REF- ERENCE, 6; WITNESSES, 126. 8. A witness is entitled to the same privileges and immunities when a deposi- tion is taken as when examined in open court. Ex parte Button, 23: 1173, 120 N. W. 203, 83 Neb. 636. Notice. Effect of acceptance of notice to take as an appearance, see APPEARANCE, 3. Constitutionality of statute authorizing taking of, without notice, see CONSTI- TUTIONAL LAW, 583. 9. Although the opposite party resides in the place where the depositions are to be 918 DEPOSITIONS, III. DEPOTS. taken, he is not entitled to be informed of the time when and the place where the depositions will be taken, if interrogatories are attached to the commission, and have been communicated to him, and an oppor- tunity afl'orded him to cross the same. De Renzes v. Palestine, 2: 1089, 39 So. 805, 115 La. 675. III. Objections. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of exception to taking of, see AP- PEAL AND ERBOB, 312. IV. Use on trial. (See also same heading in Digest L.R.A. 1-10.) Use of, in other cases, see EVIDENCE, 780. Putting whole writing in evidence, see EVI- DENCE, 877. 10. That a decree was rendered in vaca- tion may be shown by deposition. Jackson v. Becktold Printing & B. Mfg. Co. 20: 454, 112 S. W. 161, 86 Ark. 591. 11. Depositions, the taking of which is not authorized by any rule of court, are not admissible in evidence. Lyttle v. Den- ny, 20: 1027, 71 Atl. 841, 222 Pa. 395. 12. The cross-examination in depositions on subjects excluded in chief is not admis- sible in evidence. Baltimore & O. R. Co. v. Dever, 26: 712, 75 Atl. 352, 112 Md. 296. 13. A statute requiring depositions of nonresident witnesses to lie in court ten days before the case shall be taken up for hearing does not render them inadmissible in evidence should the case be taken up be- fore that time, but the objection must be to the taking up of the case. Clark v. Calla- han, 10: 616, 66 Atl. 618, 105 Md. 600. 14. Depositions may be used in the con- sideration by the probate court of claims against a decedent's estate, where the stat- utes provide for the taking of depositions in suits at law and that contested claims shall be tried in the probate court as other suits at law. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. 15. Where the evidence of a witness is taken by a deposition after notice given as provided by statute, and the adverse party neglects to appear and cross-examine the witness, and thereafter gives notice in con- formity with law of the taking of the dep- osition of the same witness, and in pur- suance of such notice takes the deposition of such witness, and in so doing cross- examines the witness on the deposition pre- viously given by him, it is erroneous pro- cedure to admit the later deposition as a part of plaintiff's case and before defend- ant has opened his side of the case. Vaughn v. Johnson, 37: 816, 119 Pac. 879, 20 Idaho, 669. Objectionable form of questions. 16. Where evidence is in the form of Digest 1-52 L,.R.A.(N.S.) depositions, and the court upon inspection can see that, although the form of the ques- tions may be technically objectionable, the answers furnish proper evidence, substance rather than form should be heeded, and the evidence admitted. Bryant v. Modern Wood- men of America, 27: 326, 125 N. W. 621, 86 Neb. 372. Unresponsive answers. 17. Answers to questions propounded by his own counsel to one who has been called upon to answer interrogatories by the other party to an action cannot be excluded be- cause not given in response to the interroga- tories propounded, er because the other party was not present, where the statute provides that a person so interrogated may state any matter connected with the case and perti- nent to the issue to be tried. Sparks v. Taylor, 6: 381, 90 S. W. 485, 99 Tex. 411. Effect of amending pleadings after deposition is taken. 18. A deposition which contains compe- tent evidence on matters in issue at the time it A~as taken was not rendered inad- missible as to such evidence, by the fact ttat the amended declaration, on which the trial was had, put in issue matter in addi- tion to that as to which the deposition contained competent evidence. Sayre v. Woodyard, 28: 388, 66 S. E. 320, 66 W. Va. 288. 19. A deposition which contains com- petent evidence as to matters in issue at the time it was taken cannot be suppressed, in whole or in part, after trial begun on an amended declaration, on the ground that such amended declaration put in issue ad- ditional matter, where it also sets up. in part at least, the same matter as to which the deposition contained competent evi- dence. Sayre v. Woodyard, 28: 388, 66 S. E. 320, 66 W. Va. 288. DEPOSITORS' GUARANTY FUND. Constitutionality of statute creating, see CONSTITUTIONAL LAW, 282, 702, 776. DEPOT GROUNDS. Acquiring title to portion of, by adverse possession, see ADVERSE POSSESSION, 48. What constitutes, see RAILROADS, 49, 50; TBIAL, 236. DEPOTS. Carrier's duty as to, see CARRIERS, IT. Ij IV. d. Condition of, see CARRIERS, II. 1. Grant of special privileges to hacks, car- riages, etc. at, see CARRIERS, 1007-1013. DEPRECIATION DESCENT AND DISTRIBUTION. 919 Agreement to maintain, at certain place, see CONTRACTS, 369, 507-509, 628; COV- ENANTS AND CONDITIONS, 8; INJUNC- TION, 59; PASTIES, 42; PLEADING, 195; SPECIFIC PERFORMANCE, 65, 66, 68. Estoppel by using, see ESTOPPEL, 81. Platform at depot as public highway within meaning of accident insurance policy, see INSURANCE, 719. Forbidding solicitation of business at, see MUNICIPAL COBPORATIONS, 181-185. DEPRECIATION. Allowance for, in estimating value of pub- lic utility plant for purpose of fixing rates, see GAS, 30; TELEPHONES, 19-21, 23. DEPUTY. Sheriff's liability for act of, see BONDS, 62; PLEADING, 241; SHERIFF, 6. Bond of deputy sheriff, see BONDS, 65, 66. Right of deputy sheriff to carry weapon outside of his district, see CARRYING WEAPONS, 8. Validity of contract by sheriff to supply deputies for protection of property, see CONTRACTS, 525. Right of deputy sheriff to reward for ar- rest, see REWARD, 3-5. Appointment as deputy of one withdraw- ing from candidacy for nomination, see CONTRACTS, 524. Sufficiency of certificate signed by deputy register instead of register, see MORT- GAGE, 168. Right to change salary of, see OFFICERS, 94. Service on, see WRIT AND PROCESS, 38. DERAILING SWITCH. On private railroad, employer's duty and liability as to, see MASTER AND SERV- ANT, 403, 866. DERAILMENT. Injury to live stock by, see CARRIERS, 222, 248, 275. Injury to live stock by, see CARRIERS, 891. Presumption of negligence in case of, see EVIDENCE, 344-348, 390. Evidence as to liability for injury caused by, see EVIDENCE, 1965. Sufficiency of evidence of negligence toward servant injured by, see EVIDENCE, 2135. Proof of, as showing negligence, see EVI- DENCE, 2145. Digest 1-52 L.R.A.(N.S.) DERRICK. Admissibility of admissions by operator of, see EVIDENCE, 1251. Injury to child by fall of, see NEGLIGENCE, 131. DESCENT AND DISTRIBUTION. /. Right to inherit, 1-27. a. Who entitled generally, 11O. b. Effect of alienage, 11. c. Effect of illegitimacy or slavery, 1215. d. Effect of adoption, 1623. e. Rights of husband and wife, 24-27. II. Property subject to descent and distribution, 2831. III. Nature and incidents of estate, 32, 33. Right of heirs to disaffirm infant's deed, see ABATEMENT AND REVIVAL, 6. Statute authorizing sale of unclaimed prop- erty of absent heirs, see ABSENTEES; CONSTITUTIONAL LAW, 608. Advancement to child, see ADVANCEMENTS. Precedence of foreign assignment in bank- ruptcy over claim of assignor to share as next of kin in personal estate of a decedent, see BANKRUPTCY, 180. Conflict of laws as to, see CONFLICT OF LAWS, I. j. Right to take property by inheritance as natural right, see CONSTITUTIONAL LAW, 386. Due process in administration of estate, see CONSTITUTIONAL LAW, 591-593. Equitable conversion of property belonging to decedent, see EQUITABLE CONVERSION. Mistake in regard to law of, as ground for relief in equity, see EQUITY, 65. Impressing share of heir with constructive trust because of his fraud in frustrating decedent's intention to give property to third person, see ESTOPPEL, 195. Estoppel by renunciation of succession to contest rights of person claiming share in estate, see ESTOPPEL, 205. Presumption and burden of proof as to, see EVIDENCE, 685, 686. Declarations to prove relationship of one claiming share in estate, see EVIDENCE, 1273, 1274. As to distribution of decedent's estate gen- erally, see EXECUTORS AND ADMINIS- TRATORS, IV, c. Transmission of homestead in case of death, see HOMESTEAD, IV. b. Application of state law to devolution of estates of Indians, see INDIANS, 6. Judicial sale of franchise for debts of de- ceased owner as against his heirs, see JUDICIAL SALE, 3. Conclusiveness of judgment as to inheritance from child, see JUDGMENT, 82. 920 DESCENT AND DISTRIBUTION, I. a. Payment as affecting running of limitations in favor of heirs, see LIMITATION OF ACTIONS, 334. Specific performance of illegal contract as to distribution of property, see SPECIF- IC PERFORMANCE, 28. Specific performance of agreement that child shall inherit from promisor, see SPECIFIC PERFORMANCE, 71-76. Construction of statutes of descent, see STATUTES, 245. Tax on right to take property by, see TAXES, V. Direction of verdict in action by heir to re- cover distributive share of estate, see TRIAL, 734. Title derived through deeds from heirs, see VENDOR AND PURCHASER, 35. As to devise or bequest of property, see WILLS, III. Partial intestacy, see WILLS, III. f. Applicability of doctrine of equitable con- version in determining distributive share of widow failing to elect to take under will, see WILLS, 372. Competency as witness in controversy over succession to estate, see WITNESSES, I. /. Right to inherit, a. Who entitled generally. (See also same heading in Digest L.R.A. 1-70.) Right of child not mentioned in or disin- herited by will to inherit, see WILLS, III. c. Time of determining heirs who take under will, see WILLS, 172-177. Effect of declaration in will as to provision for one of testator's heirs to prevent him receiving his due share in intestate property, see WILLS, 184. 1. As matter of intention, ascertained by application of the rules of interpretation and construction, rather than as matter of law, a deed by which land is granted, bar- gained, and sold, in fee simple, to one person for the use of another, separates the legal from the equitable title in fee simple, and vests the former in the trustee and the latter in the ccstui que trust, and each is then governed by the laws of descent, and, on the death of the party in whom it is vested, goes to his heirs. Blake v. O'Neal, 16: 1147, 61 S. E. 410, 63 W. Va. 483. 2. The completion, after the death of one who had contracted for real estate, paid a small portion of the purchase money, and taken a bond for title, of the contract, by payment of the balance of the purchase money out of profits from the property, which became the homestead of the widow and child, and money furnished by the wid- ow, and conveyance to the child by the vendor, renders the property a new acqui- sition by the child, and not an ancestral estate, and therefore, upon the death of the child without issue, the descent will be to Digest 1-52 KR.A.(N.S.) his heirs, uncontrolled by the fact that the equitable title was acquired through his father. Hill v. Heard, 42: 446, 148 S. W. 254, 104 Ark. 23. (Annotated) 3. Cousins do not inherit immediately from each other, but only mediately through the parents of each, and children cannot in- herit immediately from a cousin of their parent. Cramer v. McCann, 37: 108, 112 Pac. 832, 83 Kan. 719. 4. Under a statute providing that the personal estate of one dying intestate with- out wife or child shall be distributed "to the next of kindred in equal degree, of the intestate and their representatives, and if after the death of the father any of his children shall die intestate without wife or child, in the lifetime of the mother, every brother or sister and their representatives shall have equal shares with her," the fath- er of such intestate takes the whole per- sonal estate, to the exclusion of the mother. Lewin v. Lewin, 1 B. R. C. 556, 36 N. B. 365. (Annotated) 5. There is nothing in the language or object of the Married Women's Property Act, by force of which a wife controls and holds her property in all respects as if she were unmarried, which alters the construc- tion of the statute of distribution by which the father is considered as the sole next of kindred of a child dying intestate without wife or child, to the exclusion of the mother. Lewin v. Lewin, 1 B. R. C. 556, 36 N. B. 365 Rights of half blood. See also infra, 12. 6. Brothers and sisters of the half blood of the ancestor are included in a stat- utory provision for descent of ancestral real estate to "brothers and sisters," where that term is used without limitation. Stockton v. Frazier, 26: 603, 90 N. E. 168, 81 Ohio St. 227. (Annotated) 7. The joining by one of several chil- dren in a deed of property inherited from their father, to a stranger, for the purpose of securing a title to himself in the whole property, which was done under the errone- ous belief that he could not take title di- rectly from the coheirs, does not change the character of the title held by him as heir from inheritance to purchase, and therefore it will descend under the statute providing for inherited land descending to heirs of the half blood as well as of the whole blood, and not under the provision for the descent of land secured by purchase; at least where the intention of the parties waa that he should not alienate the property, but permit it to return to the cograntors at his death. Dudrow v. King, 39: 955, 83 Atl. 34, 117 Md. 182. (Annotated) Murderer of ancestor. 8. A conviction of manslaughter does not come within a statute forbidding an heir to inherit any portion of the estate of an ancestor for whose murder he has been convicted, where by statute technical words are to receive their technical meaning in statutorv construction. Re Kirby, 39: 1088, 121 Pac. 370, 162 Cal. 91. (Annotated) DESCENT AND DISTRIBUTION, I. b d. 9. The court cannot ingraft an excep- tion upon a plain provision of the statute of descent because the distributee has mur- dered the ancestor to secure possession of the property. McAlister v. Fair, 3: 726, 84 Pac. 112, 72 Kan. 533. (Annotated) 9a. The word "widower," in a statute providing that a widower shall inherit one half the property of his childless wife, means one who is reduced to that condition by the ordinary and usual vicissitudes of life, and not one who, by felonious act, has himself created that condition. Perry v. Strawbridge, 16: 244, 108 S. W. 641, 209 Mo. .621. 9b. Construction of a statute giving a widower one half the property of his child- less wife as not applying to one who mur- ders his wife is not prevented by a con- stitutional provision that no conviction can work forfeiture of estate. Perry v. Straw- bridge, 16: 244, 108 S. W. 641, 209 Mo. 621. 9c. A statute giving the widower of a childless wife one half the estate of which she dies seised does not operate in favor of one who murders his wife, where the legis- lature has expressly adopted the common law with its maxim that no one shall protit by his own wrong. Perry v. Strawbridge, 16: 244, 108 S. W. 641, 209 Mo. 621. 10. A husband is not precluded from in- heriting from his wife by the fact that he murdered her, where no intention appears that the murder was committed for the purpose of securing her property, under a statute relating to the descent of property which provides in plain and peremptory language that a husband shall inherit from his deceased wife, and no exception is made on account of criminal conduct. Holloway v. McCormick, 50: 536, 136 Pac. 1111, 41 Okla. 1. ft. Effect of alienage. (See also ' same heading in Digest L.R.A. 1-W.) Purchase by or from alien, see ALIENS, 3, 4. 11. Under a statute providing that a nonresident alien shall not be capable of acquiring title to land by descent, resident citizens cannot inherit lands through the operation of the statute of descent and distribution when they must trace their descent to a cousin of their parents who is an alien at the time of his death. Cramer v. McCann, 37: 108, 112 Pac. 832, 83 Kan. 719. c. Effect of illegitimacy or slavery. (See also same heading in Digest L.R.A. 1-10.) As to legitimation of child generally, see PARENT AND CHILD, II. 12. A statute giving an estate to the brothers and sisters of an intestate dying without issue or father or mother, and the Digest 1-52 L.R.A. (N.S.) descendants of such as are dead, and pro- viding that kindred of the half blood shall inherit equally with those of the whole blood, does not include descendants of ille- gitimate brothers and sisters. Truelove v. Truelove, 27: 220, 86 N. E. 1018, 172 Ind. 441. (Annotated) 13. Children of a deceased illegitimate child cannot inherit from a legitimate child of their grandmother where their parent and grandmother are dead, and the grand- mother, if living, would have inherited the property, under a statute providing that illegitimate children shall inherit from their mother, and through the mother if dead, any property or estate which she would, if living, have taken from any other person. Truelove v. Truelove, 27: 220, 86 N. E. 1018, 172 Ind. 441. 14. The death of an illegitimate before his mother does not prevent his children from inheriting from the latter, under a statute providing that every illegitimate child shall be considered as the heir of his mother, and shall inherit her estate in like manner as if born in lawful wedlock. Goodell v. Yezerski, 40: 516, 136 N. W. 451, 170 Mich. 578. 15. A letter written by the father of an illegitimate child to its mother, referring to the child by its first name, and requesting the mother to take good care of "my boy," is not a sufficient acknowledgment of pa- ternity to establish the right of heirship to the father by his illegitimate offspring, un- der a statute providing that every illegiti- mate child is an heir of the person who, in writing signed in the presence of a competent witness, acknowledged himself to be the father of such child, although the letter was written by a third person at the dictation of the father. Holloway v. Mc- Cormick, 50: 536, 136 Pac. 1111, 41 Okla. 1. d. Effect of adoption. (See also same heading in Digest L.R.A. 1-10.) Construction of adoption statute, see STAT- UTES, 262. Competency of witness to prove contract of adoption, see WITNESSES, 56. 16. The rights of a woman who marries a man with an adopted child, in his estate, are, although she does not consent to the adoption, the same as though the child was the fruit of the marriage. Batchelder v. Walworth, 37: 849, 82 Atl. 7, 85 Vt. 322. By adopted children. Right of child adopted in one state to in- herit real estate in another, see CON- FLICT OF LAWS, 122-125. Decision that foreign adoption gives child no right of inheritance within state, see COTTHTS, 309. Estoppel to contest rights of adopted child, see ESTOPPEL, 262. Injunction to protect rights of adopted child, see INJUNCTION, 413. 922 DESCENT AND DISTRIBUTION, I. e. Specific performance of agreement to adopt child, see SPECIFIC PERFORMANCE, 29, 37. Specific performance of agreement to give full rights of heirship to adopted child, see SPECIFIC PERFORMANCE, 71. Retrospective effect of statute as to rights of adopted children, see STATUTES, 303. As to adoption of child generally, see PAR- ENT AND CHILD, III. 17. Under the Kansas Act providing for the adoption of children, the adopted child of a prior deceased daughter of an intestate inherits a portion of the estate of such intestate through her adopting mother. Riley v. Day, 44: 296, 129 Pac. 524, 88 Kan. 503. 18. Under a statute permitting a person to adopt a child as his heir, an adopted child is not, by right of representation, en- titled, after the death of his adoptive parent, to take the intestate estate of the iatter's brother as his heir. Hockaday v. Lynn, 8: 117, 98 S. W. 585, 200 Mo. 456. (Annotated) 19. An adopted child will not inherit from the mother of its deceased foster par- ent, under a statute which provides that the adopted child shall become the heir at law of the parent adopting it, and be as capable of inheriting as though it was the child of such parent. Merritt v. Morton, 33: 139, 136 S. W. 133, 143 Ky. 133. ( Annotated ) Through, adopted children. 20. The right of a natural parent to in- herit from his child, which has been adopt- ed by another, under the general statutes of descent, is not changed in case the child dies unmarried without issue after the death of its adoptive parent, by statutes giving adopted children the rights of those born in lawful wedlock, and declaring that the rights of inheritance existing between the parent and child by adoption shall be the same as exist between parent and child by lawful birth, and therefore where, by stat- ute, the parent is first in line of descent from a child dying unmarried without is- sue, such parent will take property inherit- ed from the adoptive parent, in preference to the Iatter's children by lawful birth. Baker v. Clowser, 43: 1056, 138 N. W. 837, 158 Iowa, 156. (Annotated) 21. The father in blood of an adopted child does not inherit from him even though the adopting parent is dead, where the stat- ute provides that upon adoption the child shall be regarded and treated in all respects as the child of the parent adopting him, and that thereafter the adopting parent and the child shall sustain towards each other the legal relation of parent and child and have all the rights of that relation. Re Jobson, 43: 1062, 128 Pac. 938, 164 Cal. 312. 22. Under a statute providing that the same right of inheritance shall exist be- tween the parties to an adoption as though the party adopted had been the legitimate child of the person making the adoption, a child of the person adopted will, in case of the latter's death before that of the per- Digest 1-52 L.R.A.(N.S.) son making the adoption, inherit from the adopting parent by right of representation. Batchelder v. Walworth, 37: 849, 82 Atl. 7, 85 Vt. 322. 23. The use of the words "child" and "issue" in the statute governing the descent of property does not prevent the applica- tion of the rules of descent to adopted chil- dren so as to permit the issue of deceased ones to represent them, where the statute of adoption creates the same rights of in- heritance between the parties as though the person adopted had been the legitimate child of the person making the adoption. Batehelder v. Walworth, 37: 849, 82 Atl. 7, 85 Vt. 322. e. Rights of hmsband and wife. (See also same heading in Digest L.R.A 1-10.) Effect of murder of wife by husband on hia right to inherit from her, see supra, 9a-10. Right of husband to inherit where his mar- riage was invalid under laws of state where property was situated, see CON- FLICT OF LAWS, 78. Husband's estate by curtesy, see CTJBTESY. As to dower rights of wife, see DOWER. Election to waive distributive rights, see ELECTION. Estoppel to deny that woman is widow of decedent, see ESTOPPEL, 30. Allowance to widow, see EXECXJTOBS AND ADMINISTRATORS, 116, ]17. Transfer by husband or wife in fraud of the other's rights, see HUSBAND AND WIFE, IL j. Survivor's rights in community property, see HUSBAND AND WIFE, 85. Wife's right in insurance on husband's life, see INSURANCE, VI. d, 2, b. Effect of adoption of child on widow's rights in husband's estate, see PABENT AND CHILD, 40. Liability of community property to succes- sion tax, see TAXES, 314-316. Rights of husband under wife's will, see WILLS, 206. Rights of widow in her husband's estate where she fails to elect to take under will, see WILLS, III. i. Competency of husband or wife as witnesses, see WITNESSES, 47, 48. 24. A woman leaving children only by her first marriage is not without issue as to property purchased after the second mar- riage, within the meaning of statutes fixing the rights of her surviving husband in the property. Husted v. Rollins, 42: 378, 137 N. W. 462, 156 Iowa, 546. 24a. Right to curtesy is not a condition to the benefit of a statute entitling a husband to one half of the estate of which his childless wife dies seised. Perry v Strawbridge, 16: 244, 108 S. W. 641, 209 Mo. 621. 25. The value of the estate of an intes- tate for the purpose of determining the DESCENT AND DISTRIBUTION, II. DESCRIPTION. rights of the widow under a statute provid- ing that the real and personal estate of every intestate leaving a widow, but no is- sue, shall, in all cases where the net value of such real and personal estate shall not exceed a certain sum, belong to his widow absolutely and exclusively, is to be taken generally as of the time of his death; and the widow is therefore entitled to a con- tingent reversionary interest forming part of such an estate, although such interest when it falls into possession proves to be worth much more than the sum named in the statute. Re Heath, 3 B. R. C. 967, [1907] 2 Ch. 270. Also Reported in 76 L. J. Ch. N. S. 450, 97 L. T. N. S. 41. (Annotated) 26. The fact that the only means pro- vided by a statute for valuing an estate are applicable to an estate in possession does not exclude interests in reversion from the operation of the general words of its first section, which provides that the real and personal estate of every intestate leaving a widow, but no issue, shall, in all cases where the net value of such estate shall not exceed a certain sum, belong to his widow absolutely and exclusively. Re Heath, 3 B. R. C. 967, [1907] 2 Ch. 270. Also Reported in 76 L. J. Ch. N. S. 450, 97 L. T. N. S. 41. Effect of separation agreement. 27. The right of inheritance in property conveyed to a wife under a separation agree- ment is not to be denied the husband, unless an intention so to do is expressed or clear- ly inferable from the terms of the instru- ment. Dennis v. Perkins, 43: 1219, 129 Pac. 165, 88 Kan. 428. II. Property subject to descent and distribution. (See also same heading in Digest L.R.A. 1-10.) Right which will descend to heirs acquired by burying dead bodies in private grounds, see EASEMENTS, 32. Mutual benefit insurance as part of estate of insured where no beneficiary is named, see INSURANCE, 842, 845, 846. 28. Timber reserved by a grantor of real estate, upon his death, passes to his heir at law. Hicks v. Phillips, 47: 878, 142 S. W. 394, 146 Ky. 305. 29. The possessory right of the locator of a mining claim, who has not applied for a patent, does not, under the Federal law giv- ing locators, their heirs and assigns, the right of possession, go directly to the heirs of the locator upon his death, as beneficia- ries of the government, but they take by descent from the locator; so that the estate is subject to the jurisdiction of the probate court. O'Connell v. Pinnacle Gold Mines Co. 4: 919, 140 Fed. 854, 72 C. C. A. 645. ( Annotated ) 30. That the children of a trustee are infants does not prevent the trust estate from descending upon them in case of the death of the trustee charged with the trust. Cameron v. Hicks, 7: 407, 53 S. E. 728, 141 N. C. 21. 31. The possibility of reverter under a Digest 1-52 L.R.A.(N.S-) deed of property to a church with the pro- viso that it should revert to the grantor whenever it ceased to be used for church purposes is within the meaning of a statute providing that estates, both real and per- sonal, of persons dying intestate, "shall de- scend," and is cast upon the grantor's heirs at the time of his death, and not at the time that the use of the property ceases. North v. Graham, 18: 624, 85 N. E. 267, 235 111. 178. (Annotated) III. Nature and incidents of estate. (See also same heading in Digest L.R.A. 1-10.) Administrator's right to reimbursement from distributee, see EXECUTORS AND ADMINISTRATORS, 119-121. 32. The title of an heir is not absolute until after the process of administration is concluded, and may be devested by such process. Bickford v. Stewart, 34: 623, 104 Pac. 263, 106 Pac. 1115, 55 Wash. 278. Debts of decedent. Sufficiency of evidence as to, see EVIDENCE, 2308. Liability of personal representative who is also a devisee for debts of testator, see EXECUTORS AND ADMINISTRATORS, 98. Liability of devisee of homestead for de- cedent's debts, see HOMESTEAD, 20. Effect of devisee's surrender of sufficient personalty to pay all testator's debts on liability to contribution towards party wall, see WILLS, 107. 33. Distributees of a deceased bank di- rector cannot be held liable for losses oc- curring through his misfeasance in office, un- less assets are shown to have come to their hands. Emerson v. Gaither, 8: 738, 64 Atl. 26, ]j)3 Md. 564. DESCRIPTION. Of package of freight, see CARRIERS, 816- 819. Of property mortgaged, see CHATTEL MORT- GAGE, II. b; MORTGAGE, I. c. Of land; sufficiency to satisfy statute of frauds, see CONTRACTS, 285-287. Of parties to deed, see DEEDS, II. b. Of property conveyed, see DEEDS, II. c; SPE- CIFIC PERFORMANCE, , 23, 24 ; WILLS, 194-197. Of property in judgment, see JUDGMENT, 36. Of parties in judgment, see JUDGMENT, 37. Of property in lease, see LANDLORD AND TENANT, 9. Of parties in pleading, see PLEADING, II. c. Of land in assessment roll, see TAXES, 209. Of beneficiary in will, see WILLS, III. b. Of property devised, see WILLS, 194-197. Reformation of instrument because of mis- take in description, see REFORMATION OF INSTRUMENTS, 7-9. Warranty by, see SALE, II. b. 924 DESECRATION DETINUE DESECRATION. Of burial ground, see CEMETERIES, 6, 7; IN- JUNCTION, 113, 114. DESERT ENTRY. Dedication by desert entryman of water to public use, see DEDICATION, 4, 13, 22. Appropriation of water for, see WATERS, 235. DESERTION. As ground for divorce, see DIVORCE AND SEPARATION, III. b. By father of children after divorce, see DI- VORCE AND SEPARATION, 158. Of minor from Navy, see HABEAS CORPUS, 75. Criminal liability for desertion of wife, see HUSBAND AND WIFE, IV. Right of deserted wife to claim community rights, see HUSBAND AND WIFE, 80. DESIGN. Selling stove copied from design of another as unfair competition, see UNFAIB COMPETITION, 2, 3. DESK. Desk in office of elevator as within chattel mortgage on elevator, see CHATTEL MORTGAGE, 9, 59. DESTINATION. Leaving passenger at, see CARRIERS, II. i. Failure of passenger to reach, because of refusal of information by carrier's em- ployees, see DAMAGES, 72. Sufficiency of evidence as to destination of car, see EVIDENCE, 2310. DESTITUTE. When person is "destitute in means of sup- port" within meaning of insurance poli- cy, see INSURANCE, 189. DESTRUCTION. Of property, police power as to, see CON- STITUTIONAL LAW, 651-653. Of building before completion, see CON- TRACTS, 652, 653. Digest 1-52 L.R.A.(N.S.) Of leased building, see CONTRACTS, 719; LANDLORD AND TENANT, 90, 91, 191, 192. Of deeds, see DEEDS, II. g. Of evidence, presumptions from, see EVI- DENCE, II. e, 9. Of property, to protect health, see HEALTH, IV. Of property, as crime, see INDICTMENT, ETC., 61. Of intoxicating liquors, see INTOXICATING LIQUORS, III. h. Of property as nuisance, see MUNICIPAL CORPORATIONS, 142, 144, 153, 154, 162; NUISANCES, 168, 169, 171-173. Of building, liability of municipality for, see MUNICIPAL CORPORATIONS, 43], 437. Of property replevied, see REPLEVIN, 35. Of property sold, before delivery, see SALE, 14, 17. Of property sold with retention of title, be- fore payment of purchase price, see SALE, 145, 147, 148, 151. Of revoking will, effect on prior will, see WILLS, 45. Insurance against loss by, see INSURANCE. Revocation of will by, see WILLS, 46-52. DETAINER. Forcible detainer, see FORCIBLE ENTEY AND DETAINER. DETECTIVES. Liability for conspiracy in shadowing per- son, see CONSPIRACY, 11. Ratification of irregular employment of, see COUNTIES, 34. Apparent co-operation of, see CRIMINAL LAW, 58, 59. Liability for arrest made by, see FALSE IMPRISONMENT, 22. Power of municipality to employ, see MU- NICIPAL CORPORATIONS, 35. Parties defendant in action for illegal shad- owing by, see PARTIES, 155. Authority to employ, see PRINCIPAL AND AGENT, 49. DETERMINABLE FEE. Creation of, by lease, see LANDLORD TENANT, 108. Creation of, by will, see WILLS, 242-246 DETINUE. See REPLEVIN. DETONATING CAP DIPLOMA. DETONATING CAP. 925 A burglar's tool within meaning of stat ute forbidding possession of, see BUB GLABY, 1. DEVASTAVIT. See WASTE. DEVESTING TITLE. See DESCENT AND DISTRIBUTION, 32. DEVIATION. From route by carrier, see CARRIERS, 748- 751, 875, 885, 936, 917. DEVICE. Slot machine as gambling devise, see GAM- ING, 6-9, 18, 20. Pool table as gaming devise, see GAMING, 10, 11. Selling pools on horse races as gambling de- vice, see GAMING, 22-26. Opinion evidence as to practicability of, see EVIDENCE, 1187. Sufficiency of evidence to show worthless- ness of, see EVIDENCE, 2335. DEVISE. See WILLS, III. DEVISEE. Action by, to set aside deed of testator on ground of incompetency, see ACTION OR SUIT, 14, 15. DIAMONDS. Breach of warranty on sale of, see SALE, 97. DIARY. Admissibility in evidence of entries in, see APPEAL AND EBBOB, 1109; EVIDENCE, 864. Digest 1-52 L.R.A.(N.S.) DICE. Sending through mails offer to sell loaded dice, see POSTOFFICE, 11. DICTA. See also COUBTS, 305-308. 1. An additional reason for a decision brought forward after the case has been disposed of on one ground cannot be re- garded as dictum. Chicago, B. & Q. R. Co. v. Board of Supervisors, 31: 1117, 182 Fed. 291, 104 C. C. A. 573. DIES NON. Sunday as, see SUNDAY, 11. DIKES. Deflecting current of river by, see LIMITA- TION OF ACTIONS, 204. Liability of state institution for injury re- sulting from construction of, see PLEAD- ING, 154; STATE INSTITUTION, 7. Obstruction of surface waters by, see WA- TERS, 266. DILATION OF THE HEART. Liability of insurer against accident for death caused by, see INSURANCE, 743. DILIGENCE. In seeking change of judges, see JUDGES, 22. In seeking evidence, see NEW TRIAL, 57-59. As question for jury, see TRIAL, II. c, 3. DINING CAR. ontract by superintendent of dining car department, see CORPORATIONS, 149. Duty as to food served in, see FOOD, 21. DIP. Right to follow, see MINES, 22. DIPLOMA. Mandamus to compel issue of, see APPEAL AND ERROR, 429; MANDAMUS, 92-94. 926 DIPLOMATIC AND CONSULAR OFFICERS DISCOMFORT. DIPLOMATIC AND CONSULAR OFFICERS. Jurisdiction over settlement of estate, see CONFLICT OF LAWS, 119; EXECUTORS AND ADMINISTRATORS, 16. DIRECTION OF VERDICT. Prejudicial error in, see APPEAL AND ERROR, 1520-1528. Construction of motion for, see MOTIONS AND OUDEBS, 5. Waiver of erroneous denial of motion for, see APPEAL AND ERROR, 871, 872. In general, see TRIAL, II. d, 3. DIRECTORS. Of banks, see BANKS, 16, 45-55. Of chamber of commerce, see CHAMBER OF COMMERCE, 4. Of social club, see CLUBS, 7-9. Of corporations, generally, see CORPORA- TIONS, IV. g. Imputing knowledge of, to corporation, see NOTICE, 50, 55, 56, 58. DIRECTORY. See BUSINESS DIRECTORY. DIRECTORY PROVISIONS. Of statute, see STATUTES, 252-257. DIRECT TAX. Occupation tax as, see LICENSE, 79. DIRTY SLUT. Actionability of charge of being, see LIBEL AND SLANDER, 37. DISABILITIES. Of married woman, see HUSBAND AND WIFE, L b. Of incompetent person, see INCOMPETENT PERSONS. Of infants, see INFANTS, I. d. Effect of disability of adverse claimant on presumption of ouster from possession, see EVIDENCE, 634. Effect of, on running of limitations, see LIMITATION OF ACTIONS, II. m. Digest 1-52 L.R.A.(N.S.) DISAFFIRMANCE. Of infant's contract, see INFANTS, I. d, 2, b. DISBARMENT. Of attorneys, see ATTORNEYS, I. b. DISBURSEMENTS. Reimbursing personal representative, see EXECUTORS AND ADMINISTRATORS, 66, 119-121. DISCHARGE. In bankruptcy, see BANKRUPTCY, V. Of property seized in attachment proceed- ings, see ATTACHMENT, III. c. Of indorser, see BILLS AND NOTES, III. c. Of lien of chattel mortgage, see CHATTEL MORTGAGE, 30. Of chattel mortgage, see CHATTEL MORT- GAGE, 51. Of accused person on failure to prove case as stated in indictment, see CRIMINAL LAW, 67. Of jury, as former jeopardy, see CRIMINAL. LAW, 191-200. Of personal representative, see EXECUTORS AND ADMINISTRATORS, 55. Of guarantor, see GUARANTY, II. Of patient from insane asylum, see INCOM- PETENT PERSONS, 21. Of insolvent, see INSOLVENCY, VI. Of one joint tort feasor by release of others, see JOINT CREDITORS AND DEBTORS, II. Of judgment, see JUDGMENT, V. Of employee, see MASTER AND SERVANT, I. e. Of mortgage, see MORTGAGE, V. Of pledge, see PLEDGE AND COLLATERAL SE- CURITY, 11-14. Of surety, see PRINCIPAL AND SURETY, I. b. Of teacher, see SCHOOLS, II. c. Of jury, see TRIAL, 9, 10. Of trust, see TRUSTS, I. f. From covenant, see COVENANTS AND CON- DITIONS, V. On habeas corpus, see HABEAS CORPUS, I. c. DISCLAIMER. Effect of disclaimer of easement by owner of property to estop purchaser from claim- ing it, see EASEMENTS, 87. By state, of title to tide lands, see WATERS, 76. DISCOMFORT. As nuisance, see NUISANCES, 89. DISCONTINUANCE DISCOVERY AND INSPECTION, I. 927 DISCONTINUANCE. Of action, see DISMISSAL OB DISCONTINU- ANCE. Of eminent domain proceedings, see EMI- NENT DOMAIN, 149-151. Of highway, see HIGHWAYS, V.; STBEET RAILWAYS, 12, 13. DISCOUNT. By bank, see BANKS, IV. c. Effect of provision for, on negotiability of note, see BILLS AND NOTES, 64. Usury in, see USURY, 31. DISCOVERTURE. Ratification by married woman after, of note executed during coverture, see HUSBAND AND WIFE, 35. DISCOVERY AND INSPECTION. J. In general, 12'!. II. Physical examination, 28. III. Submitting person to X-ray, 29. Effect of prayer for, to give jurisdiction to compel accounting, see ACCOUNTING, 5. Review after judgment of order for, see AP- PEAL AND EKBOB, 11. Review of discretion as to, see APPEAL AND ERROB, 639. Certiorari to review order of inspection, see CERTIORARI, 11, 12. Compelling production of evidence before committing magistrate, see CRIMINAL LAW, 95. When equity will take jurisdiction on grounds of, see EQUITY, 9. Of acts of corporation, see EQUITY, 112. Adinissibility of affidavit as to existence of facts in alleged reports, where permis- sion to inspect them granted by court, has been refused, see EVIDENCE, 783. Discovery of mining claim, see MINES, 4. Sufficiency of allegations in bill for, see PLEADING, 612. As to depositions, see DEPOSITIONS. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. The right to call men to the witness stand, and to examine them as to their pri- vate affairs, can be justified only on the ground that courts are entitled to the in- formation in aid of proper judicial proceed- ings. State v. Milwaukee Electric R. & L. Co. 18: 672, 116 N. W. 900, 136 Wis. 179. 2. That a complaint waives an answer tinder oath does not defeat a right to a discovery, where discovery is only incidental Digest 1-52 L.R.A.(N.S.) to other relief prayed for. Patek v. Patek, 35: 461, 131 N. W. 1101, 166 Mich. 446. 3. Equitable jurisdiction of bills of dis- covery is not destroyed by the fact that stat- utes provide for the examination of the par- ties in actions at law. Nixon v. Clear Creek Lumber Co. 9: 1255, 43 So. 805, 150 Ala. 602. 4. Where, in an action by a township against its tax collector for moneys claimed to have been collected by him, a discovery is sought as to what persons and for what purposes and upon what warrant and au- thority such collector paid out and dis- bursed the funds of the township from time to time, such discovery relates solely to mat- ters of defense, and is not such a one as will give jurisdiction to a court ef equity. Franklin Twp. v. Crane (N. J. Err. & App.) 43: 604, 85 Atl. 408, 80 N. J. Eq. 509. 5. In case one is garnished lor the con- tents of a sealed package locked in a safety deposit box in his possession, the court may, to determine whether or not the par- cel is subject to garnishment, resort to any evidence bearing upon the matter which is available, including the breaking of the package and inspection of its contents, un- der a statute providing for the examina- tion of the garnishee as to his answer, and the proving of any facts not stated or de- nied by him, and the taking of such action in accordance with proper legal proceedings as will enable the court to determine the liability of the garnishee. Tillinghast v. Johnson, 41 : 764, 82 Atl. 788, 34 R. I. 136. 6. One seeking specific performance of an agreement to transfer inventions is not entitled to an order for a discovery be- yond what he suggests by his allegations and proof. Reece Folding Mach. Co. v. Fen- wick, 2: 1094, 140 Fed. 287, 72 C. C. A. 39. 7. The publisher of a libel cannot be re- quired to disclose the names of those from whom he received his information in aid of an action for libel, where the disclosure would include an admission of his own guilt, and therefore subject him to punish- ment for misdemeanor. Noyes v. Thorpe, 12: 636, 62 Atl. 787, 73 N. H. 481. Production or inspection of docu- ments. Contempt in refusing to produce books, see APPEAL AND ERROR, 70, 103; CONTEMPT, 14, 36, 37. Finality of order to produce books and pa- pers, see APPEAL AND ERROR, 23. Securing books by writ of sequestration, see CONSTITUTIONAL LAW, 364. Right of accused to inspection of paper used by prosecuting attorney in examining witnesses, see CRIMINAL LAW, 72, 73. Right of one accused of crime to inspect minutes of evidence before grand jury, see CRIMINAL LAW, 73, 74. Privilege against compulsory production of books or documents, see CRIMINAL LAW, 107-118. Compelling attorney to produce papers be- longing to client as violation of rule as to confidential communications, see EVI- DENCE, 1296, 1302. 928 DISCOVERY AND INSPECTION, II. Mandamus to compel vacation of invalid order for, see MANDAMUS, 17. Sufficiency of description in subpoena to pro- duce documents, see SEARCH AND SEIZUBE, 16. Right of counsel for accused to see paper put into hands of prosecuting witness to refresh his memory, see WITNESSES, 93. 8. Where there is disobedience to a subpoena duces tecum, the court has juris- diction to enforce obedience by attachment, even though the disobedience is not wilful. King v. Daye, 3 B. R. C. 211, [1908] 2 K. B. 333. Also Reported in 77 L. J. K. B. N. S. 659, 72 J. P. 269, 99 L. T. N. S. 165. 9. A .sealed packet may be a "docu- ment," and therefore liable to production upon a subpcena duces tecum. King v. Daye, 3 B. R. C. 211, [1908] 2 K. B. 333. Also Reported in 77 L. J. K. B. N. S. 659, 72 J. P. 269, 99 L. T. N. S. 165. (Annotated.) 10. The fact that a banker has received a document upon the terms that it shall not be delivered up except with the con- sent of the depositor is no answer to a sub- poena duces tecum requiring the banker to produce the document. King v. Daye, 3 B. R. C. 211, [1908] 2 K. B. 333. Also Reported in 77 L. J. K. B. N. S. 659, 72 J. P. 269, 99 L. T. N. S. 165. 11. The existence of described documents, and possession or control of them by the adverse party, must be affirmatively proven as conditions precedent to the granting of an order for an inspection and copy of such documents, under a statute permitting the granting of such an order. Atchison, T. & S. F. R. Co. v. Burks, 18: 231, 96 Pac. 950, 78 Kan. 515. 12. The plaintiff in a negligence action is entitled to an order for the discovery of a written statement relating to the accident, and signed by him as a marksman, which has been obtained from him by an agent of the defendant with a view to the possibility of litigation. Tobakin v. Dublin Southern Dist. Tramways Co. 3 B. R. C. 926, [1905] 2 I. R. 68. 13. A party in an action to recover dam- ages for personal injuries is entitled to a discovery of such facts or documents in his adversary's possession, or under his con- trol, as are material and necessary to make out his own case; but this right does not extend to a discovery of the manner in which the adverse party's case is to be es- tablished, nor to evidence which relates ex- clusively to the adverse party's case. Re Schoepf, 6: 325, 77 N. E. 276, 74 Ohio St. 1. 14. Reports of an accident in which a passenger was injured, made by the con- ductor and motorman of an electric car to the company's claim agent, are confidential communications, and cannot be regarded as admissions against interest, which the injured party is entitled to have produced under subpcena duces tecum on the taking Digest 1-52 L,.R.A.(N.S.) of depositions before a notary public. Re Schoepf, 6: 325, 77 N. E. 276, 74 Ohio St. 1. (Annotated) 15. A report made by the conductor and motorman of an electric car, pursuant to a rule of the company, detailing the cir- cumstances of an accident in which a pas- senger was injured, and designed for the in- formation of the company's claim agent or for the use of its counsel in case of suit, and which remained in the custody of the claim agent until suit was com- menced against the company for the injury received in such accident, when it was turned over to the company's counsel, is a privileged communication, the production of which cannot be enforced by subposna duces tecum issued by a notary public by whom depositions are being taken in the suit be- fore the trial. Re Schoepf, 6: 325, 77 N. E. 276, 74 Ohio St. 1. (Annotated) 16. A bill will not lie for the production of the original draft of a libelous article in aid of an action for libel, where its produc tion might fix the responsibility for the ar tide on defendant, and thereby render him guiltv of a misdemeanor. Noyes v. Thorpe, 12: 636, 62 Atl. 787, 73 N. H. 481. (Annotated) 17. Messages in possession of a tele- graph company are not privileged com- munications, but it may be compelled by the court to produce them in court under the same circumstances applicable to other writings. Ex parte Gould, 31:835, 132 S. W. 364, 60 Tex. Crim. Rep. 442. 18. A subpoena requiring the agent of a telegraph company to produce before the grand jury all messages sent from the town before a specified time, ordering intoxicat- ing liquors, is too broad to require com- pliance therewith, where the statute pro- vides that the grand jury, in propounding questions to a witness, shall direct the examination to the person accused or sus- pected of crime, and state the offense with which he is charged, but permits the jury to ask a witness in general terms whether he has knowledge of the violation of any particular law by any person "^d if so by what person. Ex parte Gould. 31: 835, 132 S. W. 364, 60 Tex. Crim. Rep. 442. 19. A court is empowered to compel a witness to produce papers before a com- missioner authorized to take depositions, by statutes providing that a witness may be required to attend and give evidence be- fore the court and bring with him required papers, and that he may be required to appear and give his deposition before any officer authorized to take depositions, in like manner as he may be compelled to attend as a witness before any court, and authorizing the court to compel attendance before the commissioner, and providing that, in case of failure to attend before the commissioner, the latter shall ask an order to compel him to attend and testify. Re Bolster, 29: 716, 110 Pac. 547, 59 Wash. 655. 20. The legislature may require a cor- poration to produce its books and documents in evidence ill a civil proceeding to forfeit DISCOVERY AND INSPECTION, II. DISCRETION. 929 its franchises for misuse thereof. State v. Central Lumber Co. 42: 804, 123 N. W. 504, 24 S. D. 136. 21. A statute empowering a court to or- der an inspection of papers, and to enforce the order by contempt proceedings, does not apply to papers which are of such a pri- vate nature as not to be receivable in evi- dence. State ex rel. Seattle General Con- tract Co. v. Superior Court, 28: 516, 106 Pac. 150, 56 Wash. 649. 22. The officers of a corporation defend- ant in an action, who are not parties there- to, are not within the provision of a statute that the parties may be required to pro- duce books and papers. Cassatt v. Mitch- ell Coal & Coke Co. 10: 99, 150 Fed. 32, 81 C. C. A. 80. 23. No order to produce papers for in- spection before trial can be made under U S. Rev. Stat. 724 (U. S. Comp. Stat. 1901, p. 583), authorizing courts, in actions at law, to require parties to produce papers under circumstances where they might be required to produce them by the ordinary rules of proceeding in chancery, and affix- ing as a penalty for refusal the entry of judgment as by default; since, the order being no part of the record of the judgment, the judgment cannot be sustained on appeal, and therefore the order to produce, if dis- obeyed, is nugatory. Cassatt v. Mitchell Coal & Coke Co. 10: 99, 150 Fed. 32, 81 C. C. A. 80. (Annotated) 24. The holder of a twenty-payment life insurance policy, who has, inter alia, the op- tion to withdraw at the expiration of the tontine period the share of the accumulated surplus apportioned by the company to his policy, is entitled, under a statute authoriz- ing inspection of books and papers contain- ing evidence of matters relating to the merits of the action, and a rule of court authorizing such inspection when necessary to enable applicant to frame a pleading or prepare for trial, to an inspection of the company's books and papers to enable him intelligently to exercise his options. El- linger v. Equitable Life Assur. Soc. n: 1089, 111 N. W. 567, 132 Wis. 259. (Annotated) 25. No authority to compel a private corporation, in which a decedent held stock, to produce its books and papers, is conferred upon a court by a statute authorizing it to appraise decedents' estates for the fixing of the inheritance tax, and for that purpose to compel the attendance of witnesses and the taking of their testimony under oath. State ex rel. Pabst Brewing Co. v. Carpenter, 8: 788, 108 N. W. 641, 129 Wis. 180. (Annotated) 26. The officers of a corporation cannot refuse to produce its books in court for in- spection, in response to a subpoena in a cause in which the matter contained in them is material, on the theory that the privacy with which its business is carried on is a trade secret, which it is entitled to protect from the inspection of strangers. Re Bolster, 29: 716, 110 Pac. 547, 59 Wash. 27. A corporation may be compelled to produce its books for inspection in a suit against it in the courts of the state where it was organized, although they are in pos- session of its officers in another state. State ex rel. Brumley v. Jessup & Moore Paper Co. 30: 290, (Del.) 379. 77 Atl. 16, 1 Boyce 655. Digest 1-52 L.R.A.(N.S.) (Annotated) //. Physical examination. (See also same heading in Digest L.R.A. 1-10.) Review of discretion as to, see APPEAL AND ERROR, 627, 628. Adjournment of trial to permit, see CON- TINUANCE AND ADJOURNMENT, 6. Continuance of case for refusal to submit, see CONTINUANCE AND ADJOURNMENT, 7. Exhibition of person to jury, see EVIDENCE, 879-881. Of policeman to ascertain fitness for posi- tion, see SEARCH AND SEIZURE, 1. Cross-examination of plaintiff as to willing- ness to submit to, see WITNESSES, 82. Power to order generally. 28. A court of law has no inherent pow- er to compel a plaintiff in an action at law to recover damages for personal injuries to submit, in advance of trial, to a physical examination by defendant's physician. Lar- son v. Salt Lake City, 23: 462,' 97 Pac. 483, 34 Utah, 318. (Annotated) ///. Submitting person to X-ray. (See also same heading in Digest L.R.A. 1-70.) 29. Under a statute giving a trial court discretionary power, in an action for dam- ages for personal injury, to appoint a phy- sician to make a physical examination of the injured person, the physician may him- self make an X-ray examination, if deemed necessary, but he is not authorized to take X-ray photographs of the injured person, or to appoint a photographer to use the X-ray or to take X-ray photographs, with- out the consent of the injured person ; nor can the court compel submission to exami- nation by, or in the presence of, another than the physician appointed by him. State ex rel. Carter v. Call, 41: 1071, 59 So. 789, 64 Fla. 144. DISCREDITING. Discrediting witness, see WITNESSES, III. DISCRETION. Review of, on appeal, see APPEAL AND EB- 59 ROR, VII, i. 930 DISCRIMINATION DISFIGUREMENT. Of attorney general when requested by gov- ernor to prosecute proceeding, see AT- TORNEY GENERAL, 3. As to allowing bail, see BAIL AND RECOGNI- ZANCE, 10. Of trustee of charity, see CHARITIES, 42, 54- 57, 59. In making appointment to office, see CIVIL SERVICE. Of civil service commission, see CIVIL SERV- ICE, 1. As to grant of permit to sell intoxicating liquors, see CONSTITUTIONAL LAW, 273; INTOXICATING LIQUORS, II. b. As to letting of public contract, see CON- TRACTS, 799. As to apportionment of costs, see COSTS AND FEES, 13, 17. Review by courts of discretion of officers in other departments of government, see COURTS, I. c. Of court in enforcing statute, see COURTS, I. c, 2. As to admitting in evidence photograph of clothing present in court, see EVIDENCE, 891. As to permitting view by jury, see EVI- DENCE, 898. Of executors as to amount to be spent for monument, see EXECUTORS AND ADMIN- ISTRATORS, 40. Of executrix, control of court over, see EXECUTORS AND ADMINISTRATORS, 41. As to appointment of guardian ad litem, see INCOMPETENT PERSONS, 28. As to custody of minor child, see INFANTS, I. c. Ag to allowance of temporary injunction, see INJUNCTION, 403. Mandamus to control, see MANDAMUS, 4, 9, 16, 27, 28, 55. In refusing leave to file information in na- ture of quo warranto, see Quo WAR- RANTO, 14. As to appointment of receiver for solvent corporation, see RECEIVERS, 12. In extending time for payment by purchaser at receiver's sale, see RECEIVERS, 51, 52. In refusing specific performance, see SPE- CIFIC PERFORMANCE, 21. Of trustee, power of equity to control, see TRUSTS, 86. Of court, as to examination of witnesses, see WITNESSES, 67, 69. DISCRIMINATION. In ordinance regulating keeping of billiard or pool tables for hire, see ACTION OR SUIT, 52. By carriers, see CARRIERS, II. m, 4, IV. b; IV. c. Against colored person, see CIVIL RIGHTS. Unconstitutionality of, see CONSTITUTIONAL LAW, II, a. In ballot, see ELECTIONS, 37. By electric light company, see ELECTRIC LIGHTS. Evidence as to, in shipment of freight, see EVIDENCE, 2031, 2032. Digest 1-52 L.R.A.(N.S.) By gas company, see GAS, 1, 5, 8, 14, 28. In rates by insurance company, see INSUR- ANCE, 1, 2. By rebate from insurance premium, see INSURANCE, 418-420. Liability for interest on discriminatory rate exceeded by carrier, see INTEREST, 2. In license tax, see LICENSE, II. d. By municipality, see MUNICIPAL CORPORA- TIONS, 93, 94. Between members of secret societies in schools, see SCHOOLS, 22. In taxes generally, see TAXES, I. c. In succession tax, see TAXES, V. b. In income tax, see TAXES, VI. b. By telephone company, see TELEPHONES, 9- 11, 24-26. In water rates, see WATERS, 422-424. DISEASE. As ground for refusal to accept person as passenger, see CARRIERS, 474. As ground for ejection of passenger, see CARRIERS, 405. Communication of, to passenger, see CAR- RIERS, 225. Communication of, to live stock, during transportation, see CARRIERS, 846; EVI- DENCE, 1785; TRIAL, 554. In plants, state's power to adopt regula- tions to prevent spread of, see COM- MERCE, 26. Validity of statute providing for treatment and extermination of insect and plant diseases, see CONSTITUTIONAL LAW, 98, 383, 588, 614, 651. Requiring destruction of diseased cow, gee CONSTITUTIONAL LAW, 653. As affecting damages, see DAMAGES, 372- 377. Condonation preventing divorce because of, see DIVORCE AND SEPARATION, 74, 75. Judicial notice as to, see EVIDENCE, 42-44, 51. Communication of, to wife by husband, see EVIDENCE, 503; HUSBAND AND WIFE, 207. Protection against, see HEALTH. Statements as to, in application for insur- ance, see INSURANCE, III. e, 2, b. Death of insured from, see INSURANCE, VI. b, 2, VI. b, 3. Power of legislature to declare existence of, a* nuisance, see LEGISLATURE, 6. Liability of municipality for disease caused by polluted water supply, see MUNICI- PAL CORPORATIONS, 464." Effect of, on question of proximate cause of injury, see PROXIMATE CAUSE, 120. Contagious or infectious disease, see CON- TAGIOUS AND INFECTIOUS DISEASES. DISFIGUREMENT. Mental suffering as element of damages for causing, see DAMAGES, 608. f.e ."' j . ' 'I 1 '-<' -I j-?-,.jt(T DISHERISON DISMISSAL OR DISCONTINUANCE. 931 Sufficiency of evidence to sustain conviction of, see EVIDENCE, 2309. Liability for, see MAYHEM. DISHERISON. See WILLS, III. c. DISHONEST PERSONS. Exclusion of, from railway depots and ware- rooms, see CARKIEBS, 1002, 1013< DISHONOR. Of check by bank, see BANKS, 93-101. Notice of dishonor of note, see BILLS AND NOTES, IV. Of note, what law governs giving notice, see CONFLICT OF LAWS, 22-26. DISINFECTION. Effect of, on landlord's liability for subse- quent contraction of contagious disease, see LANDLORD AND TENANT, 144. 'Jo 10 v j DISINHERITANCE. Of children or heir, see WILLS, III. c. DISINTERMENT. Of corpse, see CORPSE, 10-17. DISMISSAL OR DISCONTINUANCE. Of part suit only, see ACTION OB. SUIT, 119. Of action, without attorney's consent, see ACTION OR SUIT, 4; ATTORNEYS. 76-86. Of appeal, see APPEAL AND ERROR, VI. Of attachment, see ATTACHMENT, III. c. Of action, by attorney, see ATTORNEYS, 38, 44-48; LIMITATION OF ACTIONS, 175. Of case as to alleged agent as election to hold undisclosed principal, see ELEC- TION OF REMEDIES, 4. Of condemnation proceeding, see EMINENT DOMAIN, 149-151. Of prosecution as evidence of want of prob- able cause, see EVIDENCE, 260. Of petition to widen street, see HIGHWAYS, 6. Of pleading, see PLEADING, I. t. Of quo warranto proceedings, see Quo WAR- RANTO, 4. Of cause removed to Federal court, see RE- MOVAL OF CAUSES, 33. Of teacher, see SCHOOLS, II. c. Digest 1-52 L.R.A.CN.S.) On demurrer to petition, see ESTOPPEL, 213. Effect of failure to demur to declaration on right to move to dismiss action, see ABATEMENT AND REVIVAL, 3. Appeal from order refusing to dismiss, see APPEAL AND ERROR, 27. Right to review of, see APPEAL AND ERHOB, 552. Direction of appellate court to dismiss, see APPEAL AND ERROR, 1563, 1576. | Costs on, see COSTS AND FEES, 5. New action in Federal court after voluntary dismissal in state court, see COURTS, 276. Parol evidence as to, where record does not show facts, see EVIDENCE, 1040. Testing right of administrator to sue by motion to dismiss, see EXECUTORS AND ADMINISTRATORS, 31. Conclusiveness of judgment of, see JUDG- MENT, 103-118. Effect of, on running of limitations, see LIMITATION OF ACTIONS, 306, 307. Right to have petition for dismissal set down for hearing on petition and an- swer, see MOTIONS AND ORDERS, 3. Sufficiency of allegations in action to en- join, see PLEADING, 390. 1. An oral motion to dismiss an attach- ment on the ground that no cause of action is set forth in the petition may be made at any time before verdict. Cooney, E. & Co. v. Sweat, 25: 758, 66 S. E. 257, 133 Ga. 511. Voluntary. 2. A statutory proceeding in the nature of the -writ inquirendo de lunatico cannot be dismissed by the petitioner without the consent of the court acting in its discre- tion for the interests of the public and of the person whose sanity is questioned. State ex rel. Paxton v. Guinotte, 51: 1191, 165 S. W. 718, 257 Mo. 1. (Annotated) 3. The fact that a statute of set-offs permits judgment to be taken by the defend- ant for a balance found due him does not preclude the plaintiff from taking a nonsuit, or from dismissing his case at any time be- fore verdict, where the right is not denied by statute, although defendant has interposed a counterclaim entitling him to affirmative re- lief. Huffstutler v. Louisville Packing Co. 15: 340, 45 So. 418, 154 Ala. 291. (Annotated) 4. A written stipulation of both parties to an action, stating that it is dismissed without costs to either party, is effective to dismiss the action without prejudice, under a statute providing that an action may be dismissed by either party upon written con- sent of the other. State Medical Examin- ing Board v. Stewart, n: 557, 89 Pac. 475, 46 Wash. 79. 5. Where proper application is made by a nonresident defendant for the removal of a case from the state court to the United States court, which application is refused by the state court, whose judgment is re- versed on writ of error to the supreme court of the state, the plaintiff cannot dis- miss the case, so as to defeat the removal 932 DISOBEDIENCE; DISORDERLY HOUSES. of the case to the United States court, by an entry of dismissal made by his attorney on the original papers, before the remit- titur from the supreme court Las been form- ally made the judgment of the court from which the case is taken by writ of error. Louisville & N. R. Co. v. Newman, 26: 969, 64 S. E. 541, 132 Ga. 523. 0. The defendant in an action on a note dismissed by the plaintiff before trial, with prejudice, after payment of all legal costs incurred therein, cannot, in the absence of malice, want of probable cause, or bad faith, recover damages in a subsequent ac- tion for loss of time, expenses, or attorney fees incurred by him in preparing for the trial of the dismissed case. John Deere Plow Co. v. Spatz, 20: 492, 99 Pac. 221, 78 Kan. 786. (Annotated) 7. The 'consent of his attorney is not essential to the validity of a dismissal by the client of his cau?e of action in a man- ner provided by a statute providing in what cases causes of action may be dismissed. Gibson v. Nelson, 31: 523, *126 N. W. 731, 111 Minn. 183. 8. The dismissal, upon application by the plaintiff, of his cause of action, is not invalidated because the notice thereof re- quired by statute to be given the adverse party was served upon the defendant in- stead of upon his attorney, notwithstanding a statute providing that all notices shall be served upon the attorney, and not upon the party. Gibson v. Nelson, 31 : 523, 126 N. W. 731, 111 Minn. 183. Involuntary. Of divorce suit, see DIVORCE AND SEPARA- TION, 63. Of action because of plaintiff's failure to I comply with order for additional se- curity for costs, see COSTS AND FEES, 10, 11. Of action because of variance, see EVI- DENCE, 2493. Dismissal without prejudice, see JUDG- MENT, 40. 9. Upon the refusal of the plaintiff to comply with a proper order requiring him to elect as to which of two defendants im- properly joined as such he will proceed against, the court may dismiss the action without prejudice to a future action, under Ohio Rev. Stat. 1906, 5314, subd. 5, em- powering it to do so for disobedience by the plaintiff of an order concerning the pro- ceedings in the action. French v. Central Constr. Co. 12: 669, 81 N. E. 751, 76 Ohio St. 509. 10. An action cannot be dismissed be- cause it is brought by an insane person in his own name, unless th statute so pro- vides. Wiesmann v. Donald, 2: 961, 104 N. W. 916, 125 Wis. 600. (Annotated) 11. It is no ground for dismissal of an action brought by the state against parties claiming to be trustees of a sectarian school, to determine who is entitled to ad- minister the school, that the trustees hav- ing the right to the property are admitted as parties by amendment, and that the state solicitor still remains a party, since the Digest 1-52 L,.R.A.(N.S.) rights of the parties may be adjudicated without the necessity of bringing a new action. State ex rel. Kerr v. Hicks, 33: 529, 70 S. E. 468, 154 N. C. 265. 12. A proceeding in equity for civil con- tempt consisting in doing that which was forbidden by an injunction, where the only remedial relief possible was a line payable to the complainant, must be dismissed with- out prejudice to the power and right of the court granting the injunction to punish for contempt by proper proceedings, where there has been a complete settlement be- tween the parties of all tlie matters in- volved in the original cause. Gompers v. Buck's Stove & Range Co. 34: 874, 31 Sup. Ct. Rep. 492, 221 U. S. 418, 55 L. ed. 797. Of party. Right of one of two joint tort feasors to continuance upon dismissal as to other, see CONTINUANCE AND ADJOURNMENT, 4. Of action as to one of sureties upon redeliv- ery bond, effect on liability of others, see PRINCIPAL AND SURETY, 30. As to unnecessary party, see REMOVAL OF CAUSES, 13. See also CONTRIBUTION AND INDEMNITY, 5. 13. The striking out of an improper party does not work a discontinuance of the case. Shriner v. Craft, 28: 450, 51 So. 884, 166 Ala. 146. 14. One who contracts to perform work for a railroad company cannot compiain that an action against him and the rail- road company for compensation alleged to be due a subcontractor was dismissed in favor of the railroad company, and per- mitted to go to verdict against him alone. Evans v. Oregon & W. R. Co. 28: 455, 108 Pac. 1095, 58 Wash. 429. 15. The discontinuance as to some of the defendants of an action against several joint tort feasors has no effect upon the liability of the others. Matheson v. O'Kane, 39= 475, 97 N. E. 638, 211 Mass. 91. 16. A railroad company sued jointly with a chair car company for damages for negligently carrying a passenger past his station cannot complain that the action is dismissed in favor of the latter, and al- lowed to proceed against it alone, since it cannot escape its own liability because an- other, also liable, is allowed to go free. Yazoo & M. V. R. Co. v. Hardie, 34: 740, 55 So. 42, 100 Miss. 132. DISOBEDIENCE. As a contempt, see CONTEMPT, I. c. Of servant, see MASTER AND SERVANT, II. d. As ground for revoking agency, see PRINCI- PAL AND AGENT, 16. ' t (M)|j!t')(J JO *~^- DISORDERLY HOUSES. Vested right to use property in connection with, see CONSTITUTIONAL LAW, 51. DISORDERLY PERSONS DISSATISFACTION. 933 Constitutionality of statute authorizing seizure and forfeiture of property used in, see CONSTITUTIONAL LAW, 51, 749. Making general reputation prima facie evi- dence of character of, see CONSTITU- TIONAL LAW, 621. Insurance on property used in, see CON- TRACTS, 444; INSURANCE, 92. Validity of lease of premises for purposes of, see CONTRACTS, 492. Former jeopardy, see CRIMINAL LAW, 217. Evidence as to general reputation as to, see EVIDENCE, 1278. Proof required on part of person claiming personalty used in maintaining, see EVIDENCE, 2198. Sufficiency of proof to support conviction for maintaining, see EVIDENCE, 2411- 2413. Time as essential element of offense of keep- ing, see EVIDENCE, 2507. Indictment for, see INDICTMENT, etc., 128. Injunction against, see INJUNCTION, 411; NUISANCES, 95, 96, 178, 180. Libel in charging house as being, see LIBEL AND SLANDER, 26-28, 91. Libel in charging misconduct by occupants of dwelling, see LIBEL AND SLANDER, 133. Laches as bar to proceedings to abate, see LIMITATION OF ACTIONS, 66. Who may maintain bill to suppress, see NUISANCES, 82. Right of police to patrol approach to court occupied by, see PUBLIC WAY. Correctness of instruction in prosecution for keeping, see TRIAL, 1081. 1 . A section of a statute relating to the forfeiture of property found in a bawdy- house, which applies only to a defendant convicted in an inferior court, does not con- cern defendant property owners, in a civil action alone. State ex rel. Robertson v. Lane, 52: 932, 147 N. W. 951, 126 Minn. 78. 2. A lessor who has no notice at the time of the lease that the lessee is of bad character or intends to use the property as a house of prostitution cannot, merely because he receives notice during the ten- ancy that the house is being used for that purpose, be convicted of the offense of main- taining a disorderly house if he does not aid or abet the lessee in so doing. Blocker v. Com. 44: 859, 155 S. W. 723, 153 Ky. 304. (Annotated) 3. Members of a city council who pass an ordinance providing for the licensing of bawdyhouses do not become participants in the keeping of houses kept under the reso- lution, so as to render themselves liable to punishment as such keepers. State v. Lis- more, 29: 721, 126 S. W. 855, 94 Ark. 211. (Annotated) "What are. 4. A place where loans at usurious interest are habitually made is a disorderly place, when the taking of usury is made unlawful by statute. State v. Martin (N. J. Err. & App.) 24: 507, 73 Atl. 548, 77 N. J. L. 652. (Annotated) 5. A house in which money is habitual- Digest 1-52 L.R.A.(N.S.) ly lent at usurious rates cannot be con- sidered a disorderly house, where the stat- utes of the state merely provide that all contracts for loans at a greater than the legal rate of interest shall be void as to the excess, without prescribing a penalty for exacting usurious interest. Com. v. Mutual Loan & T. Co. 50: 1171, 160 S. W. 1042, 156 Ky. 299. 6. A private club, admission to which is accessible to members only, is not a dis- orderly house because liquors are sold there in violation of a municipal ordinance. Mos- man v. Fort Collins, n: 842, 90 Pac. 605, 40 Colo. 270. 7. The keeping of a disorderly house by a man of good character who has been a tavern keeper for thirty years is not shown by the fact that a few negroes congregated about his place, that drunken people have been seen on a neighboring highway, and that in two cases liquor had been sold to minors. Schneider v. Com. 20:107, 111 S. W. 303, 33 Ky. L. Rep. 770. DISORDERLY PERSONS. As to breach of peace, see BREACH OF PEACE. Refusal of carriers to transport, see CAR- RIERS, 40. As to disorderly house, see DISORDERLY HOUSES. DISPLAY CARDS. Right of action for interference with mer- chant's display cards, see CASE, 20, 29. -61(1 ?!*. ry.'O-.Mi! I DISPOSAL. Effect of power of, given by will, see WILLS, 220-229. DISQUALIFICATION. To act as executor, see EXECUTORS AND ADMINISTRATORS, 1-16. Restraining suit before justice of the peace for, see INJUNCTION, 246. Of judge, see JUDGES, III. DISSATISFACTION. Right to discharge servant when dissatis- fied, see MASTER AND SERVANT, 108-110. Agent's authority to take back goods be- cause of customer's dissatisfaction, see PRINCIPAL AND AGENT, 39. 934 DISSEISIN DISTRICT AND PROSECUTING ATTORNEYS. DISSEISIN. See ADVERSE POSSESSION. DISSOLUTION. Of attachment, see ATTACHMENT, III. c. Of benevolent societies, see BENEVOLENT SOCIETIES, V. Of corporation, see CORPORATIONS, VI. Of injunction, see INJUNCTION, 418-422. Of insurance company, see INSURANCE, I. c. Of municipality, see MUNICIPAL CORPORA- TIONS, I. c. Of partnership, see PARTNERSHIP, VI. DISTANCE. Judicial notice of distance between two municipalities, see EVIDENCE, 17. DISTINGUISHING MARKS. On ballot, see ELECTIONS, III. b, 3. DISTRESS. For rent, see LANDLORD AND TENANT, III. ; d. 3. DISTRIBUTION. Of decedent's estate, see DESCENT AND DIS- TRIBUTION; EXECUTORS AND ADMINIS- TRATORS, IV. c. Of insolvent estate, see INSOLVENCY, V. Of assets of insurance company, see INSUR- ANCE, 30. DISTRICT AND PROSECUTING ATTORNEYS. Error in appointment of assistant prosecu- tor, see APPEAL AND ERROR, 1479. Agreement between law partners one of whom is prosecuting attorney, to divide salary of office, see ASSIGNMENT, 9; CONTRACTS, 437. As to attorney general, see ATTORNEY GEN- ERAL. Ratification of irregular employment of de- tective by county attorney, see COUN- TIES, 34. Right of county prosecuting attorney to be present in grand jury room, see GRAND JURY, 3. Injunction at suit of county attorney, see INJUNCTION, 310. Digest 1-52 L.R.A.(N.S.) Right of prosecuting attorney to maintain action on injunction bond, see INJUNC- TION, 431. Mandamus to, see MANDAMUS, 30. Eligibility of candidate for office of county attorney, see OFFICERS, 9. Abolishing offices of county attorney, see OFFICERS, 53. Removal of county attorney by governor, see OFFICERS, 66. Action by county attorney, see PARTIES. Duty to allow petition for quo warranto, see Quo WARRANTO, 7, 12, 14. Plurality of subjects in act creating office of, and prescribing fees, see STATUTES, 145. Right of prosecuting attorney to testify that no inducement was offered witness to testify against accused, see WIT- NESSES. 197. 1. The prosecuting attorney of a coun- ty has authority, independent of the at- torney general, to institute and prosecute all criminal actions and proceedings cogniz- able in the courts of his county, but has no such power or authority respecting the prosecution of civil proceedings on the part of the state, beyond that expressly con- ferred by statute. State v. Ehrlick, 23: 691, 64 S. E. 935, 65 W. Va. 700. Private counsel assisting. See also APPEAL AND ERROR, 362. 2. An order made by a court at the opening of a trial for homicide, that an at- torney employed by private parties be "per- mitted" to assist the county attorney, is not a compliance with a statutory provision that in the trial of a felony the county at- torney may, under the direction of the dis- trict court, appoint such assistants as he may deem necessary. McKay v. State, 39: 714, 132 N. W. 741, 90 Neb. 63, 135 N. W. 1024, 91 Neb. 281. 3. Under a statute making it the of a county attorney to prosecute and d;- fend on behalf of the state and county all actions civil or criminal, and containing the further provision that in the trial of a person charged with felony the county at- torney may, under the direction of the dis- trict court, appoint such assistants as he may deem necessary, it is error to allow an attorney employed by private parties to participate in the trial of a person charged with felony, without any appointment from the county attorney under direction of the district court. McKay v. State, 39: 714, 132 N. W. 741. 90 Neb. 63, 135 N. W. 1024, 91 Neb. 281. Compensation. 4. A statute fixing the fees of the prosecuting officers in counties having a certain population within the state is not invalid under a constitutional provision re- quiring such laws to be uniform in their operation. Wiles v. Williams, 34: 1060, 133 S. W. 1, 232 Mo. 56. 5. An attorney acting as special prose- cutor for the state by appointment of court, in the absence of the public prosecutor, can- not recover compensation from individuals for his services, although he acted at their DISTRICTS DIVORCE AND SEPARATION. 935 request and they expressly promised to pay him. Coggeshall v. Conner, 39: 81, 120 Pac. 559, 31 Okla. 113. (Annotated) DISTRICTS. Of Federal courts, see COURTS, III. i. Public improvement district, see PUBLIC IMPROVEMENTS, 11. DISTURBING MEETING. 1. It is a misdemeanor at common law wantonly to disturb an assembly of per- sons met together for any lawful purpose, such as the enjoyment of a Christmas tree, and this law is not changed by a statute providing for the punishment of anyone who shall disturb a meeting for religious, edu- cational, or literary purposes, or for the promotion of temperance. State v. Wat- kins, 30: 829, 130 S. W. 839, 123 Tenn. 502. ( Annotated ) 2. A "religious meeting" is an as- semblage of people met for the purpose of performing acts of adoration to the Su- preme Being, or to perform religious serv- ices in recognition of God as an object of worship, love, and obedience; it matters not the faith with respect to the Deity entertained by the persons so assembled. Cline v. State, 45: 108, 130 Pac. 510, 9 Okla. Crim. Rep. 40. 3. The fact that no former prayer was offered at a Christmas festival does not preclude its being regarded as a religious meeting within the meaning of a statute relating to the disturbance of such meet- ings, especially where there is every reason to believe that, but for the conduct of the person accused of such disturbance, such prayer would have been offered. Cline v. State, 45: 1 08, 130 Pac. 510, 9 Okla. Crim. Rep. 40. (Annotated) DITCH. Quieting title to ditch across another's land, see CLOUD ON TITLE, 21. Easement in, see EASEMENTS, 2, 37, 72. Estoppel to dam up drainage ditch, see ES- TOPPEL, 231. Failure to guard ditch passing under side- walk, see HIGHWAYS, 226. Injunction against interference with, see INJUNCTION, 216. Joint liability for nuisance resulting from, see JOINT CREDITORS AND DEBTORS, 18. Injury to child falling into ditch filled with hot water, see NEGLIGENCE, 176. Easements for water ditch, see WATERS, 251. Liability for injury by seepage or discharge from, see WATERS, 303-309. In general, see DRAINS AND SEWERS. Digest 1-52 I,.R.A.(N.S.) DITCH COMPANY. Right to sue without joining consumers as parties, see PARTIES, 149. DIVERSE CITIZENSHIP. As ground for jurisdiction, see COURTS, III. d. Removal of action in case of, see REMOVAL of CAUSES, I. b. DIVERSION. Of freight, order for, see CARRIERS, 744, 822. Of property dedicated, see DEDICATION, 17- 19. Of water, injunction against, see INJUNC- TION, 229-232. Of water, generally, see MUNICIPAL COR- PORATIONS, 447J 448 ; WATERS, II. c. Of surface water, municipal liability for, see MUNICIPAL CORPORATIONS, 452, 453. Of public funds, see PUBLIC MONEY, II. b. Of property of religious society to purposes foreign to trust, see RELIGIOUS SOCIE- TIES, 5, 9. Of water beyond confines of .sL; 1 .-. see WAT- ERS, 40, 44. DIVIDEND ADDITIONS. Use of, to pay premiums, see INSUBANCE, 172, 173. DIVIDENDS. On corporate stock generally, see CORPORA- TIONS, V. e, 4. Validity of contract as to, see CONTRACTS, 577. On stocks and bonds as assets, see EXECU- TORS AND ADMINISTRATORS, 83. Relative rights of life tenant and remainder- men as to, see LIFE TENANTS, II. b. DIVISION FENCES. See FENCES, II. DIVORCE AND SEPARATION. /. In general. II. The suit and jurisdiction thereof, 1-17. III. Grounds, 18-61. a. Cruelty; ill treatment, 18 37. ft. Desertion, 3851. 936 DIVORCE AND SEPARATION, I., II. ///. continued. c. Drunkenness ; use of mor- phine, 52, 53. d. Imprisonment; miscella- neous, 5461. IV. Defenses; connivance; recrim- ination, 6218. V. Alimony, 79127. a. In general, 7995. b. Temporary alimony; suit money, 961O6. c. Permanent allowance, 1O7 123. d. Subsequent change, 124 127. VI. Other property rights, 128143. VII. Custody and support of children, 144-158. VIII. Agreements for support and maintenance, 159168. a. In general, 159162. b. Validity of, 163-168. What reviewable on appeal from decree, see APPEAL AND EBROB, 492. Advertising for divorce business as ground for disbarment, see ATTORNEYS, 22, 26. Disbarment of attorney bringing second suit for, without disclosing facts to court, see ATTORNEYS, 23, 27. Compensation to attorney in suit for, see ATTORNEYS, 50, 58. Agreement not to apply for, as sufficient consideration for postnuptial settle- ment, see BANKRUPTCY, 58. Validity of note given in consideration of services in procuring, see BILLS AND NOTES, 17. Liability on bond of sheriff for false return of service, see BONDS, 64. Champertous contract with attorney as to compensation in suit for, see CHAMPER- TY AND MAINTENANCE, 6. Remarriage of divorced person, see CONFLICT OF LAWS, 73-77; CONTEMPT, 28; IN- JUNCTION, 167; MARRIAGE, 17-21, 25. Conflict of laws as to, see CONFLICT OF LAWS, 79-82. Change of beneficiary of insurance in case of, see CONSTITUTIONAL LAW, 63. Contempt in refusing to pay judgment, see CONTEMPT, 13. Contempt in violating order against re- moving or disposing of property, see CONTEMPT, 13. Public policy as to contract to induce wife living separate from her husband to return to him, see CONTRACTS, 431. Validity of contract for services in procur- ing, see CONTRACTS, 479. Recovery on quantum meruit for securing, see CONTRACTS, 613. Status of child begotten after the divorce of its parents, see DEATH, 7. Effect of divorce on domicil of children, see DOMICIL, 2, 3. Suit by divorced wife for partition of prop- erty alleged to be community property, see ESTOPPEL, 106. Presumption and burden of proof aa to fact of, see EVIDENCE, 150, 151. Digest 1-52 L.R.A. (N.S.) Presumption as to foreign law in regard to, see EVIDENCE, 80. Burden of proof as to fraud in conveyance on day suit commenced, see EVIDENCE, 660. Judgment of, as evidence, see KVIDKXCE, 762. Effect of, to relieve husband from duty to maintain wife, see HUSBAND AND \\ IFE, 10. Effect of, on right of action for alienation of wife's affections before decree was granted, see HUSBAND AND WIFE, 162, 163. Right of wife to reach husband's assets after decree for separate maintenance, see HUSBAND AND WIFE, 164, 16.3. Effect of, on necessity of joining father in action by mother for abduction of child, see HUSBAND AND WIFE, 169. Effect of, on wife's right to sue hut-band, see HUSBAND AND WIFE, 205. Against incompetent, suit by guardian ad litem to set aside, see INCOMPETENT PERSONS, 28. Effect of, on right to change beneficiary of policy payable to wife, see INSURANCE, 475-477. Mandamus in aid of suit to set aside decree for, against insane person, see MANDA- MUS, 22. Validity of divorce according to Indian custom, see MARRIAGE, 7. Effect of redemption by wife of land of hus- band sold on foreclosure, where parties were subsequently divorced, see MORT- GAGE, 172. Seduction of divorced woman, see SEDUC- TION, 5. Sequestration of husband's effects, see SE- QUESTRATION. Question for jury as to, see TRIAL, 230. I. In general. (See same flooding in Digest L.R.A. l-"iO.) II. The suit and jurisdiction thereof. (See also same heading in Digest L.R.A. 1-10.) Independent suit for alimony, see infra, 11- 15, 81, 83-93, 96. Abatement of suit by pendency of other suit, see ABATEMENT AND REVIVAL, 25. Multifariousness of bill for, see ACTION OR SUIT, 124. Review of finding in action for, see APPEAL AND ERROR, 983-990. Admission of incompetent evidence as to sanity of defendant in suit, see APPEAL AND ERROR, 1115. Dismissal of appeal from decree as punish- ment for contempt, see CONTEMPT, 105. Promise to discontinue proceeding for, as consideration for contract, see CON- TRACTS, 121. Stipulation as to damages in agreement to convey property to wife in considera- tion of discontinuance of divorce pro- ceedings, see DAMAGES, 222. DIVORCE AND SEPARATION, II. 937 Retaining petition for annulment of mar- riage as statutory proceeding for di- vorce, see EQUITY, 117. Estoppel to attack decree for, see ESTOPPEL, 135, 136. Estoppel to maintain second suit for di- vorce, see ESTOPPEL, 45. Judicial notice in second proceeding of facts proved at first hearing, see EVIDENCE, 6. Admissibility, in wife's suit for divorce, of statements by husband, for whom ap- pointment of guardian is sought, as to her adultery, see EVIDENCE, 1311. Admissibility of confession of adultery, see EVIDENCE, 1230. Evidence of communications between di- vorced couple, see EVIDENCE, 1317, 1318. Admissibility of evidence upon issue of right to, see EVIDENCE, 1845. For prenuptial incontinence, evidence to show, see EVIDENCE, 1964. Sufficiency of evidence in action for, see EVIDENCE, 2205-2209. Power of married woman to employ attor- ney to begin or defend action for, see HUSBAND AND WIFE, 37. Estoppel by commencing suit for, to deny husband's death before commencement, see INSURANCE, 481. Collateral attack on decree, see JUDGMENT, II. c, 2, b. C'onclusiveness of judgment, see JUDGMENT, II. d, 3. Conclusiveness of decree pro confesso, see JUDGMENT, 74. Conclusiveness of decree dismissing bill for, see JUDGMENT, 112. Decree rendered in other state see JUDG- MENT, IV. b, 2. Vacating decree for lack of jurisdiction, see JUDGMENT, 391. Vacation of decree because of insufficiency of evidence, see JUDGMENT, 340. Vacation of decree because of duress, see JUDGMENT, 342. Collusion as ground for vacating decree, see JUDGMENT, 341. Fraud or perjury as ground for relief against divorce decree, see JUDGMENT, 372-379. Time for seeking relief from decree, see JUDGMENT, 397. Right to vacate decree after death of party, see JUDGMENT, 327-329*, 375, 376. Plaintiff suing for, under full name, see XAME, 3. Insanity of defendant as ground for new trial, see NEW TRIAL, 6. New trial for newly discovered evidence, see NEW TRIAL, 68. Perjury in suit for, see PERJURY, 12. Verification of petition for, see PLEADING, ]<3, 17. Pleading in, see PLEADING, 166, 167, 424- 426. Cross bill for, see PLEADING, 542. Reference in suit for divorce, see REFER- ENCE, 10. Sufficiency of service of process, see WRIT AND PROCESS, 17, 21, 22, 73. 1. Courts in respect to divorce and ali- Digest 1-52 L.R.A.(N.S.) mony have only such jurisdiction as is con- ferred by statute. State ex rel. Hargert v. Templeton, 25: 234, 123 N. W. 283, 18 N. D. 525. 2. In a suit for divorce, although the complainant and defendant only are nominal parties thereto, the government in a sense is also a party whose duty it is to see that public morals and the welfare of the entire community are protected. Hancock v. Han- ccck, 15: 670, 45 So. 1020, 55 Fla. 680. 3. Either party to a divorce proceeding who has asked for a divorce may withdraw the demand at any time before the decree is entered, and after such withdrawal the court has no authority to grant a divorce in his or her favor. Milliman v. Milliman, 22: 999, 101 Pac. 58, 45 Colo. 291. (Annotated) 4. It is the duty of the court to refuse a decree of divorce unless satisfied of the sufficiency of the allegations, as also of the truth of the evidence, to establish one of the statutory grounds for divorce. Han- cock v. Hancock, 15: 670, 45 So. 1020, 55 Fla. 680. 5. If service of the petition and process in an action for a total divorce is not law- fully perfected on the defendant, it is error for the court, over his objection duly made, to proceed to hear an application for tempo- rary alimony and the appointment of a re- ceiver for his property, and to make the appointment and direct that a certain amount be paid by the receiver to the plain- tiff monthly, and a specified amount to her attorneys for filing the application for tem- porary alimony and prosecuting it, and to authorize the receivership to be dissolved on the giving of bond by the defendant for the payment of the temporary alimony and fees. Stallings v. Stallings, 9: 593, 56 S. E. 469, 127 Ga. 464. 6. The courts of the state of the mat- rimonial domicil have jurisdiction of a suit for divorce, although the defendant is out of the jurisdiction, and service of process is made upon him by publication only. State ex rel. Aldrach v. Morse, 7: 1127, 87 Pac. 705, 31 Utah, 213. (Annotated) 7. Where the plaintiff in a suit for di- vorce has been actually and in good faith domiciled in the state where the suit is brought, for one year next preceding the bringing of the suit, it is no valid reason against granting the relief that the origi- nal marriage -status was in another state, or that the cause for which the divorce is sought arose outside of the state, or that the defendant is a nonresident and only constructively notified. Carty v. Cartv, 38: 297, 73 S. E/310, 70 W. Va. '146. Residence of plaintiff for jurisdic- tional purposes. Effect of appearance to remedy failure to allege necessary residence, see APPEAR- ANCE, 18. Vacation of judgment for fraud as to resi- dence of plaintiff, see JUDGMENT, 377. Amendment of complaint so as to allege necessary residence, see PLEADING, 126. Pleading as to, see PLEADING, 166, 167. 938 DIVORCE AND SEPARTION, III. a. Who may question constitutionality of stat- ute as to, see STATUTES, 32. Partial invalidity of statute as to, see STAT- UTES, 66. 8. The statutory requirements of resi- dence to entitle one to maintain a suit for divorce do not apply to equitable actions for maintenance. State ex rel. Lloyd v. Superior Court, 25: 387, 104 Pac. 771, 55 Wash. 347. 9. A state is not prevented by the Fed- eral Constitution from fixing the time of residence of one coming into it befbre, he can commence an action for divorce in its courts. Pugh v. Pugh, 32: 954, 124 N. W. 959, 25 S. D. 7. 10. Intention by one removing with all his effects from a town which is not his domicil of origin, to retain his residence there, is not sufficient to effect that result for the purpose of conferring jurisdiction of a divorce proceeding, if he has in that place neither property nor home nor place to which he has a right to return. Turner v. Turner, 47: 505, 88 Atl. 3, 87 Vt. 65. 11. A husband and wife lived together in the state within the meaning of a stat- ute making that fact a prerequisite to ju- risdiction of the state courts over a divorce proceeding, where they came into the state with the intention of making their home there, and after remaining a few days look- ing for apartments selected one and sent their belongings there, although before tak- ing up a residence in the apartment, the husband left the state on business and never returned. Winans v. Winans, 28: 992, 91 N. E. 394, 205 Mass. 388. 12. A married woman is an "actual resi- dent" of the state of Minnesota, within the meaning of Minn. Rev. Laws 1905, 3597, and may maintain an action for a limited divorce, if she has a legal domicil or estab- lished residence in the state, as distinguished from a temporary abode. Bechtel v. Bechtel, 12: noo, 112 N. W. 883, 101 Minn. 511. 13. A wife compelled by her husband, under threat of withdrawing all allowance for her support, to remove from the state of Minnesota to another state, and who complies with his command, but without in- tention of abandoning her home in the state of Minnesota, is an "actual resident" there- in, within the meaning of Minn. Rev. Laws 1905, 3597, providing that a married woman who is an actual resident of the state may maintain an action therein for a limited divorce. Bechtel v. Bechtel, 12: iioo, 112 N. W. 883, 101 Minn. 511. (Annotated) 14. A man cannot change the matrimo- nial domicil by abandoning his wife and go- ing into another state to reside. State ex rel. Aldrach v. Morse, 7: 1127, 87 Pac. 705, 31 Utah, 213. 15. A wife who has separated from her husband and gone to the home of a relative to live, with the intention of making it her home, establishes there a residence so as to give the courts of the county jurisdiction of a suit bv her for divorce. McClintock v. Digest 1-52 L.R.A.(N.S.) McClintock, 39: 1127, 144 S. W. 68, 147 Ky, 409. 1C. A woman cannot, by leaving her husband and removing to another state be- cause there had been a few quarrels be- tween them over property, without violence or mental distress which would destroy I her health, acquire "an actual bona fide residence" there, within the meaning of the statutes of the state conferring juris- ', diction in divorce cases. Sneed v. Sneed, 40: 99, 123 Pac. 312, 14 Ariz. 17. 17. A wife deserted by her husband with- out cause, at the marital domicil in one state, may acquire in good faith a sepa- rate domicil in another state, and obtain a divorce under its laws on the ground of desertion, though the husband is a nonresi- dent and is only constructively served by publication. Carty v. Carty, 38: 297, 73 S. E. 310, 70 W. Va. 146. (Annotated) III. Grounds, a. Cruelty; ill treatment. (See also same heading in Digest L.R.A. 1-70.) Defense to action for divorce because of, see infra, 68. Condonation as defense, see infra, 76. Presumption that trial court inferred bodily harm, see APPEAL AND ERROR, 442. Review on appeal of findings as to mental suffering, see APPEAL AND ERROR, 983. Necessity of corroboration of testimony of plaintiff as to infliction of mental suffering, see EVIDENCE, 2207. Sufficiency of allegations as to cruelty, see PLEADING!, 424. 18. Unjustifiable conduct on the part of husband or wife which utterly destroys the legitimate ends and objects of matrimony may constitute extreme cruelty, justifying a divorce. Miller v. Miller, 34: 360, 131 N. W. 203, 89 Neb. 239. 19. Incompatibility of tastes of temper- ament, or estrangement produced by differ- ences of opinion growing out of the adminis- tration of household affairs, when not ac- companied by physical violence, and when it will not, by operating through the mental faculties, produce injury to the physical system, does not constitute extreme cruel- ty sufficient to warrant the granting of an absolute divorce therefor. Barker v. Bark- er, 26: 909, 105 Pac. 347, 25 Okla. 48. 20. Divorce on the ground of extreme cruelty will be denied where there is no ac- tual violence, unless the treatment or abuse or neglect or bad conduct complained of is such as damages health or renders cohabi- tation intolerable or unsafe, or unless there are threats of mistreatment of such flagrant kind as to cause reasonable and abiding ap- prehension of bodily violence, so as to ren- der it impracticable to discharge marital duties. Hancock v. Hancock, 15: 670, 45 So. 1020, 55 Fla. 680. DIVORCE AND SEPARATION, 111. a. 939 21. Actual violence, to constitute ground for divorce, must be attended with danger to life, limb, or health, or be such as to cause reasonable apprehension of such dan- ger. Huff v. Huff, 51: 282, 80 S. E. 846, 73 W. Va. 330. 22. Violence and assault are not neces- sary to bring a case within a statute per- mitting a divorce for cruel and inhuman treatment, such treatment being sufficient as indicates a settled aversion to the wife, sufficient permanently to destroy her peace and happiness. Eooe v. Hooe, 5: 729, 92 S. W. 317, 122 Ky. 590. 23. Under a statute permitting the court to grant a separation for such cause as, in its discretion, it may deem sufficient, one may be granted, with separate maintenance. to a wife whose husband has treated her with indifference and neglect, and said and done things in the presence of strangers to annoy and humiliate her, has exhibited rage towards her without cause, and told her they must separate, the effect of which has been to make her ill. McClintock v. Mc- Clintock, 39: 1127, 144 S. W. 68, 147 Ky. 409. 24. The conduct of a husband in com- pelling his wife to remove to another state and remain there, under threat of with- drawing all allowance for her support, cou- pled with other slights and acts of ill treat- ment, leading up to her expulsion from the state, entitles her to a limited divorce, al- though his conduct has not impaired her health. Bechtel v. Bechtel, 12: noo, 112 N. W. 883, 101 Minn. 511. 25. A divorce will not be granted for nonsupport or extreme cruelty, because an out-door laborer earning $35 a month con- sumes a portion of it for liquor and cigars, paying only the grocery, meat, and coal bills, and when he reaches home after his work prefers to read or go to bed rather than to talk to his wife, or take her out to entertainments or to visit friends. Bow- en v. Bowen, 51:460, 146 N. W. 271, 179 Mich. 574. (Annotated) 26. That a wife united with a religious sect, and thereafter, in accordance with the tenets thereof, refused to accord her hus- band marital rights; that she became en- raged at his refusal to submit all their property to such religious society; and that she constantly chided him for his sinfulness, and sought to estrange his children from him by maligning and abusing him in their presence, is not sufficient to authorize a divorce for extreme cruelty of the wife, since, to warrant a divorce therefor, the conduct must be such as will endanger life or health, or will cause a reasonable appre- hension of bodily harm, and, while the in- jury may be mental, it must be such as to render it impracticable for the complainant to discharge marital duties with reasonable safety; mere inconvenience, unhappiness, or incompatibility of temperament or disposi- tion, rendering the marital relation dis- agreeable and burdensome, not being suffi- cient. Prall v. Prall, 26: 577, 50 So. 867, 58 J Fla. 496. Digest 1-52 L.R.A.(N.S.) Charges of adultery or bad char- acter. See also infra, 34. 27. The mere fact that a husband and wife are living apart when false charges of adultery are wantonly made by one spouse against the other does not, of itself, prevent such charges from constituting ex- treme cruelty, which will justify a divorce; the fact of separation being relevant and important only as it may aid in determin- ing the question whether such charges caused great mental suffering in the part of the spouse wantonly and falsely accused. Miller v. Miller, 34: 360, 131 N. W. 203, 89 Neb. 239. (Annotated) 28. Charging one's wife with adultery, without reasonable or probable cause, is not intolerable severity, within the meaning of a statute permitting a divorce on that ground, although it causes her much mental suffering, where it does not cause her bodily harm or reasonable apprehension of it. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. (Annotated) 29. Statements or insinuations made by a husband, reflecting upon the conduct or character of his wife, do not constitute a ground for divorce, where they are caused by the wife's improprieties and indiscretions. Mosher v. Mosher, 12: 820, 113 N. W. 99, 16 N. D. 269. 30. A single false charge by affidavit by a wife to a fraternal order of which her husband is a member, for the purpose of lowering him in the estimation of his asso- ciates, to the effect that he is a drunkard, a lewd and dissolute person, unfit to be a member of any fraternal organization, and that he had admitted that were it not for his parents he would adopt the method of living on the earnings of a prostitute with whom he had consorted after marriage, may cause grievous mental pain and suffering within the meaning of a statute permitting a divorce for such cause. MacDonald v. MacDonald, 25: 45, 102 Pac. 927, 155 Cal. 665. Bringing another woman into home. 31. Cruel and inhuman treatment, en- titling a wife to divorce, is shown by her husband's bringing another woman into the home, and exhibiting towards her marked attention and signs of affection, telling her of his love in the presence of his wife, and informing his wife that he no longer cares for her, cannot stand it to live with her, and is going to leave her, in conse- quence of which the wife's health becomes seriously affected. Craig v. Craig, 2: 669, 105 N. W. 446, 129 Iowa, 192. (Annotated) 32. To introduce into the bedroom of an invalid wife a loose woman in an almost nude condition, coupled with lewd behavior, constitutes extreme cruelty, under the di- vorce law. Hooker v. Hooker, 43: 964, 61 So. 121, 65 Fla. 53. (Annotated) Profane and obscene language. 33. The habitual use of profane language and the telling of obscene stories by a wife to her husband and to third parties in his presence and against his wishes, are 940 DIVORCE AND SEPARATION, III. b. ground for divorce in North Dakota, where it appears that the mental and other char- acteristics of the husband are such that this course of conduct on the part of the wife causes him humiliation and grievous mental suffering. Mosher v. Mosher, 12: 820, 113 N. W. 99, 16 N. D. 269. (Annotated) 34. Calling a wife vile names, and accus- ing her of infidelity, are within the opera- tion of a statute allowing a divorce for nersonal indignities rendering life burden- some. Page v. Page, 6: 914, 86 Pac. 582, 43 Wash. 293. Fault finding; threats. See also supra, 24. 35. A continuous course of fault finding, threats, and other acts, intended to ag- gravate and annoy the other party to a marriage, though each act is trifling in it- self, may cause such a degree of mental suf- fering as to constitute a ground for di- vorce on the charge of extreme cruelty. Mosher v. Mosher, 12: 820, 113 N. W. 99. 16 N. D. 269. Failure to provide for wife. See also supra, 25. 36. Where a husband, having sufficient ability, without just cause, fails and abso- lutely refuses to contribute anything to the support of his wife, the court may grant a decree of divorce. Svanda v. Svanda, 47: 666, 140 N. W. 777, 93 Neb. 404. 37. A man's failure to furnish support to his wife for a period of years, because of inability to secure profitable employment, is not within a statute allowing a divorce for wanton and cruel neglect and failure to furnish her with support. Carson v. Carson, 43: 255, 138 N. W. 1076, 173 Mich. 452. (Annotated) ft. Desertion. MfV (See also same heading in Digest L.R.A.. 1-10.) Nonsupport, see supra, 25, 36, 37. Defense to action on ground of, eee infra, 69-71. 38. Voluntary separation does not amount to "desertion," nor can desertion be inferred from the mere fact that the parties do not live together. Freeman v. Freeman (N. J. Err. & App.) 49: 1042, 88 Atl. 1071, 82 N. J. Eq. 360. 39. Under Cobbey's (Neb.) Stat. 3907, 5328, declaring it to be a ground for di- vorce "where either party wilfully aban- dons the other without just cause for a pe- riod of two years," not only must the act of desertion or abandonment be wilful, but it must be wilfully continued for a period of two years. Kirkpatrick v. Kirkpatrick, 16: 1071, 116 N. W. 499, 81 Neb. 627. 40. Under the New Jersey statute the desertion of one spouse by another is justi- fied only when the deserting party has been BO offended against as to authorize, at his or her instance, a decree of divorce or ju- dicial separation, and the guilt of the of- Digest 1-52 I,.R.A.(N.S.) I fending party must appear by clear and satisfactory proof. Rogers v. Rogers (N. i J. Err. & App.) 46: 711, 86 Atl. 935, 81 N. J. Eq. 479. 41. Although it is ordinarily the duty of a husband who has been deserted by his wife to make proper approaches to her and sincere efforts to induce her to return to him, where it is apparent that such ap- proaches and efforts would he entirely fu- tile, no such duty devolves upon him. Rogers v. Rogers (N. J. Err. & App.) 46: 711, 86 Atl. 935, 81 N. J. Eq. 479. 42. Where a wife deserts her husband, and refuses to return to him unless he ac- cedes to the imposition of unlawful and un- reasonable conditions, removes her furni- ture from his house, and brings a suit for alimony, such wilful, continued, and obsti- nate desertion is shown as excuses the hus- band from making approaches to her in an effort to induce her to return to him. Rogers v. Rogers (N. J. Err. & App.) 46: 711, 86 Atl. 935, 81 N. J. Eq. 479. 43. The mere fact of a failure to provide sufficient support for a wife does not con- stitute desertion by the husband under the New Jersey desertion statute. Rogers v. Rogers (N. J. Err. & App.) 46: 711, 86 Atl. 935, 81 N. J. Eq. 479. 44. Desertion which will warrant a di- vorce is not shown where an aged man who has lost hia property and is no longer able to work to support his wife loaves her, with her consent, for the purpose of securing a home with his relatives. Lewis v. Lewis, 52: 675, 141 Pac. 367, 167 Cal. 732. 45. Abandonment is not a ground for di- vorce under Cobbey's (Neb.) Stat. 1907, 5328, authorizing a divorce "where either party wilfully abandons the other without just cause for a period of two years," when the offending party remained sane for less than two years after the abandonment; nor does a cause of action for divorce accrue to the injured party until the lapse of two years exclusive of the time during which the offending party remained insane. Kirk- patrick v. Kirkpatrick, 16: 1071, 116 N. W. 499, 81 Neb. 627. (Annotated) 46. A husband who leaves his home, after being twice ordered therefrom, be- cause of the wife's long-continued abuse, attempts to take his life, and refusal to continue the marital relation, under cir- cumstances showing that further effort to induce her to live with him would have been unavailing, and perhaps would have caused her to take his life, is entitled to a divorce on the ground of wilful and ob- stinate desertion. Hudson v. Hudson, 29: 614, 51 So. 857, 59 Fla. 529. (Annotated) 47. The essence of a wilful, obstinate de- sertion by a wife consists in her refusing to live with her husband when he does his marital duty, and wants her to live with him. Hill v. Hill, 39: 1117, 56 So. 941, 62 Fla. 493. 48. Where a very young wife, without her husband's consent, goes to her parents' home, and soon thereafter the first child of the couple is born at her parents' home, and DIVORCE AND SEPARATION, III. c, d. 941 the husband makes no proper effort in the discharge of his duty to the wife and child, and the wife and child remain with her parents, he is not entitled to a divorce on the statutory ground of a wilful, obstinate desertion by his wife. Hill v. Hill, 39: 1117, 56 So. 941, 62 Fla. 493. (Annotated) 49. Though a husband has the legal right to determine the place of abode of the family, and the wife must submit to his decision, this power must be exercised in a reasonable and just manner, and it cannot be exercised arbitrarily, nor used as a means of procuring dissolution of the marital relation. Hall v. Hall, 34: 758, 71 S. E. 103, 69 W. Va. 175. (Annotated) 50. Refusal by an English woman to ac- company her husband upon his emigration to this country to better his condition in life, without other excuse than disinclination to leave her native land, is desertion which will entitle him to a divorce. Franklin v. Franklin, 4: 145, 77 N. E. 48, 190 Mass. 349. ( Annotated ) Refusal to have sexual intercourse. See also supra, 46. 51. The mere refusal of a wife for over a year to accord her husband marital priv- ileges, in accordance with the tenets of a religious sect with which she has become affiliated, is not oi itself such a desertion of the husband as authorizes him to secure a divorce for wilful, obstinate, and con- tinued desertion for one year. Prall v. Prall, 26: 577, 50 So. 867, 58 Fla. 496. c. Drunkenness ; use of morphine. (See also same heading in Digest L.R.A. 1-10.) 62. To come within the operation of a statute allowing a divorce for habitual drunkenness, one need not be constantly drunk or incapacitated from transacting his business; it being sufficient if lie lias the fixed habit of frequently and repeated- ly getting drunk when opportunity offers, or has lost the will power to resist tempta- tion in that respect. O'Kane v. O'Kane, 40: 655, 147 S. W. 73, 103 Ark. 382. ( Annotated ) 53. One is an habitual drunkard, within the meaning of the divorce laws, who has the fixed habit of frequently gHing drunk, although he has more sober than drunken hours, and the habit does not incapacitate him from performing during the working hours of the day ordinary unskilled manual labor. Page v. Page, 6: 914, 86 Pac. 582, 43 Wash. 293. (Annotated) d. Imprisonment; miscellaneous. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence as to grounds, see EVIDENCE, 2205-2209. Annulment of marriage or divorce for causes rendering the marriage invalid, see MARRIAGE, IV. Digest 1-52 L.R.A.(N.S.) 54. It is not the policy of the law to grant a divorce for a postnuptial cause, short of marital infidelity, when the cause does not in fact render one of the parties incapable of performing the duties incident to the marriage status. Hancock v. Han- cock, 15: 670, 45 So. 1020, 55 Fla. 680. 55. The time during which the parties have lived apart under and by virtue of a decree of separation from bed and board may be counted as part of the period of a separation for which an absolute divorce may be obtained. Cooke v. Cooke, 49: 1034, 80 S. E. 178, 164 N. C. 272. 56. The refusal of a man to permit his wife actively to control his business is no ground for granting her a divorce, although it results in bickerings and inability to live harmoniously together. Root v. Root, 32: 837, 130 N. W. 194, 164 Mich. 638. Flirting. r ' u , ' ' 57. Mere indiscreet or imprudent conduct and relations with young men on the part of a married woman, all embraced under the general term "flirting," is not cause for divorce. Hancock v. Hancock, 15: 670, 45 So. 1020, 55 Fla. 680. Viciousness and degeneracy. 58. Vulgar, indecent, and unnatural con- duct on the part of a wife, and her solicita- tion of the husband to engage in such con- duct with her, showing viciousness and de- generacy on her part, are not sufficient grounds for divorce, nor do they justify the husband in breaking off cohabitation with her and treating her as having aban- doned or deserted him. Huff v. Huff, 51: 282, 80 S. B, 846, 73 W. Va. 330. ( Annotated ) Imprisonment. Statute of limitations as a defense, see infra, 63. Taking imprisonment into consideration in disposing of application for alimony, see infra, 79. 59. The right to a divorce, conferred by Ga. Civ. Code 1895, 2426, par. 8, upon the conviction of either party for an offense in- volving moral turpitude, and under which the offending party is sentenced to impris- onment in a penitentiary for a term of two years or more, is not affected by an execu- tive pardon granted after such a sentence has been imposed. Holloway v. Holloway. 7: 272, 55 S. E. 191, 126 Ga. 459. (Annotated) CO. Voluntary manslaughter is an of- fense involving moral turpitude, within the meaning of Ga. Civ. Code 1895, 2426, par. 8, specifying as a ground for divorce the conviction of either party for an offense in- volving moral turpitude. Holloway v. Hol- loway, 7: 272, 55 S. E. 191, 126 Ga. 459. 61. The rule of courts of equity, deny- ing relief to a party because of his own inequitable conduct in and about the sub- ject-matter of his cause of action, applies in siwts for divorce. Hall v. Hall, 34: 758, 71 S. E. 103, 69 W. Va. 175. 942 DIVORCE AND SEPARATION, IV. IV. Defenses; connivance; recrimina- tion. (See also same heading in Digest L.R.A. 1-10.) Striking out defense in divorce suit for failure to obey order as to payment of alimony, see CONSTITUTIONAL LAW, 578. Vacation of decree secured by collusion, see JUDGMENT, 341, 342, 372-379. 62. An absolute divorce cannot be de- nied to one establishing a statutory ground therefor, because she had already obtained one divorce and another had been granted against her for her own fault, while proper investigation on her part would have shown her that her latest matrimonial venture could not be a happy one, although the stat- ute provides that the divorce may be grant- ed whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do. Orton v. Orton, 26: 276, 123 N. W. 1103, 159 Mich. 236. 63. The court must enforce of its own motion, although defendant makes default, a provision in a statute authorizing divor- ces, that a divorce must be denied when the cause is conviction of felony, unless the ac- tion is commenced within a certain time after final judgment and sentence. Frank- Hn v. Franklin, 26: 490, 106 Pac. 353, 40 Mont. 348. (Annotated) 64. Illicit relations with a woman before marrying her will not deprive a man of the benefit of a statute entitling him to a di- vorce in case, without his knowledge, she was at the time of the marriage pregnant by another. Wallace v. Wallace, 14: 544, 114 N. W. 527, 137 Iowa, 37. 65. That a man had illicit sexual rela- tions with his wife before marriage, and married her while she was an inmate of a house of prostitution, does not destroy his right to a divorce for her refusal to leave such house, and continued acts of adultery. Roote v. Roote, 23: 240, 33 App. D. C. 398. (Annotated) 66. That a man maliciously turned his wife out of doors is no defense to a suit by him for divorce on the ground of her sub- sequent adultery, where she could have maintained an action for separate mainte- nance. Ellett v. Ellett, 39: 1135, 72 S. E. 861, 157 N. C. 161. (Annotated) ' 67. The right to a divorce because of a grievous mental suffering due to false char- ges made by one party to a marriage con- tract against the other is not destroj'ed by the fact that at the time they were made the parties had separated and were not living together. MacDonald v. MacDonald, 25: 45, 102 Pac. 927, 155 Cal. 665. 68. Cruel treatment of a wife is not jus- tified by unwelcome and too frequent vis- itations from her family. Hooe v. Hooe, 5: 729, 92 S. W. 317, 122 Ky. 590. 69. The conduct of a plaintiff in a suit for a limited divorce on the ground of de- sertion may, although not sufficient to Digest 1-52 L.R.A.(N.S.) justify the desertion, nevertheless be suf- ficient to preclude relief. Hall v. Hall, 34: 758, 71 S. E. 103, 69 W. Va. 175. 70. The wife, when sued for divorce on the ground of wilful and continued deser- tion, may, under a statute providing that in all cases the party sued may plead in defense the conduct of the party suing, and the jury may, on examination of the whole case, refuse a divorce, set up as a de- fense thereto, adulterous acts of tlic hus- band which occurred subsequent to other adulterous acts on his part which had been condoned by her. Davis v. Davis, 30: 73, 68 S. E. 594, 134 Ga. 804. 71. The fact that plaintiff has wrong- fully abandoned the defendant does not af- fect the right to a divorce under a statute the only conditions imposed by which are that there shall have been a separation of husband and wife continuing for ten suc- cessive years, that they shall have resided in the state for that period, and that there are no living children of the marriage. Cooke v. Cooke, 49: 1034, 80 S. E. 178, 164 N. C. 272. (Annotated) Condonation. 72. Condonation of ill treatment is re- voked, and the original cause for divorce revived, by the express terms of N. D. Rev. Code 1905, 4061, where the guilty party thereafter resumes the former course of ill treatment. Mosher v. Mosher, 12: 820, 11. '5 N. W. 99, 16 N. D. 269. 73. Under a statute permitting divorce for desertion for three years next preced- ing the filing of the libel, renewal of co- habitation as man and wife, even for four days after the three years have expired, re- moves the cause of divorce, which is not re- vived by renewed desertion at the expira- tion of the four days. Laflamme v. La- flamme, 39: 1133, 96 N. E. 62, 210 Mass. 156. (Annotated) 74. The possession of a loathsome dis- ease by a man is not condoned by cohabita- tion with him by his wife with knowledge of the fact, so as to bar a suit for divorce. Hooe v. Hooe, 5: 729, 92 S. W. 317, 122 Ky. 590. (Annotated) 75. Continued cohabitation does not con- done the communication of syphilis by a man to his wife. Muir v. Muir, 4: 909, 92 S. W. 314, 133 Ky. 125. 76. Prior acts of cruelty are condoned by the dismissal by a wife of a suit for divorce on that ground, and her resumption of marital relations, so that they cannot be considered in a subsequent petition for di- vorce. Root v. Root, 32: 837, 130 N. W. 194, 164 Mich. 638. 77. The wife, when sued for divorce on the ground of wilful and continued deser- tion, cannot set up adulterous acts of the husband as a defense thereto under a stat- ute providing that in all cases the party sued may plead in defense the conduct of the party suing, and the jury may, on ex- amination of the whole case, refuse a di- vorce, where such acts of adultery occurred previous to the desertion, were condoned DIVORCE AND SEPARATION, V. a. 943 by the wife with full knowledge thereof, and were not revived by the conduct of the husband after being so condoned. Davis v. Davis, 30: 73, 68 S. E. 594, 134 Ga. 804. 78. Forgiveness, by a wife, of her hus- band's conduct with a woman whom he haa brought into the home, does not amount to a condonation, which will prevent her securing a divorce, if he continues to act, as before. Craig v. Craig, 2: 669, 105 N. W. 446, 129 Iowa, 192. V- Alimony, a. In general. (See also same heading in Digest L.R.A. 1-10.) As to other property rights, see infra, VI. Finality of decree for, see APPEAL AND ERROB, 25. Review, on appeal, of award of alimony, see APPEAL AND ERROR, 983-990. Review of finding as to finality of decree for, see APPEAL AND ERROR, 990. Provision in decree that application for appeal should render provision for ali- mony ineffectual, see APPEAL AND ER- ROR, 1533. Effect of appearance on necessity for per- sonal service of notice of petition for alimony, see APPEARANCE, 14. Assignment of decree for, see ASSIGNMENT, 4. Contract to share alimony with attorney, see APPEAL AND ERROR, 439 ; CON- TRACTS, 466. Effect of discharge in bankruptcy on liabil- ity for, see BANKRUPTCY, 171. Striking out defense in divorce suit for failure to obey order as to payment of alimony, see CONSTITUTIONAL LAW, 578. Contempt in failing to pay alimony, see CONTEMPT, 40, 68, 105/107, 110, 111. Allowance against estate of decedent, of alimony accruing between divorce and remarriage of decedent's wife, see COURTS, 242. Jurisdiction of equity to enforce decree for alimony rendered in other state, see EQUITY, 44. Evidence as to alimony, see EVIDENCE, 988. Enforcement of claim for alimony against exemptions, see EXEMPTIONS, 20. Effect of divorce without alimony on hus- band's duty to maintain wife, see HUS- BAND 'AND WIFE, 10. Conveyance by husband in fraud of wife suing for divorce, see HUSBAND AND WIFE, 143. Validity of decree for, see JUDGMENT, 18, 28. Conclusiveness of decree of other state as to, see JUDGMENT, 303-312. Enforcement of judgment for, see JUDG- MENT, 320. New trial as to, because of fraud in obtain- ing decree, see Jm>GMKNT, (r 378. In suit to annul marriage, see MARBIAGE, 28-30, 44. Digest 1-52 L.R.A. (N.S.) Time for motion to reconsider order deny- ing alimony, see MOTIONS AND ORDERS, 2. Right of stranger to sue for arrears of, see PARTIES, 40. Trial of collateral issue raised by guardian's motion to set aside order for payment of, see TRIAL, 2. 79. In disposing of an application for alimony, a court may take into considera- tion the circumstance that the petitioner is undergoing penal servitude. Leslie v. Les- lie, 3 B. R. C. 542 [1908] P. 99. Also Re- ported in 77 L. J. Prob. N. S. 23, 98 L. T. N. S. 62, 24 Times L. R. 148. ( Annotated ) 80. "Alimony" is not due and payable as debt, damages, or penalty; but is an award by the court upon considerations of equity and public policy, and is founded upon the obligation, which grows out of the mar- riage relation, that the husband must sup- port his wife, which obligation continues after legal separation without her fault. Fickel v. Granger, 32: 270, 93 N. E. 527. 83 Ohio St. 101. 81. Alimony cannot be awarded as be- tween parties divorced from bed and board, without alimony, as incident to the pen- dency of an independent suit seeking only to set aside the decree of divorce for fraud in its procurement. Chapman v. Parsons, 24: 1015, 66 S. E. 461, 66 W. Va. 307. 82. That property came to a husband after the dissolution of the bonds of matri- mony between himself and wife by a de- cree which does not release him from his liability to support her in the state of the matrimonial domicil does not relieve it from liability to her claims for alimony. Toncray v. Toncray, 34: 1106, 131 S. W. 977, 123 Tenn. 476. 83. A statutory provision to the effect that, if the bonds of matrimony are dis- solved at the suit of the husband, the de- fendant shall not be entitled to alimony, cannot be invoked in behalf of a husband who deserts the wife in the state of matri- monial domicil, and obtains a decree of divorce by publication in a foreign state. Toncray v. Toncray, 34: 1106, 131 S. W. 977, 123 Tenn. 476. 84. A wife who has been abandoned and denied support by her husband may have a decree for alimony without a divorce, and such relief may be granted her in a suit for divorce brought by a husband, on a prayer in her answer therefor as affirma- tive relief. Huff v. Huff, 51: 282, 80 8. E. 846, 73 W. Va. 330. 85. A wife who has obtained a decree for the restitution of conjugal rights may, if the husband disobeys that decree, either apply for an alimentary provision and to have the same secured to her under the matrimonial causes act 1884, or, if she elects to petition for a judicial separation, she may apply for alimony, and, after she has obtained a decree, may ask for perma- nent alimony to be allotted to her; but it is not open to her, after she has elected to proceed for a judicial separation, and 944 DIVORCE AND SEPARATION, V. b. after she has obtained a decree in that suit, to ask for an order and for security under the act of 3884. Leslie v. Leslie, 3 B. R. C. 542 [1908] P. 99. Also Reported in 77 L. J. Prob. N. S. 23, 98 L. T. N. S. 62, 24 Times L. R. 148. Independent suit for. Injunction to prevent alienation of property by offending spouse, see INJUNCTION, 94. Venue of action, see VENUE, 4. See also supra, 81, 83-85; infra, 96. 86. A wife may bring a suit in equity to secure support and alimony without ref- erence to whether the action is for divorce or not. Brewer v. Brewer, 13: 222, 113 N. W. 161, 79 Neb. 726. 87. A court of equity, independently of proceedings for divorce, on the ground of inadequate remedy at law, may decree maintenance to a wife who has been desert- ed by her husband. Lang v. Lang, 38: 950, 73 S. E. 716, 70 W. Va. 205. (Annotated) 88. The statutes governing alimony in divorce cases do not bar an equitable ac- tion for maintenance and support brought by one spouse against the other. Hagert v. Hagert, 38: 966, 133 N. W. 1035, 22 N. D. 290. 89. A separate and equitable action at the suit of the husband against the wife will lie to compel the wife to support and maintain the husband, as required by stat- ute, when she has not been deserted or abandoned by the husband, and he, because of age and infirmity, is unable to gain his own livelihood. Hagert v. Hagert, 38: 966, 133 N. W. 1035, 22 N. D. 290. 90. The district courts of North Da- kota have jurisdiction of separate main- tenance actions, in the absence of a stat- ute devesting them thereof. Hagert v. Hag- ert, 38: 966, 133 N. W. 1035, 22 N. D. 290. 91. In equitable actions for maintenance by one spouse against the other, the prac- tice follows, as far as practicable, the prac- tice in alimony proceedings in applications for alimony pending suit for divorce; and the trial court has the power of granting, on 'good cause shown, temporary mainte- nance, counsel fees, and expense money pending hearing and before judgment in the main action. Hagert v. Hagert, 38: 966, 133 N. W. 1035, 22 N. D. 290. 92. A wife's suit for alimony on personal service cannot be maintained against her husband, who appears and sets up a decree for total divorce obtained in another state, if the court holds that divorce valid. Joyner v. Joyner, 18: 647, 62 S. E. 182, 131 Ga. 217. 93. A woman not free from fault con- tributing to a separation from her husband is not entitled to the benefit of a statute providing that it shall be lawful for any married woman to apply for an order upon her husband to provide for her support, where the order is to be such as shall be equitable in view of the circumstances of both parties. I van hoe v. Ivanhoe, 49: 86, 136 Pac. 21, 68 Or. 297. (Annotated) Digest 1-52 L.R.A.(N.S.) Appropriation of, for wife's debts. 94. Alimony cannot, either before or after payment thereof, be subjected to the payment of debts of the wife which existed prior to the allowance thereof. Fickel v. Granger, 32: 270, 93 N. E. 527, 83 Ohio St. 101. (Annotated) 95. An allowance for support, adjudged in a divorce action, does not constitute in debtedness to the party in whose favor the allowance is made, which can be reached by creditors of the latter. Brenger v. Hrenger, 26: 387, 125 N. W. 109, 142 Wis. 20. It. Temporary alimony; suit money. (See also same heading in Digest L.Jf.A. 1-10.) Effect of appeal on jurisdiction to award suit money and maintenance, see AP- PEAL AND ERROR, 104, 105. Allowance of temporary alimony on appeal, see APPEAL AND ERROR, 1581-1583. Service of application for temporary ali- mony, see WRIT AND PROCESS, 20. 96. In no suit but one seeking a divorce of some character is there jurisdiction to award alimony pendente lite. Chapman v. Parsons, 24: 1015, 66 S. E. 461, G6 W. Va. 307. 97. An application for temporary ali- mony must be based on a pending suit for divorce or for permanent alimony. Stall- ings v. Stallings, 9: 593, 56 S. E. 469, 127 Ga. 464. 98. The final adjournment of the term of court at which a divorce w ( as granted does not, if an appeal has been taken, de- prive the court of power to award alimony in case conditions have arisen since the decree which require it, under a statute empowering the judge, either in term time or vacation, to allow the wife a sufficient income for her maintenance during the pendency of the suit, "until a final decree shall have been made in the cause." Ex parte Lohmuller, 29: 303, 129 S. W. 834, 103 Tex. 474. 99. Temporary alimony may be granted defendant in a suit to annul a marriage on the ground that it was void because defend- ant was at the time married to another, which is denied, where the statute provides that in such actions all provisions of the law in relation to the granting of divorces shall be applicable. Ricard v. Ricard, 36: 500, 121 N. W. 525, 143 Iowa, 182. (Annotated) 100. An order for suit money and alimony pendente lite will not be granted in an ac- tion for separate maintenance under the general equitable powers of the court, where the marriage is denied and the husband de- nies pecuniary ability to pay. State ex rel. Lloyd v. Superior Court, 25: 387, 104 Pac. 771, 55 Wash. 347. (Annotated) Suit money. Allowance to husband, see infra, 105, 106. Effect of appeal on jurisdiction to award, see APPEAL AND ERROR, 104. DIVORCE AND SEPARATION, V. c. 945 Review on appeal of allowance for, see AP- PEAL AND ERROR, 987. Jurisdiction to award, on appeal, see AP- PEAL AND ERROR, 1582, 1583. Contempt in failing to obey order to pay, see CONTEMPT, 08, 105/110. Liability for wife's attorneys' fees in di- vorce proceeding against husband, see HUSBAND AND WlFE, 3, 4. Validity of decree for, see JUDGMENT, 18, 28. In action to annul marriage, see MARRIAGE, 28-30, 44. See also supra, 91, 100. lOOa. The fact that after the employment of counsel and the commencement by them of a suit for divorce on behalf of a wife, and prior to the entry of an allowance for counsel fees, the parties to the suit became reconciled, does not oust the court of its authority to make such an allowance. Kid- dle v. Kiddle, 36: 1001, 133 N. W. 181, 90 Neb. 248. 101. Suit money and alimony may be awarded against defendant in a divorce pro- ceeding against a spendthrift. Sturgis v. Sturgis, 15: 1034, 93 Pac. 696, 51 Or. 10. 102. In a suit by a wife for separate maintenance, or for alimony alone, the court may at any time during the pendency of the suit make an allowance to the wife of a reasonable sum as suit money, includ- ing attorneys' fees, to be paid by the hus- band as the court may direct. Kiddle v. Kiddle, 36: 1001, 133 N. W. 181, 90 Neb. 248. ( Annotated ) 103. The term "during its pendency," in a statute empowering a court to require a husband to pay suit money in a divorce proceeding, means any time from the com- mencement of the suit until and including the final order of dismissal of the same. Kiddle v. Kiddle, 36: xooi, 133 N. W. 181, 90 Neb. 248. 104. Where a wife brought suit against her husband, alleging a permanent separa- tion on account of misconduct on his part, and praying for permanent alimony and for an allowance as temporary alimony and counsel fees and the appointment of a re- ceiver, and pending the case, but before the allowance of temporary alimony or counsel fees, the parties adjusted their differences, resumed cohabitation, and desired that the case be dismissed, it is proper to enter an order of dismissal and to refuse to permit the attorneys for the wife to intervene and become parties to the case, or to render a judgment in that proceeding for attorneys' fees, and the fact that a temporary receiver was appointed does not alter the ease. Keefer v. Keefer, 46: 527, 78 S. E. 462, 140 Ga. 18. To husband. 105. Temporary alimony and suit money caifnot be allowed to the husband in the ab- sence of statutory provision therefor. State ex rel. Har^prt v. Templeton, 25: 234, 123 N. W. 283, 18 N. D. 525. (Annotated) 106. Alimony and suit money pendente lite cannot be allowed to the husband by virtue of a statute authorizing the courts to require the husband to pay as alimony Digest 1-52 L.R.A.(N.S.) I any money necessary to enable the wife to support herself or to prosecute or defend the action, where no similar provision is made for him, as such statute is conclusive and embraces the entire subject matter of such allowances. State ex rel. Hargert v. Temple- ton, 25: 234, 123 N. W. 283, 18 N. D. 525. c. Permanent allowance. (See also same heading in Digest L.R.A. 1-10.) Alimony as lien on claim for tort which has been assigned, see ASSIGNMENT, 21. Presumption as to allowance for tort, see EVIDENCE, 503. Appointment of trustee for alimony, see HUSBAND AND WIFE, 115. Decree for alimony as lien on property of husband, see JUDGMENT, 204. Right to increase wife's share of communi- ty property upon husband's appeal, see APPEAL AND ERROR, 1584. Right of trial court to make new division of community property upon remand- ing of case, see APPEAL AND ERROR, 1648. 107. Testimony of libellee in a divorce suit that he wanted his wife to have a divorce will not be construed as asking for a divorce at all events, where his counsel states that he was unwilling that the alimony should be more than one third of what he was worth. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. 108. A court is without authority, under a statute providing that, when a decree of divorce is granted, the court shall make such order touching the alimony of the wife as shall be reasonable, to decree absolutely a certain and specific sum of money, or a certain specific portion of the property, as alimony, but may decree alimony in a con- tinuous allotment of sums, payable at regu- lar intervals. Ecker v. Ecke'r, 20: 421, 98 Pac. 918, 22 Okla. 873. 109. Alimony may be decreed to a wife against whom a divorce is granted under a statute providing that, where a divorce is granted, the court shall make such order touching the alimony of the wife as, under the circumstances and nature of the case, shall be reasonable. Ecker v. Ecker. 20: 421, 98 Pac. 918, 22 Okla. 873. (Annotated) 110. Alimony may ke decreed to a \vife against whom a divorce is granted for wil- ful and continued desertion under a stat- ute providing that in all suits for divorce the jury may provide permanent alimony for the wife, when neither the husband nor the wife have any property, and the evi- dence tends to show bad conduct upon the part of the husband, who is able-bodied and earning about $18 per week, that the wife had always helped support the family by sewing, that her eyesight is failing, and that her health has become so poor that she is not abJe to support herself with- out assistance. Davis v. Davis, 30: 73, 68 S. E. 594, 134 Ga. 804. (Annotated) y-i a DIVORCE AND SEPARATION, V. d. 111. The jury is not prevented from granting alimony to a wife against whom a divorce is granted under a statute pro- viding that in all suits for divorce the jury may provide permanent alimony for the wife, by a statutory provision that, if the jury find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor chil- dren should be entitled to for their support, and that they may do that if, from any legal cause, the wife may not be entitled to permanent alimony, and the children are not in the same category, since such pro- vision does not mean that in no event can alimony be awarded unless the wife shall obtain a divorce. Davis v. Davis, 30: 73, 68 S. E. 594, 134 Ga. 804. 112. Expenses incurred by libellant in a divorce proceeding, for keeping libellee's horse and boarding his child, because libellee did not perform his duty in respect thereto, may be considered in fixing the alimony. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. 113. Petitioner in a divorce proceeding cannot be allowed to show the expense in- curred by her in a proceeding for the ap- pointment of a guardian for her husband, nor expenses incurred in searching for him. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. 114. Probable accretions of wealth to the husband from any source may be consid- ered in fixing the amount to be allowed the wife on granting her a divorce. Muir v. Aluir, 4: 909, 92 S. W. 314, 133 Ky. 125. (Annotated) 115. When a wife is granted a divorce for the fault of her husband she is entitled as alimony to enough of his estate, including earnings, to make an equivalent of the sup- port to which she was entitled as his wife; and this should equal at least her dower interest in the estate. Muir v. Muir, 4: 909, 92 S. W. 314, 133 Ky. 125, 116. A wife, upon obtaining a divorce, may be allowed as alimony a share in a posses- sion of real estate held by the husband with the consent of the owner. Muir v. Muir, 4: 909, 92 S. W. 314, 133 Ky. 125. 117. A decree in chancery granting a di- vorce may establish a lien in favor of the wife upon a fund due the husband I a third person for an injury negligently in- flicted upon him. Kithcart v. Kithcart, 30: 1062, 124 N. W. 305, 145 Iowa, 549. (Annotated) 118. A man's entire estate will not be permitted to be absorbed as alimony for his first wife after he has children by a second marriage, although he deserted the first wife, and left her penniless, with several infant children to care for, and secured a divorce against her by publication, in an- other state, without actual notice to her of the proceeding. Toncray v. Toncray, 34: 1106, 131 S. W. 977, 123*Tenn. 476. Instances of amount. 119. Thirty dollars per month is an un- reasonable amount to be allowed a wife as alimony in a suit for separate maintenance Digest 1-52 L.R.A.(N.S.) where her husband is unable to work for himself, and has property only to the value of $1,200. Fa hey v. Faliey, 18: 1147, 9G 1'ac. 251, 43 Colo. 354. 120. $100 per month may be awarded to a wife as support, upon granting her a separation from her husband, with the cus- tody and care of her infant child, where he is worth from $20,000 to $40,000, and has an income from his business of from $2,000 to $3,000. McClintock v. McClintock, 39: 1127, 144 S. W. 68, 147 Ky. 409. 121. Five thousand dollars should be al- lowed as alimony to a woman without prop- erty, who has been contaminated with syphilis by her husband, and who is given the custody of her children, one of whom is also affected with the disease, where the hus- band is worth at least $15,000. Muir v. Muir, 4: 909, 92 S. W. 314, 133 Ky. 125. To husband. 122. Permanent alimony cannot, in the absence of express statute, be allow ; ed a husband out of the property or earnings of the wife. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 26. 123. The granting, in an action for di- vorce and alimony, of an allowance of $25 per month, payable at specified intervals during life, or a specified gross sum, at the option of the party required to pay the al- lowance, is a decree for "alimony," whether so stated or not, and therefore within the rule denying a husband permanent alimony out of the separate estate of the wife, where not expressely made allowable by statute. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 26. d. Sitbseqtient change. (Sec also same heading in Digest L.R.A. 1-10.) 124. A statute permitting a court award- ing a divorce to make such subsequent changes in relation to the property and maintenance of the parties as the circum- stances may warrant does not enable the court, without a new trial, to make an award of alimony when none was awarded in the original action because of the fraud and false swearing of defendant. Graves v. Graves, 10: 216, 109 N. W. 707, 132 Iowa, 199. 125. A substitution of a permanent divi- sion of the proporty for a periodical pay- ment of alimony in a divorce decree does not cancel the obligation to make overdue payments if tke record expressly indicates an intention that they shall be paid. Weber v. Weber, 45: 875, 140 N. W. 1052, 153 Wis. 132. Effect of wife's adultery. 126. A decree of divorce may be modi- fied upon evidence that the wife, to whom the divorce was awarded, evinced a per- manent disposition to lapse from virtue, so as to substitute a permanent division of property between t'.ie parties for a periodical payment of alimony. Weber v. DIVORCE AND SEPARATION, VI. 947 Weber, 45:875, 140 N. W. 1052, 153 Wis. 132. (Annotated) Effect of husband's death. 127. The obligation to comply with a provision of a decree of divorce imposing upon the husband the duty of paying to the wife a certain sum annually as alimony "so long as she may live" ceases with his death, although, in compliance with the decree, such payment has been secured by a mort- gage of real estate, where the statute em- powers the court, upon granting a divorce, merely to require defendant to provide for the support of plaintiff. Wilson v. Hinman, a: 232, 75 N. E. 236, 182 N. Y. 408. ( Annotated ) VI. Other property rights. (See also same heading in Digest L.R.A. 1-10.) Conflict of laws as to, see CONFLICT OF LAWS, 80. Effect of divorce on dower right, see DOWER, 23. Effect of husband's separation from wife because of her adultery on gift by him to her, see GIFT, 4. Effect of divorce on interest in proceeds of insurance policy, see INSURANCE, 72, 828-831; PARTIES, 45. Estoppel of divorced husband to assert title to proceeds of insurance by leaving policy in possession of wife, see ESTOP- PEL, 91. What is community property to share in which divorced wife is entitled, see HUSBAND AND WIFE, 78, 79. Effect of void decree on property rights, see JUDGMENT, 73. Effect of divorce decree to bar subsequent action as to property rights, see JUDG- MENT, 180. Recognition of deed to land within state made by commissioner under decree ol court of other state, in action for di vorce, see JUDGMENT, 291. Effect of annulment of marriage on prop erty rights, see MARRIAGE, 31. Appointment of receiver to preserve prop erty in action for, see RECEIVERS, 11. Repeal of statute granting dower to di vorced wife, see STATUTES, 365. 128. Only such judicial authority to mak a division of property between the parties to a divorce action exists as is expressly granted by statute. Brenger v. Brenger 26: 387, 125 N. W. 109, 142 Wis. 26. 129. In settling the property rights o parties upon a judicial dissolution of thei marriage contract, it is proper, if not the duty of the court, so to provide as to pre serve to them, subject to their individua rights after the separation of contracting to the contrary, their statutory exemption from claims of creditors, while at the sam time the indebtedness of each, in determin ing the property status to be dealt with i settling property rights, should be con Digest 1-52 L.R.A.(N.S.) idered. Brenger v. Brenger, 26: 387, 12o N. N. 109, 142 Wis. 26. 130. The property of the husband, and hat of the wife derived from him, may be onsidered together in making a permanent djustment of property rights, upon a ju- dicial termination of their marital rela- ions; but no part of the separate prop- rty of the wife not so derived can prop- rly be devested and transferred to the hus- and, or burdened by his debts. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 131. In adjusting property rights of the jarties in a divorce action, a conveyance luring coverture by the husband to the wife o compensate her for care of him should >e set aside, where she has without reason- able excuse defaulted in performance, and the property should be adjusted as if no such conveyance had been made, unless the wife has been in possession thereunder, in which case allowance to the husband of a reasonable rental value should be made. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 26. 132. An adjustment of property rights, made upon the granting of a divorce, which s based in part upon the suggestion of the attorney for a judgment creditor of one of Dhe parties that the judgment could be set- tled for a certain sum, whereas the judg- ment was entered for a much larger sum, there being no binding obligation to settle the claim for less than the amount due, is erroneous, as findings of fact must be con- strued from a strictly legal viewpoint, whicK would require the adjustment to be based upon the sum for which the judg- ment was entered. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 26. 133. A statute providing that, "in every final judgment for divorce from the bond of matrimony, an order shall be made that each party be restored to all property not disposed of at the commencement of the ac- tion, which either party obtained from and through the other during the marriage and in consideration or by reason thereof," does not include a gift of property made during the existence of the marriage, by husband to his wife. Thomas v. Thomas, 35: 124, 109 Pac. 825, 27 Okla 784. 134. Property which is not brought be- fore the court by the pleadings in a pro- ceeding for divorce is not affected by the decree. Ambrose v. Moore, u: 103, 90 Pac. 588, 46 Wash. 463. 135. One who institutes a divorce suit without bringing the property rights of the parties before the court for adjudication waives any right in or to the property of the other spouse, and the power to adju- dicate the right to the property cannot or- dinarily be exercised by another court at another time or in an independent action. Ambrose v. Moore, 11:103, 90 Pac. 588, 46 Wash. 463. 136. Community property which is not brought before the court in a divorce pro- ceeding is, after the decree, held by the par- 948 DIVORCE AND SEPARATION, VII. ties as tenants in common. Ambrose v. Moore, n: 103, 90 Pac. 588, 46 Wash. 463. (Annotated) 137. The divorce of the parties will not sever an estate by entireties. Alles v. Lyon, 10 : 463, 06 Atl. 81, 216 Pa. 604. (Annotated) 138. Before full legal interest on the capi- tal invested in the business of a man against whom a divorce is sought shall be allowed out of the profits of the business as against the claims of the community, the wife is entitled to an opportunity to show that it earned a smaller proportion of such profits. Pereira v. Pereira, 23: 880, 103 Pac. 488, 156 Cal. 1. 139. In dividing the property in a divorce proceeding, the capital which the husband has invested in business at the time of the marriage is to be regarded as separate es- tate, and also the profits which have been derived from the business since the mar- riage which are justly due to the capital invested, which, in case the business is prof- itable, are at least the usual interest on a long-term investment well secured. Perei- ra v. Pereira, 23: 880, 103 Pac. 488, 156 Cal. 1. 140. In the absence of evidence on the part of the husband against whom a divorce is granted that the capital invested in his business was entitled to more than legal interest out of the profits of the business, that is all that he can claim in fixing the amount of community property to be di- vided between himself and wife. Pereira v. Pereira, 23: 880, 103 Pac. 488, 156 CaJ. 1. 141. Property transferred by a man to his wife to defraud his creditors is not within the operation of a statute providing that in case of divorce any property which either party may have obtained from the other during marriage, in consideration or by reason thereof, shall be restored to the party from whom it was obtained. Coleman v. Coleman, 39: 193, 144 S. W. 1, 147 Ky. 383. (Annotated) 142. An inquiry with respect to property rights and the custody of children prior to the entry of the final decree in a divorce proceeding is not prevented by statutes which ""provide that, in actions for divorce, the court must file its decision and con- clusions of law as in other cases, and if it determines that a divorce ought to be grant- ed, an interlocutory judgment must be en- tered, declaring that the party in whose favor the court decides is entitled to a' divorce, and that one year after the entry of such interlocutory judgment the court may enter a final judgment granting a di- vorce and such other and further relief as may be necessary to a complete disposi- tion of the action; although other sections speak of the disposition of Wie community property in case of a dissolution of the marriage, and declare that the court, in ordering a decree of divorce, must make such orders for the disposition of community property as provided by law, and that mar- riage is dissolved only by the judgment of a court of competent jurisdiction declaring Digest 1-52 I,.R.A.(N.S.) a divorce. Pereira v. Pereira, 23: 880, 10$ Pac. 488, 156 Cal. 1. 143. Payments in money, required by the judgment in a divorce action to be made by one party to the other as the portion of that other, upon a division of the property of the parties, may be reached by the cred- itors of that other. Brenger v. Brenger, 26: 387, 125 N. W. 109, 142 Wis. 26. VII. Ciistody and support of children. (See also same heading in Digest L R.A. 1-10.) Abduction or kidnapping of child by one parent, see ABDUCTION AND KIDNAP- PING, 2, 3. Review on appeal of discretion as to, St.; APPEAL AND ERROR, 569. Right of appellate court to provide for tem- porary custody of children, see APPEAL AND ERROR, 1581. Excluding father from burial service of child whose custody was awarded to mother, see CASE, 12. Validity of contract for support of child pending action, see CONTRACTS, 71, 487. Retaining jurisdiction to award custody of children after prayer for divorce has been withdrawn, see EQUITY, 127, 128. Conclusiveness of decree as to, see EVIDENCE, 504. Presumption of father's unfitness for cus- tody of child, see EVIDENCE, 123. Agreement between husband and wife, in view of separation, as to custody of children, see INFANTS, 23. Right of mother's parents to custody of child after divorce and mother's in- sanity, see INFANTS, 34. Father's right to deed children to his par- ents upon separation from his wife, see INFANTS, 38. Effect of death of parent to whom custody of child was awarded by divorce decree, see INFANTS, 40. Effect of divorce against mother of child on right to its custody after father's death, see INFANTS, 52. Binding effect of decree of other state as to, sco JUDGMENT, 296. OOFS bill, seeking custody of children, see PLEADING, 534. See also supra, 142. 144. A husband who has obtained a judg- ment of final divorce, awarding him the un- conditional custody of the minor children of the marriage, is without legal capacity to abdicate his trust by a subsequent agree- ment with his divorced wife; and such an agreement, purporting to vest in her the temporary or conditional custody of the children, cannot operate as a bar to his re- covering possession of them. Farr v. Einuy, 15: 744, 46 So. 112, 121 La. 91. (Annotated) 14o. A father is not deprived of the nat- ural right to the custody of his minor chil- dren against any person except the mother by a decree in a divorce proceeding, award- ing her temporary custody of them, in the- DIVORCE AND SEPARATION, VIII. a. 949 absence of a finding that the father is un- fit; and, upon her death, such right ceases to be affected by the award. Ex parte Clarke, 20: 171, 118 N. W. 472, 82 Neb. 625. (Annotated) .146. Upon the death of the mother, to whom a child was awarded in divorce pro- ceedings, the father, if he is of good charac- ter, and able to provide for it, has a right to it prior to that of the wife's parents, to whom she had given it. Ex parte Barnes, 25: 172, 104 Pac. 296, 54 Or. 548. 147. Tho courts of the state to which a child was brought by its mother after the custody of it was awarded to her in divorce proceedings will not, upon her death, refuse to permit the father to take it to his home in another state, and into the jurisdiction of the court which granted the divorce, tnerely because it is thereby being taken beyond their jurisdiction. Ex parte Barnes, 25: 172, 104 Pac. 296, 54 Or. 543. 148. The courts of a state of which a mother who has been granted a divorce and awarded the custody of minor children by the courts of a sister state becomes a resi- dent, dying there, and leaving such children in the hands of relatives, who are appointed guardians, are not deprived of jurisdiction to determine the merits of a controversy be- tween the divorced father and such guard- ians for the custody of the children by the fact that the court rendering the divorce retained jurisdiction for the purpose of mak- ing further orders, that court having refused to determine the merits of the material ques- tion in issue. Ex parte Clarke, 20: 171, 118 N. W. 472, 82 Neb. 625. 149. A divorced mother does not show her unfitness, because of breach of good morals or violation of public policy, to have the custody of her child, by going into an- other state to avoid the operation of a statute forbidding her remarriage, contract- ing such marriage, and immediately return- ing to the state of her domicil. Dudley v. Dudley, 32: 1170, 130 N. W. 785, 151 Iowa, 142. 150. A divorce decree forbidding the fa- ther to visit his child, which is awarded to the custody of its mother, at her home, is not modified by the fact that the child becomes ill. Rader v. Davis, 38: 131, 134 N. W. 849, 154 Iowa, 306. Support of child in custody of moth- er; after father's death. See also INFANTS, 18. 151. The legal obligation of a father for the support of his minor children is not j affected by a decree of divorce for his con- | duct, which gives the custody of the chil- dren to the wife, but is silent as to their support, and, if he refuses or neglects to support them, she may recover from him in an original action a reasonable sum for nec- essaries furnished by her for their support after such decree, as the law implies a prom- ise on his part to pay for such necessaries. Spencer v. Spencer, 2: 851, 105 N. W. 483, 97 Minn. 56. (Annotated) 152. A father is not absolved from his duty to support his -minor child by the fact Digest 1-52 L.R.A.(N.S.) | that his wife obtains a divorce from him ' and is given custody of the child, without anything in the decree as to who shall bear the burden of such support, where the serv- ice on defendant was by publication, so that the court acquired no jurisdiction to provide for the support of the child; and, in case the mother furnishes the support, she may recover over against the father therefor. Alvey v. Hartwig, n: 678, 67 Atl. 132, 106 Md. 254. 153. A father is not relieved from his duty to support his children by a divorce de- cree awarding their custody to the mother, and directing the payment to her of a cer- tain gross amount in instalments as alimony for her support and that of the children, which will be exhausted before they reach maturity. Graham v, Graham, 8: 1270, 88 Pac. 852, 38 Colo. 453. 154. The child's ability to earn money should be taken into account in making a decree against its father for support, in favor of the mother, to whom its custody has been awarded in a divorce proceeding. Graham v. Graham, 8: 1270, 88 Pac. 852, 38 Colo. 453. 155. An obligation assumed by a father in connection with a divorce, to contribute a certain amount per month towards the support of his child, the payment to con- tinue during minority of the child, but to cease upon her earlier death, survives his death during minority of the child. Stone v. Bayley, 48: 429, 134 Pac. 820, 75 Wash. 184. " (Annotated) 156. The court may, in granting a di- vorce, provide for the support of minor children out of the father's estate after his death, under a statute empowering it to make such disposition of the property of the parties as shall appear just, and pro- vide for the support of minor children. Stone v. Bayley, 48: 429, 134 Pac. 820, 75 Wash. 184. 157. Authority to enter a decree providing for the support of minor children after the father's death upon granting a divorce may be conferred upon the courts by agreement of the parties. Stone v. Bayley, 48: 429, 134 Pac. 820, 75 Wash. 184. 158. Failure to pay the allowance for the support of the children which are committed to the custody of the mother upon the grant- ing of a divorce, with an allowance for support to be paid by the father, does not render him liable for criminal prosecution under the statute for desertion and aban- donment. People v. Dunston, 42: 1065, 138 N. W. 1047, 173 Mich. 368. (Annotated) VIII. Agreements for support and maintenance. a. In general. (See also same heading in Digest L.R.A.. 1-10.) Release of claim growing out of contract for support upon separation, see AC- CORD AND SATISFACTION, 22. f>50 DIVORCE AND SEPARATION, VIII. b DOCUMENTS. Effect of separation agreement on right to inherit, see DESCENT AND DISTRIBUTION', 27. Revocation of will by settlement of prop- erty rights in anticipation of divorce, see WILLS, 58. Validity of anticipatory contract making provision for wife in event of her ob- taining divorce for subsequent fault of husband, see CONTRACTS, 478. Parol evidence to contradict apparent pur- pose of contract to effect renunciation of marital rights, see EVIDENCE, 955. 159. A contract between a husband and wife who have separated, for a specified maintenance, to be paid by him to her, is enforceable under statutes giving the wife unlimited right to contract. Winter v. Win- ter, 16: 710, 84 N. E. 382, 191 N. Y. 462. Effect of remarriage or resumption of marital relations. 160. Reconciliation and the resumption of marital relations do not necessarily avoid a separation agreement previously made by the parties; such effect depending on the question whether the provisions of the con- tract and the conduct and circumstances show an intention to treat the agreement as no longer in force. Dennis v. Perkins, 43: 1219, 129 Pac. 165, 88 Kan. 428. (Annotated) 161. Reconciliation and the resumption of marital relations do not warrant the court in deeming ,a separation agreement avoided, any further, if at all, than its terms, taken in connection with the situ- ation and conduct of the parties, indicate their intention to avoid it. Dennis v. Per- kins, 43: 1219, 129 Pac. 165, 88 Kan. 428. 162. Remarriage of the parties does not invalidate a contract by which a divorced man agrees to allow his former wife an annuity, to be secured by a trust deed on real estate, in lieu of alimony allowed to her by a decree of divorce, from the lien of which his property is to be released, and as a marriage settlement. Savage v. Savage, 3: 923, 141 Fed. 346, 72 C. C. A. 494. (Annotated) b. Validity of. (See also same heading in Digest L.R.A.. 1-10.) 163. A husband and wife cannot contract to renounce their marital rights. Hill v. Hill, 12: 848, 67 Atl. 406, 74 N. H. 288. (Annotated) 164. A provision in a contract looking to the separation of husband and wife, that she will accept a certain sum in satisfaction of her claims against his estate, is not sepa- rable from the provision as to separation, and, the latter being void, the former falls with it. Hill v. Hill, 12: 848, 67 Atl. 406, 74 N. H. 288. 165. A promise by the husband to make a payment to his wife, in discharge of his obligation to provide for her support after a divorce granted to her. not entered into Digest 1-52 L.R.A.(N.S.) to facilitate the granting of the divorce, is based on a consideration, and is valid. Nelson v. Vassenden, 35: 1167, 131 N. W. 794, 115 Minn. 1. (Annotated) Hi6. That a promise by a husband to make a payment to his wife in discharge of his obligation to provide for her support after divorce is granted to her is not em- bodied in a divorce decree does not render it invalid if not in conflict with the de- cree. Nelson v. Vassenden, 35: 1167. 131 N. W. 794, 115 Minn. 1. 167. An agreement by a man to pay his wife, from whom he has separated, a speci- fied sum per week for support, does not contravene a statute forbidding contracts which relieve him from liability to support his wife. Winter v. Winter, 16: 710. 84 N. E. 382, 191 N. Y. 462. 168. A separation agreement by which a' man worth from $15,000 to $60,000 pays his wife, who has nothing, is in distress, and with no one to look to for advice, $500 in lieu of all interest in his estate, will be set aside as unfair. McConnell v. McConnell, 33: 1074, 136 S. W. 931, 98 Ark. 193. DOCKED TAIL HORSES. Right of state to forbid importation and use of, see COMMERCE, 38. DOCKET. Sufficiency of entry in, see APPEAL AND EfiR^jt, 151. DOCKS. See WHARVES. DOCTRINE. Of religious societies, see RELIGIOUS SO- CIETIES. DOCUMENTARY EVIDENCE. See EVIDENCE, IV. DOCUMENTS. Production of, generally, see DISCOVERY AND INSPECTION, I. Privilege against compulsory production of books or documents, see CRIMINAL LAW, 108-118. Sealed packet as, see DISCOVERY AND IN- SPECTION, 9. DOG GRATES DOM1CIL. 951 Action to compel delivery of, by attorney, see ESTOPPEL, 199. Mandamus to compel officer to deliver copy thereof, see MANDAMUS, 7. Mandamus to compel production of, see MANDAMUS, 24. Taking of, into jury room, see TRIAL, 13-15. DOG GRATES. As fixtures, see FIXTURES, 22. DOGS. Taxes on, see ANIMALS, I. f. Liability for injuries by, see ANIMALS, II. c. 2. Fine for keeping dog which does not wear collar, see ANIMALS, 3. Arrest of passenger for refusal to put dog in baggage car and to pay fare for it, see CARRIERS, 155. Liability for injury to passenger bv, see CARRIERS, 202. Burial of, in cemetery, see CEMETERIES, 3 ; INJUNCTION, 41. Presumption that dog will not display vi- cious propensities toward keeper, see EVIDENCE, 648. Opinion evidence as to habits of, see EVI- DENCE, 1201. Evidence of pedigree of dog killed, see EVI- DENCE, 1275. Evidence as to value of dog killed, see EVI- DENCE, 1691. Trailing of criminal with bloodhound, see EVIDENCE, 1984-1988, 2356, 2357 ; IRIAL, 931. Liability for killing of, or injury to, see STREET RAILWAYS, 52. DOING BUSINESS. By foreign insurance company, see INSUR- ANCE, 18, 19. By foreign corporation generally, see COR- PORATIONS, VII. b. DOMESTIC RELATIONS. Conflict of laws as to, see CONFLICT OF LAWS, I. c. In general, see various particular subjects, such as DIVORCE AND SEPARATION; GUARDIAN AND WARD; HUSBAND AND WIFE; INFANTS; MARRIAGE: MASTER AND SERVANT; PARENT AND CHILD. DOMESTIC SCIENCE. Instruction in, see SCHOOLS, I. a. Digest 1-52 L.R.A.(N.S-) DOMESTIC SERVANT. As fellow servant, see MASTER AND SERV- ANT, 795. DOMICIL. Acquirement of, in foreign country, see CONFLICT OF LAWS, 119. Of wife abandoned by husband, see CON- FLICT OF LAWS, 121. Of child for purpose of jurisdiction, see COURTS, 17 ; GUARDIAN AND WARD, 6. For purposes of divorce suit, see DIVORCE AND SEPARATION, II. Duty of wife to follow husband to new domi- cil, see DIVORCE AND SEPARATION, 49. For purpose of election, see ELECTIONS, 9-14. Presumption and burden of proof as to, see EVIDENCE, 127, 128, 318. Evidence on question of domicil of infant, see EVIDENCE, 767. Effect of, on jurisdiction of action to annul marriage, see MARRIAGE, 27. Jurisdictional averment, see PLEADING, 166- 168. Residence for school purposes, see SCHOOLS, 6-8. As question of fact, see TRIAL, 283. As one of mixed law and fact, see TRIAL, 162. 1. The domicil of one through whose dwelling runs the boundary line dividing two municipalities is in the one containing the portion of the structure most closely connected with the primary purposes of a dwelling. East Montpelier v. Barre, 10: 874, 66 Atl. 100, 79 Vt. 542. (Annotated) Of child after divorce or separation. 2. The domicil of an infant follows that of his father upon the latter's changing his domicil from one state to another, notwith- standing an agreement between its parents, upon their separation, that the mother should have the control of the child. Lan- ning v. Gregory, 10: 690, 99 S. W. 542, 100 Tex. 310. 3. The domestic status of a child is, for the time, changed by a decree taking it from the custody of its father, who resides in another state, and consigning it to that of its mother for a period of years. Lan- ning v. Gregory, 10: 690, 99 S. W. 542, 100 Tex. 310. Change of. Sufficiency of evidence to show change, see EVIDENCE, 2216. Right of next of kin to change domicil of infant after death of parents, see GTIABDIAN AND WARD, 25. Power of infant to change, see INFANTS, 59. Change of, which will relieve property from taxation, see TAXES, 124. Question for jury as to intent, see TRIAL, 283. 4. A residence within the state, once acquired, continues until an actual or con- structive residence elsewhere has been ac- 952 DON AT 10 CAUSA MORTIS DOWER. quired. Brown v. Beck with, z: 778, 51 S. E. 977, 58 W. Va. 140. 5. One's character as a nonresident is not changed l>y coming into the state for the purpose of administering upon an estate, with the intention of remaining there as long as his duties may require, if he retains his domicil in another etate. Re Mulford, i: 341, 75 N. E. 345, 217 111. 242. 6. One does not lose his domicil so as to be exempt from taxation there, by starting on an extended journey with the intention of establishing the domicil else- where, until he has actually established such domicil. Barhydt v. Cross, 40: 986, 136 N. W. 525, 156 Iowa. 271. (Annotated) 7. Whether a departure from an estab- lished domicil in this state to, and a resi- dence in, some other state, results in an abandonment of the same as a legal resi- dence, depends upon the circumstances sur- rounding each particular case; and the question is controlled largely by the inten- tion of the person making the change. Bechtel v. Bechtel, 12: noo, 112 N. W. 883, 101 Minn. 511. 8. A change of boundary lines so as to transfer a person's dwelling from one mu- nicipality to another after he has removed to a third, does not effect a change of his residence from the one to the other. East Montpelier v. Barre, zo: 874, 66 Atl. 100, 79 Vt. 542. 9. A woman does not effect a change of domicil, so as to deprive the probate courts of her former state of residence of juris- diction of her estate, by removing into an- other state with her husband for the benefit of his health, and remaining there after his death, so that her sojourn there is in all about twelve years, where both her hus- band and herself always, except in casual reference to "home," claimed their domicil at the old residence, no change of property or business interests having been effected. Pickering v. Winch, 9: n^g, 87 Pac. 763, 48 Or. 500. (Annotated) DONATIO CAUSA MORTIS. See GIFT, II. DONATION. On condition of locating public buildings near property donated, see ASSUMPSIT, 13 ; CONTRACTS, 518, 614. Of public money, see PUBLIC MONEYS. See also GIFT. DORMANCY. Of judgment, see INCOMPETENT PEBSONS, 30; JUDGMENT, 265-267, 318. Digest 1-52 L.R.A.(N.S.) DOUBLE COUNTS. See ACTION OB SUIT, 107 ; PLEADING, 186- 188. DOUBLE DAMAGES. See DAMAGES, IV. *-- DOUBLE INDEMNITY. On accident policy, see INSURANCE, 803. DOUBLE TAXATION. In requiring labor on highway, see HIGH- WAYS, 143. By imposition of license tax, see LICENSE, 25-28. In general, see TAXES, 26-34, 270, 364. DOUBTFUL TITLE. Specific performance of contract in case of, see SPECIFIC PERFORMANCE, I. e, 2. DOVES. IV.'I f>- ..'.. Criminal liability for killing, see MALI- CIOUS MISCHIEF. DOWER. /. Right to, 1-33. a. Nature and extent, 1. b. In what property, 211. c. How barred, 1233. II. Rights and remedies of widow, 34 47. Proper remedy to review decree of bank- ruptcy court disallowing claim for, see APPEAL AND ERROR, 55. Sale of bankrupt's property free from wife's right of, see BANKRUPTCY, 2. Conflict of laws as to, see CONFLICT OF LAWS, 106, 107. Enlarging dower rights as against holder of judgment lien on property, see CON- STITUTIONAL LAW, 773. Jurisdiction of petition for allotment of dower in personalty, see COURTS, 240, 241. Conveyances in fraud of wife's right af, see HUSBAND AND WIFE, II. j, 2. Effect on dower of disaffirmance by infanta of deed executed jointly with their mother of property in which she had a dower interest, see INFANTS, 89. DOWER, I. a, b. 953 Entry of judgment nunc pro tune against dower rights of wife, see JUDGMENT, 62. Effect of dower estate to prevent bar of laches as against heirs, see LIMITATION or ACTIONS, 60. Right to, entitling wife to redeem from fore- closure sale, see MORTGAGES, 161-163, 166, 167. Right of widow prior to assignment of dower to maintain trespass quare clausum, see PARTIES, 22. Attempt to defeat action for, on theory of nontenure after plea in bar, see PLEAD- ING, 512. Effect of dower right on specific perform- ance, see SPECIFIC PERFORMANCE, 119. Inheritance tax on, see TAXES, 311, 312. Succession tax on provision for wife in lieu of, see TAXES, 313. Effect of selling property under mistaken belief that it is subject to, see VENDOR AND PURCHASER, 8. Dowress as heir of husband, see WILLS, 165. I. Right to. a. Nature and extent. (See also same heading in Digest L.R.A. 1-10.) Year's support to widow, see EXECUTORS AND ADMINISTRATORS, 116, 117. Priority of legacy given in satisfaction of dower, see WILLS, 406. 1. During the life of the husband, the dower interest of the wife in his estate is not a vested one growing out of the marriage contract, but a mere expectancy or possibil- ity incident to the marriage relation, con- tingent upon her surviving the husband. Stitt v. Smith, 13: 723, 113 N. W. 32, 102 Minn. 253. 6. In what property. (See also same heading in Digest L.R.A. 1-10.) 2. A widow is dowable to the extent of one third of the real estate whereof the husband, or anyone to his use, at any time during the coverture, was seised of an in- heritance such as that issue of the mar- riage might inherit the same as heir to the husband, unless her right to dower therein has been lawfully barred or relinquished. Couch v. Eastham, 39: 307, 73 S. E. 314, 69 W, Va. 710. 3. Where the rule that a widow is dowable only in lands of which her hus- band died seised and possessed prevails, the widow of an improving cotenant is not entitled to have assigned, in addition to dower in her husband's undivided share in the whole premises, a dower estate in the improvements placed thereon by her Digest 1-52 L.R.A.(N.S.) husband, although in a partition of the premises by sale, the husband would be equitably entitled to be compensated for his improvements to the extent they may have enhanced the common property. Helmken v. Meyer, 45: 738, 75 S. E. 586, 138 Ga. 457. (Annotated) 4. Where one is seised of an estate in land that is limited only on his dying with- out lawful children, the estate, being one that can pass to heirs if lawful children are born, is an "estate of inheritance" in which the widow is dowable though it ex- pire by failure of issue. Couch v. Eastham, 3g: 307, 73 S. E. 314, 69 W. Va. 710. ( Annotated ) 5. The widow of a grantor, who con- veyed land in trust for his benefit during life, but who retained the absolute and un- limited power of disposal of the land in fee simple, is entitled to dower in the land on the ground that her husband was the owner of a perfect equitable estate in fee simple during coverture. Meyer v. Bar- nett, 6: 1191, 56 S. E. 206, 60 W. Va. 467. 6. A widow cannot recover her dower interest for lands alienated by her husband during his lifetime, out of his estate, either at common law or under a statute passed after the alienation of the property, making her dower interest one third absolutely in value of the real estate possessed by him during coverture. Re Park's Estate, 8: noi, 87 Pac. 900, 31 Utah, 255. (Annotated) 7. There is no dower interest in real estate of which the husbanu has, in his life- time, no present estate of inheritance. Gray v. Whittemore, 10: 1143, 78 N. E. 422, 192 Mass. 367. 8. A railroad does not take land pur- chased for a gravel pit free from the right of the grantor's wife to dower, although it so far devotes the land to public use as to secure therefrom materials for its roadbed. McAllister v. Dexter & P. R. Co. 29: 726. 76 Atl. 891, 106 Me. 371. (Annotated) 9. A dower interest does not vest in the second wife of a man who, his first wife having inherited real estate, receives a grant to himself and his wife and the wife's heirs from the other heirs for purposes of parti- tion. Sprinkle v. Spainhour, 25: 167, 62 S. E. 910, 149 N. C. 223. In personalty. 10. Where the statute provides that the widow shall be endowed of personal estate as well as realty, policies of insurance is- sued tyo insured on his own life, payable to himself or at his death to his executors, ad- ministrators, or assigns, which remain his property at his death, are subject to the widow's dower. Burdett v. Burdett, 35: 964, 109 Pac. 922, 26 Okla. 416. (Annotated ) 11. The term "seised," as used in a stat- ute giving a right to dower in personalty, means title or ownership which carries with it the immediate right of possession. Burdett v. Burdett, 35: 964, 109 Pac. 922, 26 Okla. 416. 954 DOWER, I. c. c. How barred. (See also same heading in Digest L.R.A.. 1-10.) Estoppel to claim, see ESTOPPEL, 64, 131, 260. Effect of laches, see LIMITATION OF AC- TIONS, 37. Effect of election to take under will, see WILLS, III. i. 12. Dower can be set aside only by the plain mandate of a statute, or by necessary implication therefrom. Chrisman v. Lin- derman, 10: 1205, 100 S. W. 1090, 202 Mo. 605. 13. A release of dower cannot be en- forced after the instrument embodying it, which was given to secure the debt of the husband alone, has been set aside in a bankruptcy proceeding against him, as a voidable preference under the bankruptcy act. Re Lingafelter, 32: 103, 181 Fed. 24, 104 C. C. A. 38. (Annotated) 14. Congress has no power to terminate the dower rights existing under state laws, upon the bankruptcy of the husband. Thomas v. Woods, 26: 1180, 173 Fed. 585, 97 C. C. A. 535. (Annotated) 15. Permitting her husband to use the proceeds of his land in her support does not estop a woman from asserting her dower rights in the property. Hyatt v. O'Connell, 3: 971, 107 N. W. 599, 130 Iowa, 567. (Annotated) 16. Failure of a woman to search for her husband, who has disappeared, will not estop her from asserting her dower rights in property which he conveyed during his absence. Smith v. Fuller, 16: 98, 115 N. W. 912, 138 Iowa, 91. By conveyance to third person. See also infra, 19. 17. The joinder by a married woman in a deed of her husband's property contain- ing general covenants of warranty will not estop her from asserting her dower rights in the property, where the statute pre- scribed the method of renunciation of such right after her examination separate and apart from her husband. Gainey v. Ander- son, 31 : 323, 68 S. E. 888, 87 S. C. 47. 18. The reconveyance by a man of real estate, which had been deeded to him on condition, because of his breach thereof, will bar the dower rights of his wife where no intent to defraud her is shown. Sullivan v. Sullivan, 22: 691, 117 N. W. 1086, 139 Iowa, 679. (Annotated) By mortgage or foreclosure thereof. 19. The conveyance by a man and wife of his land in satisfaction of a mortgage which they had executed on the property, in which the wife had renounced her dower, operates, in the absence of express inten- tion to the contrary, as a satisfaction of the mortgage, and causes a reverter of the wife's dower interest, which she may en- force if it is not released in the deed. Digest 1-52 L.R.A.(N.S.) Gainev v. Anderson, 31: 323, 68 S. E. 888, 87 S. C. 47. (Annotated) 20. A mortgage in which the wife re- leased her dower right cannot, r.fter it has been barred by the statute of limitations, avail to prevent an enforcement of such right against the property, which passed into the possession of the mortgagee in satisfaction of the mortgage debt without foreclosure. Gainey v. Anderson, 31: 323, 68 S. E. 888, 87 S. C. 47. By tax sale. 21. A tax sale is not judicial within the meaning of a statute annulling dower rights by judicial sale. Lucas v. Purdy, 24: 1294, 120 N. W. 1063, 142 Iowa, 359. 22. Under a statute making taxes on real estate a perpetual lien on the prop- erty against all persons, a tax sale of a man's land destroys his wife's inchoate right of dower in the property, where the taxes are collectable only out of the land, and a tax title is regarded as a new one derived directly from the state. Lucas v. Purdy, 24: 1294, 120 N. W. 1063, 142 Iowa, 359. (Annotated) By divorce. Conflict of laws as to, see CONFLICT OF LAWS, 80. Repeal of statute granting dower to di- vorced wife, see STATUTES, 365. 23. Acceptance, by a wife, of a sum al- lowed her by a decree of divorce in lieu of dower, bars her rights under an antenuptial contract which provides for payment to iier, at her husband's death, of a certain sum of money in lieu of dower. Long v. Barton, 19: 384, 86 N. E. 127, 236 111. 551. By remarriage. 24. Remarriage of the widow does not destroy her dower right, although the de- cedent's real estate does not exceed in value the homestead right, which is destroyed by such remarriage, under statutes giving her a homestead during widowhood, and pro- viding that in the assignment of her rights the value of the homestead shall be deducted from her dower, and, in case the former equals or exceeds the latter, no dower shall be assigned, the homestead and dower inter- ests not being merged. Chrisman v. Lin- derman, 10: 1205, 100 S. W. 1090, 202 Mo. 605. (Annotated) 25. The marriage of a woman during her husband's lifetime, to another man, and, at his death, her taking property from him by will and subsequently remarrying her husband, will not estop her from claim- ing dower in land sold by her husband prior to such transactions, since her conduct could not have misled the purchasers; nor is she estopped by her husband's represen- tations in the deeds. Smith v. Fuller, 16: 98, 115 X. W. 912, 138 Iowa, 91. By antenuptial agreement. By postnuptial agreement, see infra, 32, 33. Inadequacy of provision in antenuptial agreement in lieu of dower, see HUS- BAND AND WIFE, 133. See also supra, 23; HUSBAND AND WIFE, 126. DOWER, II. 955 26. At common law the right of dower cannot be waived or lost by an antenuptial agreement. Rieger v. Schaible, 17: 866, 115 N. W. 560, 116 N. W. 953, 81 Neb. 33. 27. Under a statute providing that a jointure settled upon a wife shall bar her right of do ver, such right is not lost by an antenuptial contract by the terms of which she receives no freehold estate in the lands of her intended husband. Rieger v. Schaible, 17: 866, 115 N. W. 560, 116 N. W. 953, 81 Neb. 33. 28. A statutory provision that jointure is a bar to dower does not ordinarily deprive an intended wife of the power to bar her dower by any other form of antenuptial con- tract. Rieger v. Schaible, 17: 866, 115 N. W. 560, 116 N. W. 953, 81 Neb. 33. (Annotated) 29. An antenuptial contract made in good faith between parties, each of whom owned real and personal property not disproportionate in value, providing that, in consideration of marriage, each party thereto waived and released, and forever quitclaimed and renounced, all dower and other interest in and to the real estate and personal property which the other party had or should thereafter acquire, the expressed intention being that all the property of each should descend to his or her lawful heirs, released and devested of all claims of dower, curtesy, or other interest that the other contracting party might have as husband or wife, widower or widow, under the laws of the state, is sufficient to bar the widow's statutory allowance; the rights of children not being involved. Rieger v. Schaible, 17: 866, 115 N. W. 560, 116 N. W. 953, 81 Neb. 33. 30. That an antenuptial contract barring dower does not secure for the wife a pro- vision for support after the death of the husband will not prevent the court from en- forcing it, if it is free from fraud or over- reaching. Re Deller, 25: 751, 124 N. W. 278, 141 Wis. 255. By conveyance to wife or settlement after marriage. 31. A mere conveyance of real estate by a husband to his wife does not have the ef- fect of barring her dower in his remaining property. Cowdrey v. Cowdrey (N. J. Err. & App.) 12: 1176, 67 Atl. Ill, 72 N. J. Eq. 951. 32. A written marriage settlement exe- cuted after the marriage is not effectual to bar the wife's dower interests under statutes which provide a settlement executed before marriage as the only means of effecting that result, without the possibility of her electing to take her statutory rights re- gardless of the settlement. Rowell v. Bar- ber, 27: 1140, 125 N. W. 937, 142 Wis. 304. 33. The mere consent by a widow to the recording of a deed of property exe- cuted in accordance with a marriage settle- ment, taking possession of the property, and collecting the rents, does not amount to an election to take under the contract rath- er than under the law, if without delay she recalls her consent and tenders a reconvey- Digest 1-52 L.R.A.(N.S.) ance. Rowell v. Barber, 27: 1140, 125 N. W. 937, 142 Wis. 304. I/. Rights and remedies of widow. (See also same heading in Digest L.R.A. 1-70.) Damages for failure to allow dower, see DAMAGES, 308. Demand for. Necessity of written authority to enable at- torney to sign demand for, see CON- TRACTS, 255. See also infra, 47. 34. A demand for dow.er in premises de- scribed by reference to a recorded deed is sufficient, although the deed includes two parcels, and dower is claimed in one only of them. McAllister v. Dexter & P. R. Co. 29: 726, 76 Atl. P91, 106 Me. 371. 35. A demand for dower need not etate the portion of the income which is claimed, as affected by the question whether issue was living at the time it became consum- mate or not. McAllister v. Dexter & P. R. Co. 29: 726, 76 Atl. 891, 106 Me. 371. 36. A demand for dower by an attorney with authority to make demand with re- spect to one parcel of land is not vitiated by the fact that his demand includes an- other parcel also. McAllister v. Dexter & P. R. Co. 29: 726, 76 Atl. 891, 106 Me. 371. 37. Dower claimed out of the homestead may be set aside free from the claims of even a purchase money mortgage, if the remainder of testator's property is sufficient to satisfy the mortgage. Haynes v. Rolstin, 52: 540, 145 N. W. 336, 164 Iowa, 180. (Annotated) Liability to pay accrued taxes. 38. Under a statute providing that a widow shall be endowed of a third part of the property whereof her husband died seised, taxes which accrued prior to assign- ment of the dower cannot, in favor of others entitled to share in the estate, be deducted from the cash value of her dower interest, which she agrees to take in lieu of dower upon sale of the property, whether they accrued before or after the death of the husband. Underground Electric R. Co. v. Owsley, 40: 609, 196 Fed. 278, 116 C. C. A. 98. ' (Annotated) 39. A provision in an agreement of a widow to take cash in lieu of dower upon sale of the property, that the dower shall be valued as of the date of admeasure- ment, does not subject her interest to the lien of taxes which accrued before that date. Underground Electric R. Co. v. Owsley, 40: 609, 196 Fed. 278, 116 C. C. A. 98. 40. Under an agreement that, in case a widow will take her dower interest in cash, her occupancy of the property before assignment of dower shall be without charge to her, it is not chargeable with taxes even though occupancy prior to assignment might, under some circumstances, render her interest so subject. L T ndergroupd Elec- 956 DRAFTS DRAINAGE DISTRICTS. trie R. Co. v. Owsley, 40: 609, 196 Fed. 278, 116 C. C. A. 98. 41. Under a statute making a widow's dower interest subordinate to the lien of a purchase-money mortgage, it is also subor- dinate to the lien which the mortgage gives the mortgagee for taxes which he is com- pelled to pay upon the property, and she is not entitled to reimbursement for the amount of such lien by the heirs, who are not required to protect her dower interest against such taxes. Underground Electric R. Co. v. Owsley, 40: 609, 190 Fed. 278, 116 C. C. A. 98. Assignment. When action for assignment of, is barred, see LIMITATION OF ACTIONS, 265. Effect of election not to take under will on assignment, see WILLS, 366. 42. Dower will be assigned according to the value at the time of assignment, and not according to the value at the time of the husband's death. Williams v. Thomas, 3 B. R. C. 929, [1909] 1 Ch. 713. Also Re- ported in 78 L. J. Ch. N. S. 473, 100 L. T. N. S. 630. (Annotated) 43. A dowress has two separate and dis- tinct rights, namely, one third of the rents and profits from the death of the husband until dower is assigned, and the right to have dower assigned; and if she claims and enjoys her right to the receipt of the rents and profits, she will not be prejudiced by reason of not having, during that period, claimed her right to an assignment. Wil- liams v. Thomas, 3 B. R. C. 929, [1909] 1 Ch. 713. Also Reported in 78 L. J. Ch. N. S. 473, 100 L. T. N. S. 630. 44. The court cannot, in allotting dower, compel the widow to take the dwelling house, under a statute providing that her distributive share shall be set off so as to in- clude the dwelling house, unless she pre- fers a different arrangement. Rice v. Rice, 34: 917, 125 N. W. 826, 147 Iowa, 1. 45. Devisees of remaining land of one who has made voluntary deeds to certain of his children cannot complain that tes- tator's widow is required to take her dower interests out of such remaining land, in ex- oneration of the land conveyed. Rice v. Rice, 34: 917, 125 N. W. 826, 147 Iowa, 1. 46. Children receiving voluntary deeds of real estate from their father are entitled to require his widow to take her dower in- terests out of his remaining land, if she will not be prejudiced thereby. Rice v. Rice, 34: 917, 125 N. W. 826, 147 Iowa, 1. (Annotated) Damages for detention. 47. A widow cannot recover damages or rent for withholding her dower until de- mand is made for its assignment. Hyatt v. O'Connell, 3: 971, 107 N. W. 599, 130* Iowa, 567. Payment by bank of draft with forgi'd 5n- dorsenu'iit, seo BANKS, 129, 137. Bank to Which deed with sight draft for purchase price is sent as agent of ven- dor, see BANKS, 151. Money received by insolvent banker for pur- chase of, as trust fund, see BANKS, 205- 208. With bill of lading attached, see BILLS OF LADING. Construction of agreement to pay, see CON- TBACTS, 368. In general, see BILLS AND NOTES; CHECKS. DRAINAGE COMMISSIONERS. Delegation of power to, see CONSTITUTION- AL LAW, 123. Admissibility in evidence of report of, see EVIDENCE, 751. DRAFTS. Bank draft as assignment, see BANKS, 80. Payment by bank of forged draft, see BANKS, 110, 111, 120. Digest 1-52 L.R.A.(N.S.) DRAINAGE DISTRICTS. Liability for cost of maintaining bridgo, see BRIDGES, 5, 6. Delegation of power to drainage commission- ers, see CONSTITUTIONAL LAW, 123. Refusal of judicial review as to inclusion of land in, see CONSTITUTIONAL LAW, 544. Liability for flooding of lands by obstruc- tion of water, see EMINENT DOMAIN, 244. Estoppel to object to formation of drainage district, see ESTOPPEL, 128. Statute providing for costs of organization as amendment of statute authori/.ing organization, see STATUTES, 358. 1. A landowner is not entitled to a hearing upon the question whether or not his land shall be included in a district which shall bear the cost of a drainage improve- ment, if provision is made for a hearing as to the assessment. Ross v. Wright County, i: 431, 104 N. W. 506, 128 Iowa, 427. 2. The drainage of lands to improve them for agricultural purposes cannot be re- garded as an exercise of the police power, so as to exempt the land so drained from liability for injury caused by the improve- ment to other land not within the district. Bradbury v. Vandalia Levee & Drainage Dist. 19: 991, 86 N. E. 163, 236 111. 36. 3. A drainage district cannot escape lia- bility for injury done by its improvements, to lands lying out of its limits, on the theory that it is an involuntary quasi public cor- poration not liable to respond in damages for any of its acts, where its organization depends upon a petition of those living with- in its limits, and the statute provides that lands lying within the district shall be lia- ble for any and all damages which shall be sustained by any lands lying above such district by the construction of its works. Bradbury v. Vandalia Levcj & Drainage Dist. 19: 991, 86 N. E. 163, 236 111. 36. ' v ' DRAINS AND SEWERS. 957 4. The failure of an attempt to organize a drainage district under a valid statute does not prevent the assessment upon the property within its proposed boundaries, of the cost of the preliminary proceedings which resulted in such failure. Northern P. R. Co. v. Pierce County, 23 : 286, 97 Pac. 1099. 51 Wash. 12. 5. Land not benefited may be included in a drainage district the organization of which is authorized by a statute permit- ting it, where the improvement would be of special benefit to a majority of the lands included within the boundaries of the dis- trict. Northern P. R. Co. v. Pierce County, 23 : 286, 97 Pac. 1099, 51 Wash. 12. 6. That land included in a drainage dis- trict has been found not to be subject to benefit by the proposed improvement will not prevent its assessment for the prelim- inary expenses of the enterprise, where it is abandoned because the cost is found to exceed the benefit. Northern P. R. Co. V. Pierce County, 23: 286, 97 Pac. 1099, 51 Wash. 12. 7. Statutory authority to levy a tax to pay the preliminary expenses of organiz- ing a drainage district which fails does not violate a constitutional provision depriving the legislature of power to impose taxes upon the inhabitants of municipal corpo- rations for municipal purposes, since the or- ganization of the district is voluntarily en- tered into and the burden of paying the ex- penses necessary to effectuate its object vol- untarily assumed. Northern P. R. Co. v. Pierce County, 23: 286, 97 Pac. 1099, 51 Wash. 12. 8. A statute prescribing that one must be a bona fide owner of land within the limits of a drainage district to entitle him to vote upon the organization thereof and election thereinafter held is a violation of a constitutional provision that no property qualification shall ever be required for any person to vote or hold office except in school elections or elections creating indebtedness. Ferbrache v. Drainage Dist. No. 5, 44:538, 128 Pac. 553, 23 Idaho, 85. (Annotated) 9. Under a constitutional provision that the legislature may prescribe qualifica- tions, limitations, and conditions for the right of suffrage additional to those pre- scribed in other parts of the Constitution, but shall never annul any such constitu- tional provisions, a statute giving to every natural person of legal age who is a bona fide owner of real estate within the limits of a drainage district the right to vote upon the organization thereof and elections there- inafter held is a violation of another con- stitutional provision requiring voters to be citizens of the United States of a certain age, and residents of the state for a certain period, and in the country where the vote is desired to be cast for a certain period previous to the election, requiring them to be registered. Ferbrache v. Drainage Dist. No. 5, 44: 538, 128 Pac. 553. 23 Idaho, 85. 10. Elections to determine upon the creation and organization of a drainage dis- trict are not elections alone creating an indebtedness, so as to authorize a property Digest 1-52 L.R.A.(N.S.) qualification in order to exercise the right of suffrage therein. Ferbrache v. Drainage Dist. No. 5, 44: 538, 128 Pac. 553, 23 Idaho, 85. DRAINS AND SEWERS. I. In general; establishment; re- pairs; statutes, 17. II. Procedure, S. III. Assessments, 9, 1O. As to drainage district, see DRAINAGE DIS- TRICTS. Pollution of water by sewage, see ATTORNEY GENERAL, 9; INJUNCTION, 228; NUI- SANCES, 140, 183; WATERS, 119-125, 226-228. Refusal of judicial review as to, see CON- STITUTIONAL LAW, 544. Easement for public sewer as within cove- nant against encumbrances in deed of property, see COVENANTS AND CONDI- TIONS, 59. Nominal damages for flooding by destruc- tion of, see DAMAGES, 11. Easement in, see EASEMENTS, 11, 49. Easement to maintain sewer across private property, see EASEMENTS, 16. Implied reservation of right to drainage, see EASEMENTS, 41. Power of municipality to condemn spur track to power plant to be used in con- nection with drainage system, see EMI- NENT DOMAIN, 93. Estoppel to dam up drainage ditch, see ESTOPPEL, 231. Admissibility in evidence of report of drain- age commissioner, see EVIDENCE, 751. Admissibility in evidence of records as to laying out of, see EVIDENCE, 752. City's authority to pay damages from con- struction of, see HIGHWAYS, 32. Liability for turning steam into sewer, see HIGHWAYS, 267, 268. Liability for negligence in constructing, see HIGHWAYS, 378. Landlord's liability for nuisance resulting from, see LANDLORD AND TENANT, 336, 137. Liability for negligence of independent con- tractors in constructing, see MASTER AND SKRVAXT, 992, 1034. Municipal liability for injury by defects in, see MUNICIPAL CORPORATIONS, II. g, 3. Validity of contract by city for construc- tion of, see MUNICIPAL CORPORATIONS, 225, 233, 234. Right to recover for increased cost in case of alteration in plan, see MUNICIPAL CORPORATIONS, 246. Exceeding debt limit for sewer, see MUNICI- PAL CORPORATIONS, 263, 270. Municipal liability for injury by defects in, see MUNICIPAL CORPORATIONS, II. g, 3. Liability for injury by blasting during con- struction of, see MUNICIPAL CORPORA- TIONS, 345, 346. Municipal liability for injury to employee engaged in constructing, sec MUNICIPAL CORPORATIONS, 377. 958 DRAINS AXD SKWERS, I 111. Joint liability for nuisance created by sew- age plant, see NUISANCES, 310. Autbority of son to represent father in per- mitting municipality to construct sew- er on property, see PRINCIPAL AND AGENT, 28. Proximate cause of nuisance created by, see PROXIMATE CAUSE, 33. Insufficiency of, as proximate cause of in- jury by surface water, see PROXIMATE CAUSE, 71. Duty of railroad company to bridge, see RAILROADS, 30. Effect of construction of, on railroad com- pany's liability for obstructing outlet of pond, see RAILROADS, 294. Specific performance of contract for sewer service, see SPECIFIC PERFORMANCE, 9, 22. Cause of settling of earth in sewer trench, see TRIAL, 163. Improper filling of trench as proximate cause of injury, see TRIAL, 184. Proceeding to establish a civil suit within meaning of statute allowing change of venue, see VENUE, 22. Drainage of surface water, see WATERS, II. g- I. In general; establishment; repairs; statutes. (See also same heading in Digest L.R.A. 1-10.) Liability on bond of contractor for construc- tion of, see BONDS, 35-17. Stipulation for minimum wage in contract for construction of sewer, see CON- TRACTS, 790. Right to condemn railroad property for, see EMINENT DOMAIN, 30. Prospective construction of statute as to lo- cation of drain, see STATUTES, 298. 1. A corporation which constructs a sewer under legislative authority empower- ing it to rent or sell the right to use it may be compelled to permit anyone to connect with it who wishes to do so upon payment of a fee which the court approves as rea- sonable. Pulaski Heights Sewerage Co. v. Loughborough, ag: 319, 129 S. W. 536, 95 Ark. 264. Validity of statutes. Attempt to confer upon courts power to de- termine necessity for, see CONSTITU- TIONAL LAW, 125. Construction of, so as to sustain validity, see STATUTES, 227. 2. Whether or not a statute providing for the drainage of agricultural lands is con- stitutional should be decided in the light of conditions existing in the state where it is enacted. Billings Sugar Co. v. Fish, 26: 973, 106 Pac. 565, 40 Mont. 256. 3. The matter of public utility should be given great consideration in determining whether or not a statute providing for a system of drainage for agricultural pur- poses is constitutional. Billings Sugar Co. v. Fish, 26: 973, 106 Pac. 565, 40 Mont. 256. Digest 1-52 L.R.A.(N.S.) Authority to establish. Provision for reclamation of land as exer- cise of police power, see CONSTITUTION- AL LAW, 642. 4. Pending proceedings for a drainage improvement need not be expressly legalized in order to permit their completion, by a statute enacted to provide for notice to per- sons liable to assessment, for want of which the statute has been held unconstitutional; it is sufficient if the statute assumes that the pending proceedings will continue, and would be idle and meaningless unless that intention was imputed to the legislature. Ross v. Wright County, i: 431, 104 N. W. 506, 128 Iowa, 427. 5. Authority to continue existing pro- ceedings for the construction of a drainage ditch, which have been declared void because of the invalidity of the statute under which they were instituted, for failure to provide for notice to owners of land not touched by the improvement, but which may be as- sessed for the cost, may be conferred by a statute correcting this defect by providing such notice, in the absence of any constitu- tional prohibition of retroactive laws. Ros v. Wright County, i: 431, 104 N. W. 506, 128 Iowa, 427. (Annotated) 6. A city of the second class in Kansas has control of the alleys within its limits^ and has the right to construct sewers there- in. Cherryvale v. Studyvin, u: 385, 91 Pac, 60, 76 Kan. 285. 7. The jurisdiction of a county board of drain commissioners to order the con- struction of a drainage ditch, acquired in conformity with N. D. Rev. Code 1905, 1821, by the filing of a petition therefor signed by the requisite number of freehold- ers, cannot be devested by the action ot the petitioners in withdrawing their names from the petition after the board has taken ac- tion thereunder. Sim v. Rosholt, 11:372, 112 N. W. 50, 16 N. D. 77. (Annotated) II. Procedure. (See also same heading in Digest L.R.A. 1-10.) Remonstrance against improvement, see APPEAL AND ERROR 115; PUBLIC IM- PROVEMENTS, 14. 8. Proceedings for the construction of a drainage ditch cannot be avoided by prop- erty owners properly served with notice be- cause one owner of property affected was not served, at least, where he subsequently appears, and presents and establishes his claim for damages by reason of the improve- ment. Ross v. Wright County, i: 431, 104 N. W. 506, 128 Iowa, 427. ///. Assessments. (See also same heading in Digest L.R.A. 1-10.) Delegation of power as to, see CONSTITU- TIONAL LAW, 123. DRAMA DROP HAMMER. 959 Due process of law in assessments for, see CONSTITUTIONAL LAW, 413. Police power as to, see CONSTITUTIONAL LAW, 642, 642a. Statute providing for front foot assessment, see CONSTITUTIONAL LAW, 642a. Measure of damages where contractor has been delayed in collection of amount due him on contract, see DAMAGES, JOS. Estoppel to object to assessment, see ESTOP- PEL, 128. Right of holder of sewer warrant to penalty collected thereon, see PENALTY, 4. Assessment on railroad for, see PUBLIC IM- PROVEMENTS, 52. Apportionment of assessments for, see PUB- LIC IMPROVEMENTS, 66. Enforcement of assessments for, see PUBLIC IMPROVEMENTS, 79. Construction of statute as to, so as to sus- tain validity, see STATUTES, 227. Liability of township trustees failing to collect assessments to pay contractor, see TOWNS, 15. 9. Failure to object to an assessment by an interested person, of benefits from the improvement of a drainage ditch before its confirmation by the court, waives the ob- jection. Comrs. of Union Drainage Dist. No. 1 v. Smith, 16: 292, 84 N. E. 376, 233 111. 417. 10. Land from which surface water is drained into a natural water course there- on, thereby increasing the volume and ac- celerating the flow thereof, is not subject to assessment for the cost of a ditch or an improvement that will not benefit its drain- age, but is constructed to prevent overflow from the water course, or to benefit the drainage of servient lands. Mason v. Ful- ton County Comrs. 24: 903, 88 N. E. 401, 80 Ohio St. 151. DRAMA. Conflict of laws as to rights in, see CON- FLICT OF LAWS, 108. Common law right of author of, see LITEB- ABY AND ARTISTIC PROPERTY, 3. Copyright of, see COPYRIGHT, 6, 23. DRAMATIZATION. Of copyrighted story, see COPYRIGHT, 9, 12, 21. DRAM SHOP. Incorporated social club as, see INTOXICAT- ING LIQUORS, 127. Digest 1-52 L.R.A.(N.S.) DRAWBRIDGE. Removal of building interfering with opera- tion of, see ESTOPPEL, 12; WATERS, 106, 109. Liability of city for negligence in operation of, see MUNICIPAL CORPORATIONS, 435, 436. See also BRIDGES, 22, 23. DRAYMEN. As common carriers, see CARRIERS, 10. Discrimination between, by carr : er. see CARRIERS, 1007-1013. Municipal regulation of, see MUNICIPAL CORPORATIONS, 177. DREDGE. Situs of sea-going steam dredge for purpose of taxation, see TAXES, 149. DREDGING. Injury to oysters by, see FISHERIES, 18. DRESS GOODS. As baggage, see C'ABRIEBS, 704. +-+-+ DRINKING. As nuisance, see NUISANCES, 48. DRINKING FOUNTAINS. Free water supply for, see WATERS, 360-362. DRIVER. Who is responsible for negligence of driver of hired horse or vehicle, see MASTER AND SERVANT, 42-52. Imputing negligence of, to passenger, see NEGLIGENCE, 257, 258, 260-271. DROP HAMMER. Duty to warn employee of danger in using, see MASTER AND SERVANT, 218. Operation of, as nuisance, see NUISANCES, 23, 156. ouo DROVER DRUGS AND DRUGGISTS. DROVER. Liability of insurance company for injury to, while riding in caboose attached to freight train, see INSURANCE, 722. DROWNING. Of insured person, see EVIDENCE, 2080; IN- SURANCE, 724, 726, 751. Of person caused by log jam in stream, see LCCS AND LOGGING, 5. Municipal liability for, see MUNICIPAL COR- PORATIONS, 339-344. Of child, liability for, generally, see NEGLI- GENCE, 168, 170, 172-175. DRUGS AND DRUGGISTS. Refusal of state board of pharmacy to grant certificate to druggist, see BOARDS, 1. Regulations as to adulteration of food and drugs as interference with commerce, see COMMERCE, 105-110. Vested right to continue in pharmacy busi- ness, see CONSTITUTIONAL LAW, 64. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 285, 286. Due process in statute regulating sale of poisons by, see CONSTITUTIONAL LAW, 503. Police power as to, see CONSTITUTIONAL LAW, 712, 713. Requiring druggist to procure license, see CONSTITUTIONAL LAW, 712, 713; LI- CENSE, 64. Reasonableness of fee for license to do busi- ness, see LICENSE, 122. Mandamus to compel grant of druggists' license, see MANDAMUS, 29. Validity of sale in bulk of stock of drugs, see CONTRACTS, 412. Validity of contract tor sale of drug store conducted in violation of law, sec CON- TRACTS, 413. By-law against use of drugs by member of benevolent society, see INSURANCE. 103. Qualified privilege of druggist in making statements to physician concerning character of office attendant, see LIBEL AND SLANDER, 95. Proximate cause of injury or death from drugs, see PROXIMATE CAX'SE, XI. Ambiguity in statute regulating sale of poi- sons by, see STATUTES, 40. Crim'nal liability. Compelling druggist indicted for illegal sale of liquor to produce prescriptions of physicians on which sales were made, see CRIMINAL LAW, 115, 116. Statute regulating sale of liquors by phar- macists, see INTOXICATING LIQUORS, 62. Unlawful sale of liquor by druggist, general- ly, see INTOXICATING LIQUORS, 1IT. d. Evidence in prosecution for wrongful sale of drugs, see EVIDENCE, 1190, 1225. Digest 1-52 L.R.A.(N.S.) Evidence in action against druggist for neg- ligence in sale of wood alcohol, see EVI- DENCE, 1343. Sufficiency of indictment for illegal sale of drugs, see INDICTMENT, INFORMATION AND COMPLAINT, 35. Impeachment of witness in prosecution for illegal sale, see WITNESSES, 141. 1. A sale of cocaine by a duly licensed physician without a written prescription violates a statute making it unlawful for any person to sell cocaine except upon a written prescription of a duly licensed phy- sician. Niswonger v. State, 46: i, 102 N. E. 135, 179 Ind. 653. (Annotated) Civil liability. Prejudicial error in admission of evidence in action against, for negligence, see APPEAL AND ERROR, 1096. Action against druggist, for death of per- son in other state, see CONFLICT OF LAWS, 95. Sufficiency of evidence to show negligence of, see EVIDENCE, 2118. Wife's right of action for sale of drug to husband, see HUSBAND AND WIFE, 182, 183. Negligence of druggist as question for jury, see TRIAL, 558. 2. The ordinary care which a druggist is bound to exercise in the filling of pre- scriptions is the highest possible degree of prudence, thoughtfulness, and diligence, and the employment of the most exact and reliable safeguards consistent with the rea- sonable conduct of the business, in order that human life may not be exposed to the danger following from the substitu- tion of deadly poisons for harmless medi- cines. Tremblay v. Kimball, 29: 900, 77 Atl. 405, 107 Me. 53. (Annotated) 3. A druggist, in the filling of prescrip- tions, must exercise the highest practicable degree of prudence, thoughtfulness, and vigi- lance, and the most exact and reliable safe- guards, consistent with the reasonable con- duct of the business. Tombari v. Connors, 39: 274, 82 All. 640, 85 Conn. 231. 4. A druggist who reads the name of a drug called for by an illegible Latin pre- scription, as one which he knows in the quantity specified is likely to do great, harm, is bound to take reasonable precautions to ascertain that his reading is right. Tom- bari v. Connors, 39: 274, 82 Atl. 640, 85 Conn. 231. 5. A druggist is not relieved from lia- bility for injuries caused by the negligence of his clerk in compounding a prescription by the fact that the clerk is a licensed phar- macist. Tombari v. Connors, 39: 274, 82 Atl. 640, 85 Conn. 231. (Annotated) 6. A druggist may be found negligent in selling a patent medicine bought in the market, as a harmless preparation put up by himself, when it consists of a dangerous poison, if his only knowledge as to its con- tents was a statement by the manufacturer that it was similar to a well-known article, the contents of which he was ignorant. DRUMMERS DRUNKENNESS. 961 Willson v. Faxon, Williams, & Faxon, 47: 693, 101 N. E. 799, 208 N. Y. 108. (Annotated) 7. A druggist who holds himself out as the actual manufacturer of a patent medi- cine put up by a wholesaler with the retail- er's name on the package is not entitled to the benefit of an exception in a statute mak- ing druggists responsible for the quality of medicine sold by them, except those sold in original packages of the manufacturer, and those articles known as patent or propri- etary medicines. Willson v. Faxon, Wil- liams, & Faxon, 47: 693, 101 N. E. 799, 208 JX. Y. 108. 8. A druggist is not relieved of a stat- utory duty to label wood alcohol as poison- ous, by the fact that it was obtained upon a statement that it was to be used as a liniment, although the purchaser intended to use it as a beverage, and did so use it. Campbell v. Brown, 26: 1142, 106 Pac. 37, 81 Kan. 480. 9. That a druggist supposed a poison- ous liquid sold by him was to be used ex- ternally, and not as a beverage, does not relieve him of the statutory duty to label the bottle poisonous, where the statute does not except from its operation sales of poison to be used externally. Campbell v. Brown, 26: 1142, 106 Pac. 37, 81 Kan. 480. 10. The unlawful sale of a poisonous drug by a druggist to a minor eighteen years of age, who administered a quantity of it to another minor, with intent to perpetrate a joke upon him, which act resulted in the latter's serious illness, does not create a cause of action in favor of the father of such minor for loss of his son's services and the expense of medicines and doctor's bills, since the druggist could not reasonably have anticipated that such use would be made of the drug. McKibbin v. Bax, 13: 646, 113 N. W. 158, 79 Neb. 577. (Annotated) Contributory negligence. 11. A father who permits without in- quiry the administration of medicine which he knew differed in character, in dose, and in frequency of dose from that which the attending physician said he had prescribed, to a child but three months old, who is dangerously ill, is, as matter of law, guilty of contributory negligence barring recovery for the death of the child resulting from the negligent act of a druggist in furnish- ing medicine other than that called for by the prescription. Scherer v. Schlaberg, 24: 520, 122 N. W. 1000, 18 N. D. 421. DRUMMERS. Interstate business by, see COMMERCE, IV. c. Forbidding drumming at railroad stations, see CONSTITUTIONAL LAW, 688 ; MUNICI- PAL CORPORATIONS, 181-185. Burden of proving authority of, see EVI- DENCE, 174. In general, see COMMEBCIAL TRAVELERS. Digest 1-52 L.R.A.(N.S.) 61 DRUNK. Opinion evidence as to, see EVIDENCE, VII. d. DRUNKARDS. See DRUNKENNESS. DRUNKENNESS. Canceling deed made in, see ACCOUNTING, 4. Validity of note "by intoxicated person, see BILLS AND NOTES, 13-16, 151. Relief from contract entered into during, see CONTRACTS, 757, 758. Rescission of sale because of, see EQUITY, 61, 62. Sufficiency of evidence to show incapacity of person to contract because of, see EVI- DENCE, 2222. Evidence of, as defense to action on check, see EVIDENCE, 2453. Assignment of insurance policy by one whose mental faculties are impaired through use of liquor, see INSURANCE, 452. Annulment of marriage entered into while intoxicated, see MARRIAGE, 42. As affecting criminal responsibility, see AP- PEAL AND ERROR, 863; CRIMINAL LAW, 34, 35, 37-42; HOMICIDE, 104; TRIAL, 914. Rape of intoxicated woman, see APPEAL AND ERROR, 1422. Of person provoking assault, see ASSAULT AND BATTERY, 45. Ejection of drunken passenger, see CARRIERS, 223, 224, 404. Carrier's duty to intoxicated passenger, see CARRIERS, 463-469. Acceptance by carrier of drunken person as passenger, as negligence, see CARRIERS, 236. Refusal to receive drunken person as pas- senger, see CARRIERS, 473. Exclusion of intoxicated person from rail- way depot, and warerooms, see CAR- RIERS, 1002, 1013. Compulsory treatment of inebriates, see CONSTITUTIONAL LAW, 356. In court room as contempt, see CONTEMPT, 3. Maliciously charging one with being habitu- al drunkard, see DAMAGES, 42; EVI- DENCE, 244; TRIAL, 1031. Effect of intoxication of injured person on damages, see DAMAGES, 377. As mitigating damages for slander, see DAMAGES, 720. As ground for divorce, see DIVORCE AND SEPARATION, II. c. False charge of, as ground for divorce, see DIVORCE AND SEPARATION, 30. Burden of showing how much of damage was due to negligence and how much to intoxication of injured person, see EVIDENCE, 325. 902 DRY TRUST DURESS. Effect of, on admissibility in evidence of confession, see EVIDENCE, 1211. Opinion evidence as to intoxication, see Evi- DENCE, VII. d. Evidence as to, generally, see EVIDENCE, 1542, 1543, 1559, 1852. Evidence as to, generally, see EVIDENCE, 1549. Relevancy of evidence on issue of contribu- tory negligence, see EVIDENCE, 1794. Sufficiency of proof of, see EVIDENCE, 2238, 2239. Proof of, beyond reasonable doubt in prose- cution for homicide, see EVIDENCE, 2355. Liability for injury resulting from fright caused by assault by -intoxicated person, see FRIGHT, 11. Of person injured by defective street, see HIGHWAYS, 3G9. Guardianship of habitual drunkard, see IN- COMPETENT PERSONS, 9, 40. Effect of, on insurance, see INSURANCE, 349- 352, 805, 806. Liability of city for negligence towards in- toxicated prisoner, see MUNICIPAL COR- PORATIONS, 385. As nuisance, see NUISANCES, 48. Removal of officer because of, see OFFICERS, 50. As ground for termination of agency, see PRINCIPAL AND AGENT, 15. As proximate cause of injury to passenger, see PROXIMATE CAUSE, 89. Assault with intent to rape intoxicated woman, see RAPE. Suspension of pupil from school because of, see SCHOOLS, 19. Injury to intoxicated person on street car track, see STREET RAILWAYS, 16, 45, 75. 76, 79. Setting aside percentage of liquor license fees for purpose of establishing hospi- tal for inebriates, see TAXES, 120. Direction by court to jury as to intoxica- tion of insured, see TRIAL, 772. Cross-examination of witness as to, to dis- credit him, see WITNESSES, 99, 109. 1. To render a transaction voidable on account of the drunkenness of a parly to it, the drunkenness must have been such as to drown reason, memory, and judgment, and to impair the mental faculties to such an extent as to render the party non compos mentis for the time being. Martin v. Harsh, 13: 1000, 83 N. E. 164. 231 111. 384. 2. A town ordinance which prohibits drunkenness in the streets, alleys, and pub- lic places of the town, and within sight of such places, prescribes no rule of sobriety to be observed by persons within their own doors, or by their guests, so situated. Stoehr v. Payne, 44: 604, 61 So. 206, 132 La. 213. DRY TRUST. Right to vote stock of corporation as, Bee CORPORATIONS, 379. In general, see TRUSTS, 28. Digest 1-52 L.R.A.(N.S.) DUE BILL. Evidence in suit upon, see EVIDENCE, 918, 1995. DUE PROCESS OF LAW. See CONSTITUTIONAL LAW, II. b. DUES. Of members of social clubs, see CI.UBS, 3, 4. Of member- of benefit association, see IN- SURANCE, III. h. DUMMY DIRECTORS. Validity of contract as to, see CONTRACTS, 503. DUMP. Negligence in maintenance of city dump, see MUNICIPAL CORPORATIONS. 331. Injury to child by hot ashes on ash dump, see NEGLIGENCE, 142. DUPLICITY. In indictment or information, see INDICT- MENT, ETC., II. d. In pleading, see PLEADING, I. v. DURATION. Of contract with city, see MUNICIPAL COR- PORATIONS, 247. DURESS. Recovery back of payments made under, see ASSUMPSIT, 48, 49, 63, 64. Refusal to enforce contract of other state for, see CONFLICT OF LAWS, 28. Ratification of contract obtained by, see CONTRACTS, 559, 560. Aid of court in setting aside instrument ob- tained by, see CONTRACTS, 619. Setting 1 aside deed because of, see CON- TRACTS, 770. Estoppel to set up, .see ESTOPPEL, 68, 227. Burden of proving, see EVIDENCE, 103. Presumption as to, see EVIDENCE, 292. Evidence as to generally, see EVIDENCE, XI. e. Sufficiency of evidence of, to justify cancel- ation of instrument, see EVIDENCE, 2276. DURESS. 965T In obtaining conveyance from wife, see HUS- BAND AND WIFE, 103; LIMITATION OF ACTIONS, 29; TRIAL, 312. As ground for relief from judgment, see JUDGMENT, 342. Validation of marriage void because of, see MARRIAGE, 23. Annulment of marriage for, see MARRIAGE, 20, 37-41. Resignation procured by, see OFFICERS, 50. What constitutes payment by surety under compulsion, see PRINCIPAL AND SURETY, 72. 1. Refusal to pay money admitted to be due, except upon receiving a certain kind of receipt, does not constitute such duress as to render the receipt- void. Earle v. Berry, i: 867, 61 Atl. 671, 27 R. I. 221. (Annotated) 2. The act of a friend to whom the absent maker of a note has telegraphed to get an extension from the bank upon its maturity, in representing to the maker's wife in order to induce her to become surety on the note, which is necessary to secure tiie extension, that unless she so did it would result in injury and loss to the hus- band, is not such duress as will avoid her contract in case she becomes a surety. I'nitcd States Banking Co. v. Veale, 37: 540, 114 Pac. 229, 84 Kan. 385. 3. The payment of taxes' illegally as- sessed by a levee district, which could have been collected only by suit in which any de- fense of illegality might have been made, is not under duress so thai the money can be recovered, although the payment was under protest, and was made to avoid the heavy statutory penalty for nonpayment, and the maturing of mortgages on the land which by their terms would immediately become due for failure to pay taxes regularly as- sessed on the property. Brunson v. Board of Directors, 44: 293, 153 S. W. 828, 24 Ark. 107. Rati "cation of note secnred by. 4. A note, the execution of which is secured by duress, is ratified by the making of voluntary payments thereon after the duress is removed, so as to destroy the right to have it set aside. Bushnell v. Loomis, 36: 1029, 137 S. W. 257, 234 Mo. 371. Threats. 5. Ordinarily it is not duress to bring or threaten to bring an action to enforce a valid obligation, nor to do that which a party has a legal right to do. United States Banking Co. v. Veale, 37: 540, 114 Pac. 229, 84 Kan. 385. 6. A contract to pool tobacco may be found to have been executed under duress, so as to constitute a defense to a prosecu- tion for selling pooled tobacco contrary to a statute, from the facts that depredations had been committed upon the persons and property of those who failed to pool by night riders, and that, accused had been warned that it would be best for him to pool. Com. v. Reffitt, 42: 329, 148 S. W. 48, 149 Ky. 300. Digest 1-52 I,.R.A.(N.S.) 7. A special written contract limiting a carrier's common-law liability which has been extorted from a shipper who rightfully declined to sign it, by means of a refusal to transport cattle already in the carrier's possession, unless such a contract was signed, is voidable at the shipper's election. St. Louis & S. F. R. Co. v. Gorman, 28: 637. 100 Pac. 647, 79 Kan. 643. (Annotated) O crisnin-1 prosecution of self. 8. A note and deed executed by an employee to avoid arrest threatened by his employer and the employer's attorney, who charged him with embezzlement, are void for duress if no embezzlement in fact existed. Kronmeyer v. Buck, 45: 1182, 101 N. E. 935, 258 111. 586. Of prosecution of third person. Instructions in action to set aside mortgage for, see TRIAL, 885. 9. A note executed by a woman to save her brother from threatened imprisonment on a charge of embezzlement is void for duress. Kronmeyer v. Buck, 45: 1182, 101 N. E. 935, 258 111. 586. 10. A transfer of stock cannot be set aside for duress, because of a threat to imprison the son of the transferrer, who made the contract for the transfer, if it was not carried out. Sulzner v. Cappeau- Lemley & Miller Co. 39: 421, 83 Atl. 103, 234 Pa. 162. 11. A married woman who involuntarily mortgages her separate estate or homestead to secure an individual indebtedness of her husband may have the lien canceled in a suit to foreclose the mortgage, where she was induced to execute it by the mortgagee's threats to imprison her husband for feloni- ously disposing of mortgaged chattels. Hoellwarth v. McCarthy, 43:1005, 140 N. W. 141, 93 Neb. 246. 12. A court of equity will not refuse to set aside a conveyance of land, made by a married woman, under the duress of threats, in order to save her husband from criminal prosecution for embezzlement, on the ground that the conveyance is an exe- cuted contract, since the parties do not stand in parl delicto. Burton v. McMillan, 8: 991, 42 So. 849, 52 Fla. 469. 13. In a suit by a married woman to set aside a deed of her separate property, made by her under express rr implied threats of the prosecution of her husband for the crime of embezzlement, and to save him from such prosecution, the maxim In pari delicto melior est conditio defendentis does not apply, whether the threatened prosecution was lawful or unlawful, par- ticularly so when she was sick and nervous at the time of the execution of the deed, and does not appear to have had abundant op- portunity for consideration and consulta- tion with disinterested advisers. Burton V. McMillan, 8: 991, 42 So. 849, 52 Fla. 469. 14. The test, in determining whether there was duress in securing the execution by a father of a mortgage to secure the payment of a defalcation of his son, in or- der to prevent his prosecution for embezzle- ment, is not so much the means by which the 964 DUST DYNAMITE. father was compelled to execute the mort- gage as the state of mind induced by the means employed, the fear which made it impossible for him to exercise his own free will. Williamson-Halsell Frazier Co. v. Ackermaa, 20: 484, 94 Fac. 807, 77 Kan. 502. 15. A mortgage which a father is co- erced into executing to secure the payment of a defalcation of his son by threats of his arrest and prosecution for embezzlement if such security is not given may be avoided on the ground of duress. Williamson-Hal- sell Frazier Co. v. Ackerman, 20: 484, 94 Pac. 807, 77 Kan. 502. (Annotated) 10. If the threats of the arrest and pros- ecution, for embezzlement, of a son, operated to deprive a father of his free will, and to constrain the execution of a mortgage to se- cure the payment of a defalcation by the son, the actual guilt or innocence of the son is not a material question in determin- ing whether there was duress. Williamson- Halsell Frazier Co. v. Ackerman, 20: 484, 94 Pac. 807, 77 Kan. 502. DUST. Right to recover for, in condemnation pro- ceedings, see EMINENT DOMAIN, 267. Power of municipality with respect to dust raised by operation of street car, see MUNICIPAL CORPORATIONS, 130-134. Requiring fruits and candies exposed for sale to be protected from, see MUNICI- PAL CORPORATIONS, 193. As nuisance, see NUISANCES, 31, 37. DUTIES. As to smuggling, see SMUGGLING. Forfeiture and seizure. 1. The word "false" in the act of Con- gress of June 10, 1890, chap. 407, 9 (26 Stat. at L. 135, U. S. Comp. Stat. 1901, p. 1895), which, prescribes punishment by for- feiture, fine, and imprisonment for the use of a false statement in making an entry of imported goods, implies wrong or culpable negligence, and signifies knowingly or negli- gently untrue. United States v. Ninety- Nine Diamonds, 2: 185, 139 Fed. 961. 72 C. C. A. 9. 2. The making of an entry of imported merchandise by means of a false statement which does not deprive the United States of any lawful duties does not subject the one making it to forfeiture and penalties under the act of Congress of June 10, 1890, chap. 407, 9 (26 Stat. at L. 135, U. S. Comp. Stat. 1901, p. 1895), providing that "if any owner . . . shall m-.ke . . . any entry of imported merchandise by means of any false invoice, affidavit, letter, paper, or . . . false statement ... or shall be guilty of any wilful act or omission by means whereof the United States shall be deprived of the lawful duties . . . ac- Digest 1-52 L.R.A.(N.S.) cruing upon the merchandise . . . em- braced or referred to in such invoice, affi- davit, letter, paper, or statement, or affected by such act or omission," such merchandise shall be forfeited and specified penalties in- flicted. United States v. Ninety-Nine Dia- monds, 2: 185, 139 Fed. 961, 72 C. C. A. 9. ( Annotated ) 3. A statement that he is the owner, made in good faith in making an entry of imported merchandise for duties by one to whom it was invoiced, and who had the right of possession of, and a lien upon, the same for the duties and expenses which he had paid, ^together with the option to pur- chase any of it at fixed prices or return it to the tentative vendors, does not constitute an offense under. the act of Congress of June 10, 1890, chap. 407, 9 (26 Stat. at L. 135, U. S. Comp. Stat. 1901, p. 1895), where the government is not thereby deprived of any lawful duties. United States v. Ninety- Nine Diamonds, 2: 185, 139 Fed. 961, 72 C. C. A. 9. DUTY. Presumption of performance of, see EVI- DENCE, 417, 683. Privileged character of communications in course of, see LIBEL AND SLANDER, Jl. e, 3. DWELLING. What constitutes, within meaning of laws as to arson, see ARSON, 4. Homicide in defense of, see HOMICIDE, 78- 82. Erection on property of pole by means of which access is obtained by burglar to house of neighbor, see NEGLIGENCE, 95. DYE WORKS. As nuisance, see MUNICIPAL CORPORATIONS, 169, 170. DYING DECLARATIONS. Departure from rule as to admissibility in civil cases, see COURTS, 303. Right to take to jury room, see TRIAL, 15. In general, see EVIDENCE, X. 1. DYNAMITE. Use of, in blasting, see BLASTING. Presumption that explosion of, was cause of death, see EVIDENCE, 329. EARNING CAPACITY EASEMENTS. 965 Sufficiency of evidence in action for death caused by, see EVIDENCE, 2125, 2126. Negligence in storing, see EXPLOSIONS AND EXPLOSIVES, 3. Injury to employee by, see MASTER AND SERVANT, 187, 190, 276, 277, 865; TRIAL, 472, 529. Injury to child through explosion of, see NEGLIGENCE, 146-150, 225, 226. Injunction against storing in certain place, see NUISANCES, 52. Proximate cause of injury from explosion of, see PROXIMATE CAUSE, 60, 62 65. E EARNING CAPACITY. Evidence as to, in action for personal in- juries, see EVIDENCE. 1713-1719. EARNINGS. Successive actions for, see ACTION OR SUIT, 97-101. Future earnings, see FUTURE EARNINGS. Right of married minor to, see HUSBAND AND WIFE, 1. Of husband, right of creditor as to, see HUS- BAND AND WIFE, 146. Tax on, see TAXES, 46, 175. EARTHQUAKE. Insurance against loss by, see INSURANCE, 681-683, 685. EASEMENTS. I. What constitutes; nature; kind, 1, 2. II. Creation; how acquired, 368. a. In general; 6j/ express terms, 3-6. t. By prescription, 732. c. As appurtenant; ~by necessity, 33-68. III. Extent of rights; care in exercise of rights, 69-79. IV. Transfer; severance, SO, 81. V. How lost, 82-97. In public alleys, see ALLEYS. Implied reservation of burial rights in land conveyed, see CEMETERIES, 4. Quieting title to ditch across another's land, see CLOUD ON TITLE, 21. Oral agreement to submit to arbitration question of right to easement of way, see CONTRACTS, 263, 262. Creation of, by oral agreement of grantor as to building restrictions, see CON- TRACTS, 267. validity of contract for exclusive easement, see CONTRACTS, 540. Digest 1-52 L.R.A.(N.S.) Liability for costs in suit to restrain use of way of necessity, see COSTS AND FEES, 15. Existence of, as breach of covenant of war- ranty against encumbrances, see COVE- NANTS AND CONDITIONS, 56-61, 64-60. Effect of possession adverse to covenantor to extinguish negative easement created by covenant, see COVENANTS AND CON- DITIONS, 115. Effect of existence of, on amount of recovery in eminent domain, see DAMAGES, 523. Grant of private way as dedication, see DEDICATION, 6. Perpetual easement for railroad right of way as an encumbrance, see DEEDS, 42. Reservation of, in deed, see DEEDS, 54, 55. Right of owner of land excluded from pos- session by exercise of easement to main- tain ejectment, see EJECTMENT, 3. As basis of ejectment, see EJECTMENT, 13. Injury to, as a taking of property, see EMI- NENT DOMAIN, III. b, 2. Condemnation of land for private road, see EMINENT DOMAIN, 51, 63-66. For private railroad, see EMINENT DOMAIN, 88. Right to compensation on changing private into public road, see EMINENT DOMAIN, 225. Estoppel to deny that right of way is an easement merely, see ESTOPPEL, 27, 107. Presumption as to notice of, see EVIDENCE, 191. Presumption and burden of proof as to gen- erally, see EVIDENCE, 516. To maintain sewer across private property, see EVIDENCE, 752. Of public in highway, see HIGHWAYS, II. Injunction against interference with, see IN- JUNCTION, 178, 180, 200. Conclusiveness as to right to, of judgment in action of trespass, see JUDGMENT, 169. Power of municipality to accept grant of easement for highway, see MUNICIPAL CORPORATIONS, 307. Notice of, see NOTICE, 76-78. Licensee's right of action against township for nuisance in maintaining open ditch rendering private way unsafe, see NUI- SANCES, 67. In party wall, see PARTY WALLS. Necessity of pleading and proof in suit for injunction to protect easement, sea PLEADING, 430. 966 EASEMENTS, I II. b. Authority of son to represent father in per- mitting municipality to construct sewer on property, see PRINCIPAL AND AGENT, 28. Rights of one purchasing land subject to, see VENDOK AND PURCHASER, 106. In waters, generally, nee WATERS. Acquiring water rights by prescription, see WATERS, II. k. For highway; extending across accretions to water's edge, see WATERS, 112, 313. 1. What constitutes; nature,- kind. (See also same heading in Digest L.R.A. 1-10.) As distinguished from license, see LICENSE, 3, 4. 1. The right of an owner of an estate to erect and maintain, or to cause to be erected and maintained, a line of telephone poles over the estate of another, for the benefit of the former, is an easement. Yeager v. Tun- ing, 19: 700, 86 N. E. 657, 79 Ohio St. 700. 2. An easement, and not a fee, is ac- quired by a ditch company by a rule of court in compliance with its petition for a right of way under a statute providing that, upon the entry of such rule, the com- pany shall become seised in fee, or shall have the exclusive right, titl.e, and posses- sion of such lands described in the rule as required to be taken. Smith Canal or Ditch Co. v. Colorado Ice & Storage Co. 3: 1148, 82 Pac. 940, 34 Colo. 485. II. Creation; how acquired, a. In general; by express terms. (See also same heading in Digest L.R.A. 1-10.) How rights in, lost, see infra, V. 3. An easement can be created only by deed or by prescription. Yeager v. Tuning, 19: 700, 86 N. E. 657, 79 Ohio St. 700. 4. No right of way can exist by cus- tom in favor of the inhabitants of a par- ticular locality. Graham v. Walker, 2:983, 61 Atl. 98, 78 Conn. 130. By exception or reservation. Implied reservation of easement, see infra, 36, 41, 56, 58. See also infra, 40. 5. The acceptance of a deed reserving a right of way across the granted premises from a point at which a door exists in the extension of a party wall for the benefit of an adjoining b.uilding owned by the grantor constitutes a consent to the maintenance of a sufficient opening in the division wall for the convenient use of the reserved ease- ment. Reynolds v. Union Sav. Bank, 49: 194, 136 N. W. 529, 155 Iowa, 519. 6. A statement in a deed poll of a right of way to a railroad company, that the com- pany "is to make me a good and sufficient crossing," does not create an easement the Digest 1-52 L.R.A.(N.S.) obstruction of which will support an action of tort in favor of successors in title of the grantor. Childs v. Boston & M. 11. Co. 48: 378, 99 N. E. 957, 213 Mass. 91. (Annotated) It. By prescription. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to, see EVIDENCE, 621-624. Correctness of form of decree quieting title to, see JUDGMENT, 29. Party wall easement, see PARTY WALL, 9, 10. See also supra, 3. 7. There can be no public right of way to a public monument or object acquired by mere user. Attorney General v. Antrobus, 4 B. R. C. 868, [19051 2 Ch. 188. Also Re- ported in 74 L. J. Ch. N. S. 599, G9 J. P. 141, 92 L. T. N. S. 790, 21 Times L. R. 471, 3 L. G. R. 1071. 8. The general public cannot acquire by user a right to visit a public monument or other object of interest upon private prop- erty; and a trust to permit access for that purpose will not be presumed against per- sons who shew a clear documentary title. Attorney General v. Antrobus, 4 B. R. C. 868, [1905] 2 Ch. 188. Also Reported in 74 L. J. Ch. N. S. 599, 69 J. P. 141, 92 L. T. N. S. 790, 21 Times L. R. 471, 3 L. J. R. 1071. (Annotated) 9. A prescriptive right of way cannot be acquired by user by one tenant over land in the occupation of another tenant of tin- same landlord, either at common law or under the provision of the English prescrip- tion act that where a way shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of forty years the right there- to shall be deemed absolute and indefeasible, unless it shall appear that the same was en- joyed by some consent or agreement, ex- pressly given or made for that purpose, by deed or writing, since in order to acquire such an easement the enjoyment must be as of right appurtenant to the fee, which cannot be the case where the same person is the owner of both the dominant and the ser- vient tenements. Kilgour v. Gaddes, 4 B. R. C. 987, [1904] 1 K. B. 457. Also Re- ported in 73 L. J. K. B. N. S. 233, 52 Week. Rep. 438, 90 L. T. N. S. 604, 20 Times L. R, 240. 10. An easement by prescription can be acquired only by an adverse user for ten years, and the commencement of the time required for the prescription to ripen dates from the time when the party was damaged or had a cause of action arising from the adverse user. Roe v. Howard County, 5: 831, 106 N. W. 587, 75 Neb. 448. 11. Continued use of a joint stairway and drain placed on the boundary line be- tween two parcels of land will not ripen into an adverse right to have the easement EASEMENTS, II. b. 907 maintained. Gaynor v. Bauer, 3: 1082, 39 So. 749, 144 Ala. 448. 12. Open and continuous use without hindrance or complaint for more than twen- ty-five years of a wall on adjoining property as a party wall establishes an easement in it. Mann v. Reigler, 18: 131, 111 S. W. 300, 33 Ky. L. Rep. 774. (Annotated) 13. The free use of waters of mineral springs by the guests and occupants of a hotel situated on adjacent lands is by mere license, and is not such an adverse use as will give rise to an easement in the springs, where there has constantly been a surplus of water in them beyond that required by the owners, and the use relied upon is a use enjoyed in common with the public. Jobling v. Tuttle, 9: 960, 89 Pac. 699, 75 Kan. 351. 14. The intervention of a section of high- way between a parcel of land to which a private right of way is claimed as appurte- nant, and the land over which it is claimed, will not prevent the acquisition of such right by prescription. Graham v. Walker, 2: 983, 61 Atl. 98, 78 Conn. 130. (Annotated) 15. A parol grant of an easement which is void under the statute of frauds may be- come the basis for an adverse possession which will ripen into title by lapse of time. Lechman v. Mills, 13: 990, 91 Pac. 11, 46 Wash. 624. (Annotated) 16. A municipal corporation which lays a sewer across private property under a pa- rol agreement for such right, given in con- sideration of its abandonment of an inten- tion to open a highway along the route, and maintains the sewer with visible house con- nections, entering upon the property to care for it when necessary, against the former owner and his successors in title for more than fifteen years, secures a prescriptive right to the easement. Alderman v. New Haven, 18: 74, 70 Atl. 626, 81 Conn. 137. As to railroads. Creation by reservation, see supra, 6. Extinguishment of easement, see infra, 88- 90. 17. Long-continued use of a path by a property owner over an adjoining railroad track will not ripen into an easement by prescription if it is not clearly shown to have been adverse, since it will not be pre- sumed from a mere permissive use that the railroad company had made a grant of such right. Louisville & N. R. Co. v. Hagan, 35: 189, 13L S. W. 1018, 141 Ky. 20 y (Annotated) 18. The unorganized public cannot, by using to reach a hotel on the opposite side of the tracks for more than thirty years, a pass way maintained by a railroad company from its passenger station acrqss its tracks to its freight house, obtain a prescriptive right to such use. Louisville & N. R. Co. v. Childers & Only, 48: 903, 160 S. W. 260, 155 Ky. 652. (Annotated) As to roadway. Easements appurtenant, see Easements, 33. 19. The mere use of a footpath over an- other's property openly, notoriously, and continuously for a long period of years will Digest 1-52 L.R.A.(N.S.) not establish an easement therein, if it was not adverse or under claim of right. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. 20. To establish an easement of private way over land by prescription, the use must be continuous and uninterrupted for the necessary period, under a bona fide claim of right, a Iverse to the owner of the land, and with his knowledge and silence. Crosier v. Brown, 25: 174, 66 S. E. 326, 66 W. Va. 273. 21. Title to an easement of private way over land does not come by prescription where the user was permissive only and without intent to claim adversely, (.rosier v. Brown, 25: 174, (J6 S. E. 326, 66 W. Va. 273. 22. Permissive use of another's land for private passage by one intending ultimate- ly to claim a way by prescription cannot be- come a right where pending the use the landowner has protested against and denied the right at intervals. Crosier v. Brown, 25: 174, 66 S. E. 326, 66 W. Va. 273. (Annotated) 23. A description which merely states that one is the owner of a right of way as appurtenant to his land over adjoining land of another passing from near the western line of the former tract through the west- ern portion of the latter tract to a public road, a distance of about five hundred yards, is insufficient as a basis for the decreeing of a way by prescription, as an easement of private way over land must have particular definite termini and route. Crosier v. Brown, 25: 174, 66 S. E. 326, 66 W. Va. 273. 24. A private right of way cannot be se- cured by prescription over uninclosed land. Schulenbarger v. Johnstone, 35: 941, 116 Pac. 843, 64 Wash. 202. 25. The leaving of gates or bars when fencing one's land, to enable a neighbor to cross it, does not indicate an intention to surrender the way, or a.cquiesce in its use by the neighbor so that the use will ripen into a right by prescription. Schulenbar- ger v. Johnstone, 35: 941, 116 Pac. 843, 64 Wash. 202. (Annotated) 26. User under claim of right of a way acquired under a parol agreement that it shall be permanent may ripen into a title by prescription. Schmidt v. Brown, u: 457, 80 N. E. 1071, 226 111. 590. 27. A way extending across one's farm beyond his house, which is used by his neighbor as well as himself for access to a public highway, is not within the rule that mere permissive use of a private way opened by one through his own land will not ript'n into right. Schmidt v. Brown, 11:457, 80 N. E. 1071, 226 111. 590. 28. The exclusiveness of one's user of a way necessary to give him a prescriptive title is not destroyed by the fact that it is also used by others. Schmidt v. Brown, ii : 457, 80 N. E. 1071, 226 111. 590. As to way of necessity. Presumption, on appeal, as to finding in regard to, see APPEAL AND ERROR, 458. Presumption and burden of proof as to. see EVIDENCE, 624. 963 EASEMENTS, II. c. 29. Use of a way of necessity will not ripen into an easement by prescription. Rater v. Shuttlefield, 44: 101, 125 N. W. 235, 146 Iowa, 512. (Annotated) 30. Express assertion of the right is not necessary to establish a prescriptive right of way, if the use is of a character to indi- cate such claim. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. 31. The traversing of land to which a private right of way of necessity is claimed as appurtenant by a public highway will prevent the acquisition of such right by prescription. Crosier v. Brown, 25: 174, 66 S. E. 326, 66 W. Va. 273. As to Burial lot. 32. No prescriptive right which will de- scend to heirs can be acquired by burying dead bodies in private grounds. Wooldridge v. Smith, 40: 752, 147 S. W. 1019, 243 Mo. 190. (Annotated) c. As appurtenant; by necessity. (See also same heading in Digest L.R.A. 1-70.) Loss of, by nonuser, see infra, 92. Findings as to use of way prior to convey- ance of land to which it is claimed to be appurtenant, see APPEAL AND EBROB, 199. Passing of appurtenance by deed, see DEEDS, 50-53. Estoppel to claim, see ESTOPPEL, 31. Presumption of intention to grant, see EVI- DENCE, 227. Right to use water for irrigation purposes as, see MORTGAGE, 126. Notice of, see NOTICE, 76-78. Finding that right of way is appurtenant to land, see TRIAL, 1096. As to waters generally, see WATERS, II. See also supra, 14. 33. That a road over one portion of a tract of land for the benefit of another portion was intended by the owner to be only temporary will not prevent a right to its permanent use from passing with the grant of the latter portion, where, at the time of the grant, it was apparent, with nothing to indicate that it was not intended to be permanent. Liquid Carbonic Co. v. Wallace, 26: 327, 68 Atl. 1021, 219 Pa. 457. (Annotated) 34. The easement in a permanent cement walk which has been constructed by a prop- erty owner along the edge of property which he has subdivided into building lots, to furnish access from such lots to the street, will, upon severance of the property, pass to the grantees of the respective por- tions thereof. Rollo v. Nelson, 26: 315, 96 Pac. 263, 34 Utah, 116. (Annotated) 35. Where one, in laying out building lots, lays out a driveway in front thereof, and adjoining it, inside the lot lines, con- structs a cement sidewalk, his conveyance of the lots with all and singular the ap- purtenances thereto belonging or in any wise appertaining, together with a perpetual Digest 1-52 L.R.A.(N.S.) right of way along the driveway, does not, because of the special mention of the drive- way, prevent the passing of an easement in the walk. Rollo v. Nelson, 26: 315, 96 Pac. 263, 34 Utah, 116. 36. The mere exhibition to an intend- ing purchaser of a parcel of land, of a sug- gested plat which has not been tiled for rec- ord, which shows a street bordering one side of such parcel, does not give him an ease- ment in the suggested street which will compel the vendor to open it, if his grant bounds che purchase on a street located on the opposite side of the tract, making no mention of the one in question. Pyper v. Whitman, 35: 938, 80 Atl. 6, 32 R. 1. 510. (Annotated) 37. A ditch constructed by the landown- er to relieve a portion of his land of surplus water and convey it to another portion, where it is valuable for irrigation purposes, which is plainly visible upon the ground at the time he sells the latter portion, will pass, together with the water flowing there- in, under the words "privileges and appur- tenances," in the deed. Fayter v. North, 6: 410, 83 Pac. 742, 30 Utah* 156. ( Annotated ) 38. The right to maintain a ladder rack in a passageway adjoining a building on land conveyed by metes and bounds will not be held to have passed by the deed, where the deed was with reference to a plan, on which the rack was not shown, while a right of passage through the way is expressly mentioned. Sanford v. Boss, 42: 629, 84 Atl. 936, 76 N. H. 476. 39. A conveyance by metes and bounds of lands customarily used as a paint shop, with knowledge that such use will continue, does not include a right to maintain a ladder rack on an adjoining passageway, although the grantor has for a long period main- tained one there and its use in connection with the shop is convenient. Sanford v. Boss, 42: 629, 84 Atl. 936, 76 N. H. 476. 40. The assigns of one granting land to a canal company in consideration and on condition of the erection of a canal basin thereon and its resulting benefits cannot force the assigns of the company to restore the use of the basin on the ground that an easement was thereby created which passed as appurtenant to the land, where there was no exception or reservation in the deed to the grantor or his assigns, and the law, when the deed was made, required words of inheritance to create a fee-simple title to an easement, and a statute required the deed of any estate above seven years to be executed, acknowledged, and recorded, and the ease- ment could be claimed only on the theory of a parol agreement of the company to erect the basin, or on the theory of the reserva- tion of an easement, it being necessary in either case that a deed be executed and re- corded. Dawson v. Western Maryland R. Co. 14: 809, 68 Atl. 301, 107 Md. 70. 41. A grant with full covenant of war- ranty of the rear of a lot, for the construc- tion of a building, terminates the right of the grantor to drain a building standing on EASEMENTS, II. c. 939 the front of the lot to the sewer in the al- ley at the rear, where the sewer connec- tion had been underground, and the gran- tee had no actual knowledge thereof, and the roof drainage had been across a low building on the lot which the grantor knew was to be torn down, while it is not impos- sible to secure drainage in other directions, although it will be expensive to do so. Brown v. Fuller, 33: 459, 130 N. W. 621, 165 Mich. 162. 42. A devise of a house and lot will not, by implication, carry an easement in a tract lying between the house and the street, which the devisor has used as a dooryard, further than is necessary to give access to the street, at least where there is sufficient land in the lot devised for the purposes of a yard. Miller v. Hoeschler, 8: 327, 105 N. W. 790, 126 Wis. 263. (Annotated) 43. A reservation of an alley in a parti- tion deed gives one party no right to have the other maintain an obstruction on his portion of the fee for the benefit of the former. Gaynor v. Bauer, 3: 1082, 39 So. 749, 144 Ala. 448. Liiglit and air. Extinguishment of, see infra, 91. Damages recoverable by tenant for obstruc- tion of easement of light and air, see DAMAGES, 39. Right to compensation for interference with light, air, and view, see EMINENT DO- MAIN, 192. Demurrer to pleadings in action for ob- struction of light and air, see PLEAD- ING, 148. 44. A grant of an easement of way with no mention of light and air does not pre- vent the owner of the fee from interfering with the light and air by placing structures over the way in such a manner as not to interfere with its reasonable and ordinary use. Bitello v. Lipson, 16: 193, 69 Atl. 21, 80 Conn. 497. (Annotated) 45. A lease of a tenant carries with it an implied grant of the right to light and air from the adjoining land of the landlord, where the situation and habitual use of the demised tenement are such that the right to light and air is essential to the beneficial en- joyment of the leased tenement. Darnell v. Columbus Show Case Co. 13: 333, 58 S. E. 631, 129 Ga. 62. (Annotated) 46. A lessee has no right to shut out nec- essary light and air from a dwelling house upon adjacent premises owed by the landlord and leased to another person; and if he does so he is liable to his neighboring ten- ant for the damages resulting from his in- terference with the latter's implied ease- ment. Darnell v. Columbus Show Case Co. 13: 333, 58 S. E. 631, 129 Ga. 62v 47. A tenant who renews his lease after the obstruction of windows of the premises by lumber piled upon an adjoining lot takes the property as he finds it, and cannot com- plain of conditions existing at the time of the renewal of his lease contract. Darnell v. Columbus Show Case Co. 13: 333, 58 S. E. 631, 129 Ga. 62. Digest 1-52 L.R.A.(N.S.) Use of halls or stairways. 48. A conveyance by metes and bounds of a lot with buildings thereon does not carry with it by implication the right to the use of a hallway on adjoining property of the grantor, to reach the rear and upper stories of the building conveyed, if the building is located upon a street with an alley in the rear, so that the use of the hallway is not reasonably necessary to the full enjoyment of the property conveyed, although it had been used for the purpose claimed by the common owners of the property for more than thirty years. Bussmeyer v. Jablonsky, 39: 549, 145 S. W. 772, f.41 Mo. 681. 49. A deed partitioning land between heirs will not convey, by implication, ease- ments to continue existing stairways and drains on the division line, if it would be a mere matter of expense and inconvenience for the complaining party to place them on his own land. Gaynor v. Bauer, 3: 1082, 39 So. 749, 144 Ala. 448. (Annotated) 50. That two buildings, access to the up- per stories of which was gained through a common stairway, were not erected at the same time; and that their floors were not on the same level, will not, in case of their sale to different persons, prevent the opera- tion of the rule that, in case of the sale to different persons of a piece of property, the easements created by the former owner in favor of one part, to the detriment of the other, will continue, where the stairway had been in use for a long period of time before the conveyance. Powers v. HefJ'ernan, 16: 523, 84 N. v E. 661, 233 111. 597. 51. A stairway and hall constructed by the owner of two adjoining buildings next the wall of one of them, for access to the second stories of both, is a reasonable neces- sity to the other, where access to its second story cannot be gained without a large out- lay of money and impairment of the size and usefulness of the first story, so that, in case of the sale of the buildings to different persons, the purchaser of the one contain- ing the stairway and hall will not, although he purchased first, be permitted to forbid their use by the purchaser of the other. Powers v. Heff'ernan, 16: 523, 84 N. E. 661, 233 111. 597. Support of building. 52. That, upon the division by a proper- ty owner of a parcel of land containing two buildings sustained by a common wall, so as to convey the wall with one building, the other building is plainly dependent upon it for support, does not give the grantor an easement therein by implication, where he might easily construct a wall to support his building. Cherry v. Brizzolara, 21: 508, 116 S. W. 668, 89 Ark. 309. As to -waters. 53. The rule as to creation of easement by the severance of a tract of land, in favor of one portion of which an artificial con- dition has been created on the other, does not apply in case of the sale by the owner of a milldam, to one who has leased from him land on and under the pond on which 970 EASEMENTS, III. to conduct an ice business, of the land so leased, with knowledge that it is purchased for the purpose of continuing such busi- ness, where the lease requires the surrender of the premises at its termination, allow- ing the lessee to remove the buildings, since no advantage or artificial condition exists within the meaning of the rule. Marshall Ice Co. v. La Plant, 12: 1073, 111 N. W. 1010, 136 Iowa, 621. 54. The implication of an easement to have a milldam maintained in a grant of land upon and under the pond is not de- stroyed by a reservation in the grant of the right to enter upon the land granted to inspect and repair the dam and to procure materials therefor. Marshall Ice Co. v. La Plant, 12: 1073, 111 N. W. 1016, 136 Iowa, 621. 55. The court will not assume the exist- | ence of limitations or adverse interests which will prevent the passage, by a sale of land on a mill pond which has been maintained for forty years by the owner of the land on which it stands, of an ease- ment to have the dam continued. Marshall Ice Co. v. La Plant, 12: 1073, HI N. W. 1016, 136 Iowa, 621. 56. If an owner of land erect a milldam upon it for the purpose of operating a gristmill, and thereafter convey a portion of the land, including a part of the mill pond, there is an implied reservation of an easement upon the land granted, as ap- purtenant to the gristmill. Bennett v. Booth, 39: 618, 73 S. E. 909, 70 W. Va. 264. Way of necessity. How lost, see infra, 82, 83. Injunction against obstruction of; right of defendant to affirmative relief upon cross bill, see PLEADING, 543. Acquiring right of, by prescription, see supra, 29-31. In stairway and hall, see supra, 51. Effect of will to convey, see WILLS, 191. 57. There can be no private way of ne- cessity over the lands of a stranger. Schu- lenbarger v. Johnstone, 35: 941, 116 Pac. 843, 64 Wash. 202. 58. The legal principle requiring an easement to be "continuous," as a requisite to a grant or reservation thereof by impli- cation, is not applicable to a way. Hoffman v. Shoemaker, 34: 632, 71 S. E. 198, 69 W. Va. 233. 59. A way of necessity passes with each successive transfer of the title to the dominant property, whether voluntary or involuntary. Proud foot v. Saffle, 12: 482, 57 S. E. 256, 62 W. Va. 51. 60. A grantor may claim a way over the granted premises, as reserved by impli- cation, if it is shown to be strictly neces- sary to the use and enjoyment of adjacent land retained by him, and the intent to reserve it is not negatived by any express terms of the deed. Hoffman v. Shoemaker, 34: 632, 71 S. E. 198, 69 W. Va. 233. 61. A way of necessity implied by reason of a physical obstruction to access to the land is appurtenant to the granted land, and passes to subsequent grantees thereof, so that a subsequent grantee of land not Digest 1-52 L.R.A.CN.S.) used at the time of the severance of the larger tract by the common owner may, when the use of such way becames neces- sary to the enjoyment of his land, claim it under the remote deed of severance. Grotty v. New River & P. Consol. Coal Co. 46: 156, 78 S. E. 233, 72 W. Va. 68. (Annotated) 62. A way of necessity over the lands of a grantor is implied in a deed, if, by reason of a physical obstruction to access to the granted land, the grantee cannot construct a road from a considerable portion thereof over the residue without an expenditure wholly disproportionate to the value of the land. Crotty v. New River & P. Consol. Coal Co. 46: 156, 78 S. E. 233, 72 W. Va. 68. 63. Mere convenience will not create a way of necessity across a railroad track from one portion of a farm to another, where both portions are accessible by high- way. Childs v. Boston & M. R. Co. 48: 378, 99 N. E. 957, 213 Mass. 91. 64. A right of way from a farm to a highway which is useless except in connec- tion with the land is appurtenant to it, and passes with it to the owner's heirs. Schmidt v. Brown, 11:457, 80 N. E. 1071, 226 111. 590. 65. The purchaser, at judicial sale, of a tract of land inaccessible from the public highway except along a private way thereto- fore opened for its benefit, by the former owner, through adjacent lands owned by him, is entitled to use the private way as an outlet to the public road. Proudfoot v. Saffle, 12: 482, 57 S. E. 256, 62 W. Va. 51. 66. The absence of a constructed track for teams to a road on which a grant of land is bounded is not sufficient to give the grantee a way of necessity over remaining land of the grantor. Corea v. Higuera, 17: 1018, 95 Pac. 882, 153 Cal. <1-51. (Annotated) 67. An agreement by a tenant to pay rent for the use of a right of way over ad- joining property which is appurtenant to the estate is not binding on his lessor if made without his knowledge. Schwer v. Martin, 7: 614, 97 S. W. 12, 29 Ky. L. Rep. 1221. 68. A passageway inclosed on both sides, consisting of planks, with steps leading to them at both ends, furnishing access from a house located on one street to a parallel street in the rear, across property owned by the one who owns the house, which is reasonably necessary to the enjoyment of the property on which the house is located, will pass by implication with a grant of the latter property. German Saving & L. Co. v. Gordon, 26: 331, 102 Pac. 736, 54 Or. 147. (Annotated) ///. Extent of rights; care in exercise of rights. (See also same heading in Digest L.R.A. 1-10.) License to turn surface water on licensor's land, see LICENSE, 2, 8. As to waters, see WATEBS, II. EASEMENTS, IV., V. 971 69. The owner of the lower portion of a building is under no obligation to Keep its walls in repair so as to furnish support for the upper portion, which is owned by an- other person. Jackson v. Bruns, 3: 510, 106 N. W. 1, 129 Iowa, 616. (Annotated) 70. The owner of a way of necessity cannot be required to see that the gates are kept shut by persons not under his control, or to do more than close them after he discovers that they have been left open by such persons, and use reasonable care to avoid unnecessary annoyance to the owner of the fee. Rater v. Shuttlefield, 44: 101, 125 N. W. 235, 146 Iowa, 512. 71. One having an easement across an- other's property is not liable in damages for entering upon the land along the ditch for the purpose of cleaning and repairing it, if he does no unnecessary injury. Holm v. Davis, 44: 89, 125 Pac. 403, 41 Utah, 200. 72. An owner of land across which an easement has been acquired for a right of way for a ditch has a right, in subordination to such easement, to cross it with a pipe line to utilize, on one side of the ditch, water developed on the other side. Smith Canal or Ditch Co. v. Colorado Ice & Stor- age Co. 3: 1148, 82 Pac. 940, 34 Colo. 485. ( Annotated ) 73. The grant of a right to enter upon a strip of land for the purpose of laying one or more pipes "for conveying water" from a source of supply "to the city res- ervoir" does not give the right to use the pipes as a part of the distributing system of the city after the reservoir has been abandoned, but it does include the right to convey water to a high pressure stand- pipe constructed in connection with, and as a part of, the reservoir. Gray v. Cambridge, 2: 976, 76 N. E. 195, 189 Mass. 405. 74. A provision in a deed granting a por- tion of a lot that a, passageway is to be kept open and for use in common betv/een the two houses, a portion to be furnished by grantor and grantee respectively, does not limit the right to a use in connection with the houses, but it extends to all the tract of land af- fected by the conveyance. Bailey v. Agawam Nat. Bank, 3: 98, 76 N. K 449, 190 Mass. 20. 75. The rights of the grantee of a city lot "with the use, in common with others," of a lane in the rear, are not limited to a mere right of way over the lane, but include a reasonable use of the way for all proper purposes; and he may therefore, as against the owner of the fee of the lane, construct a fire escape overhanging the lane with its lower end 17 feet above the ground. Meigh- en v. Pacaud, 3 B. R. C. 529, 40- -Can. S. C. 188. (Annotated) Light and air. Damages recoverable by tenant for obstruc- tion of easement of light and air, see DAMAGES, 39. In alley. Obstruction of, see infra, 76. Cattle pass. Easement in highway, see HIGHWAYS, 21-23. Digest 1-52 L.R.A.(N.S.) Obstruction; gates. Laches in objecting to obstruction of, see LIMITATION OF ACTIONS, 36. 76. The grantee of land over which the grantor has heretofore by deed granted a f-ee right of way for an alleyway is not en- titled to obstruct the way by a gate or fence. Flaherty v. Fleming, 3: 461, 52 S. E. 857, 58 W. Va. 669. (Annotated) 77. The owner of a right of way across another's farm may remove gates placed across it by one who purchases the servient estate with notice of the way as it existed on the ground, and of the claims of the dominant owner with respect to it. Schmidt v. Brown, 11:457, 80 N. E. 1071, 226 111. 590. 78. The owner of a parcel of woodland over which another has secured a right of way by prescription may, upon transforming the property into agricultural lands, erect and maintain gates at the termini of the right of way. Luster v. Garner, 48: 87, 159 S. W. 604, 128 Tenn. 160. (Annotated) Change. Raising or extending party wall, see PARTY WALL, 18-20. Easement for water ditch, see WATERS, 251. 79. Laying a single pipe of a certain size under a grant of a right to lay water pipes or mains to convey a water supply fixes the right of the grantee, and he can- not subsequently lay additional ones un- less a right in excess of the one actually used was clearly given by the grant when viewed in the light of all the conditions ex- isting when it was executed. Winslow v. Vallejo, 5: 851, 84 Pac. 191, 148 Cal. 723. (Annotated) IV. Transfer; severance. 80. One who, in connection with a grant of a parcel of land, receives a grant of an easement to himself, his heirs, and assigns of a right of way across remaining prop- erty of the grantor to the highway, cannot grant rights in the easement to a stranger having no interest in the land granted, since it is solely appurtenant to the tract conveyed. Wood v. Woodley, 41: 1107, 75 S. E. 719, 160 N. C. 17. (Annotated) 81. The right appurtenant to land on a mill pond to have the dam maintained is not transferred by a grant of an equal right in common to maintain the dam or level created thereby for the mutual benefit of the parties, so as to destroy the right of the grantor to maintain an action for the protection of his easement. Marshall Ice Co. v. La Plant, 12: 1073, 111 N. W. 1016, 136 Iowa, 621. V. Ho\v lost. (See also Easements, V. in Digest L.R.A. 1-10.) Loss of easement for railroad right of way, see EMINENT DOMAIN, 52, 120. 972 EASEMENTS, V. Estoppel to claim easement by permitting use of property in way inconsistent therewith, see ESTOPPEL, 153, 154. Sufficiency of proof of abandonment, see EVI- DENCE, 2186. Loss of right to object to obstruction of, see LIMITATION OF ACTIONS, 36. Who may maintain action to enforce for- feiture, see PARTIES, 19. Loss of easement in party wall, see PARTY WALL, 22, 23. Sufficiency as against demurrer of com- plaint in action for forfeiture of ease- ment, see PLEADING, 576. Forfeiture by use to which property is dedi- cated, see RAILROADS, 20. 82. A right of way created by necessity for its use cannot be extinguished so long as the necessity continues to exist. Proud- foot v. Saffle, 12: 482, 57 S. E. 256, 62 W. Va. 51. 83. A way of necessity existing over premises is not extinguished by a judicial sale of the premises and its conveyance to the purchaser. Proud foot v. Saffle, 12: 482, 57 S. E. 256, 62 W. Va. 51. (Annotated) 84. While the owner of a bridge, with reference to the existence of which lots have been sold, will not be permitted to remove it to the injury of lot owners while it remains structurally sound, and capable of use, though out of repair, yet the owners of the easement may be required to make the - > pairs within a reasonable time, under pain of losing their right by abandonment. Oney v. West Buena Vista Land Co. 2: 832, 52 S. E. 343, 104 Va. 580. 85. Although purchasers of lots in a platted tract on the opposite side of a river from a city acquire an easement in a bridge shown on the plat, so that it cannot be re- moved to their injury, yet the duty of maintenance rests on thorn, and the ease- ment will be lost by failure, for an un- reasonable time, to make repairs, so that an abandonment may be presumed. Oney v. West Buena Vista Land Co. 2: 832, 52 S. E. 343, 104 Va. 580. (Annotated) 86. Where the reservation in a deed of a right of way over the granted premises makes no mention of any building or other structure upon either the dominant or ser- vient estate, the right of way must be taken as appurtenant to the land, and not to the building standing thereon; and it therefore is not destroyed by the tearing down of the existing building on the dominant estate. Reynolds v. Union Sav. Bank, 49: 194, 136 N. W. 529, 155 Iowa, 519. 87. A disclaimer of a right of way across property will not work an estoppel in favor of one who purchases the property in reli- ance upon it, if the owner of the easement had no notice of the intended purchase. Adams v. Hodgkins, 42: 741, 84 Atl. 530, 109 Me. 361. 88. An easement of way created for the use of parcels of land in private owner- ship, to furnish access from their dwell- ings to a public street, is abandoned by the Digest 1-52 L.R.A.(N.S.) acquisition of such parcels for railroad pur- poses, and the removal of the dwellings and other buildings and trees therefrom. Brown v. Oregon Short Line R. Co. 24: 86, 102 Pac. 740, 36 Utah, 257. 89. The easement of a property owner in a private way across a railroad track is ex- tinguished by his joining in a proceeding to establish, against the will of the railroad company, a public road upon the private way. McKinney v. Pennsylvania 11. Co. 21: 1002, 70 Atl. 946, 222 Pa. 48. (Annotated) 90. All private right in a crossing over a railroad track is lost upon the discontinu- ance by the proper authorities of a public road which had been laid out on its site at the petition of its owner. McKinney v. Pennsylvania R. Co. 21: 1002, 70 Atl. 946, 222 Pa. 48. 91. Unity of seisin for an estate in fee will not cause an easement of ancient light to be extinguished where there is no unity of possession and enjoyment. Richardson v. Graham, 1 B. R. C. 409, [1908] 1 K. B. 39. Also Reported in 77 L. J. K. B. N. S. 27, 98 L. T. N. S. 360. (Annotated) Nonuser. 92. An easement appurtenant to land is not lost by failure of the owner to use it for a period less than ten years. Bennett v. Booth, 39: 618, 73 S. E. 909, 70 W. Va. 264. 93. A right of way created by grant is not lost by mere nonuser, unaccompanied by in- tention to abandon and adverse possession by the owner of the servient tenement, or expense or damage sustained by him. Adams v. Hodgkins, 42: 741, 84 Atl. 530, 109 Me. 361. (Annotated) 94. The mere use by the owner of a right of way of another way from his property to the highway, which is equally convenient to his own, does not extinguish his right. Adams v. Hodgkins, 42: 741, 84 Atl. 530, 109 Me. 361. Conveyance of servient property. See also supra, 81. 95. An easement appurtenant to prop- erty which has been leased is not extin- guished during the term by a conveyance of the reversion in fee to the owner of the servient tenement. Richardson v. Graham, 1 B. R. C. 469, [1908] 1 K. B. 39. Also Re- ported in 77 L. J. K. B. N. S. 27, 98 L. T. N. S. 360. 96. An easement of access to remaining property of the grantor will not be relin- quished by a conveyance of a portion of the property with general covenants of war- ranty. Powers v. HefFernan, 16: 523, 84 N. E. 661, 233 111. 597. 97. An easement consisting of the right to the free use of the water of mineral springs situated upon lands of another, which it is claimed arose by virtue of an executed parol contract with the former owner of the lands, cannot be asserted against a subsequent grantee where nothing appears of record indicating the existence of any servitude attached to the lands, and EATING PLACES EJECTMENT. 973 the grantee purchased without notice. Job ling v. Tuttle, 9: 960, 89 Pac. 699, 75 Kan. 351. EATING PLACES. Serving unfit food to guests, see DAMAGES, 356, 407. Right of keeper of, to recover damages re- sulting from unwholesome condition of food purchased, see FOOD, 19. Duty of master to provide for employees, see MASTER AND SERVANT, 144. EAVESDROPPER. Competency of, as witness, see WITNESSES, 3. ECCLESIASTICAL LAW. See RELIGIOUS SOCIETIES. ECCLESIASTICAL TRIBUNALS. Conclusiveness of decisions of, see COURTS, I. d, 2. ECONOMICS. Instruction in, see SCHOOLS, I, a. EDITOR. Liability of,, for libel, see LIBEL AND SLAN- DER, 1, 2. Conviction of, for publishing newspaper articles detrimental to persons under trial, see PERVERSION OF JUSTICE. EDUCATION. Charitable bequest for, see CHARITIES, 19- 22, 46-48, 50, 62, 64. As a necessary for infant, see INFANTS, 68. In general, see COLLEGES; SCHOOLS. EDUCATIONAL INSTITUTION. Consideration for subscription to, see CON- TRACTS, 101. Exemption of, from taxation, see TAXES, I f, 3. See also COLLEGES; SCHOOLS. Digest 1-52 L.R.A.(N.S.) EFFECT. Of death, see DEATH, VI. Opinion evidence as to, see EVIDENCE, VII. c. Question for jury as to, see TRIAL, II. c. 2. EFFECTIVE CAUSE. See PROXIMATE CAUSE. EGRESS. Right of egress from property, see HIGH- WAYS, 24-26, 96-101, 134. EIGHT-HOUR LAW. As interference with commerce, see COM- MERCE, 27, 47-54. Constitutionality of, see CONSTITUTIONAL LAW, 30.1, 302, 307, 477-479, 720; EVI- DENCE, 37. Presumption as to violation of, see EVI- DENCE, 691. See also MASTER AND SERVANT, I. d. EJECTION. Of passenger or trespasser, see CARRIERS, II, h; DAMAGES, III. c, 2; DAMAGES, 667- 670; PLEADING, 368, 560. Of tenant, injunction against, see INJUNC- TION, 86. Of guest from room in hotel, see INNKEEP- ERS, 30. Of association from rooms by municipal of- ficers, see MUNICIPAL CORPORATIONS, 390. EJECTMENT. I. When proper remedy, 14. II. Title and defenses, 519. a. Sufficiency of plaintiff's title, 516. 1. In general, 514.. 2. Possessory titles, 15, 16. 6. Defenses, 1719. c. Proofs. III. Verdict; judgment; relief general- ly, 2O3O. a. Verdict; judgment; obtaining possession, 2O22. 6. Mesne profits; improvements f emblements, 23 3O. IV. Statutory neiv trial. Right of one accepting benefits of judg- ment in ejectment to appeal from un- favorable portion, see APPEAL ANI> ERROR, 97. 974 EJECTMENT, I., II. a, 1. Error in instructions in action of, see AP- PEAL AND EBBOB, 1320. Right to maintain suit to quiet title where there is a remedy by ejectment, see CLOUD ON TITLE, 11. Rule to bring ejectment to try title, see CLOUD ON TITLE, 24. Waiver of remedy in, and suit upon implied contract, see CONTRACTS, 16. To obtain land conveyed to railroad in con- sideration of its agreement to maintain depot thereon, see COVENANTS AND CON- DITIONS, 8. Measure of damages for, see DAMAGES, 465, 733-735. Effect of remedy by, on right to resort to equity, see EQUITY, 49. Estoppel by judgment for defendant in ac- tion for, see ESTOPPEL, 44. Right to set up equitable defense of estop- pel in action of ejectment, see ESTOPPEL, 48. Presumed grant, see EVIDENCE, 626. Presumption of ouster in ejectment action, see EVIDENCE, 633, 634. Evidence in action of, see EVIDENCE, 858. Rule upon tenant by entireties to bring ejectment against cotenant, see HUS- BAND AND WIFE, 65. Injunction against cutting timber pending ejectment action, see INJUNCTION, 210. Injunction to restrain prosecution of action of, see INJUNCTION, 264. Effect of ruling in, see JUDGMENT, 78. Right to jury in action in nature of eject- ment, see JUBY, 18. Service of summons in, as arresting run- ning of limitations, see LIMITATION OF ACTIONS, 289. Interest under oil and gas lease as subject of ejectment action, sec MINES, 65. Joinder of parties plaintiff, see PARTIES, 144. Sufficiency of complaint in action for, see PLEADING, 226. Keeping alive equitable suit upon failure of cross-bill to establish right to equi- table relief, see PLEADING, 535. See also CLOUD ON TITLE, 8, 14. I. When proper remedy. (See also same heading in Digest L.R.A 1-10.) 1. Ejectment will lie to secure a re- moval of -wires strung through the air over one's property, although the supports are on adjoining land. Butler v. Frontier Teleph. Co. n: 920, 79 N. E. 716, 186 N. Y 486. (Annotated) 2. One upon whose lands an adjoining proprietor has encroached in laying the foundation of a building may maintain ejectment to recover possession of that por- tion of his property from which he has thus been ousted, although the projection is en- tirely below the surface of the soil, and the building erected upon it does not ex- tend beyond the line. Wachiitein v. Chris- topher, ii : 917, 57 S. E. 511, 128 Ga. 229. (Annotated) Digest 1-52 KR.A.(N.S.) 3. An own'er of land who is exx-I0/-/. b. Registration, 1517. III. Elections, 18 6O. a. In general, IS 26. b. Ballots, 2754. 1. Preparation; official acts, 27-39. ELECTIONS, I., II. a. 981 ///. 6 continued, 2. Casting; acts of voter, 40 49. 3. Distinguishing marks, SO 54. a. In general, SO, 51. b. Voter's marTcs, 5254. c. Result; canvassing, '5557. d. Election frauds; crimes, 58 6O. IV. Nominations; primaries; political committees, 61 81. V. Contests, 82-85. VI. Violation of election laws, 86. On question of issuance of municipal bonds, see BONDS, III. b, 3. At stockholders' meeting, see CORPORATIONS, V. g. Of corporate officers, see CORPORATIONS, 132. Election of chairman at stockholder's meet- ing, see CORPORATIONS, 371. Power of court to order new election for trustees of religious society, see COURTS, 181. As to local option elections, see INTOXICAT- ING LIQUORS, I. c. Of judges, see JUDGES, II. Validity of submission to voters of proposed charter amendment, see MUNICIPAL CORPORATIONS, 18. Vote of city for incurring indebtedness, see MUNICIPAL CORPORATIONS, 257, 275. Of officers generally, see OFFICERS, I. b. Sale of vote as consideration for note, see BILLS AND NOTES, 155. Delay preventing passenger from reaching destination in time to vote, see CAR- RIERS, 194. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 175. Statute forbidding nomination, indorsement, or criticism of certain candidates by any political party, see CONSTITUTIONAL LAW, 557, 827. Statute as to report of civic league upon candidate for public office, see CON- STITUTIONAL LAW, 756. Validity of contract with vote Jbuyer to prosecute sellers for statutory rewards, see CONTRACTS, 599. Court's power to review matters as to, see COURTS, I. c, 2, d. Original jurisdiction of Supreme Court over questions affecting, see COURTS 221- 226. Jurisdiction of equity to protect right to vote, see EQUITY, 4. Judicial notice as to, see Evidence, 14. Locating voting booth in highway,'see HIGH- WAYS, 78, 220. Election day as holiday, see HOLIDAYS, 1. Initiative, referendum or recall election, see INITIATIVE, REFERENDUM AND RECALL. Injunction as to, see INJUNCTION, I h. Mandamus concerning, see MANDAMUS, I. f. Partial invalidity of statute as to, see STAT- UTES, 68-72. Title of statute as to, see STATures, 100- 102. Digest 1-52 L.R.A.(N.S.) Special legislation as to, see STATUTES, 181, 184. Construction of statute as to, see STATUTES, 226, 253-256. /. Right of suffrage and regulation thereof in general. (See also Elections, I. a, in Digest L.R.A. 1-10.) 1. The right of suffrage includes the right to form political parties, and the right of each party to have all the machin- ery, not reasonably prohibited by law, for making its organization effective as to the policy of its members, by electing officers in harmony therewith. State ex rel. Mc- Grael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 2. In general, a legislative interference with the elective franchise must stand the test, at least, of these fundamentals of the state Constitution: (a) The express and implied inhibitions of class legislation; (b) the recognized existence and inviolabili- ty of inherent rights; (c) the constitution- ally declared purpose of government; (d) the express guaranty of the right to vote. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 3. A regulation which necessarily tends to afford one political party of substantial status a better opportunity for efficient ex istence than another, however large, or ma- terially impair or prevent fair opportunity for any organization of voters of substan- tial numbers and standing to compete for favor, is an unreasonable interference. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 4. A legislative interference with free- dom, as regards political party organiza- tion and contest, which naturally impairs opportunity for members of any political party of substantial significance to efficient 1 ly maintain their organization, and, to that end, present their party candidates and principles, as such to the voters at large for indorsement, is unreasonable. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. II. Qualifications of voters, a. In general; residence. (See also Elections, I. a, in Digest L.R.A. 1-10.) Qualifications of voters at local option elec- tion, see CONSTITUTIONAL LAW, 175; INTOXICATING LIQUORS, 50. Perjury in swearing as to qualifications of voters, see EVIDENCE, 1241, 1242, 1651; PERJURY, 10. Qualifications for voting on question of or- ganizing drainage district, see DRAIN- AGE DISTRICT, 8-10. Compelling unqualified voter to disclose candidate voted for, see WITNESSES, 92. 982 ELECTIONS, II. b. 5. An act providing for the election of judicial officers by a separate ballot con- taining the names of candidates, without any designation except the office to which such candidates are to be elected, the num- ber required to be elected, and instructions to the voter to vote for the requisite num- ber, is not violative of a constitutional pro- vision that all citizens possessed of the requisite qualifications shall be entitled to vote at all elections, in that it requires an elector to be able to read in order to select the candidate for a judicial office for whom he may desire to vote. State ex rel. Wein- berger v. Miller, 44: 712, 99 N. E. 1078, 87 Ohio St. 12. 6. A provision in a schedule to a con- stitution, that, in all elections held after its adoption, the qualifications of electors shall be thbse required by the constitution, refers solely to the elections provided for by that instrument. Willis v. Kalmbach, 21: 1009, 64 S. E. 342, 109 Va. 475. 7. A verdict of guilty upon which no judgment has been entered is not within tin provision of a statute excluding from the elective franchise persons convicted of fel- ony. People v. Fabian, 18: 684, 85 N. E. 672, 192 N. Y. 443. (Annotated) 8. A citizen who has been convicted of bribery in an election and has undergone the punishment fixed by the judgment is a qualified voter, where the \ Constitution makes all male citizens voters except those under conviction of certain offenses includ- ing such bribery. Osborne v. Kanawha County Court, 32: 418, 69 S. E. 470, 68 W. Va. 189. (Annotated) Women. Right of women to vote on question of issue of school bonds, see BONDS, 95. Residence. 9. The term "residence," used by the Constitution in fixing the qualification of voters, does not mean domicil. Estopinal v. Michel, 19: 759, 46 So. 907, 121 La. 879. (Annotated) 10. The object of requiring the voter to have resided for a time at the place whera he offers to vote is that he may be afforded an opportunity to acquire the information necessary for an intelligent vote, and become identified with the interestj of the locality, and also to prevent the colonization of voters. Estopinal v. Michel, 19: 759, 46 So. 907, 121 La. 879. 11. In the absence of proof that a person otherwise qualified has acquired a residence elsewhere, he must be considered to be a resident of the parish where his work re- quires him to stay, where he was born, and where he has always lived and voted; and it makes no difference that he has never had in said parish any other home than a board- ing house, while ho has had in another par- ish a home, where he has kept his wife and children, whom he has visited as often as he could. Estopinal v. Michel, 19: 759, 46 So. 907, 121 La. 879. 12. The selection and purchase of a home in a state, with the intention of making it a permanent residence, is not of itself Digest 152 I,.R.A.(N.S.) sufficient to make one a citizen of the state- for the purpose of fixing his right to vote,, if, pending the vacation of the property by the former occupant, he continues to oc- cupy his former residence in another state. People v. Turpin, 33: 766, 112 Pac. 539, 49- Colo. 234. (Annotated) 13. A bachelor cannot claim the place where he takes his meals as his residence for voting purposes, where he keeps a busi- ness office and sleeping apartment in con- nection therewith in another ward, at which he spends most of his time. State v. Savre, 3: 455, 105 N. W. 387, 129 Iowa, 122. 14. A student is not prevented from gaining a residence for voting purposes at the place where he is attending school, by a constitutional provision that no elector shall be deemed to have gained or lost a residence while in attendance at any sem- inary of learning, if he goes to the college town for the purpose of establishing his residence there, although an incidental pur- pose is to take advantage of the educa- tional resources of the town. People v. Osborne, 40: 168, 135 N. W. 921, 170 Mich. 143. (Annotated) ft. Registration. (See also Elections, I. b, in Digest L.R.A. 1-10.) Effect of accepting ballot from unregistered voters, see infra, 26. Criminal liability of discharged convict for registering, see infra, 86. Vote on constitutional amendment, see CON- STITUTIONAL LAW, 10-14. Conviction of illegal registration as bar to prosecution for false swearing, see CRIMINAL LAW ? 218. See also infra, 26. 15. The delegation by the legislature to the county commissioners of the power to order a new registration of voters is not prevented by a constitutional provision fix- ing the qualification of voters. Cox v. Pitt County, 16: 253, 60 S. E. 516, 146 N. C. 584. 16. A certificate that a person's name appeared upon the registration books of a certain township prior to the taking effect of a constitutional provision looking to the registration of voters, which declares that such certificate "shall be sufficient to estab- lish the right to subsequent registration and the franchise under the limitations herein imposed," is not sufficient to entitle the holder to vote, where it does not contain the statements, and is not in the form, pre- scribed by the legislature for a registration certificate entitling the holder to vote. State ex rel. Birchmore v. State Bd. of Canvassers, 14: 850, 59 S. E. 145, 78 S. C. 461. 17. The name of a registered voter whose registration papers have been destroyed by fire must, upon application by him made at any time before the forty-eight hours pre- ceding the opening of the polls, be placed ELECTIONS, III. a, b, 1. 983 on the new registry list, without requiring him to register anew, where the poll books are not required by statute to be sent to the polls until forty-eight hours before the opening thereof, notwithstanding a statute prohibiting a registrar from placing the name of a voter on his register within thirty days of the election for which the regis- tration is made, since such a voter is not, by the destruction of the registry list, placed in the category of one who has not registered. State ex rel. Reid v. Lebleu, 28: 989, 52 So. 849, 126 La. 616. Discrimination. In primary election law, see infra, 69, 70. III. Elections. a. In general. (See also Elections, II. a, in Digest L.R.A. 1-10.) Act validating election, see CONSTITUTIONAL LAW, 44; STATUTES, 176. Damages for wilful rejection of ballot, see DAMAGES, 13. By members of parliamentary body, see PARLIAMENTARY LAW. Validity of statute fixing time for, see STAT- UTES, 68. 18. A constitutional requirement of uni- formity of election laws throughout the state does not prevent the legislature from classifying counties with respect to their local needs, in providing for elections upon local matters. Ex parte Owens, 8: 888, 42 So. 676, 148 Ala. 402. 19. An election upon a proposition to build a town hall is not invalidated by the fact that the proposition is in a form re- quiring the approval of two contracts, one for constructing the building and the other for heating and lighting it and furnishing the plumbing, especially where the ballets follow the language of the statute. Brooks v. Brooklyn, 26: 425, 124 N. W. 868, 146 Iowa, 136. Notice or proclamation. On question of issuance of municipal bonds, see BONDS, 89-94. Regulation; mode of voting. Voting by machine, see infra, 41-47. Necessity that local option election shall be by ballot, see INTOXICATING LIQUORS, 47, 48. Challenge; proof of right to vote. 20. The vote, at a general election, to decide which of two persons on a party ballot shall be designated by the voters of the party as their choice for United States Senator, which is authorized by a primary election law in case no candidate has re- ceived 40 per cent of his party vote at the primaries, is not a part of the general elec- tion, but merely a continuation of the party primary for the purpose of completing the party nomination; and therefore a provision for challenging a voter and requiring of him an affidavit that the ballot which he calls for represents the political party with Digest 1-52 L.R.A.(N.S.) which he is affiliated does not violate the constitutional guaranty of a secret ballot. State ex rel. McCue v. Blaisdell, 24: 465, 118 N. W. 141, 18 N. D. 55. 21. Election officers cannot refuse to ad- minister the oath or receive the ballot after the oath is taken, under a statute provid- ing that if a challenged voter insists that he is qualified, the judges shall tender to him a prescribed oath, if he takes which his vote shall be received. Lane v. Mit- chell, 36: 968, 133 N. W. 381, 153 Iowa, 139. (Annotated) Irregularities. 22. An election will not be held void because qualified electors are denied the privilege of registering and voting through failure to obey the statutory requirements as to the boundaries of a voting precinct, if the statute prescribes mandamus as the remedy of such disobedience. Martin v. McGarr, 38: 1007, 117 Pac. 323, 27 Okla. 653. 23. Where by statute it is the duty of electors of precincts failing to receive the election supplies, to proceed to prepare sup- plies, and hold an election as nearly as may be in conformity with the law, they cannot have an election declared void upon their failure to do so, because they will be held to have been parties to their own dis- franchisement. Martin v. McGarr, 38: 1007, 117 Pac. 323, 27 Okla. 653. 24. An action brought for the purpose of having an election declared void will not be sustained by showing merely the recep- tion of illegal ballots. An election is held void in those cases only where it is im- possible to separate the valid from the invalid ballots, and the correct result is im- possible of determination. Martin v. Mc- Garr, 38: 1007, 117 Pac. 323, 27 Okla. 653. 25. An election is void where qualified electors are corruptly and fraudulently de- prived of an opportunity to register and vote, sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election. Martin v. McGarr, 38: 1007, 117 Pac. 323, 27 Okla. 653. (Annotated) 26. The acceptance of ballots from unreg- istered voters will not, in the absence of fraud, defeat the election, if their exclusion would not have changed the result, or made it doubtful. State ex rel. Birchmore v. State Bd. of Canvassers, 14: 850, 59 S. E. 145, 78 S. C. 461. b. Ballots. 1. Preparation; official acts. (See also Elections, II. 6, 1, in Digest L.R.A. 1-10.) Election of judicial officers by separate bal- lot, see supra, 5. Act providing for election of judicial officers by separate ballot as a special law, see STATUTES, 184. Construction of statute as to preserving of ballots, see STATUTES, 254-256. 984 ELECTIONS, III. b, 1. Order requiring production of ballot boxes for inspection, see CONTEMPT, 26; SUB- PCENA DUCES TECUM, 1. 27. An act providing for the election of judicial officers by separate ballot, thus necessitating more than one ballot at an election, is not violative of a constitutional provision that all elections shall be by ballot. State ex rel. Weinberger v. Miller, 44: 712, 99 N. E. 1078, 87 Ohio St. 712. (Annotated) 28. The legislature cannot provide for numbering ballots where the constitution provides that the ballots shall be secret. McGrane v. Nez Perc6 County, 32: 730, 112 Pac. 312, 18 Idaho, 714. 29. Secrecy is not required by a constitu- tional provision that all elections by the people shall be by ballot, at least so as to exclude the numbering of the ballots to correspond with the poll list. Ex parte Owens, 8: 888, 42 So. 676, 148 Ala. 402. (Annotated) 30. Unnumbered ballots are not void under a statute merely providing that eacli ballot shall be numbered to correspond with the name of the person voting the same on the poll list, although omission to number the ballots is made a misdemeanor. Mont- gomery v. Henry, i: 656, 39 So. 507, 144 Ala. 629. (Annotated) Persons and parties entitled to place on ballot. Mandamus to determine which candidate should be represented on official ballot, see MANDAMUS, 79. 31. Some standard of measurement by which to test the competency of a political party to have the use of the official ballot sheet for the purpose of a party ballot fol- lows, necessarily, from the use of the Aus- tralian ballot form. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. ( Annotated ) 32. A legislative condition of a person having his name, as that of a party nomi- nee, placed on the official ballot, ( under his party designation, in a special party col- umn, that he shall have received a sufficient number of votes for such place at the pre- ceding primary to fairly indicate that he is such party's nominee, and that the party has a reasonably significant membership, is in the field of legitimate regulation re- specting the suitableness of the ballot, both as regards the major and minor election districts. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 33. The votes cast in an official district for a party nominee for governor is a proper basis from which to derive a unit of measurement for such party's status at the succeeding primary election, and a num- ber equal to 20 per cent thereof is a fair unit by which to determine the minimum of party strength in such district, required to be shown at such primary by such party as to any particular office, for such dis- trict, to entitle the person favored as the party nominee to have his name placed, as such, in the party column on thu official Digest 1-52 L,.R.A.(N.S.) ballot at the succeeding election. State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 34. In a statute providing that, if the aggregate of votes at a primary election for all candidates "for nomination for any one office voted for on party ballot" shall be " 20 per- cent or more'' of the number "cast for nominee of such party for governor at the last general election," the one receiv- ing the most votes shall have his name "placed on the official ballot at the fol- lowing election" as such party's candidate for such office, and if such aggregate shall be less than such per cent such person shall have his name placed on such ballot with individual nominations under the des- ignation "independent," by necessary im- plication, the words, "for the particular of- ficial district involved," or words of similar import, should be deemed in place after the words "for any one office," and the words "in such district," or words of similar im- port, after the word "governor." State ex rel. McGrael v. Phelps, 35: 353, 128 N. W. 1041, 144 Wis. 1. 35. Under' a primary election law provid- ing for the issuance ot a certificate of nom- ination to the successful candidate, the is- suance of such certificate until set aside by some proper proceeding conclusively deter- mines the right of the holder to have his name placed on the official ballot; and the election officers have no power to withdraw the certificate for alleged mistake in issu- ing it. State ex rel. Hinder v. Goff, 9: 916, 109 N. W. 628, 129 Wis. 668. (Annotated) 36. Under a statute requiring voting ma- chines to be so constructed that a straight party ticket can be voted by the operation of a single device, and providing that bal- lots shall be printed so that a straight party ticket may be voted by making a cross with- in a party circle, the voters of one politi- cal party cannot be deprived of the right thus to vote a straight ticket by a single act, by presidential electors remaining on the ticket of that party, although intending to vote for the candidates of another party for the office of President and Vice Presi- dent. State ex rel. Nebraska Rep. State C. Com. v. Wait, 43:282, 138 N. W. 159, 92 Neb. 313. Placing and grouping tickets or names. 37. Under constitutional provisions that officers shall be chosen by the electors, and that no one shall be disfranchised except by the law of the land or the judgment of his peers, a statute is void which estab- lishes a blanket ballot with a separate column for the nominees of the several parties and independent nominees, but pro- vides that in case a candidate is nominated by more than one party, his name shall ap- pear only once on the ticket, since it dis- criminates against certain of the electors who may wish to vote for him in the cast- ing of their ballots. Hopper v. Britt, 37: 825, 96 N. E. 371, 203 N. Y. 144. ELECTIONS, III. b, 2. 985 Stamping; indorsements. Construction of statute as to, see STATUTES, 255. Irregularities. 38. A vote of the electors amending the city charter will not be void because of a clerical failure to print on the ballot the fact that the amendment was submitted by the council, although the ordinance under which the submission was made required it to be done. Kiernan v. Portland, 37: 332, 111 Pac. 379, 57 Or. 454.; 39. A vote upon the question of the adoption by the electors of a charter amend- ment will not be void because the squares to be crossed in the ballot were not numbered in the same order as in the voters' pamph- let of instructions, where the words "yes" and "no" were plainly printed opposite the squares on the ballots, so that no one could have been misled. Kiernan v. Portland, 37: 332, 111 Pac. 379, 57 Or. 454. 2. Casting; acts of voter. (See also Elections, II. 6, 2, in Digest L.R.A. 1-10.) Secrecy in local option election, see INTOX- ICATING LIQUORS, 49. Marking choice. 40. A voter, by stamping a cross in a circle at the top of a column, under a party device, votes for all the candidates in such column, under a statute providing that a voter desiring to vote a straight ticket may stamp a cross in a circle under the device and in the column, above the candidates of the party for whom he desires to vote, and that such ballot shall be counted for all the candidates in the column, although he also stamps a cross in a circle opposite all of the names in such column except one, as the extra markings are without effect, the statute being mandatory. Potts v. Folsom, 28: 460, 104 Pac. 353, 24 Okla. 731. (Annotated) Voting machine. Delegation of power to voting machine com- mission, see CONSTITUTIONAL LAW, 99. Injunction against use of, see INJUNCTION, 243. Injunction against purchase of voting ma- chines, see INJUNCTION, 334. Sufficiency of title of statute as to use of, see STATUTES, 100. 41. Statutes providing for the use of voting machines at elections are repugnant to a constitutional provision that "all elec- tions shall be by ballot," and are void. State ex rel. Karlinger v. Board of Deputy State Supervisors, etc. 24: 188, 89 N. E. 33, 80 Ohio St. 471. (Annotated) 42. The use of voting machines is not prohibited by a constitutional provision that all elections shall be by ballot. United States Standard Voting Mach. Co. v. Uob- son, 7: 512, 109 N. W. 458, 132 Iowa, 38. 43. The approval for use at elections of a voting machine on which the whole ticket can be voted as a unit is not annulled by Digest 1-52 L.R.A.CN.S.) the passage of a statute striking the circle from the Australian ballot. United States Standard Voting Mach. Co. v. Hobson, 7: 512, 109 N. W. 458, 132 Iowa, 38. 44. The provision of Minn. Const, art. 7, 6, that all elections, except for town offi- cers, shall be by ballot, was merely intend- ed to secure to the elector the privilege of exercising his right of franchise secretly and effectively, and is not contravened by Minn. Laws 1905, chap. 267, p. 400, providing for the use of voting machines at elections. El- well v. Comstock, 7: 621, 109 N. W. 698, 99 Minn. 261. (Annotated) 45. A machine for voting, whose work- ing and whose record of the result are in- visible to the voter, is not a compliance with constitutional provisions that officers shall be chosen by written votes, which shall be sorted and counted by the town clerk, who shall form a list of the persons voted for, with the number of votes for each person against his name; and who shall make a fair record of the same, and a pub- lic declaration thereof. Nichols v. Minton, 12: 280, 82 N. E. 50, 196 Mass. 410. 46. A provision of a primary election law that the provisions of the general elec- tion law as to the manner of conducting the elections and all other matters shall be ap- plicable hereto, except in so far as the pro- visions thereof may be inconsistent here- with, will not justify the use of a voting machine as provided by the general law, if the primary law expressly provides for ballots which are to be prepared in such manner as to give all candidates an equali- ty before the law, to the requirements of which the voting machine is not adapted, especially where the statute provides that ballots other than those furnished accord- ing to the provisions of this act shall not be counted. Line v. Waite, 18: 412, 117 N. W. 730, 154 Mich. 329. 47. Primary elections are not within the meaning of a statute permitting the use of voting machines at all state, county, city, village, and township elections. Line v. Waite, 18: 412, 117 N. W. 730, 154 Mich. 329. (Annotated) Assisting voter. Construction of statute as to assistance to illiterate voter, see STATUTES, 253. 48. A ballot which has been prepared by the elector with the voluntarily permitted assistance of any othr than the author- ized or acting poll clerks is exposed, with- in the meaning of a statute providing for the exclusion of an intentionally exposed ballot, except when prepared by the poll clerks as provided by a statute declaring that any elector who declares that, because of physical disability or inability to read the English language, he is unable to mark his ballot, may declare his choice of candi- dates to the poll clerks, who, in the pres- ence of the elector, shall prepare the bal- lot. Board v. Dill, 29: 1170, 110 Pac. 1107, 26 Okla. 104. 49. Requesting assistance to determine which names on a primary election ballot are politically in accord with the voter 986 ELECTIONS, III. b, 3 d. does not subject one to the penalty pro- vided for any voter who shall make a false statement as to his inability to mark his ballot, where the statute provides that the voter shall be at liberty, if he is unable to prepare his own ballot, to request as- sistance. State v. Breffeihl, 40: 535, 58 So. 763, 130 La. 904. (Annotated) 3. Distinguishing marks. a. In general. (See also Elections, II. b, 3, a, in Digest L.R.A. 1-70.) 50. Violation by election officers of the statute forbidding them to furnish ballots containing distinguishing marks, will not render the election void in the absence of any provision to that effect in the statute. McGrane v. Nez PercS County, 32: 730, 112 Pac. 312, 18 Idaho, 714. 51. Where, contrary to the constitution- al provision for secrecy, the election officers numbered the ballots without the knowl- edge or authority of the voters, who had no opportunity to correct the error, an elec- tion held with the use of such ballots will not be declared void either as an invasion of the constitutional provision for secrecy or on the ground that the ballots contained distinguishing marks. McGrane v. Nez Percg County, 32: 730, 112 Pac. 312, 18 Idaho, 714. (Annotated) b. Voter's marks. (See also Elections, II. b, 3, b, in Digest L.R.A. 1-70.) 52. An elector who has placed a mark upon his ballot whereby it may be identified cannot be heard to say that he did not in- tend the mark for that purpose. Elwell v. Comstock, 7: 621, 109 N. W. 698, 99 Minn. 261. 53. Words or sentences such as "nit" or "may the best man win," written upon bal- lots, were apparently not placed there for the purpose of identifying the ballots, which may properly be counted. Elwell v. Com- stock, 7: 621, 109 N. W. 698, 99 Minn. 261. 54. A ballot cast at an election, which is so marked by the voter with his name or initials that his identity is thereby disclosed to any other person, is void. Elwell v. Com- stock, 7: 621, 109 N. W. 698, 99 Minn. 261. c. Result; canvassing. (See also Elections, II. c, in Digest L.R.A. 1-70.) Tie vote; majority; two-thirds vote. Two-thirds vote as to issuance of municipal bonds, see BONDS, 96, 97. To adoption of constitutional amendment, see CONSTITUTIONAL LAW, 14. 55. Under a constitutional provision au- thorizing county local option and providing Digest 1-52 L.R.A.(N.S.) also that intoxicating liquors shall not be sold in any election district of the county in which a majority vote was cast against the same at a county election, the sale of in- toxicating liquors is not prohibited in an election district of the county in which the vote is a tie on such an election, although under a previous election the election dis- trict voted against the sale of liquors and in favor of prohibition, and by virtue of such majority vote the sale of liquors in such election district had been prohibited. Yent v. State ex rel. Richardson, 49: 1204, 63 So. 452, 66 Fla. 336. (Annotated) Canvassing. Mandamus to control canvassing board, see MANDAMUS, 80. Personal liability of an election officer for rejecting ballots, see OFFICERS, 97. Right of citizen to maintain action to com- pel canvassing of votes, see PARTIES, 116. 56. The officials of a municipal corpora- tion cannot refuse to canvass the returns of an election held at the proper time by the citizens, on the ground that they neglected to take the preliminary steps for holding the election, and refused to supervise the one actually conducted. State ex rel. Har- vey v. Mason, 9: 1221, 88 Pac. 126, 45 Wash. 234. Recount. * Mandamus to compel, see MANDAMUS, 80. Declaration of result; certificate of election. Governor's duty to issue, see GOVERNOR, 2. Mandamus to compel issuance of certificate of election, see MANDAMUS, 33, 82. Mandamus to compel declaration of result, see MANDAMUS, 81. 57. The adoption by a primary election law of the provisions of the general election law as to the canvass of the votes includes the provision for the execution of a certifi- cate of election to the duly nominated pri- mary candidate. State ex rel. Rinder v. Goff, 9: 916, 109 N. W. 628, 129 Wis. 668. d. Election fraiids; crimes. (See also Elections, II. d, in Digest L.R.A. 1-70.) Recovery on note for money used to corrupt voters, see BILLS AND NOTES, 221. Injunction against fraud, see COURTS, 80, 222. What courts may issue writs to prevent frauds, see COURTS, 221, 222. Injunction against fraud generally, see IN- JUNCTION, 123. Injunction against padding of registration lists, see PARTIES, 104. Privilege of witness in prosecution for, see WITNESSES, 135. 58. Criminal intent is a necessary ele- ment of conviction for violation of the stat- iite against illegal voting. People v. Os- borne, 40: 168, 135 N. W. 921, 170 Mich. 143. 59. Wilfully voting when disqualified ELECTIONS, IV. 987 involves either knowledge of disqualification or a reckless disregard of whether one is disqualified or not. State v. Savre, 3: 455, 105 N. VV. 387, 129 Iowa, 122. 60. Upon the question of wilful voting when disqualified, evidence is admissible that the voter, being in doubt, fairly stated the facts to, and took the opinion of, per- sons learned in the law. State v. Savre, 3: 455, 105 N. W. 387, 129 Iowa, 122. IV. Nominations; primaries; political committees. (See also Elections, III. in Digest L.R.A.. 1-10.) Persons and parties entitled to place on bal- lot, see supra, 31-36. Permitting electors of political parties to express choice of candidate for United States senate, see CONSTITUTIONAL LAW, 81; COURTS, 127; STATUTES, 72, 101. Enjoining certification of names of candi- dates for office of United States senator, see COURTS, 225; PARTIES, 117. Original jurisdiction of Supreme Court over questions as to, see COURTS, 223-226. Recovery by newspaper on bond of county clerk for failure to publish in paper lists of nominations, see PARTIES, 89. Who may question eligibility of candidate, see PARTIES, 115, 118. See also supra, 20. 61. Anyone who has the statutory quali- fications to fill an office may be a candidate for election to that office. If he affiliates with a political party, he may become the candidate of that party; or he may become a candidate independently of all parties. State ex rel. Curyea v. Wells, 41: 1088, 138 N. W. 165, 92 Neb. 337. Nominating conventions. 62. Under the statutes of Nebraska, the national convention of a political party, or, when the convention is not in session, its national central committee, is the supreme governing body of such party as to national affairs, and has full authority to decide which of rival conventions or committees in the state is the regular and duly author- ized convention or committee of such party. State ex rel. Nebraska Rep. State C. Com. v. Wait, 43: 282, 138 N. W. 159, 92 Neb. 313. Certificate of nomination. Disqualification of judge to pass on appli- cation to restrain certifying of nominee, see JUDGES, 18. See also supra, 35. Vacancy in party ticket. 63. Where candidates for presidential electors chosen at a closed primary as the candidates of a political party, subsequently join another party whose principles are at variance with those of the first, and accept the nomination of that party as candidates for presidential electors, and by their con- duct show their intention of voting, if elect- ed, for the candidates of the second party for the office of President and Vice-Presi- Digest 1-52 L.R.A.(N.S.) dent, such persons have vacated the office held under the first party. State ex rel. Nebraska Rep. State C. Com. v. Wait, 43: 282, 138 N. W. 159, 92 Neb. 313. 64. Where candidates for presidential electors of a political =party subsequently accept nomination as candidates, for the same office, of another party, and thereby vacate the office held under the first party, the duly recognized state central committee of the first party has the right to fill the vacancy thus created. State ex rel. Ne- braska Rep. State C. Com. v. Wait, 43: 282, 138 N. W. 159, 92 Neb. 313. 65. Where at a primary election in which one political party has no candidate for a certain office, a majority of the voters of such party voting for a candidate for such office write in the name of the candi- date of an opposing political party, who makes the necessary filings, declaring under oath that he affiliates with such opposing party, and such candidate is certified as the candidate of the party thus holding the elec- tion, but fails to accept the nomination or file any statement that he affiliates with such party as required by statute, a va- cancy has occurred within the meaning of Cobbey's Ann. Stat. (Neb.) 1911, 5888, and the proper party committee may fill the vacancy. State ex rel. Curyea v. Wells, 41: 1088, 138 N. W. 165, 92 Neb. 337. (Annotated) Primary elections. Use of voting machines at primary election, see supra, 46, 47. Court's power over, see COURTS, 125. Original jurisdiction of Supreme Court as- to, see COURTS, 223, 224, 226. Conclusiveness of certificate of nomination under primary election law, see COURTS, 224. Mandamus to compel determination of ques- tions of qualifications of candidate by, see MANDAMUS, 14. Who may maintain action to test eligibil- ity of candidate at primary election, see PARTIES, 118. Nomination of candidates for presidential electors, see PRESIDENTIAL ELECTORS. Partial invalidity of primary election law, see STATUTES, 69. Sufficiency of title of primary election law, see STATUTES, 101, 102. 66. A constitutional provision fixing the time for the holding of general elections does not prevent the legislature from pro- viding for a primary election to be held on a different date. State ex rel. Miller v. Flaherty, 41: 132, 136 N. W. 76, 23 N. D. 313. 67. A primary election law which make* the taking of an oath of party fealty a' condition precedent to the right to partici- pate in a primary election for the nomina- tion of party candidates is not a violation of a constitutional provision requiring a secret ballot. State ex rel. Miller v. Fla- herty, 41: 132, 136 N. W. 76, 23 N. D. 313. (Annotated) 68. A portion of a statutory affidavit re- quired to be made upon enrolment in a 988 ELECTIONS, IV. party for the purpose of participating in a primary election, which discriminates be- tween claims of naturalized citizens in that it permits the foreign born elector natu- ralized by court process to vote if other- wise qualified, but excludes from voting in such primary election those electors natu- ralized by being within the terms of the act of Congress naturalizing certain for- eign born residents within the limits of the state at the time of its admission into the Union, and also those electors similarly naturalized by act of Congress because of having been residents of other states upon the admission of such state into the Union, is unconstitutional and void. State ex rel. Miller v. Flaherty, 41: 132, 136 N. W. 76, 23 N. D. 313. 69. A provision of a primary election law which confers the right to vote upon a per- son who moves into an election precinct a specified time before the election, but with- holds it from residents of the precinct who at the time fixed possess all the constitu- tional qualifications of legal voters, but were not registered at the last general reg- istration day, violates the constitutional provision that all elections shall be free and equal. People ex rel. Phillips v. Strass- heim. 22: 1135, 88 N. E. 821, 240 111. 279. 70. A primary election law which re- quires registration as a condition precedent to voting at the primary, but which makes no provision for the registration of all who would be entitled under the Constitution to vote at the primary, is void, especially where the law is only in force in certain portions of the state, and in localities where it is not in force voters similarly situated are allowed to vote. People ex rel. Phillips v. Strassheim, aa: 1135, 88 N. E. 821. 240 111. 279. (Annotated) 71. A statute which provides for the party enrolment of an elector who has be- come of legal age after the day of enrol- ment, but does not in terms provide for the enrolment of one who has been natu- ralized after the day of enrolment, is not unconstitutional, as it will be construed to include the latter class by intendment. State ex rel. Miller v. Flaherty, 41: 132, 136 N. W. 76, 23 N. D. 313. 72. A primary election law providing for the enrolment of the electors In parties, and requiring an oath of party fealty as a con- dition precedent to the right to participate in a primary election for the nomination of party candidates, and making no provi- sion for enrolment of independent voters, thereby in effect barring them from par- ticipating in such election, does not pre- scribe an added qualification for suffrage within the prohibition of a constitutional provision granting to every male citizen of a certain age and residence the right to vote, nor does it restrict the right of suf- frage. State ex rel. Miller v. Flaherty, 41: 132, 136 N. W. 76, 23 N. D. 313. 73. The percentage vote cast by a politi- cal party for governor in a particular dis- trict at the preceding election is a proper basis for a regulation to prevent pavticipa- Digest 1-52 L.R.A.(N.S.) tion by members of one party in the con- trsts between candidates at the primary election of another party. State ex rel. MHirael v. Phelps, 35: 353, 1'28 N. \V. 1041, 144 \\ is. 1. 74. A primary election law limiting elec- tors to the right to cast one ballot for each of the nominees for representatives in the general assembly, named by the senatorial committee, contravenes a constitutional pro- vision entif'ng the electors to cast a vote at the election for three candidates for rep- resentatives in the general assembly, or to cumulate or divide his vote upon a less number of candidates. People ex rel. Phil- lips v. Strassheim, 22: 1135, 88 N. E. 821, 240 111. 279. 75. A statute limiting the printed names of candidates for chid justice or justice of the supreme court on a primary election ballot to nominees by petitions containing not less than 5,000 names each, not more than 500 of which shall be from one coun- ty, violates a constitutional provision de- claring that all elections shall be free, and that there shall be no hindrance or im- pediment to the right of a qualified voter to exercise the elective franchise, since thereby all ejectors except 500 in each coun- ty are deprived of the constitutional right to take part in the nomination of a political candidate. State ex rel. Hawaii v. .lunkin, 23: 839, 122 N. W. 473, 85 Neb. 1. 76. A primary election law requiring a candidate for nomination to the state legis- lature to take an oath that he is a candidate of a designated political party, and to make a pledge to the people that he will support and vote for that candidate of his party for United States Senator who has received a majority of such party votes for that posi- tion at the primary election, or at the suc- ceeding general election, violates a constitu- tional provision requiring a member of the legislature to take and subscribe an oath that he will support the Constitutions of the United States and of the state, and will faithfully discharge the duties of his office, and that no other oath, declaration, or test shall be required as a qualification for office. State ex rel. McCue v. Blaisdell. 24: 465, 118 N. W. 141, 18 N. D. 55. 77. In a primary election law providing that the party candidate for the United States Senate receiving the highest number of votes at the party primary shall be the party nominee for such office at the suc- ceeding session of the legislative assembly which is to elect a United States Senator, but that if no candidate receive 40 oer cent of his party primary vote, then the two candidates of each party who received the highest number of votes shall be placed upon a "separate" ballot, to be voted for at the general election following; that such ballot shall be prepared in the same manner as a general election ballot; that the candidates of such party shall be placed upon such ballot under their proper party heading; and that the name of each candidate shall be placed upon such ballot in the same manner as a candidate for a state office, and shall be ELECTIONS, V. ELECTRICAL USES AND APPLIANCES. voted for in the same manner, the word "separate" does not mean separate from the general ballot, but means separate as to each political party which had failed to make nominations at the regular party primary, and therefore requires the candi- dates for United States Senator of each of such political party to be placed on separate party ballots. State ex rel. McCue v. Blais- dell, 24: 465, 118 N. W. 141, 18 N. D. 55. 78. The legislature of Nebraska, in pro- viding for the "closed primary," adopted the policy of allowing each political party to select its own candidates. State ex rel. Curyea v. Wells, 41: 1088, 138 N. W. 165, 92 Neb. 337. 79. Under the Nebraska primary law no political party can be compelled to present as its candidate at a general election one who does not affiliate with the party so presenting him as a candidate. SttUe ex rel. Curyea v. Wells, 41: 1088, 138 N. W. 165, 92 Neb. 337. 80. Neb. Comp. Stat. 1911, chap. 26, pro- viding for a closed primary, clearly recog- nizes the existence of political parties, and delegates to the members of each party the right to vote at primaries and general elec- tions for candidates of their own party, nominated by themselves without the inter- ference of members of any other political party. State ex rel. Nebraska Rep. State C. Com. v. Wait, 43: 282, 138 N. W. 159, 92 Neb. 313. Political committees. Mandamus to parish committee, see MANDA- MUS, 14. See also supra, 65. 81. A Democratic parish committee has no power to pass upon the eligibility of can- didates for public office, as they are not charged with judicial functions nor clothed with juridical power. Roussel v. Dornier, 39: 826, 57 So. 1007, 130 La. 367. ( Annotated ) V. Contests. (See also Elections, IV. in Digest L.R.A. 1-10.) Contest of local option election, see APPEAL AND ERROR, 3^. 12, 13; CONSTITUTION- AL LAW, 545; STATUTES, 181. Court's power to review, see COURTS. I. c, 2, d. Jurisdiction of election contests, see COURTS, 205, 206. Disqualification of judge to try election con- test, see JUDGES, 16, 17. Contest of title to office, see OFFICERS, I. f. Complaint in election contest, see PLEAD- ING, 427. Construction of statute as to preserving of ballots, see STATUTES, 254-256. Extension of statute as to contest by refer- ence to title only, see STATUTES, 359. Trivilege of witness in prosecution for, see WITNESSES, 135. right of the candidate receiving the next highest number of votes for the office of county assessor to contest the right of the candidate receiving the highest number to hold the office, upon the ground that the lat- ter was ineligible in that he was not a free- holder, that the electors of the county who voted for the latter did so "wilfully or ob- stinately," with notice of his ineligibility. State ex rel. Clawson v. Bell, 13: 1013, 82 N. E. 69, 169 Ind. 61. 83. The candidate receiving the next highest number of votes for the office of county assessor is not entitled to contest the right of the candidate receiving the highest number to hold that office because of the latter's ineligibility by reason of not being a freeholder, under a statute providing that, when any person shall unlawfully hold or exercise a public office, an information may be filed by the prosecuting attorney upon his own relation, or "by any other person on his own relation, whenever he claims an interest in the office," in the absence of any- thing to show that the voters of the county knew, or ought to have known, of such in- eligibility. State ex rel. Clawson v. Bell, 13: 1013, 82 N. E. 69, 169 Ind. 61. (Annotated) 84. Participation in an election which is not secret, although required by statute to be by ballot, does not waive the right to contest the result, since such waiver would be against public policy. State ex rel. Birchmore v. State Bd. of Canvassers, 14: 850, 59 S. E. 145, 78 S. C. 461. 85. Adequate provision for contesting an election bo determine whether or not the running at large of stock shall be permit- ted, is not made by providing that it may be contested on the same grounds and in the same manner as contests of election of con- stables are held, the statute governing which is in terms confined to the election of persons to office. Season v. Shaw, 18: 566, 42 So. 611, 148 Ala. 544. (Annotated) VI. Violation of election laws. 86. A discharged convict cannot be con- victed of illegally registering as a voter if he acted in good faith believing, upon ad- vice of registration officers, that the papers given him upon his release from confinement restored his citizenship. State v. White, 37: 1177, 140 S. W. 896, 237 Mo. 208. ELECTORS. In general, see ELECTIONS. Presidential electors, see PRESIDENTIAL ELECTORS. ELECTRICAL USES AND AP- PLIANCES. 82. It will not be presumed, in aid of the See ELECTRICITY. Digest 1-52 L.R.A.CN.S.) 990 ELECTRIC COMPANY ELECTRICITY, I. ELECTRIC COMPANY. In general, see ELECTRICITY. Power line of, in highway, see EMINENT DO- MAIN, 288; ESTOPPEL, 15(5; HIGHWAYS, 33. Power of electric company to exercise power of eminent domain, 'see EMINENT DO- MAIN, 12, 47, 59, 71-80, 103, 104. See also ELECTRIC LIGHTS. ELECTRIC CONTROLLER. Injury to servant by explosion of street car controller, see MASTER AND SERVANT, 382, 450. ELECTRIC HEADLIGHTS. Requiring use of, on locomotives, see CON- STITUTIONAL LAW, 209, 210, 438, 439. ELECTRICIANS. Statute as to licensing of, see CONSTITU- TIONAL LAW, 197, 242, 430. ELECTRICITY. I. Municipal or governmental regu- lation of, 1. II. Conflicting rights of different com- panies, 2, 3. III. Injuries resulting from, 487. a. Negligence of party produc- ing, 4-75. 6. Contributory negligence of person injured, 7687. Right of electric company to appeal from order of public service commission per- mitting issue of bonds by other corpora- tion, see APPEAL AND ERROR, 82. Review of legislative decision as to grant- ing power of eminent domain to elec- trical company, see COURTS, 120, 124. Ejectment to secure removal of electric wires over one's property, see EJECT- MENT, 1, 17. Electric lights - generally, see ELECTRIC LIGHTS. Condemnation by corporation organized to transmit, of right to cut trees, see EMI- NENT DOMAIN, 21. Condemnation of property of electrical company, see EMINENT DOMAIN, 27. Power of electric company to exercise power of eminent domain, see EMINENT DO- MAIN, 12, 47, 59, 71-80, 103, 104. Poles and wires as additional servitude, see EMINENT DOMAIN, 291-296. Electric railroad as additional servitude, see EMINENT DOMAIN, 303-309. Digest 1-52 L.R.A.(N.S.) Burden of proving right to place wires in streets, see EVIDENCE, 518. Person using gas engine to generate elec- tricity for charging electric automo- biles, as a manufacturer, see GAS, 15. Right to maintain poles and wires in high- way, see HIGHWAYS, 53-65. Injury to trees in highway by stringing of electric wires, see HIGHWAYS, 114-119. Enjoining breach of contract to furnish, &ee INJUNCTION, 62. Injunction to prevent interference with electric conduits, see INJUNCTION, 309. Right of tenant to remove electric fixtures, see LANDLORD AND TENANT, 113, J16. Licensing of electricians, see CONSTITUTION- AL LAW, 242; LICENSE, 50; STATUTES, 57. Laches to bar riglit to require conduits for electric wires to be removed from street, see LIMITATION OF ACTIONS, 70. Lien for purchase price of supply of, see EVIDENCE, 523; MECHANIC'S LIENS, 28. Placing cost of inspection of electrical work on person doing the work, see MUNICI- PAL CORPORATIONS, 175. Electric light plant as nuisance, see DAM- AGES, 503, 504; NUISANCES, 65, 112. Rules adopted by corporation organised to supply, see PUBLIC SERVICE CORPORA- TIONS, 3, 4. Necessity that corporation organized to supply and distribute electricity obtain consent of public service commission be- fore beginning construction, see PUBLIC SERVICE COMMISSION, 6. Authorizing issue of bonds by corporation organized to furnish, see PUBLIC SERV- ICE COMMISSION, 7. As motive power of railroad, see RAILROADS, 29. As motive power of street railway, see STREET RAILWAYS, II. Electric company as manufacturing com- pany for purposes of tax laws, see TAXES, 88. Right of riparian owner to convey electric power generated by fall of stream to nonriparian land, see WATERS, 136. /. Municipal or governmental regula- tion of. (See also same heading in Digest L.R.A. 1-10.) Power of city as to electric lighting general- ly, see MUNICIPAL CORPORATIONS, II. f, If Power of municipality as to rates for, see MUNICIPAL CORPORATIONS, 178. 1. A corporation engaged in furnishing electricity to a municipality or its inhabi- tants and using public streets or exercising other franchises or privileges in doing so is thereby performing services of a public nat- ure, within the meaning of the Constitution and laws of this state, and such a corporation is subject to lawful governmental regulations to enforce its duties to the public it under- ELECTRICITY, II., III. a. 991 takes to serve. Gainesville v. Gainesville Gas & Electric Power Co. 46: 1119, 62 So. 919, 65 Fla. 404. //. Conflicting rights of different com- panies. (See also same heading in Digest L.R.A. 1-10.) 2. There is no common-law liability on the part of an electric railway company, in the absence of negligence, for interference with the workings of a submarine telegraph cable, due to escape of electricity while re- turning along the rails to the power house, where immunity from such interference may be obtained by a special mode of construct- ing the cable. Eastern & South African Teleg. Co. v. Cape Town Tramways Cos. 2 B. R. C. 114, [1902] A. C. 381. Also Re- ported in 71 L. J. P. C. N. S. 122, 50 Week. Rep. 657, 86 L. T. N. S. 457, 18 Times L. R. 523. (Annotated) 3. Neither the provision in a statute authorizing the construction of an electric railway, that in the event of any electric leak taking place and damage being thereby caused at any time by electrolysis or other- wise, the company shall make good such damage, and further providing that nothing therein should entitle the company to use the rails of its lines as part of its system of conductors for the return electrical cur- rent without the consent of the city council; nor a condition under which the consent the council to such use was obtained, that if at any time a greater leakage should be dis- covered than would render it possible for the escaping current to be reversed in a manner indicated, it should be localized and removed as soon as possible, has reference to an escape naturally resulting from the working of the system; and therefore no liability is imposed thereby upon the rail- way company for a disturbance in the work- ing of a telegraph cable in consequence of its use of its rails for the return current. Eastern & South African Teleg. Co. v. Cape Town Tramways Cos. 2 B. R. C. 114, [1902] A. C. 381. Also Reported in 71 L. J. P. C. N. S. 122, 50 Week. Rep. 657, 86 L. T. N. S. 457, 18 Times L. R. 523. III. Injuries resulting from, a. Negligence of party producing. (See also same heading in Digest X,.R A. 1-10.) Evidence in action for death caused by elec- tric shock, see APPEAL AND ERROR, 1104. Presumption and burden of proof as to negligence, see EVIDENCE, II. h, 1. d. Presumption from burning out of controller, see EVIDENCE, 370, 371. Evidence of negligence as to. generally, see EVIDENCE, 1764, 1791, 1792, 1876, 1877. Digest 1-52 I,.R.A.(N.S.) Sufficiency of proof of negligence as to, see EVIDENCE, 2166. Variance between pleading and proof in ac- tion for death caused by, see EVIDENCE, 2493. Right to recover for fright resulting from electric flash, see FRIGHT, 8. Landlord's liability for injury to tenant, see LANDLORD AND TENANT, 148. Liability of master for negligence of serv- ant as to, see MASTER AND SERVANT, 382, 883. Liability of telephone company to employees of another using poles, see MASTER AND SERVANT, 469-471. Master's duty to warn servant of dangers of, see MASTER AND SERVANT, 226, 227, 245; PLEADING, 302. Fellow servants of linemen, see MASTER AND SERVANT, 796, 797. Liability of municipality for negligence of employees in light department, see MU- NICIPAL CORPORATIONS, 417-420. Liability of electric light company for negli- gence in attaching arc light to ceiling, see NEGLIGENCE, 89. Negligence in use of X-ray, see PHYSICIANS AND SURGEONS, 46-48, 68. Negligence of physician in use of, see PHY- SICIANS AND SURGEONS, 61. Proximate cause of injury by, see PROXI- MATE CAUSE, II. c. Right of action under state statute for death resulting from electric shock on military reservation, see STATE, 33. Negligence as question for jury, see TRIAL, 577-582. Correctness of instructions in action for in- jury by, see TRIAL, 1055, 1056. 4. There is no distinction between the measure of care that should be exercised by an electric company in the management and care of its wires to prevent danger to those coming directly in contact with them, and the measure of care that should be exercised to prevent the wires of a tele- phone company from becoming charged therefrom with a dangerous current of elec- tricity; the utmost care being required in both instances. Paducah Light & Power Co. v. Parkman, 52: 586, 160 S. W. 931, 156 Ky. 197. (Annotate-1) 5. One furnishing electricity for light- ing purposes is not an insurer against in- jury to persons whose duties require them to be near the wires, but it must exercise the highest care to prevent such injury. Phelan v. Louisville Electric Light Co. 6: 459, 91 S. W. 703, 122 Ky. 476. (Annotated) 6. The utmost care and skill which one furnishing electricity for lighting purposes must exercise to prevent accident to cus- tomers means the highest degree of care and skill known, which may be used under the same or similar circumstances. Phelan v. Louisville Electric Light Co. 6: 459, 91 S. W. 703, 122 Ky. 476/ 7. An electric light company cannot es- cape liability for the death of a person who 992 ELECTRICITY, III. a. innocently came in contact with its ground- ed current upon his own premises, upon the theory that it owed him no duty. Har- rison v. Kansas City Electric Light Co. 7: 293, 93 S. VV. 951, 195 Mo. 606. 8. An electric light company is negli- gent in turning the current upon a circuit upon which it has known that the wire was grounded, without positively knowing that the trouble has been remedied, where the means to ascertain that fact are with- in its reach and at hand. Harrison v. Kan- sas City Electric Light Co. 7: 293, 93 S. W. 951, 195 Mo. 606. 9. An electric light company which neg- ligently turns a current onto a circuit hav- ing a grounded wire cannot escape liability for resulting injury to a person coming in contact with the grounded current by the fact that the injury would not have oc- curred except for the act of a stranger in making a second ground at another place. Harrison v. Kansas City Electric Light Co. 7: 293, 93 S. W. 951, 195 Mo. 606. (Annotated) 10. Injury by electricity to a consumer by taking hold of a lamp to turn on the light, in the same manner that he had been accustomed to do without injury is evidence of negligence on the part of the company, which had contracted to furnish the elec- tricity for the lights at a certain voltage, where the fixtures are in good condition and the voltage contracted for is not likely to produce harmful results if proper care is observed in its transmission. Turner v. Southern Power Co. 32: 848, 69 S. E. 767, 154 N. C. 131. 11. One who, in furnishing electricity to light a building, has done all that the high- est degree of care could reasonably require in reference to the conditions, maintenance, and inspection of his wires and appliances, is not responsible for injury to a consumer by electricity escaping from a lamp while he is attempting to turn it on. Turner v. Southern Power Co. 32: 848, 69 S. E. 767, 154 N. C. 131. 12. A telephone company is not liable lor injury to a patron by lightning when he is attempting to use a phone during a thunderstorm, where it has equipped the line with the most effective device known for the prevention of such accidents, and the device is in good order at the time of injury. Rocap v. Bell Teleph. Co. 36: 279, 79 Atl. 769, 230 Pa. 597. (Annotated) 13. A telephone company is not negli- gent in failing to place a warning upon instruments, that they are not to be used during thunderstorms, so as to render it liable for injury to a patron by lightning while making such attempt. Rocap v. Bell Teleph. Co. 36: 279, 79 Atl. 769, 230 Pa. 597. 14. Whether a pole carrying a deadly current of electricity from which a wire in allowed to hang in a dangerous condition is on or off from property rented by its owner to the parent of a child injured by com- ing in contact with the wire is immaterial on the question of liability for the injury, Digest 1-52 L.R.A.(N.S.) if the owner had sole control of it. Ferrell v. Dixie Cotton Mills, 37: 64, 73 S. E. 142, 157 N. C. 528. 15. When electric power is simply fur- nished to a responsible party for use in a system of poles, wires, and appliances owned and controlled by such party and in proper condition to receive the current safely, the furnishing party is not required to main- tain inspection or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of some defect therein, it may assume that such safety will be maintained; and the fact that in furnishing such power for arc light- ing the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule. In order to hold the seller liable it must appear that it continued to furnish and turn on the current after knowing that the purchaser had permitted the equipment to become de- fective. Hoffman v. Leavenworth Light, H. & P. Co. 50: 574, 138 Pac. 632, 91 Kan. 450. 16. An electric light company is under no duty to one who has surreptitiously con- nected unauthorized wiring with his house wiring, for the purpose of carrying the cur- rent into an adjacent building, in viola- tion of his contract with the company, whereby he agreed to use the electric system put in his residence upon the said premises and for the purposes therein specified only, to make no new connections without permis- sion, and to provide and maintain the house wiring and appliances "in efficienct con- dition, with proper protective devices, the whole according to fire underwriters' re- quirements," so as to render it liable for allowing dangerous currents to escape from a defective transformer, in consequence of which the consumer received a fatal shock while attempting to use a portable lamp connected with such unauthorized wiring. Montreal Light, Heat & P. Co. v. Laurence, 4 B. R. C. 494, 39 Can. S. C. 326. (Annotated) 17. An electrical company which collects electricity, and sells and delivers it to an- other electrical company at a point where the wires of the two companies meet, is not liable for the death of one coming in con- tact with a grounded electric light wire of the latter company, which was charged with the purchased electricity, but over which the former company had no control. Fickeisen v. Wheeling Electrical Co. 27: 893, 67 S. E. 788, 67 W. Va. 335. (Annotated) Insulation. Liability to trespassers, see infra, 74. Presumption that wire was not properly insulated, see EVIDENCE, 467. Master's duty as to, see MASTEB AND SERV- ANT, 300, 442. Imperfect insulation as proximate cause of injury, see PROXIMATE CAUSE, 57, 59. As question for jury, see TRIAL, 578, 582. See also infra, 36, 78. 18. An electric company is charged with knowledge of the character of insulation ELECTRICITY, III. a. 993 installed by itself upon its own wires, and the probable effect on it of conditions to which it will be subjected. Ryan v. St. Louis Transit Co. 2: 777, 89 S. W. 865, 190 Mo. 621. 19. An electric light company is bound to use a high degree of care to keep its wires safely insulated at places where persons may be lawfully in close proximity to them, and accidentally come in contact with them. Runyan v. Kanawha Water & Light Co. 35: 430, 71 S. E. 259, 68 W. Va. <309. 20. A corporation maintaining danger- ous electric wires across the private prop- erty of another will not be relieved, on the ground of expense, of exercising reasonable care to maintain proper insulation to pre- vent accidents reasonably to be apprehend- ed to those lawfully coming near the wires. Braun v. Buffalo General Electric Co. 34: 1089, 94 N. E. 206, 200 N. Y. 484. (Annotated) 21. A corporation which permits the in- sulation on dangerous electric wires strung across a vacant city lot which it may rea- sonably anticipate will be improved, to be- come defective, will be held liable for the death of a carpenter who, by working on a building in process of erection on the property, accidentally comes in contact with the wires and is killed. Braun v. Buffalo General Electric Co. 34: 1089, 94 N. E. 206, 200 N. Y. 484. '22. Workmen have a right to be on any part of an iron bridge in doing necessary work in painting it, and an electric light company having its wires on the bridge must keep them properly insulated, so that such workmen coming accidentally in contact with the wires may not be injured thereby. Runyan v. Kanawha Water & Light Co. 35: 430, 71 S. E. 259, 68 W. Va. 609. 23. An electric company which maintains upon a public bridge wires carrying a dan- gerous current, without sufficient insula- tion, and so placed that persons required to work upon the bridge may come in con- tact with them, is liable for injury to such a workman by a disruptive discharge of electricity from the wires, without negli- gence on his part. Hoppe v. Winona, 33: 449, 129 N. W. 577, 113 Minn. 252. 24. One owes the general public no duty safely to insulate electric wires which he runs 30 feet above the ground near a bridge pier, which is not intended to be climbed, although braces on the pier form a lattice work which may be climbed. Graves v. Washington Water Power Co. u: 452, 87 Pac. 956, 44 Wash. 675. 25. One maintaining an uninsulated elec- tric wire near a bridge pier is not bound to anticipate that, because of the attractive character of the pier and the birds found there, children may climb the pier and come in contact with the wire, and take precau- tions to guard against injury to them. Graves v. Washington Water Power Co. ii : 452, 87 Pac. 956, 44 Wash. 675. 26. It is negligence to attach an i sulated wire carrying a dangerous electrical current to a tree in a highway having Digest 1-52 I,.R.A.(N.S.) branches extending almost to the ground, which children would be likely to climb. Temple v. McComb City Electric Light & P. Co. ii : 449, 42 So. 874, 89 Miss. 1. . (Annotated) 27. A company furnishing electricity for the lighting of a shop, the inside wiring of which was done under an independent con- tract with the owner thereof, and accepted ay him and approved by the city inspector, is not liable for injury to a person who is in such building as a mere licensee, caused by reason of such inside wiring having be- come imperfectly insulated by the act of the owner, without notice thereof to the elec- tric company. Minnesota General Elec. Co. v. Cronon, 20: 816, 166 Fed. 651, 92 C. C. A. 345. 28. Evidence that the insulation on elec- tric wires in a highway, between 14 and 20 inches from the railing of a bridge, had become worn and defective, and had ceased to offer any protection to anyone coming in contact with them, justifies the jury in holding the electric light company liable for injuries to a child who while playing on the bridge reached out and touched them. Glos- ter v. Toronto Electric Light Co. 1 B. R. C. 786, 38 Can. S. C. 27. Guard wires. See also infra, 31, 66. 29. A jury may infer negligence on the part of a telephone company from its omis- sion to place a guard between its guy wire and an electric light wire with which it is likely to become crossed. Guinn v. Dela- ware & A. Teleg. & Teleph. Co. (N. J. Err. & App.) 3: 988, 62 Atl. 412, 72 N. J. L. 276. Injury by wires in streets. Municipal liability, see infra, 40-53. Injury to trespasser, see infra, 69, 72, 73, 75. Contributory negligence of person injured, see infra, 83, 84. Presumption of negligence from breaking of wires, see EVIDENCE, II. h, 1, d. Liability for injury by telephone wire ob- structing street, see HIGHWAYS, 274, 275. Judgment in favor of city as bar to action against electric company, see JUDG- MENT, 202. Liability for negligence of independent con- tractor, see MASTER AND SERVANT, 1004. Sufficiency of allegation to show that fall of wire was caused by negligence, see Pleading, 330. Proximate cause of injury from wire in street, see PROXIMATE CAUSE, 58, 112. Question for jury as to, see TRIAL, 579-581. See also supra/ 22-29. 30. One transmitting electricity through wires strung along the public highway, while not an insurer, is bound to exercise the greatest possible care and to use every possible precaution for the protection of the public. Gloster v. Toronto Electric Light Co. 1 B. R. C. 786, 38 Can. S. C. 27. (Annotated) 31. A telephone company is chargeable with negligence in maintaining a guy wire in such proximity to an electric light wire that it is likely to become crossed and charged with a deadly current of electricity, al- 63 094 ELECTRICITY, III. a. though the danger arises from the runnin of the electric light wire below the guy wire % subsequently to the construction of the tele- phone line. Guinn v. Delaware & A. Teleg. & Teleph. Co. (N. J. Err. & App.) 3: 988, 62 Atl. 412, 72 N. J. L. 276. 32. An electric light company which per- mits telephone wires to be strung on its poles is bound to see that such wires do not come in contact with its own in such a way as to become charged with a dangerous cur- rent to the injury of travelers on the high- way. Fox v. Manchester, 2: 474, 75 N. E. 1116, 183 N. Y. 141. 33. Negligence may be found from the hanging of a live, broken electric- light wire on a pole in a much-used public street at about the level of the heads of the people, and leaving it there two days without at- tention. Fisher v. New Bern, 5: 542, 53 S. E. 342, 140 N. C. 506. 34. That one guilty of negligently per- mitting a broken electric wire to remain in an exposed position in a public street thought that it did not carry enough elec- tricity to be dangerous will not absolve him from liability for the death of one coming in contact with it. Fisher v. New Bern, 5: 542, 53 S. E. 342, 140 N. C. 506. 35. A telephone company is guilty of negligence in placing its telephone wires only 13 feet above a road crossing, and per- mitting such wires to become slack and to sag until they interfere with legitimate travel, under a statute requiring such wires to be placed 20 feet above the road cross- ings. Weaver v. Dawson County Mut. Teleph. Co. 22: 1189, 118 N. W. 650, 82 Neb. 696. 36. A vendor of electricity which turns a powerful current onto private wires strung along a highway is bound to inspect them from time to time, to see that they are se- curely fastened and properly insulated, al- though they do not belong to it. Lewis v. Bowling Green Gaslight Co. 22: 1169, 117 S. W. 278, 135 Ky. 611. (Annotated 37. An electrical company is not liable for the death of one driving in a highway, by his vehicle coming in contact with a wire negligently permitted to sag after being strung across the street by one to whom it has agreed, if such person will place the wires for reception of the current, and con- nect them with the poles of the electrical company, to furnish current free of charge for a celebration in a park, and the over- turning of the seat thereby, if the company has no notice of the defective condition of the wire. San Antonio Gas & Electric Co. v. Ocon, 39: 1046, 146 S. W. 162, 105 Tex. 139. (Annotated) 38. An electric light and power company which, pursuant to a right granted by its franchise, maintains heavily charged electric wires over a street, and the employee of one who, pursuant to a license, is, to the knowledge of the electric company, moving a building of greater height than such wires upon such street, are not licensees as to each other, so as to relieve the electric corn- Digest 1-52 L.R.A.(N.S-) pany of its duty to have its wires in a con- dition safe for the house mover's employee to handle. Winegarner v. Edison Light !.--'ti!';tt1 hfiib to (See also same heading in Digest L.R.A. 1-10.) Negligence of infant, see NEGLIGENCE, 227. Contributory negligence of parents of child injured by electric wire, see NEGLI- GENCE, 230. Imputed negligence, see NEGLIGENCE, 253. As question for jury, see TRIAL, 583-585. See also supra, 28. 76. One is not negligent in attempting to put up iron pipes near live electric wires, where they appear to be properly insulated. Ryan v. St. Louis Transit Co. 2: 777, 89 S. W. 865, 190 Mo. 621. 77. An employee in a building lighted by electricity has, in the performance of his duties, a right to assume, in the absence of notice to the contrary, that the transform- er and other appHan es for furnishing electricity are in good order and free from defects. Phelan v. Louisville Electric Light Co. 6: 459, 91 S. W. 703, 122 Ky. 476. 78. A volunteer who, having been warned of the danger of approaching a broken elec- tric wire which he knows to be uninsulated and to carry a current for lighting purposes, and to have shocked another into insensi- bility, approaches the wire to determine whether or not it is still live, is guilty of such negligence that no recovery can be had for his death in case he places his hand within the danger zone, and a shock from the wire kills him. Carroll v. Grande Ronde Electric Co. 6: 290, 84 Pac. 389, 47 Or. 424. 79. One seeing a wire which he knows to be charged with a dangerous current of electricity is bound to avoid cdming in con- 998 ELECTRIC LIGHTS. tact therewith, and cannot rely on the own- er's duty to make it safe by insulation as an invitation to make such contact. Graves v. Washington Water Power Co. n: 452, 87 Pac. 956, 44 Wash. 675. 80. One employed in connecting pipes in the immediate vicinity of live electric wires, which he knows to be dangerous, is negli- gent if, without anything to distract his attention, he forgets the danger and comes in contact with a wire to his injury. Ergo v. Merced Falls Gas & Electric Co. 41: 79, 119 Pac. 101, 161 Gal. 334. (Annotated) 81. A fireman who goes among electric wires which have fallen from a burning building, knowing them to be alive, is guilty of negligence which will prevent a recovery against the electric company in case he is injured. Pennebaker v. San Joa- quin Light & Power Co. 31: 1099, 112 Pac. 459, 158 Cal. 579. 82. Persons about to erect a building on a vacant lot cannot be charged with negligence in failing to require the pro- tection or remo/al of dangerous electric wires strung across the lot, if there is noth- ing to indicate to whom they belong, or that they are dangeroas. Braun v. Buffalo Gen- eral Electric Co. 34: 1089, 94 N. E. 206, 200 N. Y. 484. In street. Presumption as to contributory negligence of child injured by, see EVIDENCE, 474. Of infant, see NEGLIGENCE, 227. See also supra, 69, 73, 75. 83. One killed by taking hold of a live electric wire stretched across a public side- w-lk will not be held to have been negligent in touching the wire, unless he knew, or had reason to believe, that it was charged. Palestine v. Siler, 8: 205, 80 N. E. 345, 225 111. 630. 84. A person traveling along a road that is crossed by a telephone line is not bound to anticipate danger at such crossing, and is not required to examine or look to see if there is danger before passing under such wire. Weaver v. Dawson County Mut. Teleph. Co. 22: 1189, 118 N. W. 650, 82 Neb. 696. (Annotated) Linemen. Sufficiency of evidence to show lineman's knowledge of danger, see EVIDENCE, 2179. Question for jury as to, see TRiAr., 495. See also MASTER AND SERVANT, 632, 633. 85. Mere notice to a lineman that a cer- tain pole was bad, and to look out for the wires, is not sufficient to charge him with notice as matter of law that the insulation of the wires was defective. Miner v. Frank- lin County Teleph. Co. 26: 1195, 75 Atl. ^53, 83 Vt. 311. 86. A lineman employed by an electric light company was not, as a matter of law, guilty of contributory negligence, preclud- ing recovery against a telephone company for his death in consequence of his foot slipping and coming in contact with an un- insulated wire, the danger of which was not known to him because he had no reason to know that it was grounded, in relying on Digest 1-52 L.R.A.CN.S.) the insulation affordod by the wooden pole and failing to wear the rubber gloves pro- vided by his employer for handling wires charged with a dangerous voltage, there be- ing testimony tending to show a custom among the employees not to use such gloves in cold weather for the reason that they prevented the men from using their hands effectively, and that it was regarded as proper to work without gloves, except on a "bad pole." Snyder v. Mutual Teleph. Co. 14: 321, 112 N. W. 776, 135 Iowa, 215. 87. An employee of a telephone company in working upon the company's poles upon which are also strung the wires of an elec- tric company is not bound to anticipate negligence on the part of the latter com- pany. Musolf v. Duluth Edison Electric Co. 24: 451, 122 N. W. 499, 108 Minn. 369. ELECTRIC LIGHTS. Exempting electric lighting companies from statute forbidding employment of un- licensed electricians, see CONSTITUTION- AL LAW, 242, 430. Action for electric light furnished to city, see ELECTION OF REMEDIES, 33. Uses and dangers of electricity, see ELEC- TRICITY. Exercise of eminent domain for purpose of supplying, see EMINENT DOMAIN, 4, 5, 47, 48, 71-73, 76, 78. Power of municipality to condemn right of way for spur track to power plant used in connection with electric light system, see EMINENT DOMAIN, 93. Judicial notice as to use of streets for poles and wires, see EVIDENCE, 55, 56. Evidence as to injury through grounded current, see EVIDENCE, 1792. Conduits for wires in highway, see HIGH- WAYS, 53-57. Of public service corporations; injury by, to trees in highway, see HIGHWAYS, 114-117. Judgment in favor of defendant in action for price of, as bar to action on quan- tum meruit, see JUDGMENT, 190. Mandamus to compel furnishing of, see MANDAMUS, 122, 123. Liability of municipality for negligence of employees in light department, see MU- NICIPAL CORPORATIONS, 417-420. Power of city as to, generally, see MUNICI- PAL CORPORATIONS, II. f, 1. Liability for negligence in attaching arc light to ceiling, see NEGLIGENCE, 1764. Rules adopted by corporation organized to supply, see PUBLIC SERVICE CORPORA- TIONS, 3, 4. Negligence in attaching arc light to ceiling, see NEGLIGENCE, 89. Electric light company wrongfully using street as a nuisance, see NUISANCES, 100. Tax on electric light plant owned by mu- nicipality, see TAXES, 117, 118. ELECTRIC RAILROAD ELEVATED RAILROADS. 999 Liability of town for injury resulting from unauthorized operation of electric lighting plant, see TOWNS, 8. Discrimination by company. 1. A provision in an ordinance granting a franchise to an electric light company, that the city should not require the company to make "extensions," except upon certain conditions, does not affect the mutual rights and obligations of the company and the in- dividual residents of an established service zone. State ex rel. Mason v. Consumers' Power Co. 44:1181, 137 N. W. 1104, 119 Minn. 225. 2. A provision in an ordinance granting a franchise to an electric light company, that the city should not require the com- pany to make "extensions," except upon certain conditions, does not affect the right of a resident in an established service zone to invoke the aid of the courts to compel the company to connect his premises with its line. State ex rel. Mason v. Consumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. 3. A public service corporation that has accepted a franchise from a city to operate therein providing that it shall at all times during the life of the franchise furnish and supply electricity to all customers and ap- plicants without discrimination, is bound to serve all alike who are similarly circum- stanced with reference to its system, or who are members of a class to which it has undertaken or is otherwise bound to furnish service. State ex rel. Mason v. Consumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. 4. Where a statute confers upon electric light, heat, and power companies the right to use the highways of a state for the pur- pose of constructing its lines, and where such companies may exercise the power of eminent domain, a corporation organized for such purposes is a public service corpo- ration and is bound by implication of law to make no unreasonable discrimination be- tween those to whom service is to be fur- nished, but must serve all alike who are similarly circumstanced with reference to its system, or who are members of any class which it has undertaken or is otherwise bound to serve. State ex rel. Mason v. Con- sumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. 5. It is unreasonable discrimination for an electric light company to require an applicant for service to procure for it a right of way to his premises, when such condition is not imposed upon other appli- cants and patrons. State ex rel. Mason v. Consumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. 6. Where the premises of a resident of a city are surrounded by residences, one on the same block with his, which are sup- plied with current for lighting purposes by an electric light company, such resident is within an established service zone and prima facie is entitled to the same service accord- ed to his neighbors. State ex rel. Mason Digest 1-52 L.R.A.(N.S-) iv. Consumers' Power Co. 41: 1181, 137 { W. 1104, 119 Minn. 225. ELECTRIC RAILROAD. As carriers, see CARRIERS. Exemption of, from operation of statute forbidding employment of unlicensed electricians, see CONSTITUTIONAL LAW, 242, 430. Contract to pay bonus to, see CONTRACTS, 151, 357, 360; EVIDENCE, 1003. Uses and dangers of electricity, see ELEC- TRICITY. Liability of, for damage due to leaking of electricity, see ELECTRICITY, 2, 3. As additional servitude on highway, see EMINENT DOMAIN, 303-309. Presumption as to negligence of, see EVI- DENCE, 411. As to interurban railways, see INTERURBAN RAILWAYS. Operation of, see STREET RAILWAYS, III. ELECTROCUTION. Validity of statute providing for infliction of death penalty by, see CONSTITUTION- AL LAW, 39. ELECTROLYSIS. Liability for injury due to, see ELECTRIC- ITY, 3. ELEEMOSYNARY INSTITUTIONS. In general, see CHARITIES. Exemption of, from taxation, see TAXES, I. f, 3. ELEVATED RAILROADS. Measure of damages for injuries by con- struction of, see DAMAGES, III. 1, 4, b. Construction of, as a taking of property, see EMINENT DOMAIN, 192. Presumption and burden of proof as to neg- ligence, see EVIDENCE, 405. Grant by abutting owner of license to main- tain in street, see LICENSE, 4. Street railroads, generally, see STREET RAILWAYS. See also CARRIERS. 1. An elevated railway company law- fully operating in a public street is not li- able for injury to a person in the street be- low by the fall of sparks from the train, which are the inevitable result of the careful 1000 ELEVATORS, I., II. operation of the road. Carney v. Boston Elevated R. 42: 90, 98 N. E. 605, 212 Mass. 179. (Annotated) ELEVATORS. I. Grain elevators. II. freight and passenger elevators, 1-24. I. Grain elevators. (See also same heading in Digest L.R.A. 1-10.) Effect of statute permitting construction of grain elevators on ordinance estab- lishing fire limits, see BUILDINGS, 22. Discrimination by carrier in delivery of cars to, see CARRIERS, 1056. Taxation of grain in elevators as interfer- ence with interstate commerce, see COMMERCE, 152. Judicial notice that grain entering Chicago may be switched to, see EVIDENCE, 38. Verdict in joint action against railroad company and elevator company for in- jury to latter's employee, see TRIAL, 1144. As to warehousemen, see WAREHOUSEMEN. II. Freight and passenger elevators. (See also same heading in Digest L.R.A. 1-10.) Measure of damages for failure to perform contract to erect, see DAMAGES, 110. Presumption of negligence from fall of, in- juring employee, see EVIDENCE, 423. For lowering goods from sidewalk to base- ment as a nuisance, see HIGHWAYS, 194. Eviction of tenant by failure of landlord to keep elevators in repair, see LANDLORD AND TENANT, 65. Licensing operators of, see LICENSE, 62. Injury to servant on, generally, see MASTER AND SERVANT, 207, 288-293. Liability for injury to servant of contractor while painting shaft, see MASTER AND SERVANT, 477. As dangerous machine on which children may not be employed, see MASTER AND SERVANT, 170. Master's duty to warn servant as to dan- ger, see MASTER AND SERVANT, 243, 251. Master's duty to inspect, see MASTER AND SERVANT, 443, 444. Assumption by servant of risk of injury from, see MASTER AND SERVANT, 497, 566. One operating elevator as fellow servant, see MASTER AND SERVANT, 751, 793, 794. Who are fellow servants in coal elevator, see MASTER AND SERVANT, 835. Liability for injury to employee through defect in elevator and negligence of fellow servant, see MASTER AND SERV- ANT, 746. Digest 1-52 L.R.A. (N.S.) Assault by elevator man, see MASTER AND SERVANT, 972, 973. Liability of city for injury by elevator, see MUNICIPAL CORPORATIONS, 466, 467. Liability of agent in charge of building for injury by, see PRINCIPAL AND AGENT, 113. Instruction in action for injury by falling into well, see TRIAL, 1039. Duty of water company to supply water for running of, see WATERS, 342, 356. 1. A youth under the age of sixteen years is acting illegally in undertaking to operate an elevator, where the statute pro- vides that no elevator shall, under penalty, be operated by any such person. Moran v. Dickinson, 48: 675,' 90 N. E. 1150, 204 Mass. 559. 2. The liability of a master for the kill- ing of a person by the negligent starting of an elevator is not affected by the fact that the operator of the car is a boy, but is tested by the latter's acts as measured by the standard that would be applied in the case of a careful and experienced man. Davis v. Ohio Valley Bkg. & T. Co. 15: 402, 106 S. \V. 843, 127 Ky. 800. Injury to passenger. Burden of establishing charge of negligence as to, see EVIDENCE, 92. Presumption of negligence from fall of, see EVIDENCE, ^2, 423, 466, 467. Evidence in action for injuries received from operation of, see EVIDENCE, 7!)U. Sufficiency of evidence to show negligence as to, see EVIDENCE, 2129. Landlord's liability for injury to tenant's employee in, see LANDLORD AND TEN- ANT, 178, 179. Liability of master for negligence of one directed by employee to operate eleva- tor, see MASTER AND SERVANT, 23. Master's liability for negligence of opera- tor, see MASTER AND SERVANT, 913. Liability of owner of building for negligent act of janitor, see MASTER AND SERV- ANT, 882. Elevator as dangerous agency in hands of servant, see MASTER AND SERVANT, 890. Liability of master for negligence of inde- pendent contractor in running, see MASTER AND SERVANT, 1011. Pleading in action for injury, see PLEAD- ING, 287. Proximate cause of injury to passenger on, see PROXIMATE CAUSE, 96. Question for jury as to, see TRIAL, 128. 3. One operating an elevator for the purpose of carrying employees is not a common carrier of passengers. Walsh v. Cullen, 18: 911, 85 IS. E. 2253, 235 111. 91. (Annotated) 4. Owners and operators of passenger elevators owe to their passengers the duty to exercise the highest degree of care for their safe transportation. Shellaberger v. Fisher, 5: 250, 143 Fed. 937, 75 C. C. A. 9. 5. The liability of the of a owner of a building, who maintains in it an elevator for the use of his tenants and their cus- ELEVATORS, II. 1001 tomers, is not that of a common carrier of passengers; the rule of reasonable care being the measure of his duty. Edwards v. Manufacturers' Bldg. Co. 2: 744, 61 Atl. 646, 27 R. I. 248. (Annotated) .si/. 6. One operating an elevator by which passengers are carried is bound to exercise the high degree of care which prudent and competent men exercise under like circum- stances. Orcutt v. Century Bldg. Co. 8: 929, 99 S. W. 1062, 201 Mo. 424. 7. The proprietor of a hotel who main- tains a passenger elevator therein owes to every person who has lawful business on the premises, and who has occasion to use the elevator for transportation from floor to floor, the duty of exercising at least or- dinary care in the character of the appli- ance provided, and in its operation, whether such person be guest, visitor, or otherwise. McCracken v. Meyers (N. J. Err. & App.) 16: 290, 68 Atl. 805, 75 N. J. L. 935. (Annotated) 8. One who, because of misconduct, has been prohibited from riding in a passenger elevator, cannot claim the rights of a pas- senger if injured by an accident to the ele- vator while on his way to do business with a tenant of the building. Ferguson v. Tru- ax, 14: 350, 112 N. W. 513, 132 Wis. 478. (Annotated) 9. The owner of a building who main- tains an elevator therein for the use of ten- ants is not liable for injury to a guest of the operator who, without the owner's au- thority, is invited by the operator to ride for pleasure, and is injured by the acciden- tal starting of the elevator before he is safely inside. Sweeden v. Atkinson Improv. Co. 27: 124, 125 S. W. 439, 93 Ark. 397. 9a. The doctrine of attractive nuisance will not support a recovery by a child, guest of an elevator operator, against the owner, for injury due to its negligent opera- tion while the child is attempting to enter it to ride upon invitation of the operator. Sweeden v. Atkinson Improv. Co-. 27: 124, 125 S. W. 439, 93 Ark. 397. 10. The operation of an automatic, push- button, electrical passenger elevator is not negligence which is actionable by any pas- senger, except a child of yaars tender that he cannot know the c 1 nger and appreciate the risk of his contact with the door or side of the shaft when the car is moving, because a passenger of sufficient maturity and discretion to appreciate his danger and risk would be guilty of contributory negli- gence if he permitted himself to suffer from it. Shellaberger v. Fisher, 5: 250, 143 Fed. 937, 75 C. C. A. 9. 11. A waitress in a hotel who has, ac- cording to custom, gone for a walk after her day's duties are done, is not, in at- tempting to use the elevator to return to her room, preparatory to resuming her du- ties in the morning, a passenger towards whom the hotel keeper owes the duty of a common carrier. Walsh v. Cullen, 18: 911, 85 N. E. 223, 235 111. 91. Person riding on top of car. 12. A boy who, with the knowledge or Digest 1-52 L.R.A.(N.S.) implied consent of an elevator operator, rides on top of the car, is not a trespasser, either while riding or while trying to get off. Davis v. Ohio Valley Bkg. & T. Co. 15: 402, 106 S. VV. 843, 127 Ky. 800. 13. It is the duty of an elevator operator who knows that a boy is riding on top of the car to use ordinary care to prevent his injury, even if the latter is treated as a trespasser; and the master is liable for the former's failure to do so, although at the precise moment of the injury the operator may not actually know the boy is in dan- ger, where he can ascertain that fact by looking. Davis v. Ohio Valley Bkg. & T. Co. 15: 402, 106 S. W. 843, 127 Ky. 800. ( Annotated ) Passenger on freight elevator. 14. The owner of a building is not liable for injury to one using its elevator to de- liver merchandise therein, by its fall which was caused by a latent defect in a bolt em- bedded in a beam, which had been put in by a competent workman in repairing the elevator, which repairs had been approved by a casualty company and official public inspectors. Sack v. Ralston, 17: 104, 69 Atl. 671, 220 Pa. 216. (Annotated) 15. 16. A passenger upon a freight as- sumes the usual hazards due to that mode of conveyance, but not those arising from the negligence of the owner. Orcutt v. Century Bldg. Co. 8: 929, 99 S. W. 1062, 201 Mo. 424. 17. The owner of a building owes to one who, by custom of the owner, is permitted to accompany freight which is being re- moved from the building by the freight ele- vator, the duty which a carrier owes his passenger. Orcutt v. Century Bldg. Co. 8: 929, 99 S. W. 1062, 201 Mo. 424. Unguarded wells or shafts. Contributory negligence of person injured, see infra, 24. Opinion evidence as to safety of, see EVI- DENCE, 1148. Variance between pleading and proof in action for injury, see EVIDENCE, 2494. Elevator shaft as dangerous attraction for children, see NEGLIGENCE, 177. Question for jury as to contributory negli- gence of person injured, see TRIAL, 587, 588. 18. One who, at another's invitation, goes upon his property to do business, and, while waiting the latter's convenience, attempts to visit the water-closet, under his permis- sion, has the rights of an invitee, and may hold the owner liable for injuries due to the path being unsafe, because passing near an unguarded and unlighted elevator well. which fact was known to the owner, but not to the invitee. Glaser v. Rothschild, 22: 1045, 120 S. W. 1, 221 Mo. 180. 19. Employees only are entitled to the protection of a section of a statute requir- ing guards around elevator wells in every manufacturing, mechanical, mercantile, or public building in the state, where its title indicates that it relates to the health and safety of employees, and all sections except two, wherein the parties are mentioned for J002 ELEVATOR SHAFI EMBANKMENT. whose protection the act is intended, refer in express terms to employees, and those two are silent as to whom reference is made. Glaser v. Rothschild, 22: 1045, 120 S. W. 1, 221 Mo. 180. 20. A police officer who accompanies an express wagon, to protect it from strikers, to a building, and who, upon its backing up to the elevator opening to receive its load, steps into the opening either to get out of the way of those loading the goods, or to protect the employees of the express com- pany in taking possession of them, is either a trespasser or a licensee, to whom the own- er of *he building owes no duty except to refrain from wilfully or wantonly injuring him; and he is therefore not liable for the officer's death by falling down the shaft, al- though the opening is un lighted and un- guarded, and the elevator not at the open- ing. Casey v. Adams, 17: 776, 84 N. E. 933, 234 111. 350. 21. An invitation to enter a warehouse to to take goods away is broad enough to in- clude the use of an open passageway in the building into which one so invited will nec- essarily have to go to get the goods; and the warehouseman will be liable in case he falls into an unguarded elevator well in the passageway, although there is a way around it, if it is not known to him, and there is not light enough for him to see the situa- tion; and it is immaterial that at the mo- ment of the injury he is not engaged in the business for which he came. Pauckner v. Wakem, 14: 1118, 83 N. E. 202, 231 111. 276. (Annotated) 22. The owner of an office building does not owe the duty of keeping closed the doors to the elevator wells to one who goes into the building seeking information about one not a tenant of or employed in it, since he is a mere licensee. Stanwood v. Clancey, 26: 1213, 75 Atl. 293, 106 Me. 72. (Annotated) 23. A hospital may be found to be neg- ligent in maintaining an entrance to an elevator from outside the building, which resembles an ordinary doorway and is pro- tected only by unfastened screen doors, so as to render it liable to one who, mistaking the entrance for an ordinary one, steps in- side and falls down the shaft. Hospital of St. Vincent of Paul v. Thompson, 51: 1025, 81 S. E. 13, 116 Va. 101. Contributory negligence. Contributory negligence of infant injured by elevator in sidewalk, see HIGHWAYS, 345. Contributory negligence of employee, see MASTER AND SERVANT, 646, 647. Liability of master employing minor to operate, in violation of statute, see MASTER AND SERVANT, 646, 647. Of child riding on top of elevator, see NEG- LIGENCE, 224. Contributory negligence of servant in oiling motor, see TRIAL, 499. Question for jury as to, see TRIAL, 58G-588. Correctness of instructions as to, see TRIAL, 1061. 24. One was guilty of negligence as mat- Digest 1-52 L.R.A.CN.S.) ter of law who stepped into a well-lighted, unguarded elevator well, under the mistaken belief that the opening was the entrance to an office, where the merest attentive glance would have disclosed the truth. Stanwood v. Clancey, 26: 1213, 75 Atl. 293, 106 Me. 72. ELEVATOR SHAFT. Liability for injury in unguarded shaft, see ELEVATORS, 18-24. ELIGIBILITY. To become naturalized, see ALIENS, 1, 2. Of officer, see OFFICERS, I. a, 2. For appointment as receiver, see RECEIVEKS, 5. ELKINS ACT. Violation of, by carriers, see CARRIERS, 1072-1075. Indictment for conspiracy to violate, see INDICTMENT, etc., 44, 57, 80, 81; MO- NOPOLY AND COMBINATIONS, 73; CRIMI- NAL LAW, 11; EVIDENCE, 843, 1890. See also COURTS, 34. ELOPEMENT. Assisting in, as justification for whipping, see ASSAULT AND BATTERY, 27. Set-off in action for assault by one assist- ing in, see SET-OFF AND COUNTERCLAIM, 16. EMANCIPATION. Of minor children generally, see PARENT AND CHILD, 15-17. Of minor, by marriage, see HUSBAND AND WIFE, 1. EMBALMING. Requiring undertakers to have knowledge of, see CONSTITUTIONAL LAW, 117, 715, 716. EMBANKMENT. Against water, see ESTOPPEL, 253; INJUNC- TION, 239; WATERS, 181, 201, 202. Diversion or obstruction of water by, see RAILROADS, II. f. Duty of town to guard, see HIGHWAYS, 225. EMBEZZLEMENT. 1003 Lack of barriers along, see HIGHWAYS, 230- 239. Duty to furnish lateral support for, see LATERAL SUPPORT, 1. When limitations begin to run against ac- tion for injuries resulting from, see LIMITATION OF ACTIONS, 199. Liability of municipality for injury to property by erection of, see MUNICIPAL CORPOEATIONS, 324. EMBEZZLEMENT. Error in instructions, see APPEAL AND ER- ROR, 1328; TRIAL, 885. Swearing jury in advance of arraignment and plea of accused, see APPEAL AND ERROR, 1502. Recovery from broker of money received in good faith from bank teller who has embezzled it, see ASSUMPSIT, 19. Liability of carrier for embezzlement of article during transportation, see CAR- RIERS, 803, 941. Validity of contract for detection of, see CONTRACTS, 459. Cancelation of deed executed to avoid prose- cution for, see CONTRACTS, 770. From two corporations by officer common to both, see CORPORATIONS, 158. Former jeopardy, see CRIMINAL LAW, 217. Punishment for, see CRIMINAL LAW, 249. Threat of prosecution for, as duress, see DURESS, 8, 9, 12-16. Estoppel of one to deny authority to col- lect money which he is accused of em- bezzling, see ESTOPPEL, 209. Presumption of fraudulent intent in, see EVIDENCE, 256. Evidence in prosecution for, see EVIDENCE, 808, 1432, 1898. Indictment for, see INDICTMENT, etc., 51, 52, 95-98. Charge of, as libel, see LIBEL AND SLANDER, 32. By trustee, liability of estate for, see TRUSTS, 139-142. Cross-examination of accused, see WIT- NESSES, 120. 1. Under a statute which, in denning what is the subject of embezzlement, al- though it .does not specifically mention a check, contains the general words "security for money" and "any effects or property of any other person," a check on a bank is the subject of embezzlement. State v. Fraley, 42: 498, 76 S. E. 134, 71 W. Va. 100. (Annotated) 2. Partnership funds cannot be em- bezzled by a member of the partnership, unless expressly so provided by statute. State v. Hogg, 29: 830, 53 So. 225, 126 La. 1053. 3. One cannot avoid liability for em- bezzling money from a foreign corporation by the fact that it was not authorized to transact in the state the business in which Digest 1-52 L.R.A.(N.S.) the embezzlement occurred. State v. Blake- more, 27: 415, 126 S. W. 429, 226 Mo. 560. (Annotated) 4. Evidence that a laundress, upon dis- covering in a clothes basket committed to her a bag of money belonging to her employer, accidently placed therein, recognized her duty to return the bag to its own^r, but sxib- sequently, and before so returning it, fraud- ulently converted the money, will support a conviction of embezzlement under Gen. Stat. 1906, 3311, providing that, if any servant embezzles or fraudulently converts to his own use anything of value which has been intrusted to him, or which has come into his possession, care, custody, or control by rea- son of his employment, he shall be punished as if he had been convicted of larceny. Neal v. State, 19: 371, 46 So. 845, 55 Fla. 140. (Annotated) 5. A cashier may be convicted of lar- ceny by embezzlement, who has taken money from the employer's cash drawer for hia own use without the employer's knowledge, which the employer claims was never re- turned, but which he himself claims to have been secured by a note which he kept in hia own possession, which was destroyed when the money was returned. State v. Downer, 43: 774, 123 Pac. 1073, 68 Wash. 672. Intent or offer to return. See also infra, 12. 6. Under a statute providing that the fact that one accused of embezzlement in- tended to restore the property embezzled is no ground of defense if it has not been restored before information, the fact that an agent accused of embezzlement never concealed the taking or converting of the money received, and promised to return it, and after being arrested tendered the full amount claimed, does not make the act lawful or any less embezzlement under the statute. State v. Duerksen, 52: 1013, 129 Pac. 881, 8 Okla. Crim. Rep. 601. ( Annotated ) By husband. 7. A husband may embezzle the sepa- rate funds of his wife, under a statute pro- viding that any servant,, clerk, agent, man- datary, depositary, bailee, etc., who shall wrongfully use, dispose of, or conceal any property which he shall receive for an- other, or which shall have been intrusted to his care or possession by another, shall be guilty of embezzlement. State v. Hogg, 29: 830/53 So. 225, 126 La. 1053. (Annotated) 8. In a jurisdiction where one cannot be both the husband and a partner in busi- ness of the same woman, one accused of embezzlement cannot defend on the ground that he is both the partner in business and the husband of the prosecutrix, since such defenses are conflicting. State v. Hogg, 29: 830, 53 So. 225, 126 La. 1053. By agent. Intent to return as defense, see supra, 6. Sufficiency of proof of agency of one charged with embezzlement, see EVIDENCE, 2390, 2391. 1004 EMBLEMENTS EMERY WHEEL. Arrest of agent, see MALICIOUS PBOSECU- TION, 6. 9. Although a check may have been vol- untarily turned over to the defendant by his principal, for collection, he is guilty of em- bezzling it if, in obtaining possession there- of and before collecting it, he used fraud or deception in getting it, and had con- ceived the guilty intention of misappropria- ting it or the proceeds thereof, and actually did so. State v. Fraley, 42: 498, 76 S. E. 134, 71 W. Va. 100. 10. The fact that an agent is entitled to retain as his compensation a certain per- centage of a fund collected for his principal does not, in case he refuses to pay over any of the fund, put uses it all for his own benefit, take the act out of the operation of a statute providing punishment for an agent who shall convert to his own use money of his principal which has come into his pos- session. Com. v. Jacobs, 13: 511, 104 S. W. 345, 126 Ky. 536. (Annotated) 11. Money delivered by an agent who sells an article from a stock in charge of another agent, to the latter to be carried to the principal, comes into his possession by virtue of his agency or employment, within the meaning of a statute providing for the punishment of one who shall fraudulently misappropriate or convert to his own use money so obtained, although the contracts of the agents require each to report to the principal on his own account. Smith v. State, 17: 531, 109 S. W. 118, 53 Tex. Crim. Rep. 117. (Annotated) By public officer. Of tax money, see ACTION OR SUIT, 84; IN- TEREST, 8; TAXES, 260. 12. The fact that a public officer, at the time of the conversion of public funds to his own use, intended to replace them, is no defense to a prosecution for embezzle- ment. State v. Baxter, 52: 1019, 104 N. E. 331, 89 Ohio St. 269. 13. A state superintendent of banks who takes funds that come into his custody by virtue of his office, and uses them to redeem collateral securities which he has pledged for his private debt, is guilty of embezzle- ment, under a statute providing that who- ever, being elected or appointed to an office of public trust or profit, embezzles or con- verts to his own use anything of value that shall come into his possession by virtue of such office or employment, notwithstand- ing he subsequently, before he is called to account for the money and before he is in- dicted for its unlawful conversion, nego- tiates the securities which he has thus ob- tained and restores the fund. State v. Baxter, 52: 1019, 104 N. E. 331, 89 Ohio St. 269. (Annotated) 14. A police officer assigned to the posi- tion of jailer cannot be convicted under a statute providing that if an officer shall convert to his own use money belonging to the county that may come into his custody by virtue of his office, he shall be punished, where he appropriate to his own use money collected from prisoners as fines, if the stat- ute imposes the duty of collecting such finos Digest 1-52 L.R.A.(N.S.) upon another officer. Hartnett v. State, 23: 761, 119 S. W. 855, 56 Tex. Crim. Rep. 281. EMBLEMENTS. See CROPS. EMBLEMS. Protecting emblems of secret societies, see ASSOCIATIONS, 1, 7. Of secret society, validity of statute as to, see CONSTITUTIONAL LAW, 639. EMERGENCY. Issue of bonds by state in case of, see BONDS, 110. Effect of, on time for taking effect of stat- ute, see STATUTES, 13. Liability for acts in, see NEGLIGENCE, 29. Contributory negligence in acting in, see MASTER AND SERVANT, 689-692; NEGLI- GENCE, 211-213; RAILROADS, 214-216, 239-244. Service of surgeon in compensation for, see PHYSICIANS AND SURGEONS, 35. . EMERGENCY FUND. Creation of, by mutual insurance company, see INSURANCE, 431, 432. EMERGENCY TAX. Necessity of unanimous vote to pass, see MUNICIPAL CORPORATIONS, 56. Power of municipality to levy, see MUNICI- PAL CORPORATIONS, 491. See also COURTS, 149. In , J 1 1 . ,:;. ^^ . EMERY WHEEL. Regulating employment of persons to oper- ate, see CONSTITUTIONAL LAW, 299. Opinion evidence as to liability of, to burst, see EVIDENCE, 1157. Liability for injury to servant by explosion of, see MASTER AND SERVANT, 232, 301- 303. Master's duty to guard, see MASTER AND SERVANT, 359, 360. Injury to employee by fellow servant's neg- ligence as to, see MASTEB AND SERVANT, 800. ' EMINENT DOMAIN, I. a. 1005 EMINENT DOMAIN. I. Right to take property, 112O. a. In general, 1. Z>. Who may exercise, 217. c. What may &e taken, 1842. 1. In general, IS 29. 2. Railroad property, 3O 4:2. d. For what purpose, 43111. 1. In general, 4383. 2. Railroads, 841O2. 3. As to water and water rights, 103-111. e. Right acquired, 112 12O. II. Procedure, 121178. a. In general, 121151. b. Petition, 152158. c. Trial; judgment, 159171. 1. In general, 159161. 2. Jury and verdict; awara of commissioners, 1 62 171. d. Appeal; costs; new trial, 172 178. III. Rights and remedies of owners, 179-286. a. In general, 179. 6. Wliat constitutes a talcing of, or injury to, property, 180-2O8. 1. In general, ISO 188. 2. As to streets and high- ways, 189 20 1. 3. As to water and 'water rights; sewage, 202 2O 6. 4. Crossing railroad, 2O7, 2O8. C. Right to compensation, 2O9 251. 1. Necessity of making com- pensation, 2O9245. 2. To \vhom the compen- sation must be paid, 246-251. d. Payment or security; taking possession of property, 252 256. e. Consequential injuries, 257 286. 1. In general, 257 26O. 2. By construction and oper- ation of railroad, 261 268. 3. As to water or ivater rights; sewage, 269. 4. As to streets or highways, 27O-286. IV. Additional servitude, 287310. a. In general; on railroad way. Z>. On highway, 287 31O. 1. In general, 287 3OO. 2. Railways of various kinds, 3O1-31O. Effect of long-continued possession follow- ing institution of ad quod damnum proceedings, see ADVERSE POSSESSION, 8. Adverse possession after condemnation, see ADVERSE POSSESSION, 83. Digest 1-52 L.R.A.(N.S.) Effect of ordinance providing for condemna- tion of land for alley erroneously thought not to exist, see ALLEYS, 1. Due process of law as to, see CONSTITU- TIONAL LAW, II. b, 2, b. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 177. Power of president of corporation to pro- ceed with condemnation proceedings, without approval of board of directors, see CORPORATIONS, 139. Costs in condemnation proceedings, see COSTS AND FEES, 6, 23. Jurisdiction of condemnation proceedings, see COURTS, 208. Pending condemnation proceedings as breach of covenant against encumbrances, see COVENANTS AND CONDITIONS, 67. Reversion of property deeded to religious society upon condemnation of land for public use, see DEEDS, 91. Estoppel of one taking title by, to deny validity of tax liens on property, see ESTOPPEL, 19. Evidence in proceeding to condemn and re- move dam, see EVIDENCE, 751. Evidence of purpose of widening street, see EVIDENCE, 1609. Evidence as to extent of recovery, see EVI- DENCE, 1746-1749. Injunction against, see INJUNCTION, 295, 296. Limitation of action by heirs to compel ap- propriation of land, see LIMITATION OF ACTIONS, 186. Mandamus to put into possession one secur- ing decree of condemnation, see MAN- DAMUS, 19. Pleading in eminent domain proceedings, see PLEADING, 96. City's lien for public improvements on prop- erty condemned for other purposes, see PUBLIC IMPROVEMENTS, 60, 73. Supervision and control of corporations au- thorized to exercise, see PUBLIC SERVICE CORPORATIONS, 8. Partial invalidity of statutes providing for condemnation of property, see STAT- UTES, 62. Title of eminent domain act, see STATUTES, 92, 121. Eminent domain act as local or special legislation, see STATUTES, 169. Repeal of municipal charter granting right of eminent domain, see STATUTES, 351. /. Right to take property, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. Where the right to exercise the )ower of eminent domain has been con- ! erred only on corporations, a corporation ms no power to exercise the right to secure )roperty to be conveyed to an individual ilthough he intends to use it for a public mrpose. State ex rel. Springfield Invest. ,'o. v. Superior Ct. 51: 987, 139 Pac. 601, 78 Wash. 679. 1006 EMINENT DOMAIN, I. b. 6. Who may ejrerct.se. (See also same heading in Digest L.R.A.. 1-70.) "Review of proceedings on certiorari, see CERTIORAEI, 9, 19. Delegation to municipality of power to ex- ercise, see CONSTITUTIONAL, LAW, 109. Statute authorizing majority stockholders to condemn interests of dissenting mi- nority, see CONSTITUTIONAL LAW, 788. See also infra, 147. 2. The power of eminent domain can be exercised by a private individual or corpo- ration only by express legislative authority. Minnesota Canal & Power Co. v. Koochich- ing Co. 5: 638, 107 N. VV. 405, 97 Minn. 429. 3. In proceedings to condemn private property, every reasonable doubt as to the legislative authority of the petitioner to take property by condemnation must be re- solved in favor of the landowner. Minnesota Canal & Power Co. v. Koochiching Co. 5: 638, 107 N. W. 405, 97 Minn. 429. 4. Actual exercise of the power reserved by the state to regulate and control public- service corporations organized to furnish water, light, heat, and power for public use is not a condition precedent to the right of such corporations to exercise the power of eminent domain conferred upon them. Minnesota Canal & P. Co. v. Pratt, n: 105, 112 N. W. 395, 101 Minn. 197. 5. A public-service corporation author- ized to furnish water, light, heat, and power for public and private use is entitled to exercise the right of eminent domain, al- though it has not obtained a franchise from a municipality, or a contract to furnish a city or village with its products. Minnesota Canal & P. Co. v. Pratt, n: 105, 112 .N. W. 395, 101 Minn. 197. Private corporation. See also supra, 1, 2. 6. A corporation having a de facto ex- istence may exercise the right of eminent domain. Sisters of Charity v. Morris R. Co. 50: 236, 86 Atl. 954, 84 N. J. L. 310. (Annotated) 7. The right of a corporation to exercise the power of eminent domain cannot be de- feated by one whose property is sought, on the ground that it is not duly incorporated, since it may proceed as a de facto corpo- ration. Central R. Co. v. Union Springs & N. R. Co. 2: 144, 39 So. 473, 144 Ala. 639. (Annotated) 8. The legislature may confer the right of eminent domain upon a tunnel company organized to project a tunnel to drain, ven- tilate, and aid in securing the mineral from, mines along its course, the use being public. Tanner v. Treasury Tunnel, Min. & Reduction Co. 4: 106, 83 Pac. 464, 35 Colo. 593. ( Annotated ) 9. Authority to condemn property for the public uses recited in the charter of a corporation will not be denied because a portion of the enterprises in which it is au- thorized to engage are merely private, where Digest 1-52 L.R.A.(N.S.) the two are not so combined as to be in- separable. State ex rel. Harland v. Cen- tralia-Chehalis Electric R. & P. Co. 7: 198, 85 Pac. 344, 42 Wash. 632. 10. Under a constitution permitting the taking 01 private property for public use, the right of eminent domain cannot be con- ferred upon a woman's college conducted by a private corporation with discretion as to the admission of students, although it is supported in part by a voluntary contribu- tion so as to be a public charity. Connecti- cut College for Women v. Calvert, 48: 485, 88 Atl. 633, 87 Conn. 421. (Annotated) Foreign corporation. Giving domestic pipe line companies ex- clusive right of eminent domain, see COMMERCE, 37. 11. The legislature may select the agen- cies through which it will exercise the right of eminent domain, including foreign corpo- rations. Pittsburg Hydro-Electric Co. v. Listen, 40: 602, 73 S. E. 86, 70 W. Va. 83. 12. A statute conferring upon foreign electric power, light, heat, and traction com- panies that have complied with the condi- tions of law entitling them to do business in this state, the same rights, powers, and privileges that are conferred upon domestic corporations created for the same purpose, confers upon such foreign corporations equal rights of eminent domain as is conferred upon domestic corporations. Pittsburg Hydro-Electric Co. v. Liston, 40: 602, 73 S. E. 86, 70 W. Va. 83. 13. A statute permitting foreign corpo- rations to do business within the state upon complying with certain requirements does not confer upon them the power of ^minent domain. Spratt v. Helena Power Transmis- sion Co. 8: 567, 88 Pac. 773, 35 Mont. 108. 14. A foreign corporation organized to transport natural gas, authorized to do bus- iness in a state and thereby acquiring all the rights of domestic corporations of such state, may exercise the right of eminent domain in the latter state for the purpose of acquiring land upon which to lay a pipe line, although but few people in the latter state are served by the corporation. Car- negie Natural Gas Co. v. Swiger. 46: 1073, 79 S. E. 3, 72 W. Va. 557. (Annotated) 15. Provisions in a statute dealing with the organization of domestic corporations, that its provisions shall be applicable to every corporation, and that a corporation may acquire real property as provided by the statute relating to eminent domain, do not apply in favor of foreign corporations seeking to construct a dam to secure water to sell for irrigation purposes, and to gener- ate power for sale. Spratt v. Helena Power Transmission Co. 8: 567, 88 Pac. 773, 35 Mont. 108. Railroad company. 16. That a commercial steam railroad for the common carriage of freight and pas- sengers will be only about 3 miles in length, and will, for a considerable part of its course, lie within the corporate limits of a city, and that it will connect with other steam railways at the outer terminus, does EMINENT DOMAIN, I. c, 1. 1007 not prevent it from falling within the pur- view of the general laws of Georgia con- cerning the incorporation of railroad com- panies, so as to be entitled to exercise the power of eminent domain. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. (Annotated) Street railway company. See also infra, 19. 17. That a street railway company had not in fact secured its right of way and necessary franchises will not prevent an ex- ercise by it of the power of eminent domain to secure power to operate the road, if it is proceeding diligently with the enterprise, and has proceeded far enough to demon- strate that its immediate purpose is to ap- ply the power sought to a public use. State ex rel. Harland v. Centralia-Chehalis Elec- tric R. & P. Co. 7: 198, 85 Pac. 344, 42 Wash.' 632. (Annotated) c. What may be talten. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Effect of controversy as to title on right to take land for highway, see INJXTNCTIOIV, 25. 18. The stock of dissenting stockholders in a railroad company may be taken by right of eminent domain upon payment of just compensation, for the purpose of effecting a consolidation of the road with others to create a through line and subserve the in- terests of the public. Spencer v. Seaboard Air Line R. Co. i: 604, 49 S. E. 96, 137 N. C. 107. (Annotated) 19. An electric railway company is not, in securing property necessary for power purposes, limited to that adjacent to its right of way, under a statute empowering it to appropriate land for right of way and "other corporate purposes" without limita- tion as to locality. State ex rel. Harland v. Centralia-Chehalis Electric R. & P. Co. 7: 198, 85 Pac. 344, 42 Wash. 632. 20. A municipal corporation may be given authority to take for a public water supply such property outside of its terri- torial limits as is necessary for the enter- prise. Board of Water Comrs. v. Johnson, 41: 1024, 84 Atl. 727, 86 Conn. 151. 21. A corporation organized to transmit electricity for power and light purposes may condemn the right to cut trees near its line when it becomes necessary for protection of the line, under statutory authority to condemn rights, privileges, and easements, and enter on contiguous lands along the route, for protection of its property. Yad- kin River Power 1 Co. v. Wissler, 43: 483, 76 S. E. 267, 160 N. C. 269. Property subject to public use gen- erally. Injunction against, see INJUNCXIO.V. 206. Digest 1-52 LuR.A.(N.S-) 22. The state may, for a public purpose, under the right of eminent domain, condemn and remove a dam, the right to maintain which had been acquired, under ad quod damnum proceedings, for the operation of a gristmill, where the mill is no longer operated for toll, but is run wholly for private use or benefit, doing a large com- mercial business in the manufacture and sale of flour. Zehner v. Milner, 24: 383, 87 N. E. 209, 172 Ind. 443. (Annotated) 23. General and unrestricted language conferring upon a municipal corporation the right of eminent domain does not in- clude the right to take property already devoted to a similar public use. Board of Water Comrs. v. Johnson, 41: 1024, 84 Atl. 727, 86 Conn. 151. 24. Charter authority to widen streets does not empower a municipal corporation to condemn for such purpose property al- ready devoted to public use, such as a pub- lic library. Moline v. Greene, 37: 104, 96 N. E. 911, 252 111. 475. 25. A citizen and taxpayer of a city for the benefit of the citizens of which proper- ty is held in trust for library purposes may file objections against the taking of a por- tion of the library property for the purpose of widening a street. Moline v. Greene, 37: 104, 96 N. E. 911, 252 111. 475. 26. Authority conferred upon a munici- pality to exercise the power of eminent do- main to take private property for the pur- pose of laying out streets does not by im- plication include authority to condemn land owned by the county and used for a poor farm. Edwardsville v. Madison County, 37: 101, 96 N. E. 238, 251 111. 265. 27. A corporation which engages in the business of generating and distributing electrical energy for general sale for public purposes devotes its property to a public purpose, which prevents its being taken under the power of" eminent domain for an- other public purpose, in the absence of legis- lative grant, express or implied. Rutland R. Light & P. Co. v. Clarendon Power Co. 44: 1204, 83 Atl. 332, 86 Vt. 45. Municipal water plant. 28. The construction of a levee for the reclamation of land from the flood water of a river will not, although it is for a pub- lic use, be permitted to destroy a portion of the water supply system of a municipal corporation. Ft. Worth Improv. Dist. No. 1 v. Ft. Worth, 48: 994, 158 S. W. 164, Tex. . Riparian rights. 29. The rights of an owner of riparian land, such as access to the navigable por- tion of the stream, light and air and other kindred intangible rights appurtenant to real estate, are subject to condemnation for public use without an appropriation of the land itself. State ex rel. Burrows v. Su- perior Court, 17: 1005, 93 Pac. 423, 48 Wash. 277. (Annotated) Incorporeal rights. Sec supra, 29. 1008 EMINENT DOMAIN, I. c, 2. 2. Railroad property. (See also same heading in Digest L.R.A. 1-10.) See also infra, 141. 30. Property devoted to railroad pur- poses is included in the terms of a statute granting a corporation organized to provide a drainage system for a municipal corpo- ration the power to acquire by condemna- tion any and all real property vhich it may require for its corporate purposes. Pitts- burgh, Ft. W. & C. R. Co. v. Sanitary Dis- trict, 2: 226, 75 N. E. 892, 218 111. 286. (Annotated) 31. The legislature may authorize the taking of railroad switch yards for a public park under the power of eminent domain. Southern R. Co. v. Memphis, 41: 828, 148 S. W. 662, 126 Tenn. 267. (Annotated) 32. A railroad company whose switch yards are taken by eminent domain for a park cannot contest the taking, because the property is not needed or other property will answer as well. Southern R. Co. v. Memphis, 41: 828, 148 S. W. 662, 126 Tenn. 267. For other railroad. Question for jury as tq necessity of taking, see TRIAL, 637. See also supra, 18; infra, 91, 157. 33. The riling of the map and profile of the route intended to be adopted, required on the part of a railroad company before commencing the construction of a part of its road into or through a county, consti- tutes such an inchoate appropriation at least as to its own lands, and possibly as to other lands for public purposes, as to prevent their appropriation by another rail- road company by condemnation proceedings, in the absence of undue delay on the part of the former company in making use of the property. Southern Indiana R. Co. v. In- dianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. (Annotated) 34. That deeds of land to a railroad com- pany state the width of the purchase on each side "of the center line of [railroad company] as now located and shown on at- tached plat" does not amount to such an appropriation of the land purchased for right-of-way purposes as to prevent its con- demnation for such purposes by another railroad company. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. 35. A railroad company to which no spe- cific right of way is granted by its articles of incorporation cannot, simply by running its preliminary line and purchasing as an ordinary purchaser the lands over which its survey has been extended, so impress such lands with a public character as to pre- empt them as against another railroad com- pany which has done what is necessary un- der the. statute to subject the property to the servitude of a railroad. So to pre-empt the land, there must be some step taken Digest 1-52 L.R.A.(N.S.) which amounts to a legal location of the railroad company's line. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. 36. The filing by a railroad company, oi a map and profile intended to show the route to be adopted, but which exhibits only a single line, and gives no idea as to the width of the right of way, nor as to whether such line is the median line of its proposed right of way or otherwise, does not consti- tute such an appropriation, for right of way purposes, of land owned by the company, us to prevent its appropriation by another railroad company for such purposes. South- ern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. (Annotated) For crossing of other railroad. Measure of damages for, see DAMAGES, 556. 37. A proposed spur track intended for the transfer of freight in carload lots to and from a number of industrial plants in a town or city is open to the public; and the railroad company constructing such a track has the fig>t to expropriate necessary crossings over the spur tracks of another railroad company. Kansas City, S. & G. R. Co. v. Louisiana W. R. Co. 5: 512, 40 So. 627, 116 La. 178. (Annotated) For street. Damages for, see DAMAGES, 565-570. Right of railroad company to damages for laying out of highway across its tracks, see RAILROADS, 40. 38. Power to lay out street across rail- road tracks is conferred, by implication, by general authority to a municipality to con- demn land for appropriate municipal pur- poses; and it is not necessary that such power shall be conferred in terms. Louis- ville & N. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. (Annotated) For telegraph or telephone line. See also infra, 135, 143-145. 39. A telegraph company may condemn a right of way on and along the right of way of a railroad company, when the pro- posed line of telegraph will be so con- structed as to produce no material inter- ference with the railroad company's free exercise of its franchise or with the actual operation of the railroad. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. (Annotated) 40. A telegraph company may not con- demn a railroad company's right of way on both sides of the track, at least without making it appear that it is necessary to oc- cupy both sides and that the railroad com- pany's operation of its trains is not ma- terially interfered with. Western & A. R. Co. v. Western LJ. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. 41. A telegraph company will not be per- mitted to condemn the right of way of a railroad company for the construction and maintenance of lines of telegraph in such a manner as materially to interfere with the railroad company in the operation of its trains and in the transportation of pas- sengers and goods, and a telegraph line con- EMINENT DOMAIN, I. d, 1. 1009 structed and maintained so as not to inter- fere with the transportation of passengers and goods beyond the state is not a burden on interstate commerce. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. 42. The necessary authority to condemn a right of way for a telephone line along a railroad right of way is conferred by' a statute permitting such construction upon or along a railroad. Canadian P. R. Co. v. Moosehead Teleph. Co. 29: 703, 76 Atl. 885, 106 Me. 363. d. For what purpose. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Review of legislative decision as to, see COURTS, I. c, 2, c. Conclusiveness of legislative determination as to what is public use, see COURTS, 121. Question for jury as to public need or bene- fit, see TRIAL, 636. 43. A use is not public unless, under proper regulations, the public ^as the right to resort to the property for the use for which it was acquired, independently of the will or caprice of the corporation in which the title of the property vests upon condemnation. Minnesota Canal & Power Co. v. Koochiching Co. 5: 638, 107 N. W. 405, 97 Minn. 429. 44. A statute granting the right of emi- nent domain will be upheld against a claim that it is for a private use, unless it clearly appears that the use is private and in no sense public. Highland Boy Gold Min. Co. v. Strickley, i: 976, 78 Pac. 296, 28 Utah, 215. 45. A charter obtained from the state for the purpose of constructing and operat- ing a commercial railway as a common carrier is granted for a public purpose, and cannot be used for a purely private purpose; nor can the company so chartered exercise the right of eminent domain for a mere private purpose. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. 46. The mere development of a locality by the establishment and maintenance of a private enterprise therein is not a public use for which the right of eminent domain may be exercised. Cozad v. Kanawha Hardwood Co. i: 969, 51 S. E. 932, 139 N. C. 283. 47. The term "public business" used in Minn. Rev. Laws 1905, 2841, authorizing public-service corporations to condemn such private property as may be necessary or convenient for the transaction of the public business for which they have been formed, includes the construction of works for sup- plying the public with water, light, heat, and power. Minnesota Canal & P. Co. v. Pratt, ii : 105, 112 N. W. 395, 101 Minn. 197. 48. That a switch connection with a rail- Digest 1-52 L.R.A.(N.S.) 64 road would enable a water and electric light company to carry on its business more economically, and either make greater prof- its or serve its patrons at lower rates, does not show that such connection is nec- essary, so as to authorize an exercise of the power of eminent domain under statu- tory authority to^ acquire by that means such rights as may be necessary for its business. Kinney v. Citizens' Water & Light Co. 26: 195, 90 N. E. 129, 173 Ind. 252. 49. The fact that a pipe line company organized for the transportation of natural gas must serve the public with gas under reasonable and proper regulations along the entire line traversed, and for reasonable rates, shows a sufficient public use to author- ize the exercise of the power of eminent domain by such a company. Carnegie Nat- ural Gas Co. v. Swiger, 46: 1073, 79 S. E. 3, 72 W. Va. 557. 50. That an incorporated company seek- ing to condemn land may have a charter regular on its face to build a railroad is not conclusive as to the question of the purpose for which the property is actually sought to be taken. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. 51. A railroad which takes, under the right of eminent domain, for the purpose of its track and yards, the space occupied by a private way which is necessary to per- mit the owner to reach a highway from his home, may, in order to afford him full compensation for the taking, condemn a strip of land belonging to a stranger as a substitute for the private way. Pitsnogle v. Western Maryland R. Co. 46:319, 87 Atl. 917, 119 Md. 673. (Annotated) 52. A wholesale grocery business con- ducted by a private corporation is not, al- though beneficial to the public, so far a public use that a railroad company may lease for such business land condemned by it for public use, in which it owns only a qualified fee. Neitzel v. Spokane Interna- tional R. Co. 36: 522, 117 Pac. 864, 65 Wash. 100. 53. The legislature cannot authorize a municipal corporation to secure by the power of eminent domain, or use the public funds to pay for, land abutting on a public street, to be leased to merchants for the promotion of the commercial interests of the municipality. Re Opinion of Jus- tices, 27: 483, 91 N. E. 405, 204 Mass. (507. 54. The power of eminent domain cannot be utilized to enable a municipal corpora- tion to acquire property outside the limits of a park way for resale with restrictions for the protection of the park way or preser- vation of the view, appearance, light, air, health, or usefulness thereof. Pennsylvania Mut. L. Ina. Co. v. Philadelphia, 49: 1062, 88 Atl. 904, 242 Pa. 47. 55. Power to condemn land for a high- way is conferred on a municipal corporation by a statutory provision that, whenever property shall be needed for appropriate municipal purposes, the board of public 1010 EMINENT DOMAIN, I. d, 1. works may, with the consent of the mayor and general council, order condemnation of such property. Louisville & X. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 56. The levy and collection, under a state statute, from every bank existing un- der the state laws, of a.n assessment based upon average daily deposits, for the purpose of creating a depositors' guaranty fund to secure the full repayment of deposits in case any such bank becomes insolvent, is for a public use, although, judged from the proxi- mate effect of the taking, the use seems to be a private one. Noble State Bank v. Haskell, 32: 1062, 31 Sup. Ct. Rep. 186, 219 U. S. 104, 55 L. ed. 112. Combination of public and private use. See also supra, 43-46; infra, 106. 57. The right of a corporation to con- demn land must be denied when the pur- poses for which it is sought to be taken are partly public and partly private. Minne- sota Canal & P. Co. v. Koochiching Co. 5: 638, 107 N. W. 405, 97 Minn. 429. 58. The inclusion, in a grant of power to a municipal corporation to exercise the right of eminent domain, of the right to se- cure the property for the purpose of sup- plying with light and power persons, com- panies, or corporations other than the in- habitants of the municipality, renders the entire grant invalid. Miller v. Pulaski, 22: 552, 63 S. E. 880, 109 Va. 137. 59. That a corporation seeking by right of eminent domain property necessary to enable it to generate a supply of electricity has power to serve a private use will not defeat its application for property which it proposes and proves shall be used ex- clusively for public service. Walker v. Shasta Power Co. 19: 725, 160 Fed. 856, 87 C. C. A. 660. (Annotated) 60. The legislature cannot, by declaring the use to be public, authorize an individ- ual to condemn the rights of a riparian owner for the purpose of securing a water power, although it requires him to sell the surplus over and above his own needs to the public at reasonable rates. State ex rel. Wausau Street R. Co. v. Bancroft, 38: 526, 134 N. W. 330, 148 Wis. 124. 61. A river improvement company is not prevented from exercising its power of emi- nent domain to construct a dam for the im- provement 'of navigation, by the fact that it has contracted with a power company to construct the necessary dam at its own expense, and given it the right to the power which will result therefrom, although the value of the power greatly exceeds the tolls which will result from navigation on the stream, and it would not have entered upon the improvement had it not made such con- tract, if the dam will really be an aid to navigation, and it will not be impaired by the use of the dam for generating power. Wisconsin River Improv. Co. v. Pier, 21: 538, 118 N. W. 857, 137 Wis. 325. (Annotated) 02. The legislature cannot establish a Digest 1-52 L.R.A.(N.S.) commission with powers of eminent domain to acquire and manage for the public an ocean beach resort occupied with cottages, hotels, stores, and places of amusement, with authority to sell or lease such lands or rights in lands as are not needed by the public. Salisbury Land & Improv. Co. v. Com. 46: 1196, 102 N. E. 619, 215 Mass. 371. (Annotated) Private roads. See also supra, 51. 63. A mere legislative declaration that a right of way all'ording an outlet for a private business shall be a public road does not change its character, so as to authorize an exercise of the power of eminent domain to secure it. Alfred Phosphate Co. v. Duck River Phosphate Co. 22: 701, 113 S. W. 410, 120 Tenn. 260. 64. The development of phosphate mines in a particular portion of the state, which are in the private ownership of a single corporation, is not a public use, to acquire a right of way for which private property may be condemned under the power of emi- nent domain. Alfred Phosphate Co. v. Duck River Phosphate Co. 22: 701, 113 S. W. 410, 120 Tenn. 260. 65. The fact that a right of way sought by a mining company over private property to transport the product of its mines to market might accommodate a limited class, such as other mining companies in the vi- cinity, does not clothe it with the character of public use, for which the right of emi- nent domain may be exercised, where it will not be subject to governmental regulation or control. Alfred Phosphate Co. v. Duck River Phosphate Co. 22: 701, 113 S. W. 410, 120 Tenn. 260. 66. The power of eminent domain may be exercised to secure a right of way for the transportation by an individual of stone from his quarry to a railroad, where any other person desiring to use the way has the statutory right to do so by paying rea- sonable compensation therefor, although few may have occasion to avail themselves of the privilege. Chesapeake Stone Co. v. Moreland, 16: 479, 104 S. W. 762, 126 Ky. 656. Public wills. 67. A private milling corporation merely engaged in the manufacture of flour and feed for sale by the use of steair power cannot exercise the right of eminent do- main under a statute permitting "all pub- lic mills" to exercise such right, since the statute was intended to apply only to mills operated for the accommodation of the pub- lic. Howard Mills Co. v. Schwartz Lumber & C. Co. 18: 356, 95 Pac. 559, 77 Kan. 599. (Annotated) 68. Mills used merely for the purpose of manufacturing flour and feed for sale are not made "public mills" by an act declaring that all water, steam, wind, or other mills whose owners or occupiers grind or offer to grind grain for toll or *pay are public mills. Howard Mills Co. v. Schwartz Lum- ber & C. Co. 18: 356, 95 Pac. 559, 77 Kan. 599. EMINENT DOMAIN, I. d, 1. 1011 69. A private corporation owning a mill operated by steam power, for the manufac- ture and sale of flour and feed, cannot ex- ercise the right of eminent domain for the purpose of improving and enlarging such business. Howard Mills Co. v. Schwartz Lumber & C. Co. 18: 356, 95 Pac. 559, 77 Kan. 599. 70. The operation of a gristmill under the toll system is a public use in aid of which the legislature may authorize an exer- cise of the power of eminent domain. Sexauer v. Star Milling Co. 26: 609, 90 N. E. 474, 173 Ind. 342. electric companies; generation and distribution of electricity. Right to condemn electric plant for other purpose, see supra, 27. Review of legislative decision as to grant- ing power of eminent domain to elec- trical company, see COUETS, 120, 124. See also supra 4, 5, 12, 21, 47, 48, 59; infra, 103, 104, 153. 71. The legislature may authorize the taking of private property, upon making provision for just compensation therefor, by electric power, heat, light, and traction com- panies, when their purpose is to serve the public. Pittsburg Hydro-Electric Co. v. Listen, 40: 602, 73 S. E. 86, 70 W. Va. 83. 72. A provision in a statute granting electric light, heat, and power companies the right of eminent domain, when for a public use, requiring such companies to fur- nish service to persons along and near its lines when it occupies a public highway, and classifying the service, giving mu- nicipal, manufacturing, and transportation companies preference, does not invalidate the statute. Pittsburg Hydro-Electric Co. v. Liston, 40: 602, 73 S. E. 86, 70 W. Va. 83. 73. A provision in a statute granting electric power, heat, light, and traction companies the right of eminent domain, when for a public use, permitting them to erect their poles and stretch their wires along public roads, by and with the consent of the county court, and if in a city, town, or village, by and with the consent of the authorities thereof, does not invalidate the act. Pittsburg Hydro-Electric Co. v. Lis- ton, 40: 602, 73 S. E. 86, 70 W. Va. 83. 74. The generation of electricity by water power for distribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise; and property so used is devoted to public use. Minnesota Canal & Power Co. v. Koochiching Co. 5: 638, 107 N. W. 405, 97 Minn. 429. 75. The selling of electric power to the public gen^-- illy is not a public use for which the power of eminent dor.-.ain may be ex- ercised. State ex rel. Harris v. Superior Court, 5: 672, 85 Pac. 666, 42 Wash. 660. 76. A statute authorizing a corporation engaged in the business of generating and transmitting electricity to exercise the right of eminent domain does not permit such right to be exercised for other than a pub- lic purpose, in violation of that clause of Digest 1-52 L.R.A.(N.S.) the Constitution which prohibits the taking of property without due process of law, where the electricity is to be used to light towns and cities, to furnish power to rail- roads and street-car lines, and to supply light, heat, and power to the public. Jones v. North Georgia Electric Co. 6: 122, 54 S. E. 85, 125 Ga. 618. 77. The generation of electrical power by a private corporation under no obligations to serve the public, and not organized to meet a public demand, is not a public use for which the power of eminent domain may be exercised, although the corporation has announced its intention to sell the gener- ated power to the public. State ex rel. Tacoma Industrial Co. v. White River Pow- er Co. 2: 842, 82 Irac. 150, 39 Wash. 648. ' (Annotated) 78. The generation of electricity for sale for public and municipal lighting, and for the operation of street railways, is a public use in aid of which the power of eminent domain may be exercised. State ex rel. Dominick v. Superior Court, 21 .'448, 100 Pac. 317, 52 Wash. 196. (Annotated) 79. A corporation organized to furnish power and electricity is to serve a public use for the benefit of which the power of eminent domain may be exercised, if by statute it is made a public utility, placed under the provision of a public commission, and required to furnish adequate service and facilities to all applicants. Wisconsin River Improv. Co. v. Pier, 21: 538, 118 N. W. 857, 137 W 7 is. 325. 80. The power of eminent domain con- ferred by Minn. Rev. Laws 1905, 2841, 2842, 2926, 2927, on public-service corpora- tions organized to furnish, "by whatsoever means," electric power for public use, may be exercised in aid of the construction of canals and reservoirs to be used to create and distribute electric power for general use. Minnesota Canal & P. Co. v. Pratt, u: 105, 112 N. W. 395, 101 Minn. 197. Electric light. Review by courts of legislative grant of power, see COURTS, 120. See also supra, 4, 5, 47, 48, 71-73, 76, 78, 84; infra, 93. Ferry landings. 81. The grant of a ferry franchise in- cludes the right to acquire landings under the power of eminent domain. Warner v. Ford Lumber & Mfg. Co. 12: 667, 93 S. W. 650, 123 Ky. 103. Mining. See also supra, 8, 64, 65; infra. 89. 82. The mining of gold to be applied wholly to the private use of the miner is not a public purpose for which the injury of private property may be lawfully author- ized. Sutter County v. Nicols, 15: 616, 93 Pac. 872, 152 Cal. 688. (Annotated) 83. The construction of roads and tram- ways for the development of the mining in- dustries of a state is a public use for which the right of eminent domain may be exer- cised. Highland Boy Gold Min. Co. v. Strickley, i: 976, 78 Pac. 296, 28 Utah, 215. (Annotated) 1012 EMINENT DOMAIN, I. d, 2. 2. Railroads. (See also same heading in Digest L.R.A. 1-10.) Condemnation of railroad property for other railroad, see supra, 33-36. Sufficiency of petition, see infra, 156-158. Presumption as to, see EVIDENCE, 668. Evidence of obstruction of surface water when determining damages for condem- nation of railroad right of way, see EVIDENCE, 1749. Injunction against, see INJUNCTION, 295. See also supra, 16, 18, 45, 50-52. 84. A water and electric light company has no implied authority to condemn land under the power of eminent domain for use of a railroad company. Kinney v. Citizens' Water & Light Co. 26: 195, 90 N. E. 129, 173 Ind. 252. 85. Proceedings to condemn land for railroad purposes are not in violation of the company's charter, and invalid, although in- stituted on a line running southeasterly from one of the designated termini to the other terminus, instead of easterly, as specified in the charter, where a line run- ning due east from the initial point would not lead to the other terminus designated. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. 86. Securing property from which to take materials to raise the grade of a rail- road track and strengthen the embankment, which has been injured by floods, for the convenience, safety, and security of the public, is a public use for which the power of eminent domain may be employed. State ex rel. Great Northern R. Co. v. Superior Ct. 40: 793, 123 Pac. 996, 68 Wash. 572. (Annotated) 87. The right of eminent domain cannot be conferred to secure a right of way for a private railway to transport timber to mar- ket. Cozad v. Kanawha Hardwood Co. i: 969, 51 S. E. 932, 139 N, C. 283. ( Annotated ) 88. The fact that only an easement for a limited time is to be taken for a private railway does not change the rule forbidding the exercise of the right of eminent domain for that purpose. Cozad v. Kanawha Hard- wood Co. i : 969, 51 S. E. 932, 139 N. C. 283. 89. Conveying the ore from a mine and supplies to it is a public use for which a railroad track may be laid in a public street, where, when laid, the public will have a right to use it so far as it is avail- able for public use. Kipp v. Davis-Daly Copper Co. 36: 656, 110 Pac. 237, 41 Mont. 509. Branch, spur, or side tracks. Question for jury as to necessity of, see TRIAL, 637. See also supra, 37, 48. 90. The declaration of La. Const. 1898, art. 272, that all railroads are public high- ways, and that all railroad companies are common carriers, applies not only to main tracks, but also to all subsidiary tracks Digest 1-52 L.R.A.(N.S.) used for purposes of railroad traffic. Kan- sas City, S. & G. R. Co. v. Louisiana West- ern R. Co. 5: 512, 40 So. 027, 116 La. 178. 91. The constitutional right of a railroad company to intersect, connect with, or cross any other railroad is not confined to main tracks, but extends to spur and other tracks forming a part of the same system, since these are within a constitutional provision making all railroads public highways and all railroad companies common carriers. Kansas City, S. & G. R. Co. v. Louisiana Western R. Co. 5: 512, 40 So. 627, 116 La. 178. (Annotated) 92. A street cannot be created under the power of eminent domain, to be devoted to the purpose of railway switch tracks for the benefit of business concerns in the vicin- ity. Kansas City v. Hyde, 7: 639, 96 S. W. 201, 196 Mo. 498. 93. Power is not conferred upon a mu- nicipality to condemn a right of way for a spur track to convey fuel to a power plant used in connection with its street railways, waterworks, electric light, and sewage sys- tems, merely to lessen the expense of such transportation, by a statute authorizing it to take property for streets, sewerage, waterworks, electric light lines, street rail- ways, and certain other purposes named, not including spur tracks, "or any other public purpose." Wise v. Yazoo City, 26: 1130, 51 So. 453, 96 Miss. 507. 94. That the owner of a manufacturing plant, to which a railroad company is seek- ing to run a spur track over private land, has agreed to furnish the funds necessary to construct it, to be repaid by the railroad company, is not conclusive that the im- provement is not of a public nature, so that the right of eminent domain cannot be used to secure a right of way for it. Riley v. Louisville, H. & St. L. R. Co. 35: 636, 133 S. W. 971, 142 Ky. 67. 95. A spur railroad track running to the property of a particular manufacturer, the use of which is dedicated to the public, is shown to be necessary for the public, so as to justify the exercise of the right of em- inent domain to secure a right of way, where there are several other manufactur- ing plants and several residences in the neighborhood to which the track will be a great convenience. Riley v. Louisville, H. & St. L. R. Co. 35: 636, 133 S. W. 971, 142 Ky. 67. 96. A railroad spur running to the prop- erty of a particular manufacturer is for public use, so that a right of way for it can be secured by right of eminent domain, if the intention is to project it beyond such property whenever public business justifies the extension, and the use of the terminal on the manufacturer's property is dedicated to the public until the extension takes place; at least, where the railroad company intends to provide shipping facilities for the public at a point where the spur crosses a public highwav. Riley v. Louisville, H. & St. L. R. Co. 35:* 636, 133 S. W. 971, 142 Ky. 67. (Annotated) EMINENT DOMAIN, I. d, 3. 3013 97. Condemnation of a right of way to extend a side track cannot be defeated on the ground that such track is private, and that the public has no right to use it, if the railroad, by its instrument of appro- priation, has pledged that the extension shall be connected with its main track, and be used in its public service. Bedford Quar- ries Co. v. Chicago, I. & L, R. Co. 35: 641, 94 N. E. 326, 175 Ind. 303. 98. The right of eminent domain may be exercised to secure a right of way for the extension of a side track to a stone quarry, where it will extend over land underlaid with building stone, and will be open to the use of anyone desiring to ship or receive freight along its course. Bedford Quarries Co. v. Chicago, I. & L. R. Co. 35: 641, 94 N. E. 326, 175 Ind. 303. 99. That a branch railroad to a stone quarry will not connect with a railroad line, but with a private brancli road al- ready in existence, will not prevent the exercise of the right of eminent domain to secure a right of way, if the applicant owns the private road, which connects with the railroad, and agrees that the new road shall connect with the railroad and be open to public use. Westport Stone Co. v. Thomas, 35: 646, 94 N. E. 406, 175 Ind. 319. 100. A lateral railroad to a stone quarry, which, under the statute, will be subject to governmental control and open to the use of any one having occasion to make use of it, is a public use, the right of way for which may be secured by exercise of the power of eminent domain, although the num- ber who require its use may be small. West- port Stone Co. v. Thomas, 35: 646, 94 N. E. 406, 175 Ind. 319. 101. A side track of a railroad cannot be regarded as for public use, where it reaches a private factory, and the railroad company has contracted for its use only when it can use it without interfering with the business of the manufacturer. Pere Marquette R. Co. v. United States Gypsum Co. 22: 181, 117 N. W. 733, 154 Mich. 290. 102. No public use is shown in a petition to secure a right of way for a branch rail- road track to a private plaster mill, where it is not shown that its products are re- quired for public use, or that they cannot reach thfe market or railroad by some other roxite. Pere Marquette R. Co. v. United States Gypsum Co. 22: 181, 117 N. W. 733, 154 Mich. 290. (Annotated) 3. As to water and 'water rights. (See also same heading in Digest L.R.A. 1-10.) -<>/->h M!+ dwii-ilil/. <"2 See also supra, 4, 5, 47, 58, 61, 80, 84. 103. A public-service corporation, although authorized to condemn private property for the construction of canals and reservoirs for the generation of electric power, cannot exercise the right of eminent domain iy such a way as will interfere with the navi- gation or navigable capacity of any of the ' Digest 1-52 L.R.A.(N.S-) navigable waters of the state, unless such interference is expressly authorized by statute. Minnesota Canal & P. Co. v. Pratt, ii : 105, 112 N. W. 395, 101 Minn. 197. 104. The use of public navigable waters for the construction of dams, resarvoirs, and canals to be utilized by a public- service corporation for the purpose of generating electric power for "public use is not forbidden by the laws of Minnesota, where the contemplated uses will not ma- terially interfere with the navigation of the waters to be affected thereby. Minne- sota Canal & P. Co. v. Pratt, n: 105, 112 N. W. 395, 101 Minn. 197. 105. Under the act of Congress of March 3, 1899, chap. 425, 9, 10 (30 Stat. at L. 1151, U. S. Comp. Stat. 1901, pp. 3540, 3541, 6 Fed. Stat. Anno. p. 805), requiring the consent of the Secretary of War, on the approval of the chief of engineers, to the construction of public works in any navigable water way within the United States, a public-service corporation should not be permitted to exercise the power of eminent domain in furtherance of an enter- prise involving interference with navigable waters within the state, without having first procured the approval of its plan by the officers of the Federal government. Minnesota Canal & P. Co. v. Pratt, u: 105, 112 N. W. 395, 101 Minn. 197. Irrigation and power. Payment of, on discontinuance of eminent domain proceedings, see EMINENT DO- MAIN, 150. See also supra, 4, 5, 15, 47, 60, 80, 103, 104. 106. The right of the Federal government to exercise the power of eminent domain to secure land within a state for the irri- gation of public land which it owns there is not affected in a particular case by the fact that it intends to supply water from its plant for the irrigation of land which has passed into private ownership, at least where, under the laws of the state, such private owners might have secured prop- erty necessary for the irrigation of their lands by right of eminent domain. Bur- ley v. United States, 33: 807, 179 Fed. 1, 102 C. C. A. 429. (Annotated) 107. The reclamation of land by irriga- tion is such a public purpose that the legis- lature may rightfully authorize the condem- nation of rights of way over private prop- erty, or through the ditches of private individuals, to convey water for that purpose onto land belonging to a private individual. Nash v. Clark, i: 208, 75 Pac. 371, 27 Utah, 158, affirmed in 25 Sup. Ct. Rep. 676, 198 U. S. 361, 49 L. ed. 10S5. (Annotated) 108. The construction of a dam to furnish water for sale, for irrigation purposes, and to generate power for sale to whoever ap- plies for it, is for a public purpose, for which the power of eminent domain may be exercised. Spratt v. Helena Power Transmission Co. 8: 567, 88 Pac. 773, 35 Mont. 108. 109. The creation of a water power and a water-power plant for the purpose of "sup- 1014 EMINENT DOMAIN, I. e. plying water power from the wheels there- of" to the public is a private enterprise, in aid of which the power of eminent domain cannot be exercised. Minnesota Canal & Power Co. v. Koochiching Co. 5: 638, 107 N. W. 40(5, 97 Minn. 429. 110. A corporation is not entitled, under the statutes of Minnesota, as an incident to the construction of a canal designed mainly for the creation of water power, but inci- dentally for purposes of navigation, to with- draw and divert the water from public nav- igable lakes and streams to such an extent as to interfere with present or future navi- gation, and by means of canals carry it over a divide and discharge it into a different drainage area, thus permanently withdraw- ing it from its natural course. Minnesota Canal & Power Co. v. Koochiching Co. 5: 638, 107 N. VV. 405, 97 Minn. 429. Carrying water. 111. The supply of water to the public for commercial and manufacturing purposes is a public use; and the right of eminent do- main may be lawfully conferred to secure property for the safe storage and transpor- tation of water for such purposes, where all applicants have a right to service, although at the time of the taking the principal, if not only, customer, will be a railroad com- pany. Jacobs v. Clearview Water Supply Co. 21:410, 69 Atl. 870, 220 Pa. 388. (Annotated ) Dams. See supra, 15, 61, 104, 108. c. Right acquired. (See also same heading in Digest L.R.A. 1-10.) 112. A petitioner in ad quod damnum pro- ceedings who owns the land on each side of a water course at the point where he pro- poses to construct and maintain a dam does not, by a judgment in his favor and pay- ment of the damages assessed, acquire the right in perpetuity to flow the lands of upper riparian owners, but secures a privi- lege which may be lost by abandonment or nonuser for an unreasonable length of time. Gross v. Jones, 32:47, 122 N. W. 681, 85 Neb. 77. (Annotated) 113. The delegation to a municipal cor- poration of the power to exercise the right of eminent domain for the acquisition of property for strictly public use will enable it to secure the property free from tax liens, unless the continuation of the lien is ex- pressly provided for by statute. Gasaway v. Seattle, 21: 68, 100 Pac. 991, 52 Wash. 444. 114, A gas supply corporation having the right of condemnation, which selects loca- tions upon which it exerts that right, cannot thereafter depart from the bounds of the lands condemned, and voluntarily take other locations on the lands of the owner in the place of those condemned, without his con- sent, no matter how essential, convenient, or uninjurious the selection of the unau- t,hori/ed route may be. Lovett v. West Digest 1-52 L.R.A.(N.S.) Virginia C. Gas Co. 24: 230, 65 S. E. 196, 65 W. Va. 739. In land taken for highway. 115. A municipal corporation cannot take the fee for street purposes by con- demnation proceedings, in the absence of statutory authority. Tacorna Safety De- posit Co. v. Chicago, 31: 868, 93 N. E. 153, 247 111. 192. By railroad company against owner of fee. Action by owner of fee to enforce forfeiture, see PARTIES, 19. Sufficiency of complaint in action to recover possession of property condemned by railroad company, see PLEADING, 576. Right of owner of fee to complain of lease of railroad right of way for warehouse, see RAILROADS, 20. See also supra, 52. 116. One through whose property a rail- way right of way is condemned is bound to furnish lateral support for it with the tracks laid, arid a traffic of any amount, at any practicable speed, to its entire width. Manning v. New Jersey Short Line R. Co. (N. J. Err. & App.) 32: 155, 78 Atl. 200, 80 N. J. L. 349. (Annotated) 117. An easement or qualified fee, and not a fee simple, is vested in a railroad company by condemnation proceedings un- der a statute providing that the legal title shall vest in the corporation for corporate purposes, where, under the Constitution, the use for which property is taken by such corporation must be a public one. Neitzel v. Spokane International R. Co. 36: 522, 117 Pac. 864, 65 Wash. 100. 118. The condemnation of a right of way for railway purposes includes the right to use elsewhere so much of the earth, rock, and gravel as is necessary or convenient to re- move in constructing or repairing the road- bed. Cleveland, C. C. & St. L. R. Co. v. Hadley, 45: 796, 101 N. E. 473, 179 Ind. 429. (Annotated) 119. The filing by a railroad company of a map and profile of its route, under a statute requiring such filing before proceed- ing to construct any part of its road, does not fix the depth of the cut which it may make where, as a basis for assessment of damages, it is required to deposit a de- scription of the rights and interests in- tended to be appropriated, and therefore the owner of the fee is not entitled to com- pensation for earth removed and used in deepening the cut and reducing grades of the road some time after the original con- struction is completed. Cleveland, C. C. & St. L. R. Co. v. Hadley, 45: 796, 101 N. E. 473, 179 Tnd. 429. 120. Although the devotion of property condemned by a railroad company to pri- vate use will call for explanation from the company, the title will not revert to the original owner unless the company has finally and positively abandoned the appli- cation of the property to public use, and does not intend to restore it. Neitzel v. Spokane International R. Co. 36: 522, 117 Pac. 864, 65 \\as;h. 100. EMINENT DOMAIN, II. a. 1015 II. Procedure, a. In general. (See also same heading in Digest L.R.A, 1-10.) jo :>>;{' -.fi.j -i-.i"'j-'/M >>j ^iTi.i-i >n :i >;>i,i Error in admission of evidence, see APPEAL AND ERROR, 1142. Excluding expert evidence of value of land taken by eminent domain, see APPEAL AND ERROR, 1224. Conferring upon public service commission power to determine necessity of taking, see CONSTITUTIONAL LAW, 128. Due process in procedure, see CONSTITU- TIONAL LAW, 551, 552. Estoppel to question validity of proceedings, see ESTOPPEL, 229. Presumptions and burden of proof, see EVI- DENCE, 513, 663, 664. Evidence to show purpose for which prop- erty is sought, see EVIDENCE, 1609, 1610. Evidence as to value of property sought to be condemned, see EVIDENCE, 1694-1696, 1698, 1699. Pleading in eminent domain proceedings, see PLEADING, 454, 456. Title of statute as to, see STATUTES, 93, 136. Conferring upon public service commission powe* to determine necessity of taking and amount of compensation, see STAT- UTES, 352. Sufficiency of return of service on corpora- tion, see WRIT AND PROCESS, 92. 121. It is not a prerequisite to the exer- cise of the right of eminent domain that a telegraph company seeking to exercise such right should first file with the railroad com- mission its consent that the commission shall have jurisdiction over it for the pur- pose of regulating tolls on messages origi- nating and ending within the state. West- ern & A. R. Co. v. Western U. Teleg. Co 42: 2*5, 75 S. E. 471, 138 Ga. 420. 122. In the absence of a statutory re- quirement, the court is not bound to give appraisers appointed in an eminent domain proceeding instructions as to their duty. Bedford Quarries Co. v. Chicago, I. & L. R. Co. 35: 641, 94 N. E. 326, 175 Ind. 303. Attempt to agree. Right to object that interlocutory order appointing appraisers fails to show effort to agree as to compensation, see APPEAL AND ERROR, 276. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 553. 123. One who has enjoined a public service corporation from interfering with his property cannot, in the condemnation pro- ceeding, raise the objection that, prior to the proceeding, no endeavor was made to obtain the rights by purchase. State ex rel. Burrows v. Superior Court, 17: 1005, 93 Pac. 423, 48 Wash. 277. 124. It is a sufficient negotiation, within the statutory requirement, prior to the in- j stitution of condemnation proceedings by a railroad company, where a real-estate Digest 1-52 L.R.A.(N.S.) agent representing the company, informs a lot owner that the company desires her lot for the purpose of a right of way and freight yard, and makes her an offer, which he testifies was a fair price for the property desired, and which she refuses to accept. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. Notice and hearing. First raising question as to, on appeal, see APPEAL AND ERROR, 722. See also infra, 172, 173. 125. A landowner is not entitled to notice of a resolution of a municipal corporation appropriating his property for a highway. State v. Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. 126. A provision of a municipal charter authorizing the condemnation of land for highway purposes is not invalid because it makes no provision for notice to the prop- erty owner, at least if it provides for notice when particular property is to be taken and the compensation fixed. State v. Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. 127. A description in the publication of notice in proceedings for the condemnation of real property, which shows the congres sional township and range, so that the land can be located, is not insufficient because it does not, in terms, state that the land is in the county in which the proceedings were commenced, especially as the statute pro- vides that the proceedings can be commenced only in the county where the land lies. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. 128. A mistake in the middle initial of the owner of land condemned for railroad purposes, making the name correspond with that of another person, does not invalidate the company's title to the land, where it sufficiently appears from the record that the real owner was a party to the proceeding and the one upon whom the service was made. Illinois C. R. Co. v. Hasenwinkle, 15: 129, 83 N. E. 815, 232 111. 224. (Annotated) 129. Notice of a condemnation proceeding given to "J. H. Burtis" is to be taken to be the same as if given to J. Burtis, the first letter being regarded as an abbreviation of the Christian name beginning with the letter "J." Illinois C. R. Co. v. Hasen- winkle, 15: 129, 83 N. E. 815, 232 111. 224. 130. Ratification by the board of direct- ors of a railroad company, of a notice of the commencement of condemnation pro- ceedings, given by the president of the com- pany without lawful authority, will not re- late back and give the notice the effect which it would have had if it had been legal when given, where the time has expired, under its terms, for the appointment of an assessor by the landowner. Bridwell v. Gate City Terminal Co. 10: 909, 56 S. E. 624, 127 Ga. 520. 133. One whose property is condemned for highway purposes is entitled to a hearing on the question of compensation, but not as to the desirability of the improvement, or 1016 EMINENT DOMAIN, II. a. the necessity for taking his land. State v. Jones, 2: 313, 0-2 S. E. 240, 139 N. C. 613. Plats and maps. 132. That a slough sought to be con- demned for public use is not shown by the government plat from which the pla for condemnation is made, as required 1 >y stat- ute, does not make the proceeding insuffi- cient if it is part of the contiguous land which is shown in the condemnation plat, and is therefore subject to condemnation. State ex rel. Burrows v. Superior Court, 17: 1005, 93 Pac. 423, 48 Wash. 277. 133. The filing of the map and profile con- templated by a statute providing that, be fore a railroad company shall proceed to construct a part of its road into or through any county named in its articles of asso- ciation; it shall make and file a map and profile of the route intended to be adopted by such company, is not required to pre- cede condemnation proceedings to obtain a right of way. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. Parties. 134. A county having a tax lien on real estate is not within the meaning of a stat- ute empowering a municipality to acquire property for its needs by right of eminent domain, which requires persons having an interest in the property to be made parties to the proceeding. Gasaway v. Seattle, 21: 68, 100 Pac. 991, 52 Wash. 444. (Annotated) 135. Under a statute that allows condemna- tion by a telegraph company of land be- longing to the state upon the same plane as the right of way of a railroad company or private land, that is, by making due com- pensation therefor, a telegraph company cannot condemn the usufructuary interest of u lessee of a railroad belonging to the state in an action against the lessee alone without joining the state. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. Defenses and objections. Burden of proving, see EVIDENCE, 663. 136. An attempt by a natural gas com- pany to condemn a right of way for a pipe line cannot be defeated by the fact that it intends to sell its entire product to a corporation manufacturing artificial gas for distribution. Calor Oil & Gas Co. v. Fran- zell. 36: 456, 109 S. W. 328, 128 Ky. 715. 137. A landowner cannot defeat a pro- ceeding to condemn a right of way for a gas pipe line across his property, on the ground that the enterprise will not be profitable. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 138. The right of a natural gas company to acquire a right of way for its pipe line cannot be defeated by the fact that it has acquired no franchise to distribute its prod- uct in the city to which it is to pipe it. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 139. A landowner cannot defeat a pro- ceeding to condemn a right of way across Digest 1-52 JL.R.A.(N.S.) his property by attacking the existence of the petitioner, if it is a corporation organ- ized as the statute requires. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 140. The de facto existence of the corpo- ration seeking to exercise the right of eminent domain may be inquired into at the instance of the property owner to de- feat the proceedings. Sisters of Charity v. Morris R. Co. 50: 236, 86 Atl. 954, 84 N. J. L. 310. 141. A statute providing for the taking of railroad switch yards for a park is not invalid for failure to provide for their con- tinued use by the railroad company while establishing other yards. Southern R. Co. v. Memphis, 41:828, 148 S. W. 662, 126 Tenn. 267. 142. That a fund provided by a statute conferring the power of eminent domain upon a city is to be placed in the possession of the park commissioners, which shall expend only a specified maximum amount for the property, does not render the stat- ute void on the theory that the city, al- though invested with the power to take, has no ability to pay, since the commis- sioners will be regarded as agents of the city to make the payment. Southern I>. Co. v. Memphis, 41: 828, 148 S. W. 662, 12(5 Tenn. 267. 143. Where a telegraph company, in its notice of condemnation, seeks only to oc- cupy a railroad company's right of way for the purpose of constructing and maintain- ing a telegraph line, the possibility of stringing telephone wires for the use of a telephone company is no objection to the right to condemn, for when the telegraph company attempts to impose an additional servitude, the railroad company has its remedy against such act. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. 144. A railroad company cannot defeat the exercise of the right of eminent domain by a telegraph company seeking to con- struct a line of telegraph on a portion of its right of way, by the construction and maintenance of a line on both aides of its track, when a line on one side of its track is ample to furnish it with necessary tele- graph service. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 7o S. E. 471, 138 Ga. 420. 145. Where it appears that the demands of a modern railroad company are such that a telegraph system is a necessary auxiliary to its safe and proper operation; and where it appears that present telegraph service is afforded to the railroad company by an existing line of telegraph by virtue of a contract between the railroad company and the telegraph company, which contract is about to terminate; and where it appears that the existing lines are located on an advantageous portion of the right of way, and that the railroad company, in order to obtain the necessary telegraph service, in- tends and purposes, in good faith, to con- EMINENT DOMAIN, II. b. 1017 struct a line of its own on the location of the old telegraph line, relatively to a tele- graph company proposing to condemn a right of way, the railroad company has a preferential selection of the route; and un- der such circumstances, the telegraph com- pany will be enjoined from condemning the route which has been selected in good faith by the railroad company. Western & A. R. Co. v. Western U. Teleg. Co. 42: 225, 75 S. E. 471, 138 Ga. 420. 146. A property owner cannot defeat a proceeding to condemn for public use cer- tain rights in the property, on the ground that the rights sought will be insufficient to enable petitioner to transact its business without using additional property of object- or, not sought to be appropriated. State ex rel. Burrows v. Superior Court, 17: 1005, 93 Pac. 423, 48 Wash. 277. 147. Absence of a provision in a statute conferring the power of eminent domain upon a city, for the levying of a tax to pay the compensation, or even requiring compensation to be paid, does not invalidate it if the Constitution requires compensation to be paid and the statute provides that the judgment of condemnation shall not take effect until the award is paid into court. Louisville & N. R. Co. v. Louisville, 24: 1213, 114 S. W. 743, 131 Ky. 108. 148. That the legislature selects a par- ticular parcel of property to be acquired at a maximum price by a city for park pur- poses does not render the statute void on the theory that the owner will not recover adequate compensation for his property, since, the procedure being that provided by the statutes regulating the exercise of the right of eminent domain, the title cannot be acquired if the compensation is not adequate. Southern R. Co. v. Memphis, 41: 828, 148 S. W. 662, 126 Tenn. 267. Discontinuance of proceedings. 149. A municipal corporation may dis- miss proceedings to condemn land for a street after a verdict Assessing damages for the land taken, if the benefits assessed did not equal the damages awarded as required by statute, so that the right of the prop- erty owner has not become complete and no process remains by which the verdict can be corrected. District of Columbia v. Hess, 28: 91, 35 App. D. C. 38. (Annotated) 150. A provision for the payment of costs by a city upon discontinuing eminent do- main proceedings does not include the amount paid expert witnesses employed by the property owner to establish the value of his property. Re Pittsburg, 52: 262, 90 Atl. 329. 243 Pa. 392. 151. The loss occasioned to a property owner by the termination of negotiations for a lease of his property, due to the institution of proceedings by a municipal corporation to condemn a portion of the property for public use, is not Avithin a statutory provision requiring the city upon discontinuance of such proceedings, prior to the entry upon, taking or appropriation /f, or injury to, any property or materials, to pay any actual damage, loss, or injury Digest 1-52 L.R.A.(N.S.) sustained by reason of such proceedings. Re Pittsburg, 52: 262, 90 Atl. 329, 243 Pa. 392. (Annotated.) b. Petition. (See also same heading in Digest L.R.A 1-10.) Amendment of complaint in condemnation proceedings, see PLEADING, 96. Supplemental pleading, see PLEADING, 130. 152. A complaint in eminent domain pro- ceedings need not allege the public neces- sity for the taking of the property sought to be condemned, under N. D. Rev. Codes 1905, 7592. Grafton v. St. Paul, M. & AI. R. Co. 22: i, 113 N. W. 598, 16 N. D. 313. 153. The failure to aver in the petition in an action by an electric power, heat, light, and traction company to condemn land, that such company has a contract to supply any municipality or company with electricity, does not render the petition de- fective. Pittsburg Hydro-Electric Co. v. Liston, 40: 602, 73 S. E. 86, 70 W. Va. 83. 154. In condemning an easement in land for the purpose of laying pipe lines for con- veying natural gas, the pipes to be carried under the surface of the ground to such a depth as not to interfere with the use of the land for agricultural purposes, it is not necessary to describe a definite width or depth for such right of way or easement, but it must pursue a definite line with courses and distances given, and have defi- nite and fixed termini. Carnegie Natural Gas Co. v. Swiger, 46: 1073, 79 S. E. 3, 72 W. Va. 557. 155. That a strip of private property in- tervenes between the termini designated for a pipe line, for the location of which through the public streets of a city permis- sion is sought of the proper authorities, does not affect their jurisdiction so far as the streets are concerned, under a statute requiring the petition to state the termini with as much particularity and certainty as practicable; and it is not necessary that the termini on each side of the private land be stated. Cheney v. Barker, 16: 436, 84 N. E. 492, 198 Mass. 356. 156. The location, general route, width, and termini of a railroad, which, by stat- ute, must be set out in the petition, in pro- ceedings to condemn a right of way, relate to what is "sought;" that is, the specific right of way which is sought to be taken from the party or parties defendant to the proceedings. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. 157. A complaint in a proceeding by one railroad company to take the land of an- other is not subject to the objection, made for the first time on appeal, that it shows no intent to appropriate, except as the con- ditions annexed are made a constituent part of the taking, because of statements therein that the appropriation of the right of way described is made subject to the defendant's 1018 EMINENT DOMAIN, II. c, 1, 2. right to join its roadbed when built up to and against the roadbed constructed by the plaintiff, and that, if the defendant elects so to construct its roadbed at some future day, it shall pay to plaintiff the actual cost to it of any right of way taken from the plain- tiff for such purpose, with the actual cost of so much of the plaintiff's roadbed and construction work as defendant may use, and would otherwise be required to construct. Southern Indiana R. Co. v. Indianapolis & L. R. Co. 13: 197, 81 N. E. 65, 168 Ind. 360. 158. A petition for the condemnation for railroad purposes of a right of way upon which a railroad is already constructed, without attempting to condemn the rail- road, is insufficient, where it is admitted that the right of way is not sufficient to accommodate two roads. Alfred Phosphate Co. v. Duck River Phosphate Co. 22: 701, 113 S. W. 410, 120 Tenn. 260. c. Trial; judgment. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Due process in condemnation proceedings, see CONSTITUTIONAL LAW, 594-596. Evidence admissible under pleading, see EVIDENCE, 2425. Necessity for exercise of power of eminent domain as question for jury, see TRIAL, 216. Question for jury as to public need or bene- fit, see TRIAL. 159. In a proceeding by a corporation to acquire a right of way for its pipe lines, no inquiry is admissible into the purpose for which another corporation purchased a majority of its stock, or its right to purchase. Calor Oil & Gas Co. v. Fran- zell, 36: 456, 109 S. W. 328, 128 Ky. 715. Competency of commissioners. 160. One whose property is subject to as- sessment to pay for land taken by a city under right of eminent domain is not com- petent to act as a commissioner in the condemnation proceeding, although the stat- ute makes incompetent only those inter- ested in the property to be taken. Re Rochester, 47: 151, 101 N. E. 875, 208 N. Y. 188. (Annotated) 161. Failure of the property owner to object to the competency of commissioners appointed by the court in proceedings to condemn his land for public use until the award is made does not constitute a waiver of the disqualification, if he did not learn the facts which rendered them incompetent during the proceedings before them. Re Rochester, 47: 151, 101 N. E. 875, 208 N. Y. 188. Digest 1-52 L.R.A.(N.S.) 2. Jury and verdict; award of com- missioners. (See also same heading in Digest L.R.A. 1-10.) Modification of judgment, see JUDGMENT, 65. Question for jury, see TRIAL, 636, 637. 162. In condemnation proceedings, where the lands are liable at the time the petition is filed to future assessments for municipal improvements already made, and the assess- ments are in fact made before the final award and payment for the land, the court of chancery may, upon the money being paid into court pursuant to the statute, order the amount of the assessments paid to the municipality. Bowers v. Bloomfield, (N. J. Err. & App.) 45: 451, 86 Atl. 428, 81 N. J. Eq. 163. (Annotated) Right to jury trial. Waiver of right, see Jury, 37. Failure of sheriff to state in return names of persons summoned as jurors, see JURY, 56. 163. Permitting a state railroad commis- sion to exercise the right of eminent do- main and assess the damages for a taking of property violates no provision of the Federal Constitution. Pacific Teleph. & Teleg. Co. v. Eshleman, 50: 652, 137 Pac. 1119, 166 Cal. 640. 164. The use of the jury regularly drawn for the term, rather than a special jury, is not required by a statute providing that eminent domain proceedings shall be before a jury in court, instead of a sheriff's jury. Pitsnogle v. Western Maryland R. Co. 46: 319, 87 Atl. 917, 119 Md. 673. Award of commissioners. Appeal from award, see infra, 172-178. Necessity of appealing from order overrul- ing objections to appointment of ap- praisers, as well as from order appoint- ing appraisers, see APPEAL AND ERROR, 550. Review on appeal of order setting aside award of commissioners, see APPEAL AND ERROR, 564. Due process as to award, see CONSTITU- TIONAL LAW, 559, 560. Admissibility of parol evidence, generally, as to what facts railroad commission based its award upon, see EVIDENCE, 904. Effect of award for land condemned to raise street on right to recover for conse- quential injuries subsequently develop- ing, see HIGHWAYS, 139. Interest on award, see INTEREST, 28. 29. 165. The deposit and acceptance of the amount awarded by the commissioners as compensation for a railroad right of way, and the taking possession of the property by the railroad company, do not preclude it from contesting in court the correctness of the award. St. Louis, M. & S. E. R. Co. v. Aubuchon, 9: 426, 97 S. W. 867, 499 Mo. 352. 166. An award of commissioners ap- EMINENT DOMAIN, II. d. 1019 pointed in condemnation proceedings may be set aside by the court in which the pro- ceedings were commenced, on the ground of improper conduct on the part of either the commissioners or the parties. Re Milwau- kee Light, H. & T. Co. 27: 567, 125 N. W. 903, 142 Wis. 424. (Annotated) 167. A statutory provision allowing an appeal from the award of commissioners ap- pointed in condemnation proceedings does not preclude the court in which the proceed- ing was instituted from setting aside the award for misconduct, since an appeal thereto would merely test the result of the judgment on the question of damages, and not the good-faith character of the award. Re Milwaukee Light, H. & T. Co. 27: 567, 125 N. W. 903, 142 Wis. 424. 168. The ''going value" of the plant of a public utility corporation is of such a char- acter that an exact ascertainment in money is not necessary to the validity of the award of a railroad commission determining the entire value of the plant. Appleton Water- works Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 169. Where the report of a railroad com- mission shows that the commission consid- ered the "going value" of the plant of a public utility corporation in determining the entire value of the plant, testimony of the members of the commission as to the exact valuation placed upon the "going value," or the method of determining it, is incompetent. Appleton Waterworks Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. , 170. Where the record of the proceedings of a railroad commission is silent as to whether or not the commission adopted the report of engineers as to the cost of present reproduction of the property of a public utility corporation, from which the cost of paving over service pipe and trenching for the same was excluded, it is competent to establish this fact by the testimony of the members of the commission. Appleton Waterworks Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 171. Testimony of the members of a rail- road commission as to the process of rea- soning by which they arrive at the value placed upon the property of a public utility corporation, whose property is being taken by a municipality, will not be received to impeach the award of the commission. Ap- pleton Waterworks Co. v. Railroad Commis sion, 47: 770, 142 N. W. 476, 154 Wis. 121. d. Appeal; costs; new trial. (See also same heading in Digest L.R.A. 1-10.) Appeal. Abandonment of appeal, see APPEAL AND EBROB, 10. Review of discretion of trial court as to amount of attorneys' fees to be allowed to property owner, see APPEAL AND ER- ROR, 572. Digest 1-52 L.R.A.(N.S.) First raising question as to notice on ap- peal, see APPEAL AXD ERROR, 722. Judgment on appeal in eminent domain pro- ceeding, see APPEAL AND ERROR, 1573. Participation by appellate court in division of fund where damages are nominal only, see APPEAL AND ERBOR, 1604. Costs on appeal, see APPEAL AND ERROR, 1637. Review of proceeding on certiorari, see CER- TIORARI, 9, 19. , Review of municipal decision as to, see COURTS, 143. See also infra, 253, 254. 172. A provision of a statute authorizing the exercise of the power of eminent do- main, which gives one whose land is to be taken the right to select one of the ap- praisers for the fixing of the value of the property, and the right to appeal from the award, is tantamount to requiring notice to him of the appraisement. State v. Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. 173. A proper hearing is accorded the owner of property sought for highway pur- poses by a provision authorizing the choice of an appraiser by the municipality and one by him, with authority in them to choose a third, and the right to appeal from their decision to the court; and it is immaterial that all the appraisers are to be freeholders of the municipality. State v. Jones, 2: 313, 52 S. E. 240, 139 N. 0. 613. 174. The acceptance of an award of a railroad commission by a public utility corporation and its receiver, pending an action by the utility corporation to alter and amend such an award, is not a waiver of its right to prosecute the appeal from the order, since upon an appeal by the util- ity corporation, the amount of the award cannot be reduced. Appleton Waterworks Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 175. Upon reversal of a decision of a county court in an eminent domain pro- ceeding, to the effect that petitioner has not the power of eminent domain, on appeal to the circuit court, where by statute the trial is to be de novo, the cause need not be remanded for trial upon the question of damages, but the circuit court may try that question itself. Calor Oil & Gas Co. v. Franzell, 36: 456, 109 S. W. 328, 128 Ky. 715. 176. Upon a proceeding to alter or amend an order of the state railroad commission as provided in 1797m-83, Wis. Stat. 1911, the court examines fnto the specific claims of error or unreasonableness made by the plaintiff in the action, and if it finds them satisfactorily established the order is re- manded to the commission for correction in these particulars, but is not opened up for a trial de novo. Appleton Waterworks Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. Costs. Costs generally, see COSTS AND FEES, 6. Costs on appeal, see APPEAL AND ERROR, 1637. 1020 EMINENT DOMAIN, III. a, b, 1. 177. Where a public utility company sur- renders its franchise and receives an inde- terminate permit under the utility law, an order thereafter made by the commission fixing the compensation to the utility com- pany for its property taken by the munici- pality cannot rightly require the municipal- ity to pay, in addition to the compensation fixed, the costs of an action which may be thereafter brought by the utility company against the commission to alter or amend the order, whether such action be successful or not, in the absence of an affirmative grant of such costs in the statute. Appleton Waterworks Co. v. Railroad Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 178. One seeking to condemn property un- der the power of eminent domain, who suc- ceeds on appeal from an awa;-d against him, cannot tax the costs of the appeal against the landowner. Peoria, B. & C. Traction Co. v. Vance, 36: 624, 95 N. E. 1081. 251 111. 263. (Annotated) New trial. Time to apply for, see NEW TRIAL, 75. III. Rights and remedies of owners. uao I>n,a v Jiijjiji'mM.'in vdi '{d i-isijj . a. In general. (See also same heading in Digest L.R.A. 1-10.) Implied agreement of railroad to pay for land taken without first securing right, see CONTRACTS, 16. Measure of damages in condemnation case, see DAMAGES, III. 1. Estoppel to enjoin laying pipe lines in pri- vate property, see ESTOPPEL, 155. Injunction against taking of land, see IN- JUNCTION, 25, 182-184. See also supra, 114. 179. The remedy of one over "whose prop- erty a temporary structure is erected for the running of trains pending an elevation of railroad tracks is an action for trespass, and not under the statutes allowing com- pensation for property taken by right of em- inent domain. Davis v. New England R. Co. 20: 1061, 85 N. E. 475, 199 Mass. 292. b. What constitutes a talcing of, or in- jury to, property. 1. In general. (See also same heading in Digest L.R.A. 1-70.) . As to necessity of making compensation generally, see infra, III. c, 1. As to consequential injuries from taking, see infra, III. e. As to additional servitude, see infra, IV. Provisions as to capital of bank, see CON- STITUTIONAL LAW, 280, 281. Frontage tax for street sprinkling as a tak- ing of property, see PUBLIC IMPROVE- MENTS, 40. Digest 1-52 L.R.A. (N.S.) 180. The word "damaged," as used in a constitutional provision forbidding the en- actment of a law whereby property shall be damaged for public use without just com- pensation, is not confined to acts which would give a cause of action if done by an individual. Tidewater R. Co. v. Shartzer, 17: 1053, 59 S. E. 407, 107 Va. 562. 181. Private property is not taken, so as to require compensation, by regulating the cutting of trees on wild and uncultivated land to protect the public water supply, and, for the same purpose, prohibiting the cutting of small trees on such property, the value of which standing is equal to or greater that when cut, and regulating the cutting of small trees on such land to en- hance the value of such land and the trees thereon, and promote the interests of the owners and the common welfare of the pub- lic. Opinion of Justices, 19: 422, 69 Atl. 627, 103 Me. 506. 182. Regulation by the state of the cut- ting or destruction of trees growing on wild and uncultivated land, or prohibition of the wanton cutting of small trees on such lands which are of equal or greater value standing than cut, for the purpose of protecting the water supply of the state, is not a taking of property for which compensation must be made under the 14th Amendment of the Federal Constitution, since that amendment was not intended to interfere wit" the police power of the state. Opinion of Justices, 19: 422, 69 Atl. 627, 103 Me. 506. (Annotated) 183. Injury to buildings on property 120 feet from a railroad tunnel, by the removal of lateral support or the jar of blasting, renders the railroad company liable for the damages, under a constitutional provision that private property shall not be damaged for public use without compensation, whether the company was negligent in car- rying on its operations or not. Farnandis v. Great Northern R. Co. 5: 1086, 84 Pac. 18, 41 Wash. 486. (Annotated) 184. The operation of trains and engines on tracks lawfully constructed for the pur- pose of switching and making up trains near a church, the effect of which is to interrupt religious services therein and annoy the speakers, singers, and congregation by the noise, is not a damaging of the property within the meaning of a constitutional pro- vision requiring compensation to be made in case property is damaged for public use. Twenty-Second Corp., etc. v. Oregon S. L. R. Co. 23: 860, 103 Pac. 243, 36 Utah, 238. 185. The laying of pipe lines by a gas company in the soil of lands, without the consent of the landowner, or appropriation in the manner provided by law, is a taking of the lands within the meaning of the con- stitutional provision forbidding the taking or damaging of private property for public uses before payment of just compensation therefor, even though the taking is a mere technical one, and does not result in mate- rial damages. Lovett v. West Virginia C. I Gas Co. 24: 230, 65 S. E. 196, 65 W. Va. 739. (Annotated) EMINENT DOMAIN, III. b, 2. 1021 186. Requiring a telephone company own- ing a local and long-distance line, to con- nect its long-distance line with the exchange of a rival local company without any com- pensation for the long-distance plant be- yond a division of the tolls, is, where no law requiring such connection existed when it secured its franchise, an unconstitutional taking of property, and not a mere police regulation. Pacific Teleph. & Teleg. Co. v. Eshleman, 50: 652, 137 Pac. 1119, 166 Cal. 640. (Annotated) 187. The use of dynamite by a Federal officer in an emergency, in order to enlarge an opening in a levee along the Mississippi river after the levee had given way, if wrongful, cannot be held to be the act of the United States, and therefore affords no ground for holding that the United States had thereby taken for public use the property of a riparian owner damaged by such act. Hughes v. United States, 46: 624, 33 Sup. Ct. Rep. 1019, 230 U. S. 24, 57 L. ed. 1374. 188. The extension of the limits of a municipal corporation for 6 miles along the line of a turnpike road, and the removal by the municipal authorities of the tollgates within the limits as so extended, is a taking of property of the turnpike company for which compensation must be made. Belle- ville v. St. Clair County Turnp. Co. 17: 1071, 84 N. E. 1049, 234 111. 428. (Annotated) 2. As to streets and highivays. (See also same heading in Digest L.R.A. 1-10.) 189. The occupation of a street by the construction of a permanent improvement at a point 88 feet from premises fronting thereon, with the result that pedestrian travel on that side of the street is diverted in other directions, constitutes an interfer- ence with the natural property rights en- joyed by the owner. Fitter v. St. Paul City R. Co. 18: 268, 117 N. W. 434, 105 Minn. 221. Railroad in. See also infra, 210. 190. The injury to the easements of light, air, and access of abutting property the owner of which does not own the fee in the street, by the construction of a commercial railway therein, is not, at least, where there will not be a complete destruction of them, a taking of the property within the mean- ing of a constitutional provision that com- pensation must be made in case of a taking of property for public use before possession can be taken, where the Constitution also provides compensation for damaging prop- erty, but does not require it to be made in advance. McCammon & L. Lumber Co. v. Trinity & B. V. R. Co. 36: 662, 133 S. W. 247, 104 Tex. 8. 191. The construction of a commercial railroad on a street the fee of which is in the abutting owner is a taking within the meaning of a constitutional provision re- quiring compensation to be made before Digest 1-52 L.R.A. (N.S.) possession taken, in case of property taken by right of eminent domain. McCammon & L. Lumber Co. v. Trinity & B. V. R. Co. 36: 662, 133 S. W. 247, 104 Tex. 8. (Annotated) Elevated railroad in. 192. Recovery cannot be had by an abut- ting owner because of interference with the light, air, or prospect of his property through an elevation of railroad tracks, in the absence of any taking. of his land or de- struction of his easements, under a statute requiring compensation to be made for all damage caused by the taking of land or by the change or discontinuance of a private way or by the taking of an easement. Davis v. New England R. Co. 20: 1061, 85 N. E. 475, 199 Mass. 292. (Annotated) Street railway in. As additional servitude, see infra, 303-309. 193. The mere fact that a street railway is located on the side, rather than in the center, of the street, is not sufficient to show that the abutting owner is entitled to com- pensation under a constitutional provision that private property shall not be damaged for public use without compensation. Wag- ner v. Bristol Belt Line R. Co. 25: 1278, 62 S. E. 391, 108 Va. 594. (Annotated) 194. That a vehicle cannot stand between a street car track located on the side of the street and the curb while a car is passing does not show a violation of the rights of the abutting owner under a constitutional provision that private property shall not be damaged for public use without compensa- tion. Wagner v. Bristol Belt Line R. Co. 25: 1278, 62 S. E. 391, 108 Va. 594. 195. That the location of a street railway in a street will render abutting property less desirable and less comfortable as a resi- dence does not entitle its owner to compen- sation under a constitutional provision that compensation must be made in case private property is damaged for public use. Wag- ner v. Bristol Belt Line R. Co. 25: 1278, 62 S. E. 391, 108 Va. 594. 196. An abutting property owner is not, under a Constitution providing compensa- tion for property damaged for public use, entitled to compensation because a street car track is laid so close to the curb and cars are operated thereon so frequently, that vehicles cannot be stopped at the curb to re- ceive or discharge passengers or goods with- out interfering with the street car service. Harrison v. Denver City Tramway Co. 44:, 1164, 131 Pac. 409, 54 Colo. 593. Interurban railway in. See also infra, 246. 197. An interurban electric railway com- pany using tracks in a city street for street- car business under a street-railway fran- chise does not take the interest of abutting owners for interurban purposes until it transforms the tracks, roadbed, and appli- ances to interurban uses; neither the pas- sage of a statute authorizing condemnation, nor the continued wrongful use for inter- urban purposes of the street railway tracks thereafter, being an expropriation of thei^ rights. Brickies v. Milwaukee Light, H. &; 1022 EMINENT DOMAIN, III. b, 3 c, 1. Traction Co. 14: 644, 114 N. W. 810, 134 Wis. 358. Vacation of street; obstruction of ac- cess to. See also infra, 22S. 198. The vacation of a highway furnish- ing access to a tract of timber land, to the material injury of the property, is a taking for which the owner is entitled to compensation. McCann v. Clarke County, 36: 1115, 127 N. W. 1011, 149 Iowa, 13. (Annotated) 199. A railroad company is not, under a Constitution forbidding the damaging of property for public use without compensa- tion, liable for the diminution in value of private property because of inconvenience caused by the closing of streets not abut- ting on the property, but which afl'ord ac- cess to it, where communication between the property and the general system of highways still remains. Hyde v. Minnesota, D. & P. R. Co. 40: 48, 136 N. W. 92, 29 S. D. 220. 200. The construction of a bridge approach in a public street for the purpose of abol- ishing a grade crossing of railroad tracks, in such a manner as to cut off the access of an abutting owner from the lower portion of his buildiing to the street, and to shut off the light and air therefrom, is a taking within the meaning of a constitutional pro- vision requiring compensation to be made for property taken for public use Walters v. Baltimore & O. R. Co. 46: 1128, 88 Atl. 47, 120 Md. 644. 201. The construction of a bridge ap- proach in a public street in such a way as to destroy the access to abutting property and impound snow and water thereon is a taking for which compensation must be made. Ran- son v. Sault Ste. Marie, 15: 49, 107 N. W. 439, 143 Mich. 661. (Annotated) 3. As to water and water rights; sewage. (See also same heading in Digest L.R.A. 1-10.) 202. Forbidding the continued casting of raw sewage into a river is not a taking of property for public use, for which compen- sation must he made. Shelby v. Cleveland Mill & Power Co. 35: 488, 7l'S. E. 218, 155 N. C. 19G. 203. The withdrawal of subterranean wa- ter from under a public street in such :i manner as to cause the carrying away and subsidence of abutting land will render the municipality or its licensees liable for such subsidence, under a constitution requiring compensation for property damaged for pub- lic use. Farnandis v. Great Northern R. Co. 5: 1086, 84 Pac. 18, 41 Wash. 486. Flowing or flooding of land. 204. The injury of abutting property by flooding and washing by a current deflect- ed by piers placed in a stream is a taking for which compensation must be made. White v, Pennsylvania R. Co. 38: 1040, 78 Atl. 1035, 229 Pa. 480. (Annotated) Digest 1-52 L.R.A.(N.S.) 205. The building by the Federal govern- ment, when improving the navigation of the Mississippi river, of a levee behind a plan- tation which was thereby placed between the old and the new levee, is not a taking of property for which compensation must be made. Hughes v. United States, 46: 624, 33 Sup. Ct. Rep. 1019, 230 U. S. 24, 57 L. ed. 1374. 206. An improvement district chartered by the legislature cannot, under a Cons^itu- tion forbidding the damaging or destruction of property without compensation, erect a levee along a river bank so as to throw the flood water of the river upon a municipal pumping plant on the opposite shore to such a degree as to work a practical destruc- tion of the plant, and deprive the municipal- ity of water for domestic purposes and fire- protection. Ft. Worth Improv. Dist. No. 1 v. Ft. Worth, 48: 994, 158 S. W. 164, Tex. . ( Annotated ) 4. Crossing railroad. (See also same heading in Digest L.K.A. 1-10.) 207. A requirement by the state that railroad companies whose lines intersect public highways laid out after the con- struction of a railroad, shall, without com- pensation, construct and maintain such safety devices as are reasonably necessary for public safety, being referable to the po- lice power, is not a taking of private prop- erty for public use, in violation of the Con- stitution. State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 28: 298, 108 N. W. 261, 98 Minn. 380. (Annotated) 208. The requirement that a railway company construct a bridge over a public waterway which is laid across its right of way, after the same has been established and used for a number of years, is not a taking or injuring of property within the meaning of the constitutional prohibition, but rests on the exercise of the reserved or police power of the state. Chicago, M. & St. P. R. Co. v. Minneapolis, 51: 236, 133 N. W. 169, 115 Minn. 460. c. Right to compensation. (See also same heading in Digest L.R.A. 1-10.) Attempt of court to add interest to amount awarded by jury in eminent domain proceedings, see APPEAL AND ERROR, 1550; TRIAL, 1161. See also supra, 142, 147, 148. 1. Necessity of making compensation. (See also same heading in Digest L.R.A. 1-10.) What constitutes a taking or damaging for which compensation must be made, see supra, III. b. EMINENT DOMAIN, III. c, 1. 1023 As to consequential injuries from taking, see infra, III. e. As to what constitutes an additional servi- tude, see infra, IV. What constitutes a taking for which com- pensation must be made, see supra, III. b. Compelling attorney to defend indigent per- son without compensation as an uncon- stitutional taking of property, see AT- TORNEYS, 59. Construction of constitutional provision as to, see CONSTITUTIONAL LAW, 25, 30. Conferring upon public service commission power to determine amount of compen- sation, see CONSTITUTIONAL LAW, 128; STATUTES, 352. Taking of property of corporation under reserved right to repeal charter, see CONSTITUTIONAL LAW, 361. Imposing upon abutting owners duty to keep sidewalks clear of snow, see CON- STITUTIONAL LAW, 377. Forbidding operation of manufacturing es- tablishment near parks, see CONSTITU- TIONAL LAW, 419. Necessity of terminating restricted building covenants by purchase or condemna- tion, see CONSTITUTIONAL LAW, 643; COVENANTS AND CONDITIONS, 114. Amount of recovery, see DAMAGES, III. 1. Nominal damages for taking fee of street which had been platted by owner, see DAMAGES, 5. On discontinuing highway, see HIGHWAYS, V. b, 2. ' Injunction against erection of levee by im- provement district under statute re- lieving it from liability for injuries, see INJUNCTION, 179. Injunction against taking private property without compensation, see INJUNCTION, 182-184. Joint liability to make compensation, see JOINT CREDITORS AND DEBTORS, 15. See also supra, 119. 209. A municipal corporation which un- dertakes under statutory permission to con- struct a subway for rapid transit under its streets does so in its proprietary, rather than its governmental, capacity, and is lia- ble to pay for any private property taken for such purpose. Re Board of Rapid Tran- sit R. Comrs. 36: 647. 90 N. E. 456, 197 N. Y. 81. 210. Although by constitutional amend- ment the provisions of the Constitution have been superseded with respect to pub- lic service corporations, and power over them conferred upon the legislature, the constitutional provision requiring compen- sation to be made in advance for property taken from such corporation by right of eminent domain will continue applicable un- til expressly changed by the legislature. Pacific Teleph. & Teleg. Co. v. Eshleman, 50: 652, 137 Pac. 1119, 1C6 Cal. 640. 211. The legislature cannot authorize a telephone company to construct its line along a railroad right of way, unless it makes provision for just compensation to Digest 1-52 L.R.A.(N.S.) the railroad company. Canadian P. R. Co. v. Moosehead Teleph. Co. 29: 703, 76 Atl. 885, 106 Me. 363. (Annotated) 212. The constitutionality of a statute permitting the railroad commission to au- thorize the construction of a telephone line along a railroad right of way, which makes no provision for compensation, is not saved by a section permitting the telephone com- pany to condemn a 'right of way, where it invokes the assistance of the commission and makes no attempt to condemn the right. Canadian P. R. Co. v. Moosehead Teleph. Co. 29: 703, 76 Atl. 885, 106 Me. 363. 213. A statute which provides for the construction of fire lines along the right of way of railroad companies by appropri- ating a strip of land in such a way as to deprive the owner of all beneficial use there- of, and which makes no provision for com- pensation therefor, provides for a taking of land which cannot be justified as a proper exercise of the police power, and, no provision for compensation being made, is unconstitutional. Vreeland v. Forest Park Reservation Com. (N. J. Err. & App.) 46: 1062, 87 Atl. 435, 82 N. J. Eq. 349. 214. That water tanks are necessary to the operation of a railway, and are used with ordinary care, does not prevent liability on the part of the railroad company to the owner of neighboring property injured by their use, under a constitutional provision that private property shall not be damaged for public use without compensation. Texas & P. R. Co. v. Edrington, 9: 988, 101 S. W. 441, 100 Tex. 496. 215. The police power will not authorize a municipal corporation to extend its limits 6 miles along a toll road and remove the gates without making compensation to the owner, where nothing in the increase of population, topography of the ground, nor any other reason in connection with the health, safety, or comfort of the community, is shown to require it. Belleville v. St. Glair County Turnp. Co. 17: 1071, 84 N. E. 1049, 234 111. 428. 216. The turning of sewage by a munici- pal corporation into a stream, to the injury of lower riparian property, is within a con- stitutional provision requiring compensa- tion for damaging property for public use. McLaughlin v. Hope, 47: 137, 155 S. W. 910, 107 Ark. 442. (Annotated) 217. The obstruction of the flow of sur- face water upon abutting property to its injury, by the construction of an alley without drainage facilities, entitles the property owner to compensation, under a constitutional provision allowing compen- sation for property injured or destroyed by public improvements. Ewing v. Louisville, 31: 612, 131 S. W. 1016, 140 Ky. 726. 218. A levee district is not liable even under a Constitution which provides that private property shall not be damaged for public use without compensation, for run- ning a levee across sloughs, swales, and other low places which help to absorb the flood waters of a river, and leaving certain riparian lands between the levee and the 1024 K .Ml. VENT DOMAIN, III. c, 1. river, the effect of which is to raise the height of the Hood water over such land to its injury. McCov v. Board of Direc- tors, zg: 396, 129 S. W. 1097, 95 Ark. 345. 219. The duty to compensate a railway company for structural changes made nec- essary by the condemning by a municipality of a right of way for a street across its tracks is not imposed upon the municipality by a constitutional provision that private property shall not be taken or damaged for public use without just compensation. Graf ton v. St. Paul, M. & M. R.' Co. 22: i, 113 N. W. 598, 16 N. D. 313. 220. A municipal corporation is not em- powered to forbid the maintenance of bill- boards within its limits merely because their appearance may be offensive to per- sons of refined taste, where the Constitu- tion forbids the taking or damaging of private property for public use without com- pensation. Varney & Green v. Williams, 21 : 741, 100 Pac. 867, 155 Cal. 318. 221. A statute requiring the employment of one to secure a purchaser of real estate to be in writing is not in conflict with a constitutional provision that no person's property or particular services shall be taken without just compensation. Selvage v. Talbott, 33:973 95 N. E. 114, 175 Ind. 648. 222. Legislative regulation of gas rates is invalid, where such rates are plainly un- reasonable to the extent that their enforce- ment will be equivalent to the taking of property for public use without such com- pensation as, under the circumstances, is just, both to the owner and the public. There must be a fair return upon the rea- sonable value of the property a* the time it is being used for the public. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 223. The imposition upon abutting prop- erty owners of the duty to keep sidewalks clear of snow does not violate a constitu- tional provision that the burdens of state ought to be fairly distributed, and that pri- vate property shall not be taken for public use without compensation. State, Egan v. McCrillis, 9: 635, 66 Atl. 301, 28 R. I. 165. 224. Subjecting, under penalty, all ani- mals and implements suitable for road work in the county, to that duty a certain number of days each year, with an option to pay money in lieu of furnishing the stock or implements, violates a constitutional provi- sion forbidding the taking or applying to public use of private property without just compensation. Toone v. State, 42: 1045, 59 So. 665, 178 Ala. 70. (Annotated) For injury to business. See DAMAGES, 555, 556. Taking rights of abutting owner. What constitutes a taking, see supra, III. b, 2. Injunction against taking without compen- sation, see INJUNCTION, 184. 225. When a private right of way is en- larged into a public road by the joint action of the owner of the fee and the public authorities, the easement or right of way is Digest 1-52 L,.R.A.(N.S.) neither injured nor destroyed, and no right to compensation or damages on account thereof accrues to its owner. Clayton v. Gilmer County Court, 2: 598, 52 S. E. 103, 58 W. Va. 253. (Annotated) 220. A county is within a constitutional provision requiring municipal and other cor- porations invested with the privilege of taking property for public use to make just compensation for property injured by a public work, and therefore is bound to make compensation for injury to abutting property by changing the grade of a high- way; and it is immaterial that it does not receive the right to take property until after the adoption of the Constitution. Dallas County v. Dillard, 18: 884, 47 So. 135, 156 Ala. 354. (Annotated) 227. The provisions of U. S. Rev. Stat. 5263-5268 (U. S. Comp. Stat. 1901, pp. 3579-3681), authorizing the construction of telegraph lines along "post roads" upon compliance with certain conditions, do not affect the right of an abutting owner to compensation for the burden imposed upon the fee by the erection of a line upon a rural highway which is a post road. Tri- State Teleg. *& Teleph. Co. v. Cosgriff, 26: 1171, 124 N. \V. 75, 19 N. D. 771. 228. The construction of a tunnel and its approaches in a street upon which com- plainant's property abuts, the result of which js that pedestrian travel on that side of the street is diverted in other directions by reason of the fact that a passageway is filled, leaving no street between the cul- de-sac thus formed and the lot, while there is a street between the lot and other prop- erty, constitutes special damages not suf- fered by such other property owners. Fit- zer v. St. Paul City R. Co. 18: 268, 117 N. W. 434, 105 Minn. 221. 229. The owner of lots fronting on a street vacated by the city council from the line of the lots to the right of way and depot grounds of a railway company, thus cutting off the lot owner's right of ingress and egress from that direction, and leaving his property fronting on a cul-de-sac, suf- fers an injury special and peculiar to his property not common to the public at large, and is entitled to compensation un- der the provisions of the Minnesota Con- stitution which forbid the taking or dam- aging of private property for a public use without compensation. Vanderburgh v. Minneapolis, 6: 741, 108 N. W. 480, 98 Minn. 329. 230. Laying a street railway track under authority of the municipal corporation so near a sidewalk the title to which is in the municipality, at a point where streets inter- sect at an acute angle, that passing cars will overhang it a few inches, gives no right of action to the abutting owner where hia right of ingress to and egress from hia property is not impaired. Hester v. Dur- ham Traction Co. i: 981, 50 S. E. 711, 138 N. C. 288. (Annotated) 231. Under a statute providing for the abolition of a grade railroad crossing, which adopts for the assessment of damages the EMINENT DOMAIN, III. c, 1. 1025 provisions of a statute authorizing a recov- ery of all damages which may be sustained by any person in his property by the alter- ation of the grade of a public way, a land- owner is entitled to damages for the con- struction of a bridge approach on an em- bankment from 8 to 15 feet high in front of his property, and only 40 feet away, al- though none of his property is taken there- for. Hyde v. Fall River, 2: 269, 75 N. E. 953, 189 Mass. 439. 232. A railroad company is, under a con- stitutional provision requiring payment of damages for property injured for public use, liable for injury to property abutting ou the street, by the construction of a via- duct, under authority of the municipality, to carry a street over its tracks which in- tersect it, if the work is done for its bene- fit, to enable it to lay its tracks through the municipality. Shrader v. Cleveland, C. C. & St. L. R. Co. 26: 226, 89 N. E. 997, 242 111. 227. (Annotated) Taking riparian rights. See also CONSTITUTIONAL LAW, 395; STAT- UTES, 62. 233. The legislature cannot declare navi- gable a stream which is not so in fact, without making compensation to the ri parian owner, where the Constitution pro- vides that private propeVty shall not be applied to public use without just com- pensation being made. Miller v. State, 35: 407, 137 S. W. 760, 124 Tenn. 293. 234. The legislature cannot give a public right of fishery in a nontidal, fresh-water stream flowing over private property where the Constitution prohibits the taking of pri- vate property for public use without com- pensation. Hartman v. Tresise, 4: 872, 84 Pac. 685, 36 Colo. 146. 235. The legislature cannot, without com- pensation, create a public right of way along the banks and beds of streams to enable the public to enjoy a right of fishery, even by providing an action for any damage done to property along the bank, where the Consti- tution prohibits the taking of private prop- erty for public use without compensation. Hartman v. Tresise, 4: 872, 84 Pac. 685, 36 Colo. 146. (Annotated) 236. The owner of the bed and banks of a stream is entitled to compensation when the water is thrown back in the bed of the stream so as to increase, for a public use, the depth on his land. Rankin v. Har- risonburg, 3: 919, 52 S. E. 555, 104 Va. 524. 237. A riparian owner cannot be deprived of his right to the flow of the stream with- out compensation, because its use by others will be more beneficial to the state. Miller & Lux v. Madera Canal & Irrig. Co. 22: 391, 99 Pac. 502, 155 Cal. 59. 238. The legislature cannot authorize a stranger to construct a dam across a navi- gable stream without making compensation to the riparian owne for the use of the bank against which the dam rests. State ex rel. Wausau Street R. Co. v. Bancroft, 38: 526, 134 N. W. 330, 148 Wis. 124. 239. A river improvement company can- not be authorized by the legislature to con- Digest 1-52 L.R.A.(N.S.) struct splash dams for the purpose of float- ing logs on the stream, the operation of which will hold back the current of the riv- er for several hours several times each week, so as to obstruct the operation by a ripa- rian owner of his power plant, without making compensation to him for the ripa- rian right thus interfered with. Kalama Electric Light & P. Co. v. Kalama Driving Co. 22: 641, 94 Pac. 469, 48 Wash. 612. (Annotated) 240. Before exercising the power con- ferred by its charter to construct splash dams and pond the water of a stream to aid in floating logs thereon, to the injury of the rights of riparian owners along th stream, a river improvement company must make compensation for the right so in- jured. Kalama Electric Light & P. Co. v. Kalama Driving Co. 22: 641, 94 Pac. 469, 48 Wash. 612. 241. An amendment to a statute provid- ing for removal of milldams in the course of improving a living stream of water, that, if the mill has become useless or has been destroyed and has so remained for a period of five years without attempt to repair or rebuild it, it shall be deemed abandoned, and the commissioners may, without bar- gain or compensation, cause such milldam to be removed, is an attempt to authorize the taking of private property for public benefit without compensation and therefore void. Kiser v. Board of County Comrs. 39: 1029, 97 N. E. 52, 85 Ohio St. 129. 242. A corporation seeking, by right of eminent domain, the right to erect a dam in a stream which will flood a rapid which might be converted into water power, must make compensation for the value of the power, to be distributed among the owners, of the several portions of the rapid, al- though the entire fall of the stream is so apportioned among the owners that all would have to unite to make the power available. Rankin v. Harrisonburg, 3: 919, 52 S. E. 555, 104 Va. 524. 243. Federal and state authority to a railroad company to construct a draw- bridge to carry its tracks over tidal naviga- ble water does not authorize it to interfere, without making compensation therefor, with the use by an adjoining riparian own- er of a wharf which he has constructed out to the line of navigable water, after having secured from the state a grant of the tide land necessary to enable him to do so, where the wharf interferes with no harbor regu- lations. Northern P. R. Co. v. S. E. Slade Lumber Co. 34: 423, H2 Pac. 240, 61 Wash. 195. (Annotated) 244. A drainage district which constructs a levee along a river and from the river to the highlands, in such a way as to obstruct the natural flow of the flood water of the river and cast it back on property farther up the stream, is liable for the injury there- by caused, where the Constitution provides that private property shall not be taken or damaged for public use without compen- 1026 EMINENT DOMAIN, III. c, 2, d. sation. Bradbury v. Viuidalia Levee & Drainage Dist. 19: 991, 86 N. E. 163, 236 111. 36. (Annotated) For land taken by highway. 245. Additional compensation to the abut- ting owner is not required, in case a street is laid out to high-water mark on the sea- shore, to entitle the public to follow the shore as it recedes by accretions, although the fee of the accretions vests in him. State v. Yates, 22: 592, 71 Atl. 1018, 104 Me. 300. 2. To tt'Tiom the compensation must be paiil. (See also same heading in Digest L.R.A. 1-10.) Effect of deed of land to convey right to damages for right of way appropriated, see DEEDS, 47. Instructions as to, see TRIAL, 996. 246. The one owning the abutting prop- erty at the time an interurban electric rail- way company begins to make wrongful use of street-car tracks in the street, and at the time of the passage of a statute author- izing condemnation of a right to make such use, but who sells his interest prior to the institution of condemnation proceedings, is not entitled to the damages awarded in such proceedings; but they belong to the one owning the property when the proceedings were instituted. Brickies v. Milwaukee Light, H. & Traction Co. 14: 644, 114 N. W. 810, 134 Wis. 358. 247. A mere grantee of real estate after the appropriation of a right of way across it has no right to file exceptions to the "amount awarded as damages therefor. Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. R. Co. 16: 537, 83 N. E. 665, 170 Ind 49. 248. The owner of land condemned for public use at the time the instrument of appropriation is filed, and not one taking a conveyance thereof prior to publication of notice for assessment of the damages, is en- titled to the compensation, under a statute providing for the appropriation of land needed for public use which declares that the corporation shall deposit the description of the rights and interests intended to be appropriated, and such land shall belong to such corporation by making or tendering payment, although provision is also made for assessing damages in case of disagree- ment of the parties. Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. R. Co. 16: 537, 83 N. E. 665, 170 Ind. 49. ( Annotated ) Tenants. Right of tenant to value of trade fixtures attached to property taken for public use, see LANDLORD AND TENANT, 124. 249. The basis adopted, in a proceeding to secure property for public use by right of eminent domain, for ascertaining the value of property to be taken, must be pre- served in dividing the fund so produced be- tween the property owner arid a tenant: in Digest 1-52 L.R.A.(N.S.) possession for an unexpired term. Re Im- provement of Water Front, 18: 423, 84 N. E. 1105, 192 N. Y. 295. 250. A lessee of a water power who places a mill on the stream with intent to utilize the power, and is compelled to aban- don it because of the pollution of the stream, by the discharge therein of the sewage of a city, is entitled to damages to the extent of his leasehold interest against the municipality guilty of the pollution. McLaughlin v. Hope, 47: 137, 155 S. W. 010, 107 Ark. 442. j&eversioners. 251. A grantor of property to a religious society in fee, upon condition that it be occupied by a house for public worship, upon failure to do which the property is to revert to the grantor, is not entitled to damages in case the property is taken for public use by eminent domain under a stat- ute by which only the right of use may be taken, whether the conveyance is regarded as in trust for the grantor, as a determina- ble fee, or as a grant upon condition, with right to re-enter for condition broken, since the religious society being entitled to the use, and the use being all that is taken, it alone is entitled to the compensation. Ly- ford v. Laconia, 22: 1062, 72 Atl. 1085, 75 N. H. 220. (Annotated) d. Payment or security; taking sion of property. (See also same heading in Digest L.R.A 1-10.) 252. Payment of the damages is not a pre- requisite to the entry by a municipal cor- poration upon property which it has con- demned for highway purposes. State v Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. 253. Refusal to recognize proceedings un- der a municipal resolution for the con- demnation of land for a highway, and ap- pealing therefrom to the courts, will not de- lay the opening of the street until the ap- peal is determined. State v. Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. (Annotated) 254. An appeal from the appraisal of damages does not postpone the right of a municipal corporation to enter upon land condemned for highway purposes, under a statute providing that the report of the ap- praisers shall lie in the mayor's office for ten days for inspection, and, if not appealed from, "the land shall stand condemned." State v. Jones, 2: 313, 52 S. E. 240, 139 N. C. 613. (Annotated) 255. On the vacation of a street by ac- tion of a city council, one from whom no property is actually taken, but who sus- tains consequential damages in that hia property is left fronting on a cul-de-sac, whereby his right of ingress and egress is cut off in that direction, is not entitled to have his damages ascertained and paid as a condition precedent to the right of the city to vacate the street ; but his constitu- tional rights are fully protected by the lia- bility of the municipality to respond in ;.?.**.. A. H..I 6~ EMINENT DOMAIN, III. e, 1, 2. 1027 damages. Vanderburgh v. Minneapolis, 6: 741, 108 N. W. 480, 98 Minn. 329. 256. A statute authorizing a corporation seeking to take land under eminent domain proceedings to take possession of the land upon the tiling of a bond with good and suf- ficient securities approved by the court, is not a violation of a constitutional prohi- bition against taking private property with- out just compensation paid or secured to be paid. Carnegie Natural Gas Co. v. Swi- ger, 46: 1073, 79 S. E. 3, 72 W. Va. 557. Right to take possession without payment. Constitutionality of statute as to, see CON- STITUTIONAL, LAW, 553. e. Consequential injuries. 1. In general. (See also same heading in Digest L.R.A. 1-10.) 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 constitutes an additional servi- tude, see infra, IV. As element of damages, see DAMAGES, III. 1, 3. Right of railroad company to damages for consequential injuries resulting from laying out of highway across its tracks, see RAILROADS, 40. Instruction as to right to recover for con- sequential injuries, see TRIAL, 995. 257. A statute requiring compensation to be made for injuries to adjacent property not taken by corporations exercising the right of eminent domain is within the le- gitimate scope of legislative power, where the Constitution forbids the legislature to enact any law whereby private property shall be taken or damaged for public pur- poses without just compensation. Tide- water R. Co. v. Shartzer, 17: 1053, 59 S. E. 407, 107 Va. 562. 258. Loss through diminution in the value of property for residence purposes because of the location of a cemetery near it is not within the meaning of a constitutional pro- vision requiring compensation in case prop- erty is damaged for public use. Lambert v. Norfolk, 17: 1061, 61 S. E. 776, 108 Va. 259. 259. The owner of a farm, a part of which is permanently flooded by a government dam, must be compensated, in addition to the value of the land taken, for the lessened value of the farm, caused by the consequent cutting off of a private way across the lands of others, which is the only practica- ble outlet from the farm to the county road. United States v. Welch, 28: 385, 30 Sup. Ct. Rep. 527, 217 U. S. 333, 54 L. ed. 787. (Annotated) 260. Just compensation to the owner of a farm, a part of which is taken by the United States by permanently flooding it in Digest 1-52 L.R.A.(N.S.)" improving navigation, as an incident to which a public highway crossing the flooded land is also flooded, demands an award of the damages to that part of the farm not taken, by reason of the destruction of the easement of access to the turnpike by way of the highway thus destroyed. United States v. Grizzard, 31: 1135, 31 Sup. Ct. Rep. 162, 219 U. S. 180, 55 L. ed. 165. Injury to business. See DAMAGES, 555, 556. 2. By construction and operation of railroad. (See also same headimg in Digest L.R.A. 1-10.) As to railroad in street, see infra, 274, 275. Statute making railroad liable for conse- quential injuries, see CONSTITUTIONAL LAW, 400. Measure of damages for, see DAMAGES, 543. 545-549, 554, 556. Setting off special benefits, see DAMAGES. 580-589. . See also NUISANCES, 7, 30-32, 61, 62, 76, 92, 93, 97, 114-118, 123, 127, 132, 187, 196, 197. 261. A property owner is not entitled to damages for every inconvenience or discom- fort caused by the operation of a railroad near his property, even though it may be material or considerable; but he can recover only where the usable and rental or per- manent value of his property is injured. Louisville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. 262. Discomfort to the owner of a resi- dence located near a railroad track, which is caused solely by the growth and increase of travel and traffic, gives him no right of action against the company. Louisville & N. Terminal Co. v. Lellyett, i : 49, 85 S. W. 881, 114 Tenn. 368. 263. The destruction by the elevation of railroad tracks, of a switch connecting neighboring property with the railroad, which the railroad company is under no obligation, contractual or otherwise, to maintain, is not within the operation of a constitutional provision requiring compen- sation for property damaged by public use. Otis Elevator Co. v. Chicago, 52: 192, 105 N. E. 338, 263 111. 419. (Annotated) Obstructing access to street. Obstructing access by changing street grade, see infra, 283. 264. Compensation must be made for diminution in value of business property by the raising of the grade of a railroad track across the street, which, by the com- plete obstruction of travel pending the work, which is unduly prolonged, and by causing permanent difficulty of access, diverts cus- tomers from the property, where the Con- stitution requires compensation to be made for property damaged for public use, al- though the obstruction is not within the block where the injured property is located. 1028 EMINENT DOMAIN, III. e, 3, 4. Powell v. Houston & T. C. R. Co. 46: 615, 135 S. W. 1153, 104 Tex. 219. (Annotated) Noise, smoke, etc. See also infra, 271-273; NUISANCES, 32, 93, ]23, 187, 195. 265. The noise from the operation of trains may be considered as an element of damages for taking a portion of the prop- erty of a college for railroad purposes, where it would constitute a private nuis- ance to the college, and depreciate the value of the remaining property for the use to which it had been appropriated. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. (Annotated) 266. A railroad company ia liable for a private nuisance imposed upon an adjacent landowner by a switchyard located chiefly for the handling of grain shipments, al- though the location of the facility is prop- er and the operation thereof duly careful, under a Constitution providing that com- pensation must be paid for damaging or destroying private property for public use. Matthias v. Minneapolis, St. P. & S. Ste. M. R. Co. 51: 1017, 146 N. W. 353, 125 Minn. 224. 267. A railroad company acting under the power of eminent domain is not, although the Constitution forbids damaging prop- erty for public use without compensation, liable for diminution in value of property near which it locates its tracks and depot grounds, because of the smoke, dust, noise, and trembling of the earth due to the prop- er management of the road. Hyde v. Minn- esota, D. & P. R. Co. 40: 48, 136 N. W. 92, 29 S. D. 220. (Annotated) 268. Damages for diminution in the mar- ket value of property, not taken, by smoke, noise, dust, and cinders arising from the proper, ordinary, and lawful operation of a railroad seeking a right of way, may be allowed the owner under provisions of a Constitution that the legislature shall not enact any law whereby private property shall be taken or damaged for public pur- poses without just compensation, and of a statute that damages shall be awarded which result from injuries to the property of any person from the construction and op- eration of the works. Tidewater R. Co. v. Shartzer, 17: 1053, 59 S. E. 407, 107 Va. 562. (Annotated) 3. As to water or ivater rights; sewage. (See also same heading in Digest L.R.A. 1-10.) 269. The damages awarded for condem- nation of a right of way for railway pur- poses include compensation for injury to wells and springs necessarily resulting from the excavations incidental to the construc- tion of the roadbed. Cleveland, C. C. & St. L. R. Co. v. Hadley, 45: 796, 101 N. E. 473, 179 Ind. 429. Digest 1-52 L.R.A.(N.S.) 4. As to streets or Highways. (See also same heading in Digest L.R.A. 1-10.) Damages for, see DAMAGES, III. 1. 5. Consequential injuries from changing street grade, see HIGHWAYS, III. Establishment of. Setting off advantages from, see DAMAGES, 578. See also supra, 217. Railroad in. Measure of damages for, see DAMAGES, III. 1, 4, a. Right to use street for railroad purposes as against abutting owner generally, see HIGHWAYS, 96-101. Electric railway in. As additional servitude, see infra, 303-309. Measure of damages for, see DAMAGES, III. 1, 4, a. 270. An abutting property owner is not within the operation of constitutional pro- visions requiring compensation for injuries or actual damages to his property by the construction or enlargement of the works of a public utility in a street, so as to be en- titled to compensation for the doubling of a single track electric railway in the street, because the loading of wagons at the curb in front of his property is thereby made more inconvenient. Birmingham R. Light & Power Co. v. Smyer, 47: 597, 61 So. 354, 181 Ala. 121. 271. A property owner is not, under a Constitution requiring compensation for damaging property for public use, entitled to compensation for annoyance and incon- venience by the operation of a street t;ar line in front of his property in such a man- ner as to disturb sleep, prevent occupation of the dwelling with any degree of comfort, and prevent conversation on the veranda in an ordinary tone of voice, although the market value of the property is depreciated thereby. Harrison v. Denver City Tramway Co. 44: 1164, 131 Pac. 409, 54 Colo. 593. 272. That the noise made by street cars in passing around a curve at a street corner is annoying, that alarm signals are more fre- quent there than at other places, and that the tracks are laid closer to the curb so that no space for vehicles is left between the cars and the curb, do not make the injury to the owner of the abutting property dif- ferent in kind from that suffered by owners of property passed by the cars at other places, so as to give him a right of action for the injury. Harrison v. Denver City Tramway Co.' 44: 1164, 131 Pac. 409, 54 Colo. 593. 273. The damages to be awarded for the construction of a street railway in the street, the fee of which is in the abutting owner, may include compensation for in- juries to his property due to noise and vibration resulting fiom the operation of the cars. Rasch v. Nassau Electric R. Co. 36: 645, 91 N. E. 785, 198 N. Y. 385. Elevated railroad in. Measure of damages, see DAMAGES, III. 1, 41 , b. EMINENT DOMAIN, 111. e, 4. 1029 Subway in. Necessity of making compensation, see su- pra, 209. As additional servitude, see infra, 302. Setting off benefits from, see DAMAGES, 581. 274. Injury to abutting property by shafts driven into a street to connect with a sub- way which a municipal corporation is con- structing in its proprietary capacity, un- der legislative authority, for rapid transit purposes, and which are necessary to such construction, must be paid for by the city. Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. 275. Statutory authority to a municipal corporation which undertakes to construct a subway beneath its streets for rapid tran- sit purposes, to condemn the easements of abutting owners, entitles the owner of land abutting on the street, who does not own the fee therein, to compensation for an in- jury done to his building by the forcible driving of the tunnel through the soil so as to interfere with its lateral support. Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. Establishment or change of grade. Measure of damages for, see DAMAGES, 571- 574. Setting off benefits from, against damages, see DAMAGES, 579, 590. Interest on claim against municipality for consequential injuries, see INTEREST, 23. 276. A municipal corporation which, in grading or in changing the grading of a street, damages abutting property, is liable to the owner therefor, under La. Const. 1898, art. 167, providing that property shall not be taken or damaged for public purposes with- out just and adequate compensation. Man- ning v. Shreveport, 13: 452, 44 So. 882, 119 La. 1044. 277. The owner of improved property which will be damaged by a proposed change in the grade of the street on which it abuts has an inchoate right to recover damages upon the adoption of the grade by the municipality, which right will be- come perfect when the damage is actually inflicted. Manning v. Shreveport, 13: 452, 44 So. 882, 119 La. 1044. 278. An abutting lot owner is entitled, under Minn. Const, art. 1, 13, as amended in 1896, providing that private property shall not be taken or damaged for public use without just compensation first paid or se- cured, to recover compensation for injuries occasioned to his property by reason of the first establishment of a street grade by the municipality, and the improvement of the streets in conformity therewith. Sallden v. Little Falls, 13: 793, 113 N. W. 884, 102 Minn. 358. 279. Under La. Const. 1898, art. 167, a municipal corporation is responsible for damage to private property resulting from the initial grading of a street, as well as from a change of the established grade. Manning v. Rhreveport, 13:452, 44 So. 882, 119 La. 1044. 280. If the owner of an unimproved lot Digest 1-52 L.R.A.(N.S.) places valuable improvements upon it after the adoption by the city of a change in the grade of the street, whereby the premises will be damaged, he is not entitled to re- cover for the injury inflicted upon the prop- erty when the change of grade is made. Manning v. Shreveport, 13: 452, 44 So. 882, 119 La. 1044. 281. A constitutional provision that prop- erty shall not be damaged for public use without compensation applies to injuries to a house by change of a street grade after the Constitution is adopted, although the house was erected before such adoption. Kimball v. Salt Lake City, 10: 483, 90 Pac. 395, 32 Utah, 253. 282. That the grade of a street estab- lished at the time of the improvement of abutting property was merely on paper does not entitle the city to establish and bring the street to another grade to the injury of such property, under a constitutional pro- vision that property shall not be damaged without compensation and a statute provid- ing that cities shall be liable for conse- quential damages to property in case the es- tablished grade is changed after improve- ment has been made upon the property in conformity to a prior established grade. Kimball v. Salt Lake City, 10: 483, 90 Pac 395, 32 Utah, 253. 283. Damages must be paid for injury to abutting property by the change of a street grade, which is direct and peculiar to such property, and not such as are shared by the public generally, under a Constitu- tion requiring compensation for property taken or damaged for public use. Dicker- son v. Okolona, 36: 1194, 135 S. W. 863, 98 Ark. 206. (Annotated) Vacating or obstructing. Measure of damages for, see DAMAGES, 562- 564. Liability for damages from vacating remote part of highway, see HIGHWAYS, 411. 284. The right to compensation for dim- inution of value of property by diverting travel therefrom, because of the obstruction of a street not within the block, is not de- feated by the fact that other property with- in the block is injured in the same way, since this injury is different from that suf- fered by the public at large. Powell v. Houston & T. C. R. Co. 46: 615, 135 S. W. 1153, 104 Tex. 219. 285. Constitutional liability to make compensation for damaging property for public use does not extend to the loss of rental value of property abutting on a highway, because of the occupation of the street with towers and power houses nec- essary for the removal of a condemned bridge which carries the street across a river, and the construction of a new one, although access to the property is tempo- rarily interfered with by such structures. Stern v. Spokane, 46: 620, 131 Pac. 476, 73 Wash. 118. (Annotated) 286. Compensation cannot be allowed to a church congregation for loss of members by the closing at a railroad crossing in another block, of one of the streets upon 1030 EMINENT DOMAIN, IV. a, b, 1. which the church is located, thereby mak- ing access to it from that direction more diilicult, under constitutional and statutory provisions that private property shall not be allowed to be taken for public use without compensation, and directing the authorities to provide for ascertaining the injury for which property owners ought to be compen- sated. German Evangelical Lutheran St. L. Congregation v. Baltimore, 52: 889, 90 Atl. 983, 123 Md. 142. (Annotated) IV. Additional servitude, a. In general; on railroad way. (See also same heading in Digest L.R.A. 1-10.) As to what constitutes a taking, see supra, III. b. As to necessity of making compensation generally, see supra, III. c, 1. As to consequential injuries from taking, see supra, III. e. ft. On highway. 1. In general. (See also same heading in Digest L.R.A. 1-10.) As a taking, see supra, III. b, 2. 287. A sidewalk constructed outside the traveled way for teams, but within the boundaries of the road, does not constitute an additional burden added to the easement possessed by the public in the land over which the road passes. Hitchcock v. Zink, 13: 1 1 10, 113 N. W. 795, 80 Neb. 29. 288. A county board of supervisors hav- ing statutory power to grant franchises over and along the public roads and highways for all lawful purposes cannot, where the public has only an easement in the high- way, authorize a power and electric com- pany to construct a power line along the highway for commercial purposes, without compensation to the owner of the fee. Gurnsey v. Northern California Power Co. 36: 185, 117 Pac. 906, 160 Cal. 699. (Annotated) 289. Maintenance, under authority of a municipality, by an electric railway com- pany of a line of poles and wires along a city street upon which it has no tracks, to supply power for the operation of cars upon other streets within the city, is not an additional servitude, for which compen- sation must be made to the abutting prop- erty owners. Brandt v. Spokane & I. E. R. Co. 52: 760, 138 Pac. 871, 78 Wash. 214. (Annotated) 290. The fact that a portion of electric power conveyed along a city street is used for the operation of suburban cars does not render such use of the street an additional burden, if the occupancy of the street is the same as if the power were applied only Digest 1-52 I^R.A.(N.S.) to the operation of a city railway. Brandt v. Spokane & I. E. R. Co. 52: 760, 138 Pac. 871, 78 Wash. 214. Telegraphs and telephones. 291. The provisions of U. S. Rev. Stat. 5263-5268 (U. S. Comp. Stat. 1901, pp. 3579-3581), authorizing the construction of telegraph lines along "post roads" upon compliance with certain conditions, do not affect the right of an abutting landowner to compensation for the burden imposed upon the fee by the erection of a line upon a rural highway, which is a post road. Cos- griff v. Tri-State Teleph. & Teleg. Co. 5: 1142, 107 N. W. 525, 15 N. D. 210. 292. Poles and wires strung along a city street to facilitate communication between inhabitants of the city by telephone do not constitute an additional burden on the fee, for which compensation must be made the owners. Frazier v. East Tennessee Teleph. Co. 3: 323, 90 S. W. 620, 115 Tenn. 416. ( Annotated ) 293. The construction and operation of a telegraph and telephone line upon a rural highway is not a highway use, within thv purpose of the original dedication of the highway, but is a new use, and constitutes an additional servitude upon the fee of the abutting owner, for which he is entitled to compensation. Cosgriff v. Tri-State Teleph. & Teleg. Co. 5: 1142, 107 N. W. 525, 15 N. D. 210. 294. The poles and wires of a long-dis- tance telephone strung along a public road do not constitute an additional burden which will entitle the fee owner to compensation, unless he shows that there will be an actual and substantial injury to his property. Hobbs v. Long Distance Teleph. & Teleg. Co. 7: 87, 41 So. 1003, 147 Ala. 393. ( Annotated ) 295. The poles and wires of a local tele- phone company constitute an additional serv- itude upon a street the fee of which is in the abutting owner. De Kalb County Tel- eph. Co. v. Dutton, 10: 1057, 81 N. E. 838, 228 111. 178. 296. The use of the poles of a telephone company by a municipal corporation for a fire-alarm and police-signal system does not prevent them from being an additional ser- vitude on the fee. De Kalb County Teleph. Co. v. Dutton, 10 : 1057, 81 N. E. 838, 228 111. 178. Subway. Consequential injuries, see supra, 274, 275. See also infra, 302. Gas pipes. 297. A pipe line for the transportation of gas is not an additional servitude on a public highway for which the abutting own- ers are entitled to compensation, although the gas is to be transported through the municipality, and is not intended for the use of its citizens. Cheney v. Barker, 16: 436, 84 N. E. 492, 198 Mass. 356. 298. A pipe line, laid in a public rural highway under proper authority, and used for supplying the public with natural gas for heating and illuminating purposes, though imposing an additional public serv- EMINENT DOMAIN, IV. b, 2 EMPLOYEES' INDEMNITY ACT. 1031 ice upon the road, is not a use in excess of the right of the public in such road, and does aot impose an additional burden upon the estate in fee in the land. Hardman v. Cabot, 7: 506, 55 S. E. 756, 60 W. Va. 6G4. (Annotated) 299. The mains of a private gas com- pany cannot be laid in a country highway without additional compensation to the owner of the fee, although their purpose is to supply gas to the public. Strother v. Calor Oil & Gas Co. n: 727, 103 S. W. 309, 133 Ky. 614. Water pipes. 300. The laying of water mains in a coun- try highway the fee of which is in an abut- ting owner, not for the purpose of supplying its residents with water, but to furnish con- nection with other pipes, is, although the location is adjacent to a well-settled com- munity, an additional servitude which can- not be authorized without making compen- sation to the owner. Baltimore County Water & Electric Co. v. Dubreuil, 9: 684, 66 Atl. 439, 105 Md. 424. 2. Railways of various Tcinds. (See also same heading in Digest L.R.A. 1-10.) 301. A narrow-gauge railroad operated exclusively within the limits of a city by power other than steam directly applied, to carry ore from a mine and supplies to it, which is located so as to conform to the grade of a street, is not an additional burden thereon which will entitle an abut- ting owner to compensation for its con- struction. Kipp v. Davis-Daly Copper Co. '36:666, 110 Pac. 237, 41 Mont. 509. ( Annotated ) Sub-way. Consequental injuries, see supra, 274, 275. 302. A subway for rapid transit by the use of trains, for accommodation on which fare must be paid, constructed by a munici- pal corporation under a street the fee of which is in the abutting owner, is an ad- ditional burden which entitles such owner to compensation. Re Board of Rapid Tran- sit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. (Annotated) Street railway. As a taking of property, see supra, 193-197. See also supra, 230. 303. A street railway is an additional burden on the fee of a street, for which compensation must be made the abutting owner. Rasch v. Nassau Electric R. Co. 36: 645, 91 N. E. 785, 198 N. Y. 385. (Annotated) 304. The mere fact that an electric rail- way is constructed in a public street with T-rails, and that its cars are operated by the use of wires and poles, does not show that it is an additional servitude on the highway. Cad well v. Connecticut Co. 40: 253, 83 Atl. 215, 85 Conn. 401. 305. A constitutional provision that no law shall be passed whereby private prop- Digest 1-52 L.R.A.(N.S.j erty shall be taken or damaged for public use without just compensation does not change the rule that construction of an elec- tric railway track in a public street is not an additional servitude, entitling the abut- ting owner to compensation. Wagner v. Bristol Belt Line R. Co. 25: 1278, 62 S. E. 391, 108 Va. 594. 306. An abutting owner cannot enjoin the doubling by municipal authority of a single track electric railway in a street, 34 feet wide, as a nuisance or an additional burden on the fee. Birmingham R. Light & Power Co. v. Smyer, 47: 597, 61 So. 354, 181 Ala. 121. Interurban railway. Consequential injuries from, see supra, 270- 273. See also supra, 289, 290. 307. An interurban electric street rail- road when attempting to acquire the rights of abutting owners in the highway, is upon the same plane with commercial railroads generally. Abbott v. Milwaukee Light, H. & T. Co. 4: 202, 106 N. W. 523, 126 Wis. 634. ( Annotated ) 308. The running upon an interurban elec- tric railway constructed in a public street, of cars designed to carry property only, which run from terminus to terminus with- out stopping to receive and discharge con- tents, and discharging such contents at the two termini only, impose an additional serv- itude on the fee. Cadwell v. Connecticut Co. 40: 253, 83 Atl. 215, 85 Conn. 401. " (Annotated) 309. The laying of a second track in a street for street-railway purposes by an in- terurban railway company, under a street- railway franchise, authorizing a double track, is not an additional burden entitling an abutting owner to compensation. Brick- ies v. Milwaukee Light, H. & Traction Co. 14: 644, 114 N. W. 810, 134 Wis. 358. Elevated railroads. As a taking of property, see supra, 192. Increase of traffic. 310. Mere increase of traffic and opera- tion of a larger number of trains upon tracks laid in a public street is not a new burden which will give a right of action against the purchaser from the one origin- ally constructing the road, under whose management the increase occurs. Hanne- gan v. Denver & S. F. R. Co. 16: 874, 95 Pac. 343, 43 Colo. 122. EMPLOYEE. Rights, duties, and liabilities of, generally, see MASTER AND SERVANT. EMPLOYEES' INDEMNITY ACT. Constitutionality of, see CONSTITUTIONAL LAW, 71, 135, 316-320, 467-469, 574, 722, 780, 811; COURTS, 103; JUBT, 45, 46; TAXKS, 7, 41. 1032 EMPLOYERS' U ABILITY END OF WILL. Injunction against employer's accepting benefits of, see INJUNCTION, 7. EMPLOYERS' LIABILITY. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 71, 135, 316-320, 467-473. Police power as to, see CONSTITUTIONAL LAW, 721-723. Insurance against, see ESTOPPEL, 90; IN- SURANCE, 916-935. In general, see MASTER AND SERVANT, II. Statute as to, generally, see MASTER AND SERVANT, II. e, 4. Notice of claim under fellow-servant act, see NOTICE, 62. EMPLOYERS' LIABILITY ACT. Forbidding removal of suit under, see CON- STITUTIONAL LAW, 548. Constitutionality of, see CONSTITUTIONAL LAW, 574, 780. Jurisdiction of action to enforce rights un- der, see COURTS, 210-212. Injunction to restrain prosecution of suits under, see INJUNCTION, 248. Liability under, for injury to employee, see MASTER AND SERVANT, II. Retroactive effect of, see STATUTES, 317. EMPLOYMENT. Right of action for unjustifiable interfer- ence with, see CASE, 34-43. Duty of employer to furnish, see MASTER AND SERVANT, 2. In general, see MASTER AND SERVANT. EMPLOYMENT AGENCY. Police power as to, see CONSTITUTIONAL LAW, 705, 706. Requiring license to conduct, see CONSTITU- TIONAL LAW, 706. ENACTMENT. Of statutes, see STATUTES, I. a. ENCOURAGEMENT. Of another to commit assault, see ASSAULT AND BATTERY, 21. Digest 1-52 L.R.A.(N.S.) ENCROACHMENT. On neighboring property through mistake, see ADVERSE POSSESSION, 14; ESTOP- . PEL, 113. Injunction to compel removal of wall en- croaching on adjoining land, see IN- JUNCTION, 22, 34. Effect on liability for, of letting duty of laying building to independent contract- or, see MASTER AND SERVANT, 1012. 1. No mutual mistake as to boundary line which will prevent a landowner from securing the removal of a building placed upon his property by an adjoining land- owner is shown, where, being called to view the intended location, he is misled as to the true line by the agent of the building owner, and consents to the location upon the express condition that the building be not placed on his land. Kershishian v. Johnson, 36: 402, 96 N. E. 56, 210 Mass. 135. ENCUMBRANCES. What fund chargeable with costs of sale when encumbered property is sold in bankruptcy free of liens, see BANKRUPT- CY, 30. Covenants against, see COVENANTS AND CON- DITIONS, II. b; DAMAGES, 708. Perpetual easement for railroad right of way as, see DEEDS, 42. What constitutes encumbrance within stat- ute requiring joinder or consent of spouse, see HUSBAND AND WIFE, 113. Of wife's separate property, see HUSBAND" AND WIFE, 113. On insured property, see INSURANCE, III. e, 1, b. Right of life tenant who satisfies encum- brance upon estate, see LIFE TENANTS, 29. Conveyance of property subject to, see MORT- GAGES, III. As making title unmarketable or defective, see VENDOR AND PURCHASER, 32, 33, 52-55. Right of devisee to removal of, see WILLS, 342. ENCYCLOPEDIA. Copyright of articles therein, see COPT- BIGHT, 7, 8. END OF WILL. Signature of testator at, see WILLS, 25-31. ENDOWMENT POLICY ENTOMOLOGICAL COMMISSION. 1033 ENDOWMENT POLICY. Assignment of, by bankrupt to his wife, see INSURANCE, 450. Rights of divorced wife in, see INSURANCE, 829. ENFORCEMENT. Of chattel mortgage, see CHATTEL MORT- GAGE, VI. Of contracts, see CONTRACTS, VI. Of public improvement assessment, see PUB- LIC IMPROVEMENTS, III. f. ENGINE. Rights of persons riding on, with permission of engineer, see CARRIERS, 74, 76. Statutory prohibition against riding on, see CARRIERS, 75. Assumption of risk by person riding on, see CARRIERS, 339. Forbidding jumping on or off of, while in motion, see CARRIERS, 992, 993. Evidence as to practicability of guarding, see EVIDENCE, 1778. Liability for fright of horse by use of road engine on highway, see HIGHWAYS, 284. Injury to servant by defects in or wreck- ing of, see MASTER AND SERVANT, 416, 418, 503, 538, 684; NOTICE, 11. Fright of horse by, see NEGLIGENCE, 20. Breach of warranty on sale of, see DAM- AGES, 197, 198, 696; SALE, 170-172. Acceptance of engine by purchaser, see SALE, 56, 65. ENGINEER. Collusiveness of decision of, see CONTRACTS, 681-685. Damages for negligent injury to engineer's transit, see DAMAGES, 449. Admissibility in evidence of opinions of, see EVIDENCE, 1073. Master's liability for injury to, see MASTER AND SERVANT, II. a, 4, d. As fellow servant, see MASTER AND SERV- ANT, 841. Liability of locomotive engineer to his fire- man for injury resulting from his neg- ligence, see MASTER AND SERVANT, 1056; PLEADING, 313. Contributory negligence of, see MASTER AND SERVANT, II. c. Question for jury as to proximate cause of injuries to, see TRIAL, 180. Assumption of risk by, as question for jury, see TRIAL, 535. Digest 1-52 L.R.A.(N.S.) ENGINEERING QUESTION. Proper throw necessary for split switch as, see MASTER AND SERVANT, 402. Setting crooked trolley pole nearer track than others as, see MASTER AND SERV- ANT, 405. ENGLAND. Adoption of common law from, see COM- MON LAW. ENROLLED BILL. Conclusiveness of, see STATUTES, 84, ENTERTAINMENTS. See AMUSEMENTS; BATHING EESORTS; EX- HIBITIONS; HORSE RACE; THEATER. ENTICING. Of infants, see ABDUCTION AND KIDNAPPING ; DAMAGES, 313, 314; EVIDENCE, 2422; HUSBAND AND WIFE, 172; PARENT AND CHILD, 10. Of married woman, see HUSBAND AND WIFE, 158, 159; TRIAL, 104, 623. Of servant, see MASTER AND SERVANT, 124, 125; PARTIES, 192; PLEADING, 403. ENTIRETIES. Estate by, see HUSBAND AND WIFE, II. b. ENTIRETY. Of contract, see CONTRACTS, II. b; INSUR- ANCE, III. e, 1, f. ENTIRE WRITING. Putting of, in evidence, see EVIDENCE, IV. t. - + * ENTITLING. Of statute, see STATUTES, I. e. ENTOMOLOGICAL COMMISSION. Delegation of power to, see CONSTITUTIONAL LAW, 98. 1034 Validity of statute providing for t creation of, see CONSTITUTIONAL LAW, '383, 588, 614, 651. Charging against owner expense incurred in treating plant and insect diseases, see TAXES, 6. ENTRAPMENT EQUITABLE CONVERSION. EQUAL PRIVILEGES. See CONSTITUTIONAL LAW, II. a. ENTRAPMENT. As defense to criminal prosecution, see CRIM- INAL LAW. I. f. ''" ENTRY. In docket, sufficiency of, see APPEAL AND ERBOB, 151. In books of account as evidence, see EVI- DENCE, IV. j. In surveyor's field book as evidence, see EVIDENCE, 856. In private diary, admissibility in evidence, see EVIDENCE, 864. Of judgment, see JUDGMENT, I. f. Burglarious entry, see BURGLARY. Of imported merchandise, see DUTIES. Forcible entry, see FORCIBLE ENTBY AND DETAINER. On mining claim which is excessive through mistake, see MINES, 12. On public lands, see PUBLIC LANDS, I. b. Right to re-enter for condition broken as passing by will, see WILLS, 192. ENVELOPS. Larceny of stamped envelops, see LABCENY, 8. EPILEPSY. Judicial notice as to, see EVIDENCE, 43. Proof of, as establishing insanity, see EVI- DENCE, 2221. Validity of marriage of epileptic, see MAB- RIAGE, 12, 13, 32, 33. Question for jury as to, see TRIAL, 240. EQUALITY. Of immunities, privileges and protection, see CONSTITUTIONAL LAW, II. a. Of license tax, see LICENSE, II. d. In taxation, see TAXES, I. c. Of income tax, see TAXES, VI. b. As to water rates, see WATERS, 422-424. EQUALIZATION. Of tax assessment, see TAXES, 197-199. Digest 1-52 L.R.A.(N.S-) EQUAL PROTECTION. See CONSTITUTIONAL LAW, II. a. EQUIPMENT. Duty of carrier to provide sufficient equip- ment, see CARRIERS, 768, 863, 864. State regulii.ion of carrier's equipment, see CARRIERS, 986, 987. EQUITABLE ASSIGNMENT. See ASSIGNMENT, II. EQUITABLE CLAIMS. Proof of, as against bankrupt's estate, see BANKRUPTCY, 125. EQUITABLE CONVERSION. By election to exercise option to buy real estate, see ATTACHMENT, 38. Of property held in trust, see TRUSTS, 87, 92. By will, see WILLS, III. j. See also TAXES, 347, 356. 1. Equity never enforces the doctrine of equitable conversion for the benefit of cred- itors. Painter v. Painter, 20: 117, 69 Atl. 323, 220 Pa. 82. 2. To reconvert into land money aris- ing from land which was by the terms of a will converted into personalty, all the dev- isees must concur. Starr v. Willoughby, a: 623, 75 N. E. 1029, 218 111. 485. 3. A contract reading, "I have sold" my property for a certain price to a certain person, who has paid a sum to be forfeited provided the remainder of the purchase price is not paid before a certain future date, and providing that, upon such payment, a war- ranty deed will be made, does not amount to a sale, so as to constitute an equitable conversion and prevent the attachment of the land for a debt of an heir of the grant- or after his decease. Sheehy v. Scott, 4: 365, 104 N. W. 1139, 128 Iowa, 551. 4. The confirmation of a bid for real es- tate sold by the orphans' court does not convert into real estate personal property of the bidder, although all of it is necessary to satisfy the bid, so that his estate will de- scend as realty in case he dies before pay- ing the amount due. and another is procured EQUITABLE ESTATE EQUITY. 1035 to take his place. Re Brennan, 16: 859, 69 Atl. 678, 220 Pa. 232. (Annotated) 5. The surplus arising from a foreclo- sure sale of decedent's real estate after his death is not to be regarded as personalty within the operation of a statute allowing the widow and minor children a certain sum out of personalty left by him. Kitchens v. Jones, 19: 723, 113 S. W. 29, 87 Ark. 502. (Annotated) EQUITABLE ESTATE. Oral contract for sale of, see CONTRACTS, 249. EQUITABLE ESTOPPEL. See ESTOPPEL, III. EQUITABLE LIEN. Agreement for support in consideration of conveyance as basis for equitable lien, see CONTRACTS, 769. *-~ EQUITABLE MORTGAGE. See MORTAGE, 8-12, 79, 87. -*--* EQUITABLE TITLE. Sufficiency as defense in ejectment action, see EJECTMENT, 19. Sufficiency of, to give insurable interest, see INSURANCE, 52. EQUITY. I. Jurisdiction, 1129. a. In general, 131. ft. Remedy at law, 3251. c. Relief against judgments, orders, or a^^-'ards, 5256. d. Cases of fraud; mistake; con- spiracy; trusts; wills, 57 79. e. To prevent irreparable dam- age, SO, SI. f. To cancel instruments, 8293. g. To avoid multiplicity of sui>ts, 941O5. h. Retaining jurisdiction,, 1O6 129. II. Transfers between law and equity. III. Equity principles, 130144. a. In general, ISO 139. b. Corning into equity with clean hands, 14O-144. Digest 1-52 L.K.A.(N.S.) Jurisdiction and practice in particular cases, see ACCOUNTING; CLOUD ON TI- TLE; CONTRACTS, III. g, V. ; CREDITORS' BILL; DISCOVERY AND INSPECTION; DI- VORCE AND SEPARATION, II.; INJUNC- TION; MORTGAGE, VI.; REFORMATION OF INSTRUMENTS; SET-OFF AND COUNTER- CLAIM; SPECIFIC PERFORMANCE. Whether action one at law or one in equity, see ACTION OR SUIT, 70-72. Review of finding of court of equity, see APPEAL AND ERROR, VII. 1, 3, b. Appeal in equitable case, see APPEAL AND ERROR. Necessity of filing motion for new trial in lower court to secure review of equity case, see APPEAL AND ERROR, 124. Necessity of exception to allowance of dam- ages in equity cases, see APPEAL AND ERROR, 358. Review on appeal of evidence in equity cases, see APPEAL AND ERROR, 511. Review of discretion of court of, see AP- PEAL AND ERROR, 567, 570. Reversible error in equity case, see APPEAL AND ERROR, 1130. Correction on appeal of equitable decre* taken for confessed, see APPEAL AND ERROR, 1580. Remanding suit in equity, see APPEAL AND ERROR, 1608. Costs on appeal in equity case, see APPEAL AND ERROR, 1634. Right of attorney general to maintain suit in, see ATTORNEY GENERAL, 7. Giving effect to clause in mortgage cover- ing after-acquired property, see CHAT- TEL MORTGAGE, 13. Enforcement in, of parol gift of land, see CONTRACTS, 330. Power to compel owner of infringed copy- right to take damages instead of profits, see COPYRIGHT, 20. Interference by, to prevent confirmation of sale of property of corporation, see CORPORATIONS, 270. Discretion of court of equity as to appor- tionment of costs, see COSTS AND FEES, 13, 17. Interference by, with collection of taxes, see COURTS, 11. Aiding member of church wrongfully ex- pelled, see COURTS, 192. Right of court of equity to direct taking of deposition in perpet'ua/m rei memoriam, . see DEPOSITIONS, 1, 2. Admissibility of depositions in equitable proceeding, see DEPOSITIONS, 14. As to choice between legal and equitable form of action, see ELECTION OF REME- DIES, 12, 13. Presumption in equity proceedings from holding back of evidence, see EVIDENCE, 306. Relief against forfeiture in, see FORFEITURE. Requiring creditor of insolvent, receiving conveyance from debtor to account for excess value, see FRAUDTTLKN'T CONVEY- ANCES, 40. Necessity of resort to equity to enforce contract between husband and wife, see HUSBAND AND WIFE, 199. 1036 EQUITY, I. a. Duty to protect interests of minors in- volved in litigation, see INFANTS, 107. Pendency of equitable action as ground for enjoining legal proceedings, see IN- JUNCTION, 259, 260. Enforcing in equity transfer of beneficial interest in benefit certificate, see IN- SURANCE, 459. Conclusiveness of decree in chancery in sub- sequent action at law, see JUDGMENT, 86. Right to jury trial in, see JUBY, I. b, 1, b. Sale under execution of equitable asset of debtor, see LEVY AND SsfzuBE, 10. Limitation of actions in, see LIMITATION OF ACTIONS, I. b. What are reasonable restraints of trade which equity will enforce, see MONOP- OLY AND COMBINATIONS, 50. Enforcement in equity of parol agreement by grantee of property to assume mort- gage indebtedness, see MORTGAGE, 48. Parties in, see PARTIES. Relief under prayer, see PLEADING, 75-77. Right to plead and prove events occurring after institution of proceeding, see PLEADING, 129. Allegations for equitable relief, see PLEAD- ING, 428, 429. Necessity or propriety of cross bill in equity proceedings, see PLEADING, 536-540, 542. Supplying omission of parties from bill by filing cross bill, see PLEADING, 537, 538. Presumption that allegations in suit in equity are true, in absence of replica- tion, see PLEADING, 545. Prohibition to court of, see PROHIBITION. Construction of statute permitting suit in equity to try title to real estate, see STATUTES, 246. Subrogation in, see SUBBOGATIOW. Enforcement by, of taic lien in favor of private party, see TAXES, 266, 267. Proceeding to assess succession taK as one in equity, see TAXES, 350. Verdict of jury as advisory to court in equitable suit, see TRIAL, 1118. Right of court to make findings independent of jury's verdict, see TRIAL, 1118, 1119. Power to control discretion of trustee, see TRUSTS, 86. Enforcement in, of vendor's lien, see VEND- OR AND PURCHASER, 77, 78, 82. I. Jurisdiction, a. In general. (See also same heading in Digest L.R.A. 1-10.) Questioning jurisdiction for first time on appeal, see APPEAL AND ERROR, 710. Suit in equity to recover on lost check, see CHECKS, 8. Jurisdiction of courts, generally, see COURTS. Respective powers and jurisdiction of courts of law and equity, see COURTS, 196. Jurisdictional limitations of, see COURTS, I. b. Digest 1-52 L.R.A.(N.S.) Federal jurisdiction in, see COURTS, III. f. To appoint receiver, see RECEIVERS, 3, 4. 1. All relief respecting a purely equita- table title must be sought in a court of equity, as such a title cannot be maintained in a court of law. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 2. If a charge is of a criminal nature, or an offense against the public, and does not touch the enjoyment of property or health, it is not within the jurisdiction of a court of equity. State v. Ehrlick, 23: 691, 64 S. E. 935, 65 W. Va. 700. 3. Criminal remedies and procedure must be deemed adequate to the mainte- nance of the public right, in respect to moral and political principles, except in so far as the legislature may have provided others, since that body, having plenary power over such matters, has seen fit to rely upon ex- isting remedies, and courts of equity are powerless to ordain jurisdiction for them- selves. State v. Ehrlick, 23: 691, 24 S. E. 935, 65 W. Va. 700. To protect political rights. 4. Equity will not interpose, on behalf of a voter to protect his right to vote at any election, it being a mere political right not within equitable cognizance. Shoemaker v. Des Moines, 3: 382, 105 N. W. 520, 129 Iowa, 244. . (Annotated) To protect remaindermen. 5. Equity has jurisdiction of a pro- ceeding to hold the estate of a life tenant answerable for the sum necessary to make the repairs which he should have made upon the property. Prescott v. Grimes, 33: 669, 136 S. W. 206, 143 Ky. 191. To fix rates. PJffect of remedy at law, see infra, 42. 6. Equity has no jurisdiction to li.x, at the suit of a municipality or private con- sumers, the reasonable rate at which a gas company is impliedly bound to furnish gas, and enforce such rate against the eompaay in its future contracts. Madison v. Madi- son Gas & Electric Co. 8: 529, 108 N. W. 85, 129 Wis. 249. (Annotated) 7. A court of equity has no power to prescribe a schedule of prices to be charged by a warehouse affected by a public use, for the handling of commodities committed to its custody. Gulf Compress Co. v. Harris, Cortner & Co. 24: 399, 48 So. 477, 158 Ala. 343. (Annotated) Corporate matters. Effect of remedy at law, see infra, 45, 46. To enforce liability of stockholder in bank, see BANKS, 17. Compelling transfer of stock on books by bill in equity, see BANKS, 13; COBPO- / RATIONS, 230. Jurisdiction over foreign corporation, see COURTS, 43. Of action by corporate stockholder, see COR- PORATIONS, V. e, 2. To enforce stockholder's liability, see COR- PORATIONS, V. f, 4. 8. Equity has jurisdiction of a bill by a receiver to hold directors of a bank liable for losses caused bj their permitting illegal EQUITY, I. a. ]037 loans and declaring improper dividends. Emerson v. Gaither, 8: 738, 64 Atl. 26, 103 Md. 564. (Annotated) As to nuisances. Injunction against nuisance, see NUI- SANCES, II. As to boundaries. 9. Where the main purpose of a suit is to try title and boundary to land, and discovery and accounting for profits are only incidents to and dependent upon the main issues, equity will not take jurisdic- tion on grounds of discovery and account- ing. Lockwood v. Carter Oil Co. 52: 765, 80 S. E. 814, 73 W. Va. 175. Suit on bond of officer. Enforceability of trust in, see Trusts. 10. The secretary and treasurer of a board of levee .commissioners is a public officer within the meaning of a constitu- tional provision giving the chancery court jurisdiction of suits on bonds of public of- ficers for failure to account for public money received by them. Adams v. Wil- liams, 30: 855, 52 So. 865, 97 Miss. 113. Suit to remove structure from street. 11. Equity has jurisdiction of a bill to require the removal from a public highway of street-railway tracks placed there with- out the eoasent of the proper authorities. Bangor T. Bay City Traction & E. Co. 7: 1187, 110 N. W. 490, 147 Mich. 165. 12. Equity has jurisdiction of a suit to compel the removal of a structure from a sidewalk, which the owner claims the right to maintain under the authority of the mu- nicipality. New York v. Rice, 28: 375, 91 N. E. 283, 198 N. Y. 124. Election on behalf of insane widow. 13. Equity has jurisdiction of a suit by an insane widow by next friend to secure an election on her behalf against the will of her husband, where the bill alleges that the provision for her is not adequate, and that her guardians refuse to renounce the will although it is to her best interest to do so. Re Connor, 49: 1108, 162 S. W. 252, 254 Mo. 65. 14. Notwithstanding the fact that the general control of the insane has been by statute transferred from the courts of equi- ty to the probate courts, and although a statute authorizes in certain instances the guardian of an insane widow to elect against a testamentary provision in her favor, yet, where the guardian refuses to act, the ques- tion whether such an election should be made is one of which a court of equity may take jurisdiction. Re Connor. 49: 1108, 162 S. W. 252, 254 Mo. 65. Expulsion from labor union. 15. Equity will not interfere to pre- vent the expulsion of a member of a labor union because of refusal to pay a fine duly assessed by the legally constituted author- ities of the union, for his alleged wrongful use of union labels on nonunion work, in the absence of anything to show irrepar- able injustice and hardship. Engel v. Walsh, 45: 353, 101 N. E. 222, 258 111. 98. (Annotated) Digest 1-52 L.R.A.(N,S.) Reinstatement of pastor. 16. Equity will not interfere to rein- state the pastor of a religious denomina- tion who has been expelled without any violation of the trust under which the property is held, where the effect will be to dispossess the majority, and turn the property over to the minority. Duessel v. Proch, 3: 854, 62 Atl. 152, 78 Conn. 343. (Annotated) 'Waiver of objections to jurisdiction. 17. That a suit does not involve matter of equitable cognizance is not waived by answering and seeking affirmative relief, under a statute providing that objections not taken shall be deemed waived, except objections to the jurisdiction of the court, and that the complaint does not state a cause of action. Maxwell v. Frazier, 18: .102, 96 Pac. 548, 52 Or. 183. Miscellaneous. 18. Courts of equity have concurrent ju- risdiction with courts of law in suits to re- cover back money lost in gaming centracts, regardless of the question of necessity for discovery, or adequate remedy at law. Berns v. Shaw, 23: 522, 64 S. E. 930, 65 W. Va. 667. 19. The action of municipal authorities in granting and revoking privileges and li- censes in highways is the exercise of dele- gated police power, and is not judicial in character so as to deprive a court of equity of jurisdiction to review such action. Wheel- ing & E. G. R. Co. v. Triadelphia, 4: 321, 52 S. E. 499, 58 W. Va. 487. (Annotated) 20. Equity will grant relief in case of the raising of the water in a water course by means of a dam, to the injury of upper riparian lards, where the injury is sub- stantial and permanent, even though the rights have not been established at law. Cloyes v. Middlebury Electric Co. 11:693, 66 Atl. 1039, 80 Vt. 109. 21. Equity will not refuse jurisdiction of a suit to abate a dam over a water course, which throws the water back upon upper riparian lands to their injury, merely because the parties are numerous and their rights have not been established at law. Cloyes v. Middlebury Electric Co. 11:693, 66 Atl. 1039, 80 Vt. 109. 22. Partnership is a relation of trust and confidence, and upon dissolution of the partnership, without an adjustment by the partners of their rights in the good will of the business and in the premises which they hold under lease, it is the province of a court of equity to adjust such differences. Knapp v. Reed,' 32: 869, 130 N. W. 430, 88 Neb. 754. 23. Equity should not proceed, against the objection of defendant, in a suit by a trustee in bankruptcy to recover a definite sum as the value of property transferred within four months prior to the beginning of the proceedings, all of which will be nec- essary to meet the claims against the bank- rupt. Warmath v. O'Daniel, 16: 414, 159 Fed. 87, 86 C. C. A. 277. (Annotated) 24. Equity has jurisdiction to protect the rights of one who has purchased a par- cel of land according to a plat, to have the 1038 EQUITY, I. b. streets shown on the plat maintained as shown. Herold v. Columbia Invest. & Real Estate Co. (N. J. Err. & App.) 14: 1067, 67 Atl. GOT, 72 N. J. Eq. 857. 25. Equity has no jurisdiction to com- pel a reconveyance of land the title to which has passed by the delivery of deeds of the grantee without any express reservation of the right to recall them, and with the in- tent that upon a certain contingency they Bhall be effective without any further act on the part of the grantor. Wipfler v. Wipfler, 16: 941, 116 N. W. 544, 153 Mich. 18. 26. Where land has been sold under a decree, and the sale not reported by the commissioner making it, and not confirmed, and an unauthorized deed for the land is made by the commissioner to the purchaser, and the cause is dropped from the docket many years, but not dismissed, equity has jurisdiction of a suit to reinstate the first suit and to direct the conveyance of the land sold, or confirm the sale and the deed already made, on the force of that deed, treating it as a report and evidence of the sale. McGinnis v. Caldwell, 43: 630, 76 S. E. 834, 71 W. Va. 375. 27. The jurisdiction of equity to rein- state an action for the sale of land and cor- rect the proceedings therein is not defeated by the fact that the deed issued in such former action may be a defense as color of title in an action of ejectment against the owner thereof, as the owner of such deed is entitled to have a legal title. Mc- Ginnis v. Caldwell, 43: 630, 76 S. E. 834, 71 W. Va. 375. 28. Equity has jurisdiction of a suit by a creditor of a corporation to reach a claim in its favor which is alleged to have been assigned to another corporation, and to be its property, subject to the debts of the as- signor, although it would have been subject to levy or attachment at law had it re- mained the property of the assignor. Jen- nings, Neff, & Co. v. Crystal Ice Co. 47: 1058, 159 S. W. 1088, 128 Tenn. 231. 29. Equity has jurisdiction of a suit by the payee of a note against a bank and its cashier, who had lent the payee's money on the note before a specified indorsement had been secured, contrary to instructions, and the maker and designated surety, who had promised in writing to sign the note, to adjust the rights of the parties and af- fix the liability for the amount due. Petty v. Gacking, 33: 175, 133 S. W. 832, 97 Ark. 217. 30. Failure of the holder of a benefit certificate to pay the nominal fee for a new certificate, made necessary by the by- laws of the order to effect a change of bene- ficiary, will prevent equity from giving effect to the attempted change, although he had given notice to the order to make it, if the proper officer had not assented there- to before death occurred. Ancient Order of Gleaners v. Bury, 34: 277, 130 X. W. 191, 165 Mich. 1. (Annotated) 31. One who has contracted to convey real estate for a certain down payment, Digest 1-52 L.R.A.(N.S.) with balance to be paid at a fixed time in the future, and the deed to be placed in escrow until such payment is made, may, when the time for final performance ar- rives, treat the contract as a mortgage and resort to equity to enforce it. Nixon v. Marr, 36: 1067, 190 Fed. 913, 111 C. C. A. 503. h. Remedy at In if. (See also same heading in Digest L.It. A.. 1-10.) Abatement of action in, by pendency of ac- tion at law, see ABATEMENT AND RE- VIVAL, 26. Jurisdiction of suit against tax collector for accounting, see ACCOUNTING, 6. Burden of showing that remedy at law is not adequate, see EVIDENCE, 653. See also infra, 57, 59, 85; CORPORATIONS, 361; INJUNCTION; MANDAMUS, 46; NUISANCES, 130, 134; SPECIFIC PER- FORMANCE, 64. 32. The court cannot, because it has gen- eral jurisdiction of the subject-matter, de- termine in an equity proceeding matters which are properly cognizable only at law. Hoffman v. Tooele, 45: 992, 130 Pac. 01, 42 Utah, 353. 33. Where special circumstances exist rendering the remedy at law against an in- strument alleged to have been procured by fraud inadequate, the party is entitled to equitable relief as matter of right. John- son v. Swanke, 5: 1048, 107 N. W. 481, 128 Wis. 68. 34. Equity has no jurisdiction of a suit to prevent wrongful interference by one who has granted the right to hunt on his land with the rights of the grantee, since the remedy at law for damages is adequate. Isherwood v. Salene. 40: 299, 123 Pac. 49, 61 Or. 572. 35. Equity has jurisdiction of a suit to prevent the obstruction of a floatable stream if the damages constitute depriva- tion of estimated profits to be earned which are of such a nature that no recovery can be had for them in a court of law. Black- man v. Mauldin, 27: 670, 51 So. 23, 164 Ala. 337. 36. Equity has jurisdiction of a suit by an alleged widow to partition lands owned by h?r husband at his death where issues are tendered which, if sustained, would de- prive the widow of any interest whatever, notwithstanding a statute providing for a proceeding in a probate court to set off the widow's share, as in such case the probate proceeding would be ineffectual. Munn v. Gordon, 25: 917, 106 Pac. 286, 81 Kan. 537. 37. Equity has jurisdiction of a suit to restrain one who has been employed on a laundry route on condition that he refrain from soliciting the customers on that route for him.- -If or a rival of his employer dur- ing his employment or for two years after- ward, from breaking his agreement, since the remeJy at law for damages is inade- EQUITY, I. c. 1039 quate. Eureka Laundry Co. v. Long, 35: 119, 131 N. W. 412, 146 Wis. 205. 38. The remedy by action at law for damages for the wrongful obstruction of a public street so as to cut one off from access to his property is not so complete and adequate as to prevent equitable relief. Sloss-Sheffield Steel & Iron Co. v. Johnson, 8: 226, 41 So. 907, 147 Ala. 384. 39. There is no adequate remedy at law which will prevent equitable relief against breach of a contract not to sell fire clay to another than the other contracting party, where one not a party to the contract has purchased the tract and is proceeding to operate it for his own benefit, and the ven- dor is financially irresponsible. Lanyon v. Garden City Sand Co. 9: 446, 79 N. E. 313, 223 111. 616. 40. The remedy at law of a municipal corporation which has paid over money which it appropriated, in violation of the Constitution, to induce the building of a railroad to the town, to recover it back, is complete ; and the case should not be trans- ferred from law to equity. Luxora v. Jones- boro, L. C. & E. R. Co. 13: 157, 103 S. W. 605. 83 Ark. 275. 41. A suit in equity will not lie to com- pel the lowering of a milldam maintained above the height fixed by the commissioners, where the statute provides that any person whose land is injured by such dam may ob- tain compensation therefor in a civil ac- tion, but in no other manner. Allaby v. Mauston Electric Service Co. 16: 420, 116 N. W. 4, 135 Wis. 345. 42. The remedy at law of a railroad company to test the validity of a statute fixing rates for railroad transportation by disobeying the statute once and submitting to a criminal prosecution is not so adequate as to deprive equity of jurisdiction, where several years might elapse before a final determination of the question, pending which observance of the statute, if finally found to be invalid, would result in taking its property without due process of law, with no possibility of its recovery. Ex parte Young, 13: 932, 28 Sup. Ct. Rep. 441, 209 U. S. 123, 52 L. ed. 714. 43. The equitable jurisdiction of the court to rescind a sale for fraud is not ousted by the existence of a remedy at law to recover possession of the property con- veyed. Swan v. Talbot, 17: 1066, 94 Pac. 238, 152 Cal. 142. 44. Equity has no jurisdiction to enforce a decree for alimony rendered by a court of another state, the remedy at law being ade- quate. Davis v. Davis, 9: 1071, 29 App. D. C. 258. (Annotated) Corporate matters. 45. The right to maintain suits against the individual stockholders of an insolvent corporation to enforce their liability on un- paid stock subscriptions does not constitute such a plain, full, and adequate remedy at law as to defeat a suit in equity against all the stockholders for the collection and ad- ministration of the corporate assets as a trust fund for the benefit of creditors. Cook Digest 1-52 L.R.A.(N.S.) v. Carpenter, i: 900, 61 Atl. 799, 212 Pa. 165. 46. There is no adequate remedy at law against a corporation for refusal to enter a transfer of stock on its books, which will defeat a proceeding in equity to compel such transfer. Westminster Nat. Bank v. New England Electrical Works, 3: 551, 62 Atl. 971, 73 N. H. 465. As to real property. Effect on equitable right to enforce vendor's lien, see VENDOR AND PURCHASER, 82. See also SPECIFIC PERFORMANCE, 46. 47. An action for forcible entry and de- tainer to recover possession of property leased for mining purposes is not an ade- quate remedy, so as to defeat the jurisdic- tion of equity, where the mining operations are being carried on in such a way as to re- move the supports of the surface and cause it to subside. Big Six Development Co. v. Mitchell, i: 332, 138 Fed. 279, 70 C. C. A. 569. 48. A case in which the purchaser of land out of possession seeks to remove a cloud on his title caused by the extension of the term of a lease by insane lessors is not strictissimi juris, but addressed to the discretion of the court; and, where the primary object of the bill is to remove the cloud, and the remedy at law is adequate, and there is no danger from delay, and no other ingredient that requires the effective powers of equity to prevent fraud or in- justice, the complainant will be left to his remedy at law. Quinn v. Valiquette, 14: 962, 68 Atl. 515, 80 Vt. 434. 49. A lessee having a present interest in the term, but out of possession, cannot maintain a bill in equity against a trespas- ser in possession to establish title, acquire possession, remove a cloud, for an account- ing and an injunction, since he has a com- plete and adequate remedy at law by eject- ment. Johnston v. Corson Gold Min. Co. 15: 1078, 157 Fed. 145, 84 C. C. A. 593. 50. As growing timber is part and parcel of the land on which it stands, wrongful destruction thereof is an injury to the land itself, not adequately remediable by an action at law. Pardee v. Camden Lumber Co. 43: 262, 73 S. E. 82, 70 W. Va. 68. 51. An owner of land with standing timber thereon has a legal right, not sus- tained by legal remedies, to keep the timber in its natural state until such time as he may see fit to alter its character and inci- dents by severance, wherefore equity, upon a proper application therefor, will interpose its remedies for protection thereof. Pardee v. Camden Lumber Co. 43: 262, 73 S. E. 82, 70 W. Va. 68. c. Relief against judgments, orders, or awards. (See also same heading in Digest L.R.A. 1-70.) Injunction against judgment, see INJUNC- TION, 276-289. 1040 EQUITY, I. d. Relief against judgment generally, see JUDGMENT, VII. Original suit ' in equity, to impeach judg- ment, see JUDGMENT, 390. 52. Failure of a nonresident corporation to act upon information furnished by a stranger, that process had been served upon him in an action against it, will not deprive it of the right to equitable relief against the judgment rendered. National Metal Co. v. Greene Consol. Copper Co. 9: 1062, 89 Pac. 535, 11 Ariz. 108. (Annotated) 53. To maintain a separate suit in equi- ty to set aside a judgment obtained with- out service of process, which defect does not appear upon the face of the record, the party must show that he has, or at the time the judgment was entered had, a good de- fense, in whole or in part, to the action. Brandt v. Little, 14: 213, 91 Pac. 765, 47 Wash. 194. (Annotated) 54. A court of equity has jurisdiction to correct a decree of a probate court dis- tributing the estate of a deceased person, which awards larger parcels than it should, because some of the heirs had not been dis- covered, and the agent appointed under the statute to represent nonresident heirs has the same authority over the parcels as de- termined by such court, as he would have had over those fixed by the probate court. Bickford v. Stewart, 34: 623, 104 Pac. 263, 106 Pac. 1115, 55 Wash. 278. 55. Equity has jurisdiction to open, for the purpose of purging the usury, a judg- ment entered, without notice to the maker, upon a usurious note by authority of a power of attorney contained therein. Higli- tower v. Coalson, 12: 659, 44 So. 53, 151 Ala. 147. (Annotated) 56. In a state where a justice of the peace has no power to set aside his judg- ments or grant a new trial, and where upon appeal or certiorari to the district court, the cause is triable de novo only, one against whom a void judgment has been rendered by a justice of the peace is not, though with actual notice thereof, guilty of laches and negligence sufficient to bar his right to an equitable remedy against such judgment, because he fails to appeal or sue out a writ of certiorari. Pickering v. Pal- mer, 50: 1055, 138 Pac. 198, 18 N. M. 473. (Annotated) d. Cases of fraud; mistake; conspiracy; trusts; wills. (See also same heading in Digest L.R.A. 1-10.) Surplusage in pleading, see PLEADING, 141. Fraud. Effect of fraud on right to equitable en- forcement of contract, see infra, 140, 141. Aid of, to participant in illegal contract, see CONTRACTS, III. g. Relief against fraudulent reduction of stock, see CORPORATIONS, 202. Digest 1-52 L.R.A.(N.S.) Jurisdiction to set aside sale for fraud, see FRAUD AND DECEIT, 35. See also supra, 33, 43; infra, 82-84. 57. Fraud in the procurement of a con- tract is not of itself sufficient to take a case out of the rule that equity will not interfere to procure its cancelation if there is an ade- quate remedy at law. Johnson v. Swanke, 5: 1048, 107 N. W. 481, 128 Wis. 68. (Annotated) 58. Fraudulent representations are not necessary to confer jurisdiction upon equity to cancel a contract for fraud, fraudulent concealment being sufficient for that pur- pose. Fred Macey Co. v. Macey, 5: 1036, 106 N. W. 722, 143 Mich. 138. 59. Equity has jurisdiction to cancel a fraudulent contract rlleged to bind the as- sets of a corporation, and which, until can- celed, will tend to injure its business and impair its credit, although there is a rem- edy at law by defense to an action to en- force it, or by an action to compel restora- tion of the funds secured by means of it. Fred Macey Co. v. Macey, 5: 1036, 106 N. W. 722, 143 Mich. 138. (Annotated) 60. Equity will not refuse to eet aside a contract when it plainly appears that one party overreached the other, and gained an unjust and undeserved advantage which it would be inequitable and unrighteous to permit him to enforce, although the victim owes his predicament largely to his own stupidity and carelessness. Stone v. Moody, 5: 799, 84 Pac. 617, 41 Wash. 680. (Annotated) 61. An action to set aside a sale for- knowingly taking advantage of the seller when he was incapacitated by intoxication is one addressed to the equitable consideration of the court. Swan v. Talbot, 17: 1066, 94 Pac. 238, 152 Cal. 142. 62. Equity will set aside a sale of prop- erty obtained from a person whjn incapaci- tated by intoxication, when the onsidera- tion was grossly inadequate. Swan v. Tal- bot, 17: 1066, 94 Pac. 238, 152 Cal. 142. (Annotated) 63. Violation of an assurance by the owner of a tract of land when selling lots thereon restricted to residental purposes, that the whole tract will be so restricted, is not such fraud as to entitle grantees to equitable relief. Sprague v. Kimball, 45: 962, 100 N. E. 622, 213 Mass. 380. 64. That the proofs of loss upon an in- surance policy have placed a fraudulently excessive valuation on th property de- stroyed will not give equity jurisdiction of a suit to enjoin the assured from main- taining an action at law and to secure an adjustment of the loss. Mechanics' Ins. Co. v. C. A. Hoover Distilling Co. 32: 940, 173 Fed. 888, 97 C. C. A. 400. Mistake. Necessity for restitution, see infra, 131. Effect of laches to bar relief from mistake, see LIMITATION OF ACTIONS, 49. Sufficiency of plea of mistake as against de- murrer, see PLEADING, 635. 65. The mistake of the wife and mother EQUITY, I. d. 1041 f a decedent in regard to the law of de- scents and distributions of a state other than that of their residence, which led to the apportionment and transfer of land owned by the decedent at the time of his death to the mother, when, under the stat- ute, the widow was entitled to all of it, is a mistake of fact against which equity will relieve unless some principle of equity bars the granting of such relief. Osincup v. Henthorn, 46: 174, 130 Pac. 652, 89 Kan. 58. (Annotated) 66. An honest mistake of law on the part of both contracting parties, as to the effect of an instrument, which operates as a gross injustice to one party and gives an unconscionable advantage to the other, is one against which equity will afford relief. Dolvin v. American Harrow Co. 28: 785, 54 S. E. 706, 125 Ga. 699. (Annotated) 67. That the mistake was one of law will not prevent equity from relieving one of several trustees of a trust fund, who was also a beneficiary, from an agreement be- tween them which all thought to be valid, that, in order to conserve the fund, they would give him a promissory note instead of cash for his share of the estate, in con- sideration of his releasing them and the es- tate from other liability, which they had no authority to do, and which was there- fore void, where rescission of the agree- ment will result in no loss to the estate or other beneficiaries, while refusal to rescind will enable the other beneficiaries to enrich themselves at his expense. Reggio v. War- ren, 32: 340, 93 N. E. 805, 207 Mass. 525. 68. The holder of a recorded deed to real estate, who, with knowledge of a prior unrecorded deed, voluntarily, and without fraud or mistake of fact, satisfies of record a mortgage thereon owned by him, is not entitled to a reinstatement of the mortgage lien on the sole ground that he erroneously assumed that his title was superior to that of the holder of the unrecorded deed because his deed was recorded first, as such mistake was one solely of law, against which equity will not, under such circumstances, afford relief. Errett v. Wheeler, 26: 816, 123 N. W. 414, 109 Minn. 157. Conspiracy. 69. A manufacturer is entitled to no equitable relief to compel a labor union to renew a contract for the continued services of its members in his business on the same terms accorded his competitors, although its refusal to do so is the result of a con- spiracy between the union and his competi- tors to ruin his business, and his employees are willing to continue work on the basis of the old contract. Saulsberry v. Coopers' International Union, 39:1203, 143 S. W. 1018. 147 Ky. 170. 70. A combination and conspiracy by de- fendants claiming title by adverse posses- sion to separate tracts of land, to maintain by corrupt means their several defenses against the plaintiff, and the great expense and delay involved in maintaining separate actions of ejectment against them, are not sufficient to give a court of equity jurisdic- Digest 1-52 L.R.A.(N.S.) 66 tion of a suit to have plaintiff adjudged the owner of the several tracts, and enti- tled to immediate possession thereof. Illi- nois Steel Co. v. Schroeder, 14: 239, 113 N. W. 51, 133 Wis. 561. Trusts. Necessity for restitution, see infra, 131. Jurisdiction to appoint successors to trus- tees, see TRUSTS, 69. See also supra, 67; infra, 93; INJUNCTION, 311. 71. Equity has jurisdiction of a suit to reach the proceeds of property which a thief has turned into cash, since he holds them in trust for the true owner. Light- foot v. Davis, 29: 119, 91 N. E. 582, 198 N. Y. 261. 72. A devise or bequest to one in trust for another, with no duties to perform and no gift over, vests in him merely a naked legal title, and equity may compel con- veyance of the estate to the beneficiary. Hill v. Hill, 38: 198, 132 N. W. 738, 90 Neb. 43. (Annotated) 73. A sufficient execution of the trust to enable equity to enforce it arises where a mutual benefit certificate is delivered to one having no insurable interest in the life of the member, upon the agreement of the beneficiary that, if he will pay the dues and make advances to the member, he shall have the proceeds when collected, and the member dies leaving the condition un- changed. Kerr v. Crane, 40: 692, 98 N. E. 783, 212 Mass. 224. 74. Equity may direct the present pay- ment to the beneficiary of the income of a fund placed in trust to accumulate until she reaches a specified age, if intellectual promise, the need of education, and necessi- tous circumstances, unforeseen by the tes- tator, have wrought such a change in hfr condition that the creator of the trust would have so directed had he foreseen the situa- tion in which she finds herself. Bennett v. Nashville Trust Co. 46: 43, 153 S. W. 840, 127 Tenn. 126. (Annotated) 75. A bill in equity will not lie on behalf of a materialman against a municipal coi- poration to reach a fund which is retained under the provisions of a contract for a public improvement, inserted under the sanction of a municipal ordinance, which required the contractor at time of settle- ment to produce vouchers showing settle- ment in full for all material and labor em- ployed in the contract, and authorizing the retention of funds to pay claims not shown to have been satisfied. Lombard Governor Co. v. Baltimore, 48: 678, 88 Atl. 140, 121 Md. 303. 76. No such fiduciary relation exists be- tween the tax collector of a township and the township in respect to tax moneys col- lected by him for its use as to call for the exercise of equitable jurisdiction. Frank- lin Twp. v. Crane (N. J. Err. & App.) 43: 604, 85 Atl. 408, 80 N. J. Eq. 509. (Annotated ) Wills. Retention of jurisdiction, see infra, 115, 116. 77. A court of chancery will refuse to en- 1042 EQUITY, i. e, 1. tertain a bill merely to construe a will in which no trust is involved. Frank v. Frank, 19: 176, 113 S. W. 640, 88 Ark. 1. 78. Equity has no jurisdiction of a bill brought solely for the construction of a will whicn disposes merely of legal estates. Hart v. Darter, 15: 599, 58 S. E. 590, ?07 Va. 310. (Annotated) 79. Although a proceeding to contest a will must be instituted in the county court, the court of chancery in which a proceeding for escheat is instituted may, upon the ex- istence of the will appearing, stay the es- cheat proceeding to await the contest of the will in the county court. State v. Lancas- ter, 14: 991, 105 S. W. 858, 119 Tenn. 638. e. To prevent irreparable damage. (See also same heading in Digest L.R.A* 1-10.) See also infra, 84, 87 ; INJUNCTION. 80. Irreparable injury which will give jurisdiction to equity is not shown by the tact that a statute forbids the sale of in- toxicating liquor within 4 miles of a school, so far as it affects manufacturers whose product can be kept for years and is largely disposed of in other states. Kelly v. Con- nor, 25: 201, 123 S. W. 622, 122 Tenn. 339. 81. Mere necessity to await the pleasure of the holder of a void instrument to com- mence action thereon, though it raise a pre- sumption of probable annoyance and incon- venience, does not raise a presumption of irremediable injury in a pecuniary sense, so as to give equity jurisdiction to cancel te instrument. Johnson v. Swanke, 5: 1048, 107 N. W. 481, 128 Wis. 68. /. To cancel instrttnients. fSee also same heading in Digest L.R.A. 1-10.) On ground of fraud, see supra, 57-64. Effect of irreparable injury, see supra, 81. Retention of jurisdiction, see infra, 110, 111, 117. Multifariousness in bill, see ACTION OR SUIT, 128. As to cancelation of instruments generally, see CONTRACTS, V. c. Surplusage in pleading, see PLEADING, 141. Jurisdiction to reform instruments, see RE- FORMATION OF INSTRUMENTS. See also INJUNCTION, 267, 275. 82. A court of equity has jurisdiction to cancel a certificate of birth filed in a bu- reau of vital statistics by the attending phy- sician, who was imposed upon by the false statements of the mother as to the pater- nity of the child. Vanderbilt v. Mitchell (N.' J. Err. & App.) 14: 304, 67 Atl. 97, 72 N. J. Eq. 910. (Annotated) 83. A medical superintendent of the bu- reau of vital statistics may be required by a court of equity to cancel of record a cer- tificate of birth which falsely states that Digest 1-52 L.R.A.(N.S.) * i the complainant is the father of the child. Valid* rbilt v. Mitchell (N. J. Err. & App.) 14: 304, 67 Atl. 97, 72 N. J. Eq. 910. 84. A special necessity for the aid of equity to cancel a note given for a horse is not shown by the fact that the horse is worthless, and its continuance in possession of the purchaser will be a prejudicial ex- pense to him, since he may declare a re- scission, and, after notice, sell the horse, re- imburse himself for the outlay, and hold the balance for the use of the seller. Johnson v. Swanke, 5: 1048, 107 N. W. 481, 128 Wis. 68. 85. An oil and gas lease will not be can- celed for failure promptly to develop the property, if there is nothing to show that a rei'iedy in damages will not be adequate. Howerton v. Kansas Natural Gas Co. 34: 34, 106 Pac. 47, 81 Kan. 553. ( Annotated ) 86. An action after a loss under an in- surance policy, to cancel the policy for fraud, or to restrain a suit at law thereon, cannot be maintained by the insurer in the absence of some special circumstances of a nature to cause irreparable loss to him if he is not permitted a remedy in equity. Bankers Reserve Life Co. v. Omberson, 48: 265, 143 N. W. 735, 123 Minn. 285. (Annotated) 87. No special circumstances of a nature to cause irreparable loss, so as to entitle an insurer to maintain an action in equity to cancel a policy issued by it after a loss has occurred thereon, is hhown by a complaint whicli alleges that the insured fraudulently represented that he had been in good health, and that the insurer, in reliance upon these representations, issued the policy, and that the beneficiary knew of such fraudulent rep- resentation, and was threatening to bring suit. Bankers Reserve Life Co. v. Omber- son, 48: 265, 143 N. W/735, 123 Minn. 285. 88. Equity will not cancel a pretended contract releasing an employer from liabili- ty for personal injury to an employee, by which the latter claims to be entitled to wages during disability, where an action has been brought to recover them. Sunset Teleph. & Teleg. Co. v. Williams, 22: 374, 162 Fed. 301, 89 C. C. A. 281. Deeds. 89. The unauthorized alteration of a deed by the grantee so as to make it de- scribe land not conveyed thereby will not entitle the grantor, by a suit in equity, to set aside his deed and be reinvested with the title conveyed. Waldron v. Waller, 32: 284, 64 S. E. 964, 65 W. Va. 605. 90. Equity has jurisdiction to cancel an instrument of title to land, although void on its face, at the suit of one in possession under good title. Whitehouse v. Jones, 12: 49, 55 S. E. 730, 60 W. Va. 680. 91. A conveyance of land founded both upon a money consideration and an express written agreement by the grantees that as a part of the consideration they will take care of the grantor "as long as he lives, provid- ing him with a home and rendering him whatever services he requires," constitutes a EQUITY, I. g. 1043 continuing contractual obligation of the grantees for the violation of which the grantor has his action at law for damages, but such violation doe.3 not rende. the fee conveyed by the deed conditional, so that a bill to set aside the conveyance is sustain- able in equity. Dunn v. Ryan (N. J. Err. & App.) 49: 1015, 88 Atl. 1025, 82 N. J. Eq. 356. 92. Failure of a grantor to read a deed before signing it does not bar relief there- from in equity, on the ground of negligence or estoppel, when the circumstances attend- ing the transaction were such as to lead him to believe that the character and ex- tent of the conveyance was entirely different from what it really was. Hale v. Hale, 14: 221, 59 S. E. 1056, 62 W. Va. 609. 93. The owner of an equitable title to land, having the right to call in the legal title, may maintain a suit in equity to com- pel the conveyance of the legal title to him and cancel invalid instruments constitut- ing cloud thereon, although, the trust being dry, he might maintain ejectment on the presumption that the legal title had been conveyed to him, or under the rule that a stranger cannot maintain his possession against superior title on mere defects in the claim of the opposite party to the owner- ship of such title. Blake v. O'Neal, 16: 1147, 61 S. E. 410, 63 W. Va. 483. g. To avoid multiplicity of suits. (See also same heading in Digest L.R.A. 1-10.) Injunction to avoid multiplicity of suits as infringement of right to trial by jury, see JUBY, 48. To complain that facts were not submitted to jury, see TRIAL, 708. See also INJUNCTION; NUISANCES, 130, 134. 94. Equity will not interfere to prevent a multiplicity of suits, if the bringing of one or many suits is a matter for complain- ants' election, there being no necessity for a multiplicity. Gulf Compress Co. v. Harris, Cortner, & Co. 24: 399, 48 So. 477, 158 Ala. 343. 95. Jurisdiction in equity to prevent a multiplicity of suits does not arise merely because each of several parties jointly and severally liable on an instrument may be independently sued. Johnson v. Swanke, 5: 1048, 107 N. W. 481, 128 Wis. 68. 96. A mere community of interest in the questions of law and of fact involved in several actions at law is not sufficient to give equity jurisdiction to enjoin such ac- tions and settle the matter itself for the prevention of a multiplicity of suits. Roa- noke Guano Co. v. Saunders, 35: 491, 56 So. 198, 173 Ala. 347. 97. Equity will not, upon the ground of preventing a multiplicity of suits, enter- tain a suit to have the plaintiff adjudged the owner, and entitled to immediate pos- session, of each of numerous separate tracts of land to which the respective defendants Digest 1-52 claim title by adverse possession, although each of the defendants seeks to tack his possession to the alleged entry and adverse possession of the same individual, through whom they all claim, and notwithstanding that, at the time of the commencement of the equity suit, eighty-four ejectment ac- tions commenced by plaintiff against the several defendants were pending, and that, in other similar actions, judgment had been rendered for the plaintiff, and that in none of them had the title to the land been ad- judicated to be in the defendant or defend- ants. Illinois Steel Co. v. Schroeder, 14: 239, 113 N. W. 51, 133 Wis. 561. (Annotated) 98. An action by the receiver of a mu- tual insurance company organized under laws which make it a body corporate and give its members the right of stockholders, against such members, to recover an as- sessment made by the court in order to pay the liabilities of the insolvent corporation, may properly be brought in a court of equi- ty in the same manner as an action by the receiver of a stock corporation against its stockholders for a like purpose, and in such case summons may be issued out of the county in which the action is brought to any other county in the state in which a de- fendant resides or may be summoned. Mc- Call v. Bowen, 40: 781, 135 N. W. 1014, 91 Neb. 241. (Annotated) 99. The receiver of an insolvent hail in- surance company whose charter makes its members liable for the losses and expenses of the company, each to the extent of his obligation, cannot maintain a single equity suit against all, to compel them to pay as- sessments which had been levied against them, either by the directors or the receiv- er; at least, where the statute provides for an action at law against each member who neglects to pay his obligations. Burke v. Scheer, 33: 1057,' 130 N. W. 962, 89 Neb. 80. (Annotated) 100. One of several companies which have issued policies of insurance on one piece of property, which provide liability in propor- tion to the loss, cannot, in case of loss, maintain a bill in equity to compel an ad- justment of the liability on the several poli- cies in one suit, on the theory that a mul- tiplicity of suits will thereby be prevented. Scruggs & Echols v. American Central Ins. Co. 36: 92, 176 Fed. 224, 100 C. C. A. 142. 101. Equity has jurisdiction on the ground of preventing a multiplicity of suits, of a suit to adjust the respective liabilities of several insurers who have issued policies upon a manufacturing plant, which are di- vided between the several items of build- ing, machinery, stock, and fixtures, the re- spective items being covered by more than one policy and the policies providing a pro rata liability, where all the insurers set up a common defense against all lia- bility because of noncompliance with con- ditions in the policies; and it is imma- terial that some insurers have no interest in all the items, or that a court of law could afford a remedy, and might consoli- 1044 EQUITY, I. h. date the actions if all were brought at the same time. Dixie F. Ins. Co. v. American Confectionery Co. 34: 897, 136 S. W. 915, 124 Tenn. 247. 102. Several insurance companies having policies providing for proportional liability on property in which a loss has occurred cannot join in a bill in equity to enjoin the assured from maintaining actions at law, and to adjust the amount of their respective losses in one suit, on the theory that they will thereby save a multiplicity of suits. Mechanics' Ins. Co. v. C. A. Hoover Dis- tilling Co. 32: 940, 173 Fed. 888, 97 C. C. A. 400. (Annotated) 103. A bill in equity will not lie in behalf of a receiver of a club against its members to recover from them dues owing under its by-law, and the purchase money of sup- plies received from it, since the claims are cognizable at law, and are not common in such sense that they can be joined to pre- vent a multiplicity of suits. Rogers v. Boston Club, 28: 743, 91 N. E. 321, 20o Mass. 2G1. 104. Claims by the receiver of a social club against its members for unpaid dues cannot be joined in an equity proceeding against all to prevent a multiplicity of suits, but must be enforced by separate ac- tions at law. Rogers v. Boston Club, 28: 743, 91 N. E. 321. 205 Mass. 261. (Annotated) 105. The jurisdiction of equity to pre- vent a multiplicity of suits does not ex- tend to the entertainment by that court of a bill by a manufacturer to enjoin separate suits by neighboring property owners to re- cover damages for injuries to their prop- erty by noxious fumes from the establish- ment, and the making of all compensation in the one suit. Roanoke Guano Co. v. Saunders, 35: 491, 56 So. 198, 173 Ala. 347. ( Annotated ) h. Retaining jurisdiction. (See also same heading in Digest L.R.A. 1-70.) Keeping alive equitable suit upon failure of cross bill to establish right to equi- table relief, see PLEADING, 535. 106. A cause which is brought in equity in the good faith belief that equitable re- lief is obtainable on the facts will not be dismissed because good cause for legal re- lief alone is shown, if objection to the equi- table jurisdiction is not taken by answer or demurrer. Knauf & Tesch Co. v. Elk- hart Lake Sand & Gravel Co. 48: 744, 141 N. W. 701, 153 Wis. 306. 107. Where equity is by statute denied jurisdiction of claims for injury to prop- erty involving unliquidated damages, it can- not retain a suit for injunction and dam- ages for the maintenance of a nuisance, in order to assess the damages, if the right to the injunction fails. Union Planters' Bank Digest 1-52 L.R.A. (N.S.) & T. Co. v. Memphis Hotel Co. 39:580, 139 S. W. 715, 124 Tenn. 649. 108. Equity has jurisdiction of a suit brought by the senior lessee against his lessor and a junior lessee of the same land from the same lessor, for the purpose of enjoining the removal of the oil from the leased premises, and for specific execution of his lease; and, in such a suit, the court can settle the conflicting claims of the les- sees, and grant such relief to either claim- ant as the pleadings and proof may war- rant. Smith v. Root, 30: 176, 60 S. E. 1005, 66 W. Va. 633. 109. Equity may, in a suit by a railroad company to enjoin one from whom it has purchased a right of way from interfering with its enjoyment thereof, after it has for- feited it because of breach of condition sub- sequent, assess the damages and transfer the title to the railroad company as in an emi- nent domain proceeding, if, under protec- tion of a temporary injunction, the road has been completed and put in operation so that refusal of the injunction will inter- fere with public convenience. Oregon R. & Xav. Co. v. McDonald, 32: 117, 112 Pac. 413, 58 Or. 228. 110. One seeking the aid of a court of equity to secure the cancelation of notes al- leged to have been misappropriated cannot question the jurisdiction of the court to enter upon a cross bill a money judgment against him for the amount due on the notes. Zollman T. Jackson Trust & Sav. Bank, 32: 858, 87 N. E. 297, 238 111. 290. 1 11. Having aaquired jurisdiction to pre- vent a destruction of mining property by wrongful methods of operating the mine under a lease, equity may retain the case, and cancel the lease as a cloud on title. Big Six Development Co. v. Mitchell, i: 332, 138 Fed. 279, 70 C. C. A. 569. 112. Equity may retain a suit to compel the set-oft', against judgments obtained by a corporation against an individual for con- verting its logs, of claims against the corpo- ration in favor of a partnership of which the individual was a member, for similar conduct, where a discovery of the acts of the corporation is necessary. Nixon v. Clear Creek Lumber Co. 9: 1255, 43 So. 805. 150 Ala. 602. 113. In the absence of objection by either party, a court of equity which has appoint- ed a receiver may entertain a petition to as- certain the damages for which the property is liable because of his tort, and no con- stitutional right to trial by jury is thereby interfered with. Shedd v. See f eld, 13: 709, 82 N. E. 580, 230 111. 118. (Annotated) 114. Equity has jurisdiction of a suit by one of several insurers of different por- tions of a manufacturing plant, to set aside an award of appraisers on the ground of fraud, and, having taken jurisdiction, it may proceed to consider defenses to the lia- bility because of breach of conditions in the policy, and adjust the loss between the sev- eral insurers if liability is found to exist. Dixie F. Ins. Co. v. American Confection- EQUITY, 1. h. 1045 ery Co. 34: 897, 136 S. W. 915, 124 Tenn. 247. 115. A court of chancery in which is in- stituted a proceeding to declare an escheat of property claimed under a will has, as in- cidental to the decision of the right to the property, jurisdiction to determine the ques- tion of fraud in procuring the will. State v. Lancaster, 14: 991, 105 S. W. 858. 119 Tenn. 638. 116. A chancery court having assumed jurisdiction of a suit involving the right to compel a beneficiary under a will to elect between the provision in his favor and a claim to property covered by the will which he alleges belonged to him may retain the case to settle the amount of mesne profits to which he is entitled and the amount to be allowed those who had been in possession for betterments. Mc- Donald v. Shaw, 28: 657, 121 S. W. 935, 92 Ark. 15. 117. An equitable petition for the annul- ment of a marriage and for the cancelation of a bond executed by the husband prior to his marriage and pursuant to Ga. Penal Code 1895, 388, for the purpose of stop- ping a threatened prosecution for the al- leged seduction of the woman whom he mar- ried, but which fails to allege a cause of action in these respects, cannot be retained as a statutory proceeding for divorce on the ground of adultery, when it lacks a juris- dictional averment required in a libel for divorce, and contains no specific prayer for divorce. Griflin v. Griffin, 16: 937, 61 S. E. 16, 130 Ga. 527. 118. The nonestablishment of the right to a lien in a bona fide proceeding by a subcon- tractor to enforce a lien against the proper- ty of the owner for work performed for the contractor does not defeat the jurisdiction of the court to render a personal decree against the contractor for the amount found due by him. Johnston & Grommett Bros. v. Bunn, 19: 1064, 62 S. E. 341, 108 Va. 490. (Annotated) 119. An action to enjoin majority stock- holders of a corporation from proceeding to wind it up will not be dismissed, even though such relief cannot be granted, if because of disputes as to indebtedness and other mat- ters arising in the action, which are in part incident to the proper winding up and ad- justment of the corporate affairs, it is prop- er for the court under its statutory authori- ty to take charge of the winding up pro- ceedings. White v. Kincaid, 23: 1177, 03 S. E. 109, 149 N. C. 415. 120. In case of an action for equitable relief in the nature of protecting the right of a person in possession of an office from forcible interference until the title de jure shall have been judicially determined, and it appearing that such title must be deter- mined before the entire controversy between the parties can be set at rest, and as mat- ter of fact the title may as well or better be settled in the pending action as in an- other commenced for legal relief, the court may, and should, proceed to settle the entire Digest 1-52 L.R.A.(N.S.) controversy. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. Specific performance. 121. A court of equity which has properly acquired jurisdiction of a cause to enforce specific performance of a contract may pro- ceed to administer complete justice by granting a mandatory or restraining in- junction, or by awarding damages upon proper allegations and proofs. Taylor v. Florida East Coast R. Co. 16: 307, 45 So. 574, 54 Fla. 635. 122. The rule that a court of equity, hav- ing acquired jurisdiction of a suit to com- pel specific performance of an agreement to convey real estate, will, upon failure of proof of the agreement, and a mere parol license to place a building thereon appear- ing, retain jurisdiction to prevent the licensor from removing the building until he had compensated the licensee, will not be applied against one who has purchased the property from the licensor. Shipley v. Fink, 2: 1002, 62 N. E. 360, 102 Md. 219. 123. A bill for specific performance of a contract will not be retained for the assess- ment of damages where a case is not made for specific performance, and no other- spe- cial equity is showti which will support ju- risdiction of the court. Bromberg v. Eugen- otto Construction Co. 19: 1175, 48 So. 60, 158 Ala. 323. 124. Equity will not grant pecuniary com- pensation in lieu of specific performance of a contract, unless the case presented is one for equitable interposition, and such as would entitle plaintiff to specific perform- ance but for intervening facts which pre- vent it. Marks v. Gates, 14: 317, 154 Fed. 481, 83 C. C. A. 321. 125. Upon refusal of specific performance of a contract to sell real estate because of inequitable conduct on the part of complain- ant, the bill need not be retained for the as- sessment of damages, but may be dismissed, and complainant left to his remedy at law. Banaghan v. Malaney, 19: 871, 85 N. E. 839, 200 Mass. 40. Custody of children in case of divorce. 126. A bill by a man against his wife, to establish a right to the custody of their children, cannot be retained by a court of equity as a petition for the appointment of a guardian for them. Thomas v. Thomas, 35:1158, 95 N. E. 345, 250 111. 354. 127. The filing in a suit for divorce of a cross bill seeking custody of the children will not empower the court to refuse to permit the withdrawal of the original bill, and enable it to retain jurisdiction to make such order after an attempted withdrawal, where the statute authorizes orders con- cerning custody of the children only during pendency of the suit, or upon final decree, where the divorce is granted. Thomas v. Thomas. 35:1158, 95 N. E. 345, 250 111. 354. 128. Equity has no jurisdiction of a pro- ceeding between husband and wife for the custody of the children of the marriage which will enable it to retain a cross bill seeking such relief after the attempted withdrawal of the divorce suit in which it 1046 EQUITY, II., 111. a. was filed. Thomas v. Thomas, 35:1158, 95 N. E. 345, 250 111. 354. (Annotated) Unfair competition. 129. A court of equity, upon granting an injunction to restrain the use of a corpo- rate name as unfair competition, may also decree an accounting of the profits made by the defendant by means of the unfair com- petition; but it cannot, in addition thereto, decree that an accounting shall be made for damages suffered by the complainant. L. Martin Co. v. L. Martin & W. Co. (N. J, Err. & App.) 21: 526, 72 Atl. 394, 75 N. J. Eq. 257. (Annotated) //. Transfers between Jaw and equity. (See also same heading in Digest L.R.A. 1-10.) Joinder of legal and equitable actions, see ACTION OB SUIT, 122, 123. Error in transferring action to chancery court, see APPEAL AND ERROR, 1038. 111. Equity principles. a. In general. (See also same heading in Digest L.R.A. 1-10.) 130. Equity will not aid one in recover- ing money which he has given to his mis- tress in consideration of their sexual intimacy. Platt v. Elias, n: 554, 79 N. E. 1, 186 N. Y. 374. Restitution. See also INFANTS, 92, 93. 131. That a beneficiary of a trust who re- leased the estate from other liability upon receiving a note for the amount due him from the trustees, which was void for lack of authority, receives a small amount of cash, does not prevent his maintaining a bill to rescind for mutual mistake, and he is not required to return the amount so received before relief will be granted, where he was absolutely entitled to the cash, and the trustees would have to pay it back at once were it returned to them. Reggio v. Warren, 32: 340, 93 N. E. 805, 207 Mass. 525. Doing or offering equity. See also MORTGAGE, 31. 132. The maxim that "he who seeks equi- ty must do equity" has no application to heirs, in an action brought against them to establish a right under a timber lease ex- ecuted by their father upon land to which they assert a legal title derived from him by prior gift or conveyance, so as to require them to tender back that part of the pur- chase money paid to the father and re- ceived by them from his executor. Garbutt v. Mayo, 13: 58, 57 S. E. 495, 128 Ga. 269. 133. In an action against heirs to estab- lish a right under a timber lease executed by their father upon property belonging to them and to which they assert title, they are not entitled to injunctive relief asked against the plaintiffs by way of cross bill, Digest 1-52 KR.A.(N.S.) unless, in conformity with the principle that "he who seeks equity must do equity," they tender sums received by them from their father's executor and consisting of the purcha.se money paid by the plaintiffs for the timber. Garbutt v. Mayo, 13: 58, 57 8. E. -!!I5. 12S Ga. 209. 134. Before one who has conveyed land absolutely as security for a loan can se- cure the aid of equity to defeat an action by the grantee for possession of the prop- erty after the debt has become barred by the statute of limitations, he will 1 1 re- quired to recognize the debt as an existing lien on the land. Sturclivant v. Reece, 11:825, 103 S. W. 732, 83 Ark. 273. (Annotated) 135. A person who has secured a loan from a corporation doing business within a state with the laws of which it has failed to qualify so as to entitle it to do business therein, and who has failed to pay same, as provided by his contract, cannot admit the , contract and the indebtedness, and at the | same time, prosecute an action to cancel the mortgage given to secure the indebted- ness, solely on the ground that the corpora- tion failed to comply with the statute in qualifying to do business. Tarr v. West- ern Loan & Sav. Co. 21: 707, 99 Pac. 1049, 15 Idaho, 741. (Annotated) 136. Equity will not enforce a lien for purchase money reserved on land in a deed of general warranty, when a part of the land had been before sold by the grantor to other persons whose right is superior to that of the grantee, without abatement from the purchase money of the value of the land so lost to the grantee. Smith v. Ward, 33: 1030, 66 S. E. 234, 66 W. Va. 190. 137. Where a tenant in possession took a tax deed of the land, and conveyed to another, maintaining, however, his proper relation to the landlord, and an action of ejectment, to which the landlord was not a party, was brought against his grantees by one who had obtained a quitclaim deed from the landlord's grantor, in which the tax deed was set aside and the tax title purchaser given a lien for taxes, which the ejectment : claimant was required to satisfy, which he did, and then conveyed to another, although he never obtained possession of the land, and the tax title purchaser then procured a conveyance from the landlord owner, and brought an action to quiet title against the grantee of the ejectment claimant, the lat- ter should be regarded as the equitable as- signee of the lien for taxes, and equitable relief to the plaintiff should be conditioned upon its satisfaction. Ditlinger v. Miller, 26: 595, 105 Pac. 20, 81 Kan. 9. Legal right prevails. 138. Courts of equity recognize legal titles, and such titles prevail therein over equitable ones. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 139. Courts of equity respect title to land acquired by adverse possession. Depue v. Miller, 23: '775, 64 S. E. 740, 65 W. Va. 120. EQUITY, III. b ESCHEAT. b. Coming into equity with clean I ERASURES. 1047 hands. (See also same heading in Digest L.R.A.. 1-10.) See also INJUNCTION, 202. 140. The rule that equity will not refuse aid to one who comes before it with un- clean hands, when the uncleanness does not relate to the thing sought to be protected, has no application to a suit by the manu- facturer of a secret medicine, the sale of which has been built up by fraudulent rep- resentations, to enforce a contract with an institution as to the use of the remedies, and to prevent the institution from using them in violation of } .atiff'r rights. Mem- phis Keeley Institute v. Leslie E. Keeley Co. 16: 921, 155 Fed. 964. 84 C. C. A. 112. 141. Equity will not aid the manufacturer of a secret medicine, the sale of which has been built up by fraudulent represen- tations, to the public as to its ingredients, to enforce a contract with an institution purporting to administer such remedies, by requiring a cancelation of the contract and a surrender of the remedies on hand be- cause of breach of the contract, on the the- ory that failure to do so will enable de- fendant to impose on the public by claim- ing the right to administer the remedies. Memphis Keeley Institute v. Leslie E. Kee- ley Co. 16: 921, 155 Fed. 964, 84 C. C. A; 112. 142. The presumption of remedial law, which imputes to a principal the knowledge of fraud of his agent, applies only to the legal rights of parties, and does not affect their moral standing so as to exclude them from a court of equity on the ground that they do not come with clean hands. Vul- can Detinnmg Co. v. American Can Co. (N. J. Err. & App.) 12: 102, 67 Atl. 339, 72 N. J. Eq. 403. 143. Equity will refuse its aid to one guilty of any unlawful conduct in the mat- ter with relation to which he seeks equity. International Land Co. v. Marshall, 19: 1056, 98 Pac. 951, 22 Okla. 693. 144. Where by statute an action of man- damus is triable as an equitable action, plaintiff must come with clean hands in order to obtain the writ. Funck v. Farmers' Elevator Co. 24: 108, 121 N. W. 53, 142 Iowa, 621. EQUITY OF REDEMPTION. Curtesy in equity of redemption of wife's lands, see CURTESY, 3. Effect of assignment of equity of redemption on insurance payable to mortgagee, see INSTANCE, 821. Digest 1-52 L.R.A.(N.S.) In will, see . EVIDENCE, 607, 1175; TRIAL, 614; WILLS, 46-52. ERRONEOUS VERDICT. As ground for new trial, see NEW TRIAL, III. b. ERROR. As to appellate review in general, see AP* PEAL AND ERROR. ERROR OF JUDGMENT. On part of conductor in ejecting passenger, see CARRIERS, 409, 410. ESCAPE. Effect of. on appeal, see APPEAL AND ERROR, 93, 402. Liability of bond of sheriff for escape of prisoner, see BONDS, 61. Validity of statute providing punishment for, see CONSTITUTIONAL LAW, 338. 339, 630; CRIMINAL LAW, 219. One accepting aid to escape as accomplice of one furnishing it, see CRIMINAL LAW, 49. Attempt to escape of one not formally com- mitted, see CRIMINAL LAW, 237. Evidence that one on trial for crime refused to escape, see EVIDENCE, 1837. Evidence of attempt to escape, see EVIDENCE, 1844, 1925, 2423. Of animal during transportation, see CAR- RIERS, 889. Of dangerous agency, see NEGLIGENCE, 36- 41. 1. A prisoner who escapes from jail by force and violence pending the determina- tion of a writ of error to a judgment of conviction for a felony, resulting in a re- versal thereof and a discharge of the pris- oner, does not violate a statute providing for the punishment of a person confined in jail on "conviction" of a criminal offense who escapes thence by force or violence. State v. Pishner, 52: 369, 81 S. E. 1046, 73 W. Va. 744. (Annotated) ESCHEAT. Due process in, see CONSTITUTIONAL LAW, 570. Stay of escheat proceedings to await con- test of will in county court, see EQUI- TY, 79. 1048 ESCROW. Jurisdiction of chancery court in which escheat proceedings for property claimed under will have been instituted to determine question of fraud in pro- curing will, see EQUITY, 115. Of estate of absentee, see EXECUTORS AND ADMINISTEATOBS, 14, 15, 22. .Right of state to contest will in absence of which property would escheat, see WILLS, 93. 1. The right of the country of domicil to confiscate the estate of one dying intes- tate and without heirs does not extend to personal property in England, the maxim, Mobilia sequuntur pcrsonam, not being ap- plicable in such case; but the Crown takes the property as bona vacantia. Re Barnett's Trusts, 3 B. R. C. 198, [1902] 1 Ch. 847. Also Reported in 71 L. J. Ch. N. S. 408, 50 Week. Rep. 681, 86 L. T. N. S. 346, 18 Times L. R. 454. 2. A state may provide for the escheat of land taken by a national bank to secure a debt, after it has been held for the five years' period allowed by the Federal bank- ing law, although no opportunity has been found to dispose of it at a fair price. First Nat. Bank v. Com. use of Louisville School Bd. 34: 54, 137 S. W. 518, 143 Ky. 816. 3. Failure of the state to take pro- ceedings during the lifetime of an alien who, under the Constitution, was incompetent to hold title to property, for an escheat, defeats the right in favor of alien heirs, where, under the Constitution, such heirs may take title by inheritance. Abrams v. State, 9: 186, 88 Pac. 327, 45 Wash. 327. ( Annotated ) 4. One who, in good faith and for a valuable consideration, buys corpoiation land before an action has been brought to establish an escheat to which it is subject, because the corporation has held it when it was unnecessary to its purposes, contrary to the provisions of the Constitution, ac- quires an indefeasible title to it, although the state is authorized by statute to take possession or sue for its recovery, without office found. Louisville School Board v. King, 15: 379, 107 S. W. 247, 127 Ky. 824. 5. A judgment in some form declaring an escheat must be obtained before the state can get property subject to forfeiture, although a statute declares that the com- monwealth may enter upon and take posses- sion of the land. Louisville School Board v. King, 15 1379, 107 S. W. 247, 127 Ky. 824. (Annotated) 6. The probate in common form of a will obtained from a person non compos mentis does not bar the state of its right to institute proceedings for the escheat of the property, under a statute providing therefor in case of persons dying intestate without issue or relatives. State v. Lan- caster, 14: 991, 105 S. W. f58, 119 Tenn. 638. 7. A bill to declare an escheat of prop- erty which has been sold in course of ad- ministration properly lies against the ad- ministrator in whose hands the proceeds are found and the claimants under the will, Digest 1-52 L,.R.A.(N.S.) rather than against the persons to whom the property was sold. State v. Lancaster, 14: 991, 105 S. W. 858, 119 Tenn. 638. 8. Constitutional and statutory provi- sions forbidding common carriers from en- gaging directly or indirectly in any other business than that of a common carrier, and forbidding corporations from engaging in any business not expressly authorized by their charters, do not prevent a railroad company from owning a hotel at a junction point, which is run by a lessee for the neces- sary accommodation of its passengers and employees, so as to render the land on which it is located subject to escheat. Louisville Property Co. v. Com. 38: 830, 143 S. W. 412, 146 Ky. 827. (Annotated) 9. The use by a railroad company of a small parcel of land adjacent to its depot for a park, which adds materially to the comfort and convenience of passengers and employees, does not render it subject to escheat as not being used for the purpose of its business. Louisville Property Co. v. Com. 38: 830, 143 S. W. 412, 146 Ky. 827. 10. Land held by a railroad company for the accommodation of additional track- age, which will sooner or later be required by the increasing business of the company, is not subject to escheat, as not being used for purposes of its business. Louisville Property Co. v. Com. 38: 830, 143 S. W. 412, 146 Ky. 827. 11. A tract of land purchased by a rail- road company at a point where two branches of its road cross, and which may reason- ably be needed for additional terminal fa- cilities, is not subject to escheat under a constitutional provision for the escheat of property owned by a corporation, and not used in its business for a period of five years, because, by reason of press of other business or lack of means, it does not, with- in such period, make the necessary improve- ments upon it to fit it for its use. Louis- ville Property Co. v. Com. 38: 830, 143 S. W. 412, 146 Ky. 827. ESCROW. Preference by delivery to creditor within four months of bankruptcy, of securities deposited in escrow prior to four months' period, see BANKRUPTCY, 84. Agent's disobedience of instructions to place papers in escrow, see PRINCIPAL AND AGENT, 77. Validity of parol escrow agreement, see CONTRACTS, 275. Deeds. Enforcing delivery of deed placed in es- crow, see CONTRACTS, 275. Sufficiency of delivery of deed in escrow to satisfy statute of frauds, see CON- TRACTS, 279. Sufficiency of delivery of deed to third per- son, generally, see DEEDS, I. b, 2. ESTABLISHMENT ESTOPPEL. 1049 Placing deed of property in escrow as change of title within meaning of in- surance policy, see INSURANCE, 221. Deed in, as mortgage, see MORTGAGE, 14. Specific performance of contract to deposit deed in escrow, see SPECIFIC PERFORM- ANCE, 105. Loss of property by fire while deed is still in escrow, see VENDOR AND PURCHASER, 23. 1. Equity treats things agreed to be done as actually performed, and where real estate is sold under a valid contract, and the deed executed and placed in escrow to be delivered at a future date on payment of the purchase money, evidenced by a promis- sory note due on said day, the equitable title passes at once to the vendee. Fouts v. Foudray, 38: 251, 120 Pac. 960, 31 Okla. 221. 2. While a deed is in escrow awaiting the performance of conditions precedent to the delivery thereof by the vendor to the vendee, there is no change in the title or right of possession to the property, al- though the purchaser occupies it with the consent of the vendor, in anticipation of completing the contract of sale and pur- chase. Pomeroy v. Mtna Ins. Co. 38: 142, 120 Pac. 344, 86 Kan. 214. (Annotated) 3. No force is given to a deed deposit- ed in escrow, which it would not otherwise have, by the fact that the vendor imposes conditions as to the right of withdrawal which violate the terms of his contract as to the deposit of the deed. Wilkins v. Somerville, n: 1183, 66 Atl. 893, 80 Vt. 48. (Annotated) 4. If possession of an escrow is obtained without performance of the condition upon which a delivery to the grantee was to be made, no title passes. Horner v. Spencer, 17: 622, 95 Pac. 757, 21 Okla. 155. 5. If a deed, absolute and complete on its face, is delivered to the grantee as an es- crow, to take effect in any event, the condi- tion is void, the deed is absolute, and title passes to the grantee on delivery thereof. Dorr v. Midelburg, 23: 987, 65 S. E. 97, 65 W. Va. 778. 6. The deposit in bank of a properly executed deed, and money, notes, and war- rants sufficient to pay the purchase price, the deed to be delivered when the warrants are properly indorsed, constitutes a legal escrow agreement ; and delivery of the deed can be compelled upon proper indorsement of the warrants within a reasonable time. Manning v. Foster, 18: 337, 96 Pac. 233, 49 Wash. 541. 7. The mere deposit in a bank of a deed executed in accordance with a parol contract to convey real estate, with di- rections to return it to the maker upon nonperformance of certain specified con- ditions, does not constitute an enforceable escrow agreement. King v. Upper, 31: 606, 106 Pac. 612, 57 Wash. 130. Digest 1-52 L.R.A.(N.S-) ESTABLISHMENT. Of homestead, see HOMESTEAD, I. c. ESTATE. Joint estates or estates in common, see CO- TENANCY. By curtesy, see CURTESY. In real property generally, see DEEDS, II. d; II. e. By entireties, see HUSBAND AND WIFE, II. b. Creation of base or determinable fee by lease, see LANDLORD AND TENANT, 108. Life estates, see LIFE TENANTS. Merger of estates, see MERGER. Created by will, see WILLS, III. g. ESTATES BY ENTIRETIES. See HUSBAND AND WIFE, II. b. ESTATES TAIL. See DEEDS, II. e, 3. ESTIMATES. Mistake of architect in making, see ARCHI- TECTS, 1. By engineer as condition precedent to right to recover on contract, see CONTRACTS, 670. Of engineer, conclusiveness, see CONTRACTS, 681-683, 685. Fraud in making, see FRAUD AND DECEIT, 36, 37. ESTOPPEL. I. Of municipality, county, town, or state, 124. a. Of municipality, county, or town, 122. b. Of state, 23, 24. II. By deed, bond or record, 2546. a. By deed, 2537. b. By bond or mortgage, 38. c. By record, 3946. III. Equitable estoppel or estoppel in pais, 47-265. a. In general; effect, 4762. b. Or married women, 6468. c. As to corporate existence or potvers, 6973. d. By contracts or agreements generally; ratification, 74 80. e. By conduct, request, or admis- sions generally, 811O8. f. By assent, 1O9116. 1050 ESTOPPEL, I. a. ///. continued. g. By laches, silence, or acquies- cence, 117 1G2. 1. In general, 117136. 2. As to real property, 137 , 162. t'-* a. In general, 137147. I b. Permitting improve- ' ments or expendi- tures, 14:8162. h. By representations, 163 17 'S. i. By negligence or fraud, 179 197. j. By inconsistency in acts, claims, etc., 198226. 1. In general, 198-2O9. 2. As to title, 21O212. 3. Acts or claims in judicial proceeding, 213226. fc. By receiving benefits, 227 241. I. By character or relation of parties, 242-2 5O. m. Who affected, 251-263. n. Who may set up, 264, 265. Waiver of estoppel to appeal, see APPEAL AND ERROR, 16. To raise question on appeal, see APPEAL AND ERROR, VII. g. Raising for first time on appeal defense of failure to plead, see APPEAL AND ER- ROR, 727. Decision on appeal as, see APPEAL AND ER- ROR, 1664. Of senior mortgagee to claim paramount lien as against junior mortgagee, see CONTRACTS, 72. By architect's certificate as to compliance with building contract, see CONTRACTS, 679. Burden of proving facts essential to, see EVIDENCE, 661. Evidence to show, see EVIDENCE, 917, 936. .1379. To object to hypothetical question, see EVI- DENCE, 1069. Sufficiency of evidence as to, see EVIDENCE, 2338. Proof of, under traverse, see EVIDENCE, 2434. Limiting time to sue on policy, see INSUR- ANCE, VI. h, 3. Striking out plea of, see PLEADING, 144. To maintain trespass, see TRESPASS, 21. To object to admission of deposition, see TRIAL, 79. To complain of instruction in action against city for injury by defective highway, see TRIAL, 1057. To maintain action for conversion, see TROV- ER, 48. /. Of municipality, county, town, or state. a. Of municipality, county, or town. (See also same heading in Digest L.R.A. 1-10.) Estoppel of county by acts of officers, see infra, 256. Digest 1-52 L.R.A. (N.S.) To deny liability on bonds, see BONDS, III. b, 6. 1. A municipal corporation cannot es- top itself from asserting the invalidity of warrants issued in excess of its constitu- tional debt limit. Eddy Valve Co. v. Crown Point, 3: 684, 7(i N. E. 536, 166 Ind. 613. 2. The construction by a property own- er, of improvements to use in connection with a railroad, does not estop the munici- pality from requiring an elevation of the railroad tracks in the interest of the public welfare, to avoid danger of injury to per- sons at street crossings, although the result is to destroy the switch connection. Otis Elevator Co. v. Chicago, 52: 192, 105 N. E. 338, 2U3 111. 419. 3. The fact that the city attorney knew the facts in a transaction by which a mem- ber of a committee for the purchase of real estate for the city fire department sold land to the city under such circumstances as to constitute him a trustee will not work a waiver or estrppel against the city to claim the benefits of the transaction accruing to the member of the committee. Minneapolis v. Canterbury, 48: 842, 142 N. W. 812, 122 Minn. 301. To deny validity of ordinance. 4. A municipality cannot, in support of a prosecution for acts authorized by its ordinance, maintain that the ordinance ia void because creating a monoply, delegating legislative and arbitrary power to its board of health, and imposing unreasonable and burdensome restrictions. Zimmerman v. Gritzmacher, 21: 299, 98 Pac. 875, 53 Or. 206. (Annotated) 5. A municipality which has granted a license under an invalid ordinance, receiv- ing therefor a valid consideration, is not estopped from asserting such invalidity in an action to recover back the license fee after denial by the city of the rights at- tempted to be granted, where the acts of the plaintiff in obtaining the license involve moral turpitude and a violation of a gen- eral law enacted to carry into effect a pub- lic policy of the state. Levy v. Kansas City, 22: 862, 168 Fed. 524, 93 C. C. A. 5:23. By laches; acquiescence or recogni- tion. See also infra, 16. 6. A city is not estopped by reason of its past failure to enforce its ordinances against the obstruction of sidewalks from subsequently removing all the obstructions therefrom. Chapman v. Lincoln, 25: 400, 121 N. W. 596, 84 Neb. 534. 7. Municipal authorities cannot become estopped to require the removal from a street of the rails of a street railway by standing by and seeing the rails laid with- out objection. Bangor v. Bay City Traction & E. Co. 7: 1187, HO N. W. 490, 147 Mich. 165. (Annotated) 8. A municipal corporation which fails to assert its title to a street dedicated to public use, and permits an abutting prop- erty owner to improve his property at large expense, with reference to what he supposes in good faith to be the true street boundary ESTOPPEL, I. a. 1051 line, and maintain the improvements for a period of thirteen years, will be estopped from asserting a title which will practically destroy the value of the abutting property for residence purposes, and work irremedia- ble injury to the owner. Oliver v. Synhorst, 7: 243, 86 Pac. 376, 48 Or. 292. (Annotated) 9. A city which, for a period of more than sixty years, does not a.ssert its tit.in to a strip of land dedicated as a public street, and permits the former owner to deal with it as his own, paying taxes and building on it, is estopped to assert its ti- tle. Peoria v. Central Nat. Bank, 12: 687, 79 N. E. 296, 224 111. 43. 10. The approval of the work by the city engineer under whose supervision a contract for public improvement is to be performed will, in the absence of fraud or concealment which prevents a discovery of imperfections, estop the municipality from contesting the contractor's right to the contract price be- cause of failure to perform the work accord- ing to the specifications, so far as defects are concerned which were discoverable by reasonable attention to the duties of inspec- tion. City Street Improv. Co. v. Marys- ville, 23: 317, 101 Pac. 308, 155 Cal. 419. ( Annotated ) 11. A city is estopped to open streets through property upon which a great in- dustrial plant has been placed at its solic- itation, so long as they are occupied for the purpose of such plant, where its mayor, up- on inquiry by the owners of the plant as to streets, the existence of which through the property was doubtful, informed them that if they Existed they were of no use and would never be claimed by the city, up- on which information the proprietors acted in establishing the plant. Portland v. In- man Poulsen Lumber Co. 46: 1211, 133 Pac. 829, 66 Or. 86. . (Annotated) 12. Permitting a building to stand below high-water mark so as to interfere with the operation of a drawbridge for a period of fourteen months does not estop the county commissioners from requiring its removal. Lenoir County v. Crabtree. 39: 1213, 74 S. E. 105, 158 N. C. 357. 13. The public is not, on the theory of estoppel, barred from contesting the collec- tion of tolls on a county bridge, by long acquiescence therein. Breathitt County v. Hammons, 42: 836, 150 S. W. 661, 150 Ky. 502. 14. A municipal corporation which ap- points a superintendent to supervise the building of a bridge for it, and accepts the work done under his supervision as well as the bridge, is estopped thereafter to deny liability for such work and bridge, because of irregularity in the appointment of the superintendent. Matheney v. El- dorado, 28: 980, 109 Pac. 166, 82 Kan. 720. By conduct, contract, or assent. 15. A municipal corporation whose sur- veyor, in accordance with the city ordi- nances, runs the lines of a lot owner ac- cording to a map of the city which has been publicly recognized to some extent, and whose officials recognize such line by re- Digest 1-52 L.R.A.(N.S.) quiring the construction and maintenance of sidewalks, is estopped to change the street line so as to necessitate the destruction of a building on the property which was erect- ed in accordance with the lines so run and has stood for more than twenty years, al- though the line claimed by it is the one established by the plat by which the streets were dedicated and accepted for public use. Krause v. El Paso, 14: 582, 106 S. W. 121, 101 Tex. 211. 16. A municipal corporation is not es- topped to forbid further interments in a cemetery because it conveyed the land to the cemetery owners for cemetery purposes, and acquiesced for many years in such use, at least, if conditions have changed by the growth of the city since the estab- lishment of the cemetery. Laurel Hill Cemetery v. San Francisco, 27: 260, 93 Pac. 70, 152 Cal. 464. 17. The approval by a municipal cor- poration of the plans for a building, which show a vault or area beneath the adjoin- ing sidewalk, the fee of which is in the city, does not estop it from requiring com- pensation from the owner for such por- tion of its property as he makes use of for the vault, or removal of the vault. Ta- coma Safety Deposit Co. v. Chicago, 31 : 868, 93 N. E. 153, 247 111. 192. 18. An estoppel to complain that a dif- ferent kind of material was used in a por- tion of a street pavement from that which the contract called for is created by accept- ing and paying for the work with knowl- edge of that fact. Owensboro City R. Co. v. Barber Asphalt Pav. Co. 14: 1216, 107 & W. 244, 32 Ky. L. Rep. 844. By inconsistency in acts or claims. See also supra, 14. 19. A city taking title by eminent do- main is estopped to deny the validity of tax and special assessment liens, deducted from the appraisement," where the judgment of appraisal provides that there shall be no deductions from the award "for taxes or special assessments, the said land being taken by tne city subject to all special and general taxes against the property." City Safe Deposit & A. Co. v. Omaha, 21 : 72, 112 N. W. 598, 79 Neb. 446. (Annotated) 20. A municipal corporation which, in its pleadings, in a suit to enjoin its inter- ference with the rights of a riparian owner in the shore in front of his property, admits that it holds the legal title in trust for the public in general and for riparian owners in particular, is estopped to deny its rela- tion of trustee to the riparian owner. Mo- bile Transp. Co. v. Mobile, 13: 352, 44 So. 976, 153 Ala. 409. By receiving benefits. 21. A municipal corporation which re- ceives and retains substantial benefits un- der a contract which it is authorized to make, but which is void because irregular- ly executed, cannot maintain an action, after having paid the reasonable value of the benefits received, to recover them back. Gathers v. Moores, 14: 298, 110 N. VV. 689, 78 Neb. 13. 1052 ESTOPPEL, I. b, II. a. 22. Injunction will not lie at the suit of the town to prevent the use by a bank of town orders which it has taken as collateral from the town treasurer, to whom it agreed to advance money to pay the orders upon his agreement to assign the orders to it as collateral; since the town, having received the benefit of the agreement, is estopped to deny the bank's right of reimbursement. New Haven v. Weston, 46: 921, 86 Atl. 996, 87 Vt. 7. b. Of state. (See also same heading in Digest L.R.A. 1-70.) To attack franchise of village, see MUNICI- PAL CORPORATIONS, 1. 23. The state may be estopped by its acts or laches, and should not be allowed to oust a street railway company of its rights and franchises, where for a long series of years it has stood silent and seen the cor- poration expend large sums in the acquisi- tion of property and improvements made thereon, under a claimed right so to do under its charter. State ex rel. Caldwell v. Lincoln Street Railway, 14: 336, 114 N. W. 422, 80 Neb. 333. (Annotated) 24. A state cannot be estopped to exer- cise its power of assessment and taxation with reference to lands merely because it may have made, or continues to make, wrongful claim to own them. Chicago, St. P. M. & O. R. Co. v. Douglas County, 14: 1074, 114 N. W. 511, 134 Wis. 197. (Annotated) II. By deed, bond, or record, a. By deed. (See also same heading in Digest L.R.A. 1-10.) By record of undelivered deed, see infra, 40. Estoppel to deny validity of deed, see infra, 140. 25. One alleged to have conveyed real estate while ill is not estopped by the deed to testify that he gave no paper or any kind of deed, as bearing on the question of his mental capacity at the time; nor is the evidence immaterial upon that issue. At- wood v. Atwood, 37: 591, 79 Atl. 59, 84 Conn. 169. 26. A grant, without reservation, of a strip of land for a conduit to connect a river with a lake, does not estop the grant- or from complaining of the diversion of the flood water of the river to the injury of his property, if he had no notice that the grantee contemplated such diversion. Thompson v. New Haven Water Co. 45: 457, 86 Atl. 585, 86 Conn. 597. 27. One is not estopped from assert- ing title to a strip of land over which he has granted a private right of way to several persons if the deeds are on record, Digest 1-52 L.R.A.(N.S.) and from them the intention is apparent that the strip was to be used as an ease- ment and appurtenance to the several lots to the owners of which the right was grant- ed. Brown v. Oregon Short Line R. Co. 24: 86, 102 Pac. 740, 36 Utah, 257. 28. The owner of a life estate in land, who ineffectually attempts, as administra- tor of the former owner, to convey the prop- erty as belonging to the estate, will not be heard to say that the deed does not pass title to his life estate, and therefore the grantee is rightfully in possession until such estate terminates, so that the remainder- man cannot maintain an action for posses- sion until that time. Millican v. McNeill, 21 : 60, 114 S. W. 106, 102 Tex. 189. (Annotated) 29. A mother who conveys real estate to her infant child by deed duly acknowledged and recorded, and acquiesces therein for thirteen years, is estopped, as well as one claiming under her, from asserting that it was not her intention to convey the proper- ty, and that the deed was recorded through fraud or mistake. Pentico v. Hays, 9: 224, 88 Pac. 738, 75 Kan. 76. Of grantee. 30. A recital in a deed sought from one claiming as the widow of the deceased own- er, to prevent litigation, that she was the surviving wife of decedent, does not estop adverse claimants from contesting that fact. Berger v. Kirby, 51: 182, 153 S. W. 1130, 105 Tex. 611. 31. A purchaser of a tract of land cut off from a highway by remaining land of the grantor and that of strangers, who accepts a deed reciting that the grant is bounded on one side by land of the grantee, and executes a purchase money mortgage con- taining the same recital, is estopped, as against a subsequent grantee of the re- mainder of the grantor's tVact, from claim- ing that the recital was a mistake, and that he had no access to the highway, and there- fore was entitled to a way of necessity. Doten v. Bartlett, 32: 1075, 78 Atl. 456, 107 Me. 351. Of married woman. Estoppel of married woman generally, see infra, III. b. 32. A quitclaim deed by a woman of land held by herself and her husband by entireties does not pass the property when the title vests in her by the death of her husband. Ernst v. Ernst, 51: 317, 144 N. W. 513, 178 Mich. 100. 32a. A warranty of title in an attempted conveyance by a married woman of her ex- pectancy will not estop her from setting up the invalidity of the conveyance when the expectancy vests, where the conveyance was made to secure debts of her husband with the making of which she had nothing to do, and from which she received no benefit, especially where she was misled as to the character of the instrument which she exe- cuted. Taylor v. Swafford, 25: 442, 123 S. W. 350, 122 Tenn. 303. Of heirs. 33. An administrator who executes a ESTOPPEL, II. b, c. 1053 deed purporting to convey testator's real estate, in which he has a private interest as heir, is estopped to claim that such inter- est did not pass, although the deed is void on its face, especially where he warrants the title as fully as by law he is authorized to do, and the statute requires no covenant in an administrator's deed. Bliss v. Tidrick, 32: 854, 127 N. W. 852, 25 S. D. 533. By recitals. Recitals in bond, see infra, 38 ; BONDS, 17. 34. One executing a sealed contract giv- ing another the right to purchase stock within a specified time cannot, for the pur- pose of avoiding the contract, dispute the receipt of the recited consideration; at least, he cannot as against the claims of a bona fide assignee of the contract. Watkins v. Robertson, 5: 1194, 54 S. E. 33, 105 Va. 269. 35. The grantor (and his successors in title) of land described as "situate on the seashore," and as being of certain dimen- sions and area, more or less, and as being bounded "on or towards the west by the seashore," "which piece of land hereinbefore expressed to be hereby granted is more par- ticularly delineated in the plan drawn on the back of these presents," the conveyance being made in order that the grantee might erect a seashore residence, is estopped from setting up, as against the grantee, that the land to the west of the boundary shown in the plan on the conveyance is not "sea- shore" in the strict legal sense, so as to in- terfere with the grantee's access to the sea. Mellor v. Walmesley, 4 B. R. C. 728, [1905] 2 Ch. 164. Also Reported in 74 L. J. Ch. N. S. 475, 53 Week. Rep. 581, 93 L. T. N. S. 574, 21 Times L. R. 591. As to after-acquired interest. See also, COVENANTS AND CONDITIONS, 22, 23. 36. Irrespective of the jurisdiction of courts of equity, it has always been possi- ble to convey subsequently acquired inter- ests by operation of the principle of estop- pel. McAdams v. Bailey, 13: 1003, 82 N. E. 1057, 169 Ind. 518. 37. A homestead claimant who executed a mortgage upon government land held by him under the homestead act and prior to final proof, and who afterward procured the title to the land from the government, is es- topped from defeating, by his own act, the enforcement of the lien created by the mortgage; but his after-acquired title in- ures to the benefit of the mortgagee. Stark v. Morgan. 6: 934, 85 Pac. 567, 73 Kan. 453. b. By bond or mortgage. (See also same heading in Digest L.R.A.. 1-10.) By bond. Estoppel as to municipal bonds, see BONDS, III. b, 6. By recitals in bond, see BONDS, 17. Of obligors on replevin bond, see REPLEVIN, 26. See also infra, 220. 38. A surety company furnishing a bond Digest 1-52 L.R.A.(N.S.) for a bank designated by the state treasur- er as a depository for the collection of drafts, checks, and certificates of deposit that might come into his hands on account of any claims due the state, which bond contained the condition that the bank would promptly collect the proceeds of all such instruments intruste* to it, is, upon the bank's default, estopped to contend that only drafts, checks, and certificates of deposit for taxes were in the contempla- tion of the parties to the bond, although the provision for the appointment of the depository is part of an act relating to taxation, since the surety company, hav- ing given a bond sufficiently broad to cover paper derived from other sources, thereby enabling the depository to obtain posses- sion thereof, is precluded from denying that the bond is binding according to its terms. United States Fidelity & G. Co. v. State, 26: 865, 106 Pac. 1040, 81 Kan. 660. By mortgage. See supra, 31, 37; infra, 255. c. By record. (See also same heading in Digest L.R.A.. 1-10.) Estoppel by deed, see supra, II. a. See also supra, 27, 29; infra, 55. 39. A husband whose homestead, during his confinement as an insane person, has been conveyed by his wife, who had the le- gal title, is not estopped by the record title from asserting, after he has been adjudged sane, his homestead right against the grantee. Weatherington v. Smith, 13: 430, 109 N. W. 381, 77 Neb. 363. 40. Failure of successors in title to one whose undelivered deed to real estate has been recorded, to remove it from the record, will not estop them from denying the title of a stranger who purchases the property in reliance on the record. Alabama Coal & C. Co. v. Gulf Coal & C. Co. 7: 712, 40 So. 397, 145 Ala. 228. (Annotated) 41. Upon trial of an action for libel in charging plaintiff with larceny based on a court record, plaintiff cannot prove that, although he had pleaded guilty to the charge, he was in fact not so. Register Newspaper Co. v. Stone, n: 240, 302 S. W. 800, 31 Ky. L. Rep. 458. By judgment. As to effect and conclusiveness of judgment generally, see JUDGMENT, II. See also infra, 123, 125, 135; JUDGMENT, 175. 42. In an action brought to recover dam- ages for an alleged trespass upon real prop- erty, the defendant is entitled to the bene- fit, as an estoppel, of a judgment rendered against the plaintiff in an action brought by him for the same act against another person who was the immediate actor in the commission of the trespass complained of, even though the defendant would not have been bound by the adjudication had it been the other way. Portland Gold Min. 1054 ESTOPPEL, III. a. Co. T. Strattcm's Independence, 16: 677, 158 Fed. 63, 85 C. C. A. 393. 43. A judgment in an action against a city for injuries resulting from an obstruc- tion in a street dees not estop one who placed the obstruction there and who was given notice and an opportunity to defend in the action against the city, from show- ing, in a subsequent action against him as indemnitor, that he had used reasonable care to keep the obstruction in safe condi- tion, and was therefore not liable. Grand Forks v. Paulsness, 40: 1158, 123 N. W. 878, 19 N. D. 293. (Annotated) 44. A judgment against plaintiff for fail- ure of proof in an action for possession of real property, and to establish title, es- tops him from further prosecution of an action for such relief. Wicker v. Jones, 40: 69, 74 S. E. 801, 159 N. C. 102. 45. A suit for divorce upon the ground of habitual indulgence in violent and un- governable temper does not constitute an estoppel by judgment to a second suit for divorce on the grounds of extreme cruelty and desertion, where different facts are al- leged, as the principle of res judicata should not be so applied as to prevent one deter- mination of every distinct cause of action, under statutes authorizing divorces for spe- cific and separate species of misconduct. Prall v. Frail, 26: 577, 50 So. 867 ; 58 Fla. 496. (Annotated) 46. A judgment entered in favor of a minor employee against his employer in a suit by his next friend, who was fraudu- lently induced by the employer's insurer to bring an action for a nominal amount, is not a bar to an action by the minor to hold the insurer liable for the fraud. McGillvray v. Employers' Liability Assur. Corp. 46: no, 102 N. E. 77, 214 Mass. 484. ///. Equitable estoppel or estoppel in pais. a. In general; effect. (See also same heading in Digest L.R.A. 1-70.) Estoppel of municipality, county, town or state, see supra, I. To claim title to property drifting over boundary line, see ADJOINING LAND OWNERS. To claim title by adverse possession, see ADVERSE POSSESSION, 59. To obtain review of proceedings, see APPEAL AND ERROR, 91, 92, 94-97. Of attorney to claim contingent fee, see AT- TORNEYS, 61. To set up original obligee's breach of jcon- dition as against assignee of note not protected by law merchant, see BILLS AND NOTES, 122. Of building association to deny power to borrow money, see BUILDING AND LOAN ASSOCIATIONS, 19. To rely on statute of frauds, see CONTRACTS, 308. Digest 1-52 L.R.A.(N.S-) I Permitting doctrine of estoppel to transfer title of real estate, see CONTRACTS, 247. | To claim damages for delay in performance of building contract, see CONTRACTS, 704. Estoppel of court by rule of stare decisit, see COURTS, V. b. By electing remedy, see ELECTION OF REME- DIES, 2. To object that no attempt to purchase prop- erty was made by public servico cor- poration, see EMINENT DOMAIN, 123. Of joint executor to deny liability for acts of coexecutor, see EXECUTORS AND AD- MINISTRATORS, 73. Of one from whom property has been se- cured by fraud from claiming it from third person, see FRAUD AND DECEIT, 73. Of infant by act of guardian, see GUARDIAN AND WARD, 28. Of public authorities to close cattle pass under highway, see HIGHWAYS, 23. Of insured or beneficiary, see INSURANCE, V. a. Of insurance company, see INSURANCE, V. b. To dispute face of policy, see INSURANCE, 788. To set up illegality of consideration for deed, see JUDGMENT, 42. To deny authority of attorney to represent one in action, see JUDGMENT, 336. Of landlord to treat tenant as holding over under terms under original lease, see LANDLORD AND TENANT, 46. To charge larceny in mode of securing goods where title was intended to be trans- ferred, see LARCENY, 34. To recover from bank which has paid draft on forged indorsement, see NOTICE, 28. Of administratrix of deceased partner to dis- affirm sale of property and sue for ac- counting, see PARTNERSHIP, 86. To claim compensation for additional use of party wall, see PARTY WALL, 19. Necessity of pleading, see PLEADING, 283, 473-478. Sufficiency of allegation as to, see PLEAD- ING, 524, 525. Agency or authority by estoppel, see PRINCI- PAL AND AGENT, 22. As to validity of local improvement assess- ment, see PUBLIC IMPROVEMENTS, 64. Of railroad to cease maintenance of ware- house, see RAILROADS, 27. Of conditional vendor to reclaim property, see SALE, 155. To set up defense that contract was made on Sunday, see SUNDAY, 28. To change artificial condition of water, see WATERS, 139, 327-330. To revoke election under will, see WILLS, 346. C 47. Estoppel may, in equity, be relied on to work a transfer of title to real estate from a member of a partnership in whose name it stands to grantees of the firm. Johnson 1. Hogan, 37: 889, 123 N. W. 891,. 158 Mich. 635. ESTOPPEL, III. a. 10;V 48. The equitable defense of estoppel in pais may be set up in a civil action under the statute, to determine adverse claims to real estate, which supersedes the old com- mon-law and equitable actions of ejectment and to quiet title, where the statute fur- ther provides that in any civil action de- fendant may by his answer set up as many defenses and counterclaims as he may have, whether they be such as have been hereto- fore denominated legal or equitable, or both. Kenny v. McKenzie, 49: 775, 127 N. W. 597, 25 S. D. 485. (Annotated) 49. Evidence that an execution debtor had been in the possession of property un- der a lease and that his name appears on the window and safe is not sufficient to es- top the true owner from asserting title to property when levied upon under an attach- ment against such debtor where the attach- ment creditor had not dealt with him in reliance on his apparent ownership and it does not appear that the owner had intend- ed to clothe him with apparent or ostensible ownership for the purpose of enhancing his credit. Kiewel v. Tanner, 25: 772, 117 N. W. 231, 105 Minn. 50. 50. The lessee of the lower floors of a building, who, without right, attempts to lease the roof to a stranger for advertising purposes, is not in a position to claim an estoppel against interference with the lease of the sign privilege after the sign is in place, where, when notified by the owner's agent, who discovered signs in process of erection thereon, that he had no right to make such leases, he did not inform the agent that he claimed the right or that he had received compensation for the lease. Forbes v. Gorman, 25: 318, 123 N. W. 1089, 159 Mich. 291. 51. One who, pending a negotiation for a lease, places personal property which is to be the consideration for it in possession of the other party, and permits him to use it as his own for a year, is estopped to assert title against one who, without notice, has taken a mortgage upon the property as that of the one in possession. Davis v. First Nat. Bank, 25: 760, 89 S. W. 1015, 6 Ind. Terr. 124. (Annotated) 52. Mere possession and control of per- sonal property is not sufficient to estop the real owner from asserting his title against a person who has dealt with the one in possession on the faith of his apparent own- ership, but to work an estoppel in such case the possession of the third person must be of such a character or he be so clothed with the indicia of title as to deceive those deal- ing with him in the belief of his ownership. Kiewel v. Tanner, 25: 772, 117 N. W. 231, 105 Minn. 50. (Annotated) Knowledge or reliance of other party. See also infra, 133, 164. 53. Where by statute both spouses must join in a deed of the homestead, a man does not, by wrongfully abandoning his wife, in whose name the title to the homestead stands, estop himself from questioning the validity of her deed to their children, who were cognizant of the faot, and therefore Digest 1-52 :L.R.A.(N.S.) not misled into taking the deed in reliance on the belief that the grantor was a single person. Somers v. Somers, 36: 1024, 131 N. W. 1091, 27 S. D. 500. (Annotated) 54. A corporation is not estopped by a statement in its certificate of stock, that no transfer of the stock can be made on the books of the corporation without production of the certificate, where the statute under which the corporation is organized pro- vides that it may be done by court order without production of the certificate under certain circumstances, -since the holder of the stock, being charged with notice of the statute, cannot rely on the corporation's representation as an estoppel. Shaw v. Goebel Brew. Co. 45: 1090, 202 Fed. 408, 120 C. C. A. 470. 55. One who permits a void deed, exe- cuted in proceedings to foreclose a build- ing and loan association mortgage on his property, to remain of record, is not es- topped to assert its invalidity against one who purchases all the assets of the asso- ciation for a lump sum without knowing the facts with reference to the particulai claim, which is only an insignificant part of the assets transferred. Cobe v. Lovan, 4: 439, 02 S. W. 93, 193 Mo. 235. 56. A lessee is not estopped from claim- ing under a written extension of a lease as against a purchaser of the property, or even as against the guardian of his insane les- sors, by an answer to a letter of the guard- ian in which the lessee states that the terms of a new lease have not been signed, where the lessee is not informed of the guardian's appointment, or of the purpose of his in- quiry, and that his answer will be relied on. Quinn v. Valiquette, 14: 962, 68 Atl. 515, 80 Vt. 434. 57. A purchaser of real estate cannot as- sert an estoppel against a lessee of the property by reason of information given out by the latter concerning the lease, when he does not rely on it. Quinn v. Vali- quette, 14: 962, 68 Atl. 515, 80 Vt. 434. 58. A property owner cannot claim an estoppel against his neighbor's asserting the true boundary line between them from the facts that the neighbor erected a fence leav- ing a strip of his land outside of it, and that, in erecting his house, the property owner thought he would have a passage- way between it and the neighbor's property, where the house was located with reference to the true line on the opposite side, so that he had notice of the facts. Cottrell v. Pickering, 10: 404, 88 Pac. 696, 32 Utah, 62. Change of position. 59. The bringing of a suit for account- ing by an administrator against one who administered upon an estate in which de- cedent was interested, and acted as dece- dent's agent in the management of his es- tate prior to his death, in reliance upon admissions of liability made to the admin- istrator, who was formerly legal adviser of such former administrator and agent, and to heirs of decedent, is not such a change of position as will estop the one making the admissions from denying liability in the 1056 - KSTOPPEL, III. b, c. suit. Barnett v. Kemp, 52: 1185, 167 S. W. 546, 258 Mo. 139. (Annotated) 60. A child of a life tenant cannot, dur- ing her lifetime, assert as her "heirs" an estoppel against disturbance of a distribu- tion to her and her heirs of property inef- fectually devised either on his own account or by her assertion of it on his behalf, since he cannot identify himself as "heirs," at least where he has not been induced to do, or forbear doing, anything by the conduct of another, to furnish the foundation of an es- toppel. Gerard v. Beecher, 15: 900, 68 Atl. 438, 80 Conn. 363. 61. A surety on a note does not, by pay- ing the instrument, change his position so as to be entitled to rely as an estoppel upon representations as to its validity by the maker of a note held by him as collateral, which were made after he assumed his obli- gation. Holzbog v. Bakrow, 50: 1023, 160 S. W. 792, 156 Ky. 161. In whose favor. 62. One who purchases an interest in an estate without examining the records can- not hold the owner's widow estopped to as- sert her title to a parcel of the property, by the fact that she attempted to inventory it as belonging to the estate, if she refers to the source of title which the records would show placed the title in her. Bell v. Nye, 42: 1127, 99 N. E. 610, 255 111. 283. b. Of married women. (See also same heading in Digest L.R.A. 1-10.) Estoppel by deed, see supra, 32. Estoppel to claim dower rights, see infra, 131 ; DOWER, I. c. By commencing divorce suit to deny hus- band's previous death, see INSURA>'CE, 481. Of woman taking conveyance from spend- thrift husband to set up usury in debts secured by mortgage executed by him, see USUBY, 34. See also infra, 147, 211, 260, 1265. 64. The mere fact that a widow accepts and records a deed of land executed in her favor in accordance with a marriage settle- ment, takes possession of the property, and collects the rents, does not estop her from electing under the statute to take her stat- utory benefits in her husband's estate, rath- er than the provisions of the settlement, if the election is made within the time al- lowed by statute, and she tenders back a conveyance of the land and the rents col- lected. Rowell v. Barber, 27: 1140, 125 N. W. 937, 142 Wis. 304. 65. A woman who permits her real es- tate to stand in the name of her husband for many years until he is accepted as a surety, to release an attachment of proper- ty of a corporation in which he is interested, upon the faith of the record title and his assertion of ownership of the property, is estopped to assert her title against the right of the creditor, although she was guil- Digest 1-52 L.R.A. (N.S.) ty of no fraud in the transaction. Gold- berg v. Parker, 46: 1097, 87 Atl. 555, 87 Conn. 99. (Annotated) 66. That a wife who, with her husband was in pos.-je.-sion of land as a community, claiming title when he took a written lease for the property from a rival claimant, re- fused to sign it, will not prevent its con- stituting an estoppel upon her right to set up the community title in an action for un- lawful detainer, where she remained in pos- session of the property under the lease un- til its expiration. Monroe v. Stayt, 30: 1 102, 107 Pac. 517, 57 Wash. 592. 67. An estoppel on a wife, who with her husband, was in possession a.s a com- munity of real estate when he took a written lease of the property from another claimant, which she did not sign, to deny the title of the landlord, is not prevented by a statute providing that he should not sell, convey, or encumber the community real property unless she joined in the deed. Monroe v. Stayt, 30: 1102, 107 Pac. 517, 57 Wash. 592. (Annotated) To assert incapacity. Of married woman to deny liability on note, see HUSBAND AND WIFE, 36. As to her separate estate. 68. Failure to object, when a stranger called in to effect the conveyance of real estate from wife to husband makes his deed to the husband after receiving title from the wife, does not estop her from contest- ing the validity of the conveyance on the ground of fraud and duress. Hoag v. Hoag, 36: 329, 96 N. E. 49, 210 Mass. 94. c. As to corporate existence or powers. (See also same heading in Digest L.R.A. 1-10.) Effect of receiving benefits, see infra, 23.'5. 235. To set up defense of ultra vires, see CORPO- RATIONS; IV. d, 2. 69. One who has sued a company as a corporation cannot, in the same suit, deny that it is such. Compton v. People's Gas Co. 10: 787, 89 Pac. 1039, 75 Kan. 572. 70. An information in the nature of quo warranto, filed against a corporation by its corporate name, admits the existence of the corporation. State ex rel. Caldwell v. Lincoln Street Railway, 14: 336, 114 N. W. 422, 80 Neb. 333. 71. Cestuis que trust are estopped from pleading the incapacity of a corporation to take title to real estate conveyed to it by their trustee. State Security Bank v. Hos- kins, 8: 376, 106 N. W. 764, 130 Iowa, 339. 72. A person is not estopped by dealing with parties as a corporation, who are ac- tively conducting business for profit under an assumed corporate name, when they have no charter, have filed no articles of incorporation, and have procured no color of legal organization as a corporation, from denying that they constitute a corporation of any kind, or from enforcing their indi- ESTOPPEL, III. d, e. 1057 vidual liability for the debts they incur under such a name. Harrill v. Davis, 22: 1153, 168 Fed. 187, 94 C. C. A. 47. 73. The fact that a party to a contract with a foreign corporation doing business within a state by the laws of which it is required to do and perform certain acts as a condition precedent to the doing of business within that state has made numer- ous payments of interest instalments before being sued, and without objection on the ground of the noncompliance of the corpora- tion with such conditions, does not consti- tute a waiver of the right to plead the cor- poration's failure to comply with the stat- ute and Constitution of such state in order to entitle it to do business therein. Tarr v. Western Loan & Sav. Co. 21: 707, 99 Pac. 1049, 15 Idaho, 741. d. By contracts or agreements general- ly ; ratification. (See also same heading in Digest L.R.A. 1-70.) See also supra, 73; infra, 241. 74. That one claiming ownership of a tract of land upon which another asserts a lien may have agreed with the latter or with someone else to pay off his claims of indebtedness affords no reason for holding that the claimant of the land is estopped from setting up title thereto. Equitable Loan & Secur. Co. v. Lewman, 3: 879, 52 S. E. 599, 124 Ga. 190. 75.. Stipulations in a written contract that neither party shall be bound by at- tempted changes in it, unless they are in writing and signed by the parties thereto, do not preclude the defense of fraud in se- curing the contract. Bonewell v. Jacobson, 5: 436, 106 N. W. 614, 130 Iowa, 170. 76. A release by an abutting property owner who also owns the fee of the street, on behalf of himself and his successors in title, of a corporation operating an elevated railroad therein from any claim for compen- sation arising from the maintenance and op- eration of the railroad, estops such succes- sors from claiming compensation for the op- eration of the road, either in eminent do- main proceedings or in an equity suit to en- join such operation until compensation is paid. Smyth v. Brooklyn U. Elev. R. Co. 23: 433, 85 N. E. 1100, 193 N. Y. 335. (Annotated) 77. One who, in sending an answer to an advertised offer of a prize for a correct so- lution of a problem, agrees to abide by the decision of the judges, does not thereby es- top himself from contesting their rejection of his solution on a ground not made a condition of the contest in the advertise- ment. Minton v. F. G. Smith Piano Co. 33= 305, 36 App. D. C. 137. (Annotated) 78. One who sells a newspaper plant by contract under seal, in his own name, cannot avoid his agreement not to conduct another paper in the same county, upon the ground that the property in fact be- Digest 1-52 HR.A.(N.S.) longed to his wife, and that he had no pecuniary interest in it. McAuliffe v. Vaughan, 33:255, 70 S. E. 322, 135 Ga. 852. Ratification. See also infra, 186, 228, 258. 79. Payment by the owner of the prop- erty of interest on a mortgage to which his signature was forged, estops him from contesting the validity of the instrument. Rothschild v. Title Guarantee & T. Co. 41: 740, 97 N. E. 879, 204 N. Y. 458. (Annotated) 80. If the fact that one who has under- taken to clear the title to another's prop- erty and dispose of it for part of the pro- ceeds, when he purchases with a portion of the property a judgment against a third person in whose name the property for- merly stood, so that the judgment is a cloud on the title to the property, and per- mits a transfer of the judgment to his prin- cipal, is administrate : of the judgment debtor, constitutes a constructive fraud, it cannot be taken advantage of by the person- al representative of the property owner, who has ratified the transaction. Mills v. Smith, 6: 865, 78 N. E. 765, 193 Mass. 11. e. By conduct, request, or admissions generally. (See also same heading in Digest L.R.A. 1-70.) Of municipality, see supra, 15-18. By fraudulent conduct, see infra, III. h. III. i. Of attorney to claim his contingent fee, see ATTORNEYS, 61. Of stockholders who have transferred stock to claim title or interest therein, see CORPORATIONS, 229. To assert dower, see DOWER, I. c. To claim easement, see EASEMENTS, 87. By misleading conduct of insurance com- pany, see INSURANCE, V. b, 5, b. Assisting physically in creation of condi- tion as affecting one's right to recover for damages to property caused there- by, see RAILROADS, 303. See also supra, 53, 56-58; infra, 133, 141, 158. 81. Merely establishing and using a depot in a city to which a railroad company has charter authority to run does not estop the company from afterwards extending the tracks to the point which it originally in- tended to reach. Central R. Co. v. Union Springs & N. R. Co. 2: 144, 39 So. 473, 144 Ala. 639. 82. To act or conduct of a husband dur- ing the lifetime and insanity of his wife will estop either of them from claiming their homestead, or from recovering it in an ac- tion begun while the wife is living. Withers v. Love, 3: 514, 83 Pac. 204, 72 Kan. 140. 83. One who participates as a stockholder and officer in an improper issuance of stock certificates marked "full paid" and "issued 67 for property purchased" is not debarred. !iy operation of the maxim In pari delicto potior- 1058 ESTOPPEL, III. e. cst conditio defendentis, from enforcing against the stockholders any just claims he may have as a creditor of the company, since he is not seeking to derive any advan- tage from the unlawful agreement. Easton Nat. Bank v. American Brick & T. Co. (N. J. Err. & App.) 8: 271, 04 Atl. 917, 70 N. J. Eq. 732. 84. A stockholder who participated as- tively in a transaction that resulted in an improper issuance of stock as "issued for property purchased," and himself received a part of such stock, is not estopped from par- ticipating as a creditor in proceedings taken to enforce the liability of delinquent stock- holders, by the circumstance that their stock certificates were marked "full paid" and "issued for property purchased," since the stockholders knew the fact to be otherwise. Easton Nat. Bank v. American Brick & T. Co. (N. J. Err. & App.) 8: 271, 64 Atl. 917, 70 N. J. Eq. 732. 85. The owner of a stock certificate in- dorsed in blank, who, in pledging the same to a reputable going bank, is free from negligence, is not estopped from asserting title thereto as against an innocent good- faith purchaser for value, who derives title through one who stole such certificate from the bank while it was pledged, even though the thief be the cashier of the bank. Schu- macher v. Greene Cananea Copper Co. 38: 180, 134 N. W. 510, 117 Minn. 124. 86. The owner of a certificate of indebt- edness of a corporation, which was issued by its receivers and is transferable on the books of the company, having a blank for assignment on its back, who indorses it in blank and delivers it to his brokers for sale, is bound by their act in transferring it to a bona fide purchaser for value, al- though the major portion of the purchase price is represented by cancelation of their indebtedness to him. McCarthy v. Craw- ford, 29: 252, 8G N. E. 750, 238 111. 38. (Annotated) 87. A memorandum made by the holder of a note at the time of receiving a partial payment thereon, "Indorsement on princi- pal," followed by the amount received, does not estop him from afterwards apply- ing enough of the payment to discharge the interest then due, since he has the option to apply the payment as far as necessary in satisfaction of interest due. Dollar Sav. & T. Co. v. Crawford, 33: 587, 70 S. E. 1089, 69 W. Va. 109. 88. When a bank by its course of deal- ing with a customer authorizes him to issue checks on it, it .vill be estopped to say, af- ter such checks have come in good faith in- to the hands of innocent holders, that the customer did not in fact have any money to his credit, and for this reason decline to pay the check. Robinson v. Bank of Pikeville, 37: 1166, 142 S. W. 1065, 146 Ky. 538. 89. One who withholds from record an assignment of a mortgage on property owned by a dealer in real estate is estopped from asserting her rights as against one who purchases the property on the faith of a release by the record mortgagee, al- ' Digest 1-52 "l*R.A.(N.S.) I though the statute merely makea an un- recorded instrument void as against instru- ments first recorded, and the assignment is- actually recorded before the deed or the release. Marling v. Milwaukee Realty Co* 5: 412, 106 N. W. 844, 127 Wis. 363. 90. Continued participation by an in- surer against employers' liabilit}', in de- fense of a suit against the insured for neg- ligent injuries to an employee, after an amendment placing liability on the ground of employing a minor contrary to law, which ground of liability is not covered by the policy, will not estop it from denying liability in case recovery is placed on that ground, where, upon the filing of the amend- ment, it notifies the insured that it will not be liable in case the recovery is on the ground stated in the amendment, and the insured thereafter partici-pates in the de- fense of the action. Sargent Mfg. Co. v. Travelers Ins. Co. 34: 491, 130 N. W. 211, 165 Mich. 87. (Annotated) 91. The administrator of one who had taken life insurance in favor of his wife, which became paid up before the parties v/ere divorced, so that by statute the di- vorce restored the right to the proceeds of the policy to him, is not estopped to as-crt title to such proceeds, by the fact that the policy is left in possession of the wife, if the husband collects the dividends on it. Sea v. Conrad, 47: 1074, 159 S. W. 622, 155 Ky. 51. 92. The lessee of a farm adjoining a rifle range is not estopped to complain if the range is used so as to endanger the lives of persons on the leasehold, by the fact that he assisted in negotiating a lease between his landlord and those operating the rifle range, of a small parcel of the leasehold to be used in connection with the range. Joos v. Illinois National Guard, 43: 1214, 100 N. E. 505, 257 111. 138. 93. The filing by the father, who is sure- ty on his son's note, of a claim against the latter's bankrupt estate for a sum due him, and the collection of a pro rata thereon, and its deposit by his attorney in the bank hold- ing the son's note, to be applied thereon un- der the mistaken belief that the father was still liable on the note as surety, will not estop him from setting up his release by ex- tension of time to the son on the paper. Morehead v. Citizens' Deposit Bank, 23:- 141, 113 S. W. 501, 130 Ky. 414. 94. The application for a mandatory in- junction to compel the removal of a tele- phone pole from plaintiff's land will not estop him from proceeding to remove it himself after notice of intention to aban- don the suit and rely on such remedy, especially where the owner of the pole shows no disposition to await the determination of its rights in the suit, but proceeds to at- tach fixtures and wires to the pole, thereby changing the status quo. Maryland Teleph. & Teleg. Co. v. Ruth, 14: 427, 68 Atl. 358, 106 Md. 644. 95. One employed, because of his me- chanical skill, to cheapen processes used in the business of his employer, will be es- ESTOPPEL, III. e. 1050 topped to dispute the right of the employ::-, so long as he continues in business, to use apparatus and the process for which it was designed, which he invented while so em- ployed and upon which he secured a patent, to the extent that space has been arranged in specially designed buildings to accom- modate the apparatus with his knowledge and under his direction. Barber v. National Carbon Co. 5: 1154, 129 Fed. 370, 64 C. C. A. 40. (Annotated) 96. A vendee of articles to be furnished by successive deliveries, the first of which was defective in quality, of which fact lie made complaint, but subsequent deliveries of which substantially complied with the contract and were accepted, is estopped by such acceptance from claiming a release from his obligation to receive and pay for de- liveries thereafter made, on account of the defects in the earlier deliveries. McDonald v. Kansas City Bolt & Nut Co. 8: mo, 149 Fed. 360, 79 C. C. A. 298. (Annotated) 97. A purchaser of a set of books to be delivered one at a time and paid, for as delivered is estopped to insist on continued performance by the seller, where, after he has failed to pay for several books deliv- ered, and has been notified that the con- tract has been rescinded, he pays no at- tention to demands for payment for the volumes received, and makes no demand for future deliveries for more than two years, until the price of the books has been ad- vanced; and it is immaterial that payment for the volumes received is subsequently paid by one to whom the contract had been assigned. Quarton v. American Law Book Co. 32: i, 121 N. W. 1009, 143 Iowa, 517. (Annotated) 98. A refusal of a property owner to ac- cept a tender of a cash price for his prop- erty, on the ground that it was not enough, does not estop him, in a suit by the broker for his commission, to set up as a defense that the tender did not comply with the terms on which the broker was authorized to sell the property. Jepsen v. Marohn, 21 : 935, 119 N. W. 988, 22 S. D. 593. To deny relation of master and serv- ant. 99. Paying employees of a subcontractor with its own checks does not estop a con- tractor from denying its relation of master to such employees, where the checks on their face show that they are on account of the pay roll of the subcontractor. Good v. John- son, 8: 896, 88 Pac. 439, 38 Colo. 440. (Annotated) 100. The mere facts that a contractor for railroad construction work runs a board- ing house at which employees of a subcon- tractor are permitted to take their meals, and that some of the pay of such employees is applied toward the expense of a hospital maintained by the contractor for the benefit of all parties working on the job, do not estop him from denying the relation of mas- ter to an employee of the subcontractor, where there is nothing to show that the em- Digest 1-52 L.R.A.(N.S.) ployee was misled thereby. Good v. John- son, 8: 896, 88 Pac. 439, 38 Colo. 440. To deny agency or authority of agent. Of municipality, see supra, 14. See also infra, 189. 101. A carrier is not estopped to deny the authority of a station agent to make a con- tract for it, by retaining a payment to which it was entitled independent of sucn contract, although claimed to have been made thereunder. Chicago, M. & St. P. R. Co. v. Kelm, 44: 995, 141 N. W. 295, 121 Minn. 343. 102. Recognition by a principal of au- thority in his agent to draw drafts upon him is an admission of obligation to accept them, and estops him from repudiating lia- bility on such draft, although he had never admitted funds in his hands or other obliga- tion to accept. Valiquette v. Clark Bros. Coal Min. Co. 34: 440, 77 Atl. 869, 83 Vt. 538. To deny validity of marriage. 103. One who, having a wife living, con- tracts marriage with another and cohabits with her, is not estopped from denying the validity of the marriage for the purpose of defeating the right of her heirs to share in their estate as community property. Sloan v. West, 17: 960, 96 Pac. 684, 50 Wash. 86. 104. Petitioning for administration on the estate of one with whom petitioner con- tracted a marriage does not estop him from disputing the validity of the marriage be- cause of the fact that he had a prior wife living. Sloan v. West, 17 : 960, 96 Pac. 684,. 50 Wash. 86. Admissions. See also infra, 219. 105. Admissions or declarations of the holder of the legal title to land that have not induced any action or inaction in oth- er claimants, or worked any change in their status, do not constitute an estop- pel. Lake v. Weaver (N. J. Err. & App.) 34: 495, 74 Atl. 451, 76 N. J. Eq. 280. 106. A woman suing to partition land be- longing to her divorced husband, who has established no equity in it, cannot avail herself of admissions made by him in an action brought by a former owner of the land to recover possession of it, in which he set up an interest originating before the divorce was granted. Wingard v. Win- gard, 25: 453, 105 Pac. 834, 56 Wash. 389. 107. The acknowledgment by a tenant that a right of way over adjoining property is permissive and subject to revocation will not bind him after he secures title to the landlord's estate, to which the right of way is appurtenant. Schwer v. Martin, 7: 614,, 97 S. W. 12, 29 Ky. L. Rep. 1221. (Annotated) 108. The admission, either directly or by failure to deny, of liability on a note/ sued on, does not preclude defendant from plead- ing a set-off or counterclaim. Mendenhall v. Davis, 21:914, 100 Pac. 336, 52 Wash. 169. .1060 ESTOPPEL, III. f, g, 1. /. By assent. (See also same heading in Diqcst L.R.A. 1-10.) Estoppel by consent to raise question on appeal, see APPEAL AND ERROR, 532- 534. Of one who has consented to placing of earth on lot as support to adjoining street to require its removal, see DEDI- CATION, 3. Laches barring right to enjoin material de- parture from restrictive covenants, see INJUNCTION, 84. 109. A landlord who assents by parol to the assignment of the lease, and accepts rent from the assignees, knowing that they are claiming under the lease, estops himself 'from claiming that the lease provided that consent to its assignment must be in writ- ing, where no forfeiture is provided for ^assignment without written consent. Field v. Copping, 36: 488, 118 Pac. 329, 65 Wash. 359. (Annotated) ' 110. A borrowing member of a loan asso- 'ciation is not estopped from demanding a dissolution of the contractual relations ex- isting between him and the association, , which has suspended the payment of dues on its stock by its members for an unrea- sonable time, so as to work a material de- parture from its general plan of satisfying loans made to its members, by his having voted for an amendment to the by-laws of the association, conferring upon its directors power to suspend payment of dues. Burk- iheimer v. National Mut. Bldg. & L. Asso. 4: 1047, 53 S. E. 372, 59 W. Va. 209. 111. A tenant in common of land which has been sold by his cotenant cannot com- plain of the placing of the whole property in the hands oi a receiver after he has been ad- judged his portion of the rents which came to the receiver's hands, and, by consent order, agreed to pay his share of the ex- penses of the receivership. Ft. Jefferson Improv. Co. v. Dupoyster, 2: 263, 66 S. W. 1048, 112 Ky. 792. 112. A lien creditor of a judgment debtor, who was not a party to the proceedings in which the judgment was rendered, is not, by consenting to the appointment of a re- ceiver in aid of execution, es f pped. to ob- ject to the possession and control of the property by the receiver. First Nat. Bank v. Cook, 2: 1012, 76 Pac. 674, 12 Wyo. 492. 113. One who, through mistake, permits the erection of a building partly on his land, is not thereby estopped from asserting his rights when he learns for the first time of the encroachment. Davis v. Owen, 13: 728, 58 S. E. 581, 107 Va. 283. 114. After the maintenance of a railroad switch in a public street for twenty years under the express consent of the abutting owners, neither those who gave the consent, nor their successors in title, are entitled to injunctive relief against the alleged nui- sance. Wolfard v. Fisher, 7: 991, 84 Pac. 850, 48 Or. 479. (Annotated) Digest 1-52 L.R.A.(N.S.) 115. Estoppel, by a subscriber to the cost of a factory, to question the validity of an assignment of the contract for its construc- tion, is not shown by the facts that he per- mitted the completion of the work without objection, and that a committee of sub- scribers certified to the completion of the work, where he had no knowledge of the as- signment, and the committee had no author- ity to consent to a substitution of contract- ors. Johnson v. Vickers, 21:359, 120 N. W. 837, 139 Wis. 145. 116. A convict who assents to a void pro- vision in his sentence, that it shall not be executed during good behavior, cannot take advantage of its invalidity when the sen- tence is sought to be enforced against him, nor of the fact that the original term of sentence has elapsed. Fuller v. State, 39: 242, 57 So. 6, 806, 100 Miss. 811. g. By laches, silence, or acquiescence. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Of municipality, see supra, 6-14. Of state, see supra, 23; MUNICIPAL COR- PORATIONS, 1. Of consignee to assert common law liability of carrier, see CARRIERS, 797. To assert dower rights, see DOWER, 15. By failure to assert forfeiture of insur- ance policy, see INSURANCE, V. b, 5, c. To set up illegality of consideration for deed, see JUDGMENT, 42. See also supra, 96, 97, 114, 115. Laches as bar to action, see LIMITATION OF ACTIONS, I. b. Estoppel to require second payment of taxes paid to wrong officer, see TAXES, 260. 117. Mere failure of a conditional vendor to assert title at a bankruptcy sale of the vendee's property will not estop it from claiming the property from a purchaser at the sale. Myrick v. Liquid Carbonic Co. 38: 554, 73 S. E. 7, 137 Ga. 154. 118. Mere failure by persons who had contributed towards the expenses of pros- pecting for mines in consideration of a share in the enterprise, to take steps to reach an interest which their representative had acquired as a result of his trip in an enterprise with strangers, until it had proved to be very profitable, will not bar a recovery if they had no knowledge of the particular facts on which their rights de- pended. Lind v. Webber, 50: 1046, 134 Pac. 461, 36 Nev. 623. 119. One having a yalid claim against an- other for services is estopped to assert it against the latter's estate, by remaining silent, though present, when the latter is negotiating for the services of another, to be compensated by her entire estate after death, against which she states that there are no claims. Pond T. Pond, 8: 212, 65 Atl. 97, 79 Vt. 352. 120. One who fails to object to a wit- ESTOPPEL, III. g, 1. 1061 ness's answer to a question because not responsive thereto, and permits it to be re- corded, cannot, upon a second trial, object on that ground to the reading of it to the jury after the witness is dead. Sherman Gas & Electric Co. v. Belden, 27: 237, 123 S. W. 119, 103 Tex. 59. 121. The failure of a plaintiff in a libel suit to carry on the schedules filed in his bankruptcy proceedings his claim for dam- ages arising out of libel will not estop him from pursuing his action for libel, when the /position of the defendant has been changed in no way by his failure to do so. Irion v. Knapp, 43: 940, 60 So. 719, 132 La. 60. 122. A party to a contract to compound a felony cannot estop himself from main- taining an action to set aside the instru- ment for illegality of consideration, by conduct in depriving the accuser of reme- dies against accused, or by laches in fail- ing promptly to take steps for relief. Col- by v. Title Ins. & T. Co. 35: 813, 117 Pac. 913, 160 Cal. 632. 123. A corporation is estopped from com- plaining that judgment went against it in a wrong name, by going to trial on the merits without objecting to the misnomer or disclosing its true name. University of Louisville v. Hammock, 14: 784, 106 S. W. 219, 127 Ky. 564. 124. The doctrine of estoppel in pais can- not be applied in favor of the inhabitants of a town against one controlling a ditch which furnishes the public water supply, unless by his action or silence he has con- curred in allowing the public and individuals to so use and enjoy the water that to there- after deprive them of it would work an in- justice or fraud upon them, and invade the right founded on the presumption he has al- lowed to be raised. Hailey v. Riley, 17: 86, 95 Pac. 686, 14 Idaho, 481. 125. That a charitable corporation has permitted a judgment to go against it for the negligence of its agent and its property to be sold under an execution does not pre- vent it from maintaining an action to re- cover possession of the property. Fordyce v. Woman's Christian Nat. Library Asso. 7: 485, 96 S. W. 155, 79 Ark. 550. 126. The indorser of a promissory note cannot, after paying it, make the conten- tion that the presentment to the maker was not sufficient to charge him with liability. Rogers v. Detroit Sav. Bank, 18: 530, 110 N. W. 74, 146 Mich. 639. 127. Interested parties who acquiesce in a sale by a trustee appointed under a will upon petition of the widow of testator arc- estopped to question the validity of the sale because they were not made parties to the proceedings for appointment of the trustee. Haggin v. Straus, 50: 642, 146 S. W. 391, 148 Ky. 140. To object to public improvement as- sessment. 128. One who fails to object to the forma- tion of a drainage district, or the inclusion of his lands therein, or to the proceedings under which the indebtedness of the district Digest 1-52 L.R.A.(N.S.) for preliminary expenses is determined, is estopped in a proceeding to enforce an as- sessment against his property for a share of such expenses, to object to anything but the constitutionality of the law under which the proceedings were had. Northern P. R. Co. v. Pierce County, 23: 286, 97 Pac. 1099, 51 Wash. 12. 129. A property owner whose property is so situated that it cannot be benefited by a public improvement cannot, where the facts do not appear on the face of the rec- ord, ignore the proceedings to fix the bound- aries of the assessment district, of which he has notice, and resort to a court of equity in the first instance to relieve him from an assessment for benefits against his property on account of such improvement, since, having misled the authorities into the belief that his property would share in the expense, he is estopped to contest his liability. Power v. Helena, 36: 39, 116 Pac. 415, 43 Mont. 336. (Annotated) To object to account rendered. 130. One who accepts and retains, for a long period without objection, an account rendered, together with the balance shown to be due thereon, irrevocably assents to the account so that he cannot subsequently take steps to falsify it. Ripley v. Sage Land & Improv. Co. 23: 787, 119 N. W. 108, 138 Wis. 304. To claim dower. 131. A woman is estopped from claiming dower rights in property conveyed by her husband by deeds in which one claiming to be his second wife joined, where, having knowledge of a pretended divorce which she thought to be invalid, and the conveyance of property by him which should be signed by his wife, she remained silent, and per- mitted him to marry the other woman, and hold her out to the world as his lawful wife. H. W. Wright Lumber Co. v. Me-. Cord, 34: 762, 128 N. W. 873, 145 Wis. 93, (Annotated) As to insurance. See EVIDENCE, 551. As to forgery of signature. 132. One having notice of facts sufficient to put him on inquiry as to the forged in- dorsement by his attorney of a draft in his favor, at a time when the bank has assets of the attorney in its possession sufficient to protect itself, and who attempts to collect the money from the attorney, and fails to notify the bank until after it has parted with the assets, is estopped to look to the bank for reimbursement. Brown v. People's Nat. Bank, 40:657, 136 N. W. 506, 170, Mich. 416. (Annotated) 133. One may by conduct, statements, or silence estop himself from claiming that his signature is a forgery; but before he can be estopped by mere silence, facts must be alleged and proven showing a duty and opportunity to speak, that he knew or had reason to believe that the holder of the forged instrument would rely on his silence, and that the holder in fact did rely on his silence, and was in fact injured there- 1062 ESTOPPEL, III. g, 2. by. Shinew v. First Nat. Bank, 36: 1006, 95 N. E. 881, 84 Ohio St. 297. Of legatee. 134. Where a testator bequeathed prop- erty to three members of bis lodge upon the promise of one, made in the presence of the others, that they would transfer it to the lodge, equity may compel them to effect the transfer. Winder v. Scholey, 33: 995, 93 N. E. 1098, 83 Ohio St. 204. As to divorce decree. See also supra, 131. 135. Estoppel of a wife to contest the va- lidity of a divorce decree absolutely void for lack of jurisdiction, which will prevent per- sons claiming under her from securing her distributive share of her husband's estate, is not shown by evidence that she left her husband, for cause, and did not seek to have the decree set aside during the sixteen years that elapsed before her death, and testimony of a single person that she once wrote a let- ter, which was not produced, claiming to have been divorced and still to own proper- ty as a feme sole, where it was not shown that she ever /signed any deed as a single woman and it appears that she never mar- ried again, that she notified persons buying land of the husband that she was still his wife, and that until his death she claimed that she^was his wife and insisted that the divorce was a fraud. Sammons v. Pike, 23: 1254, 120 N. W. 540, 108 Minn. 291. 136. A defendant in a divorce proceeding, who accepts the amount awarded her, and, after a delay of six and one-half years, insti- tutes a suit for divorce in another state, in which she is defeated, is estopped, after a considerable further delay until plaintiff has contracted another marriage, from at- tacking the divorce decree for fraud. Bid- well v. Bidwell, 2: 324, 52 S. E. 55, 139 N. C. 402. 2. As to real property. a. In general. (See also same heading in Digest L.R.A. 1-10.) To assert dower rights, see DOWEB, I. c. Laches as bar to action, see LIMITATION OF ACTIONS, I. b, 2. See also supra, 29; infra, 254. 137. The fact that the statute of limita- tions has not run against a right to recover possession of real estate will not prevent the application, in bar of the action, of the doctrine of equitable estoppel by laches. Kenny v. McKenzie, 49: 775, 127 N. W. 597, 25 S. D. 485. 138. Merely taking the acknowledgments of a conveyance by the grantor of his re- maining property in which a wife taken after the former conveyance is required to join does not require the holder of an un- recorded deed of real estate to disclose his deed, sc as to estop him from asserting his title in case the wife joins in the deed with- out knowing of the former convevance. Digest 1-52 L.R.A.(N.S.) Beechley v. Beechley, 9: 955, 108 N. W. 762, 134 Iowa, 75. 139. Failure of remaindermen to insist that the life tenant make the necessary re- pairs upon the property does not estop them from holding his estate answerable for the cost of those he should have made. Prescott v. Grimes, 33: 669, 136 S. W. 206, 143 Ky. 191. 140. Where a man has no power to convey his homestead without joinder by his wife, failure promptly to move to set aside a deed made by him while she was insane, after her recovery, will not estop either from denying the validity of the conveyance. Bushnell v. Loomis, 36: 1029, 137 S. W. 2f>7, 234 Mo. 371. 141. Ignorance on the part of a mortgagor of real estate, of the fact that an attempt- ed assignment of the mortgage which con- tains a power of sale, was not in the form required by statute, so as to be entitled to record, and that therefore the sale by the assignee was illegal, does not prevent the operation against his right to recover the property, of the doctrine of estoppel by conduct and laches, where he permits a fore- closure by the assignee, surrenders posses- sion to him, and the property is sold to a stranger who satisfies a prior encumbrance, pays taxes, makes improvements, and holds possession for several years, during which the property increases in value, although the assignee was equally ignorant of the defect, and the mistake was therefore a mu- tual mistake of law, where he does not show that he acted promptly upon discovering his rights, and makes no offer to reimburse the purchaser for his outlay. Kenny v. Mc- Kenzie, 49: 775, 127 N. W. 597, 25 S. D. 485. 142. One who proceeds against the pro- test and objection of another, to erect an obstruction constituting a nuisance, cannot complain because the party protesting Je- layed ten days before bringing suit to re- strain the nuisance, which had been com- pleted in the meantime. Bischof v. Mer- chants' Nat. Bank, 5: 486, 106 N. W. 996. 75 Neb. 838. Annexation of land to city. 143. Where city authorities have, by ordi-' nance, extended the city limits so as to in elude an addition or tract of land, and the inhabitants thereof and all parties affected thereby have acquiesced in the action of the city authorities, and have transacted their business upon the theory that such territory was included within the city limits, a pub- lic-service corporation will not be allowed to question the validity of such action of the city council, in a collateral attack, after the lapse of five years. Hatch v. Consumers' Co. 40: 263, 104 Pac. 670, 17 Idaho, 204. As to water and water rights. By permitting improvements or expendi- tures, see infra, 159-162. See also infra, 253. 144. A riparian proprietor who makes no protest or objections to the improvement of a stream by deepening and widening and straightening the same, and cutting away timber along the banks thereof, by a com- ESTOPPEL, III. g, 2. 1063 pany that represents to him that it is act- ing under a license and franchise from the state, is not estopped, by his inaction or quiescence, from thereafter maintaining an -action against the company for damages aused in the overflowing of his land, and depositing logs and timber and debris thereon, which is directly caused by the cutting away of the timber, and the weak- ening of the banks, and the erection of splash dams above his land, whereby the volume of water in the stream is greatly augmented and a flooding is caused. Mash- burn v. St. Joe Improvement Co. 35: 824, 113 Pac. 92, 19 Idaho, 30. (Annotated) As to railroad company. 145. One who has granted a right of way to a railroad company on condition that it complete its road within a specified time is not estopped from enforcing the condition t>y permitting the railroad company to en- ter and construct its grade, if that is dono within the time specified. Oregon R. & Nav. Co. v. McDonald, 32: 117, 112 Pa. 413, 58 Or. 228. 146. Although acquiescence of a land- owner in the construction of a railway on his land would preclude him from there- after maintaining ejectment and from ob- taining an injunction, it does not devest him of the title to the property taken, and is not inconsistent with an assumption on his part that the company would pay % him a reasonable compensation therefor, and his consequent right to recover such compensation upon failure or refusal of the company so to recompense. Boise Val- ley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. Permitting title to stand in another's name. See also supra, 55, 65 ; infra, 265. 147. The mere failure of a woman immedi- ately to enforce the promise of her husband to convey to her real estate which he has purchased with her funds, and the title to which he has taken, without authority, in Iris own name, does not, in the absence of fraud, estop her from relying on a deed in execution of the promise, made after he became bankrupt, although he was in busi- ness, and credit was given him, without her knowledge, on the faith of the property. Blake v. Meadows, 30: i, 123 S. W. 868, 225 Mo. 1. (Annotated) to. Permitting improvements or expedi- tures. (See also same heading in Digest L.R.A. 1-10.) To restrain violation of restrictive covenant, see COVENANTS AND CONDITIONS, 46. See also LIMITATION OF ACTIONS, 40. 148. Heirs of a life tenant who are given remainder in the property are not es- topped from recovering the property from grantees of the life tenant, by permitting them to take possession and make valuable improvements on the property, and by fail- Digest 1-52 L.R.A.(N.S.) ing to bring an action to assert their rights until the death of the life tenant, where they had no interest in the property which would entitle them to bring such action until the death of the life tenant. West- cott v; Meeker, 29: 947, 122 N. W. 964, 144 Iowa, 311. 149. The fact that one of the owners of the surface of land in fee subject to certain mining rights, who had no interest in the oil and gas under the land, assisted the holder of the oil and gas lease in making a road across the land, does not thereby estop him to complain of an injury result- ing from the building of the road, where the road was for the apparent purpose of prospecting for oil and gas, a purpose '"Inch was afterward abandoned by the lessee. Coffindaffer v. Hope Natural Gas Co. 52: 473, 81 S. E. 966, W. Va. . 150. A stockholder of a railroad company, dissenting from an attempt to consolidate the road with others, who, instead of taking prompt steps to prevent such consolidation, waits until after it is an accomplished fact and vast public and private interests have attached under the new conditions, will not be permitted to come into a court of equity for a forfeiture of the corporate charter, the appointment of a receiver, and the re- scission of the merger, but will be remitted to his action under the statute for compen- sation for his stock. Spencer v. Seaboard Air Line R. Co. i: 604, 49 S. E. 96, 137 N. C. 107. 151. Merely filling in with dirt is not such a permanent improvement as will en- title the one making it to claim an estoppel because of it, against one who, by mistake, located his fence inside his true boundary line so that the filling was done between the fence and boundary. Cottrell v. Pickering, 10 : 404, 88 Pac. 696, 32 Utah, 62. 152. Estoppel will prevent the recovery of property by one who deeded it to an alien who, under the Constitution, was incompe- tent to take, where he stood by for thirteen years and permitted valuable improvements on the property, which greatly increased in value because of the growth of the city. Abrams v. State, 9: 186, 88 Pac. 327, 45 Wash. 327. 153. One entitled to have a pass way kept open across another's farm will be estopped from claiming his rights if, without objec- tion, he permits the owner of the farm to close it, and fails for several years to take legal steps to have it reopened, during which the owner has expended large sums of mon- ey in cleaning up the land and rendering it fit for cultivation, and has made improve- ments and rearranged his fences, on the theory that the pass way no longer existed. Trimble v. King, 22: 880, 114 S. W. 317, 131 Ky. 1. , (Annotated) 154. One entitled to the use of a pass \\ ay across another's farm will not be estopped from objecting to its closure by the fact that others, equally interested, permit the owner to expend large sums of money in improvements, depending on its being closed, if he himself was ignorant of such fact. 1064 ESTOPPEL, HI. h. Thimble v. King, 22: 880, 114 S. W. 317, 131 Ky. 1. 155. A landowner through whose lands locations have been condemned for the pur- pose of laying pipe lines to serve the public with natural gas is not prevented from en- joining the use of other locations on his land than those condemned, because he failed to stand by and object at the time the pipe lines were laid, as it is the duty of the condemnor to use only the lands legally taken, and the landowner is not bound to see that such duty is performed. Lovett v. West Virginia C. Gas Co. 24: 230, 65 S. E. 196, 65 W. Va. 739. In street. 156. The owner of the fee of a highway who permits an electric power company to construct its line along the highway for the purpose of furnishing light and power to the public, without bringing an action to prevent it until after the public service has begun, will be granted damages only for the invasion of his rights, and cannot re- quire removal of the line. Gurnsey v. Northern California Power Co. 36: 185, 117 Pac. 906, 160 Cal. 699. 157. Permitting the completion of a street improvement before taking steps to question its validity because of uncertainty in the no- tice does not estop the property owner from obtaining relief. Johns v. Pendleton, 46: 990, 133 Pac. 817, 134 Pac. 312, 66 Or. 182. 158. An owner of real estate who had di- rect notice of a special assessment agairst his property for the building of a side- walk, by reason of which he had ample op- portunity to contest the levying of the assessment, but did nothing, and who had knowledge of the construction of the side- walk and acquiesced therein, cannot, in a suit in equity by the municipality for the enforcement of the lien of the assessment, take advantage of any omissions or irregu- larities in the ordinance providing for the construction of the sidewalk, but is estopped by his conduct from so doing, where no con- stitutional right had been violated. An- derson v. Ocala, 52: 287, 64 So. 775, Fla. As to water and water rights. 159. An injunction against the diversion of water from plaintiff's land cannot be denied on the theory that he stood by and permitted the development of water to be made to successful operation without ob- jection, if he brought the action as soon as it reasonably appeared that that proposed diversion would affect his supply. Miller v. Bay Cities Water Co. 27: 772, 107 Pac. 115, 157 Cal. 256. 160. Mere failure to object to the con- struction on other land of a dam and canal which will affect a lake on one's land will not estop him from maintaining an action for injunction in case the lake is destroyed by the works, where there is nothing to show that he knew that such would be the result. Madson v. Spokane Valley Land & Water Co. 6: 257, 82 Pac. 718, 40 Wash. 414. 161. Owners of land over a subterranean basin, who have been accustomed to use the Digest 1-52 L.R.A.(N.S.) water therefrom, will not be granted an injunction to restrain the taking of water from the basin by a public-service corpora- tion to supply people beyond its limits, through wells which it sinks to maintain the amount of ita original appropriation during periods of drought, where, with full knowledge of the facts, they stand by until large amounts of mr- -y have been expended upon the wells, and they have been in op- eration for at least two years. Barton v. Riverside Water Co. 23: 331, 101 Pac. 790, 155 Cal. 509. 162. A riparian owner is not estopped from objecting to the diversion of flood wa- ter from a river, to his injury, by the fact that he permitted the construction of a reservoir at large expense without objec- tion, where he did not know that the pur- pose of the reservoir was to store the flood water until within a few days prior to his- instituting proceedings to prevent it, sup- posing that the reservoir was to store other water to which the owner had a right. Mil- ler & Lux v. Madera Canal & Irrig. Co. 22: 391, 99 Pac. 502, 155 Cal. 59. h. By representations. (See also same heading in Digest L.R.A. 1-10.) Of heirs by representations of ancestor, see infra, 261. See also supra, 61; infra, 260. 163. In order to establish an equitable es- toppel against one asserting his title to real property, the party attempting to raise it must show either an actual fraudu- lent representation, or concealment, or such negligence as would amount to a fraud in law, and that the party setting up such estoppel was actually misled thereby to in- jury. Dye v. Crary, 9: 1136, 85 Pac. 1038, 13 N. M. 439. 164. Where false representations are made by a vendor in the sale of property,, the application of the doctrine of equitable estoppel does not necessarily depend upon the knowledge of the vendor of the falsity of the representations, but may rest upon the principle that one who, by representing that a certain state of facts exists, has misled another, is precluded from denying the truth of such representations and from setting up a claim inconsistent with the facts as represented, where such claim would result in loss to the other and operate as a fraud upon him. Westerman v. Corder, 39: 550, 119 Pac. 868, 86 Kan. 239. (Annotated) 365. If one holding the legal title to land under an unrecorded deed represents that the title is in another person who appear* from the record to be the owner, and that such other person has the right to sell and make a bond f " title to the land, he \vill be estopped from denying the title of such person, where an innocent purchaser for value, in reliance on such representation,, is induced to accept a bond for title from ESTOPPEL, III. i. 1065 the latter, to give notes for the purchase money, and to pay some or all of them. Sewell v. Norris, 13: 1118, 58 S. E. 637, 128 Ga. 824. 166. One having a cropping contract with a cotenant of a parcel of land, who deliber- ately misstates the interest of such tenant to the other cotenant, when he inquires as to such interest after having the land awarded to him in partition proceedings, is estopped to set up the true contract after the one receiving the information has acted upon it. Schultz v. Denison, 2.5: 1249, 123 N. W. 1094, 159 Mich. 259. 167. A statement by a mortgagee as to the amount due to a purchaser of the equity of redemption, after the completion of his purchase, does not estop the mortgagee or his assignee from enforcing the mortgage ior a greater amount than stated. Assets Realization Co. v. Clark, 41: 462, 98 N. E. 457, 205 N. Y. 105. 168. An assignee of a note based on a gambling transaction, with knowledge of the consideration upon which it is based, estopped from asserting title, although she may be required to account to the pur- chaser for the amount she receives. Gar- butt v. Mayo, 13: 58, 57 S. E. 495, 128 Ga. 289; 241. One who has taken advantage of permission extended by a municipal corpo- ration to construct a wooden building with- in the fire limits and maintain it for a cer- tain time cannot question the authority of the city to enter into a contract grant- ing permission to erect the building in consideration that the owner would remove it within a specified time. Clark v. Dead- wood, 18: 402, 117 N. W. 131, 22 S. D. 233. (Annotated) Legatee. See supra, 134. Divorced woman. See supra, 136. I. By character or relation of parties. (See also same heading in Digest L.R.A. 1-10.) Of grantor to set up title by adverse pos- session, see ADVERSE POSSESSION, 18, 19. To question rightfulness of issue of corpo- rate stock, see CORPORATIONS, 248. 242. An attorney who collects the money due on an assigned judgment, and pays it over to a stranger to the record on demand, is not estopped, as against the assignee, from showing that he had recognized a paramount title. Moss Mercantile Co. v. First Nat. Bank, 2: 657, 82 Pac. 8, 47 Or. 361. (Annotated) Tenant. Of married woman, see supra, 66, 67. 243. The general rule that a tenant can- not dispute his landlord's title does not pre- vent the tenant from showing that the land- lord parted with his title to the rented premises during the term of the tenancy. Raines v. Hindman, 38: 863, 71 S. E. 738, 136 Ga. 450. (Annotated) 244. One who goes into possession of land as the tenant of another cannot set up title adverse to the landlord from whom he thus obtained possession, until after he has sur- rendered the premises tc the landlord. Hodges v. Waters, i: 1181, 52 S. E. 161, 124 Ga. 229. (Annotated) 245. A tenant in possession, who expressly agrees to pay rent to a third person for a given time, will be bound by such agreement for the time specified if founded upon a suf- ficient consideration; but, after the expira- tion of such time, no promise to pay rent Digest 1-52 L.R.A.(N.S.) will be implied, and he may deny liability for rent thereafter, although he still re- mains in possession of the premises as the tenant of the person who placed him in pos- session. Hodges v. Waters, i: 1181, 52 S. E. 161, 124 Ga. 229. (Annotated) 246. The title of the lessor cannot be questioned by the lessee before the expira- tion of the lease, while he is in possession under it, unless based upon some distinct and independent claim to the land. Beck v. Minnesota & W. Grain Co. 7: 930, 107 N. W. 1032, 131 Iowa, 62. 247. One to whom a tenant leases the premises is as fully estopped to question the landlord's title as is the tenant himself. Beck v. Minnesota & W. Grain Co. 7: 930, 107 N. W. 1032, 131 Iowa, 62. (Annotated) 248. If the grantor in a deed containing a covenant of general warranty, conveying fvway the title in fee simple, remains in possession of the property after the execu- tion of the instrument, he is presumptively the tenant of the grantee, and cannot set up an independent title in himself without showing some act of ouster of his landlord, or its equivalent. Blake v. O'Neal, 16: 1147, 61 S. E. 410, 63 W. Va. 483. 249. A tenant may, after termination of the lease, defend against an action by the landlord to recover possession and establish title, by showing a superior title in him- self, without surrendering possession, where the success of the landlord would destroy the title of the tenant. Stevenson v. Rog- ers, 29: 85, 125 S. W. 1, 103 Tex. 169. ( Annotated ) 250. A common lessee of two adjoining tracts of oil lands owned by different par- ties, who entered under one lease and put down a well on land supposed to belong to the lessor under whose lease he entered, and, by a sign in large letters placed on the walking beam and plainly visible to per- sons passing on the railroad and other pub- lic roads in the vicinity of the well, gave notice of the character of his holding and under whose lease the well was drilled and was being operated, and connected the well with a tank on the land of such lessor, into which the oil produced was conveyed and from which it was delivered into the pipe line of a common carrier, and who, for more than ten years, thus operated the well and paid the royalty to the lessor under whose lease he entered, is not, after the statute of limitations has fully run, estopped to deny the title of the other lessor, although the well may in fact have been located on his land, where such other lessor had no possession of the particular land entered. Lockwood v. Carter Oil Co. 52: 765, SO S. E. 814, 73 W. Va. 175. (Annotated) m. Who affected. (See also same heading in Digest L.R.A. 1-10.) Estoppel by deed, see supra, II. a. Infant by representation as to age, see supra, 173-178. 1072 ESTOPPEL, III. m. Of infant by act of guardian, see GUARDIAN AND WARD, 28. Of corporation by acts of agent, see COR- PORATIONS, 56. Effect of estoppel in favor of or against administrators appointed in one state on administrator in other state, see EXECUTORS AND ADMINISTRATORS, 136. See also supra, 82. 251. Only those who are actors in procur- ing the allowance of an injunction against the commencement of an action can, upon that account, be equitably estopped from pleading the statute of limitations. Hunter v. Niagara F. Ins. Co. 3: 1187, 76 N. E. 563, 73 Ohio St. 110. 252. The true owner of land, by attesting a deed the contents of which he knows, made by a person who has no title, will be estopped from asserting his title as against the grantee and his privies; but this estoppel will not bind an existing creditor of the per- son estopped. Equitable Loan & Secur. Co. v. Lewman, 3: 879, 52 S. E. 599, 124 Ga. 190. ( Annotated ) 253. By claiming a prescriptive right to flood another's land by virtue of acts of strangers in turning the water from a stream, a person makes those acts his own, and is bound thereby as against *he claim that he is not responsible for the change, and that therefore, as against hiiri, the one on whose land the water is thrown has no right to embank against it. Wills v. Babb, 6: 136, 78 N. E. 42, 222 111. 95. (Annotated) 254. One claiming under the lessor of oil and gas privileges is estopped from setting up that the lease constituted a mere license revocable at pleasure, where the lessor is, and for more than three years has been, using gas for domestic purposes furnished under the terms of the lease, and has never served any notice on the gas company that she desired a forfeiture of the lease. Comp- ton v. People's Gas Co. 10: 787, 89 Pac. 1039, 75 Kan. 572. 255. A son asserting title to his father's leasehold estate through an execution sale under a judgment recovered by the son against him, with knowledge of the facts, is affected by the father's estoppel to dis- pute the fact that his title was a fee in favor of one to whom the father purported to mortgage such title. Townsend v. Boyd, 12: 1148, 66 Atl. 1099, 217 Pa. 386. 256. The fact that county officers had knowledge that county funds were illegally deposited in pursuance of a course of busi- ness carried on for several years without objection will not estop the county from pursuing such moneys as trust funds. Crawford County v. Strawn, 15: noo, 157 Fed. 49, 84 C. C. A. 553. 257. An attaching creditor of an admin- istrator is bound by an estoppel upon him to contest the validity, as against his own interest, of a deed given by him as adminis- trator which is void on its face, but which purports to convey real estate in which he has an interest as heir. Bliss v. Tidrick, 32: 854, 127 N. W. 852, 25 S. D. 633. Digest 1-52 L.R.A.(N.S.) 258. An act of stockholders of a corpora- tion which attempts to ratify a fraud or misapplication of the funds of the corpora- tion by the directors is binding by way of estoppel only on such stockholders as vote- in favor of the approval. Continental Se- curities Co. v. Belmont, 51: 112, 99 N. E. 138, 206 N. Y. 7. 259. A man whose participation in an act of mortgage by his wife of her sep- arate property is shown only by a recital that came the said woman, wife of the said husband, "herein joined, aided, and authorized by her husband," will not be held to have consented to the inclusion in the mortgage of his separate property so that, it will be bound thereby as against the claim of his subsequent mortgagee, al- though he may be personally estopped to- deny that it is included. W. F. Taylor Co. Y Sample, 28: 289, 48 So. 439, 122 La. 1016. (Annotated) 260. A wife is not estopped to claim her rights in the homestead by the fact that at the time it was sold by her husband she was living apart from him in another state and he represented that he was un- married. Mason v. Dierks Lumber & ?oal Co. 26 574, 125 S. W. 656, 94 Ark. 107. ( Annotated ) Principal by acts of agent. Of carrier to deny validity of bill of lading,. see CARRIERS, 753. Insurance company, see INSURANCE, V. b,. 4; V. b, 5, c. Heirs and representatives. By deed, see supra, 33. See also supra, 80. 261. Fraudulent representations by the owner of a homestead to the effect that he is unmarried, by which he effects a sale of the property, estop his heirs from set- ting up the invalidity of the conveyance on the ground that his wife did not join in it. Mason v. Dierks Lumber & Coal Co. 26: 574, 125 S. W. 656, 94 Ark. 107. 262. Where all of the interested parties to an adoption proceeding appeared be- fore the county court of a county other than that of the person desiring to adopt a child, and agreed on the one side to re- linquish the child and consented to its adoption on the condition that it should have full rights of heirship as if born in wedlock, and on the other to adopt and make it an heir, and the child is surren- dered to the custody of and remains in the family of the adopting parent until the death of that parent, which occurs while the child is of tender years, the collateral heirs of the deceased adopting parent are estopped to deny the validity of the adop- tion proceedings and that the child is en- titled to inherit, notwithstanding the statute requires a person desiring to adopt a child to file the petition of adoption in the county of his residence. Milligan v. McLaughlin, 46: 1134, 142 N. W. 675, 94 Neb. 171. Remaindermen. 263. Life tenants cannot, by their own acts or admissions, defeat or prejudice the ESTOPPEL, III. n EVIDENCE. 1073 rights of the remainderman. Anderson v. Messinger, 7: 1094, 146 Fed. 929, 77 C. C. A. 179. n. Who may set up. 264. The executor and the legatee of tes- tator's personal estate are in privity to such an extent that the former may assert an estoppel which prevents a stranger from making claim to the state against the legatee. Pond v. Pond, 8: 212, 65 Atl. 97, 79 Vt. 352. (Annotated) 265. Persons with knowledge that a man purchased real estate with his wife's funds, and took the title thereto in his own name, cannot raise an estoppel against her right to claim the property as against their claims arising out of credit extended to him. Blake v. Meadows, 30: i, 123 S. W. 868, 225 Mo. 1. ESTOPPEL IN PAIS. See ESTOPPEL, III. EVAPORATION. Duty to prevent loss of water by, see WATERS, 243. EVICTION. As breach of covenant, see COVENANTS AND CONDITIONS, 38, 44, 69-71, 100, 125. Damages for, gee DAMAGES, 135-137, 139, 140, 142, 151-153. Of tenant, see EVIDENCE, 2323. Attornment to avoid, see GARNISHMENT, 11. Of tenant, see INJUNCTION, 88, 89; LAND- LORD AND TENANT, 62-75, 209. EVIDENCE. J. Judicial notice, 163. a. Laws and ordinances, 14. b. Proclamations. c. Official and judicial charac- ter and acts, 513. d. Political, historical, and geographical matters, 14 22. e. Other matters, 2361. f. By jury, 62, 63. II. Presumptions and "burden of proof, 64698. a. In general; laws; ordi- nances, 6487. b. Establishing allegations and claims, 8895. c. Defenses, 961O9. d. Exceptions or exemptions, 110-114. . Digest 1-52 L.R.A.(N.S.) //. continued. e. Concerning persons, 115 312. 1. Status, condition, or relation, 115136. 2. Marriage; identity, di- vorce, 137151. 3. Death; survivorship; suicide, 152165. 4. Assent; authority; li- cense, 166188. 5. Knowledge; notice; san- ity; capacity; belief; intent, 189234. 6. Malice; criminal intent; probable caiise, 235 260. 7. Fraud or good faith; reliance on representa- tions; undue influence; duress, 261292. S. Truth ; innocence; guilty, 293 3O4. 9. From silence; withhold- ing or destroying evi- dence, 3O5312. f. Corporations; partnership, 313-315. g. Continuance; cause, 3 16-* 329. n. As to skill; negligence; care, 33O493. 1. Of person causing in- jury, 33O472. a. In general, 33O 333. b. Carriers, 334 39O. (1) Of passengers, 334378. (2) Of freight, 379-39O. C. Railroads ; street railways ; vessels, 391-4O7. d. Electric companies, 4O8-411. e. Master and servant, 412-440. t. Miscellaneous, 441 472. 2. Contributory negligence, 473493. i. As to official acts, 494 51O. j. From circumstances and course of business, 511 513. fc. As to rights, contracts, in- struments, and prop- erty, 514-634. 1. In general, 514 6O7. 2. Ownership or posses- sion, 6O8634. 1. Payment; credit, 635639. m. Miscellaneous, 64OO )8. III. Best and secondary evidence, 699733. IV. Documentary evidence, 734878. a. In general; preliminary matters; genuineness and validity, 734-746. 6. Statutes; ordinances, 747 749. 68 1074 EVIDENCE. 77. continued. c. Certificate; award, 7 SO. d. Official records, reports, and returns, 751761. e. Judgments and judicial rec- ords, 762-774. f. Pleadings and papers in suit. g. Evidence previously taken or used; affidavits, 775784. h. Tax book or list. i. Deeds; wills; leases; mort- gages, 785791. j. Accounts and account books, 792-802. Ic. Letters; telegrams; etc., 803-817. I. Records and papers of cor- porations or carriers, 818 827. TO. Notes and checks; indorse- ments, 828834. n. Contracts. 0. Scientific and medical books, p. For purposes of comparison, 835-84O. q. Memoranda, 841846. r. Miscellaneous, 847876. s. Paper produced on notice. t. Putting whole writing in evidence, 877, 878. V- Demonstrative evidence; articles and things; view of jury, 879 898. VI. Parol and extrinsic evidence con- cerning writings, 899 1O5O. a. In general, 899933. It. Custom or usage, 934. c. Prior and collateral parol agreements, 935949. d. Subsequent changes, 95O, 951. e. Meaning ; intention ; explana- tion, 952-984. f. As to commercial paper, 9851OOO. g. Consideration ; or value of subject-matter, 1OO1 1O15. h. Fraud; mistake; omissions, 1O16-1O21. t. Condition; trust; mortgage, 1O22-1O33. j. To identify subject or per- sons, 1O34IO36. Ic. Circumstances, 1O37. 1. Concerning records, 1O38 1041. m. Character of party, 1O42 1O5O. VII. Opinions and conclusions, 1O51 12O6. a. In general, 1O511O6O. b. Hypothetical questions, 1061-1O71. e. Cause and effect, 1O72 1075. d. Physical conditions; medi- cal testimony; intoxica- tion, 1O761O95. Digest 1-52 L.R.A.fN.S.) VII. con tinu ed. e. sanity; capacity,' ability; character, 1O961117. f. Values; damages, 1118 1132. g. Contingent results; what might have been, 1133 " 1134. h. Legal questions; meaning of terms; foreign laws, 1135, 1136. i. Estimates of quantity, speed; time, 11371144. j. Danger; skill; negligence, 1145-1157. Ic. Intent; mental conditions, 1158. I. Appearance; identity; qual- ity; authenticity, 1159 1169. TO. Handwriting; finger print*, 1170-1179. n. Miscellaneous, 118O12O6. VIII. Confessions; testimony or evi- dence ivrongfully obtained, 12O7-1229. IX. Admissions, 123O1265. X. Hearsay; declarations; res gestce, 1266-1514. a. In general; pedigree; repu- tation, 12661278. b. Confidential communica- tions, 12791341. C. Party's oivn acts and dec- larations, 13421359. d. Acts and declarations of third persons generally, 1360-1407. e. Acts and declarations of agent, representative, or tenant, 14O81434. f. Acts or declarations of former party in interest; testator or former owner, 1435-1456. g. Acts or declarations of part- ner, associate, co-conspira- tor or codefendant, 1457 1471. h. Complaints of injuries and suffering, 1472-1476. i. TJireats, 1477-1483. j. Telephone conversations, 1484-1486. fc. Conversation through in- terpreter. I. Dying declarations, or those made in travail, 1487 1511. m. Former testimony, 1512 1514. XI. Relevancy and materiality, 1515-2O45. a. In general, 15151517. b. Custom or habit, 1518 1544. c. Character, reputation; age, 1545-1581. d. Knowledge; notice; belief; mental capacity, 1582 16O6. EVIDENCE. 1075 XT continued. e. Intent; motive; fraud, un- due influence ; duress ; malice; good faith; inter- est, 16O7-1683. f. Prices,- values, 1684 17O2. g. Damages, 17O3-1755. h. Care; skill; negligence, 1756-1800. i. Suggestive facts; facts sup- porting inferences, 18O1 1839. j. Ciiwtmstances, 184O1844. 7c. Similar acts or facts, 1845 1915. I. Explanation and rebuttal, 1916-1928. m. Payment; consideration; credit, 19291935. n. Proof of negative, 1936, 1937. I o. Contracts; breach; waiver, 1938-1951. p. Matters pending suit, q. Pecuniary condition; family circumstances, 19521958. r. Persons; personal relations, 19591965. s. Connecting with subject; matters about other per- sons, 1966. t. Criminal matters generally, 1967-1990. u. Title or possession, 1991 1999. V. Identification, 2OOO. w. Justification; mitigation; aggravation, 2OO12O15. x. Authority, 2O162O19. y. Experiments, 2O202O21a. z. Miscellaneous, 2O222O45. XII. Weight, effect, and sufficiency, 2O46-2423. a. In general, 2046-2O57. ft. Cause and effect, 2O58 2080. c. Fraud or good faith; malice; undue influence, 2O81 21O8. d. Negligence; skill; care, 2109-2179. e. As to property rights, 2180 2197. f. Matters as to persons; rela- tion of parties, 2198 2253. g. To overcome writing, plead- ing, or judicial proceeding, 2254-2258. h. Documents generally; offi- cial acts or records; de- monstrative evidence, 2259-227O. i. Contracts, 22712288. j. Wills, 2289-2295. fc. Miscellaneous civil cases, 2296-2347. I. Criminal cases, 23482423. XIII' Admissibility under pleadings; variance, 24242512. a. Under particular pleadings, 2424-2466. b. Variance, 24672512. Digest 1-52 L.R.A.(N.S.) Interpretation of abstracts of title in evi- dence, see ABSTRACTS, 9. As part of record on appeal, see APPEAL AND ERROR, 4. _, On appeal, see APPEAL AND ERROR, VII. c. Right on appeal to open up case and take additional evidence, see APPEAL, AND ERROR, 429. Review of discretionary rulings, see APPEAL AND ERROR, VII. i, 4. First raising objection as to, on appeal, see APPEAL AND ERROR, VII. j. 5. Raising on appeal new objection to admis- sion of, see APPEAL AND ERROR, 718. Waiver of objection as to, see APPEAL AND ERROR, VII. k, 3. Prejudicial error as to, see APPEAL AND ERROR, VII. m, 3. Error in instruction as to, see APPEAL AND ERROR, VII. m, 4, a, 5. Rule as to reducing testimony to narrative form, see APPEAL AND ERROR, 221. Necessity of making evidence part of re- cord by bill of exceptions, see APPEAL AND ERROR, 223, 241, 247. Sufficiency of incorporation of, in bill of exceptions, see APPEAL AND ERROR, 234. Necessity for exception, see APPEAL AND ERROR, 346-349. Necessity of producing at hearing upon motion for new trial for exclusion of evidence or newly discovered evidence, see APPEAL AND ERROR, 380. Review of action of court in striking out, see APPEAL AND ERROR, 526. Right of appellate court to reject as un- worthy of belief, see APPEAL AND ER- ROR, 910. Conduct of counsel in persistently offering incompetent evidence, see APPEAL AND ERROR, 1450. Right to free transcripts of, see APPEAL AND ERROR, 1640, 1641. Constitutionality of statute as to, see CON- STITUTIONAL LAW, II. b, 7, d. Statute changing rules of, as ex post facto law, see CONSTITUTIONAL LAW, 33. Constitutionality of statute as to rules of, see CONSTITUTIONAL LAW, 140-142, 277. Grant of continuance to secure testimony, see CONTINUANCE AND ADJOURNMENT, 5-7. Validity of contract to give or secure, see CONTRACTS, 477, 479, 490, 491. Inherent power of court to issue commission to take depositions, see COURTS, 8. Compelling accused to furnish, see CRIM- INAL LAW, 107-121, 131. Motion for order to enable accused to secure, see CRIMINAL LAW, 159, 160. As to discovery, see DISCOVERY AND IN- SPECTION. Validity of indictment found by grand jury without testimony before them, see IN- DICTMENT, ETC., 2. On proceedings to appraise insurance loss, see INSURANCE, 059. Conformity of judgment to proof, see JUDG- MENT, I. e, 3. 1076 EVIDENCE, I. a c. New trial because of erroneous admission or exclusion of evidence, see NEW TRIAL, 16-19. New trial for newly discovered evidence, see NEW TRIAL, IV. " On motion for new trial, see NEW TRIAL, V. c; V. d. Amendment to conform pleading to proof, see PLEADING, 111. Right of officers to take possession of articles for evidentiary purposes, see SEARCH AND SEIZURE, 5-9. Taking, in camera and sealing, see SECRETS. Sufficiency of title of statute providing special rules of, see STATUTES, 103. Reception of, on trial, see TRIAL, I. c. Striking out, see TRIAL, 48-55. Objections to, see TRIAL, 76-79, 82, 83. Waiver of objection to, see TRIAL, 77. Limiting evidence, see TRIAL, 954957. Demurrer to, see TRIAL, II. d, 4. Instructions upon, see TRIAL, III. d. Proof of service of process, see WRIT AND PROCESS, III. On probate or contest of will, see WILLS, 94-99. /. Judicial notice, a. Laivs and ordinances. (See also same heading in Digest L.R.A 1-10.) Judicial notice on appeal, of village ordi- nance, see APPEAL AND ERROR, 190. 1. The court will take judicial notice of the fact that a statute prohibiting the depositing of mill refuse in one of the largest rivers of the state, or its tributary, to which fish are in the habit of resorting to spawn, was to prevent injury to or de- struction of the fish. State v. Haskell, 34: 286, 79 Atl. 852, 84 Vt. 429. City ordinance. 2. Judicial notice will not be taken of municipal ordinances. St. Louis v. Liessing, i: 918, 89 S. W. 611, 190 Mo. 464. Foreign laws or those of sister states. Necessity of pleading and proving foreign law, see PLEADING. 59-63. 3. Courts will not take judicial notice of the laws of a sister state, but, in the absence of pleading and proof to the con- trary, will assume that they are the same as the local laws. Maloney v. Winston Brothers Co. 47: 634, 111 Pac. 1080, 18 Idaho, 740. 4. The courts of the District of Colum- bia will, in an action to recover damages for a negligent act committed in that jurisdic- tion causing death in another state, which action is based upon the statutes in such case made and provided, take judicial notice of the statutes of such state. Moore Y. Pywell, 9: 1078, 29 App. D. C. 312. b. Proclamations. (See same heading in Digest L.R.A. 1-70.} Digest 1-52 L.R.A. (NiS.) c. Official and judicial character and. acts. (See also same heading in Digest L.R.A. 1-10.) Judicial records and decisions; ap- peal. Admissibility of admissions, see supra, 1247, 1248. Judicial notice of rules of district court by supreme court, see APPEAL AND ERROR, 238. Judicial notice of injunction against sale of liquors, see CONTEMPT, 72. 5. A judge at chambers will take judi- cial notice of his former orders made when he sat as a court. State v. Porter, 13: 462, 91 Pac. 1073, 76 Kan. 411. 6. A court cannot, in a second proceed- ing before it for divorce, base its denial of relief upon facts proved at the first hear- ing, if the record of such hearing is not offered in evidence in the second cause. Matthews v. Matthews, 29: 905, 77 Atl. 249, 112 Md. 582. (Annotated) 7. Judicial notice will not be taken of a judgment in another suit as res judicata, whether in the same or another court; the record must be pleaded or given in evidence. Pickens v. Coal River Boom & T. Co. 24: 354, 65 S. E. 865, 66 W. Va. 10. 8. An increased penalty authorized by statute for a second conviction for unlaw- fully selling intoxicating liquor cannot be based on a court's judicial knowledge of the first conviction, but such conviction must be alleged and proven. State v. Davis, 32: 501, 69 S. E. 639, 68 W. Va. 142. 9. In a proceeding for contempt for vio- lation of an injunction against the sale of intoxicating liquors, the court may take judicial notice of the decree granting the injunction, although entered at a term of court presided over by a judge other than the one before whom the contempt proceed- ings are instituted, and the latter judge has no personal knowledge of the decree. Haaren v. Mould, 24: 404, 122 N. W. 921, 144 Iowa, 296. (Annotated) 10. Courts will not take judicial notice of the decisions of courts of another state. Southern Exp. Co. v. Owens, 8: 369, 41 So. 752, 146 Ala. 412. 11. To warrant a judgment in a pro- ceeding commenced by attachment, the at- tachment and return need not be offered in evidence, since the court may take judi- cial notice of them. Slater v. Roche, 28: 702, 126 N. W. 925. 148 Iowa. 413. 12. A court will take judicial notice, in a prosecution for illegal sale of intoxicating liquors, of the fact that an appeal has been taken from its former judgment convicting accused of the same offense. Dupree v. State, 23: 596, 120 S. W. 871, 56 Tex. Crim. Rep. 562. 13. An appellate court will not take judicial notice of the record of an appeal pending before it, in another suit between the parties to the action, in which it is re- EVIDENCE, I. d, e. 1077 quested to do so. Murphy v. Citizens' Bank, ii : 616, 100 S. W. 894, 82 Ark. 131. (Annotated) d. Political, historical, and geograph- ical matters. {See also same heading in Digest L.R.A. 1-10.) Elections. 14. The court takes judicial notice of the dates of general elections provided for by general statutes of the state. Diener v. Star-Chronicle Pub. Co. 33: 216, 132 S. W. 1143, 230 Mo. 613. Geography. 15. The court will take judicial notice of the territory and character of population and industries along the route of a railroad between two incorporated towns. Funder- burg v. Augusta & A. R. Co. 21: 868, 61 S. E. 1075, 81 S. C. 141. 16. Proof that a homicide occurred in a certain town is sufficient to show that the venue was in the county in which that town was situated, although there is no evidence as to what that county is, since the court takes judicial notice of that fact. Howard v. State, 34: 990, 55 So. 255, 172 Ala. 402. Distances. 17. Judicial notice may be taken of the distance between two municipalities within the state. People v. Van Gaasbeck, 22: 650, 82 N. E. 718, 189 N. Y. 408. Rivers. 18. The court takes judicial notice that the Tennessee river is navigable. Terrell v. Paducah, 5: 289, 92 S. W. 310, 28 Ky. 331. 19. The court takes judicial notice that the Mobile river within the boundary limits of the city of Mobile is a tidal stream. Mo- bile Docks Co. v. Mobile, 3: 822, 40 So. 205, 146 Ala. 198. Streets and public places. Judicial notice of customs as to, see infra, 55, 56. 20. An appellate court cannot take ju- dicial notice of the location of the differ- ent streets and avenues in a city or town. Anderson v. Ocala, 52: 287, 64 So. 775, Fla. . 21. Courts cannot take judicial notice of the' location, use, and control of streets. Woodson v. Metropolitan Street R. Co. 30: 931, 123 S. W. 820, 224 Mo. 685. 22. The court may take judicial notice that 13 per cent grades are common in the cities and towns of the state, and that they have not been prohibited by law. Dougan v. Seattle, 51: 214, 136 Pac. 1165, 76 Wash. 621. e. Other matters. (See also same heading in Digest L.R.A. 1-10.) Presumption on appeal as to judicial notice, see APPEAL AND ERROR, 437. Digest 1-52 L.R.A.(N.S.) Judicial notice that January is in the win- ter season, see PLEADING, 340. See also infra, 1189. 23. The court will take judicial notice of the laws of nature. Morton v. Oregon Short Line R. Co. 7: 344, 87 Pac. 151, 48 Or. 444. 24. The court may take judicial notice of the usual method of operating crema- tories. Abbey Land & Improv. Co. v. San Mateo, 52: 408, 139 Pac. 1068, 167 Cal. 434. 25. The court takes judicial notice that to analyze a beverage requires not only learning and ='- : 'l in chemistry, but instru- ments and appliances not in common use. State v. Powell, 6: 477, 53 S. E. 515, 141 N. C. 780. 26. The court takes judicial notice of the fact that publications of advertisements were on Sunday, in an action on quantum meruit to recover the value thereof, where the dates of publication appear and those dates fall on Sunday. Sentinel Co. v. A. D. Meiselbach Motor Wagon Co. 32: 436, 128 N. W. 861, 144 Wis. 224. 27. In an action to recover damages for permitting snow to slide from a roof onto neighboring property, it is not necessary to prove that means exist to prevent such slides, since the court takes judicial notice of the fact. Bishop v. Readsboro Chair Mfg. Co. 36: 1171, 81 Atl. 454, 85 Vt. 141. 28. A court takes judicial notice that explosions occur in the best equipped, best regulated, and perfectly ventilated coal mines. Dickinson v. Stuart Colliery Co. 43: 335, 76 S. E. 654, 71 W. Va. 325. Reasons for limiting women's labor. 29. Courts will take judicial notice of conditions which render the limitations of a woman's working hours justifiable, such as her physical organization, her maternal functions, the rearing and education of chil- dren, and the maintenance of the home. W. C. Ritchie & Co. v. Wayman, 27: 994, 91 N. E. 695, 244 111. 509. 30. The court does not know judicially that there is no reasonable connection be- tween the health, welfare, and safety of the public and the limitation of the hours of labor of women in hotels, which would render such limitation an improper subject for the exercise of the police power. Peo- ple v. Elerding, 40: 893, 98 N. E. 982, 254 111. 579. Electricity. Judicial notice as to business of electric light company, see infra, 55, 56. Telephones. Judicial notice of customs as to, see infra, 56. 31. The courts take judicial notice cf the history of the inauguration within the state of the several local independent tele- phone companies for long distance service, in opposition to the Bell system. Home Teleph. Co. v. Sarcoxie Light & Teleph. Co. 36: 124, 139 S. W. 108, 236 Mo. 114. Railroad business. Judicial notice as to customs, see infra, 52, 53. See also supra, 15. 1078 EVIDENCE, I. e. 32. The court takes judicial notice of the the existence and route of public railways. Goodman v. Heilig, 36: 1004, 72 S. E. 866, 157 N. C. 6. 33. The courts will take judicial notice of the route of a railroad which has been built and operrted, for a number of years, from one station to another within the state, and of the fact that for a great por- tion of the distance between such stations, the road extends beyond the boundaries of the state, and again returns into it. Pat- terson v. Missouri Pacific Coal Co. 15: 733, 94 Pac. 138, 77 Kan. 236. 34. The court may take judicial notice that a particular railroad company is en- gaged in interstate commerce. Dingman v. Duluth, S. S. & A. R. Co. 32: 1181, 130 N. W. 24, 164 Mich. 328. 35. Courts take judicial notice of govern- ment requirements in regard to the quaran- tine district of Southern cattle, and of the regulations in regard to cars which carry cattle from such district. Wabas i R. Co. v. Campbell, 3: 1092, 76 N. E. 346, 219 111. 313. 36. The court will take judicial notice that Pullman car porters have authority from the railroad company to assist pas- sengers in entering and leaving the trains. Gannon v. Chicago, R. I. & P. R. Co. 23: 1061, 117 N. W. 966, 141 Iowa, 37. 37. In support of a statute forbidding corporations which operate a certain class of railroads to keep their employees on duty more than a certain number of hours in each twenty-four, as against the charge of discrimination in favor of individuals, the court niay take judicial notice that all roads to which the act could apply must necessarily be operated by corporations. People v. Erie R. Co. 29: 240, 91 N. E. 849, 198 N. Y. 369. 38. The court will judicially notice that grain coming to Chicago over any line of road may readily be switched to any el- evator in any part of the city. People ex rel. Healy v. Illinois C. R. Co. 16:604, 84 N. E. 368, 233 111. 378. Street railways. 39. Courts will take judicial notice of the dereliction of street car companies in failing to provide adequate accommodations for their passengers. Capital Traction Co. v. Brown, 12: 831, 29 App. D. C. 473. By-laws of bank; banking business. 40. Courts cannot take judicial notice of the business hours of -any particular bank, but the courts judicially know that ordi- narily banks in the cities and larger towns of the state do not open their doors for business at an hour earlier than 9 o'clock A. M. Lewis, H. & Co. v. Montgomery Sup- ply Co. 4: 132, 52 S. E. 1017, 59 W. Va. 75. 41. Though the courts cannot have ju- dicial knowledge of the existence of any particular bank, or of any mode of business peculiar to a given bank, they will take judicial notice that, in all cities and towns of large population and extensive business, within their jurisdiction, banks exist, and of the facts that their operations are gov- erned by reasonable rules and regulations, Digest 1-52 L.R.A.(N.S.) to which parties dealing with them, or in commercial paper, are deemed to have sub- jected themselves. Lewis, H. & Co. v. Mont- gomery Supply Co. 4: 132, 52 S. E. 1017, 5!> W. Va. 75. Disease. Judicial notice as to quarantine of southern cattle, see supra, 35. Judicial notice that trees are subject to, see infra, 51. 42. The court takes judicial notice that scarlatina and scarlet fever are infectious or contagious diseases. State v. Racskows- ki, 45: 580, 86 Atl. 606, 86 Conn. 677. 43. Judicial notice will be taken of the fact that epilepsy tends to weaken mental force, and often descends from parent to child, or ontails upon the offspring of the sufferer some other grave form of nervous malady. Gould v. Gould, 2: 531, 61 Atl 604, 78 Conn. 242. 44. The court takes judicial notice of the fact that the keeping of hogs in the ordi- nary way within the thickly populated por- tions of a city tends to create a condition from which pestilence and disease arise. Ex jarte Botts, 44: 629, 154 S. W. 221, Tex. Grim. Rep. . Offensive business. See also supra, 44. 45. The courts will take judicial notice of the fact that some injury must result from substance-laden smoke pervading the atmosphere in which persons and property necessarily remain. Rochester v. Macauley- Fien Milling Co. 32: 554, 92 N. E. 641, 1 N. Y. 207. 46. The court cannot refuse an injunc- tion against the mainten nee of a gas holder in a residence section of a municipal corporation, which is operated in such manner as to constitute a nuisance to neighboring property, upon its own knowl- edge that it may and will be rendered im- pervious to the escape of gas, but those questions must be determined from the evidence offered to establish them. Ro- mano v. Birmingham R. L. & P. Co. 46: 642, 62 So. 677, 82 Ala. 335. Intoxicating character f liquors. 47. The court takes judicial notice of the fact that a liquor containing more than 2 per cent of alcohol by weight will intoxi- cate. Fuller v. Jackson, 30: 1078, 52 So. 873, 97 Miss. 237. 48. The court will not take judicial no- tice of the intoxicating character of a new beverage which has not yet become so well known as to have a reputation as to such character. Gourley v. Com. 48: 315, 131 S. W. 34, 140 Ky. 221. (Annotated) 49. A Manhattan cocktail is generally and popularly known as an intoxicating li- quor, and no proof of its intoxicating charac- ter is necessary, in prosecutions under a pro- hibitory law. State v. Pigg, 19: 848, 97 Pac. 859, 78 Kan. 618. (Annotated) Trees and plants. 50. Judicial notice will be taken of the fact that locust trees do not make desirable or attractive shade trees. Lagrange v. EVIDENCE, I. f. 3079 Overstreet, 31: 951, 132 S. W. 169, 141 Ky. 43. 51. A court may take judicial notice of the fact that trees and other forms of plant life are subject to destructive communicable diseases. State ex rel. Hawley v. Nelson, 15: 138, 115 N. W. 93, 22 S. D. 23. Usages and customs. See also supra, 40. 52. The court takes judicial notice of the custom of railroad companies to carry the sample cases of traveling salesmen as bag- gage. Fleischman v. Southern R. Co. 9: 519, 56 S. E. 974, 76 S. C. 237. 53. The court takes judicial notice of the usages of railroad companies and of ex- press companies with respect to delivery of property transported by them. State v. Intoxicating Liquors, n: 550, 66 Atl. 393, 102 Me. 206. 54. The court will take judicial notice of the uniform and generally known custom of life insurance companies to re- quire, as a condition precedent to the is- suance of an insurance policy, a properly signed and executed application therefor, together with an authenticated medical ex- amination of the applicant. Taylor v. Grand Lodge A. 0. U. W. ix: 92, 111 N. W. 919, 101 Minn. 72. 55. The court will judicially notice that when an application is made to a public service corporation for a public service, such as the furnishing current for electric light, certain things have to be done in order to connect the applicant's premises with the company's system; and that the company, and not the applicant, usually attends to such matters, except in so far as they may be controlled by special rules and regulations applicable to the particular service. State ex rel. Mason v. Consumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. 56. The court will judicially notice that cities are divided by streets and alleys into blocks and subdivisions of blocks; that pub- lic service corporations using wires for the distribution of the service supplied by them, such as telephone and electric light service, customarily set poles in the streets and alleys, and string wires along and across the same; that such wires frequently cross the streets and alleys; that many persons are served by such wires so strung above and across the streets and alleys; that when the consent of the city is necessary, in order that the service company may law- fully set such poles and string, such wires as may be necessary to carry the service to the persons so served and to be served, the company, and not its patrons or applicants for service, usually attends to the obtaining of the necessary consent of the city to the use of the streets, by application to the council or otherwise. State ex rel. Mason v. Consumers' Power Co. 41: 1181, 137 N. W. 1104, 119 Minn. 225. Infants' services. 57. The trial judge should not take Digest 1-52 L.R.A.(N.S.) judicial cognizance of the fact that a child two years ten months and twenty days of age, alleged to be a precocious child, capable of rendering services to his parent and actually rendering the same, is incapable of performing valuable service. James v. Central of Georgia R. Co. 41: 795, 75 S. E. 431, 138 Ga. 415. Police regulations. 58. The court cannot judicially know that a license fee of $1,000 per annum for the privilege of conducting a brewery busi- ness within the municipality is unreason- able or excessive as a matter of police regu- lation. Schmidt v. Indianapolis, 14: 787, 80 N. E. 632, 168 Ind. 631. Municipal lighting. Notice of custom as to, see supra, 56. Time. 59. A municipal court must take ju- dicial notice of the standard by which the time in the city is measured. Salt Lake City v. Robinson, 35: 610, 116 Pac. 442, 39> Utah, 260. 60. Courts take judicial notice of the fact that this country has been divided into zones of a certain width in each of which a particular standard of time is in force. Salt Lake City v. Robinson, 35: 610, 116 Pac. 442, 39 Utah, 260. Effects of mental suffering. 61. The fact of bodily harm from mental suffering must be found to exist as a fact before the courts will be justified in act- ing upon it. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. /. By jury. <8ee also same heading in Digest L.R.A. 1-10.) Right of jurors to utilize their own knowl- edge, see TRIAL, 7, 8. 62. Jurors are not restricted to a con- sideration of facts directly proved, nor are they expected to lay aside matters of com- mon knowledge, or their own observation and experience of the affairs of life, but,, on the contrary, may give effect to such in- ferences as common knowledge of their per- sonal observation and experience may rea- sonably draw from the facts directly proved. Chicago, M. & St. P. R. Co. v. Moore, 23: 962, 166 Fed. 663, 92 C. C. A. 357. 63. The finding of a jury in respect to- matters as to which iru-"i of ordinary knowl- edge and observation have some practical knowledge cannot be attacked on the ground that there was no evidence to sustain it be- cause of the lack of expert testimony on the subject, since on such matters jurors are capable of forming their own opinions, though they might be assisted by the opin- ions of competent experts. Chicago, M. & St. P. R. Co. v. Moore, 23: 962, 166 Fed. 663, 92 C. C. A. 357. 1080 EVIDENCE, II. a. //. Presumptions and burden of proof, a. In general; laws; ordinances. (See also same heading in Digest L.R.A. 1-10.) Evidence to rebut presumption, see infra, 1921, 1922. Sufficiency of evidence to justify presump- tion, see infra, 2059. Presumptions on appeal, see APPEAL AND ERROR, VII. d. Correctness of instruction as to burden of proof, see APPEAL AND ERROR, 858. Prejudicial error in instruction as to, see APPEAL AND ERROR, 1385-1387, 1390. Waiver or cure of error in instruction as to, see APPEAL AND ERROR, 848, 858. On application for bail, see BAIL AND RE- COGNIZANCE, 14-16. As to basis for statement by court as to common law, see COMMON LAW, 2. That contract is governed by common law, see CONFLICT OF LAWS, 36. Validity of statute as to, see CONSTITUTION- AL LAW, 140-142, 277, 619-624. Presumption that separation walls between buildings or yards are used in common, see COVENANTS AND CONDITIONS, 68. Presumption that evidence authorized ver- dict, see CRIMINAL LAW, 164. Burden of proof in habeas corpus proceed- ing, see HABEAS CORPUS, 71. Presumption of abandonment of cause of ac- tion, see LIMITATION OF ACTIONS, 9. Presumption in mandamus case, see MANDA- MUS, 122. Presumption as to prospective operation of statute, see STATUTES, 292. Sufficiency of evidence to overcome presump- tion, see TRIAL, 243, 364, 366, 368. Presumption against trustworthiness of evi- dence, see TRIAL, 682. Instructions as to, see TRIAL, 942, 943. Presumption of court in giving instructions, see TRIAL, 1011. Presumption where trustee mingles trust funds with his own, that subsequent payments are made from his own por- tion of fund, see TRUSTS, 151. 64. The burden of proving the issue, de- volved upon a party, never shifts, although the burden of producing evidence to satisfy the court or jury may shift during the trial. McAdams v. Bailey, 13: 1003, 82 N. E. 1057, 169 Ind. 518. 65. Where a cause of action is jointly prosecuted against two, if the burden of proof is on plaintiff as to either of them the court may give him the burden in the whole case. New Ellerslie Fishing Club v. Stewart, 9: 475, 93 S. W. 598, 123 Ky. 8. 66. In the absence of evidence, the court will not assume that there was discrimina- tion in a statute providing a mode of assess- ment of the intangible assets of chair-car companies, which does not include sleeping and dining-car companies. Missouri, K. & T. R. Co. v. Shannon, 10:681, 100 S. W. 138, 100 Tex. 379. JMgest 1-52 L.R.A.(N.S.) Foreign laws. 67". In the absence of proof of the law of a foreign country, where a contract for sale of the good will of a business was en- tered into, the court of the forum will pre- sume that it is the same as its own law; and this presumption cannot be affected by state- ments in its own opinions, or those of the courts of the foreign country, which are not put in evidence. Gordon v. Knott, 19: 762, 85 N. E. 184, 199 Mass. 173. 68. The Federal courts cannot assume without proof that, under the law of Cuba, like that of the forum, a promise to repair or replace defective machinery, when noti- fied by an employee of the defect, throws upon the master the risk of injury to such employee from such defect until the time for performance has expired, or that it does away with or leaves to the jury what otherwise would be negligence as a matter of law. Cuba R. Co. v. Crosby, 38: 40, 32 Sup. Ct. Rep. 132, 22 U. S. 473, 56 L. ed. 274. (Annotated) 69. In an action upon a simple contract to pay money for a valuable consideration, entered into in a foreign country in which the common law does not prevail, the court will presume, in the absence of evidence to the contrary, that the law of such country recognizes an enforceable obligation upon such contract. Parrot v. Mexican C. R. Co. 34: 261, 93 N. E. 590, 207 Mass. 184. (Annotated) Law of other states. Judicial notice of law of other state, see supra, 3, 4. Necessity of pleading and proving law of other state, see PLEADING, 59-63. Presumption that interpretation of adopted statute was also adopted, see STATUTES, 276. 70. The laws of a sister state will be pre- sumed to be the same as the local laws in the absence of pleading and proof to the contrary. Sheppard v. Coeur d'Alene Lum- ber Co. 44: 267, 112 Pac. 932, 62 Wash. 12. 71. No presumption exists that the statutory law of a sister state is the same as that of Minnesota. Wilcox v. Bergman, 5: 938, 104 N. W. 955, 96 Minn. 219. 72. In the absence of proof of the law of another jurisdiction, the inference is that the common law still prevails there. Bodine v. Berg (N. J. Err. & App.) 40: 65, 82 Atl. 901, 82 N. J. L. 662. 73. The court presumes, in the absence of evidence to the contrary, that the common law of a sister state is the same as its own. Southern Exp. Co. v. Owens, 8: 369, 41 So. 752, 146 Ala. 412. 74. In the absence of proof of a foreign law in an action in which it is applicable, the court will presume that the common law is in force, and that it is the same as the local common law. Southworth v. Morgan, 51: 56, 98 N. E. 490, 205 N. Y. 293. 75. In the absence of evidence to the contrary, the presumption will prevail that the construction given by the courts of an- other state to a common-law doctrine is the same as that of the state in which the ques- EVIDENCE, II. b. 1081 tion arises. Mount v. Tuttle, 2: 428, 76 N. E. 873, 183 N. Y. 358. 76. A common-law state will presume that the law of a sister state colonized from England is the same upon the subject of validity of infants' contracts as its own. International Text-Book Co. v. Connelly, 42: 1115, 99 N. E. 722, 206 N. Y. 188. 77. The common law of one state, gov- erning commercial transactions in issue in the courts of another state, will be pre- sumed to conform to the lex fori, in the absence of proof on the subject. Sykes v. Citizens' Nat. Bank, 19: 665, 98 Pac. 206, 78 Kan. 688. 78. In determining the merits of a de- fense interposed by a surety upon a promis- sory note made in one state, buc. sought to be enforced in another, it will be presumed, in the absence of proof to the contrary, that, upon the question presented, the com- mon law as interpreted by the court of the forum prevails in the state in which the contract was made. Thomas v. Clarkson, 6: 658, 54 S. E. 77, 125 Ga. 72. 79. Where a question before the court is governed by the rule of the common law, instead of by statute, the court will pre- sume, in the absence of proof to the con- trary, that the common law prevails in the state where the injury occurred, and that the common law is understood and con- strued to be the same in the foreign state as it is in the state of the forum. Maloney v, Winston Brothers Co. 47: 634, 111 Pac. 3080, 18 Idaho, 740. 80. The act of Congress applicable to the District of Columbia, expressly provid- ing that a divorce from the bonds of matri- mony may be granted "where either party has committed adultery during the mar- riage," negatives any presumption by a court of another jurisdiction that the common-law rule denying divorce a vinculo for such ground is still in force in the District. Dimpfel v. Wilson, 13: 1180, 68 Atl. 561, 107 Md. 329. 81. It is presumed that the statutes of a sister state where is located a mine be- longing to a corporation whose directors do business in the state where suit is brought, as to the right of stockholders to inspect the mine, are the same as the local statutes. Hobbs v. Tom Reed Gold Mines Co. 43: ui2, 129 Pac. 781, 164 Cal. 497. 82. In a suit in one state on a contract made and intended to be performed in an- other, in which the defendant pleads the statute of the other state denning usury and prescribing as a penalty the forf siture of all interest, and bases an appropriate plea of usury on that statute, in order to maintain the plea it is essential that he prove that the statute was in force at the t?me of the execution of the contract. Thomas v. Clark- son, 6: 658, 54 S. E. 77, 125 Ga. 72 Constitutional provision adopted from other state. 83. Where a constitutional provision has been adopted from another state, and the court of last resort of such state had construed the provision in that state prior Digest 1-52 L.R.A.(N.S.) to its adoption, the presumption arises that the framers of the Constitution, in adopt- ing such provision, meant and intended to also adopt the construction that had been placed upon it by the highest court of the state from which it was taken. Re Schrib- er, 37: 693, 114 Pac. 29, 19 Idaho, 531. Validity of statutes. 84. An act of a state legislature, fixing rates for either passenger or freight trans- portation, is to be regarded as prima facie valid, and the onus rests upon the carrier to prove its assertion to the contrary. Ex parte Young, 13: 932, 28 Sup. Ct. Rep. 441, 209 U. S. 123, 52 L. ed. 714. 85. A statute fixing maximum rates which express companies may charge and receive as compensation for their services is presumed to be constitutional; and the burden of proof is on one who challenges its validity to show, by a preponderance of the evidence, that the legislation complained of clearly contravenes some provision of the Constitution. State v. Adams Express Co- 42: 396, 122 N. W. 691, 85 Neb. 25. Ordinances. Sufficiency of evidence to overcome presump- tion of reasonableness, see infra, 2344. 86. It is the duty of a party assailing a municipal ordinance to show its illegality; and any doubt upon the subject will be de- cided in favor of the ordinance. Shreveport v. Dantes, 8: 304, 42 So. 716, 118 La. 113. Presumption and burden of proof as to, see EVIDENCE, 86, 87. 87. The presumption in favor of munici- pal ordinances is not sufficient to uphold air ordinance which the legislature has empow- ered municipalities having a specified mini- mum population to pass, where the Federal' census shows that the municipality which enacted the ordinance did not contain the required population, and there is no evi- dence tending to show that it did. Jones v. Hines, 22: 1098, 47 So. 739, 157 Ala. 624. b. Establishing allegations and claims. (See also same heading in Digest L.R.A. 1-10.) As to viciousness of animals, see ANIMALS,. 18. Complaining for first time on appeal of fail- ure to prove presentment and notice in action against indorser, see APPEAL ANI> ERROR, 772. Presumption of reasonableness of demand in mandamus case, see MANDAMUS, 124, 125. See also infra, 199; PLEADING, 430, 522. 88. The burden of proof to establish the affirmative of an issue involved in an action rests upon the party alleging the facts con- stituting that issue, and remains there un- til the end. Allen v. Chicago, B. & Q. R. Co. 23: 278, 118 N. W. 655, 82 Neb. 726. 89. In assailing a prima facie right or title by a bill in equity, the plaintiff must aver and prove facts sufficient to overcome it; otherwise he cannot ordinarily put the 1082 EVIDENCE, II. c. defendant to the proof of a perfect, inde- feasible title or right. Hardman v. Cabot, 7: 506 55 S. E. 756, 60 W. Va. 664. Negligence. As to cause of death or injury, see infra, 324-329. See also infra, II. h. 90. That defendant joined issue upon a complaint containing a general averment of negligence, without moving to make the pleadings more definite, does not relieve plaintiff from proving a particular act of negligence upon which to base his right to recover. Kennedy v. Hawkins, 25: 606, 102 Pac. 733, 54 Or. 164. 91. In an action for wrongful death by intentionally killing plaintiff's intestate, where self-defense is pleaded, plaintiff must first establish his case by proper and suffi- cient proof, and defendant then has the bur- den of establishing his justification or ex- cuse. Suell v. Derricott, 23: 996, 49 So. 895, 161 Ala. 259. 92. One who, having been injured by the fall of an elevator, alleges in his complaint the specific acts of negligence which caused the accident, is bound to prove them, ami cannot rely upon the general rule which presumes negligence from the circumstances attending the accident. Orcutt v. Century Bldg. Co. 8: 929, 99 S. W. 1062, 201 Mo. 424. Freedom from contributory negli- gence. 93. In an action against a county to re- cover damages for personal injuries sus- tained while riding in a private vehicle over a defective bridge, an unnecessary allega- tion in the complaint, that the injury was caused without any fault or negligence on the part of the plaintiff or the person driv- ing the vehicle, will be construed as alleging that the driver was without fault or negli- gence which could be imputed to the plain- tiff; and the latter need not prove that the driver was without negligence. Loso v. Lan- caster County, 8: 618, 109 N. W. 752, 77 Neb. 466. Criminal cases. Admissibility of confessions, see infra, VIII. Burden of establishing defense, see infra, 102-109. Insanity of accused, see infra, 221-223. See also infra, 2402. 94. A plea of not guilty to an indictment from which material matteis are omitted, which are stated to have been unknown to the grand jury, puts in issue such allega- tion, and requires the state to prove it. People v. Hunt, 36: 933, 96 N. E. 220, 251 111. 446. 95. It is not necessary for the state, in a prosecution under a statute providing for increased punishment upon second offenders, to prove that the judgment of conviction in the former prosecution has not been re- versed or set aside, although this is alleged In the indictment, but the judgment roll being offered in evidence and appearing fair upon its face, the judgment will be pre- sumed in full force and effect until the Digest 1-52 L.R.A.(N.S.) contrary is shown. State v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. c. Defenses. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence as to negligence, see infra, 2167-2169. See also supra, 91; infra, 113. 96. The burden of showing extenuating circumstances for shooting a person is upon the defendant. Daniel v. Petersburg R. Co. 4: 485, 23 S. E. 327, 117 N. C. 592. 97. The burden of showing that an auto- mobile in which a person was riding when injured was not registered, as required by statute, is upon the one seeking to avoid liability for the injury upon the ground of absence of registry. Conroy v. Mather, 52: 801, 104 N. E. 487, 217 Mass. 91. 98. In an action in replevin to recover possession of intoxicating liquors it is not necessary for the plaintiff affirmatively to show that they were not seized under a statute which contains the provision that no liquors seized by virtue of any warrant issued under the provisions of the act shall be taken from the possession of the officer seizing the same, under any replevin or other process, where there is nothing in the record to show that the defendants in the replevin suit are officers, or that they had seized or had a right to seize the liquor by virtue of any authority. Blunk v. Waugh, 39: 1093, 122 Pac. 717, 32 Okla. 616. Privilege. See also infra, 251. 99. The burden of proving that a slan- derous communication was privileged is on the defendant in an action for slander. Abraham v. Baldwin, 10: 1051, 42 So. 591, 52 Fla. 151. Contracts generally. Matters as to contracts generally, see infra, II. k. Burden of proving payment in action to re- cover assigned wages, see PLEADING, 489. See also infra, 536. Carriers. Matters as to carriers' contracts, see infra, 525-529. Burden of proving justification for refusing to transport passengers, see TKIAL, 742. 100. The burden of proof is upon the carrier to exempt itself from liability for loss of goods consigned to it for transporta- tion, where the defense is that the loss was caused by an act of God or some irresistible superhuman cause. Chicago, R. I. & P. R. Co. v. Logan, Snow, & Co. 29: 663, 105 Pac. 343, 23 Okla. 707. (Annotated) 101. The delivery, by a terminal carrier to the consignee, of a portion of a stove, casts upon it the burden of proving that it never received another portion which was shipped, but not delivered. Venning v. At- lantic Coast Line R. Co. 12: 1217, 58 S. E. 983. 78 S. C. 42. EVIDENCE, II. d, e, 1. 1083 Criminal cases. Burden of establishing allegations or claims generally, see supra, 94, 95. Insanity of accused, see infra, 221-223. See also infra, 112. 102. When the commonwealth has proved facts showing an illegal sale of liquor, the burden is on defendant to establish the de- fense on which it relies, that the transac- tion was one of interstate commerce. Adams Exp. Co. v. Com. 5: 630, 92 S. W. 932, 124 Ky. 160. 103. Where, in the trial of an indict- ment for robbery, it is proved beyond a reasonable doubt that the defendant was present at the time and place of the crime and participated in the acts which consti- tute the robbery, and the defendant, for his defense, interposes a plea of duress, the burden is not on the state to disprove such plea, but is on the defendant to maintain his plea by a preponderance of the evidence. State v. Sappienza, 34: 1118, 95 N. E. 381, 84 Ohio St. 63. 104. Where, by statute, accused, in a criminal action, has the burden of showing the facts or circumstances on which he relies to excuse or justify the act, when facts have been established which constitute the offense, one shown {o have sold intoxi- cating liquor in prohibition territory has the burden of showing that he had a li- cense to sell on prescription, and that the sales were so made. Bell v. State, 36: 98, 137 S. W. 670, 62 Tex. Crim. Rep. 242. (Annotated) 105. One accused of counseling suicide has htt the burden of showing that decedent acted of his own volition, and not under the advice and counsel of the accused. State v. Webb, 20: 1142, 115 S. W. 998, 216 Mo. 378. 106. One accused of assault by pointing a cocked pistol at another has the burden of showing that it was not loaded to avoid liability. Territory v. Gomez, 42: 975, 125 Pac. 702, 14 Ariz. 139. (Annotated) 107. Where an intentional killing by the use of a deadly weapon has been established, accused has the burden of showing that it was in self-defense, by a fair preponderance of facts. Com. v. Palmer, 19: 483, 71 Atl. 100, 222 Pa. 299. (Annotated) 108. The presumption of murder which arises from the wilful, intentional killing of one man by another does not prohibit the latter from showing that the killing was done in self-defense. State v. Larkin, 46:13, 157 S. W. 600, 250 Mo. 218. 109. The court cannot assume as matter of law, on a trial of one accused of killing an officer who was attempting to arrest him, that the arrest had the effect of exciting in his mind a sudden heat of passion such as to make the desire to kill irresistible, and thereby reduce the offense to man- slaughter. State v. Meyers, 33:143, 110 Pac. 407, 57 Or. 50. Digest 1-52 I*R.A.(N.S.) d. Exceptions or exemptions. (See also same heading in Digest L.R.A.. 1-10.) See also infra, 560. 110. If two estates in the same property united in the same person in the same ca- pacity, and it is contended that no merger took place, the person making such con- tention, if entitled so to do, must allege and prove facts negativing the existence of such merger. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 7: 1139, 54 S. E. 1028, 126 Ga. 210. 111. One suing on a note, a material al- teration of which is shown, has the burden of showing that the alteration was made under circumstances rendering it lawful, and which would not preclude a recovery by him. Merritt v. Dewey, 2: 217, 75 N. E. 1066, 218 111. 599. 112. In a prosecution for unlawfully prac- tising medicine, it is incumbent upon the accused to show that he is within any of the exceptions of the statute, since proof of such matters lies peculiarly within his knowledge. State v. Huff, 12: 1094, 90 Pac. 279, 75 Kan. 585. Insurance. 113. The burden is on the insurer to al- lege and prove that the death of the in- sured resulted from an excepted cause and within the time to which such exception is limited. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. (Annotated) 114. One seeking to recover upon an acci- dent insurance policy for the death ->t ih insured is not bound to show that the death did not result from one of the causes from liability for which the policy relieves the insurer. Starr v. ^Etna L. Ins. Co. 4: 636, 83 Pac. 113, 41 Wash. 199. ( Annotated ) e. Concerning persons. 1. Status, condition, or relation. (See also same heading in Digest L.R.A. 1-10.) That grantor remaining in possession after execution of deed is the tenant of the grantee, see ESTOPPEL, 248. Confidential or fiduciary relation. See also infra, 268, 269, 285, 287. 115. The burden of proving the exist- ence of a. confidential or fiduciary rela- tion between brothers is upon the party asserting the existence of such relation- ship. Crawford v. Crawford, 28: 353, 67 S. E. 673, 134 Ga. 114. 116. No presumption of a confidential or fiduciary relation between brothers arises from the fact of their relation, or from the facts that one is six years the senior of the other, that they were reared to- gether, and that one attended a school 1084 EVIDENCE, II. e, 1. taught by the other. Crawford v. Craw- ford, 28: 353, 67 S. E. 673, 134 Ga. 114. Legitimacy. Sufficiency of proof as to, see infra, 2210, 2211. See also supra, 117, 118; infra, 146. 117. Every child begotten in lawful wed- lock is presumed in law to be legitimate. Powell v. State ex rel. Fowler, 36: 255, 95 N. E. 660, 84 Ohio St. 165. 118. Two men bearing the same surname and calling each other brother are presumed to be legitimate children of the same father. Re Hartman, 36: 530, 107 Pac. 105, 157 Cal. 206. Chastity. 119. The state must prove chastity, and cannot rely on a presumption of it in a prosecution under a statute making carnal knowledge of an unmarried female of previ- ous chaste character between certain ages rape. State v. Kelly, 43: 476, 150 S. W. 1057, 245 Mo. 489. (Annotated) 120. Under a statute making seduction of a woman of previous chaste character punishable, prior chastity must be proved, and cannot be presumed; at least, where such was the judicial interpretation of the statute in the state from which it was adopted. State v. Holter, 46: 376, 142 N. W. 657, 32 S. D. 43. Character. 121. The offering by accused of evidence as to his good character for truth and ve- racity does not deprive him of the presump- tion that his character for peace and quiet- ness is good. Durham v. State, 51: 180, 163 S. W. 447, 128 Tenn. 636. 122. The presumption of the good charac- ter for peace and quietness of one accused of murder cannot be considered as evidence in his favor, in addition to the presumption of innocence, to raise a reasonable doubt of guilt in the minds of the jury. Durham v. State, 51: 180, 163 S. W. 447, 128 Tenn. 636. Unfitness. 123. The presumption of unfitness on the part erf a father for custody of his child, raised by refusal of the court to award it to him upon granting a decree of divorce against him, is overcome by evidence of exemplary life for nine months after the passing of the decree, where there is noth- ing to show the nature of the unfitness upon which the court acted. Morin v. Morin, 37: 585, 119 Pac. 745, 66 Wash. 312. Alienage or citizenship. 124. One who continued to reside in this country after the Declaration of Independ- ence, giving his allegiance to the new gov- ernment, will be deemed to have become an American citizen. State ex rel. Phelps v. Jackson, 8: 1245, 65 All. 657, 79* Vt. 504. 125. Although residence raises the pre- sumption of citizenship, it may be overcome by evidence of foreign birth, which raises the presumption of citizenship in the coun- try of birth. State ex rel. Phelps v. Jack- son, 8: 1245, 65 Atl. 657, 79 Vt. 504. (Annotated) 126. To overcome the presumption of con- tinued allegiance of a citizen of the United Digest 1-52 L.R.A.(N.S.) States who removes to a foreign country, evidence of intention to terminate it must be produced. State ex rel. Phelps v. Jack- son, 8: 1245, 65 Atl. 657, 79 Vt. 504. Domicil. Presumption of citizenship from domicil, see supra, 124-126. Presumption as to continuance of, see infra, 318. Sufficiencv of proof of change of, see infra, 2216." 127. The home of his widowed mother will be presumed to be that of an unmar- ried son who, upon reaching majority, goes away to work, but makes such home his headquarters, in the absence of anything to show an intention to change it to an- other place. Miller v. Sovereign Camp Woodmen of the World, 28: 178, 122 N. W. 1126, 140 Wis. 505. 128. One seeking to distribute the estate of a former resident of a particular state, according to the laws of a foreign country in which he resides, must establish that he had acquired a domicil there in fact and in law. Mather v. Cunningham, 29: 761, 74 Atl. 809, 105 Me. 326. Insolvency. 129. Proof of insolvency at a particular time does not create a presumption that the same condition existed at any considerable time anterior thereto, nor is it evidentiary of such condition at a time very remote to that to which the evidence is directed. Elli* v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. Agency. Sufficiency of evidence, see infra, 2245-2252. Presumption that carrier is agent of con- signee, see INTOXICATING LIQUORS, 17-. 130. One who answers a telephone call from the place of business of the person called for, and undertakes to respond as his agent, is presumed to speak for him in re- spect to the general business carried on by such person at that place. Gilliland v. Southern R. Co. 27: 1106, 67 S. E. 20, 85 S. C. 27. 131. Payment to a person not having pos- session of a note, properly indorsed, doeg not raise a presumption of agency in such person to receive payment of the debt evi- denced by the note, even if the place of pay- ment is designated in the contract, if the person to whom payment shall be made is not designated. Hoffmaster v. Black, 21: 52, 84 N. E. 423, 78 Ohio St. 1. (Annotated) 132. In an action on an insurance policy the burden is on the company pleading that the return of the sheriff that he s?rved process upon its agent is false for the reason that the person named was not its agent, to negative the agency of such person, where the plaintiff in her reply denies such alle- gations. Taylor v. Illinois Commercial Men's Asso. 24: 1174, 122 N. W. 41, 84 Xeb. 799. 133. The burden is upon a parent whose child causes an injury while driving the parent's automobile, to overcome the pre- sumption that the child was driving the EVIDENCE, II. e, 2. 1085 vehicle for the owner. Birch v. Abercrom- I bie, 50: 59, 133 Pac. 1020, 74 Wash. 486. Medical qualifications. 134. A physician suing for the value of services rendered is not bound, in the first instance, to show that he had a license to practise medicine. Leggat v. Gerrick, 8: 1238, 88 Pac. 788, 35 Mont. 91. ( Annotated ) As stockholder. 135. Where the stock books of a corpora- tion show that certain individuals are stock- holders therein, a prima facie presumption is created that such persons are stockhold- ers in the corporation. Randall Printing Co. v. Sanitas Mineral Water Co. 43: 706, 139 N. W. 606, 120 Minn. 268. As surety. 136. The mere fact that the name of a partnership is placed on a note as maker af- ter that of a corporation does not raise the presumption that it wan surety only, so as to show on the face of the instrument an unauthorized use of the partnership name, and render the note invalid in favor of part- ners without notice, in the hands of one who took it for value before maturity from one having apparent title to it. Union Nat. Bank v. Neill, 10:426, 149 Fed. 711, 79 C. C. A. 417. (Annotated) 2. Marriage; identity; divorce. (See also same heading in Digest L.R.A. 1-10.) Marriage. Sufficiency of proof of, see infra, 2202-2204. Sufficiency of evidence to overcome presump- tion, see EVIDENCE, 2204. See also infra, 152, 297. 137. In an action by a mother to recover damages for the alleged killing of her minor child, the burden of proof rests upon the plaintiff to show marriage, where an issue in that regard is tendered by the defend- ant. Lynch v. Knoop, 8: 480, 43 So. 252, 118 La. 611. 138. The authority of the official perform- ing a marriage ceremony and all the pre- requisites of a valid marriage will be pre- sumed until the contrary is made to appear. Sloan v. West, 17: 960, 96 Pac. 684, 50 Wash. 86. 139. The presumption attaching to a sec- ond marriage of a person is not sufficient to overcome direct testimony of himself and his former wife and distinterested witnesses, that the first marriage was legally solem- nized. Sloan v. West, 17: 960, 96 Pac. 684, 50 Wash. 86. 340. In a prosecution for bigamy, the va- lidity of the first marriage will not be pre- sumed, but the evidence must show it be- yond a reasonable doubt. McCombs v. State, 9: 1036, 99 S. W. 1017, 50 Tex. Crim. Rep. 490. (Annotated) 141. All the presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a formal ceremony of marriage and cohabitation by Digest 1-52 L.R.A.(N.S.) the parties under the belief that they were lawfully married. Murchison v. Green, ii : 702, 57 S. E. 709, 128 Ga. 339. 142. One who, for the mere purpose of pecuniary gain, attacks a marriage on the ground that one of the parties, since de- ceased, had at the time a living spouse, has the burden of overcoming the presumption of the validity of the marriage resulting from the solemnization of the marriage ceremony and the cohabitation of the parties under the belief that they were legally married, and of establishing that the former spouse was living at the time the second marriage was contracted. Murchison v. Green, n: 702, 57 S. E. 709, 128 Ga. 339. 143. One attempting to set aside a mar- riage settlement alleged to have been se- cured by a woman's falsely representing herself to be single, when she was in fact married, has the burden of showing the existence, at the time of the second mar- riage, of a valid subsisting prior one. Turner v. Williams, 24: 1199, 89 N. E. 110, 202 Mass. 500. 144. The presumption of removal of prior obstacles in support of a marriage does not prevail where it is attacked and evidence is introduced on either side, but the ques- tion then becomes one of fact, to be decided in the light of all the circumstances and the reasonable inferences from them. Turner v. Williams, 24: 1199, 89 N. E. 110, 202 Mass. 500. 145. The presumption of the validity of a marriage arising from the performance of a ceremony and cohabitation will prevail over the presumption of the continued life of the former spouse of one of the parties, if neither presumption is aided by proof of facts or circumstances corroborating it. Murchison v. Green, n: 702, 57 S. E. 709, 128 Ga. 339. 146. The presumptions flowing from a marriage ceremony overcome that of the continuance of life, so that if a woman whose husband has been absent and unheard from for four years enters into a marriage with another person, and has children by him, the presumptions of absence of guilt and legitimacy of the children will over- come that of the continued life of the form- er husband, and render the marriage valid. Vreeland v. Vreeland (N. J. Err. & App. ) 34: 940, 79 Atl. 336, 78 N. J. Eq. 256. (Annotated) 147. The burden of showing that cohab- itation between a man and a woman, which was illicit in its inception, became there- after lawful by reason of a contract of mar- riage entered into between them, rests upon the party asserting the fact of such agree- ment. Drawdy v. Hesters, 15: 190, 60 S. E. 451, 130 Ga. 161. 148. If cohabitation between a man and a woman is shown to have been illicit in its inception, the illicit relation will be pre- sumed to have continued throughout the period of cohabitation in the absence of proof to the contrary; but such presump- tion may be overcome by direct or circum- stantial evidence affirmatively showing that, 1086 EVIDENCE, II. e, 3. pending the illicit relation, the parties en- tered into an agreement to become husband and wife, and thereafter continued the co- habitation in the new relation. Drawdy v. Hesters, 15: 190, 60 S. E. 451, 130 Ga. 161. Identity. Sufficiency of proof of, see infra, 2217. 149. The identity of the several sepa- rate sheets of a will offered for probate is prima facie established where each sheet but the last, which bears the signature of the testator, ends with an incomplete sen- tence, and such parts when properly ar- ranged effect a complete subject-matter. Kirby v. Sellards, 28: 270, 108 Pac. 73, 82 Kan. 291. Divorce. Sufficiency of proof of, see infra, 2205-2209. 150. Divorce from a former spouse will not be presumed from a marriage contract if no record thereof can be found in the counties where it should have been granted. Smith v. Fuller, 16: 98, 115 N. W. 912, 138 Iowa, 91. (Annotated) 151. Where a man leaves the state to secure a divorce and, upon returning, an- nounces that it has been secured, upon which information both parties act, and marry other partners, the former wife, to secure an interest in his property upon his death, must overcome the presumption that the divorce was in fact secured. Shepard v. Carter, 38: 568, 119 Pac. 533, 86 Kan. 125. 3. Death; survivorship," suicide. (See also same heading in Digest L.R.A. 1-10.) Death. Burden of proving cause of death of in- sured, see supra, 113, 114. Presumption from marriage of one spouse as to death of other, see supra, 145, 146. At to death of former spouse, see infra, 297. As to cause of death, see infra, 327, 329. Sufficiency of proof of, see infra, 2213-2215. Instruction as to presumption of death, see TRIAL, 1022. 152. The state must, in a prosecution for bigamy, prove that the first spouse was alive when the second marriage was con- tracted. Dunlap v. State, 41: 1061, 150 S. W. 86, 126 Tenn. 415. 153. Proof of diligent search and in- quiry is not required to establish the pre- sumption of death when a person has ab- sented himself from his home or place of residence for seven years. Miller v. Sover- eign Camp Woodmen of the World, 28: 178, 122 N. W. 1126, 140 Wis. 505. (Annotated) 154. The relatives of one who disap- peared without explanation, and has re- mained absent from home for more than seven years, are not bound to follow up intelligence of a tangible and definite char- acter as to his whereabouts to avoid its rebutting the presumption of death, if the source from which it comes is so corrupt and unreliable as to destroy its value. Ken- Digest 1-52 L.R.A.(N.S.) nedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. 155. Mere failure of the relatives of one who disappeared without explanation, and remained absent from home for more than seven years, to follow up rumors that he had been seen in different places, and in- stitute diligent inquiry in such places for him, is not sufficient to overcome the pre- sumption of death arising from such ab- sence. Kennedy v. Modern Woodmen of America. 28: 181, 90 X. E. 1084, 243 Til. 500. 156. To overcome the presumption that a person once shown to have been alive con- tinues to live by the presumption of death arising from seven years' unexplained ab- seiice from home or place of residence, there must be a lack of information concerning aim on the part of those likely to hear from him after diligent inquiry; which should ex- tend to all those places where information is likely to be obtained and to all persons who, in the ordinary course of events, would be likely to receive tidings if he were alive, and should exhaust all patent sources of in- formation and all others sugge: ted by the circumstances. Modern Woodmen v. Cer- dom, 2: 809, 82 Pac. 1100, 72 Kan. 391. (Annotated) Snicide. 157. The presumption is against suicide, in an action brought to recover the amount alleged to be due on a mutual benefit cer- tificate. Lindahl v. Supreme Court I. O. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. 158. In the absence of anything to show that one found dead was not in his riglit mind, the jury may act on the presumption that he did not commit suicide. Tackmun v. Brotherhood of A. Y. 8: 974, 106 N. \V. 350, 132 Iowa, 64. 159. Where an insured has suffered an in- jury which caused his death, and there is nothing to show whether it was accidental or self-inflicted, the presumption, in an ac- tion on an accident policy on his life, is that it was accidental. Wilkinson v. JEtna L. Ins. Co. 25: 1256, 88 N. E. 550. 240 111. 205. 160. In an action to recover the amount of a benefit certificate issued by a benevolent association, if the known facts are consist- ent with the theory of natural or accidental death, the presumption which the law raises from the ordinary motives and principles of human conduct requires a finding against suicide. Lindahl v. Supreme Court I. O. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. 161. In an action to recover the amount of a benefit certificate issued by a benevolent association, the burden of proving the de- fense that the deceased committed suicide is upon the defendant association. Lindahl v. Supreme Court I. 0. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. 162. In case of the defense of death by suicide being interposed in an action on a life insurance policy, the burden of proof is on the defendant to establish such defense. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 163. In support of the theory that inju- EVIDENCE, II. e, 4. 1087 riea to one found unconscious in a burning building, whither he had gone to work, in a cheerful frame of mind, were not self-in- flicted, the presumption may be invoked that men in circumstances of the injured person do not take their own lives. Wilkin- son v. ^Etna L. Ins. Co. 25: 1256, 88 N. E. 550, 240 111. 205. 164. In an action upon a policy of insur- ance upon the life of one whose death oc- curred under such circumstances that it may or may not have been caused by sui- cide, the presumption is against suicide, and to defeat a recovery the insurer must show that suicide was the cause of death. Krogh v. Modern Brotherhood of America, 45: 404, 141 N. W. 276, 153 Wis. 397. 165. If 'circumstantial evidence is relied upon to prove suicide, in an action to re- cover the amount of a benefit certificate is- sued by a benevolent association, the de- fendant association must establish facts which exclude any reasonable hypothesis of natural or accidental death. Lindahl v. Supreme Court I. 0. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. 4=. Assent; authority; license. (See also same heading in Digest L.R.A. 1-10.) Assent. See also infra, 203. 166. Consent by a patient to the per- formance of a surgical operation may be implied from circumstances. Mohr v. Wil- liams, i: 439, 104 N. W. 12, 95 Minn. 261. 167. The carrier has the burden of show- ing that a shipper assented to special condi- tions in the bill of lading, limiting the lia- bility of the carrier for injury occurring be- yond its own line and requiring claims to be presented within a specified time. Wa- bash R. Co. v. Thomas, 7: 1041, 78 N. E. 777, 222 111. 337. 168. Acquiescence by a property owner in the act of his son in signing his name to a petition for the opening of a road through the property will be presumed from the facts that he knew what was done, and did not repudiate the opening of the road, al- though he lived more than six months after the order of the court making the road pub- lic propertv. McKinney v. Pennsylvania R. Co. 21 : 1002, 70 Atl. 946, 222 Pa. 48. 169. The right 'to fill blanks in written instruments after execution and delivery is based upon an assumption of consent, in the absence of specific instructions; and the leaving of such blanks is considered to im- ply authority to fill them, and creates an agency in the receiver to do so in the way contemplated by the maker. Montgomery v. Dresher, 38: 423, 134 N. W. 251, 90 Neb. 632. (Annotated) 170. Where a boiler-room has been main- tained under a public alley for more than fifteen years under authority of a mu- nicipal ordinance and is safely and suffi- ciently covered, it will be presumed that the ordinance was complied with and that the Digest 1-52 L.R.A.(N.S.) work was done with the approval of the mu- nicipality. Tiernan v. Lincoln, 32: 1034, 130 S. W. 280, 88 Neb. 602. Authority. Official authority, see infra, II. i. Presumption as to authority to locate build- ing on land, see infra, 629. Sufficiency of evidence, see infra. 2226, 2227. See also supra, 169. 171. The authority of an agent to do cer- tain acts on behalf of his principal may be inferred from the continuance of the acts themselves over such a period of time, and the doing of them in such a manner, that the principal would naturally have become cognizant of them and would have forbid- den them if unauthorized. Dierkes v. Haux- hurst Land Co. (N. J. Err. & App.) 34: 693, 79 Atl. 361, 80 N. J. L. 369. 172. To avoid the opening of a judgment for lack of notice of pendency of the ac- tion, on the ground that notice was given to defendant's agent, plaintiff must es- tablish the authority of the agent to repre- sent the principal with respect to the sub- ject-matter of the action, by clear and satisfactory proof. Dunlap v. Gibson, 31: 1071, 112 Pac. 598, 83 Kan. 757. 173. The burden of proving authority in an agent to indorse a check of the principal rests upon the person asserting the existence of such authority. Dispatch Printing Co. v. National Bank of Commerce, 50: 74, 124 N. W. 236, 109 Minn. 440. 174. One seeking to hold a merchant up- on a contract made by a traveling salesman has the burden of showing authority on his part to bind his employer. Lee v. Vaughan Seed Store, 37: 352, 141 S. W. 496, 101 Ark. 68. 175. A purchaser of real estate who charges employment by both parties to the contract in defense of his agreement to pay broker's commissions is bound to show that the broker was vested with discretionary powers, where the broker pleads that the agency gave him no discretion, but that he was employed merely to bring the parties together and keep them informed as to the condition of the property. McLure v. Luke, 24: 659, 154 Fed. 647, 84 C. C. A. 1. 176. When payment is jn~de to a person not having possession of the securities, prop- erly indorsed, which evidence the debt on which the payment was intended to be ap- plied, the burden of showing that such per- son was authorized to receive payment for the creditor rests upon the party who makes the claim of pavment. Hoffmaster v. Black, 21 : 52, 84 N E.*423, 78 Ohio St. 1. 177. A borrower making payments of principal to an agent has the burden of showing that he has either express or ap- parent authority to receive such payments for the lender. Campbell v. Gowans, 23: 414, 100 Pac. 397, 35 Utah, 268. 178. The facts that an automobile was owned by the defendant, and that the same was negligently operated by an employee, do not make a prima facie case of liability against the owner, unless it appears that the employee was driving the automobile 1088 EVIDENCE, II. e, 5. with authority, express or implied, of the owner. White Oak Coal Co. v. Rivoux, 46: 1091, 102 N. E. 302, 88 Ohio St. 18. (Annotated) 179. Authority of an agent who has been installed in a house to occupy and report anything occurring in reference to it, to ex- pel intruders, so as to render the principal liable for injuries to a trespasser upon whom the agent set a dog, may be inferred trom the fact that, for a series of years during which the agent lived on the prop- erty, he habitually expelled trespassers from it. Dierkes v. Hauxhurst Land Co. (N. J. Err. & App.) 34: 693, 79 Atl. 361, 80 N. J. L. 369. (Annotated) Of attorney. 180. The legal presumption is that an at- torney has authority to appear for the per- son for whom he assumes to act. Bacon v. Mitchell, 4: 244, 106 N. W. 129, 14 N. D. 454. Of corporate officers or agents. 181. Prima facie evidence that a contract of a corporation was executed under prop- er authority is accorded by the fact that it is signed by the proper officers and has the corporate seal attached. J. S. Potts Drug Co. v. Benedict, 25: 609, 104 Pac. 432, 156 Cal. 322. 182. There being no presumption that a director and vice president of a bank has authority to bind the institution by his ad- mission as to the manner in which a cer- tificate of stock was obtained, his authority must be shown, to make evidence of the ad- mission admissible against the bank. West- minster Nat. Bank v. New England Electri- cal Works, 3: 551, 62 Atl. 971, 73 N. H. 465. 183. Where the authority of a claim agent of a railroad company, to make a contract embracing unusual stipulations, is denied under oath, it devolves on the oppos- ing party to prove that the agent had such authority, and neither evidence of the state- ments of the agent, nor the fact that he made that particular contract, are suffi- cient to establish his authority. Hornick v. Union P. R. Co. 38: 826, 118 Pac. 60, 85 Kan. 568. 184. A bookkeeper or cashier employed in the office of a company is not pre- sumed, from that- fact alone, to have the implied authority to use or operate an automobile purchased and owned by the company for the use and purposes of a traveling salesman. White Oak Coal Co. v. Rivoux, 46: 1091, 102 N. E. 302, 88 Ohio St. 18. 185. The burden of showing authority on the part of a conductor of a freight train to employ an assistant is upon one asserting such authority, and the railroad company has not the burden of disproving it. Vassor v. Atlantic Coast Line R. Co. 7: 950, 54 S. E. 849. 142 N. C. 68. 186. Implied authority on the part of a station agent to direct the kicking of ice designed for the use of section men, from a rapidly moving train, so as to render the railroad company liable for injuries caused to an employee by that method of delivery can not be presumed. Illinois C. Digest 1-52 L.R.A.(N.S.) R. Co. v. Hart, 52: 1117, 176 Fed. 245, 100 C. C. A. 49. Ratification. 187. The burden of proving ratification rests on the one claiming under a voidable contract with an infant. International Text-Book Co. v. Connelly, 42: 1115, 99 N. E. 722, 206 N. Y. 188. 188. A ratification by a common carrier of an act of its employee in assaulting a passenger cannot be inferred from its fail- ure to discharge him after his report of the incident. Voves v. Great Northern R. Co. 48: 30, 143 N. W. 760, 26 N. D. 110. 5. Knowledge; notice; sanity; capac- ity; belief; intent. (See also same heading in Digest L.R.A. 1-10.) Knowledge; notice. Burden of proving grand jury's lack of knowledge as to facts omitted from in- dictment, see supra, 94. Sufficiency of evidence of, see infra, 2179, 2218, 2219. As to viciousness of animal, see ANIMALS, 18. As to contagious disease of animals, see PLEADING, 282. Of drawee's knowledge of drawer's signa- ture, see BANKS, 121, 122. Of purchaser of negotiable paper as to rights of parties, see BILLS AND NOTES, 184. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 621. Effect of presumption imputing to principal knowledge of agent on his standing in equity, see EQUITY, 142. Presumption of knowledge of defects in tax proceedings by purchaser, see PROXI- MATE CAUSE, 23. Of testator's knowledge of rules of law, see WILLS, 138. Of defect in highway, see TRIAL, 211. See also infra, 277, 278, 428, 453. 189. Notice to one whose name appears on a petition to lay out a public highway will be presumed from a report by the viewers that they met for the discharge of their duties, "pursuant to legal notice." Mc- Kinney v. Pennsylvania R. Co. 21: 1002, 70 Atl. 946, 222 Pa. 48. 190 A tenant in an apartment house is not, by reason of her occupancy of the prem- ises for a year prior to a fire therein, con- clusively presumed to have had knowledge that there were no fire escapes provided, as required by law, and to have waived the erection thereof. Cittadino v. Shackter (N. J. Err. & App.) 43: 80, 85 Atl. 174, 83 N. J. L. 593. 191. In a suit to enjoin interference with an easement which it is claimed arose by virtue of an executed parol contract entered into between the proprietors of mineral springs and the owner of a hotel situated on adjacent lands, whereby it was agreed that, in consideration of the erection of the hotel, the guests and servants should have forever EVIDENCE, II. e, 5. 1089 the frae use of the waters of the springs for drinking purposes, knowledge by defendant, who was a subsequent purchaser of the springs, to the effect that the guests and servants of the hotel had for years enjoyed the privilege in common with the public, will not raise a presumption that defendant had notice of any special right of plaintiff in the use of the waters. Jobling v. Tuttle, g: 960, 89 Pac. 699, 75 Kan. 351. 192. In the absence of evidence to the con- trary, a testator will be presumed to be ac- quainted with the contents of a will, where it was prepared at his direction, left with him several hours before it was executed, and signed in the presence of attesting wit- nesses, who were present at his request for that purpose. Re Shapter, 6: 575, 85 Pac. 688, 35 Colo. 578. 193. For the purpose of charging a tele- graph operator with libel for transmitting a message stating that a text-book commit- tee had sold out, it cannot be presumed that he knew they were in session from the fact that they had inserted in a newspaper which came into his possession a notice ad- vertising for bids for books. Grisham v. Western U. Telej 271, 238 Mo. 480. Co. 37: 861, 142 S. W. 194. A wife seeking to establish her com- munity rights against one who purchased from her husband's grantee, who was a purchaser for value of a clear record title, has the burden of showing that defendants Dad notice of her equity. Daly v. Rizzutto, 29: 467, 109 Pac. 276, 59 Wash. 62. 195. In an action to foreclose a mechan- ics' lien, where the defendant seeks to de- feat the plaintiff's right of recovery by showing that the material was furnished on two separate and distinct contracts, and that the lien therefor was not filed in time to secure the claim for the material furnished on the first contract, the bur- den of proof is on the defendant to show either that the plaintiff had actual no- tice that the material was furnished and used on two separate contracts, or else to show such circumstances as would impute to plaintiff constructive notice, and put him on his inquiry to ascertain if two or more contracts did in fact exist. Valley Lumber & Mfg. Co. v. Driessel, 15: 299, 93 Pac. 765, 13 Idaho, 662. 196. Under a statute providing that deeds not recorded shall be adjudged void as to all "subsequent purchasers without notice" whose deeds shall be first recorded, the burden of proof of lack of notice of an unrecorded deed of land under which title is claimed is upon the party who claims that he is a subsequent purchaser without notice, and the holder of a deed first re- corded. Dundee Realty Co. v. Leavitt, 30: 389, 127 N. W. 1057, 87 Neb. 711. 197. The burden of proof is upon the in- dorsee of a promissory note payable to order who claims to be a bona fide purchaser thereof and who has conceded that the note was fraudulently obtained from the maker, to establish that he purchased the note from the payee Digst 1-52 for value and had the same indorsed to him before maturity, in due course of business and without notice. Cochran v. Stein, 41:391, 136 N. W. 1037, 118 Minn. 323. 198. Under the negotiable instruments law, the holder of a note negotiated in vio- lation of the payee's agreement not to do so until the happening of a certain event has the burden of showing that he or someone through whom he claims acquired the prop- erty without notice of the defect. Mc- Knight v. Parsons, 22: 718, 113 N. W. 858, (Annotated) insured relies upon a 136 Iowa, 390. Of agent. 199. Where an waiver by an agent of a stipulation in an insurance policy against coinsurance, the burden of proof rests upon him to show that the agent was advised and had knowl- edge of such insurance. Western Nat. Ins. Co. v. Marsh, 42: 991, 125 Pac. 1094, 34 Okla. 414. Of servant. 200. The burden of showing knowledge on the part of an employee, of a sale and transfer of a business, is upon the master. Benson v. Lehigh Valley Coal Co. 50: 170, 144 N. W. 774, 124 Minn. 222. 201. The burden of showing lack of knowl- edge or information on the part of a mine employee killed by the flooding of the mine, of conditions in an adjoining mine which were likely to result in such flooding, does not rest upon one seeking to recover for his death, but the mine owner has the burden of showing such knowledge; and therefore the court cannot direct a verdict for defend- ant merely because the evidence tending to show absence of knowledge is not conclusive. Williams v. Sleepy Hollow Min. Co. 7: 1170, 86 Pac. 337, 37 Colo. 62. 202. One employed in making enamel, which requires the drawing of the molten enamel from the melting pot into water, is not presumed, as matter of law, to have the scientific knowledge that the use of too small a quantity of water will be likely to result in an explosion. Adams v. Grand Rapids Refrigerator Co. 27: 953, 125 N. W. 724, 160 Mich. 590. Of parent. 203. Merely showing that children af- fected with a contagious disease were abroad in violation of a quarantine order does not warrant conviction of their mother for permitting such violation, since there is no presumption that they acted with her knowledge or consent. State v. Racs- kowski, 45: 580, 86 Atl. 606, 86 Conn. 677. (Annotated) 204. There is no conclusive presumption that a mother knew that her son, in invest- ing her money for her without compensa- tion, was securing compensation for his services from the borrower. Franzen v. Hammond, 19: 399, 116 N. W. 169, 136 Wis. 239. Of shipper. 205. A shipper's knowledge that the car- 69 rier's rate was based upon the value of the shipment is to be presumed where this plainly appears from the terms of the bill 1090 EVIDENCE, II. e, 5. of lading and from the published rates on file with the Interstate Commerce Commis- sion. Adams Exp. Co. v. Croninger, 44: 257, 33 Sup. Ct. Rep. 148, 226 U. S. 491, 57 L. ed. 314. 206. A shipper who, for a number of years, has had possession of shipping re- ceipts which he filled out himself when he desired to make a shipment, will be charged with knowledge of a provision therein fix- ing the valuation of packages for purposes of shipment, in the absence of any evidence that he was not acquainted with the con- tents of the receipts. Greenwald v. Bar- rett, 35: 971, 92 N. E. 218, 199 N. Y. 170. Capacity; ability. Sufficiency of evidence of, see infra, 2220- 2222. Sufficiency of evidence to overcome presump- tion of capacity, see TRIAL, 243. 207. To maintain an action against an ad- ministrator on a promise by his intestate to pay a debt when able, plaintiff has the burden of showing ability. Van Buskirk v. Kuhns, 44: 710, 129 Pac. 587, 164 Cal. 472. 208. One claiming that a promise to pay a debt when able was barred by the statute of limitations has the burden of showing that the promisor became able to pay long enough before action brought to permit the running of the statute. Van Buskirk v. Kuhns, 44: 710, 129 Pac. 587, 164 Cal. 472. 209. An employer who secures an unregis- tered physician to dress the wound of an employee has the burden, in case the em- ployee dies during the operation, to show the competency of the physician. Nations v. Ludington W. & Van S. Lumber Co. 48:531, 63 So. 257, 133 La. 657. 210. Where an insurance policy contains the provision as to appraising losses there- under required by chapter 421, Minn. Laws of 1913 (Gen. St. 1913, 3318), and an ap- praisal is initiated pursuant thereto, if one party refuses to recognize the appraiser appointed by the other, upon the ground that he is incompetent, the burden is upon such party to show that such appraiser is in fact incompetent. American C. Ins. Co. v. District Court, 52: 496, 147 N. W. 242, 125 Minn. 374. Mental capacity of infant. 211. An infant employee fourteen years of age or over is presumed to possess sufficient mental capacity to comprehend and avoid the dangers of his employment. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. (Annotated) 212. An infant employee under fourteen years of age is not presumed to possess suf- ficient mental capacity to comprehend and avoid the dangers of his employment. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. 213. When an infant employee under fourteen years of age relies, in an action to recover damages for personal injuries sustained in the course of his employment, upon insufficient mental capacity to compre- hend the dangers thereof, the burden of proving his capacity is upon the defendant. Digest 1-52 L.R.A.(N.S.) Ewing v. Lanark Fuel Co. 29:487, 65 S. E. 200, 05 W. Va. 726. 214. An infant employee fourteen years of age or over, who, in an action to recover damages for personal injuries sustained in the course of his employment, relies upon insufficient mental capacity to comprehend and avoid the dangers thereof, has the burden of proof as to such issue. Ewing v. Lanark Fuel Co. 29:487, 65 S. E. 200, 65 W. Va. 726. (Annotated) 215. The burden of proving that a minor employee had greater than the usual capac- ity of minors of the same age rests upon the employer; and the burden of proving that the minor had less than such usual capacity rests upon the minor, or the one seeking to recover damages on account of his death. Bare v. Crane Creek Coal & C. Co. 8: 284, 55 S. E. 907, 61 W. Va. 28. 216. As a general rule, after a boy has reached the age of fourteen years, courts do not permit juries to presume him in- competent for the duties of a particular employment, because of minority alone; and, when over that age, the burden of proof is upon the one alleging incompetence. Wilkinson v. Kanawha & H. Coal & C. Co. 20: 331, 61 S. E. 875, 64 W. Va. 93. (Annotated) 217. There is no conclusive presumption of law that a twelve-year-old boy is able to foresee the danger of being crushed by a loaded push car which he and other chil- dren are pushing along a track, or that he has sufficient wisdom to avoid it; at least, not in the face of an averment to the con trary in the pleadings. Cahill v. E. B. & A. L. Stone & Co. 19: 1094, 96 Pac. 84, 153 Cal. 571. Testamentary capacity. Sufficiency of evidence of, see infra, 2223- 2225. 218. Upon objection to the probate of a will for lack of testamentary capacity and absence of due execution and attestation, proponents have the burden of establish- ing them, where the statute granting the right to make a will excepts persons of un- sound mind. Steinkuehler v. Wempner, 15: 673, 81 N. E. 482, 169 Ind. 154. 219. Upon a trial of an issue arising upon the propounding of a will and a ca- veat thereto, the burden in the first in- stance is upon the propounder of the al- leged will to make out a prima facie case by showing the factum of the will, and that, at the time of its execution, the tes- tator apparently had sufficient mental ca- pacity to make it, and, in making it, acted freely and voluntarily. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 220. Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden shifts to the caveator when the propounder of the al- leged will has made out a prima facie case by showing the factum of the will, and that, at the time of its execution, the tes- tator apparently had sufficient mental ca- pacity to make it, and that in making it he EVIDENCE, II. e, 5. 1091 acted freely and voluntarily. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. ?47. Sanity generally. Validity of statute as to, see CONSTITUTION- AL LAW, 624. Sanity of accused. Presumption of continuance of insanity, see infra, 319. Sufficiency of evidence, see infra, 2358-2361. See also APPEAL AND ERROR, 930. 221. One on trial for murder need not produce evidence to raise a doubt as to his sanity, to be acquitted on the ground of in- sanity, if the evidence as a whole raises such doubt. Duthey v. State, 10: 1032, 111 N. W. 222, 131 Wis. 178. 222. The state, in a prosecution for homi- cide, may rely on the presumption of sanity of the defendant, but when such defendant produces sufficient evidence to raise a reasonable doi'bt of his sanity, the burden of establishing it is imposed on the state, and if the jury have a reasonable doubt that defendant, at the time of the act charged, was mentally competent to distinguish be- tween right and wrong, or to understand the nature of the act he was committing, he must be acquitted. Adair v. State, 44: 119, 118 Pac. 416, 6 Okla. Crim. Rep. 284. (Annotated) 223. Under a statute providing that upon a trial for murder, the commission of a homicide by the defendant being proven, ttie burden of proving circumstances of mitigation or that justify or excuse it de- volves upon him, unless the proof on the part of the prosecution tends to show that the crime committed amounted only to manslaughter, or that the defendant was justifiable or excusable, where the defense sought to be established is insanity, the le- gal presumption of sanity must be over- come by evidence which is sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of a homi- cide, and when that is done, the presump- tion of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if, upon the con- sideration of all the evidence, together with all the legal presumptions applicable to the case, the jury has a reasonable doubt as to whether the defendant was mentally com- petent to distinguish between right and wrong or to understand the nature of the act he was committing, he should be ac- quitted. Alberty v. State, 52: 248, 140 Pac. 1025, 10 Okla. Crim. Rep. 616. Intent. Criminal intent, see infra, 255-257. Sufficiency of evidence, see infra, 2191, 2228-2235. Statute as to, see CONSTITUTIONAL LAW, 140-142. Written resignation as prima facie evidence of intention to relinquish office, see OFFICERS, 48. Of legislature as to construction of stat- ute, see STATUTES, 290. Digest 1-52 L.R.A.(N.S.) As to intention of testator, see WILLS, 6, 7, 205. See also infra, 599. 224. No presumption of intention to pre- clude the husband's estate by curtesy arises from the mere fact of a direct conveyance by him to his wife. Depue v. Miller, 23: 775, 64 S. E. 740, 65 W. Va. 120. 225. The intention to evade the local ex- emption laws is necessarily presumed where a creditor resorts to the courts of another state to collect a debt from a debtor re- siding in the same city with himself, by attachment of his wages, where the em- ployer also has an office and is doing busi- . ness in the same city, and the local courts are open and accessible. Wierse v. Thomas, 15: 1008, 59 S. E. 58, 145 N. C. 261. 226. Unless it appears that the parties to a contract bona fide and actually in- tended to stipulate for liquidated damages, they will be presumed to have intended a penalty only; especially where the language used is susceptible of either construction, or where actual damages might, without seritus difficulty, have been estimated in ad- vance, or where the sum named would be recoverable alike for a partial or for a total breach. Evans v. Moseley, 50: 889, 114 Pac. 374, 84 Kan. 322. 227. The presumption of intention to in- clude in a grant a right of access to a high- way, which arises when the land granted is cut off from a highway by remaining land of the grantor or that of strangers, is overcome where one boundary of the land granted is stated by the deed to be upon other land of the grantee, which has access to a highway. Doten v. Bartlett, 32: 1075, 78 Atl. 456, 107 Me. 351. (Annotated) 228. An insurer against accidental inju- ries who stipulates against liability for in- tentional injuries inflicted by any other per- son upon insured has the burden of pleading and proving that a pistol wound inflicted upon insured by a burglar was intentionally inflicted. Allen v. Travelers' Protective Asso. 48: 600, 143 N. W. 574, 163 Iowa, 217. 229. The rule that where a person exe- cutes an instrument leaving blank spaces therein to be filled, and delivers it in such imperfect condition to another for use, wilt be presumed to have intended, in the ab- sence of anything to the contrary, to con- fer on such other person authority to com- *- plete the instrument, applies to instru- ments required by law to be executed under seal, and to be witnessed and acknowledged in order to be entitled to record, as well as to simple contracts. Friend v. Ward, i: 891, 104 N. W. 997, 126 Wis. 291. 230. The unification of power and control over the oil industry which results from combining in the hands of a holding com- pany the capital stock of the various cor- porations trading in petroleum and its prod- ucts raises a presumption of an intent to exclude others from the trade, and thus centralize in the combination a perpetual control of the movement of these commodi- ties in the channels of interstate and for- eign commerce, in violation of the prohibi- 1092 EVIDENCE, II. e, 6. tions of the act of July 2, 1890, 1, 2, against combinations in restraint of inter- state or foreign trade or commerce, or mo- nopolization or attempt to monopolize any part of such trade or commerce. Standard Oil Co. v. United States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. 231. If a stockholder of a corporation, by agreement with it or any of its officers, sells his stock to the organization in exchange for corporate assets, knowing, actually or constructively, that the result will be to render the corporation insolvent, all parties to the transaction contemplating that it will continue in business and incur indebtedness as before, the creditors relying upon appear- ance of the previous solvent condition con- tinuing, the result to them must be pre- sumed to have been mutually intended, sup- plying the element of bad faith essential to condemn the transfer. Atlanta & W. But- ter & Cheese Asso. v. Smith, 32: 137, 123 N. W. 106, 141 Wis. 377. Of testator. To dispose of entire property, see WUJLS, 205. t 232. In construing a will, it will be pre- sumed that the testator intended to dispose of his entire estate, unless the contrary is apparent. Jones v. Hudson, 44: 1182, 141 N. W. 141, 93 Neb. 561. 233. The presumption that a testator who destroyed one copy of a will executed in duplicate did so with the intention of re- voking the will is an inference of fact, and not a conclusion of law. Managle v. Parker, 24: 1 80, 71 Atl. 637, 75 N! H. 139. 234. A payment of money by a testator to his niece towards whom he does not stand in loco parentis will not be presumed to be intended as a satisfaction of a provision for her in his will. Johnson v. McDowell, 38: 588, 134 N. W. 419, 154 Iowa, 38. (Annotated) 6. Malice; criminal intent; probable cause, (See also same heading in Digest L.R.A. 1-70.) Malice generally. Validity of statute as to, see CONSTITUTION- AL LAW, 620. Presumption of malice as question for jury, see TRIAL, 272. Instruction as to, see TRIAL, 1084. See also MALICIOUS PROSECUTION, II. 235. Malice cannot be inferred merely from the doing of an act without that ordi- nary prudence and discretion which persons of mature minds and sound judgment are presumed to have. Jenkins v. Gilligan, 9: 1087, 108 N. W. 237, 131 Iowa, 176. (Annotated) 236. Malice may be inferred from want of probable cause, in an action to recover damages for malicious prosecution. Chica- go, R. I. & P. R. Co. v. Holliday, 39:205, 120 Pac. 927, 30 Okla. 680. 237. Commencing a criminal prosecution for the purpose of compelling payment of a Digest 1-52 L.R.A.(N.S.) just debt is prima facie evidence of want of probable cause and malice, and shifts the burden of showing that it was not so on defendant, in an action for malicious prose- cution. Macdonald v. Schroeder, 6: 701, 63 Atl. 1024, 214 Pa. 411. 238. Wilfulness or malice in inflicting injury on a trespasser cannot be inferred from the fact that injury might reasonably have been anticipated from conditions which the one sought to be held liable al- lowed to exist. Hoberg v. Collins, L. & Co. (N. J. Err. & App.) 31: 1064, 78 Atl. 106, 80 N. J. L. 425. 239. The presumption is that a father who is charged by his son's wife with aliena- tion of her husband's affections, acted with- out malice, and with good faith, and the burden is on the wife to show malice and absence of such motive. Gross v. Gross, 39: 261, 73 S. E. 961, 70 W. Va. 317. 240. To entitle a man to hold his wife's father liable for advice given to her which causes her to desert her husband, plaintiff has the burden of showing that the advice- was actuated by malice, and of overcoming the presumption that he acted under the influence of natural affection, and for what he believed to be for the real good of the child. Multer v. Knibbs, 9: 322, 79 N. E. 762, 193 Mass. 556. (Annotated) From publication of libel or slan- der. Malice as essential element of libel or slan- der, see LIBEL AND SLANDER, 74, 85, 8(1, 94, 95, 98, 102, 108-111, 159. 241. In an action for libel, malice need not be expressly proved where there is evi- dence of acts from which it may be implied. Jozsa v. Moroney, 27: 1041, 51 So. 908, 125 La. 813. 242. One claiming to have been libeled by the report of a public officer has the burden of showing the falsity of the report and the malice of its author. Peterson v. Steenerson, 31:674, 129 N. W. 147, 113 Minn. 87. 243. Malice on the part of a publisher of statements selected from other journals, that are injurious to the reputation or char- acter of the parties spoken of, is conclusive- ly inferred if the communications are false. Levert v. Daily States Pub. Co. 23: 726, 49 So. 206, 123 La. 594. 244. The publication of a petition charg- ing one with being an habitual drunkard, in a proceeding for the appointment of the guardian for him, jf made without any probable cause for believing it to be true, will warrant a conclusion that it was actu- ated by malice. Thompson v. Rake, 18: 921, 118 N. W. 279, 140 Iowa, 232. 245. Malicious intent, giving a right to punitive damages, is presumed from the publication of a letter which is libelous per se. Pennylvania Iron Works Co. v. Henry Voght Mach. Co. 8: 1023, 96 S. W. 551, 139 Ky. 497. 246. The jury may infer malice from an erroneous claim made by an employer upon a surety on his agent's bond, together with the facts and circumstances which EVIDENCE, II. e, 7. 1093 surround and characterize it, so as to pre- vent the privileged character of the com- munication from availing as a defense to an action for libel. Sunley v. Metropolitan L. Ins. Co. 12: 91, 109 N. W. 463, 132 Iowa, 123. (Annotated) 247. Failure of one sued for libel in charg- ing a candidate for office with* unfitness therefor because of facts stated, to estab- lish a plea of truth as a defense, cannot be taken into consideration by the jury in esti- mating damages, as tending to show malice. Schull v. Hopkins, 29: 691, 127 N. W. 550, 26 S. D. 21. 248. Malice on the part of one making a privileged communication to another will not be inferred merely because he declined to name his informant. Trimble v. Mor- rish, 16: 1017, 116 N. W. 451, 152 Mich. 624. 249. In the absence of anything on the face of a privileged communication alleged to be slanderous, to indicate it, malice can- not be inferred from the words of the com- munication. Trimble v. Morrish, 16: 1017, 116 N. W. 451, 152 Mich. 624. 250. In an action for slander, where the words complained of are conceded to con- stitute a privileged communication, the burden is upon the plaintiff to show that they were uttered from an improper motive, and not for a reason that would otherwise render them privileged. Abraham v. Bald- win, 10: 1051, 42 So. 591, 52 Fla. 151. 251. Although the burden of showing the privileged character of a communication alleged to be libelous is on the defendant if, in the judgment of the court, he ha-, sus- tained such burden, then plaintiff, in order to be entitled to recover, must show actual or express malice. Holmes v. Roy- al Fraternal Union, 26: 1080, 121 S. W. 100, 222 Mo. 556. 252. The publication by a newspaper of a report made by the police in the regular course of police administration, that per- sons had been poisoned by sugar purchased at plaintiff's store, is not sufficient of it- self to support an allegation of malice on the part of the newspaper publisher in a libel action founded on such publication. Morasca v. Item Co. 30: 315, 52 So. 565, 126 La. 426. 253. The presentation by an employer to the surety on his agent's bond of a claim in excess of that reported due by the officer in charge of the accounting, followed by an acknowledgment that it had not made prop- er credits and had in its hands sufficient unpaid salary to satisfy its demands, will justify an inference of malice by the jury so as to render the employer guilty of libel. Sunley v. Metropolitan L. Ins. Co. ia: 91, 109 N. W. 463, 132 Iowa, 123. 254. In civil actions for libel, where a communication concerning the credit and standing of a business corporation and its officers, which is sent by a bank president to whose bank the letter of inquiry is ad- dressed, is conditionally privileged, the bur den of proof is upon the plaintiff to show malice or a wrongful purpose in publishing Digest 1-52 L.R.A.(N.S.) it. Richardson v. Gunby, 42: 520, 127 Pac. 533, 88 Kan. 47. Criminal intent. Presumption and burden of proof as to in- tent generally, see supra, 224-234. Malicious intent, see supra, 241-254. Sufficiency of exception to instructibn as to, see APPEAL AND EKEOB, 333. 255. An intent to sell the liquor un- lawfully is presumed when 120 quart bot- tles of whisky are consigned to one address in prohibition territory. State v. Intoxi- cating Liquors, 29: 745, 76 Atl. 265, 106 Me. 138. 256. Where an agent comes into posses- sion of funds belonging to his principal, and converts them to his own use, without the knowledge or consent of the principal, the law implies a fraudulent intent. State v. Duerksen, 52: 1013, 129 Pac. 881, 8 Okla. Crim. Rep. 601. 257. No presumption of the intent neces- sary to render a homicide murder in the first degree arises from the use of a deadly weapon directly against a vital part of the body, although the jury may consider such facts together with all the other facts in the case, in determining whether or not such intent existed. Com. v. Chapler, 34: 74, 77 Atl. 1013, 228 Pa. 630. (Annotated) Probable cause. See also supra, 236, 237; MALICIOUS PBOSE- CUTION, II. 258. When the occasion upon which mat- ter alleged to be libelous was written, is shown to have been privileged, the burden is on one seeking damages therefor, to show absence of good faith and probable cause. Denver Public Warehouse Co. v. Holloway, 3: 696, 83 Pac. 131, 34 Colo. 432. (Annotated) 259. Committal of a defendant by a magistrate is prima facie, but not con- clusive, evidence of probable cause, in an action to recover damages for malicious prosecution. Luke v. Hill, 38: 559, 73 S. E. 345, 137 Ga. 159. 260. The mere dismissal of a prosecution because the prosecuting officer fails to ap- pear is not prima facie evidence of want of probable cause, which will sustain an ac- tion for malicious prosecution against the one who instituted the proceeding. Smith v. Clark, 26: 953, 106 Pac. 653, 37 Utah, 116. 7. Fraud or good faith; reliance on representations ; undue influence ; duress. (See also same heading m Digest LJl.A. 1-70.) Fraud in general. Burden of proving fraud in procuring of marriage, see supra, 143. Fraudulent intent, see supra, 256. Presumption of fraud arising from silence or failure to testify, see infra, 311, 312. 1094 EVIDENCE, II. e, 7. Constitutionality of provision as to what shall be presumptive evidence of fraud, see CONSTITUTIONAL LAW, 140, 141. See also infra, 536. 261. A statutory presumption of fraud which is not intended to be conclusive may be overthrown by evidence of good faith. Williams v. Fourth Nat. Bank, 2: 334, 82 Pac. 496, 15 Okla. 477. 262. In an action to set aside a convey- ance of property on the ground of fraud the burden of proof does not shift to the defendant upon a prima facie showing be- ing made, on the part of the plaintiff. Boardman v. Lorentzen, 52: 476, 145 N. W. 750, 155 Wis. 566. 263. The mere opinion of a buyer of land that the seller, in erroneously pointing out land as part of that sold, was honestly mis- taken, does not relieve the seller from the duty of overcoming the prima facie case of deceit made against him by evidence that the statement was false. Vincent v. Cor- bitt, 21 : 85, 47 So. 641, 94 Miss. 46. In contract. Presumptive invalidity of contract as de- fense in action to enforce it, see CON- TSACTS, 777. 264. One relying on fraud to defeat a quitclaim deed must allege and prove it. Strong v. Whybark, 12: 240, 102 S. W. 968, 204 Mo. 341. ' 265. A presumption that a buyer did not intend to pay for goods arises from the fact that his affairs were in such a condition that he could have had no reasonable ex- pectation of paying therefor. Gillespie v. J. C. Piles & Co. 44: i, 178 Fed. 886, 102 C. C. A. 120. Reliance on representations made. 266. There is no presumption of law that one who, when about to purchase a mine, makes an investigation himself, and con- sults others as to the condition of the mine or its value, does not rely upon representa- tions made by the seller. Tooker v. Alston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. 267. When a creditor proves the issuance of stock to a stockholder, and that he sub- sequently trusted the corporation, it is pre- sumed, until rebutted by evidence, that he relied upon the subscription and the repre- sentation that the stock was fully paid. Randall Printing Co. v. Sanitas Mineral Water Co. 43: 706, 139 N. W. 606, 120 Minn. 268. Fiduciary relation. See also supra, 115, 116. 268. Attorneys who purchase from their clients, and resell the subject-matter of their employment, have the burden of prov- ing, when sued by their clients for the resulting profits, that the original pur- chase price was fair. Hamilton v. Allen, 28: 723, 125 N. W. 610, 86 Neb. 401. (Annotated) 269. A conveyance by one to his general agent having control and management of all his affairs, and who is his confidential adviser and friend, is presumed in law to be fraudulent; and the grantee has the burden Digest 1-52 L.R.A.(N.S.) of overcoming the presumption. Smith v. Moore, 7: 684, 55 S. E. 275, 142 N. C. 277. Fraudulent conveyances or assign- ments. Intent to defraud creditors as taking place of bad faith, see supra, 231. From retention of chattel by vendor, see FRAUDULENT CONVEYANCES, 44. 270. A judgment creditor of a legatee, who attempts to set aside an assignment of the legacy as in fraud of his rights, has the burden of showing the fraud. Beaver v. Ross, 20: 65, 118 N. W. 287, 140 Iowa, 154. 271. That the consideration for a transfer of corporate stock between persons not re- lated was paid to the grantor's near rela- tive, upon assignment thereof, does not change the rule imposing on the party as- sailing the transaction the burden of prov- ing it fraudulent. Everitt v. Farmers' & M. Bank, 20: 996, 117 N. W. 401, 82 Neb. 191. 272. The statutory presumption of fraud which arises from the retention of a chattel by the vendor may be overthrown by proof by the vendee that the sale was in good faith and without intent to injure, delay, or defraud creditors or subsequent purchas- ers. Wilson v. Walrath, 24: 1127, 115 N. W. 203, 103 Minn. 412. 273. In a creditor's suit to set aside a con- veyance by a debtor to a near relative, al- leged to have been made in consideration of a past-due indebtedness, the burden is upon the grantee to show that the debt is genuine, that his purpose was honest, and that he acted in good faith in obtaining the title. Flint v. Chaloupka, 13: 309, 111 N. W. 465, 78 Neb 594. Good faith. In action for libel, see supra, 258. Sufficiency of evidence of bona fide char- acter of holder of note, see infra, 2324, 2325. See also supra, 197, 198, 261. 274. The purchaser of a note secured from the maker by fraud has the burden of showing his good faith in the transaction. Arnd v. Aylesworth, 29:638, 123 N. W. 1000, 145 Iowa, 185. 275. One seeking to hold a justice of the peace personally liable for issuing a war- rant for his arrest without jurisdiction has the burden of showing absence of good faith on his part. Broom v. Douglass, 44: 164, 57 So. 860, 175 Ala. 268. 276. The burden resting upon a purchaser of real property to establish by competent evidence the good faith of his purchase does not shift to the holder of a prior un- recorded deed, upon the introduction of evi- dence making a prima facie case of bona fides. Errett v. Wheeler, 26: 816, 123 N. W. 414, 109 Minn. 157. 277. Upon proof by a purchaser of land, a former deed to which is unrecorded, of payment of a valuable consideration there- for, the presumption arises that he acted in good faith and without notice of the rights of claimants under the unrecorded deed. Conklin v. Kruse, 36: 1124, 108 Pac. 856, 82 Kan. 358. (Annotated) 278. One who purchases personal proper- EVIDENCE, II. e, 7. 1095 ty from another who secured it by fraud has the burden of proving his good-faith purchase, without knowledge of fraud, or acts imputing notice sufficient to put him on inquiry as to the fraud of his vendor when such fraud has been once established, otherwise he takes no title superior to that possessed by his vendor, which is one void- able at the option of the original seller. Ditton v. Purcell, 36: 149, 132 N. W. 347, 21 N. D. 648. 279. The transfer of a note in violation of an agreement that it will be returned if the property for which it was given did not give satisfaction is a fraud, which casts upon the transferee the burden of showing that he took the note in good faith, which includes proof that he paid full value for it. Pierson v. Huntington, 29: 695, 74 Atl. 88, 82 Vt. 482. 280. Evidence of fraud in procuring the execution of a negotiable instrument shifts the burden of proof as to the good faith of a purchaser thereof before maturity, and is admissible for that purpose, but of itself in no way tends to establish bad faith on the part of such purchaser. Vaughn v. Johnson, 37: 816, 119 Pac. 879, 20 Idaho, 669. 281. Mere evidence of fraud or deception in procuring a negotiable promissory note which is fair and regular on its face is not sufficient to raise a presumption of bad faith against the purchaser of such paper in due course, nor should such fact be given any consideration by a jury in determining whether or not the holder of the instru- ment had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amount- ed to bad faith. Vaughn v. Johnson, 37: 816, 119 Pac. 879, 20 Idaho, 669. Undue influence. 282. In a controversy as to whether prop- erty was obtained by undue influence there is an evidentiary presumption in favor of the person charged, the same as in all cases sounding in fraud, that he did not perpetrate the wrong. Boardman v. Lor- entzen, 52: 476, 145 N. W. 750, 155 Wis. 566. 283. The presumption of undue influence in case of gifts from a man to his mistress is one of fact. Platt v. Elias, n: 554, 79 N. E. 1. 186 N. Y. 374. (Annotated) 284. In the case of a gift or voluntary conveyance inter vivos, where the donor is a widow enfeebled in mind by disease or old age, and the person benefited is her son, with whom she makes her home, equity raises the presumption that the gift or vol- untary conveyance was brought about by undue influence, and the burden is upon the party benefited to show affirmatively that the transaction was fairly conducted as if between strangers. Smith v. Smith, 35: 944, 114 Pac. 245, 84 Kan. 242. (Annotated) 285. A physician who enters .into a con- tract with his patient is not bound, in order to sustain the validity of the contract, to show that the patient had independent and Digest 1-52 L.R.A.(N.S.) competent advice before executing the con- tract. Re McVicker, 28: 1112, 91 N. E. 1041, 245 111. 180. In procuring will. 286. Power, notice, and opportunity to exercise undue influence do not alone au- thorize the inference that such influence has in fact been exercised. Ginter v. Gin- ter, 22: 1024, 101 Pac. 634, 79 Kan. 721. 287. The mere existence of confidential relations between a testator and a beneficia- ry under his will does not raise a presump- tion that the beneficiary has exercised un- due influence over the testator, and does not cast upon the beneficiary the burden of dis- proving undue influence, but those conse- quences follow only when the beneficiary has been actively concerned in some way with the preparation or execution of the will. Ginter v. Ginter, 22 1024, 101 Pac. 634, 79 Kan. 721. 288. Undue influence in the making of a will cannot be inferred from the mere fact that it was in favor of one with whom testa- tor had maintained illicit relations, and was contrary to his expressed intention of leav- ing his property to a dependent sister, who had cared for him in his youth. Saxton v. Krumm, 17: 477, 68 Atl. 1056, 107 Md. 393. (Annotated) 289. The giving of unequal portions to the natural objects of the testator's bounty raises no presumption of undue influence, although, where there is proof of undue influence, that fact may be considered in determining whether or not the will is that of the testator. Ginter v. Ginter, 22: 1024, 101 Pac. 634, 79 Kan. 721. (Annotated) 290. The burden of proof for overcoming the presumption that a contested will which appears to have been duly executed and at- tested is valid is upon whoever alleges it to be the product of undue influence or fraud. Ginter v. Ginter, 22: 1024, 101 Pac. 634, 79 Kan. 721. 291. That a will is drafted by a daughter of the testator, and that she is named there- in as the executrix, does not raise a pre- sumption of undue influence, where she is otherwise merely equally favored with the other children. Kirby v. Sellards, 28: 270, 108 Pac. 73, 82 Kan. 291. (Annotated) Duress. 292. Where it is shown that an elderly man was called to the office of a lawyer, a stranger to him, suddenly presented with a deed of trust, and by his son and the lawyer given the alternative of signing the instrument or having guardianship proceed- ings against him begun; and that, without time to reflect or consult with friends, he signed the deed of trust, at the time stating that he was signing his life away, the presumption arises that the instrument was obtained through duress and undue influence, and the burden is then upon the party procuring the execution of the instru- ment to show that the execution was not so procedure. Hogan v. Leeper, 47: 475, 133 Pac. 190, 37 Okla. 655. 1096 EVIDENCE, II. e, 8, 9. 8. Truth; innocence; guilt. (See also same heading in Digest LJt.A. 1-10.) Truth. As to truth of warranties or representations by insured, see infra, 555. Burden of showing truth of alleged libelous article, see infra, 674-677. Error in instruction as to presumption of truthfulness of witness, see APPEAL AND ERROR, 1374. Presumption of truthfulness of recitals of record as to jurisdiction to render judgment, see JUDGMENT, 68. 293. The law does not presume that a witness tells the truth, nor does it pre- sume the contrary. State v. Halvorson, 14: 947, 114 N. W. 957, 103 Minn. 265. 294. One seeking to avoid a marriage in- to which he entered because of an arrest for seduction of the bride has the burden of proving the falsity of the charge. Thome v. Farrar, 27: 385, 107 Pac. 347, 57 Wash. 441. 295. In an action against a deputy sheriff for trespass in executing- a search warrant directed to him. regular upon its face and issued by a justice of the peace upon a sworn complaint, the burden of proof is not upon such officer to prove that the facts set out in the complaint upor. which the war- rant was issued are true, even though he swore to the complaint. Kniseley v. Ham, 49: 770, 136 Pac. 427, 39 Okla. 623. 296. Testimony of a partner in a firm en- gaged in selling a secret remedy that he knew the formula, is not so' unreasonable as to require its disbelief, merely because he was the advertising man, while a physi- cian was the controlling factor in the firm, and if every member knew the formula there would be nothing to prevent each from competing for the business upon dissolution of the partnership. Memphis Keeley Insti- tute v. Leslie E. Keeley Co. 16: 921, 155 Fed. 964, 84 C. C. A, 112. Innocence. Sufficiency of evidence, see infra, 2198. Presumption of innocence upon appeal from conviction, see APPEAL AND ERROR. 479. Instructions as to, see APPEAL AND ERROR. 1390; TRIAL, 1072. See also supra, 122. 297. In case of the remarriage of a woman whose husband had not been heard from for three years, the presumption of inno- cence will overcome the presumption of his continued life. Smith v. Fuller, 16: 98, 115 N. W. 912, 138 Iowa, 91. (Annotated) 298. The mere want of proof that an au- tomobile injured by reason of a defective highway was registered and licensed, al- though the violation of the statute in this respect would leave the owner without a remedy for an injury caused by a defect in the highway, will not prevent recovery of dam- ages for such injury, as the presumption of law and fact is always in favor of inno- Digest 1-52 L.R.A.'fN.S.) cence. Doherty v. Aver, 14: 816, S3 X. E. 677, 197 Mass. 241. In criminal case. 299. The presumption of innocence is not evidence against a charge of homicide, and remains with accused only until it is over- come by the evidence in the case. Cul- pepper v. State, 31: 1166, 111 Pac. 679, 4 Okla. Crim. Rep. 103. 300. One accused of homicide who ad- mits the killing and pleads self-defense in justification is not entitled to the, pre- sumption of innocence, where the statute provides that one accused of crime is pre- sumed to be innocent until the contrary is proved, and that when a homicide is proved the burden of proving mitigating circumstances is upon the accused. Cul- pepper v. State, 31: 1166, 111 Pac. 679, 4 Okla. Crim. Rep. 103. (Annotated) 301. The presumption of innocence of one on trial for a crime is one of fact and of law, and no person can be convicted, even under a joint information, without proof of his individual guilt. High v. State, 28: 162, 101 Pac. 115, 2 Okla. Crim. Rep. 161. Gnilt. Presumption of guilt on appeal from convic- tion, see APPEAL AND ERROR, 479. Presumption arising from indictment by grand jury, see BAIL AND RECOGNI- ZANCE, 14, 16. Correctness of instruction as to, see TRIAL, 1095. See also infra, 2386. 302. No presumption of guilt arises from flight after the commission of a crime. Territory v. Lucero, 39: 58, 120 Pac. 304, 1ft N. M. 652. (Annotated) 303. When a sale of intoxicating liquors is proven to have been made by a licensed druggist, it is presumed to have been un- lawfully made, and the burden is then cast upon him to rebut such presumption. State v. Davis, 32: 501, 69 S. E. 639, 68 W. Va. 142. 304. An instruction that the possession of stolen property recently after it has been stolen is prima facie evidence of guilt, and throws upon the possessor the burden of explaining his possession of the property, which, if unexplained, is sufficient to war- rant a conviction, states the law of the state of Kansas. State v. White, 14: 556, 92 Pac. 829, 76 Kan. 654. 9. From silence; withholding or de~ straying evidence. (See also same heading in Digest LJt.A. 1-70.) Prejudicial error in instructions as to fail- ure of plaintiff to appear as witness, see APPEAL AND ERROR. 1375. Instructions as to, see TRIAL, 972. 305. The withholding of competent and pertinent evidence within the control of a party raises the presumption that it is- against his interest and insistence. Stand- EVIDENCE, II. f, g. 1097 .ard Oil Co. v. State, 10: 1015, 100 S. W. 705, 117 Term. 618. 300. In an equity proceeding questioning the integrity of a transfer of the control and assets of a corporation, the alleged trans- feree cannot hold back proof, oral or record, that is exclusively within its control, with- out leaving the inference that such proof would be unfavorable to it. Williams v. Commercial Nat. Bank, n: 857, 90 Pac. 1012, 44 Or. 492. 307. The suppression by one accused of causing a surety to withdraw from a bond, of a letter alleged to have contained the false statement causing such action, and failure to produce it in response to a sub- poena duces tecum, are sufficient to support a verdict against him. McClure v. McClin- tock, 42: 388, 150 S. W. 332, 849, 150 Ky. 265, 773. 308. As a general rule the omission by a party to produce important testimony re- lating to a fact of which he has knowledge, and which is peculiarly within his own reach and control, raises the presumption, open to explanation of course, that the testimony, if produced, would be unfavorable to Lim. Fowler Packing Co. v. Enzenperger, 15: 784, 94 Pac. 995, 77 Kan. 406. 309. When the evidence tends to connect one charged in a civil action as a wrongdoer with the wrongful acts charged, every legit- imate inference warranted by the evidence may be taken against him, in the absence of any evidence explaining or denying the wrongful acts. Bowe v. Palmer, 24: 226, 102 Pac. 1007, 36 Utah, 214. 310. A foreign corporation which relies on the inability of one suing on a contract alleged to have been made by its agent to prove the agency, and fails to give evidence in explanation of evidence tending to con- nect it with the ownership of the business, subjects itself to all fair inferences which the circumstances disclosed will warrant. Mullen v. J. J. Quinlan & Co. 24: 511, 87 N. E. 1078, 195 N. Y. 109. 311. Failure of one who had medicines an- alyzed for the purpose of establishing their fraudulent character, so as to avoid a con- tract with respect to them, to testify that spurious packages had not been substituted for the genuine ones selected for the analy- *is, is not an admission that such substitu- tion had occurred. Memphis Keeley Insti- tute v. Leslie E. Keeley Co. 16: 921, 155 Fed. 964, 84 C. C. A. 112. 312. The silence of the president of a con- ern compounding a secret medicine adver- tised to contain a certain ingredient, who knows its ingredients, when asked as a witness in a case involving the validity of a contract sought to be avoided because of fraud in making such claim, as to whether or not it does contain such ingredient, will be construed as an admission that it does not. Memphis Keeley Institute v. Leslie E. Keeley Co. 16: 921, 155 Fed. 964, 84 C. C. A. 112. Digest 1-52 L.R.A.(N.S.) /. Corporations; partnership. (See also same heading in Digest L.R.A. . 1-10.) 313. There is no presumption of law that a corporation organized for a definite period will prolong its artificial existence by avail- ing itself of statutory provisions for re- newal of its franchise. Newhall v. Jour- nal Printing Co. 20: 899, 117 N. W. 228, 105 Minn. 44. 314. Parties who associate themselves to- gether and incur liabilities in the conduct of a business under the name of a supposed corporation have the burden of proving that they are duly incorporated, as, in such case, the presumption is that they are merely partners, and liable only as such. Harrill v. Davis, 22: 1153, 168 Fed. 187, 94 C. C. A. 47. Powers and acts. 315. The indorsement of a note payable to a corporation, by one signing as its offi- cer, is presumed to be a corporate act. Page v. Ford, 45: 247, 131 Pac. 1013, 65 Or. 450. g. Continuance; cause. (See also same heading in Digest L.R.A. 1-10.) Continuance. As to continuance of life, see supra, 145, 146, 297, 2402. Sufficiency of allegations to raise presump- tion of present ownership, see PLEAD- ING, 222. 316. The presumption is in favor of the continuance of the terms of the holding when a lease is recognized by a grantee of the reversion. Searle v. Roman Catholic Bishop, 25: 992, 89 N. E. 809, 203 Mass. 493. 317. Possession being a fact continuous in its nature, when its existence is once shown, it will be presumed to continue un- til the contrary is proved. Wails v. Far- rington, 35: 1174, 116 Pac. 428, 27 Okla. 754. 318. When the existence of a residence at a certain place at a certain time has been established, it will be presumed to have con- tinued, until the contrary is shown. State ex rel. Phelps v. Jackson, 8: 1245, 65 Atl. 657, 79 Vt. 504. 319. The insanity of one acquitted of mur- der on the ground of insanity is presumed to continue until the contrary is shown. State ex rel. Thompson v. Snell, 9: 1191, 89 Pac. 931, 46 Wash. 327. 320. Where there is no actual change in the management of a business, and it is con- tinued in the same general way after a sale, by the same servants and employees, and the servants are in no way, expressly or otherwise, informed of the transfer and the consequent change of proprietors, the rela- tion of master and servant existing between the employees and the former owner is pre- 1098 EVIDENCE, II. h, 1. sumed to continue for a reasonable time, and the master remains liable to the em- ployees to the same extent as though no sale or transfer had taken place. Benson v. Lehigh Valley Coal Co. 50: 170, 144 'N. W. 774, 124 Minn. 222. Cause. Burden of proving exceptions, see supra, 113, 114. Probable cause, see supra, 236, 237. That liquor sold to intoxicated person in- flicting injury was proximate cause of injury, see INTOXICATING LIQUORS, 192. See also infra, 381, 426, 428. 321. The jury may infer that the failure of an employee to secure employment from members of an employers' association was because one of their number who discharged him circulated among the members of the association a letter requesting them not to employ him, in accordance with a rule of the association. Willner v. Silverman, 24: 895, 71 Atl. 962, 109 Md. 341. 322. The mere fact that in cleaning snow from the sidewalk it was piled on the inner edge of the walk does not warrant the infer, ence that it is the cause of ice found thereon, where the snow in the street is higher than the walk, sloping therefrom ov the gutter onto the walk, and the ice is thicker at the outer than at the inner edge of ''he walk. Dahlin v. Walsh, 6: 615, 77 N. E. 830, 192 Mass. 163. 323. In the absence of proof to the con- trary, it will be presumed that the cause of an explosion in a portion of a building originated where the explosion occurred, and one contending that it originated else- where has the burden of establishing that fact. Kearner v. Charles S. Tanner Co. 29= 537, 76 Atl. 833, 31 R. I. 203. Of death or injury. Presumption and burden of proof as to sui- cide, see supra, 157-165. Cause of illness of passenger, see infra, 368. Of injuries to insured, see infra, 552. Of loss of insured property, see infra, 553, 554. 324. One seeking to hold a railroad com- pany liable for injuries caused by a horse alleged to have been frightened by the im- proper use by defendant of a locomotive whistle has he burden of showing that the improper use of the whistle was the prox- imate cause of the injury. Lyons v. Chi- cago, M. & St. P. R Co. 35: 1219, 132 N. W. 679, 28 S. D. 31. 325. It is not essential to a recovery by an intoxicated passenger for injuries sus- tained by him in being thrown from a street car, that he show how much of the dam- age is due to the negligence of the street car company, and how much is due to his intoxicated condition, so that the jury can determine these amounts. O'Keefe v. Kan- sas City Western R. Co. 48: 135, 124 Pac. 416, 87 Kan. 322. 326. In an action to recover damages for personal injuries alleged to have been caused by defendant's negligence in selling plaintiff kerosene oil which contained a mixture of gasolene, without informing him of the fact, Digest 1-52 L.R.A.(N.S.) the plaintiff has the burden of showing that the explosion of the oil by which he was in- jured was due to the presence of the gaso- lene therein. Morrison v. Lee, 13: 650, 113 N. W. 1025, 16 N. D. 377. 327. The jury may infer that turkeys feeding on a railroad track would have flown beyond danger, had a warning whistle been given upon approach of a train, and that failure to give such signal was there- fore the proximate cause of their being killed by the train. Lewis v. Norfolk, S. R. Co. 47: 1125, 79 S. E. 283, 163 N. C. 33. 328. Proof that a machine worked perfect- ly both before and after an alleged erratic movement which is alleged to have caused a personal injury casts the burden on plain- tiff of showing that such movement was caused by a defect in the appliance. Chy- bowski v. Bucyrus Co. 7: 357, 106 N. W. 833, 127 Wis. 332. 329. The absence of direct evidence as to the cause of the death of an employee whose body was found near a building in which dynamite had been stored will not prevent a finding by the jury that it was caused by an explosion of dynamite by a lightning stroke, if known facts point to that inference. Brown v. West Riverside Coal Co. 28: 1260, 120 N. W. 732, 143 Iowa, 662. h. As to sTcilly negligence; care. 1. Of person cautsing injury. a, In General. (See also same Jteading in Digest L.R.A. 1-10.) Burden of proving allegations as to, see supra, 90-92. As to cause of death or injury, see supra. 324-329. Admissibility of evidence, see infra, XI. h Sufficiency of evidence, see infra, XII. d. 330. The mere happening of an accident, without some proof of facts from which the violation of a duty due to the plain- tiff by the defendant may be legitimately inferred, as a rule, will not constitute neg- ligence. Kingsley v. Delaware, L. & W. R. Co. (N. J. Err. & App.) 35: 338, 80 Atl. 327, 81 N. J. L. 536. 331. Mere proof of facts which call into action the rule res ipsa loquitur in an ac- tion for negligent injuries does not make a prima facie case, or raise a presumption of negligence, but merely furnishes an ele- ment to be considered by the jury as part of the plaintiff's case. Ross v. Double Shoals Cotton Mills, 1:298, 52 S. E. 121, 140 N. C. 115. 332. The principal of res ipsa loquitur only applies when the direct cause of the accident and so much of the surrounding circumstances as were essential to its occur- rence were within the sole control and management of the defendants or their servants, so that it is not unfair to at- EVIDENCE, II. h, 1. 1099 tribute to them a prima facie responsibility for what happened. Per Fletcher Moulton, L. J., in Wing v. London General Omnibus Co. 3 B. R. 0. 79, [1909] 2 K. B. 652. Also Reported in 78 L. J. K. B. N. S. 1063, 101 L. T. N. S. 411, 73 J. P. 429, 25 Times L. R. 729, 53 Sol. Jo. 713, 7 L. G. R. 1093. 333. When circumstances are relied on to show negligence, they must be of such sig- nificance and relation one to another that a reasonable conclusion of negligence can be founded thereon; and, while reasonable in- ferences may be drawn from the facts or conditions shown, they cannot be drawn from facts or conditions merely imagined or assumed. Duncan v. Atchison, T. & S. F. R. Co. 51: 565, 119 Pac. 356, 86 Kan. 112. b. Carriers. (1) Of passengers. (See also same heading in Digest L.R.A. 1-10.) As to elevators, see infra, 466, 467. Sufficiency of evidence, see infra, 2145-2149. Question as to whether presumption has been overcome, see TRIAL, 364. Sufficiency of evidence to overcome presump- tion as question for jury, see TBIAL, 366, 368. Instruction as to burden of proof in case of injury to passenger, see TRIAL,, 1051. See also CARRIERS, 121, 533; PLEADING, 290. 334. The mere injury to a passenger on a train is not of itself prima facie evidence of negligence or liability on the part of the carrier. Brice v. Southern R. Co. 27: 768, 67 S. E. 243, 85 S. C. 216. 335. A railroad company whose train kills a passenger has the burden of nega- tiving the inference of negligence on its part. Dieckmann v. Chicago & N. W. R. Co. 31: 338, 121 N. W. 676, 145 Iowa, 250. 336. A presumption of negligence on the part of a carrier does not follow the simple and unexplained fact of an accident result- ing in the injury of a pasSenger, but the question is one to he determined by the sur- rounding circumstances; and when they are of such a character as to withdraw any pre- sumption of fault or negligence against the carrier, it should not be held responsible. McGinn v. New Orleans R. & L. Co. 13: 601, 43 So. 450, 118 La. 811. (Annotated) 337. In an action by a passenger to recov- er damages for personal injuries sustained by falling in the car which she was at- tempting to leave, she must show some act or omission, some occurrence in or about the car unusual and not ordinarily to be ex- pected in the course of transportation, be- fore the burden is shifted to the defendant carrier to explain the injury. McGinn v. New Orleans R. & L. Co. 13: 601, 43 So. 450, 118 La. 811. 338. The provision of La. Civ. Code, art. 2754, throwing the burden of proof upon the carrier in case of injury, refers to "things" intrusted to the care of the carrier, Digest 1-52 L.R.A.(N.S.) and is inapplicable in an action by a pas- senger to recover damages for personal in- juries. McGinn v. New Orleans R. & L. Co. 13: 601, 43 So. 450, 118 La. 811. 339. Where an accident occurs and an in- jury is received by a passenger on a rail- way train, and the evidence clearly dis- closes that the injury was not caused by any defect in the machinery or appliances used by the company in the operation of its road, or by any defect in the operation of its road, or by any defect in the construc- tion of the road, and was not caused by any act of the employees of the company, or of any person in charge of the train, there is no presumption of negligence on the part of the railway company, and it is incum- bent on the party seeking relief to prove negligence. Northern P. R. Co. v. Le Deau, 34: 725, 115 Pac. 502, 19 Idaho, 711. 340. The burden of showing negligence in an action to recover damages for the al- leged negligent killing of a passenger upon a vestibule train, who was found in a mangled condition beside the track some 200 or 300 feet east of the station of his destination immediately after the departure of the train therefrom to the westward, is upon the plaintiff, since no presumption of negligence upon the part of the railroad employees arises from the bare fact that a passenger is found dead beside the track after having disappeared from a vestibule passenger train. Brown v. Union P. R. Co. 29:808, 106 Pac. 1001, 81 Kan. 701. (Annotated) 341. Negligence on the part of a railroad company will not be inferred from the mere fact that a car door slammed shut, catching and crushing the hand of a passenger, who, while attempting to pass through it, rested his hand on the door jamb. Christensen v. Oregon S. L. R. Co. 20: 255, 99 Pac. 676, 35 Utah, 137. 342. That a passenger is injured by a violent jerk or jar of the car in which, he is riding such as would not ordinarily happen had the carrier used due care makes a prima facie showing of negligence on the part of the carrier. Sever v. Minneapolis & St. L. R. Co. 44: 1200, 137 N. W. 937, 156 Iowa, 664. 343. The mere happening of an accident to a passenger in a motor omnibus, oc- casioned by its skidding on a slippery pave- ment when avoiding other vehicles and striking a lamp post, is not prima facie evidence of negligence on the part of the carrier. Wing v. London General Omnibus Co. 3 B. R. C. 79, [1909] 2 K. B. 652. Also Reported in 78 L. J. K. B. N. S. 1063, 101 L. T. N. S. 411, 73 J. P. 429, 25 Times L. R. 729, 53 Sol. Jo. 713, 7 L. G. R> 1093. (Annotated) Derailment. 344. Negligence on the part of a railroad company is presumed from the fact that a passenger coach was derailed, overturned, and dragged on its side, to the injury of a passenger. Southern P. Co. v. Hogan, 29: 813, 108 Pac. 240, 13 Ariz. 24. (Annotated) 1100 EVIDENCE, II. h, 1. 345. Where by statute a carrier is liable for injury to a gratuitous passenger through its failure to exercise ordinary care, proof of derailment of a train, to the injury of such passenger, raises the presumption that it occurred through ordinary negligence and places upon the carrier the burden of showing that it occurred notwithstanding its exercise of ordinary care. John v. Northern >. R. Co. 32: 85, 111 Pac. 632, 42 Mont. 18. 346. A presumption of negligence arises from the fact of the derailment of a car whereby a passenger is injured, but when that presumption is met by evidence which makes it equally probable that the accident was not due to negligence on the part of the defendant, in the absence of other evidence tending to establish the affirmative of the issue, the defendant is entitled to a verdict. Omaha Street R. Co. v. Boesen, 4: 122, 105 N. W. 303, 74 Neb. 764. 347. In an action against a street railway company for damages for injuries sustained by one of its passengers, the burden of proof on the question of negligence does not shift to the defendant upon proof that the injuries resulted from a derailment of the car. Omaha Street R. Co. v. Boesen, 4: 122, 105 N. W. 303, 74 Neb. 764. 348. A passenger on a street car makes a prima facie case for damages against the street car company by showing that he was injured by the car leaving the track and colliding with a telegraph pole. O'Gara v. St. Louis Transit Co. 12: 840, 103 S. W. 54, 204 Mo. 724. Breaking of bridge. 349. When a passenger shows an injury to himself by the breaking of the carrier's bridge, the burden is cast upon the carrier of establishing by a preponderance of evi- dence that the accident and resulting injury were caused by inevitable casualty, or by some cause which human care and foresight could not have prevented. Roanoke R. & E. Co. v. Sterrett, 19: 316, 62 S. E. 385, 108 Va. 533. Collision. Sufficiency of evidence to overcome presump- tion, see TRIAL, 368. See also infra, 348. 350. Proof of a collision between trains on a railroad makes a prima facie case in favor of an injured passenger, which the carrier must rebut by showing it could not have been avoided by the exercise of the highest practical care and diligence on its part. Pittsburgh, C. C. & St. L. R. Co. T. Higgs, 4: 1081, 76 N. E. 299, 165 Ind. 694. 351. The mere fact that a passenger train runs into an open switch and collides with cars standing thereon does not raise, in favor of an injured passenger, a presump- tion of gross negligence, which, without evi- dence, will entitle him to punitive damages. Southern R. Co. v. Lee, 10: 837, 101 S. W. 307, 30 Ky. L. Rep. 1360. 352. A passenger on a suburban railway car makes out a prima facie cause of action against the carrier by showing that he was injured by collision of the car on which he was riding with another car standing on Digest 1-52 L.R.A.(N.S.) the track near a curve without any signal of its presence. Enos v. Rhode Island Su- urban R. Co. 12: 244, 67 Atl. 5, 28 R. I. 291. 353. No presumption of negligence on the part of a street car company arises from the injury of a passenger through a collision of the car with a wagon on the street, so as to throw upon it the burden of proving free- dom from negligence. Chicago Union Trac- tion Co. v. Mee, 2: 725, 75 N. E. 800, 218 111. 9. ' (Annotated) 354. A collision between two street cars operated by the same company raises a pre- sumption of negligence in favor of an in- jured passenger, which the company has the burden of overcoming. Simone v. Rhode Island Co. 9: 740, 66 Atl. 202, 28 R. 1. 186. 355. A person injured while a passenger on a street car by a collision between the car and a wagon on the street has the burden of showing that the carrier was guilty of negligence, in order to hold it liable for the injury. Chicago Union Traction Co. v. Mee, 2: 725, 75 N. E. 800, 218 111. 9. 356. The injury of a street car passenger by collision of the car with a vehicle upon the highway raises a presumption of neg- ligence on the part of the carrier which will justify a verdict against it in an action to hold it liable for the injury, unless it ex- plains the cause of the collision. House! v. Pacific Electric R. Co. 51: 1105, 139 Pac 73, 167 Cal. 245. Falling of window. 357. The mere fact that a passenger in a railroad car raises the window, which falls upon and injures him, does not bring the case within the exception to the rule res ipsa loquitur, which applies where there is some action on the part of the passenger which may have contributed to produce the injury. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 358. A prima facie case of negligence against a railroad company is established by evidence that a window with a broken, weak, or defective catch fell upon the arm of a passenger, and that the railroad com- pany had made'no effort to discover or re- pair the defect. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. Scenic railway. 359. The sudden stopping of a car on a ecenic railway, caused apparently by some- thing on the track, which is not a part of its ordinary operation, and causes a pas- senger to be thrown out and injured, cre- ates a presumption of negligence on the part of the owner, sufficient to carry to the jury the question of liability for the in- jury. O'Callaghan v. Dellwood Park Co. 26: 1054, 89 N. E. 1005, 242 111. 336. Sleeping cars. 360. In a suit against a sleeping car com- pany by a passenger for loss of personal effects, where it is proved that the plain- tiff's baggage or articles of personal adorn- ment were stolen while he was asleep, the burden of proof is shifted to the defendant company; and it is bound to show that it EVIDENCE, II. h, 1. 1101 exercised reasonable diligence to prevent the loss. Pullman Co. v. Schaffner, 9: 407, 55 S. E. 933, 126 Ga. 609. Freight train. 301. Negligence sufficient to render a rail- road company liable to a passenger for hire on a freight train for injuries sustained by him by being thrown violently to the floor of the caboose in which he was riding by the sudden stopping of the train at a sta- tion other than his destination cannot be inferred from proof that the train stopped some distance from such station, that the passenger, thinking the station had been reached, stepped out on the rear platform to talk to a friend; that, finding the train had not reached the station, when the train started again he stepped back into the ca- boose on the way to his seat, and turned and was standing leaning against the cas- ings of the car door when the train stopped, causing the injuries, where it does not affirmatively appear that the jerk was an extraordinary or unusual one, since, in such case, the injuries must be attributed to the dangers necessarily attending the riding on a freight train, which are assumed by the passenger. St. Louis & S. F. R. Co. v. Gos- nell, 22: 892, 101 Pac. 1126, 23 Okla. 588. Street cars. See also supra, 347, 348, 353-356. See also CABKIEBS, 99. 362. The mere fact that a passenger stand- ing in a street car falls and is injured by the sudden checking of the speed of the car does not render the carrier liable for the injury. Ottinger v. Detroit United R. 34: 225, 131 N. W. 528, 166 Mich. 106. 4 (Annotated) 363. The sudden starting of a street car from which a passenger is in the act of alighting, in such a manner as to throw him to the pavement, raises the presump- tion of negligence on the part of the street car company. Paducah Traction Co. v. Ba ker, 18: 1185, 113 S. W. 449, 130 Ky. 360. 364. No negligence on the part of a street car company will be presumed from the fact that a passenger compelled tc stand next the guard rail on a crowded open car is thrown by a lurch of the car against one passing in the opposite direction and injured. Cline v. Pittsburgh R. Co. 27: 936, 75 Atl. 850, 226 Pa. 586. 365. The closing of the door of a street car upon a passenger as he is attempting to enter the car, to his injury, shows prima facie negligence on the part of the street car company, although a passenger may have intentionally started the mechanism which caused the door to close. Craft v. Boston Elevated R. Co. 39: 878, 97 N. E. 610, 211 Mass. 374. (Annotated) 366. That a street car passenger was not passive, but actively engaged in attempting to alight from the car, when his feet be- came entangled, to his injury, in a trolley rope negligently left lying on the floor, does not prevent the application of the doctrine res ipsa loquitur in determining liability for the injury. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. Digest 1-52 L.R.A.(N.S.) 367. The doctrine of res ipsa loquitur applies where a street car company leaves one end of the trolley rope lying on the car floor insuch a way that a passenger attempting to alight from the car becomes entangled in it, and is thrown and injured by the starting of the car. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 368. The burden rests upon a passenger induced to leave a street car at a point re- mote from her destination, to show that her subsequent illness, alleged to have been caused by exposure to the weather, was due to such exposure rather than to other causes for which the carrier would not be responsible. Georgia R. & E. Co. v. Mc- Allister, 7: 1177, 54 S. E. 957, 126 Ga. 447. 369. The mere fact that a passenger neg- ligently permitted to leave a street car at a point remote from her destination sus- tained an injury does not raise a presump- tion of negligence against the carrier; but the burden rests upon the passenger to prove the allegations of fact upon which she relies for a recovery. Georgia R. & E. Co. v. McAllister, 7: 1177, 54 S. E. 957, 126 Ga, 447. 370. A presumption of negligence attends the blowing or burning out of the controller on an electric street car, to the injury of a passenger on the car. Firebaugh v. Seattle Electric Co. 2: 836, 82 Pac. 995, 40 Wash. 658. 371. The operation of the rule res ipso loquitur, in case of the blowing or burning out of the controller on an electric street car, is not prevented by the fact that the injury to the passenger actually results from his leaping from the car to escape the apparent danger. Firebaugh v. Seattle Electric Co. 2: 836, 82 Pac. 995, 40 Wash. 658. (Annotated) 372. One awaiting a trolley car at the usual stopping place, and injured by the falling of a trolley pole on the arrival of the car, is entitled to recover damages against the railroad company for the per- sonal injuries sustained, in the absence of any evidence to rebut the presumption of negligence, which, in such case, must be raised against the company. Cincinnati Traction Co. v. Holzenkamp, 6: 800, 78 N. E. 529, 74 Ohio St. 379. (Annotated) Carriers by water. Loss of baggage, see infra, 378. 373. The tilting of the gang plank by means of which a member of an excursion party is attempting to board a boat, the owner of which has undertaken fo carry the party for a lump sum, so as to throw the person into the water, casts upon the owner of the boat the burden of showing that the accident was not caused by negli- gence on his part. McBride v. McNally, 52: 259, 89 Atl. 1131, 243 Pa. 206. Baggage. Sufficiency of evidence, see infra, 2150, 2151. See also supra, 360. 374. The loss of a passenger's baggage after it reaches its destination raises a pre- sumption of negligence on the part of the 1102 EVIDENCE, II. h, 1. carrier. Central of Ga. R. Co. T. Jones. 9: 1240, 43 So. 575, 150 Ala. 379. 375. When a carrier fails to deliver bag- gage left with it for storage, for hire, it has the burden of showing that it was not lost through negligence. Milwaukee Mirror & Art Glass Works v. Chicago, M. & St. P. R. Co. 38: 383, 134 N. W. 379, 148 Wis. 173. 376. The carrier must show that the de- railment and burning of a car in which it was carrying baggage under a limited-lia- bility contract was not due to its negligence, in order to secure the benefit of the contract. Wells v. Great Northern R. Co. 34: 818, 114 Pac. 92, 116 Pac. 1070, 59 Or. 165. 377. In the absence of explanation of the loss of valuables from a suit case delivered to a trainman, to be conveyed from the train, the jury may infer that it was due to his negligence. Hasbrouck v. New York, C. & H. R. R. Co. 35: 537, 95 N. E. 808, 202 N. Y. 363. 378. The loss by the officers of a steam- ship of hand baggage of a passenger which they have undertaken to place in his state- room establishes a primu facie case of neg- ligence, which, unexplained, will render the company liable for the loss. Holmes v. North German Lloyd S. S. Co. 5: 650, 77 N. E. 21, 184 N. Y. 280. (2) Of freight. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence, see infra, 2152- 2154. See also infra, 528. Loss. 379. The burden of proof is upon the car- rier to exempt himself from liability in case of loss or damage to goods consigned to it for carriage by showing that it was occasioned either by an inherent defect, vic2, or weakness, or spontaneous action of the property itself, by the act of a public enemy of the United States or of the state, by act of law, or any irresistible superhuman cause. Duncan v. Great Northern R. Co. 19: 952, 118 N. W. 826, 17 N. D. 610. 380. That loss of goods delivered to a carrier for transportation was due to its negligence will be presumed where the re- ceipt of the goods and failure to deliver are shown, and both loss and responsibility are admitted. Everett v. Norfolk & S. R. Co i: 985, 50 S. E. 557, 138 N. C. 68. 381. In Georgia it is the general rule that. in order to avail himself of an act of God as an excuse, the burden is upon the com- mon carrier to establish not only that the act of God ultimately occasioned the loss, but that his own negligence did not con- tribute thereto. Central R. Co. v. Hall, 4: 898, 52 S. E. 679, 124 Ga. 322. 382. A prima facie case is made against each of several connecting carriers by proof that a certain quantity of goods was de livered to the initial carrier for shipment, and that a less quantity was received by the Digest 1-52 :L.R.A.(N,S.) delivering carrier, although the bill of lad- ing provides that no carrier shall be liable for loss not occurring on its own road. Chesapeake & O. R. Co. v. Williams, 49:347, j 160 S. W. 769, 156 Ky. 114. 383. The separating of two cars of mer- chandise which a common carrier's contract contemplated keeping together in transit, whereby the care taker is prevented from attending to one of them, loss thereby en- suing, imports negligence, and the burden of proof is on the common carrier to prove that there was sufficient cause for separating the cars. Whitnack v. Chicago, B. & Q. R. Co. 19: ion, 118 N. W. 67, 82 Neb. 464. Damage. See also supra, 379. 384. Proof of delivery of a shipment of goods to a carrier in good condition, and of delivery by it to th consignee in a damaged state, establishes the prima facie liability of the carrier for the damage tc the shipment. Armstrong v. Illinois C. R. Co. 29: 671, 109 Pac. 216, 26 Okla. 352. 385. The presumption of negligence- on the part of the final carrier upon the deliv- ery of fruit in bad condition will not pre- vail when the evidence tends to locate the negligence upon a prior one. St. Louis, I. M. & S. R. Co. v. Renfroe, 10: 317, 100 S. W. 889, 82 Ark. 143. 386. Proof of the delivery of property to a carrier in sound condition, and of its re- delivery at the end of the route in damaged condition, or of a failure to redeliver it, makes a sufficient case to sustain a recov- ery for the damage or loss sustained by the shipper. Duncan v. Great Northern R. Co. 19: 952, 118 N. W. 826, 17 N. D. 610. 387. Where the owner accompanies his liv"e stock during its transportation by a carrier, he has the burden of showing that injury to it by freezing was due to negli- gence on the part of the carrier. Colsch v. Chicago, M. & St. P. R. Co. 34: 1013, 127 N. W. 198, 149 Iowa, 176. 388. Proof by a carrier which has re- ceived a shipment of goods in good con- dition, and delivered them to the consignee in a damaged state, that the damage was due entirely to a flood which amounted to an act of God, overcomes the prima facie case against it arising from the acceptance of the goods in good condition, and their delivery in a damaged condition, and shifts the burden of proof to the shipper to show, in order to recover, that negligence on the part of the carrier co-operated with the act of God in bringing about the damage to the shipment. Armstrong v. Illinois C. R. Co. 29: 671, 109 Pac. 216, 26 Okla. 352. 389. One suing for the death of a hog de- livered to an express company for trans- portation, which occurs at the termination of the journey, by wagon, to the station, has the burden of showing negligence unaided by presumption, when he was present when the animal was placed on the wagon and ac- companied the wagon to the station, so that he was familiar with all that occurred. Winn v. American Exp. Co. 44: 662, 140 N. W. 427, 159 Iowa, 369. EVIDENCE, II. h, 1. 1103 Delay. 390. The derailment and wreck of a train carrying freight, by reason of which trans- portation is delayed to the injury of the property, raises a prima facie inference of negligence against the carrier. St. Louia S. W. R. Co. v. Wallace, 22: 379, 118 S. W. 412, 90 Ark. 138. c. Railroads; street railways; vessels. (See also same heading in Digest L.R.A 1-10.) Sufficiency of evidence, see infra, 2155-2163. Opinion evidence as to value, see EVIDENCE, VII. f. Railroads. As to contributory negligence, see infra, 481-487. Validity of statute creating presumption of negligence, see CONSTITUTIONAL LAW, 623. 391. Some presumption must be indulged that an engineer who sees a person on the track in front of his engine will give a warning signal. Hoffard v. Illinois C. R. Co. 16: 797, 110 N. W. 446, 138 Iowa, 543. 392. If a railroad bridge collapses, the burden is on the company to show the high- est degree of practical care and hkill in the construction of the bridge, and its inspec- tion from time to time to discover defects. Hamilton v. Louisiana & N. W. R. Co. 6: 787, 41 So. 560, 117 La. 243. At street or highway crossing. 393. A railroad company is, in the ab- sence of evidence, presumed to have done its duty in approaching a street crossing; and no recovery can be had for the death of a person killed at the crossing, until this presumption has been overcome. Han- na v. Philadelphia & R. R. Co. 4: 344, 62 Atl. 643, 213 Pa. 157. 394. In the absence of proof of the speed at which a train approached a road cross- ing, the presumption is that the engineer approached the crossing with due care, measured by a conscious sense of the dan- ger that might likely be encountered there. Davis v. Chicago, R. I. & P. R. Co. 16: 424, 159 Fed. 10, 88 C. C. A. 488. 395. That a conductor of a train was not responsible for the negligent killing of a per- son at a highway crossing cannot be assumed because it was not his duty to keep a look- out for persons at such places. Clinger v. Chesapeake & 0. R. Co. 15: 998, 109 S. W. 315, 128 Ky. 736. Injury to live stock. 396. The statute requiring a railroad company to prove care in case stock is killed or injured by its locomotive does not apply to injury to stock falling through a trestle in fleeing from a locomotive. Nashville, C. & St. L. R. Co. v. Garth, 46: 430, 59 So. 640, 179 Ala. 162. 397. A statute requiring signals when a train approaches a road crossing is for the benefit of roaming animals as well as per- sons, and the railroad company must, to Digest 1-52 L.R.A.(N.S.) relieve itself from the statutory presump- tion of negligence which arises from the killing of animals upon its tracks, show that it gave the icquired signals upon ap- proaching the crossing at which the animals were killed. Campbell v. Mobile & 0. R. Co. 46: 881, 157 S. W. 931, 154 Ky. 582. (Annotated) Fires. Sufficiency of evidence, see infra, 2158-2161. 398. The inference that fire was started in rubbish on a railroad right of way by a passing train is not destroyed by the fact that it was not discovered until two, or two and one-half, hours after the passing of the train, where the community is sparsely settled, and the fire, when first discovered, was smoldering in a log, where it might have slumbered for hours before being communicated to the surrounding territory. Hawley v. Sumpter Valley R. Co. 12: 526, 90 Pac. 1106, 49 Or. 509. 399. The fact that the setting of a fire by a railroad locomotive has been proved by circumstantial evidence does not prevent the presumption of negligence on the part of the defendant, arising under the rule casting the burden of rebutting that pre- sumption on the defendant. Osburn v. Ore- gon R. & Nav. Co. 19: 742, 98 Pac. 627, 15 Idaho, 478. 400. A prima facie case is established against a railroad company for the de- struction of property by fire set by sparks from a locomotive, by proof that fire has been communicated from the company's en- gine to the property, which resulted in its destruction, since such proof raises a pre- sumption of negligence either in construc- tion and equipment, or in management and operation of its engine, which it is neces- sary for the defendant to rebut. Osburn v. Oregon R. & Nav. Co. 19: 742, 98 Pac. 627, 15 Idaho, 478. 401. In an action against a railroad com- pany for the destruction of property by fire set by sparks from the company's loco- motive, proof of actual negligence or want of ordinary care must be made by complain- ant, when the presumption of negligence which arises upon the establishment of the fact that the fire was communicated from the engine to the property destroyed is re- butted by proof of proper appliances and careful management and operation. Osburn v. Oregon R. & Nav. Co. 19: 742, 98 Pac. 627, 15 Idaho, 478. 402. In an action against a railroad com- pany for damages caused by fire shown to have been kindled by sparks from a loco- motive, the provision of Minn. Hen. Stat. 1894, 2700, that the owner of property burned by fire thrown from an engine can recover without showing defects in the en- gine or negligence on the part of the em- ployees, throws the burden of proof upon the railroad company to rebut the presump- tion of actionable negligence on its part. Continental Ins. Co. v. Chicago & N. W. R. Co. 5: 99, 107 N. W. 548, 97 Minn. 467. 403. A presumption of negligence arises from a violent impact of a train against EVIDENCE, 11. h, 1. another which it is following upon the same track, so as to telescope several cars, and start a conflagration which sets fire to neighboring property, which shifts the bur den of showing care to the railroad com pany. Cincinnati, N. O. & T. P. K. Co. v. South Fork Coal Co. i: 533, 139 Fed. 528, 71 C. C. A. 316. Street railways. As injuries to passengers, see supra, 347, 348, 353-356, 362-372. As to contributory negligence, see infra, 488-491. Sufficiency of evidence, see infra, 2164-2166. 404. A street railway company which em- ploys a minor as motorman on its car has, in case of injury to a child through colli- sion with the car, a greater burden of show- ing that the accident was not due to his incompetence than though he had been ma ture. Cloud v. Alexandria Electric R. Co. 18: 371, 46 So. 1017, 121 La. 1061. 405. The doctrine of res ipsa loquitur does not apply to the fall of sparks from the machinery of an elevated train law- fully operated in a public street, to the in- jury of a person in the street below. Car- ney v. Boston Elevated R. Co. 42: 90, 98 N. E. 605, 212 Mass. 179. 406. In a suit against a street railway company for the death of a pedestrian, struck by a car which left the track be- cause of the splitting of a switch, proof of the accident is sufficient to charge the com- pany with negligence, in the absence of proof to the contrary, and to place upon it the burden of showing that the injuries were not received through any fault on its part. Najarian v. Jersey City, H. & P. Street R. Co. (N. J. Err. & App.) 23: 751, 73 Atl. 527, 77 N. J. L. 704. (Annotated) 407. The maxim Res ipsa liquitur will not apply to establish on the part of a street car company liability for injury to a pas- ser-by by a missile thrown from under a car, where both the act which caused the injury and the negligence of the street car company in relation thereto would have to be inferred from the accident. De Glop- per v. Nashville R. & Light Co. 33: 913, 134 S. W. 609, 123 Tenn. 633. d. Electric companies. (See also same heading in Digest L.R.A 1-10.) See also infra, 468. 408. Sufficient prima facie evidence of negligence on the part of an electric com- pany is shown by the unexplained fact that a person on the surface of the highway was injured by contact with a hanging or fallen charged wire. Walter v. Baltimore Electric Co. 22: 1178, 71 Atl. 953, 109 Md. 513. (Annotated) 409. The negligence of an electric light company cannot be established by the aid of the doctrine res ipsa loquitur in case of an injury to a customer by a shock received while handling a light bulb, where the wir- 3>igest 1-52 ing on his own premises was done by the- customer, and all fixtures there were owned and controlled by him; while the accident is shown not to have been due to anything under the control of the company. Peters- v. Lynchburg Light & T. Co. 22: 1188, 61 S, E. 745, 108 Va. 333. 410. The doctrine of res ipsa loquitur cannot be invoked to hold liable an elt-ctric company furnishing a current of electricity to a private building, connected with in- side wiring owned by, and under the exclu- sive control of, the owner of the building, for an injury resulting directly from the im- perfect insulation and condition of such inside wiring, merely because the electric company is producing and furnishing the dangerous and subtle element of electricity under a contract with such owner. Min- nesota General Elec. Co. v. Cronon, 20: 816, 166 Fed. 651, 92 C. C. A. 345. Electric railway. 411. An electric railway company cannot be held liable for injury to a person on the street by the breaking of its trolley wire, on the ground that there is no other appar- ent cause for the break than the negligence of the company. Lanning v. Pittsburg Rail- ways Co. 32: 1043, 79 Atl. 136, 229 Pa. 575, (Annotated) e. Master and servant. (See also same heading in Digest L.R.A. 1-70.) As to infant servant's mental capacity, see supra, 211-217. Effect of statutes creating presumption to take away defense of assumption of risk, see MASTEE AND SERVANT, 544, 545. See also infra, 2120, 2129; MASTER AND SERVANT, 291, 292. 412. The relation of employer and em- ployee is not per se inimical to the applica- tion of the maxim Res ipsa, loquitur, in case of injuries received by the employee in the course of his employment. Merceau v. Rutland R. Co. 51: 1221, 105 N. E. 206, 211 N. Y. 203. 413. The doctrine of res ipsa loquitur ap- plies in case of injury to a servant through- the alleged negligence of the master, where the facts eliminate blame on the part of the servant or his fellow servants, but show prima facie negligence on the part of some- one. La Bee v. Sultan Logging Co. 20: 405, 91 Pac. 560, 47 Wash. 57. 414. The rule res ipsa loquitur applies in a proper case between master and servant as well as between carrier and passenger, but its application as between the former is limited to that class of cases which is not susceptible of direct and positive proof by living witnesses, and the rule is resorted to only as a last resort in order to prevent a miscarriage of justice. Klebe v. Parker Dis- tilling Co. 13: 140, 105 S. W. 1057, 207 Mo. 480. 415. In an action by an employee against EVIDENCE, II. h, 1. 1105 his employer, the fact of accident carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact for the injured em- ployee to establish by the evidence. Phoenix Printing Co. v. Durham, 38: 1191, 122 Pac. 708, J2 Okla. 575. 416. Under certain circumstances, the maxim, Res ipsa loquitur, may apply in an action brought by a servant against his master for injury caused by an agency of the master, since the application of the maxim does not ordinarily depend upon the relation between the parties, except in- directly, so far as that relation defines the measure of duty imposed on the defendant. Jenkins v. St. Paul City R. Co. 20: 401, 117 N. W. 928, 105 Minn. 504. 417. The presumption of fact in favor of the master having performed his duty to furnish servants a reasonably safe work- ing place, instrumentalities, and fellow serv- ants, is overcome by evidence establishing the contrary to a reasonable certainty. Knudsen v. La Crosse Stone Co. 33: 223, 130 N. W. 519, 145 Wis. 394. 418. Actionable negligence on the part of the owner of a building in maintaining a window the glass of which broke and in- jured an employee whose duty was to open and close the window, is not shown by the mere happening of the accident, where there is nothing to show the efficient cause of the accident. Stewart & Co. v. Harman, 20: 228, 70 Atl. 333, 108 Md. 446. 419. In an action for injuries resulting from the taking of an X-ray picture of the injury of an employee of a telephone com- pany, by a servant of such company, where the instrumentality is under the exclusive control of the company, and where there is evidence that injury to the subject is not a necessary result of the taking of such a pic- ture if proper instruments and proper care are used, and evidence that such injury did result in this case, the doctrine of res ipsa loquitur applies, and the company not hav ing shown conclusively that it was not neg- ligent, a judgment for the employee upon a verdict in his favor will not be disturbed. Jones v. Tri-State Teleph. & Teleg. Co. 40: 485, 136 N. W. 741, 118 Minn. 217. Fall of wall or building. 420. The mere fall of a square brick stack, erected in a building to provide safe- ty vaults on different floors, after the building has been destroyed by fire and while salvors are at work in the debris, is not sufficient to show negligence on the part of the master salvor, so as to render him liable for injury thereby caused to his employee. Cans Salvage Co. v. Byrnes, i: 272, 62 Atl. 155, 102 1' !. 230. 421. The doctrine of res ipsa loquitur does not apply to the fall of a temporary shed erected during the construction of a building for the protection of machinery, while employees are removing it after it has served its purpose, so as to render the master liable to an employee injured by such fall, without further evidence of negli- Digest 1-52 L.R.A.(N.S.) gence on his part. Ferrick v. Eidlitz, 24: 837, 88 N. E. 33, 195 N. Y. 248. Fall of scaffold. 422. The fall of a scaffold upon which men are sent to work does not of itself show that it must have fallen because something was the matter with it, where it appears that at the time of the fall the men were trying to break the connec- tion of a pipe, and were pressing against the scaffold with all their strength, which may have subjected it to excessive strain. Robinson v. Consolidated Gas Co. 28: 586, 86 N. E. 805, 194 N. Y. 37. (Annotated) Elevators. 423. That an elevator provided for use of an employee falls when at rest, without ap- parent cause, and that it has broken down and been repaired twice within a few months, may justify a finding o." negligence on the part of the master. Young v. Mason Stable Co. 21: 592, 86 N. E. 15, 193 N. Y. 188. Defective appliances. 424. The jury may infer the existence of a defect in the mechanism of an appliance, even in case of injury to an employee, where the evidence excludes all other causes for the accident. Byers v. Carnegie Steel Co. 16: 214, 159 Fed. 347, 86 C. C. A. 347. 425. Evidence that an appliance furnished by a master for a particular purpose breaks while being used in a proper manner for that purpose is sufficient to establish a prima facie case of negligence against the master. La Bee v. Sultan Logging Co. 20: 405, 91 Pac. 560, 47 Wash. 57. Unsafe machinery generally. 426. A servant injured by the unsafe con- dition of a machine is not, in order to hold the master liable for the injury, bound to point out the particular defect which ren- dered the machine unsafe. Tuckett v. American Steam & Hand Laundry, 4: 990, 84 Pac. 500, 30 Utah, 273. 427. From an unexplained automatic starting to the injury of an employee, of a comparatively new machine, when it ought to have remained at rest, the jury may infer negligence on the part of the employer. Chiuccariello v. Campbell, 44: 1050, 96 N. E. 1101, 210 Mass. 532. (Annotated) 428. In an action to recover damages for personal injuries sustained by an employee injured by the blowing out of a cylinder head, the burden rests upon him to show that the injury was due to the defective condition of the machinery, and that the employer knew, or could have known, of such defect by reasonable care, ard did not provide a safe place for his en-ployees to work in. Comer v. W. M. Ritter Lumber Co. 6: 552, 53 S. E. 906, 59 W. Va. 688. 429. The derailment and overturning of a freight car in a train is not such evidence of negligence on the part of the railroad com- pany towards its brakeman as to cast upon it the burden of exonerating itself from the charge of negligence to absolve itself from liability for injury to him thereby. Henson v. Lehigh Valley R. Co. 19: 790, 87 N. E. 85, 194 N. Y. 205. 70 1106 EVIDENCE, II. h, 1. 430. Negligence of the master, rendering him liable for injury to his employee for personal injuries due proximately to the erratic operation of a machine, may be in- ferred where the character of the accident and the circumstances under which it oc- curs point strongly to a condition which is abnormal and dangerous, which has long continued under circumstances indicating that the employer, by the exercise of rea- sonable care, should have known of it, and the evidence excludes knowledge, negli- gence, and assumption of risk on the part of the employee, notwithstanding the absence of direct testimony by personal observa- tion of the existence of the specific defect alleged to have caused the accident. Byers v. Carnegie Steel Co. 16: 214, 159 Fed. 347, 86 C. C. A. 347. 431. Failure of a device installed by a master to stop machinery in case a serv- ant becomes caught therein to work when the need of it arises is prima facie evidence of negligence on the part of the master. Scheurer v. Banner Rubber Co. 28: 1207, 126 S. W. 1037, 227 Mo. 347. Unguarded machinery. 432. In an action for death of a servant, under a factory act requiring certain safe- guards to machinery, where practicable, and giving a right of action for death or injury in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute thereto, it is not necessary for the plaintiff to prove in the first instance that it was practicable to guard the machinery which caused the death. Caspar v. Lewin, 49: 526, 109 Pac. 657, 82 Kan. 604. Employees in mine. 433. The fact of an explosion in a coal mine is not prima facie evidence of action- able negligence on the part of the owner or operator of the mine. The rule res ipsa loquitur does not apply. Dickinson v. Stu- art Colliery Co. 43: 335, 76 S. E. 654, 71 W. Va. 325. 434. The doctrine of res ipsa loquitur does not apply in case of injury to a mine em- ployee by explosion of powder through the crossing of electric wires, where they were properly erected, and there was no reason to contemplate that they could become crossed in so short a time after they were erected, and there is nothing to show that they were in such a condition before the accident jthat the exercise of ordinary care in their inspection would have disclosed a defect. Western Coal & M. Co. v. Garner, 22: 1183, 112 S. W. 392, 87 Ark. 190. ( Annotated ) Railroad employees. 435. The mere exclamation of a track hand immediately after he had dropped his corner of a hand car which a repair gang was removing from the track, that he did not mean to do so, is not sufficient to over- come the presumption of negligence arising from his act. Cahill v. Illinois C. R. Co. 28: 1121, 125 N. W. 331, 148 Iowa, 241. 436. The applicability of the maxim, Res ipsa loquitur, is shown in an action by a Digest 1-52 L.R.A.(N.S.) locomotive fireman suing under the em- ployers' liability act, by evidence that he was injured by an explosion in the fire box of the engine, that only partly successful attempts had been made to repair leaky valves which had been found to be loose, and could be inspected only by taking out the brick arch when the engine was not in steam, and that after the injury a flue was found to have been blown out of its place, and is not defeated by the facts that the engine was of modern type and a year before the accident had been put in perfect repair. Marceau v. Rutland R. Co. 51: 1221. 105 N. E. 206, 211 N. Y. 203. 437. The mere fact that a railroad bridge was carried away by the high water of the creek which it spanned, taking with it a portion of a train, and killing a brukeman, does not place upon the railroad company the burden of disproving its negligence to avoid liability for the death of the em- ployee. Johns v. Pennsylvania R. Co. 28: 591, 75 Atl. 408, 226 Pa. 319. (Annotated) 438. The doctrine res ipsa loquitur ap- plies where one employed in caring for a locomotive is injured by a heavy lump of coal falling in the process of transferring it from an adjoining car to the tender of the locomotive. Fitzgerald v. Southern R. Co. 6: 337, 54 S. E. 391, 141 N. C. 530. (Annotated) 439. Where a car is received from another company to be switched to its destination within a city without any inspection as to its condition, it cannot be inferred, when it is discovered that the coupling apparatus is so defective as not to meet the requirements of the safety-appliance act of Congress, which fact is discovered en route, that the break in the apparatus occurred at the time it was discovered to be out of order. Chi- cago, M. & St. P. R. Co. v. United States 20: 473, 165 Fed. 423, 91 C. C. A. 373. 440. Waiver of a rule requiring brake- men to be on top of the train when approach- ing and passing stations may be found from the fact that it was habitually violated with knowledge of those whose duty it waa to report such violations. Duncan v. At- chison, T. & S. F. R. Co. 51: 565, 119 Pac. 356, 86 Kan. 112. f. Miscellaneous. (See also same heading in Digest L.R.A. 1-10.) See also PLEADING, 285; TRIAL, 577. 441. Where an injury arises from the bringing upon land of something not inci- dental to its ordinary use, but which if it escapes is liable to do injury, the burden of proof is not on the person injured by such agency to show that the thing introduced cnto the land was, to the knowledge of the defendant, likely to escape and cause dam- age; but it is incumbent on the defendant, in order to exonerate himself, to show not merely that he did not know that the thing which has escaped from his land was likely EVIDENCE, II. h, 1. 1107 to do the damage complained of, but that the thing was, according to the common ex- perience of mankind, not likely to cause mischief. West v. Bristol Tramways Co. 4 B. R. C. 243, [I90S] 2 K. B. 14. Also Reported in 77 L. J. K. B. N. S. 684, 72 J. P. 243, 99 L. T. N. S. 264, 24 Times L. R. 478, 54 Sol. Jo. 393, 6 L. G. R. 609. 442. The bursting of a tank in which one has artificially stored water upon his property, and the escape of the water to the injury of neighboring property, raises a presumption of negligence. Weaver Mer- cantile Co. v. Thurmond, 33: 1061, 70 S. E. 126, 68 W. Va. 530. 443. The sudden sinking of a sidewalk un- der the weight of a pedestrian, to his in- jury, is, under the doctrine of res ipsa lo- quitur, evidence of negligence on the part of a contractor who, in the execution of public work, took up and relaid the walk. Rockwell v. McGovern, 23: 1022, 88 N. E. 436, 202 Mass. 6. (Annotated) 444. In the absence of evidence as to how long a cart which the driver was attempt- ing to repair in a public street had been out of repair, or what caused it to be so, it may be found that it would not have been out of repair but for the negligence of the owner. Hollidge v. Duncan, 17: 982, 85 N. E. 186, 199 Mass. 121. 445. The maxim, Res ipsa loquitur, ap- plies to the destruction of trees on a boule- vard in front of plaintiff's premises by gas which escaped from the mains of the defend- ant company, where the leak was due to the action of frost in the winter, and was not discovered by the company until the following June. Gould v. Winona Gas Co. 10 : 889, 111 N. W. 254, 100 Minn. 258. Of municipal corporation. 446. In an action against a municipality for personal injuries, there is no presump- tion that either plaintiff or defendant was guilty of negligence. Oklahoma City v. Reed, 33: 1083, 87 Pac. 645, 17 Okla. 518. 447. The rule res ipsa loquitur cannot be invoked to establish the liability of a mu- nicipal corporation for injury to a pedes- trian through the collapse, under his weight, of a flagstone forming part of the covering of a culvert across a street. Corbin v. Ben- ton, 43: 591, 152 S. W. 241, 151 Ky. 483. (Annotated) 448. In the absence of proof that the breaking of a municipal water tank was caused by some superior force, such as an unusual and violent disturbance of the ele- ments, or an explosion clandestinely caused, negligence will be inferred from the break- ing. Wigal v. Parkersburg, 52: 465, 81 S. E. 554, W. Va. . Of bailee. 449. Where a hired horse injured while in possession of the bailee was at the time in charge of a driver furnished by the owner, the bailee is not bound to establish his freedom from negligence in the first in- stance, but the burden of showing his neg- ligence is on the owner. Weller v. Camp, 28: 1106, 52 So. 829, 169 Ala. 275. Digest 1-52 L.R.A.(N.S.) 450. In an action againt a bailee for loss of property, where it is alleged that the loss was occasioned by a fire, and that such fire was caused by the negligence of the bailee, the burden of proving such negligence is upon the plaintiff, and such proof must outweigh any affirmative defense interposed by the defendant, before the plaintiff is en- titled to recover. Stone v. Case. 43: 1168, 124 Pac. 960, 34 Okla. 5. (Annotated) 451. Where, in an action by the bailor against the bailee upon an ordinary con- tract of nongratuitous bailment, the de- fendant admits the receipt of the prop- erty and his inability to return it, a prima facie breach of the contract is thereby es- tablished, to meet which it devolves upon the defendant to prove that he exercised ordinary care in keeping the property. Travelers' Indemnity Co. v. Fawkes, 45: 331, 139 N. W. 703, 120 Minn. 353. 452. The bailor of property in possession of a carrier holding as a warehouseman has the burden of showing negligence on its part in case the property is destroyed by fire, at least, where the fire destroyed also the property of the bailee. Yazoo & M. V. R. Co. v. Hughes, 22: 975, 47 So. 662, 94 Miss. 242. (Annotated) Of livery stable keeper. 453. To hold a livery stable keeper liable for injury inflicted by a vicious horse let by him, upon the customer, the latter must show that the animal was vicious and un- suitable for the purpose for which it was hired, and that the liveryman knew, or by the exercise of reasonable care should have known, that fact. Conn v. Hunsberger, 25: 372, 73-Atl. 324, 224 Pa. 154. Of innkeeper. 454. An innkeeper has the burden of ab- solving himself from negligence when a guest shows a personal injury by the fall upon him of the upper portion of a folding bed which he is occupying. Lvttle v. Denny, 20: 1027, 71 Atl. 841, 222 Pa. 395. (Annotated) Of telephone company. 455. A telephone company is bound to negative only the negligence charged against it, where specific acts of negligence are charged in the complaint for failure prompt- ly to make a connection for a customer, al- though the statute provides that in case of delay it has the burden of proof that such delay was not due to negligence on its part. Volquardsen v. Iowa Teicph. Co. 28: 554, 126 N. W. 928, 148 Iowa, 77. Falling or flying objects. 456. Negligence on the part of a store- keeper may be inferred from the fall of a basket of a carrier system upon a customer, to his injury. Anderson v. McCarthy Dry Goods Co. 16: 931, 95 Pac. 325, 49 Wash. 398. (Annotated) 457. The doctrine res ipsa loquitur ap- plies where the head of a mallet having no patent defect, which is used by patrons of an attraction in an amusement park, flies off to the injury of one using it for the pur- pose for which it was intended, so that the 1108 EVIDENCE, II. h, 2. owner, to avoid liability for the resulting injury, has the burden of showing freedom from negligence. VVodnik v. Luna Park Amusement Co. 42: 1070, 125 Pac. 941, 69 Wash. 638. Fall of building. Injury to employee, see supra, 420, 421. 458. The mere fall of a stand erected by a park commission in a public park for the ac- commodation of the public raises no pre- sumption of negligence. Denver v. Spencer, 2: 147, 82 Pac. 590, 34 Colo. 270. Runaway. 459. The mere running away of a team does not imply negligence on the part of the owner. Coller v. Knox, 23: 171, 71 Atl. 539, 222 Pa. 362. (Annotated) 460. The owner of a runaway horse which inflicted injury on a person has the burden of proving that he was himself without the slightest fault, and did all that was possible to prevent the injury. Damonte v. Patton, 8: 209, 43 So. 153, 118 La. 530. 461. The unexplained presence upon a public highway of a runaway horse har- nessed to a wagon, unattended by the owner or other person, is prima facie evidence of negligence on the part of the owner. Den- nery v. Great Atlantic & Pacific Tea Com- pany (N. J. Err. & App.) 39: 574, 81 Atl. 861, 82 N. J. L. 517. (Annotated) Explosion. As to cause, see supra, 323. Sufficiency- of presumption to take question to jury, see TRIAL, 126. See also supra, 326. 462. A prima facie case of negligence on the part of a gas company is shown by evi- dence that gas leaked from a cap which it had placed on a pipe leading into a house, in such quantities that when a light was brought near it, the gas exploded and set fire to the house. Louisville Gas Co. v. Guelat, 42: 703, 150 S. W. 656, 150 Ky. 583. 463. The doctrine of res ipsa loquitur ob- tains in cape of an explosion in a starch factory, throwing the walls outward upon a person passing upon the adjoining high- way, placing upon the owner of the factory the burden of explaining the cause of the explosion and showing that it was not caused by his negligence. Kearner v. Charles S. Tanner Co. 29: 537, 76 Atl. 833, 31 R. I. 203. Fires. Railroad fires, see supra, 398-403. 464. Setting fire by sparks escaping from a threshing-machine engine raises the pre- sumption of negligence, and casts the bur- den of showing care upon the owner of the engine. Martin v. McCrary, i: 530, 89 S. W. 324, 115 Tenn. 316. Automobiles. Injury to passenger, see supra, 343. 465. No presumption of negligence on the part of the driver of an automobile arises from the mere fact that he runs down and injures a pedestrian on a public street. Millsaps v. Brogdon, 32: 1177, 134 S. W. 632, 97 Ark. 469. (Annotated) Elevators. See also supra, 92, 423. Digest 1-52 L.R.A.(N.S.) 466. The fall of a loaded elevator af- fords prima facie evidence of negligence in. the person charged with the duty of oper- ating it. Edwards v. Manufacturers' Bldg Co. 2: 744, 61 Atl. 646, 27 R. I. 248. 467. A passenger injured by the fall of an elevator may recover upon showing the accident and the attendant circumstanced and conditions, from which negligence will be presumed, without showing the actual negligence which caused the accident, un- less defendant shows that he exercised due care. Orcutt v. Century Bldg. Co. 8: 020 99 S. W. 1062, 201 Mo. 424. Electrical appliances. 468. If a person, at a place where he has- right to be, is injured by contact with an electric light wire, there is a prima facie presumption that the wire \vas not proper- ly insulated, which presumption, unless re- butted, will establish negligence in the own- er of the wire in failing to have a properly insulated wire. Runyan v. Kanawha Water & Light Co. 35: 430, 71 S. E. 259, 68 W. Va. 609. Telegraphs. 469. There is no presumption of negli- gence on the part of a telegraph company from the mere sending of a forged tele- gram. Wells v. Western U. Teleg. Co. 24: 1045, 123 N. W. 371, 144 Iowa, 605. 470. Proof of delivery of an altered tele- gram in an action of tort establishes prima facie negligence on the part of the com- pany. Baily v. Western U. Teleg. Co. 43: 502, 76 Atl. 736, 227 Pa. 522. 471. A prima facie case of negligence in the transmission of a telegram is estab- lished by proof that it was delivered to the telegraph company for transmission, and that the company accepted it, and made a mistake in its transmission. Strong v. Western U. Teleg. Co. 30: 409. 10!) Pac. 910, 18 Idaho, 389. Medical skill. 472. The burden of showing care is upon a surgeon who leaves a sponge inclosed in a wound after the performance of an operation. Davis v. Kerr, 46: 611, 86 Atl. 1007, 239 Pa. 351. 2. Contributory negligence. (See also same heading in Digest L.R.A. 1-10.) Establishing allegation of freedom from, see supra, 93. Sufficiency of evidence, see infra, 2170-2179. Necessity of pleading and proving contribu- tory negligence, see PLEADING, 471. Sufficiency of presumption to take case to jury, see TBIAL, 150. See also supra, 381. 473. The burden of proof to establish contributory negligence is upon the defend- ant. Winona v. Botzet, 23: 204, 169 Fed 321, 94 C. C. A. 563. Of child. 474. A jury is warranted in finding a child between 8 and 9 years of age who, EVIDENCE, II. h, 2. 1109 while crossing a bridge or playing thereon, pushed his arm through an opening in the lattice work of the railing and touched an electric wire, from which he received an in- jury, not guilty of contributory negligence. CHoster v. Toronto Electric Light Co. 3 B. R. C. 786, 38 Can. S. C. 27. Of passenger. 475. A passenger who is injured in get- ting off a moving railroad train has the burden of proving that he was justified in so doing. Hoylman v. Kanawha & M. R. o. 22: 741, 64 S. E. 536, 65 W. Va. 264. 476. A passenger injured while standing on the running board of a street car must show by affirmative evidence that it was not practicable for him to go inside the car, before he can hold the carrier answerable for the injury. Burns v. Johnstown Pass. R. Co. 2: 1191, 62 Atl. 564, 213 Pa. 143. 477. A passenger in a carriage drawn by horses will not be presumed to be guilty f contributory negligence by failing to jump therefrom when discovering that the horsea are frightened by an approaching automo- bile. Mclntyre v. Orner, 4: 1130, 76 N. E. 750, 166 Ind. 57. Of employee. 478. In an action against a master for damages caused by the death of his servant as a result of the master's negligence, the presumptions which arise in favor of the instincts of self-preservation and the known disposition of men to avoid injury and personal harm to themselves constitute a prima facie inference, where there was no eyewitness to the accident, that the servant was at the time in the exercise of ordi- nary care, and was himself free from con- tributory negligence. Adams v. Bunker Hill & S. Min. Co. ii : 844, 89 Pac. 624, 12 Idaho, 637. (Annotated) 479. The agreement of a servant to as- sume the ordinary risks of his employment and the extraordinary risks thereof that are apparent inheres in and is an inextri- cable part of his contract of employment, and when the latter is proved or admitted, the assumption of these risks is proved, and no pleading or proof on the part of the defendant is necessary to establish it. Chi- cago, B. & Q. R. Co. v. Shalstrom, 45: 387, 195 Fed. 725, 115 C. C. A. 515. 480. The burden of proving nonassump- tion of risk cannot be laid upon a servant seeking damages for injuries alleged to have been caused by his master's negligence. Duffey v. Consolidated Block Coal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. At railroad crossing. See also RAILROADS, 229. 481. The unexplained presence of a child non sui juris on a dangerous railroad cross- ing is prima facie evidence of negligence on the part of its parents. Harrington v. Butte, A. & P. R. Co. 16: 395, 95 Pac. 8, 37 Mont. 169. (Annotated) 482. Mistake of judgment will not be in- ferred /is an explanation of the death of one killed while attempting to cross a rail- road track in front of a moving train. Digest 1-52 L.R.A.(N.S.) Wright v. Boston & M. R. 8: 832, 65 Atl. 687, 74 N. H. 128. 483. A person killed at a railroad cross- ing cannot be presumed to have exercised due care if the circumstances were such that he could not have been injured had he done so. Schmidt v. Missouri P. R. Co. 3: 196, 90 S. W. 136, 191 Mo. 215. 484. One killed at a railroad crossing un- der circumstances of which there was no witness cannot be presumed to have been in the exercise of due care in an action to hold the railroad company liable for his death, where the burden of showing due care is on the plaintiff. Shum v. Rutland R. Co. 19: 973, 69 Atl. 945, 81 Vt. 186. 485. One killed at a railroad crossing and seen to have used due care in looking for trains as he approached the crossing until he passed beyond the sight of witness- es, is presumed to have done his duty, and not to have been guilty of contributory neg- ligence at the point of crossing. Hanna v. Philadelphia & R. R. Co. 4: 344, 62 Atl. 643, 213 Pa. 157. (Annotated) 486. The presumption that one who was killed while crossing a railway track looked and listened before attempting to cross it is destroyed where the plaintiff introduces direct and affirmative evidence as to exact- ly what occurred, and where it also appears from the undisputed evidence that, if the deceased had looked and listened before going upon the crossing, he must have seen and heard the train approaching. Carlson v. Chicago & N. W. R. Co. 4: 349, 105 N. W. 555, 96 Minn. 504. 487. In an action to recover damages for the death of a person, caused by a collision with a train of defendant at the intersec- tion of a street and the railroad track, where the uncontradicted evidence conclu- sively shows that when decedent was 50 feet distant from the railroad track a train could have been seen at a distance of 2,500 feet from such crossing, and where the testimony shows that the deceased looked and listened for the train at that point, the law conclusively presumes either that he did not look and listen, or that if he did look and listen, or both, he after- wards heedlessly disregarded the knowledge thus obtained, and negligently went into an obvious danger. Carlson v. Chicago & N. W. R. Co. 4: 349, 105 N. W. 555, DO Minn. 504. On highway. See also PLEADING, 349. 488. In an action against a city for in- jury by an alleged defect in a highway, the burden of proving contributory negligence is on the defendant. Oklahoma City v. Reed, 33: 1083, 87 Pac. 645, 17 Okla. 518. 489. In an action against a street rail- way company to recover damages for its negligence resulting in the death of one injured at a street crossing, the burden of proving contributory negligence rests upon the railway company. Pilmer v. Boise Traction Co. 15: 254, 94 Pac. 432, 14 Idaho, 327. 1110 EVIDENCE, II. i. 490. The sudden swerving of a reason- ably safe and gentle horse in temporary fright at a street car, raises no presump- tion of negligence on the part of the driver so as to bar recovery for injury sustained by being thrown from his wagon on the striking by it of an obstruction on the street when the horse swerved, since such conduct on the part of the horse is usual and ordinary. Rucker v. Huntington, 25: 143, 66 S. E. 91, 66 W. Va. 104. 491. The law presumes that one killed by a car while walking on a street-car track was in the exercise of due care, in the ab- sence of evidence to the contrary. Goff v. St. Louis Transit Co. 9: 244, 98 S. W. 49, 199 Mo. 694. Persons found dead. See also supra, 482-487, 491. 492. Because the natural instinct of self- preservation generally prompts men to acta of care and caution when approaching or in the presence of danger, there is, in the absence of credible evidence of the actual fact in any instance, a presumption of the exercise of due care and caution ; but, like other presumptions of fact arising from the ordinary or usual conduct of men, rather than from what is invariable or uni- versal, this presumption is disputable, and cannot exist where it is incompatible with the conduct of the person to whom it is sought to apply it, which may be shown by the testimony of eyewitnesses to his move- ments, or by evidence of the physical sur- roundings and other conditions at the time. Wabash R. Co. v. De Tar, 4: 352, 141 Fed. 932, 73 C. C. A. 166. 493. The presumption gf due care on the part of one drowned while using an unsafe boat will support a recovery for his death against the one who let the boat to him, and is shown to have been guilty of negligence in so doing. Lincoln v. Detroit & M. R. Co. 51: 710, 146 N. W. 405, 179 Mich. 189. Electric shock. See supra, 474. i. As to official acts. (See also same heading in Digest L.R.A. 1-10.) As to service of process, see infra, 678-680. See also infra, 495. 494. The official survey of government land will be presumed to be correct after the lapse of many years, where its disturb- ance would upset titles and destroy rights of those who have in good faith relied on it. Kneeland v. Korter, i : 745, 82 Pac. 608, 40 Wash. 359. 495. In a trial following the replevying of intoxicating liquors, to determine the right of possession thereof, evidence that, at the commencement of the litigation, the defend- ant held the property as city marshal, un- der a warrant issued by a police court, justifies a presumption, in the absence of anything to indicate the contrary, that he was acting under an ordinance passed in aid Digest 1-52 L.R.A.(N.S.) of a prohibitory law. authorizing the seizure and destruction of liquors kept for sale ia violation of the statute. Hines v. Stahl, 20: 1118, 99 Pac. 273, 79 Kan. 88. 496. Under a statute permitting a mu- nicipality to appeal from an order of a. board of health forbidding its casting sew- age into a stream so as to menace the pub- lic health and permitting the order to stand pending the appeal, the burden is o the city to show that the order was not jus- tified. Miles City v. Board of Health, 25: 589, 102 Pac. 696, 39 Mont. 405. Tax. See also supra, 66. 497. There can be no presumption in favor of an assessment for taxation whicli is ar- rived at, not by an exercise of judgment, but by an arbitrary manipulation of fig- ures. Consolidated Cas Co. v. Baltimore, i: 263, 01 Atl. 532, 101 Md. 541. 498. The court will not assume that as- sessors will violate their statutory duty and assess property at less than its true value. Missouri, K. & T. R. Co. v. Shannon, 10: 681, 100 S. W. 138, 100 Tex. 379. 499. One attacking a tax assessment on the ground that he has not the property as- sessed has the burden of showing that fact, and his assessment cannot be canceled be- cause of absence of proof that he possessed the property. Barhydt v. Cross, 40: 986, 136 N. W. 525, 156 Iowa, 271. 500. A party attacking a certificate of sale for taxes has the burden of showing that there was no valid judgment authorizing the sale. Nind v. Myers, 8: 157, 109 N. W. 335, 15 N. D. 400. Elections. 501. Allegation or proof on the part of the state of the holding of a valid election to determine whether or not intoxicating li- quor shall be sold in a certain precinct is not necessary in a prosecution for illegal sale within that territory, where the stat- ute provides that the order of the county court in declaring the result of an election shall be prima facie evidence that all pro- visions of the law have been complied with in giving notice of and holding such elec-^ tion, and in counting and returning the votes and declaring the result, if such an order is produced at the trial. State v. Carmody, 12: 828, 81 Pac. 446, 50 Or. 1. Legislative acts. See supra, 84. Judicial acts. As to regular convening of court on day ad- ministrator was appointed, see EXECU- TORS AND ADMINISTRATORS, 30. 502. The allowance of a claim against an estate by a court having jurisdiction is prima facie evidence of the debt and of its due presentment against the heirs or dev- isees in a proceeding brought to subject real estate to its payment. Re Jones, 25: 1304, 103 Pac. 772, 80 Kan. 632. 503. A decree of divorce will be presumed, in dividing the property, to have made an allowance to the wife for injury caused by the communication to her of a venereal dis- ease by the husband, so as to bar further EVIDENCE, II. j, k, 1. 1111 right of action therefor. Schultz v. Chris- topher, 38: 780, 118 Pac. 629, 65 Wash. 496. 504. A decree in a divorce suit, awarding the child to one of the parents, is prima facie evidence of the legal right to its cus- tody, but is not conclusive in habeas corpus proceedings, where circumstances and con- ditions, or unfitness of the parent, arising since the date of the decree, is involved. Barlow v. Barlow, 52: 683, 81 S. E. 433, 141 Ga. 535. 505. In an action to establish the govern- ment boundary lines of subdivisions of a section, the court will presume that the only matter determined in a former suit to enjoin interference with a fence was that the complainant did not establish that it was on the true line, where that was the only issue upon which the court was asked to pass, and the evidence fails to show that the judgment was based on any other ground. Matson v. Poncin, 38: 1020, 132 N. W. 970, 152 Iowa, 569. 506. A resort to a suit in habeas corpus in an appellate ceurt, by a witness who has been committed to jail by order ef a trial court for refusing to testify, is a collateral attack upon the order of commitment, and the petitioner assumes the burden of over- coming the presumption that it was valid. McGerray v. Sutter, 24: 165, 89 N. E. 10, 80 Ohio St. 400. 507. In a collateral proceeding, requisite notice to a ward to bind him by acts of his guardian in his behalf will be presumed to have been given. Ross v. Wright County, i : 431, 104 N. W. 506, 128 Iowa, 427. 508. The fact that a prisoner was ad- judged guilty of contempt without notice or hearing will be inferred in the absence of the narration of facts to the contrary in the judgment, notwithstanding the use of terms therein such as, "this court was of the opinion," etc., and, "this court doth find as a fact," etc. Ex parte Clark, 15: 389, 106 S. W. 990, 208 Mo. 121. Jurisdiction. See also HABEAS CORPUS, 13. 509. Failure of a probate court to recite jurisdictional facts in its decree does not raise a presumption that such facts did not exist. Holmes v. Holmes, 30: 920, 111 Pac. 220, 27 Okla, 140. 510. It will be presumed, in case of a court of general jurisdiction, that, when a published notice states that a petition will be filed on a certain date, and an order in response thereto is made a few days later, it was filed on that day; and that the court retained jurisdiction when the order was entered. Mortgage Trust Co. v. Redd, 8: 1215, 88 Pac. 473, 38 Colo. 458. J. From circumstances and course of business. (See also same heading in Digest L.R.A. 1-10.) 511. The presumption f the receipt of a letter properly addressed, stamped, and placed in the mail, may be overcome by tes- Digest 1-52 L.R.A.(N.S.) timony of the addressee that he never re- ceived it. Campbell v. Gowans, 23: 414, 100 Pac. 397, 35 Utah, 268. 512. Proof that "demand was made by mail" implies a prepayment of postage and a deposit of the demand in a United States postoffice; but that the letter was properly addressed to the addressee at the place where he resides or receives his mail is not thereby implied, and proof of that fact must be had before the receipt of the letter by the addressee will be inferred. Feder Sil- berberg Co. v. McNeil, 49: 458, 133 Pac. 975, 18 N. M. 44. (Annotated) 513. When, after the lapse of thirty years or more, the record of proceedings in the exercise of the power of eminent domain is shown to be such that they would have been valid under any circumstances, and where both parties have treated them as valid, such circumstances will, if necessary, and in the absence of evidence to the coa- trary, be presumed to have existed. Rob- erts v. Sioux City & P. R. Co. 2: 272, 102 N. W. 60, 73 Neb. 8. fc. As to rights, contracts, instruments, and property. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Presumption of intent to abandon logs, see ABANDONMENT, 6. Presumption of acquiescence in placing of boundary fence, see BOUNDABIES, 8. Presumption that frame building placed up- on land of another with latter's consent remains property of party annexing it, see FIXTURES, 310. Presumption as to license, see LICENSE, 12. See also supra, 110, 181. 514. An assignor for creditors has the bur- den of showing that he is entitled to inter- est on funds which the assignee kept on de- posit in the bank, and the amount of it, at least where the assignor was insolvent, so that the trust was a creditors' trust, and they did not object to such proceeding. Whitman v. Mclntyre, 19: 682, 85 N. E. 426, 199 Mass. 436. 515. The burden of showing a license from a former owner is upon one sued for main- taining a portion of the foundation wall of his building, which was projected into the soil of the adjoining property owner, to enable him to avoid liability for the con- tinuing trespass upon that ground. Milton v. Puffer, 32: 1010, 93 N. E. 634, 207 Mass. 416. 516. Alleging in a bill to enjoin attempted use of a right of way over property of the complainant, that defendant has no such right, does not relieve defendant from the burden ef establishing hia right. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. 517. To maintain an action to recover from a building and loan association the amount of stock alleged to have been with- 1112 EVIDENCE, II. k, 1. drawn by a member, he has the burden of establishing his right to withdraw by com- pliance with the rules of the association. Hoyt v. Harbor & Suburban Bldg. & Sav. Asso. 49: 1129, 90 N. E. 349, 197 N. Y. 113. 518. A corporation organized to supply electricity for heat, light, and power pur- poses to the public, applying, according to the requirements of the statute, to the public service commission for the privilege of issuing bonds to aid in the construc- tion and maintenance of its plant, which alleges it has the right to place its wires in the streets of a municipality, must, where it has not obtained permission to do so from the commission, establish the right by proof. People ex rel. New York Edi- son Co. v. Willcox, 45: 629, 100 N. E. 705, 207 N. Y. 86. 519. There is no room for any inference that an island was not in existence at the time of the government survey of 1868 be- cause the field notes and plat make no men- tion of it, where such island has an area of nearly 140 acres, has well-defined banks ris- ing from 3 to 5 feet above high water, is largely covered with a growth of wild grass, sage brush, and small timber, bears un- doubted evidence of permanency, and con- cededly was in its present condition only twelve years after the survey. Scott v. Lattig, 44: 107, 33 Sup. Ct. Rep. 242, 227 U. S. 229, 57 L. ed. 490. Rights in highway. 520. The public character of a road, street, or alley is established prima facie by proving its use as such by the public, and recognition of it as such by the county court, or by the eity or town, as the case may be. Campbell v. Elkins, 2: 159, 52 S. E. 220, 58 W. Va. 308. 521. A telegraph company which has maintained poles on a public highway for more than sixty years is presumed to have acquired the right to do so from the abut- ting owner. Western U. Teleg. Co. v. Pol- hemus, 29: 465, 178 Fed. 904, 102 C. C. A. 105. Contracts generally. Burden of proving ratification of voidable contract, see supra, 187. Presumption as to continuance of contract, see supra, 316. Presumption that order for goods taken by commercial traveler is subject to ap- proval by house which he represents, see CONTRACTS, 190. As to unreasonableness of withholding archi- tect's certificate, see CONTRACTS, 675. Burden of proving contract valid under stat- ute of frauds, see PLEADING, 531. Presumption as to acceptance for order for goods, see SALE, 4. See also infra, 644. 522. The law presumes the validity of a contract by which stocks are to be pur chased and carried by a broker on margin, and the customer has the burden of show- ing that it was a mere cover for a gambling transaction. Richter v. Poe, 22: 174, 71 Atl. 420, 109 Md. 20. 523. One seeking to defeat a lien to the Digest 1-52 L.R.A.(N.S.) amount of the unpaid purchase price for a supply of electricity furnished for use in a mine according to contract, under a stat- ute allowing such lien, has the burden of showing that the quantity called for by the contract was not used. Grants Pass Bkg. & T. Co. v. Enterprise Min. Co. 34: 395, 113 Pac. 859, 58 Or. 174. 524. The burden is on a master who is sought to be held liable for the death of a minor employee, because of his violation of an agreement with the parent not to per- mit the child to go about machinery, to show a waiver by the parent of such agree- ment, if he relies upon it as a defense. Haynie v. North Carolina Electric Power Co. 37: 580, 73 S. E. 198, 157 N. C. 503. Carrier's contracts. 525. One who sues the terminal carrier for refusal to honor a limited ticket be- cause it had expired has the burden of show- ing that the time limited upon the ticket was so short as to be unreasonable, if he relies on such defense. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. 526. Contract liability by a carrier to carry and deliver goods beyond its own line will not be inferred from loose and doubt- ful expressions, or the taking of a through fare on receipt of the goods. Roy v. Chesa- peake & O. R. Co. 31: i, 57 S. E. 39, 61 W. Va. 616. 527. A carrier seeking to defeat liability for breach of a carriage contract, because it violates the interstate commerce law, has the burden of showing such violation. Alt- schuler v. Atchison, T. t S. F. R. Co. 49: 491, 144 N. W. 294, 155 Wis. 146. 528. In an action where there is a plea of a special contract in defense, limiting or conditioning the carrier's liability, the bur- den is upon the carrier not only to show a valid special contract, but also to allege and prove the facts and circumstances showing the stipulations to be reasonable. Houtz v. Union P. R. Co. 17: 628, 93 Pac. 439, 33 Utah, 175. 529. A carrier which prevents a perform- ance by an orchestra because of failure to transport its instruments in time cannot, in fixing the damages for which it is liable, deduct expenses from the receipts to which the contract of the orchestra entitles it, without showing that they were to be borne by it. Altschuler v. Atchison, T. & S. F. R. Co. 49: 491, 144 N. W. 294, 155 Wis. 146. Contracts of employment. 530. The burden of proving that the em- ployment of a traveling salesman upon an agreement for monthly salary and expenses, and the further compensation of a commis- sion in excess of salary and expenses on goods sold by him, the excess to be ascer- tained and paid on settlement made at the end of each year, is an employment for a year, rests upon the party who seeks to establish that the contract covered this pe- riod. Reasnor v. Watts, Ritter, & Co. 51: 629, 80 S. E. 839, 73 W. Va. 342. 531. The employment of a traveling sales- man upon an agreement for a monthly EVIDENCE, II. k, 1. 1113 salary and expenses, and a further compen- sation of a certain commission in excess of salary and expenses on goods sold by him, the excess to be ascertained and paid on settlements made at the end of each year, is presumed to be a hiring at will, which either party may at any time terminate at his pleasure without liability for breach of contract. Reasnor v. Watts, Hitter, & Co. 51: 629, 80 S. E. 839, 73 W. Va. 342. ( Annotated ) Contracts of sale. See also infra, 568. 532. An action for goods sold and de- livered is not sustained by proof of the con- tract alone without anything to show de- livery. Price v. Wiesner, 31: 927, 111 Pac. 439, "83 Kan. 343. 533. Where a written contract for the sale of goods specifies no time for delivery, the implication arises that delivery will be made within a reasonable time. Camer- on Coal & M. Co. v. Block, 31: 618, 110 Pac. 720, 26 Okla. 615. 534. The burden of proof in an action to recover the purchase price of machinery sold, to be paid for provided it works to the satisfaction of the buyer, to show ac- ceptance, or that refusal to accept was in bad faith, is on the plaintiff; and defend- ant is not bound to show that the ma- chinery was not satisfactory, or that he acted in good faith in reaching that conclu- sion. Inman Mfg. Co. v. American Cereal Co. 8: 1140, 110 N. W. 287, 133 Iowa, 71. 535. The retention of title to chattels which have been sold and delivered, to se- cure payment of the purchase price, for which the note of the purchaser has been given, raises a presumption that an agree- ment that the purchase price has been paid thereby is subject to the condition that the note be subsequently paid. A. Leschen & Sons Rope Co. v. Mayflower Gold Min. & R. Co. 35: i, 173 Fed. 855, 97 C. C. A. 465. 536. In a suit for a balance due for goods under the terms of a written contract, where the answer admits the execution of the con- tract and the receipt of the goods at the price claimed, and defends on the grounds that the contract is illegal and unenforce- able, and was procured through fraud, the burden of proof is on the defendant. J. W. Ripy & Son v. Art Wall Paper Mills, 51: 33, 136 Pac. 1080, 41 Okla. 20. Implied contracts. 537. A foster child cannot recover com- pensation from the estate of her deceased foster father for services rendered him dur- ing his last illness, in the absence of an express promise to pay therefor, or the presence of such circumstances as will be equivalent to such a promise, since there is a presumption that such services were gratuitous. Re Daste, 29: 297, 51 So. 677, 125 La. 657. Sealed instruments generally. Seal as prima facie evidence of considera- tion, see SEAL, 4. 538. The presumption arising from a seal, that the consideration named in an execu- tory contract was actually paid, cannot be in the life of the wife. The interest is pre- Digest 1-52 L.R.A.(N.S.) disputed as between the parties, either at law or in equity. Watkins v. Robertson, 5: 1194, 54 S. E. 33, 105 Va. 269. 539. The prima facie evidence of execu- tion by proper authority, which the presence of the corporate seal upon a contract alleged to be that of the corporation constitutes, may be conclusively rebutted. Gause v. Commonwealth Trust Co. 24: 967, 89 N. E 476, 196 N. Y. 134. Bonds; bona fide purchaser of. Presumption of payment of, see infra, 637. Presumption as to amount of damage in suit on bond, see infra, 656. 540. The holder of negotiable county aid bonds lawfully issued is, by presumption, clothed with the character of a bona fide holder for value. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A. 537. 541. Railroad aid bonds issued by a cor- poration, which contain no recitals as to compliance with the conditions upon which they are to be issued, are entitled to the same presumption, in the hands of bona fide holders for value, as to compliance with such conditions, where proof is made that the proceedings were in fact regular, as though the recitals had been incorporated in them. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A. 537. 542. The surety on the bond of an insur- ance agent must plead and prove the failure of the company to comply with its under- taking to exercise due and customary super- vision over the agent, and notify the surety immediately of any default on the part of the agent, in order to make such failure available to defeat liability on the bond. United American F. Ins. Co. v. American Bonding Co. 40: 661, 131 N. W. 994, 146 Wis. 573. 543. Failure of a materialman to give no- tice of a claim to a surety on the bond of the building contractor, in accordance with its terms, is not a matter of defense to an action upon the bond, but he has the bur- den of snowing compliance to make out his cause of action. Knight & Jillson Co. v. Castle, 27: 573, 87 N. E. 976, 172 Ind. 97. Insurance. Burden of proving exception, see supra, 113, 114. As to alteration of, see infra, 602. Prejudicial instruction as to, see APPEAL AND ERROR, 1385. That foreign insurance company has com- plied with law, see INSURANCE, 15, 16. Of waiver of arbitration as provided for in insurance policy, see INSURANCE, 654. Burden of proving amount realized from sale of dSbris of insured property, see INSURANCE, 869. See also supra, 113, 114, 199 ; PLEADING, 250. 544. A husband has as such a presumable interest in his wife's life; and, therefore, it is not necessary in order to establish the validity of a policy of insurance effected by a husband upon the life of his wife to give affirmative evidence as to the existence and extent of a pecuniary interest of the husband 1114 EVIDENCE, II. k, 1. siimed to the extent of the arrount insured by the policy. Griffiths v. Fleming, 2 B. R. C. 391, [190!)] 1 K. B. 805. Also Reported in 78 L. J. K. B. N. S. 567, 100 L T. N. S. 765, 25 Times L. R. 377, 53 Sol. Jo. 340. ( Annotated ) 545. The holder of a benefit certificate who relies for recovery on the fact that the member, who had forfeited his certificate for nonpayment of dues, had been rein- stated, for which reinstatement he was re- quired to present a statutory certificate of health, has the burden of showing that the certificate was satisfactory to the officer whose duty was to pass upon it. Kennedy v. Grand Fraternity, 25: 78, 92 Pac. 971, 36 Mont. 325. 546. In an action at law upon a mutual benefit certificate which entitled claimant to an amount equal to one full assessment upon all members in good standing in the fraternity, not to exceed a certain amount, the insurer has the burden of showing that an assessment would not produce the amount named, to defeat a recovery of that amount. Krogh v. Modern Brotherhood of America, 45: 404, 141 N. W. 276, 153 Wis. 397. 547. A provision in a mutual benefit cer- tificate that the amount should be paid within a certain time after satisfactory proof of the validity of the claim does not require proof of the validity of the certifi- cate. Lyon v. United Moderns, 4: 247, 83 Pac. 804, 148 Cal. 470. 548. The facts that a life insurance pol- icy contains no limitation of the time in which an action may he brought thereon after a loss has ensued, and that such an action may be brought at any time before it is barred by a statute of limitations, do not furnish a presumption of irreparable loss so as to entitle the insurers to maintain an action to cancel the policy. Bankers Reserve Life Co. v. Omberson, 48: 265, 143 N. W. 735, 123 Minn. 285. Presumption and burden of proof in action by insurer to cancel policy, see EVI- DENCE, 548. 549. In an action on a policy of fire in- surance providing that, in the event of a disagreement between the parties to the contract as to the amount of loss, the same shall be ascertained by appraisers, and that the loss shall not become payable until sixty days after the notice, ascertainment, and proof of loss required in the policy have been furnished to the insurer, the burden lies upon the insured to show that he has on his part performed or offered to perform the condition as to the appraisal. Graham v. German American Ins. Co. 15: 1055, 79 N. E. 930, 75 Ohio St. 374. Execution of contract. 550. The finding of an accident policy fully signed, and dated June 30, in the safe with other papers of the insured after his death on August 24 of the same year, cre- ates a prima facie presumption that the policy contract was fully executed, although the premium had not been paid. Gardner Digest 1-52 L,R.A.(N.S.) v. United Surety Co. 26: 1004, 12;i N. W. 264, 110 Minn. 291. 551. An insurance company does not, by delay in passing upon an application pre- sented by an uninsurable risk, assume the obligation of an insurer upon the theory that its conduct prevents the securing of insurance elsewhere and creates a legal pre- sumption of acceptance. Northwestern Mut. L. Ins. Co. v. Neafus, 36: 1211, 140 S. W. 1026, 145 Ky. 563. (Annotated) Cause of injury or death. As to suicide of insured, see supra, 157-165. 552. Injuries to one thrown and injured while attempting to cross a train blocking a street crossing will not be presumed to have been self-inflicted, or to be otherwise than accidental, in an action for compen- sation under an accident insurance policy. Kirkpatrick v. ^tna L. Ins. Co. 22: 1255, 117 N. W. 1111, 141 Iowa, 74. Cause of loss. 553. An insurer has the burden of plead- ing and proving that a loss, or some portion thereof, of the insured property, was caused by an explosion for which, under the terms of the policy, it is not liable. German American Ins. Co. v. Hyman, 16: 77, 94 Pac. 27, 42 Colo. 156. 554. Where a fire is caused by an explo- sion which precedes it, one claiming to hold an insurer liable for the loss has the burden of showing what portion of the loss was due to the fire, where the policy exempts the insurer from liability for loss by ex- plosion unless fire ensues, and in that event makes it liable only for the loss by fire. German American Ins. Co. v. Hyman, 16: 77, 94 Pac. 27, 42 Colo. 156. 555. In order that statements of an ap- plicant for a fraternal benefit certificate shall constitute a defense to an action upon the certificate of membership or policy of insurance issued to the applicant, it is in- cumbent upon the association to plead and prove that the answers were made as writ- ten in the application, that they were false in some particular material to the insur- ance risk, and that the association relied and acted upon those answers. Goff v. Supreme Lodge Royal Achates, 37: 1191, 134 N. W. 239, 90 Neb. 578. Falsity of warranties or repre- sentations. 556. An insurance company which resists payment of the amount due under an in- surance policy because of alleged false an- swers in the application has the burden of proving the answers and their falsity, and to do so should introduce the application in evidence. National Annuity Asso. v. Mc- Call, 48: 418, 146 S. W. 125/103 Ark. 201. Lease. Presumption of agreement for second re- newal of lease, see LANDLORD AND TEN- ANT, 53. 557. The lessee under a written lease for one year who, by holding over, becomes a tenant for another year, must, when sued for the rent, in order to avail himself of the alleged right to terminate his tenancy at any time, under conditions expressed in EVIDENCE, II. k, 1. 1115 the lease, allege and prove the existence of the conditions. Kuhlman v. Wm. J. Lemp Erew. Co. 29: 174, 126 N. W. 1083, 87 Neb. 72. Deeds. As to merger of deed in mortgage, see infra, 570. As to alteration of, see infra, 605, 606. Burden of proof in action to set aside, see infra, 647. See also infra, 619. 558. A conveyance of land by husband to wife will not be presumed to be a satis- faction of his antenuptial contract to pay her an annuity during life. Savage v. Sav- age, 3: 923, 141 Fed. 346, 72 C. C. A. 494. 559. It will be presumed, in the absence of proof to the contrary, that a conveyance of real estate, executed by a mother to her infant child, which was duly recorded and thereafter kept by the grantor among her papers, was placed on record by her procure- ment or consent. Pentico v. Hays, 9: 224, 88 Pac. 738, 75 Kan. 76. 560. One suing in equity to remove a cloud from his title must, where his patent or deed includes within the exterior bounds of the lands thereby conveyed lands which are excepted by such grant or deed from its operation, show that the land he claims against the defendant is not the land so ex- cepted. Logan v. Ward, 5: 156, 52 S. E. 398, 58 W. Va. 366. (Annotated) 561. A deed of land sold by a commis- sioner as under a decree is prima facie evidence of the authority of the commission- er to convey, and, if duly recorded, after ten years from its recordation is prima facie evidence that the title of all persons which the deed professes to convey did in fact pass by such deed. Chapter 76, Acts 1907 (Code Supp. 1909, chap. 132, 8al- 8a4). McGinnis v. Caldwell, 43: 630, 76 S. E. 834, 71 W. Va. 375. 562. The existence of the record of a deed for more than fifty years, together with the occupation of the land by the grantee for a time subsequently to the date of the record, without anything to show that he claimed under the deed, is not sufficient to raise a presumption of the existence of a duly executed and delivered original. Mc- Clerry v. Lewis, 19: 438, 70 Atl. 540, 104 Me. 33. Delivery. See also supra, 562. 563. Delivery and acceptance of a deed executed by a mother to her infant child, will be presumed where it is duly acknowl- edged and recorded, and the conveyance is beneficial to the child. Pentico v. Hays, 9: 224, 88 Pac. 738, 75 Kan. 76. (Annotated) Acceptance. 564. The fact that a grantee has an er- roneous impression as to the character of the deed will not deprive him of the pre- sumption of acceptance if he asserts his rights under it as soon as informed of their true nature. Matheson v. Matheson, 18: 1167, 117 N. W. 755, 139 Iowa, 511. 565. Acceptance of a deed will be pre- Digest 1-52 L.R.A.(N.S.) sumed until the contrary is shown, where it purports to convey valuable property, with no burden to be assumed by the gran- tee, and is in the manual possession of the grantee, or a third person for him. Mathe- son v. Matheson, 18: 1167, 117 N. W. 755, 139 Iowa, 511. 566. When a deed of conveyance duly de- livered by the grantor has remained for a long period of years in the possession of the grantee, its acceptance, nothing appearing to the contrary, will be inferred, and a like inference arises where the deed was for the benefit of the grantee. Lake v. Weaver (N. J. Err. & App.) 34: 495, 74 Atl. 451, 76 N. J. Eq. 280. Consideration. 567. A deed of land from a father to his daughter's husband, which recites no con- sideration, is prima facie an advancement to that daughter; but such presumption is rebuttable by proof that adequate consid- eration was paid to the grantor. White v. White, 24: 1279, 66 S. E. 2, 66 W. Va. 79. Mortgage; chattel mortgage. Presumption as to undue influence, see su- pra, 292. 568. A vendee of chattels who has been deprived of possession of the property un- der a writ of replevin issued in favor of a mortgagee, and who, prior to a final adjudi- cation of the mortgagee's claim, brings ac- tion against his vendor upon the latter's implied warranty of title, has the burden of proving a valid pre-existing mortgage in favor of the mortgagee before he can re- cover on the warranty. Clevenger v. Lewis, 16: 410, 95 Pac. 230, 20 Okla. 837. 569. In an action between the holder of a chattel mortgage on domestic animals and their increase, and a creditor of the mort- gagor, involving the right to the possession of the increase, the burden is upon the mort- gagee to establish that the increase were conceived before the mortgage was given, and were, therefore, in actual or potential existence. Holt v. Lucas, 17: 203, 96 Pac. 30, 77 Kan. 710. (Annotated) Merger. 570. One taking a conveyance of mort- gaged property in satisfaction of the mort- gage debt has the burden of showing that no merger of the mortgage into the fee was intended. Gainey v. Anderson, 31: 323, 68 S. E. 888, 87 S. C. 47. Wills. As to testamentary capacity, see supra, 218- 220. As to testator's intent, see supra, 232-234. Undue influence, see supra, 286-291. As to alteration of, see infra, 607. 571. A presumption arises that one who presents a holographic will to another for attestation had signed it before doing so, if the paper was so folded as to conceal the place where the signature was affixed. Dougherty v. Crandall, 38: 161, 134 N. W. 24, 168 Mich. 281. 572. In an action to contest a will, a pro- bate of the instrument is prima facie evi- dence of its due attestation, execution, and 1116 EVIDENCE, II. k, 1. validity. Scott v. Thrall, 17: 184, 95 Pac. 563. 77 Kan. 688. 573. To probate a will in solemn form, the burden is on the propoaent to pro.ve the due execution of the instrument and the testamentary capacity of the testator at the time of its execution. Wells v. Thomp- son, 47: 722, 78 S. E. 823, 140 Ga. 119. 574. On an application to probate an al- leged copy of a will made nineteen years after the original will was executed, it is incumbent upon the proponent to show what became of the original will, in whose custody it was placed, account for its non- production, and produce some competent proof of its contents, in order to author- ize the county court to probate such a copy. Re Francis, 50: 861, 144 N. W. 789, 94 Neb. 742. ( Annotated ) 575. Proof of the signature of testator is not necessary to sustain the probate of a will where the witnesses are dead, if the statute provides that, if living, they might have testified that testator acknowledged the will, although the statute also pro- vides that in case of the death of the wit- nesses the court may admit secondary evi- dence, since the recitals of the attestation clause are sufficient to show that the re- quirements of the statute necessary to the valid execution of the will have been com- plied with. Elston v. Montgomery, 26: 420, 90 N. E. 3, 242 111. 348. 576. In the absence of proof of a reason for testatrix not signing the will, there is no presumption that it did not exist which will overcome the attestation clause, which shows that, not having signed the will, she must have acknowledged a signature by another as her act and deed. Elston v. Montgomery, 26: 420, 90 N. E. 3, 242 111. 348. 577. Where there is an attestation clause to an instrument offered for probate as a will, reciting all the facts essential to its due execution as a will, and it is shown that the alleged testator and those whose names appear thereon as witnesses actually affixed their signatures to the paper, a pre- sumption arises that it was executed in the manner prescribed by law for the execution of wills. Wells v. Thompson, 47: 722, 78 S. E. 823, 140 Ga. 119. Tax certificate. 578. Under N. D. Laws 1897, p. 85, chap. 67, 15 (Rev. Codes 1899, 1345), a cer- tificate of sale for taxes is prima facie evi- dence of a valid sale, without proof of a precedent judgment. Nind v. Myers, 8: 157, 109 N. W. 335, 15 N. D. 400. 579. One claiming title under a tax sale certificate issued pursuant to N. D. Laws 1897, chap. 67, p. 76, need not prove that no redemption has been made. Nind v. Myers, 8: 157, 109 N. W. 335, 15 N. D. 400. Negotiable paper. Burden of proving circumstances attending alteration of, see supra, 111. As to good faith of transferee, see supra, 279-281. Digest 1-52 L.R.A.(N.S.) Complaining for first time on appeal of failure to prove presentment and no- tice in action against indorser, see AP- PEAL AND ERROR, 772. See also supra, 78, 198, 535: infra, 670. 580. It will be presumed that a promis- sory note upon which action is brought is for the personal benefit of the payee named in it, -where there is nothing in its wording or in the evidence to indicate that any other person has any interest in the note. McGuffiu v. Coyle, 6: 524, 85 Tac. 954, 16 Okla. 048. 581. In the absence of proof that a note executed by a man and wife \vas for neces- saries ordered by the wife, the presumption is that it was for the husband's debt. Gil- bert v. Brown, 7: 1053, 97 S. W. 40, 123 Ky. 703. 582. A waiver of presentment and notice will not be inferred from doubtful acts or language on the part of the indorser of a promissory note, where he is entitled there- to by statute. Worley v. Johnson, 33: 639, 53 So. 543, 60 Fla. 294. 583. The holder in good faith of a forged check, who has received its amount from the drawee, has the burden of showing that he has been misled or prejudiced by the draw- ee's mistake in making payment, where he claims the right to retain the money for that reason. First Nat. Bank v. Bank of Wyndmere, 10: 49, 108 N. W. 546, 15 N. D. 299. 584. Where one who had been the general manager of a corporation sells his stock under an agreement that a note, given in part payment therefor, shall be subject to a proportionate deduction on account of any just claims existing against the corporation, not shown by its books, in an action upon the note, proof by the defendant that such claims were made against the corporation, and that a new manager paid them after a full investigation, makes out a prima facie case for a deduction, and casts upon the plaintiff the burden of showing that the claims so made and paid were not just. Richolson v. Ferguson, 40: 855, 124 Pac. 360, 87 Kan. 411. 585. The taking of a new note payable at a future date for the same debt evidenced by a past due note, which is not surren- dered, creates a presumption that action on the old note is to be suspended until the maturity of the new, in the absence of any- thing to indicate a contrary intention. First Nat. Bank v. Livermore, 47: 274, 133 Pac. 734, 90 Kan. 395. As to time and place of execution. 586. The presumption that a note was executed on the day of its date arises in a prosecution for forging it, in the absence of evidence to the contrary. People v. Camp- bell, 34: 58, 125 N. W. 42, 160 Mich. 108. 587. A note is presumed to be made and 1 indorsed in the state where it is dated and payable. Chemical Nat. Bank v. Kellogg, 2: 299, 75 N. E. 1103, 183 N. Y. 92. As to consideration. Necessity of proving consideration, see PLEADING, 244. EVIDENCE, II. k, 1. 1117 588. To defeat recovery on a note in writ- ing reciting a consideration, on the ground of absence of consideration, the defendant has the burden of showing such absence. Brokaw v. McElroy, 50: 835, 143 N. W. 1087, 162 Iowa, 288. 589. Upon the introduction, by the maker of a promissory note, of evidence tending to 'show absence of consideration, the bur- den of showing consideration by a prepon- derance of the evidence is upon the one seeking to enforce it. Best v. Rocky Moun- tain Nat. Bank, 7: 1035, 85 Pac. 1124, 37 Colo. 149. As to good faith of purchase. 590. To entitle an indorsee of a promis- sory note given for the purchase price of merchandise sold under a fraudulent mis- representation as to the character of the property, to enforce the same against the maker, he must show that he acquired the note before maturity in good faith for value. Schultheis v. Sellers, 22: 1210, 72 Atl. 887, 223 Pa. 513. 591. The transferee of warehouse receipts for merchandise which, under the statute, are negotiable to the same extent as promis- sory notes, has the burden of showing that he obtained them bona fide, where his as- signor, when insolvent, secured the goods on credit and deposited them in the ware- house for the purpose of transferring the receipts and defrauding the vendors of their property. National Bank of Commerce v. Chatfield, W. & Co. 10: 801, 101 S. W. 765, 118 Tenn. 481. (Annotated) "Water rights. Presumption as to title to tide water bay, see infra, 620. See also infra, 669, 671. 592. One seeking to appropriate the flood- water of a stream as against the right of owners of water-bearing strata connected with the stream has the burden of showing that there is a surplus after the strata are supplied. Miller v. Bay Cities Water Co. 27: 772, 107 Pac. 115, 157 Cal. 256. 593. The fact that water which had been brought onto property for purposes of ir- rigation had been devoted to other uses for a period of eleven years, and had been made the subject of conveyance, rebuts a presump- tion of abandonment. Miller v. Wheeler, 23: 1065, 103 Pac. 641, 54 Wash. 429. 594. The burden of showing abandonment of water which has been brought on land for the purpose of irrigation, which rests upon one claiming a right thereto resting upon the fact of abandonment, is not shifted by the fact that the surplus was allowed to run into a natural water course. Miller v. Wheeler, 23: 1065, 103 Pac. 641, 54 Wash. 429. Capital stock; subscription to stock. 595. A holder of stock in a building and loan association who claims priority in pay- ment because of acceptance of a notice of withdrawal of his stock before the corpo ration became insolvent has the burden of showing that his right became fixed before th insolvency occurred. Pacific Coast Sav. Digest 1-52 L.R.A.(N.S.) Soc. v. Sturdevant, 49: 1142, 133 Pac. 485, 165 Cal. 687. 596. The fact that several times the length of time required by the statute of limitations to bar an obligation on a con- tract to subscribe to the stock of a railroad company has elapsed since the contract was made, without any step being taken to per- fect the subscription, may be considered in support of the presumption raised by other facts in the case, that the obligation to sub- scribe for the stock has been terminated. Quinlan v. Green County, 19: 849, 157 Fed. 33, 84 C. C. A. 537. Gift. Presumption that money of wife invested in land in husband's name is a gift, see TBTJSTS, 62. See also supra, 283, 284; infra, 1921; TBUSTS, 41, 60. 597. The rule with respect to the pre- sumption of validity and the burden of proof in cases of wills and testaments does not apply to cases of gifts or contracts inter vivos. Smith v. Smith, 35: 944, 114 Pac. 245, 84 Kan. 242. 598. One to whom delivery is made of a check on a bank, intended as a gift causa mortis to a third person, is presumed, in the absence of a contrary showing, to be the agent or trustee of the donee. Varley v. Sims, 8: 828, 111 N. W. 269, 100 Minn. 331. 599. Where real estate is purchased in the wife's name, from funds accumulated out of profits of a saloon business conduct- ed by her under a license in the name of the husband, and from boarders and the earnings of minor children, the evidence must be definite and convincing to rebut the presumption that it was intended as a gift to her. Beck v. Beck (N. J. Err. & App.) 35: 712, 80 Atl. 550, 78 N. J. Eq. 544. Acceptance of. 600. Acceptance of a gift causa mortis which is beneficial to the donee and im- poses no burdens upon him, will be presumed as matter of law. Varley v. Sims, 8: 828, 111 N. W. 269, 100 Minn. 331. Trust. Presumption as to trust funds in bank, see BANKS, 214. Presumption that trustee purchasing title makes purchase in aid of trust, see TRUSTS, 116. Alteration of instruments. Instructions as to, see TRIAL, 942. See also supra, 111, 229. 601. The presumption, where a contract prepared by the use of a typewriter ap- pears to have been changed after the first impression is made, is that the change was made before execution and delivery. Strom- berg-Carlson Teleph. Mfg. Co. v. Barber, 18: 680, 116 N. W. 157, 81 Neb. 517. (Annotated) 602. That entries in an application for in- surance which make it correspond with the policy are upon the margin, and written longitudinally, does not furnish presump- tive evidence that the Application was changed after it was signed. Waters T. Se- 1118 EVIDENCE, II. k, 2. curity Life & Annuity Co. 13: 805, 57 S. E. 437, 144 N. C. 663. 603. The burden of explaining alterations in bills of lading on the faith of which one has advanced money is on him, and not on the railroad company, where the agent whose name is signed to them testifies that the alterations were made after they had left his hands. Franklin Trust Co. v. Philadel- phia, B. & W. R. Co. 22: 828, 70 Atl. 949, 222 Pa. 96. Negotiable instruments. 604. An indorsee of a note containing an alteration in its date cannot rely upon the presumption that the alteration was made before its execution, to establish the validi- ty of the instrument, if the alteration was in fact made under circumstances which avoid it. Barton Sav. Bank & T. Co. v. Stephenson, 51 : 346, 89 Atl. 639, 87 Vt. 433. Deeds. 605. One seeking to avoid the effect of a deed because of an alleged alteration has the burden of showing that it was made after delivery. Tharp v. Jamison, 39: 100, 134 N. W. 583, 154 Iowa, 77. (Annotated) 606. One assailing a deed showing an era- sure or interlineation has the burden of proving that it was made after the time of execution. Wicker v. Jones, 40: 69, 74 S. E. 801, 159 N. C. 102. "Wills. 607. In an action to contest a will on the ground of alleged alterations', the burden of proof to explain an erasure in the instru- ment is not upon the defendant in the first instance, but it is incumbent upon the plain- tiff to overcome the evidence afforded by the fact of the probate of the instrument, and to show its invalidity by a preponderance of all the evidence. Scott v. Thrall, 17: 184, 95 Pac. 563, 77 Kan. 688. (Annotated) 2, Ownership or possession. (See also same heading in Digest L.R.A. 1-10.) Presumption of continuance of possession, see supra, 317. Sufficiency of evidence as to, see infra, XII. e. As to nature of possession of railroad right of way, see ADVERSE POSSESSION, 45. Presumption as to ownership of copyright of article in encyclopedia, see COPY- RIGHT, 8. Prima facie evidence of title of grantor of plaintiff in ejectment, see EJECTMENT, 7. Sufficiency of allegations to raise presump- tion of present ownership, see PLEAD- ING, 222. Husband and -wife. That funds for paying taxes on separate property belonged to community, see HUSBAND AND WIFE, 82. See also supra, 599. 608. Where husband and wife accumulate property by their joint efforts, and invest it in the name of one of them, there is no presumption arising from their station in Digest 1-52 L.R.A.(N.S.) life that they intended it to be a common hoard, in which both should bo equally in- terested. Beck v. Beck (N. J. Err. & A PP-) 35:7", 80 Atl. 550, 78 N. J. Eq. 544. (Annotated) 609. The presumption that money in bank and notes and other securities owned by a married man at the time of his death were community property is overcome ' by proof that they were the proceeds of land owned by him at the time of his marriage, and of the crops raised thereon. Re Pep- per, 31: 1092, 112 Pac. 62, 158 Cal. 619. 610. An existing original judgment cred- itor of a married woman is not an encum- brancer in good faith for a valuable con- sideration, within the meaning of a statute rendering conclusive, in favor of such en- cumbrancer, the presumption that real es- tate title to which is vested in her is her separate property. Fulkerson v. Stiles, 26: 181, 105 Pac. 966, 156 Cal. 703. 611. A loan by a married woman to a firm of which her husband is a member, in the absence of any evidence as to its source further than that the loan was made, will be presumed to have come from her sepa- rate estate, where the statute provides that a woman's property shall, upon her mar- riage, remain her separate estate, and that she may receive property in the same man- ner as if she were sole. James v. Gray, i: 321, 131 Fed. 401, 65 C. C. A. 385. Vehicles. 612. Evidence that the wagon which ran over the plaintiff was specifically marked with the defendant's name is sufficient to justify the inference that the defendant was the owner. Dennery v. Great Atlantic & Pacific Tea Co. (N. J. Err. App.) 39: 574, 81 Atl. 861, 82 N. J. L. 517. 613. That the manufacturer's license number was on an automobile when it in- jured a person on the highway, after it had been paid for by a purchaser and taken from the factory, does not show that the machine belonged to the manufacturer, if it was his custom to permit purchasers to use the number until they could procure one of their own. Janik v. Ford Motor Co. 52: 294, 147 N. W, 510, 180 Mich. 557. Bank deposit made as "agent." 614. Money on deposit in a ba.nk in the name of a certain person, "agent," is prhna facie his property, and therefore subject to garnishment for his debt, to defeat which he has the burden of showing that it in fact belonged to an undisclosed principal. Si 1s- bee State Bank v. French Market Grocery Co. 34: 1207, 132 S. W. 465, 103 Tex. 629. (Annotated) Real property generally. 615. Unimproved and unoccupied land is deemed to be in possession of the holder of the legal title. Butler v. Smith, 28: 436, 120 N. W. 1106, 84 Neb. 78. 616. The presumption of possession of all lands covered by a deed, which is created by statute, is not destroyed by evidence of the erection of a fence a few feet inside the true EVIDENCE, II. k, 2. 1119 boundary line. Cottrell v. Pickering, 10: 404, 88 Pac. 696, 32 Utah, 62. 617. A legal and valid conveyance of real estate by tax deed carries with it a prima facie right of possession, and, where the property is vacant and unoccupied, the constructive possession of the premises is deemed to be in the holder of such title. Steltz v. Morgan, 28: 398, 101 Pac. 1057, 16 Idaho, 308. 618. An abstract of a title derived through deeds from the heirs of a deceased owner whose estate was not probated may be made to exhibit a good title by attach- ing to it the affidavit of credible persons who know the facts, showing intestacy, heirship, capacity to convey, and the satis- faction of all claims against the estate of the deceased, and when such showing has been made it devolves upon the vendee ob- jecting to the title and resisting a specific performance of a contract to purchase, to show wherein the title is bad or doubtful, or that the evidence necessary to establish the facts shown in the affidavit is so un- certain as to render the title doubtful. Van Gundy v. Shewey, 47: 645, 133 Pac. 720, 90 Kan. 253. 619 When a deed conveys a tract of land, and gives to the grantee, as an appurtenance thereof, the right to open and use a private road along one side of it, it will be pre- sumed that the grantor did not intend to re- tain a very long and narrow strip of land between the tract conveyed and the road so provided for; and, when such road is de- scribed as intended to run between the tract of land conveyed and an adjacent tract belonging to a third party, it will be pre- sumed, in the absence of anything on the face of the deed, or in the circumstances and situation of the property, indicating the con- trary, that the grantor did not intend to re- tain a strip of land between the road and the lands of such third party, so narrow as to be of no practical use to him. Clayton v. Gilmer County Court, 2:598, 52 S. E/103, 68 W. Va. 253. Tide-water bay. 620. The title to a tide-water bay is pre- sumed, in the absence of evidence to the contrary, to be in the state. Cain v. Simon- son, 3: 205, 39 So. 571, Ala. . j Easement. 621. One undertaking to close a pass way over his land, which has been enjoyed by a neighbor for nearly fifty years, has the burden of showing that the use was merely permissive, and to explain away the pre- sumption that it was under color of right. Schwer v. Martin, 7:614, 97 S. W. 12, 29 Ky. L. Rep. 1221. 622. The mere facts that one using a pass way over another's land never asked per- mission, and that the owner of the land never gave it, are not of themselves suffi- cient to overcome the presumption, arising from long-continued use, that it was claimed as matter of right. Schwer v. Martin, 7: 614, 97 S. W. 12, 29 Ky. L. Rep. 1221. 623. One seeking to close a pass way over his land, which has been enjoyed by a Digest 1-52 L.R.A.(N.S.) neighbor for a period of forty years, has the burden of showing that the use was per- missive, and not under claim of right. Smith v._ Pennington, 8: 149, 91 S. W. 730, 122 Ky. 355- (Annotated) 624. Proof by one claiming a right of way across another's property of long-continued use to the knowledge of the property owner, without interruption, places the burden on the owner of the property to show that it was permissive, and not adverse. Barber v. Bailey, 44: 98, 84 Atl. 608, 85 Vt. 219. (Annotated) Dedication. Presumption of dedication from use, see DEDICATION, 9-14. Presumed grant. See also infra, 627, 709. 625. A presumption of a grant from lapse of time with possession never arises where all the circumstances are consistent with the nonexistence of such grant. Logan v. Ward, 5: 156, 52 S. E. 398, 58 W. Va. 366. 626. After a great lapse of time and a series of circumstances disclosing an un- challenged fee-simple title, during such peri- od, of property originally held under a lease, the courts will presume whatever grant is necessary to extinguish the land- lord's title, in an ejectment proceeding against one claiming under such title. Townsend v. Boyd, 12: 1148, 66 Atl. 1099, 217 Pa. 386. Presumption from possession. Presumption of payment, see infra, 635. From possession of stolen property, see in- fra, 696-698. From possession of liquor, see CONSTITU- TIONAL LAW, 142. Validity of statute as to, see CONSTITUTION- AL LAW, 277. See also supra, 625. 627. The law will not presume a grant of his undivided share from one joint tenant to another simply from mere silent posses- sion by one for a long time. Logan v- Ward, 5: 156, 52 S. E. 398, 58 W. Va. 366. 628. Where the source of title to personal- ty is a will, possession raises no presumption as to extent of the interest in it. Hopkins v. Heywood, 49: 710, 86 Atl. 305, 86 Vt. 486. 629. Ownership and possession being shown of a building located upon the land of another, it will not be presumed that the building was located without authority. Jones v. Great Northern R. Co. 9: 603, 110 N. W. 260, 100 Minn. 56. (Annotated) 630. Twenty years' possession by lessees of the commonwealth of a pond which was in private ownership is prima facie evidence of an acquisition of the title by the public by prescription. Malone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1120, 84 N. E. 430, 198 Mass. 91. 631. Non-negotiable as well as negotiable instruments are within the rule that pro- duction of a note at the trial without indorsement is sufficient to entitle the equi- table owner to recover thereon, the pro- duction being prima facie evidence of owner- ship, nothing else appearing. Johnson 1120 EVIDENCE, II. 1, m. County Sav. Bank v. Scoggin Drug Co. 50: 581, 67 S. E. 253, 152 N. C. 142. (Annotated) 632. The fact that goods are found in the house of a husband may, in the absence of evidence that they are the separate property of his wife, be sufficient evidence of prop- erty in him to support an indictment aver- ring them to be his property. Rex v. Mur- ray, 3 B. R. C. 775, 2 K. B. 385. Also Re- ported in 75 L. J. K. B. N. S. 593, 70 J. P. 295, 95 L. T. N. S. 295, 22 Times L. R. 596. Ouster. 633. In ejectment by one tenant in com- mon against a cotenant who has been in un- disputed possession and use of the land for twenty years, an actual ouster on his part when the possession was first taken will be presumed. Dobbins v. Dobbins, 10: 185, 53 S. E. 870, 141 N. C. 210. (Annotated) 634. The presumption of ouster by undis- puted possession of real estate by one tenant in common for a period of twenty years is not rebutted by the disability of the adverse claimants during a portion of the time, where possession was taken during the life- time of their ancestor, who was under no disability. Dobbins v. Dobbins, 10: 185, 53 S. E. 870, 141 N. C. 210. I. Payment; credit. (See also same heading in Digest L.R.A. 1-10.) Evidence of generally, see infra, XI. m. 635. The presumption of payment of the debt upon twenty years' undisturbed and un- explained possession of mortgaged land by the mortgagor may be repelled by any act recognizing the validity of the mortgage. Frye v. Hubbell, 17: 1197, 68 Atl. 325, 74 N. H. 358. 636. The presumption that a check is given in payment of a debt is not conclusive, and may be wholly overcome by other evidence. Meyer v. Doherty, 13: 247, 113 N. W. 671, 133 Wis. 398. 637. In an action by an employee to re- cover the amount of a cash bond deposited with the employer, the introduction in evi- dence by the latter, of a check which had been accepted and cashed by the employee, and which recited- that it was the return in full of the cash bond less a sum of money wrongfully appropriated, does not make a prima facie case of payment in full, or shift the burden of proof to the plaintiff to show that he had not collected and retained the sums referred to in the check. Demeules v. Jewel Tea Co. 14: 954, 114 N. W. 733, 103 Minn. 150. Negotiable paper. Rebuttal of presumption, see infra, 1922. Credit. Presumption of sale for cash, see SALE, 103. 638. Upon an accounting between princi- pal and agent, the agent has the burden of showing that items charged in his account Digest 1-52 L.R.A.(N.S.) as having been paid to the principal were proper credits. Little v. Phipps, 34: 1046, 94 N. E. 260, 208 Mass. 331. Application of payment. 639. The law will not presume that pay- ment of a year's interest upon a note six months after due is to be applied partly for past and partly for future interest. Daviess County Bank & T. Co. v. Wright, 17: 1122, 110 S. W. 361, 129 Ky. 21. m. Miscellaneous. (See also same heading in Digest L.R.A. 1-10.) Presumption of confidential character of communications between husband and wife, see infra, 1310. Presumption attending proceeding in divi- sion of circuit court, see COURTS, 198. Inference of desertion from failure of hus- band and wife to live together, see DI- VORCE AND SEPARATION, 38. Presumption in aid of candidate receiving next highest number of votes, where candidate receiving highest number is ineligible, see ELECTIONS, 35. Presumption of approval by president of location of railroad, see PUBLIC LANDS, 8. See also supra, 66, 170. 640. Where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due perform- ance of the prior act. Cyr v. Walker, 35: 795, 116 Pac. 931, 29 Okla. 281. 641. In order to sustain an injunction against an act of trespass, on the ground that the injury occasioned thereby is irrep- arable, the facts constituting such irrepara- ble injury must be alleged and proved. Pence v. Carney, 6: 266, 52 S. E. 702, 58 W. Va. 296. 642. The presumption is in favor of the reasonableness and propriety of a rule adopted under statutory authority, by a school board for the government of pupils. Kinzer v. Toms, 3: 496, 105 N. W. 686, 129 Iowa, 441. 643. An employee wrongfully discharged prior to the termination of his contract of employment need not allege and prove, in an action to recover the stipulated wages for the entire term covered by the contract, that in the interim he was unable to ob- tain other employment. Beissel v. Ver- million Farmers' Elev. Co. 12: 403, 113 N. W. 575, 102 Minn. 229. 644. Although a property owner may, upon breach of a building contract, settle claims of subcontractors for which liens could be established, without requiring their establishment, and look to the contractor for reimbursement, he has the burden of show- ing that the claims paid were clearly and justly due. Bagaglio v. Paolino, 44: 80, 85 Atl. 1048, 35 R. I. 171. (Annotated) EVIDENCE, II. m. 1121 645. In an action against an infant for necessaries the onus is on the plaintiff to prove not only that the goods supplied were suitable to the condition in life of the infant, but that he was not sufficiently sup- plied with goods of that class at the time of the sale and delivery especially in view of 2 of the Sale of Goods Act 1893, which provides that where necessaries are sold and delivered to an infant or incompetent person he must pay a reasonable price there- for, and defines necessaries as "goods suit- able to the condition in life of such infant or minor or other person, and to his actual requirements at the time of the sale and de- livery." Nash v. Inman, 1 B. R. C. 143, [1908] 2 K. B. 1. Also Reported in 77 L. J. K. B. N. S. 626, 98 L. T. N. S. 658, 24 Times L. R. 401, 52 Sol. Jo. 335. (Annotated) 646. In an action to recover damages for breach of a contract to convey land, it will be presumed that improvements placed up- on the premises by a tenant in possession were removed at the expiration of his lease, where the land contract faib to specify the improvements, but recognizes their exist- ence and the right of the tenant to remove them. Beck v, Staats, 16: 768, 114 N. W. 633, 80 Neb. 482. 647. One who desires a decree setting aside a deed of real estate because a por- tion of it was secured by false representa- tions to apply only to such portion, upon return of a proportionate part of the pur- chase money, must offer evidence which will enable the court to make an apportion- ment, and upon his failure to do so, the court may deal with the transaction as an entirety. Kathan v. Comstock, 28: 201, 122 N. W. 1044, 140 Wis. 427. 648. No presumption that a dog which, to the knowledge of its master, has vicious propensities, will not display such propen- sities toward his keeper as well as against a stranger, exists. Emmons v. Stevane (N. J. Err. & App.) 24: 458, 73 Atl. 544, 77 N. J. L. 570. 649. To entitle a creditor of a bank cash- ier, who has been untruthfully notified by the latter that he has placed the sum to his credit on the books of the bank, to the benefit of the rule that, where one of two innocent persons must suffer loss by the act of a third, it must fall upon him who enabled such person to occasion it, the cred- itor must affirmatively show that he might have collected the sum from the cashier had he not relied on the notification. Lang- lois v. Gragnon, 22: 414, 49 So. 18, 123 La. 453. 650. The ordinary presumption is that a witness who uses the expression "I think'' means that his observation was indistinct, or his recollection uncertain, regarding the matter testified to, rather than that he is without personal information on the sub- ject. Losey v. Atchison, T. & S. F. R. Co. 33: 414, 114 Pac. 198, 84 Kan. 224. 651. Upon an application to stay proceed- ings in an ordinary action, the defendant tion is frivolous and vexatious, or that for some other reason is should be stayed ; but upon an application to stay proceedings in an action to set aside a former judgment of the court, the onus is on the plaintiff to show that he has a reasonable probability of success. Ronald v. Harper, 4' B. R. C. 972, [1913] Viet. L. R. 311. Commerce. See also supra, 102. 652. If there be a doubt as to whether a sale made by an agent in one state for a merchant in another was completed by the acceptance of the orders by the principal and his shipping of the goods, the contrary can- not be assumed in order to sustain a convic- tion for the violation of a city ordinance im- posing a license tax upon persons soliciting orders for the sale of goods, but the prose- cution must establish its case. Kinsley v. Dyerly, 19: 405, 98 Pac. 228, 79 Kan. 1. Customs and usage. Presumption that electric light company follows usual custom in such business, see MANDAMUS, 122. Adequacy of remedy at law. 653. A lessor of property for oil and gas development has, in case the property is not developed within a reasonable time, the burden of showing that a remedy in dam- ages is not adequate for failure to drill wells to protect the land from damage from adjoining property, so as to justify a for- feiture of the lease. Howerton v. Kansas Natural Gas Co. 34: 34, 106 Pac. 47, 81 Kan. 553. Amount due or received. See also infra, 667. 654. One suing the employer on an assign- ment of wages which was made to secure a loan must prove the amount due from the assignor. Chicago, B. & Q. R. Co. v. Pro- volt, 16: 587, 93 Pac. 1126, 42 Cob. 103. 655. One entitled to an accounting from an heir for money received by her from her father's executor, derived from the sale of her property by the father in his lifetime, but to which she thereafter asserted title, has the burden of showing the amount she received. Garbutt v. Mayo, 13: 58, 57 S. E. 495, 128 Ga. 269. Amount of damages. 656. In a suit on a sheriff's bond for fail- ure to execute or return final process, the presumption is that plaintiff has been dam- aged to an amount equal to the execution, and the burden is upon the defendants to mitigate the damages, or show that the plaintiff was not injured by the breach of official duty ; but where the process is mesne, there is no such presumption, and the bur- den is upon the plaintiff, who must allege and prove actual damages in order to recov- er on the bond. Beck & G. Hardware Co. v. Knight, 3: 420, 48 S. E. 930, 121 Ga. 287. (Annotated) 657. A patentee suing to recover profits from an infringer who has added nonin- fringing and valuable improvements dis- charges he burden resting upon him of showing what part of the commingled must show by express evidence that the ac- profits are attributable to the use of his Digest 1-52 L,R.A.(N.S.) 71 1122 EVIDENCE, II. m. invention by proving the existence of such profits and the impossibility of accurately or approximately separating them from those arising out of defendant's additions, and the defendant must then carry the burden of such separation if he is to escape liability for the entire profits. Westing- house Electric & Mfg. Co. v. Wagner Elec- tric & Mfg. Co. 41: 653, 32 Sup. Ct. Rep. 691, 225 U. S. 604, 56 L. ed. 1222. (Annotated) Excessiveness of levy. 658. One who attacks a levy as void for excessiveness has the burden of sustaining his contention. Bridger v. Exchange Bank, 8:463, 56 S. E. 97, 126 Ga. 821. Time of occurrence. 659. The presumption that a shortage shown to exist in the accounts of a public officer in a certain term occurred during that term does not obtain where the evi- dence is merely that such a shortage exists, and it appears or is probable that prior shortages shown to have arisen during other terms may have been included in making up such shortage. Dickinson v. White, 49: 362, 143 N. W. 754, 25 N. D. 523. 660. One claiming the benefit of a statute making void a conveyance by a man on and after the day on which a suit for divorce is brought against him, in fraud of his wife's rights, must show that the suit was filed before the conveyance was made. Sparks v. Taylor, 6: 381, 90 S. W. 485, 99 Tex. 411. Estoppel. 661. The burden is upon the party who relies upon estoppel to prove clearly and unequivocally every fact essential to the estoppel. Kroll v. Close, 28: 571, 92 N. E. 29, 82 Ohio St. 190. Application for building permit. 662. The making of an application for permission to erect a building on a city lot will be presumed after the lapse of twenty years, where its erection without a permit would have subjected the owner to prose- cution which was never instituted. Krause v. El Paso, 14: 582, 106 S. W. 121, 101 Tex. 211. Necessity for condemnation. 663. Municipal authorities with power to condemn a water supply if necessary need not, in a proceeding to assess the damages to be provided for the taking, establish its necessity, but the burden of showing ab- sence of necessity rests upon the property owner. Board of Water Comrs. v. Johnson, 41: 1024, 84 Atl. 727, 86 Conn. 151. 664. A property owner is not required to disprove the facts stated in a petition to take land which is alleged to be necessary for a public use, where he expressly trav- erses such facts by his answer, under a stat- ute providing that he may show cause against the prayer of the petition, and may disprove any of the facts stated therein, and, if no sufficient cause is shown against granting the prayer of the petition, an or- der shall be made, appointing commission- ers, since the effect of the statute is simply to put the petitioner to his proofs. Pere Marquette R. Co. v. United States Gypsum Digest 1-52 r,.R.A.(N.S.) Co. 22: 181, 117 N. W. 733, 154 Mich. 290. Railroads; carriers. Burden of proving defenses, see supra, 100, 101. 665. Where a carrier sells goods without notice to the shipper, the burden of proof is on him to show inability to communi- cate with the shipper, as well as an emer- gent condition of the goods, requiring a sale to prevent loss. Alabama G. S. R. Co. v. McKenzie, 45: 18, 77 S. E. 647, 139 Ga. 410. 666. A state statute prescribing maximum coal rates for the transportation by common carriers of coal in car load lots within the state is presumptively valid, and the burden is upon the carrier to prove that the rates therein prescribed are clearly unreasonable. State ex rel. McCue v. Northern P. R. Co. 25: 1001, 120 N. W. 869, 19 N. D. 45. 667. A passenger is not bound to make strict proof of the amount alleged to have been received by the carrier for his trans- portation, in an action to recover damages for negligently injuring him. Pittsburgh, C. C. & St. L. R. Co. v. Higgs, 4: 1081, 76 N. E. 299, 165 Ind. 694. 668. A section of railroad which is a continuation of the main line to reach the terminus originally established will be pre- sumed to be for public use. Central R. Co. v. Union Springs & N. R. Co. 2: 144, 39 So. 473, 144 Ala. 639. Condition of things. Intoxicating character of liquors, see infra, 692-695. 669. All subterranean waters are pre- sumed to be percolating waters, until it is shown that they exist in a known and well- defined channel. Pence v. Carney, 6: 266, 52 S. E. 702, 58 W. Va. 296. 670. Where a mortgage given to secure several promissory notes due at different times is foreclosed upon failure to pay the earlier ones, and the property bid in by the holder, the maker in a suit upon a later note has the burden of showing that the value of the property was sufficient to satisfy the note in suit as well as the earlier ones. McKeen v. Cook, 3: 343, 62 Atl. 729, 73 N. H. 410. (Annotated) Non-navigability. 671. A prima facie presumption of non- navigability results from failure to mean- der a stream, or to declare it navigable by legislation. Allaby v. Mauston Electric Service Co. 16: 420, 116 N. W. 4, 135 Wis. 345. Malicious prosecution or false im- prisonment. Presumption of malice, see supra, 236, 237. Burden of proving absence of good faith, see supra, 275. 672. The burden of establishing the wrongfulness of an imprisonment is upon one seeking to recover damages therefor, until a prima facie case has been made out. Smith v. Clark, 26: 953, 106 Pac. 653, 37 Utah, 116. 673. The burden is on defendants, in an action for unlawful arrest and false impris- onment, to show that it was by authority of EVIDENCE, II. m. 1123 law. McAleer v. Good, 10: 303, 65 Atl. 934, 216 Pa. 473. (Annotated) label and slander. Presumption of malice, see supra, 241-254. Sufficiency of presumption to support con- viction, see APPEAL AND ERROR, 930. Malice as essential element of action for libel or slander, see LIBEL AND SLAN- DER, 74, 85, 86, 94, 95, 98, 102, 108- 111, 159. Necessity of proving special damages, see LIBEL AND SLANDER, 88, 160-162. See also supra, 192, 254. 674. The burden of showing the falsity of the publication is not placed on plaintiff by a plea of privilege in an action for libel in attacking plaintiff's moral character. Tanner v. Stevenson, 30: 200, 128 S. W. 878, 138 Ky. 578. 675. If an article published is libelous per se, the proof of the publication makes a prima facie case; and it is for the defend- ant to offer such proof as he may desire, showing the truth of the article published, and that the same was published with good motives and for justifiable ends. State v. Sheridan, 15: 497, 93 Pac. 656, 14 Idaho, 222. 676. In an action for libel the plaintiff has the burden of proof that the defendant is responsible for the libelous publication, and the defendant has the burden as to the truth of the matter charged, and that it was published with good motives and for justifiable ends. Bigley v. National Fidel- ity & C. Co. 50: 1040, 144 N. W. 810, 94 Neb. 813. 677. The commitment by the court of chil- dren upon the charge of vagrancy and in- corrigibility after the publication by a news- paper of an article charging their mother with abusing them does not show that the publication was quasi privileged, so as to cast the burden upon the mother of show- ing the falsity of the statement, and ability to discover such falsity by the exercise of ordinary care, in order to make out a case of libel. Kelly v. Independent Pub. Co. 38: 1160, 122 Pac. 735, 45 Mont. 127. Service of process. 678. After a long lapse of time, minors will be presumed to have been served with process in a partition proceeding, where the record shows only the existence of a guard- ian ad litem and an acceptance of service by her for them, and her certificate that a copy of the citation was served on them. Clark v. Neves, 12: 298, 57 S. E. 614, 76 S. C. 484. 679. Personal service of notice cannot be presumed to uphold a decree distributing a decedent's estate, where it recites that from 'the affidavits on file the court finds that due notice was given, where the only affidavits on file show attempted service by publication, which did not meet the statutory requirements. Teynor v. Heible, 46: 1033, 133 Pac. 1, 74 Wash. 222. 680. An indorsement stamped by means of a rubber stamp on the back of a sum- mons and complaint, of the words, "In Sheriff's office, Dec. 2, 1908, John J. Lee, Sheriff, Ward County," will, under a Code Digest 1-52 L.B.A.(N.S.) provision which makes it the duty of the sheriff to indorse "upon all notices and proc- esses received by him for service, the year, month, day, hour, and minute of recep- tion," and under another Code provision which provides that "the presumption that official duty has been regularly performed is satisfactory if uncontradicted," be deemed satisfactory evidence of the facts therein contained, and that the summons and complaint were delivered to the sheriff for service upon the day stated, in the absence of satisfactory proof to the con- trary. Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 47: 965, 135 N. W. 189, 22 N. D. 615. Mental anguish. 681. Mental suffering will not be presumed to exist for deprivation of opportunity to at- tend the funeral of one's first cousin. John- son v. Western U. Teleg. Co. 17: 1002, 62 S. E. 244, 81 S. C. 235. 682. No presumption of mental suffering will arise in case of failure to deliver a telegram announcing the death of a rela- tive by affinity only, such as a son's wife; and therefore to recover damage for such suffering in such cases facts must be pleaded and proved showing special friendship or affection, although it is not necessary to show that the telegraph company had notice of such facts. Foreman v. Western U. Teleg. Co. 19: 374, 116 N. W. 724, 141 Iowa, 32. (Annotated) Performance of duty. Official duty, see supra, II. i. Presumption that foreign insurance com- pany has complied with law, see IN- SURANCE, 15, 16. 683. In the absence of evidence to the con- trary, one whose rents are insured is pre : sumed to have discharged his obligations under the contract, in case of loss, to take immediate possession of the premises and rebuild. Palatine Ins. Co. v. O'Brien, 16: 1055, 68 Atl. 484, 107 Md. 341. Intestacy or absence of issue; disin- heritance. 684. There is no presumption of the death of a person without issue; it is a matter to be proved by sufficient evidence. Re Jackson, 4 B. R. C. 627, [1907] 2 Ch. 354. Also Reported in 76 L. J. Ch. N. S. 553. ( Annotated ) 685. The presumption of intestacy and absence of issue may arise from a finding of death of one who disappeared at about twenty-one years of age, thirty-seven years ago, since which nothing has been heard concerning him nor anyone claiming to be his issue. Barson v. Mulligan, 16: 151, 84 N. E. 75, 191 N. Y. 306. 686. The burden of showing that a child was intentionally omitted from the will of his parents is upon those claiming the omis- sion to have been intentional, under a stat- ute giving to such child the same share of his parent's estate which he would have taken if the parent had died intestate, "un- less it appears that such omission was in- tentional." Re Motz, 51: 645, 145 N. W. 623, 125 Minn. 40. 1124 EVIDENCE, II. m. Election to take under trill. G87. An election to take under a will may be inferred or implied from the conduct of the party, his acts, omissions, modes of deal- ing with the property, acceptance of rents and profits, and the like. Owens v. An- drews, 49: 1072, 131 Pac. 1004, 17 N. M. 597. (Annotated) 688. An election on the part of a widow to take 'under a will will not be implied from her conduct merely, where she had not full knowledge of her rights in that regard, even though she possessed full knowledge concerning the property and intended an election. Owens v. Andrews, 49: 1072, 131 Pac. 1004, 17 N. M. 597. Criminal cases. Burden of establishing allegations or claims generally, see supra, 94, 95. Burden of establishing defense, see supra, 102-109. Presumption of chastity of prosecutrix, see supra, 120. Presumption as to character, see supra, 121, 122. Presumption as to validity of first marriage in prosecution for bigamy, see supra, 140. Burden of proving that first spouse was alive in prosecution for bigamy, see supra, 152. As to sanity of accused, see supra, 221-223. As to criminal intent, see supra, 255-257. Presumption of innocence, see supra, 299- 301. Presumption of guilt, see supra, 302-304. In prosecution for forging note, see supra, 586. Error in instruction as to, waived or cured below, see APPEAL AND ERROR, 848, 858. Sufficiency of evidence to overcome presump- tion of larceny arising from possession of stolen property, see APPEAL AND ERROR, 927. Presumption arising from indictment by grand jury, see BAIL AND RECOGNI- .ZANCE, 14, 16. Validity of statute as to, see CONSTITU- TIONAL LAW, 621, 622. Instructions as to presumption of good character, see TRIAL, 907. Instructions as to, see TRIAL, 943. See also infra, 2402; supra, 501. 689. Upon habeas corpus to secure the release of one, the judgment convicting whom recites that, after duly considering the "evidence as produced and confessed," the court finds the defendant guilty, on the ground that the judgment is void because it was rendered without any testimony be- ing taken or a plea of guilty entered, it will be presumed, in the absence of an af- firmative showing, that evidence wag in- troduced. Re Jones, 31: 548, 109 Pac. 570, 4 Okla. Crim. Rep. 74. 690. To make applicable to one suffering from a shot wound, and weakened by dis- ease so that he was too weak to sign his name, and who is alleged to have made statements in answer to questions pro- pounded to him, the rule as to presumptions arising against one accused of crime from Digest 1-52 L,.R.A.(N.S.) | statements made against himself, he must ! be found to have been in such condition of mind and body as to have been able to know the statement he was making, and to un- derstand the questions propounded to him. State v. Webb, 20: 1142, 115 S. VV. 998, 216 Mo. 378. 691. The fact of employing laborers on public work for more than a certain num- ber of hours a day cannot be made prima facie evidence of violation of the statute prohibiting it, if there are circumstances provided for by statute when such employ- ment is made lawful. Opinion of the Jus- tices, 34: 771, 94 N. E. 1044, 208 Mass. 619. Intoxicating character of liquor. 692. The state need not prove the intoxi- cating quality of liquor, with the illegal sale of which one is charged, if it is with- in a class expressly defined as such b\ the legislature, but must prove such quality as to all beverages which do not fall within the classes designated by the statute aa intoxicating. Ex parte Lockman, 46: 759, 110 Pac. 253, 18 Idaho, 465. 693. Upon trial of an indictment for sell- ing intoxicating drinks, if the evidence shows a sale of beer, the state has made a prima facie case for conviction, and need not give evidence that the beer is intoxi- cating. State v. Durr, 46:764, 71 S. E. 767, 69 W. Va. 251. 694. In a criminal prosecution for the violation of a statute prohibiting the sale or keeping for sale of "malt, spirituous, or vinous liquors or any intoxicating drinks" without a license, where the charge is for selling or keeping for the purpose of sale "certain malt and intoxicating liquor," and the proof shows that malt liquor was sold and kept for sale, the state is not required to allege or prove that the liquors sold or kept for the purpose of sale are in fact in- toxicating, as it is sufficient to allege and prove the sale, or the keeping for the pur- pose of sale, of any prohibited liquors, in violation of the terms of such statute. Luther v. State, 20: 1146, 120 N. W. 125, 83 Neb. 455. 695. To sustain a conviction for selling intoxicating liquor, the state must, if the beverage is not what is known as a spirit- uous or vinous liquor, or the malt liquor generally known as common, lager, or bock beer, or ale, introduce evidence of its in- toxicating effect. Gourley v. Com. 48: 315, 131 S. W. 34, 140 Ky. 221. Possession of recently stolen prop- erty. 696. Possession of stolen property short- ly after the theft is evidence to charge the possessor with the taking. State v. Rec- ord, 25: 561, 65 S. E. 1010, 151 N. C. 695. 697. Mere possession of recently stolen goods is not evidence of guilt of a burglary of the place where they were kept, unless it is shown that the burglary and stealing of the goods were part of the same transaction. State v. Brady, 12: 199, 97 N. W. 62, 121 Iowa, 561. (Annotated) 698. To relieve himself of the charge of EVIDENCE, III. 1125 burglary, one found in possession of the property thereby acquired need not prove that he acquired it honestly or fairly. State v. Brady, 12: 199, 97 N. W. 62, 121 Iowa, 561. Ill, Best and secondary evidence. (See also same heading in Digest L.R.A. 1-10.) Admissibility of photograph, see infra, 887- 891. 699. Evidence of one whose parents are accessible, as to their nationality, is not inadmissible on the theory that it is not the best evidence of the fact. State v. Rackich, 37: 760, 119 Pac. 843, 66 Wash. 390. 700. Persons familiar with the facts are competent to testify that at the time of an accident on a railroad the road was being operated by a lessee. Chicago, B. & Q. R. Co. v. Weber, 4: 272, 76 N. E. -489, 219 111. 372. 701. Relation of a witness to the subject- matter of his testimony, such as his incum- bency of an office in a private corporation on whose behalf, as a party to the suit, he is to testify, may be shown by his oral evi- dence. Star Grocer Co. v. Bradford, 39: 184, 74 S. E. 509, 70 W. Va. 496. 702. A physician's certificate of cause of death is not admissible in evidence to prove that fact in an action to recover damages for the negligence which is alleged to have produced it, where the physician is still liv- ing. Louisville R. Co. v. Taylor, 27: 176, 123 S. W. 281, 135 Ky. 738. 703. Parol evidence is admissible to show formal action by the directors of a corpo- ration upon a proposition which came before them. Iowa Drug Co. v. Souers, 19: 115, 117 N. W. 300, 139 Iowa, 72. 704. A municipal ordinance may be proved as to its contents as well as to its passage by the introduction in evidence of the orig- inal record thereof, properly identified as such. Grafton v. St. Paul, M. & M. R. Co. 22: i, 113 N. W. 598, 16 N. D. 313. 705. The duly certified original charter of a corporation is not inadmissible in evi- dence because a statute permits the receiv- ing of a certified copy of the charter. Sum- ter Tobacco Warehouse Co. v. Phoenix Ins. Co. 10: 736, 56 S. E. 654, 76 S. C. 76. Of making of contract. 706. Parol evidence is admissible to show the making of a contract which has been lost or destroyed. Mahaffy v. Faris, 24: 840, 122 N. W. 934, 144 Iowa, 220. Of contents of hook. 707. The material contents of an existing book which is obtainable cannot be proven by parol testimony, as the book itself is the best evidence. Sayre v. Woodyard, 28: 388, 66 S. E. 320, 66 W. Va. 288. Of record. Transcript of record, see infra, 724. See also supra, 731. 708. A mere provision, in a city charter Digest 1-52 I,.R.A.(N.S.) creating a park commission, that the secre- tary shall keep a record of its proceedings, does not exclude parol evidence of certain acts in case the record is silent upon the matter. Denver v. Spencer, 2: 147, 82 Pac. 590, 34 Colo. 270. 709. The presumption that a grant, by a private owner, of land which he bounds gen- erally upon a river, will carry title as far as he owns, is rebuttable, the question be- ing purely one of intention; and when the intention is ascertainable from the record of a proceeding or the face of an instru- ment, other evidence is inadmissible. Fow- ler v. Wood, 6: 162, 85 Pac. 763, 73 Kan. 511. 710. The recognition of a highway as such by the county court or by a municipality may be shown either by the records of the county court or municipality, or by proof of work done thereon by one who is shown to be the officer whose duty it is to take care of, work, and repair, the road in the precinct in which it is, or the street or alley of the town or city. Campbell v. Elkins, 2: 159, 52 S. E. 220, 58 W. Va. 308. Of transaction in court. See also infra, 724. 711. Testimony as to evidence given in an examination before court cannot be ex- cluded on the theory that it is not the best evidence of what was so given, although the evidence was taken down in shorthand. Mollison v. Rittgers, 29: 1179, 118 N. W. 512, 140 Iowa, 365. Matters in writing generally. See also supra, 711. 712. The general agent of an insurance company cannot, in a suit upon the policy, state whether or not the report of an agent who issued the policy contained anything as to the idleness of the plant on which it was issued, since the report is the best evi- dence. Home Ins. Co. v. North Little Rock Ice & E. Co. 23: 1201, 111 S. W. 994, 86 Ark. 538. 713. A married woman having, by direc- tion of her husband written a letter to an- other is competent to prove the contents of such letter in a judicial investigation in which her husband is a party after satis- factory excuse being given for not produc- ing the writing. Boardman v. Lorentzen, 52: 476, 145 N. W. 750, 155 Wis. 566. 714. Parol evidence of conveyances of real estate by one accused of incest is admissi- ble in connection with evidence that ac- cused left the state, where the deeds were traced to his possession and he was noti- fied to produce them, which he failed to do. Skidmore v. State, 26: 466, 123 S. W. 1129, 57 Tex. Crim. Rep. 497. Copies. Photographic copy, see infra, 890. 715. The best evidence to prove the amount of dividend allowed in the account of an administrator upon a note of de- cedent is a copy of the account, and not his testimony. Harper v. Davis, 35: 1026, 80 Atl. 1012, 115 Md. 349. 716. The introduction on a trial for steal- ing cattle, of several diagrams of brands, which were copies of others, is not erroneous 1126 EVIDENCE, III. where the diagrams offered are shown by specific testimony to be correct. State v. Wolfley, 11:87, 89 Pac. 1046, 75 Kan. 406. 717. Record copies of reports by train men as to the time of passing of trains are not admissible in evidence upon the ques- tion of liability for setting out fire, where the reports are in existence, and not pro- duced, and there is nothing to show that the testimony of those operating the trains could not have been produced. Cathey v. Missouri, K. & T. R. Co. 33: 103, 133 S. W. 417, 104 Tex. 39. 718. The fact that in making reports to a city council the city treasurer copied the data therein contained from the books kept by him as city treasurer does not render the reports inadmissible as secondary evi- dence, since, being made pursuant to official .duties, they are original, and not mere copies. Dickinson v. White, 49: -362, 143 N. W. 754, 25 N. D. 523. . Letter press copies. 719. The loss of waybills indicating the destination of certain cars having been shown, it is error to exclude letter press copies of such waybills. Barker v. Kan- sas City, M. & 0. R. Co. 43: 1121, 129 Pac. 1151, 88 Kan. 767. Carbon copies. 720. The different numbers or impressions of a writing produced by placing carbon paper between sheets of paper and writing upon the exposed surface are duplicate orig- inals, and either may be introduced in evidence without accounting for the non- production of the other. International Har- vester Co. v. Elfstrom, 12: 343, 112 N. W. 252, 101 Minn. 263. (Annotated) Certified copies. See also infra, 703, 729. 721. A copy of a lease of a railroad, duly certified, is admissible in evidence under a statute providing that the papers of the corporation may be proved by a copy there- of certified by the proper custodian. Chi- cago, B. & Q. R. Co. v. Weber, 4: 272, 76 N. E. 489, 219 111. 372. 722. A certified copy of, docket entries in a judicial proceeding in another state, from which to make a record, is not admissible as evidence of the facts which it is claimed the record would establish. Gibson v. Holmes, 4: 451, 62 Atl. 11, 78 Vt. 110. Transcript of record. 723. A purported transcript from the record of a lower court in another state, certified by a person signing himself clerk of the court, but without seal, and not certified, as required by acts of Congress, is not admissible in evidence. Mason v. Nashville, C. & St. L. R. Co. 33: 280, 70 S. E. 225, 135 Ga. 741. 724. A purported transcript of the rec- ord of the lower court of another state, not certified as required by statute, is not ren- dered admissible in evidence by testimony of the one who presided in such court, that he had fined defendant in that proceeeding, and did not recollect the amount of the fine, but that the amount will be shown by the attached paper, certified by the clerk. Ma- Digest 1-52 I,.R.A.(N.S.) son v. Nashville, C. & St. L. R. Co. 33: 280, 70 S. E. 225, 135 Ga. 741. Accounts and account books. Admissibility of generally, see infra, IV. j. 725. Books of account may be admitted in evidence to prove cash loans where the items appear in the general course of ac- counts as part of the business transactions between the parties. Lewis v. England, 2: 401, 82 Pac. 869, 14 Wyo. 128. (Annotated) 726. A merchant who has adopted a sys- tem of keeping his accounts by entering the daily transactions on sheets of paper called "day slips," and subsequently trans- ferring them to other slips called "ledger slips," which show the accounts with each customer separately, and upon which items are sometimes originally entered, may, in proving an account, introduce the latter in evidence to explain items on the day slips, and to show entries which were originally made on them. Lewis v. England, 2: 401, 82 Pac. 869, 14 Wyo. 128. 727. To show that a suicide committed the act to escape punishment, persons who have examined his books cannot testify as to what they show regarding certain al- leged embezzlements without the production of the books themselves. Davis v. Supreme Council R. A. 10: 722, 81 N. E. 294, 195 Mass. 402. Preliminary proof. 728. To admit secondary evidence of the specifications of a chattel sold and delivered, the one making the offer must show that he cannot produce the original. Estey Organ Co. v. Lehman, u: 254, 111 N. W. 1097, 132 Wis. 144. 729. Certified copies of deeds are not ad- missible in evidence until the party offering them makes it appear tha^ the originals are not within his custody or control. Florida Finance Co. v. Sheffield, 23: 1102, 48 So. 42, 56 Fla. 285. 730. The sanity of a testator whose tes- tamentary capacity is in issue cannot be proven by oral evidence that he had writ- ten letters to one of his daughters, without first producing or accounting for the letters. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 731. Secondary evidence to identify a roc- ord of conviction is not admissible until the absence of the magistrate who rendered the judgment, or his successor in office, who is the proper custodian of the record and the proper person to identify it, is accounted for. Junior v. State, 2: 652, 89 S. W. 467, 76 Ark. 483. (Annotated) 732. Proper foundation for the admission of copies of telegraphic orders to a broker purporting to have been signed by his prin- cipal is laid where it is shown that the originals have been destroyed, that the sender has failed to comply with timely notice to produce all writings received by him from the broker with reference to the transactions, and where it is also shown that the orders were delivered by a tele- graph company on the floor of an exchange and there executed and the fact reported to EVIDENCE, IV. a. the buyer, who acquiesced in what was done, and that the broker had executed several similar orders for the sender, es- pecially where the claim of the sender is not that the contracts mentioned therein were not entered into, but that they were wager- ing transactions. Hallet v. Aggergaard, 14: 1251, 114 N. W. 696, 21 S. D. 554. Notice to produce. 733. If the pleadings clearly disclose that proof of a document in possession of the adversary will be necessary at the trial, notice to produce it is not necessary to al- low secondary evidence of its contents. J. L. Owens Co. v. Bemis, 37: 232, 133 N. W. 59, 22 N. D. 159. IF. Documentary evidence. a. In general; preliminary matters, genuineness and validity. (Sec also same heading in Digest L.R.A. 1-10.) Laying foundation for secondary evidence, see supra, 732, 733. Foundation for admissibility of X-ray pho- tograph, see infra, 892. Appeal from order to produce books and papers for inspection before trial, see APPEAL AND ERROR, 23. As part of record on appeal, see APPEAL AND ERROR, 193, 194. Review of discretion as to admission of documentary evidence, see APPEAL AND ERROR, 601. Prejudicial error as to, see APPEAL AND ERROR, 1135, 1150, 1273. Sufficiency of extrinsic evidence of execution to lay foundation for admission of note in evidence, see TRIAL, 159. Sufficiency of objection to admission of, see TRIAL, 82. To refresh witnesses' recollection, see WIT- NESSES, 72, 73. 734. One party cannot make a paper otherwise incompetent as evidence compe- tent in his favor against his adversary, by calling for it and inspecting it on its being produced on his call. Boyle v. Boston Ele- vated R. Co. 33: 552, 94 N. E. 247, 208 Mass. 41. (Annotated) 735. A statement made from the books of an assignor for creditors is not admissible in an action by the assignee to enforce a debt due the assignor in the absence of any foundation for admission of the books themselves. Richardson v. Anderson, 25: 393, 72 Atl. 485, 109 Md. 641. 736. To render admissible in evidence an order committing one to an asylum in an action to recover for his care while there, it is not necessary to prove the steps lead- ing up to the commitment, where, from the recitals in the commitment, it appears that the court had jurisdiction of the alleged in- sane person. Napa State Hospital v. Bas- so, 18: 643, 96 Fac. 355, 153 Cal. 698. Execution. 737. A note, the execution of which is de- Digest 1-52 L.R.A.(N.S.) nied by a plea of non est factum, will not be received in evidence until some extrinsic evidence of its execution has been sub- mitted; but slight evidence is sufficient to lay the foundation for its admission. Pat- ton v. Bank of La Fayette, 5: 592, 53 S. E. 664, 124 Ga. 965. Authentication. Verification of plat offered in evidence, see infra, 857. 738. A letter bearing a typewritten signa- ture is admissible in evidence as proof of the receipt of a remittance acknowledged there- in, without authentication of the signature, where it was sent in response to a letter containing notification of the remittance. Lancaster v. Ames, 17: 229, 68 Atl. 533, 103 Me. 87. (Annotated) 739. That a letter was written in response to another sufficiently appears from evidence that it was dated the day after the latter, and referred to checks transmitted in it and to receipts to be sent to persons from whom the money, represented by them, was alleged to have been received. Lancaster v. Ames, 17: 229, 68 Atl. 533, 103 Me. 87. Identification. See also APPEAL AND ERROR, 233. 740. A paper purporting to be a request to a railroad company for cara does not prove itself, and is not admissible in evi- dence without identification or proof that it is what it purports to be. Di Giorgio Importing & S. S. Co. v. Pennsylvania R. Co. 8: 108, 65 Atl. 425, 104 Md. 693. Genuineness of handwriting; stand- ards. Review of discretion in refusing to admit documents as standards for comparison of handwriting, see APPEAL AND ERROR, 608. 741. Upon the question of the genuine- ness of a letter seventy years old, the public records kept by the alleged writer as the in- cumbent of the office to which they belonged are admissible in evidence. McCreary v. Coggeshall, 7: 433, 53 S. E. 978, 74 S. C. 42. 742. Under a rule that a standard for comparison of handwriting must be estab- lished by direct proof or equivalent evi- dence, a signature may be established for such purpose by showing that it was at- tached to a slip handed in by the one whose name it is, and whose signature it is alleged to be, and whose duty it is to fill out and sign such slips, in the absence of evidence to the contrary. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. Ancient instruments. See also supra, 741. 743. A deed more than thirty years old is an ancient document, proving itself. Ford v. Ford, 6: 442, 27 App. D. C. 401. 744. A deed more than thirty years old, purporting to have been signed by the execu- trix nominated in a will, and containing a recital that it was executed under the power of sale conferred by the will, proves itself where the possession of the land has been consistent with its terms, although, the original records having been lost, there is nothing to show that the testatrix ever 1128 EVIDENCE, IV. b d. qualified as such. Wilson v. Snow, 50: 604, 33 Sup. Ct. Rep. 487, 228 U. S. 217, 57 L. ed. 807. 745. A letter seventy years old, found in proper custody, is an ancient document which proves itself. McCreary v. Cogges- hall, 7: 433, 53 S. E. 978, 74 S. C. 42. 746. A document purporting to bear date thirty years or more before it is offered in evidence, which is produced from proper or natural custody, is free from suspicious circumstances, and is relevant to the in- quiry, is admissible in evidence, without the ordinary requirements as to proof of execution or handwriting, although the pre- sumption of authenticity is subject to re- buttal. Nicholson v. Eureka Lumber Co. 36: 162, 72 S. E. 86, 156 N. C. 59. 6. Statutes; ordinances. (See also same heading in Digest L.R.A. 1-10.) Statutes. Statute of limitations of state where con- tract entered into, see CONFIJCT OF LAWS, 139. Ordinances. See also supra, 704; infra, 1768, 1770. 747. An ordinance, required by statute to be published before taking effect, it being al- so provided that a note of the date of its publication be appended to its entry in the ordinance book, and no other provision be- ing made for preserving evidence of the fact of publication, is not admissible in evidence, if no such notation is found in the proper place, without other proof that it has been published. Atchison, T. & S. F. R. Co. v. Baker, 21: 427, 98 Pac. 804, 79 Kan. 183. 748. In an action by a municipality to condemn property for street purposes, an ordinance declaring it necessary to extend one of its streets across a railway is admis- sible in evidence for the purpose of proving the official determination by the city coun- cil of the necessity for the crossing. Graf- ton v. St. Paul, M. & M. R. Co. 22: i, 113 N. W. 598, 16 N. D. 313. 749. The ordinances of a town defining disorderly conduct and prescribing the du- ties of the marshal are admissible on a trial for assault with intent to murder the marshal while attempting to make an ar- rest, for the purpose of showing the mar- shal's authority to make arrests for mis- conduct such as that which he was informed the defendant was guilty of. Porter v. State, 2: 730, 52 S. E. 283, 124 Ga. 297. c. Certificate; award. (See also same heading in Digest L.R.A. 1-10.) Injunction against use as evidence of fraud- ulent certificate of birth, see INJUNC- TION, 174. See also supra, 702. Digest 1-52 I,.R.A.(N.S.) 750. An architect's certificate provided for by a building contract is admissible in evidence in an action for breach of the con- tract. Shriner v. Craft, 28: 450, 51 So. 884. 166 Ala. 146. d. Official records, reports, and re- turns. (See also same heading in Digest L.R.A.. 1-10.) As best or secondary evidence, see supra, 704. Best and secondary evidence of, see supra, 708-710. Report as best, see supra, 718. Judicial records, see infra, IV. e. Weight of, as evidence, see infra, 2263-2269. Legislative journals, see STATUTES, 85, 88. See also supra, 741; infra, 753. 751. The report of the drainage commis- sioners is admissible in evidence in a pro- ceeding to condemn and remove a dam for drainage purposes, where the statute makes such reports prima facie evidence of the facts therein set forth. Zehner v. Milner, 24: 383, 87 N. E. 209, 172 Ind. 493. 752. Records of a municipal council dis- closing the report of the board of public works concerning the laying out of a sewer and its action thereon are admissible in ev- idence upon the question of the right to maintain the sewer across private property pursuant to an agreement with the land- owner. Alderman v. New Haven, 18: 74, 70 Atl. 626, 81 Conn. 137. 753. That a rule of a state board of health, which a physician was charged with having knowingly violated, was not shown to have been on file or of record in the office of the secretary of the board, will not pre- vent its admission in evidence when accom- panied by the secretary's certificate that it was duly enacted and published, under a statute providing for the punishment of one knowingly violating a rule of the board of health after notice thereof has been given. Pierce v. Doolittle, 6: 143, 106 N. W. 751, 130 Iowa, 333. Land titles. 754. The record of a deed is not admissi- ble to prove its existence, on behalf of the grantee claiming under it. McClerry v. Lewis, 19: 438, 70 Atl. 540, 104 Me. 33. (Annotated) 755. The record of a deed is not inad- missible in evidence because the letters U. Q., following the name of the one taking the probate, did not indicate any officer au- thorized to take a probate, where it appears that the person designated was clerk of the court, of which fact the court could take judicial notice, and ex offtcio one of the quorum who by statute had authority to take probates, so that the letters doubtless signified unum quorum. McCreary v. Cog- geshall, 7: 433, 53 S. E. 978, 74 S. C. 42. From other states. 756. Copies of the record of deeds and other similar private writings, made in A EVIDENCE, IV. e. 1129 sister state, are admissible in evidence in the courts of Minnesota, under the pro- visions of U. S. Rev. Stat. 906 (U. S. Comp. Stat. 1901, p. 677), when properly certified and authenticated as required by such act. Wilcox v. Bergman, 5: 938, 104 N. W. 955, 96 Minn. 219. (Annotated) Taxes. 757. A return of personal property for taxation, compiled by the assessor, is not admissible in evidence on the question of value in an action upon a policy insuring it against loss by fire. Kelley use of Chis- holm v. People's Nat. F. Ins. Co. 50: 1164, 104 N. E. 188, 262 111. 158. 758. Where the financial condition of the resident of any county in this state is ma- terial to be considered on exemplification of the tax digest, properly certified by the clerk of the court of ordinary, is admissible in evidence. Churchill v. Jackson, 49: 875, 64 S. E. 691, 132 Ga. 666. 'Weather bureau. Opinion evidence by employee of, see infra, 1183, 1195. Coroner's inquest. 759. Although an insurance certificate provides that the coroner's verdict, if any inquest is held, shall be furnished as a part of the proof of death, if that is not done, the verdict cannot be offered in evidence to defeat action on the certificate. Krogh v. Modern Brotherhood of America, 45: 404, 141 N. W. 276, 153 Wis. 397. (Annotated) 760. In an action to hold one liable in damages for killing another, a statement in the coroner's verdict to the effect that he was justified in his act is properly admis- sible in evidence, where the coroner is by statute required to make up a verdict show- ing how decedent came to his death, and cause the arrest of anyone implicated as his unlawful slayer. Foster v. Shepherd, 45: 167, 101 N. E. 411, 258 111. 164. Census returns. 761. Certificate copies of census returns of the Federal government are admissible in evidence upon the question of the age of a citizen deceased since the return was made. Priddy v. Boice, 9: 718, 99 S. W. 1055, 201 Mo. 309. (Annotated) e. Judgments and judicial records. . : \ [i->.> . .;.' i ,'. [ci re Jim iuiii . . JOK! jo Opinion evidence as to handwriting, see infra, VII. m. Admissibility of evidence of comparison of foot prints with shoes, see infra, 885. See also supra, 741, 742. 835. Evidence of professed tests printed in a book of instructions as to the use of a patent brake is not admissible upon the question as to the distance within which a train can be stopped. Illinois C. R. Co. v. Stith, i: 1014, 85 S. W. 1173, 120 Ky. 237. To prove authorship. 836. Upon the question whether or not a disputed signature was forged, other signa- tures are admissible in evidence for the pur- pose of showing that they are so nearly identical that some or all must have been traced; especially if one has been shown to have been a forgery. Stitzel v. Miller, 34: 1004, 95 N. E. 53, 250 111. 72. (Annotated) 837. For purposes of identifying one ac- cused of crime, a date and initial carved in wood at the time and near the place where the crime was committed are admissible in evidence, if they contain peculiarities of punctuation and formation which are shown to be habitual with accused. State v. Kent, 26: 990, 74 Atl. 389, 83 Vt. 28. 838. Dates and initials carved in wood at the time and near the place of the com- mission of a crime are not inadmissible in evidence against one as to whom a basis of comparison has been established by show- ing from genuine writings an habitual peculiarity in punctuation and the forma- tion of letters, on the ground that the evi- dence is inconclusive. State v. Kent, 26: 990, 74 Atl. 389, 83 Vt. 28. 839. A document otherwise irrelevant may be introduced in evidence as a standard for comparison of handwriting if its in- troduction will not tend to raise a collateral issue as to the genuineness of the signa- tures offered or the fairness of the speci- men. Smith v. Hanson, 18: 520, 96 Pac. 1087, 34 Utah, 171. (Annotated) 1136 EVIDENCE, IV. q, r. Typewritten instrument. 840. Upon the question of forgery of a typewritten will the work on which pre- sents peculiar mechanical characteristics, work of a typewriting machine possessing the same characteristics is admissible in evidence to establish the identity of the machine which produced the will and exam- ples of work so introduced. People v. Storrs, 45: 860, 100 N. E. 730, 207 N. Y. 147. (Annotated) q. Memoranda. (See also same heading in Digest L.R.A. 1-10.) Computations and tabulations, see infra, 851-856. Error in admission of, see APPEAL AND EEBOB, 1176. 841. A memorandum by a property owner, of unpaid bills of a tenant, is a statement of fact, and not of opinion. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 842. A memorandum on the stub of a check, that it was intended as payment upon an indebtedness to the payee's principal, is not admissible in evidence in an action by the principal to enforce payment of such in- debtedness. Wells v. Hays, 42: 727, 76 S. E. 195, 93 S. C. 168. (Annotated) 843. Upon trial of a charge of conspiracy to induce a shipper to receive rebates in violation of the "Elkins act," after it has been shown that he received money from some source in some way related to his shipments, and that the account was not carried on the books of his business, evi- dence of the contents of a private memo- randum book with reference to them is ad- missible. Thomas v. United States, 17: 720, 156 Fed. 897, 84 C. C. A. 477. By person since deceased. See also supra, 800-802, 819. ' 844. Memoranda on the policy register of a deceased insurance agent are not admis- sible in evidence to prove the contents of a policy issued by him, subsequently lost, where they cannot be verified by anyone knowing the facts recited therein to be true. Cummings v. Pennsylvania F. Ins. Co. 37: 1169, 134 N. W. 79, 153 Iowa, 579. 845. A memorandum of a person since de- ceased need not contain facts to which he, if living, could testify, to be admissible in evidence in a proceeding against his ad- ministrator, under a statute providing that in actions against representatives of de- ceased persons relevant entries, memoranda, and declarations of decedent may be re- ceived in evidence. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 846. Memoranda by a property owner since deceased, to the effect that a bill of lumber delivered on his premises was on account of his tenant, are admissible in an action against his administrator to hold the estate liable therefor, no matter how often repeated, and even though they were made after the action was begun, under a statute Digest 1-52 L.R.A. (N.S.) providing that in actions against repre- sentatives of deceased persons relevant en- tries, memoranda, and declarations of de- ceased may be received in evidence. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. ( Annotated ) r. Miscellaneous. (See also same heading in Digest L.R.A. 1-70.) As part of record on appeal, see APPEAL AND ERROR, 193, 194. 847. The written record of an auction sale is admissible in evidence in an action to recover damages for failure to comply with the bid. Kennell v. Boyer, 24: 488, 122 N. W. 941, 144 Iowa, 303. 848. Statements furnished the govern- ment, of plant, labor, and material em- ployed by a contractor in work for it, are not admissible in evidence upon the ques- tion whether or not the contractor was de- layed by failure of one who had undertaken to furnish him with material in an action by the latter to compel payment for the material furnished. United States use of Hudson River Stone Supply Co. v. Molloy, ii : 487, 144 Fed. 321, 75 C. C. A. 283. 849. That an order declaring the adoption of a prohibitory law contains phrases not found in the statutory order, and omits cer- tain statutory exceptions not referring to- sales for beverage purposes, will not prevent its reception in evidence in a prosecution for selling liquor contrary to the statute, since, if the order declared that the pro- hibitory law was adopted, the provisions of the law would govern in determining guilt. State v. Billups, 48: 308, 127 Pac. 686, 63 Or. 277. Appraisement; inventory. 850. The inventory of the administrator of one killed by negligence is not admissible in evidence upon the question of damages for his death, as tending to show his abili- ty to earn and accumulate money. Cooper v. North Carolina R. Co. 3: 391, 52 S. E. 932, 140 N. C. 209. Mortality tables. 851. The American Table of Mortality is admissible in evidence upon the question of expectation of life. Illinois C. R. Co. v. Houchins, i: 375, 89 S. W. 530, 121 Ky. 526. 852. Wigglesworth's mortality tables are admissible in evidence, in an action by a widow to recover for the negligent killing of her husband, to show the expectancy of life of the deceased, who was fifty-six years old and in good health when he met hi death. Springfield Electric Light & P. Co. v. Calvert, 14: 782, 83 N. E. 184, 231 HI. 290. 853. A mortality table printed in a law book is not admissible in evidence, where it is not shown to have been in actual use for the purpose for which such tables are in- tended, or to have acquired a reputation for accuracy, unless its authenticity is estab- lished by competent evidence. Notto v. EVIDENCE, IV. r. 1137 Atlantic City R. Co. 17: 1138, 69 Atl. 968, 75 N. J. L. 826. Annotated) 854. Upon the question of the injury to a woman whose husband is incapacitated from supporting her by liquor sold him, the mor- tality tables are admissible in evidence, although she has procured a divorce from him. Merrinane v. Miller, 25: 585, 118 N. W. 11, 122 N. W. 82, 157 Mich. 279. Time tables. 855. Upon the question of the liability of a railroad company for breach of a con- tract by its ticket agent that a regular train would make its connections, and up- on the question of the credibility of the agent's testimony denying the contract, a time-table is not admissible in evidence, which contains the statement that the com- pany does not hold itself responsible for failure to make connections. Hayes v. Wa- bash R. Co. 31:229, 128 N. W. 217, 163 Mich. 174. Field book entries. 856. Field-book entries made by a de- ceased surveyor for the purpose of a survey on which he was professionally employed are admissible in evidence as having been made in the discharge of professional duty. Mellor v. Walmesley, 4 B. R. C. 728, [1905] 2 Ch. 164. Also Reported in 74 L. J. Ch. N. S. 475, 53 Week. Rep. 581, 93 L. T. N. S. 574, 21 Times L. R. 591. Maps; plats. Photograph, see infra, 887-893. 857. An objection to the introduction of a plat in evidence on the ground that it is not shown to be correct is removed by sub- sequent testimony of the surveyor verify- ing it. Greenleaf v. Bartlett, 14: 660, 60 S. E. 419, 146 N. C. 495. 858. Upon the question of the locality in which a blast is alleged to have been fired in violation of a municipal ordinance, a map is admissible in evidence in connection with testimony, and pencil marks made by a witness upon the map in the presence of court and jury, showing the location. Spokane v. Patterson, 8: 1104, 46 Wash. 93. Pac. 402, 859. A map made by a surveyor, proved to be correct, of the premises sued for in an action for land, and of other tracts adja- cent thereto, is admissible to go to the jury to illustrate other testimony in the case, and for the purpose of throwing light on the location of the land in controversy. Napier v. Little, 38: 91, 73 S. E. 3, 137 Ga. 242. 860. A tithe map and award, produced from proper custody, is a public document, and admissible in evidence on the question whether there was or was not a public road across two fields which appear in the map, such matter being within the scope and purview of the authority of the officials who made it. Attorney General v. Antro- bus, 4 B. R. C. 868, [1905] 2 Ch. 188. Also Reported in 74 L. J. Ch. N. S. 599, 69 J. P. 141, 92 L. T. N. S. 790, 21 Times L. R. 471, 3 L. G. R. 1071. Newspaper articles. copy of the copy of a letter stating that the writer intended to kill himself by drowning in the river, and furnished to the newspaper by an attorney to whom it had been com- mitted as attorney by the wife of the writer, to whom it was addressed, is inadmissible in evidence. Lindahl v. Supreme Court I. 0. of F. 8: 916, 110 N. W. 358, 100 Minn. 87. Market quotations. 862. Generally-accepted market quota- tions in a newspaper published in New York are admissible in evidence to show the market value of the commodity in Balti- more, where the evidence tends to show that the only difference in the two prices is the difference in the freight rate, which is shown. Mount Vernon Brewing Co. v. Teschner, 16: 758,'69 Atl. 702, 108 Md. 158. 863. Newspaper quotations which are shown to be accepted by the trade is trust- worthy and reliable statements of the market prices of a certain article are admissible as evidence of such price, with- out requiring evidence of how the informa- tion published is obtained. Mount Vernon Brewing Co. v. Teschner, 16: 758, 69 Atl. 702, 108 Md. 158. (Annotated) Entries in Bible. Prejudicial error as to, see APPEAL AND ERROR, 1166. Entries of temperature. 864. Entries of temperature in a dairy kept by an individual since deceased, not a part of any employment or duty, are not admissible in evidence in actions between strangers. Arnold v. Hussey, 51: 813, 88 Atl. 724, 111 Me. 224. (Annotated) Suhpcenaes. 865. In an action by a servant against the master for personal injuries, it is competent for the employee to introduce in evidence subpffinaes issued out of the trial court for certain witnesses who were present when the employee was hurt but who did not ap- pear and testify at the trial. Curtis & Gart- side Co. v. Pribyl, 49: 471, 134 Pac. 71, 38 Okla. 511. Papers of other persons generally. 866. Receipts, statements, and other evi- dences of liability in the handwriting of the principal are admissible evidence against the sureties, and prove prima facie liability on their part. Star Grocer Co. v. Bradford, 39: 184, 74 S. E. 509, 70 W. Va. 496. 867. Upon the question of the right of a tenant to remove a building from the leased property, a paper signed by the trflstee and beneficiary of the lessor, reciting that the building was erected with right of removal, is not admissible in evidence. Searle v. Roman Catholic Bishop, 25: 992, 89 N. E. 809, 203 Mass. 493. Insurance cases. Admissibility of entries by insurance agent since deceased, see supra, 801. Memoranda on policy register of deceased insurance agent, see supra, 844. Prejudicial error in excluding, see APPEAL AND ERROR, 1256. 868. Where the only issue raised with reference to a mutual benefit certificate upon 861. A newspaper alleged to contain a which suit is brought is whether or not a Digest 1-52 L.R.A.(N.S.) 72 1138 EVIDENCE, IV. B V. true copy is attached to the petition, the certificate is admissible in evidence, al- though not accompanied by the applica- tion and by-laws. Tackman v. Brotherhood of A. Y. 8: 974, 106 N. W. 350, 132 Iowa, 64. 869. A receipt signed by an agent of an insurance company, not as such agent, but as agent for a loan association, for repay- ment to him of money advanced to pay premiums for insurance on property in which it was interested, is not admissible, in an action upon an insurance policy, upon the question of a waiver of a forfeiture. Foreman v. German Alliance Ins. Co. 3: 444, 52 S. E. 337, 104 Va. 694. 870. Upon the question of the ownership of insured property claimed by retail mer- chants to have been bought by them from wholesalers on credit, a statement of the latter to their banker, showing the gross amount of accounts receivable owned by them, is not admissible in evidence, where it contains nothing to contradict the positive testimony of insured that they owned the property, while the amount named in the statement might well have included what insured owed on the property. Clute v. Clintonville Mut. F. Ins. Co. 32: 240, 129 N. W. 661, 144 Wis. 638. Proofs of death. 871. The proofs of death are admissible in evidence in an action upon a mutual -benefit certificate. Beard v. Royal . Neighbors of America, 19: 798, 99 Pac. 83, 53 Or. 102. 872. In an action on a fraternal benefit certificate, proofs of death furnished by the beneficiary are admissible in evidence when offered by the insurer. Rasicot v. Royal Neighbors of America, 29: 433, 108 Pac. 1048, 18 Idaho, 85. Street car transfers. 873. In an action for damages for the preparation of a street-car transfer so that it could not be used on the connecting car, in consequence of which the passenger was ejected therefrom, another transfer prepared at the same time is admissible in evidence as part of the res gestce, and to meet evi- dence of the employees that the transfers were cut mechanically so as always to be uniform. Montgomery Traction Co. v. Fitz- patrick, 9: 851, 43 So. 136, 149 Ala. 511. Receipted bills; releases. 874. Upon the question of the existence of a contract between a jobber and a consum- er, a receipted bill signed by the jobber is admissible in evidence. Knickerbocker Ice Co. v. Gardiner Dairy Co. 16: 746, 69 Atl. 405, 107 Md. 556. 875. It is not error to refuse to exclude from evidence a release of liability for neg- ligently killing a person, aigned by his ad- ministrator, as such, in an action by him to recover damages for the killing on be- half of the estate, on the theory that it was signed by him in his individual capacity, because it binds only him, his heirs, execu- tors, and administrators, since the question of the intent is for the jury. Olston v. Oregon Water Power & R. Co. 20: 915, 96 Pac. 1095, 97 Pac. 538, 52 Or. 343. Digest 1-52 I*R.A.(N.S.) Agent's reports. Report of corporate agent, see supra, IV. 1. 876. A statement of expenditures pre- pared at the instance of the principal by an agent who has just returned froi i a foreign trip not objected to at the time, is admissi- ble in evidence in an action by the agent for the salary and expenses of that trip as part of the res gestce, and cannot be re- jected as a self-serving document. Shepard v. Minneapolis Threshing Mach. Co. 18: 239, 97 Pac. 57, 50 Wash. 242. 8. Paper produced on notice. (See same heading in Digest L.R.A. 1-70.) t. Putting whole writing in evidence. (See also same heading in Digest L.R.A. 1-10.) 877. A severable and distinct admission in a letter tending to show guilt is admis- sible in evidence against the writer, al- though the remainder of the letter is lost or destroyed. State v. Corpening, 38: 1130, 73 S. E. 214, 157 N. C. 621. 878. A plaintiff may introduce the re- maining parts of a deposition which are relevant and competent, when defendant culls out and introduces certain portions of it. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. V. Demonstrative evidence; articles and things; view of jury. (See also same heading in Digest L.R.A. 1-10.) Review of discretion as to, see APPEAL AND ERROR, 639. Reversible error in admitting clothing of victim in homicide case, see APPEAL AND ERROR, 1127, 1128. Right of court to order disinterment of corpse for evidential purposes, see CORPSE, 16, 17. Of result of comparison between shoes of accused and foot prints as invasion of privilege against self-crimination, see CRIMINAL LAW, 107, 131. Exhibition of person to jury. As to physical examination in jury's pres- ence, see DISCOVERY AND INSPECTIO.V, II. 879. In an action to recover damages for injuries to the plaintiff's leg, necessitating its amputation, exhibition of the naked remnant is permissible. Ewing v. Lanark Fuel Co. 29:487, 65 S. E. 200, 65 W. Va. 726. 880. The jury cannot determine the age of the purchaser by inspection only in a prose- cution for illegally selling liquor to a minor, where at no time during the introduction of the evidence was its attention called to the fact that the prosecuting witness was EVIDENCE, V. 1139 on inspection for that purpose. Quinn v People, 40: 470, 117 Pac. 996, 51 Colo. 350. (Annotated) 881. The exhibition, by one seeking dam- ages for personal injuries, of the injured portion of his person to the jury, waives hi. right to object to the court's requiring him to re -exhibit it for examination by defend- ant's witnesses. Houston & T. C. R. Co. v. Anglin, 2: 386, 89 S. W. 966, 99 Tex. 349. (Annotated) Skull of person murdered. 882. Upon a trial for manslaughter, a portion of the skull of deceased is not ad- missible in evidence, where it has been bur- ied for a long time and the evidence does not clearly show that it is in the same condition that it was in at the time of burial. Self v. State, 12: 238, 43 So. 945, 90 Miss. 58. (Annotated) Clothing. Photograph of, see infra, 891. 883. That a shirt worn by one when as- saulted by another with a razor had been washed does not prevent its being received in evidence in a prosecution for 'crim- inal assault, to show the location and size of the cuts. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 884. In an action for damages for an as- sault and battery, a hat showing a break or rent at a place which, when worn, would be over or near the point of injury upon plaintiff's head, is admissible in evidence, where the evidence preliminary to its in- troduction showed that it was worn by plaintiff at the time of the alleged assault, that it was picked up immediately after the encounter near where he fell, and that it was presented in the same condition as when found, the contention of plaintiff being that the break could not have been made by de- fendant's fist, and that therefore some heavy and dangerous instrument was used by defendant in striking the blow com- plained of. Morris v. Miller, 20: 907, 119 N. W. 458, 83 Neb. 218. Footprints. Evidence as to footprints generally, see infra, 1989. 885. The constitutional provision against unreasonable searches and seizures does not prevent the introduction of evidence of a comparison of footprints with shoes forci- bly taken from one accused of crime. State v. Fuller, 8: 762, 85 Pac. 369, 34 Mont. 12. Sample of hay. 886. Upon the question whether or not good merchantable hay had been delivered as required by contract, a sample of the hay is not admissible in evidence, in the absence of anything to show that the jury would know what good merchantable hay was, or that the sample produced was a fair sample of what was delivered. Trego v. Arave, 35: 1021, 116 Pac. 119, 20 Idaho, 38. (Annotated) Photographs. X-ray photograph, see infra, 892, 893. Conclusiveness of photograph as evidence, see infra, 2270. Digest 1-52 L.R.A.(N.S.) Review on appeal of refusal to receive, see APPEAL AND ERKOR, 516. 887. Photographs of a railroad wreck, the accuracy of which are sworn to by the per- son who took them, are admissible in an action for personal injuries by one who was hurt in it. Louisville & N. R. Co. v. Brown, 13: 1135, 106 S. W. 795, 127 Ky. 732. 888. Photographs, duly verified, are ad- missible in evidence as aids to the jury in arriving at an understanding of the evi- dence, or of the situation or condition or location of objects or premises, material and relevant to the issues. Higgs v. Min- neapolis, St. P. & St. Ste. M. R. Co. 15: 1162, 114 N. W. 722, 16 N. D. 446. 889. Photographs and samples of orna- mental work in the office of an architect at the time a contract for such work on a building was signed by a contractor cannot be considered on the question of how the parties understood the contract, where the contractor never consented that the photo- graphs and samples were illustrative of the work that was to be furnished, and they were not identified by the contract as a part of it. Snead & Co. Iron Works v. Merchants' Loan & T. Co. 9: 1007, 80 N. E. 237, 225 111. 442. (Annotated) 890. A photographic 'copy, shown to be ac- curate, of an instrument admissible in evi- dence, but which cannot be produced be- cause in custody of public authorities, is ad- missible in evidence. Stitzel v. Miller, 34: 1004, 95 N. E. 53, 250 111. 72. 891. The trial court has discretion to ad- mit in evidence a photograph of wearing apparel taken from a murdered body, al- though the apparel is in court at the time of the trial. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. X-ray picture. Requiring submission to X-ray, see DIS- COVERY AND INSPECTION, III. 892. To render an X-ray photograph ad- missible in evidence, its accuracy must be established. Ligon v. Allen, 51: 842, 162 S. W. 536, 157 Ky. 101. (Annotated) 893. 894. That a sciagraph of an injured hip w#s taken five years after the injury does not render it inadmissible in evidence upon the question of the character of the in- jury. Bonnet v. Foote, 28: 136, 107 Pac. 252, 47 Colo. 282. Experiments. Evidence of experiments, see infra, XI. y. Review of discretion as to, see APPEAJL AND ERROR, 605. See also supra, 835. Phonograph. 895. Upon the question of damages to be allowed for diminution in value of the re- maining property in an eminent domain proceeding, a phonograph may be operated aefore the jury to reproduce sounds claimed to be incident to the conduct of the peti- tioner's business, where there is evidence to show that the result is a substantially ac- curate and trustworthy reproduction of the sounds actually made. Boyne City, G. & A. R. Co. v. Anderson, 8: 306, 109 N. W. 429, 146 Mich. 328. (Annotated) 1140 EVIDENCE, VI. a. View. Presumption that unauthorized view by jury resulted in prejudice, see APPEAL AND ERROR, 441. Presumption as to consent to view, by trial judge, see APPEAL AND ERROR, 469. Review of discretion in refusin'g view by jury, see APPEAL AND ERROR, 610. Prejudicial error in admitting, see APPEAL AND ERROR, 1475, 1526. New trial because of misconduct of jury sent to view locus in quo, see NEW TRIAL, 42. Eight of jurors to utilize knowledge gained in viewing premises, see TRIAL, 7. See also APPEAL AND ERROR, 235. 896. Failure to appoint a person to show to the jury the place they are sent to view is unimportant if they find and inspect the right place. Emporia v. Juengling, 19: 223, 96 Pac. 850, 78 Kan. 595. 897. An additional oath need not be ad- ministered to the officer in charge of the jury sent to view the locus in quo, unless required by statute. Emporia v. Juengling, 19: 223, 96 Pac. 850, 78 Kan. 595. 898. The provisions of Cobbey's Anno. (Neb.) Stat. 1903, 1268, permitting the jury to view property which is the subject of litigation whenever, in the opinion of the court, it is proper for them to do so, au- thorizes the court, in its discretion, to re- quire the jury to view any such property within the state. Beck v. Staats, 16: 768, 114 N. W. 633, 80 Neb. 482. VI. Parol and extrinsic evidence con- cerning writings. a. Jn general. (See also same heading in Digest L.R.A. 1-70.} Parol evidence as best or secondary evi- dence, see supra, III. Sufficiency of evidence to overcome writing or pleading, see infra, XII. g. Curing error in admission of, see APPEAL AND ERROR, 839. Prejudicial error in admitting, see APPEAL AND ERROR, 1098. As to oral contracts generally, see CON- TRACTS, I. e. Modification of contract by subsequent parol agreement, see CONTRACTS, 707-710. To impeach award in eminent domain pro- ceedings, see EMINENT DOMAIN, 169- 171. Rule against taking of oral evidence in court in chancery case, see REFERENCE, 4. Motion to strike out, see TRIAL, 52. 899. The reduction of one feature of an entire transaction to writing in part exe- cution thereof does not preclude proof by parol of the other features and the enforce- ment of the intention of the parties as evi- denced by the entire transaction. Smith v. Pfluger, 2: 783, 105 N. W. 476, 126 Wis. 253. Digest 1-52 I*R.A.(N.S.) 900. Parol evidence is admissible to show that a written contract apparently good on its face is a mere cover for an illegal trans- action. Manufacturers' & M. Inspection Bu- reau v. Evervvear Hosiery Co. 42: 847, 138 N. W. 624, 152 Wis. 73/ 901. The execution of a power of attor- ney by one who has placed securities in another's hands, several years after it was done, which does not purport to embody the original agreement as to their disposition, will not exclude oral evidence of what the original agreement was, on the theory that it tends to vary the terms of a written instrument. Mollison v. Rittgers, 29: 1179, 118 N. W. 512, 140 Iowa, 365. 902. The rule against parol testimony to vary written contracts does not apply to usurious agreements. France v. Munro, 19: 391, 115 N. W. 577, 138 Iowa, 1. 903. While evidence dehors the record is competent to explain a doubt or uncertainty in the case of a latent ambiguity in a writ- ten contract, it cannot be introduced in a suit at law, for the purpose of reconstruct- ing tKe contract in suit as a basis for the liability alleged in the declaration. Kup- ferschmidt v. Agricultural Ins. Co. (N. J. Err. & App.) 34:503, 78 Atl. 225, 80 N. J. L. 441. 904. Where the report of a railroad com- mission shows affirmatively what facts were before it upon which it based its conclusion as to the value of the property of a public utility corporation, it is not competent to resort to parol evidence in regard to such facts. Appleton Waterworks Co. v.' Rail- road Commission, 47: 770, 142 N. W. 476, 154 Wis. 121. 905. Evidence is admissible in an action by a tenant of an apartment to hold the landlord liable for injury to his property by a defect in the heating apparatus, that at the time of the leasing, the landlord's agent told him that the apartment was heated by steam, where the lease is silent upon the subject and the heating apparatus attached to the central plant was in place when the conversation took place. O'Hanlon v. Grubb, 37: 1213, 38 App. D. C. 251. 906. A witness may properly characterize a notice which he posted, as one that a field of corn was taken on execution and was in his possession, when the purpose is not to prove the contents of a writing, but to show what the witness did, especially when it fairly appears that the notice ia lost. National Bank v. Duff, 16: 1047, 94 Pac. 260, 77 Kan. 248. 'What is a -writing; precluding parol evidence as to its terms. 907. Acceptance of a proposed contract contained in a letter, by acting under it for a period of time, is sufficient, without for- mal signature of it, to exclude parol evi- dence of its terms. Manufacturers' & M. Inspection Bureau v. Everwear Hosiery Co. 42: 847, 138 N. W. 624, 152 Wis. 73. 908. An unaccepted written statement by one party to an oral contract, stating his version of the agreement, does not reduce the contract to writing in favor of the EVIDENCE, VI. a. 1141 other person so as to preclude the writer from giving oral evidence of the terms of the contract. Shubert v. Rosenberger, 45: 1062, 204 Fed. 934, 123 C. C. A. 934. Deeds; acknowledgment. Parol evidence as to meaning or intention of parties, see infra, 976-978. Evidence as to consideration, see infra, 1006-1015. Evidence of condition, see infra, 1023, 1024. Evidence that deed was intended as a mort- gage, see infra, 1030-1033.' Estoppel by deed to deny giving of deed, see ESTOPPEL, 25. In aid of defective title, see VENDOB AND PURCHASER, 50. See also infra, 940, 941, 950. 909. On a bill for rescission of a deed of coal lands, parol evidence to prove expec- tancy of a particular vein or a representa- tion of the presence thereof in the land is inadmissible. Light v. Grant, 51: 792, 79 S. E. 1011, 73 W. Va. 56. 910. In a suit upon a bond, evidence is ad- missible to show that it was given for money advanced to the obligor, and was to be accounted for as an advancement in the settlement of the estate of the obligee, and was not to be repaid unless needed to pay debts of such estate. Kernodle v. Williams, 34: 934, 69 S. E. 431, 153 N. C. 475. 911. Acceptance of a deed of real estate renders inadmissible, in an action to fore- close a mortgage thereon, testimony that the defendant grantee, prior to the accept- ance of the deed, stated, "that he would not accept a deed and become responsible for the encumbrance under any circumstances." Herrin v. Abbe, 18: 907, 46 So. 183, 55 Fla. 769. 912. The testimony of the parties to a certificate of acknowledgment of a deed regular on its face, denying both the execu- tion of the deed and the acknowledgment, is admissible to impeach their certificate, as a certificate of acknowledgment is only prima facie evidence of the execution of the instrument. People's Gas Co. v. Fletch- er, 41: 1161, 105 Pac. 34, 81 Kan. 76. Insurance contract. Evidence as to intention of parties, see infra, 983. Evidence of fraud, see infra, 1017. 913. The principle that a contract in writ- ing, free from doubt and -ambiguity, must be permitted to speak for itself, and qannot, at the instance of one of the parties, be al- tered or contradicted by parol evidence, un- less in case of fraud or mutual mistake of facts, is applicable to contracts of insurance. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, 16 Okla. 59. 914. A contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and can- not, by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts ; and this prin- ciple is applicable to contracts of insur- ance. Deming Invest. Co. v. Shawnee F. Ins. Co. 4: 607, 83 Pac. 918, 16 Okla. 1. Digest 1-52 L.R.A.(N.S.) 915. In an action on an insurance policy evidence is not admissible that the agent stated that the policy would include a risk which, by the express terms of the policy, is excluded. Kelsey v. Continental Casual- ty Co. 8: 1014, 108 N. W. 221, 131 Iowa, 207. 916. Under a statute providing that an acknowledgment on the policy, of the re- ceipt of premium, is conclusive evidence of its payment so far as to make the policy binding, the insurer cannot be permitted to show that the actual date of the issuance of a policy of life insurance was of a later date than the date recited in the contract, where the policy contains an acknowledgment of the receipt of the premium. Harrington v. Mutual L. Ins. Co. 34: 373, 131 N. W. 246, 21 N. D. 447. 917. Parol evidence is admissible of acts tending to show an estoppel upon an insur- ance company to take advantage of false answers in an application, notwithstanding provisions in the policy that no waiver shall be effective unless indorsed in writing on the policy at the home office of the insurer. People's F. Ins. Asso. v. Goyne, 16: 1180, 96 S. W. 365, 79 Ark. 315. (Annotated) 918. One sued upon a duebill given for the first premium of a life insurance policy cannot be permitted to show by parol that it did not embody the contract of the par- ties, but that, instead of undertaking to pay the amount called for, defendant had agreed to surrender an old policy, and pay a much smaller premium than that designat- ed. Woodson v. Beck, 31: 235, 65 S. E. 751, 151 N. C. 144. (Annotated) 919. Parol evidence is admissible to show that, when a policy of insurance was issued on a building, it was in process of erection, and, therefore, could not be occupied, within the meaning of a clause making the policy void if the premises became vacant by re- moval of the occupant; since such evidence does not contradict the terms of the policy. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. 920. An insurance policy taken in the in- dividual name of the administrator on prop- erty in his possession for payment of debts cannot by parol evidence be made to cover the interest of the estate and heirs at law. Stanley v. Firemen's Ins. Co. 42: 79, 84 Atl. 601, 34 R. I. 491. (Annotated) 921. Evidence that agents of a fire insur- ance company knew, at the time they issued a policy, that the insured had no fireproof safe, avid orally informed him that the fire- proof-safe clause in the policy would not be insisted upon by the insurer, is inadmis- sible, in an action brought on the policy, to show a waiver of its terms, where the agents' authority in that regard is limited by the express terms of the policy to writ- ten waivers indorsed thereon. Gish v. In- surance Co. of N. A. 13: 826, 87 Pac. 869, 16 Okla. 59. Bill of lading. . 922. A bill of lading issued by a common carrier, and signed and accepted by the shipper, constitutes a contract for the ship- ment of merchandise therein described, the 1142 EVIDENCE, VI. b, c. terms of which cannot be varied by parol testimony. Whitnack v. Chicago, B. & Q. R. Co. 19: ion, 118 N. W. 67, 82 Neb. 464. Railroad ticket. 923. The actual contract between a rail- road company and a passenger may be shown by parol, notwithstanding the lan- guage of the ticket. Hayes v. Wabash R. Co. 31: 229, 128 N. W. 217, 163 Mich. 174. 924. Upon trial of an action against a railroad company for ejecting a passenger who attempted to take a route not covered by his ticket, evidence is admissible as to instructions given the passenger by the ticket agent, not as varying the contract, but as tending to show defendant's inter- pretation of it. Mace v. Southern R. Co. 24: 1178, 66 S. E. 342, 151 N. C. 404. Sale. As to warranty, see infra, 944, 945. Parol evidence as to intention of parties, see infra, 966, 981, 982. Evidence of fraud, see infra, 1016. Evidence as to condition, see infra, 1022. See also infra, 956. 925. A memorandum of sale of personal property delivered by an agent to a pur- chaser may be shown by parol evidence to have been delivered subject to approval by the principal. Gunzburger v. Rosenthal, 26: 840, 75 Atl. 418, 226 Pa. 300. Wills. Evidence as to testator's meaning or inten- tion, see infra, 969-975. Parol evidence of mistake, see infra, 1020. Evidence to identify legatees, see infra, 1035, 1036. See also REFORMATION OF INSTRUMENTS, 1. 926. Parol evidence is admissible to show the original contents of a will which has been altered by a stranger. Re Diener, 14: 259, 113 i\ T . W. 149, 79 Neb. 569. 927. Parol evidence is admissible to sup- ply the township, county, range, and state in case a devise of lands is described mere- ly as parts of certain sections. Graves v. Rose, 30: 303, 92 N. E. 601, 246 111. 76. 928. Proof that testator did not own the land described in his will as certain sub- divisions of a section will not make admis- Bible parol evidence to transfer the descrip- tion to the land he did own, by changing the letters used to indicate such subdivi- sions. Graves v. Rose, 30: 303, 92 N. E. 601, 246 111. 76. Telegrams. 929. Oral evidence of the contents of a telegram is admissible in an action to hold the company liable for refusal to transmit it. Western U. Teleg. Co. v. Lillard, 17: 836, 110 S. W. 1035, 86 Ark. 208. Date; time. See also supra, 916. 930. Parol evidence that a written instru- ment bearing date on one day was executed on a different day is competent. Erickson v. Robertson, 37: 1133, 133 N. W. 164, 116 Minn. 90. 931. Parol evidence is not admissible to vary the specific terms as to the time at which an obligation becomes due. Boise 1 Digest 1-52 L.R.A.(N.S.) Valley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. 932. Where a written contract for the sale of goods specifies no time for delivery, parol evidence tending to show that a def- inite time was agreed upon is not admis- sible, since where no time for delivery is stated in the contract the implication arises that delivery will be made within a rea- sonable time, and to rebut that implica- tion by parol would vary the contract. Cameron Coal & M. Co. v. Block, 31: 618, 110 Pac. 720, 26 Okla. 615. (Annotated) 933. When the records of the legislature show the time of adjournment, and are clear and unambiguous respecting the same, they are conclusive; and extraneous evi- dence cannot be admitted to show a differ- ent date of adjournment. Capito v. Top- ping, 22: 1089, 64 S. E. 845, 65 W. Va. 587. ft. Custom or usage. (See also same heading in Digest L.R.A. 1-70.} 934. Proof of custom is not admissible to show that an absolute written contract to furnish all coal needed between certain dates was not to be binding in case of a strike. Covington v. Kanawha Coal & Coke Co. 3: 248, 89 S. W. 1126, 121 Ky. 681. (Annotated) c. Prior and collateral parol agree- ments. (See also same heading in Digest L.R.A. 1-10.) Matters as to commercial paper, see infra, VI. f. See also supra, 925; infra, 2082. 935. In the absence of fraud or mutual mistake, no representation, promise, or agreement made, or opinion expressed, in previous parol negotiations, as to the terms or legal effect of a resulting writ- ten contract, can be permitted to prevail, either in law or in -equity, over the plain provisions and proper interpretation of the contract. Connecticut F. Ins. Co. v. Bu- chanan, 4: 758, 141 Fed. 877, 73 C. C. A. 111. 936. The theory that proof of prior and contemporaneous negotiations and repre- sentations, though not admissible to vary the terms or legal effect of the written con- tract, may be received for the purpose of raising an estoppel in pais is a mere eva- sion of the salutary rule which protects written contracts from impeachment by loose collateral evidence, and, upon princi- ple and authority, is not tenable. Connec- ticut F. Ins. Co. v. Buchanan, 4: 758, 141 Fed. 877, 73 C. C. A. 111. 937. A materialman may show a parol agreement between a conditional vendor and his vendee from which authority to pur- chase material to impro've the property may directly appear or be inferred, and is not bound by the terms of the written agree- EVIDENCE, VI. d, e. 1143 ment between them. Belnap v. Condon, 23: I 601, 97 Pac. Ill, 34 Utah, 213. 938. Evidence of an oral guaranty is ad- missible in an action based upon a contract contained in an order letter and a bill of the parcels delivered, since the letter and bill are not of such a formal character as to indicate that all previous negotiations were merged in them. Leavitt v. The Fiberloid Co. 15: 855, 82 N. E. 682, 196 Mass. 440. 939. Parol evidence is admissible to show an agreement that a building erected on leased property was to belong to the lessee, in an action by the tenant to assert title. Searle v. Roman Catholic Bishop, 25: 992, 89 N. E. 809, 203 Mass. 493. 940. The vendor of realty may show by parol evidence that crops growing thereon were reserved, although no such reserva- tion was made in the deed of conveyance. Cooper v. Kennedy, 31: 761, 124 N. W. 1131, 86 Neb. 119. 941. Evidence of a parol agreement made prior to, or at the time of, the execution of a deed, to the effect that the grantor ex- cepted from the operation of the convey- ' ance certain buildings standing upon the premises conveyed, is inadmissible in an ac- tion by the grantor to recover the value of the property, which was destroyed by fire originating upon the property of an- other, from which it was subsequently per- mitted to escape. Mahaffey v. J. L. Rum- barger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 942. In an action for breach of a written contract to purchase machinery, evidence is not admissible of a contemporaneous oral agreement that work should not be begun on its construction until receipt of notice from the purchaser, where it is not only in- consistent with the written contract, but the written contract expressly provides that all pre-. !ous communications between the parties are annulled, and that no modifica- tion of the agreement shall be binding un- less in writing. Ridgeway Dynamo & E. Co. v. Pennsylvania Cement Co. 18: 613, 70 Atl. 557, 221 Pa. 160. 943. A parol agreement made before the execution of a lease, which requires the payment of rent quarterly in advance, that the lessor will take a bill payable at three months by way of payment of each quar- ter's rent as it becomes due, is not a col- lateral agreement in the nature of a condi- tion upon which the lease was entered into, and therefore is not admissible in evidence to vary the terms of the lease. Henderson v. Arthur, 3 B. R. C. 73, [1907] 1 K. B. 10. Also Reported in 76 L. J. K. B. N. S. 22, 95 L. T. N. S. 772, 23 Times L. R. 60. Warranty. 944. Liability for breach of warranty that the apparatus installed will produce certain results cannot be established by parol under a written contract to furnish certain elec- trical apparatus, to be first-class and of latest type, all work to be done in first- class manner. Electric Storage Battery Co. v. Waterloo C. F. & N. R. Co. 19: 1183, 11G N. W. 144, 138 Iowa, 369. (Annotated) Digest 1-52 L.R.A.(N.S.) 945. Breach of a parol warranty of a chattel may be proved as a defense to an action on a promissory note which recites that its consideration is the purchase price of such chattel, but is otherwise silent as to terms, representations, and warranties, since such recital does not indicate that the terms of the sale have been integrated in the writing. Pryor v. Ludden & B. South- ern Music House, 28: 267, 67 S. E. 654, 134 Ga. 288. (Annotated) As an inducement. 946. An undertaking of a grantee of land to assume and pay a mortgage on the prop- erty may be shown by parol. Senninger v. Rowley, 18: 223, 116 N. W. 695, 138 Iowa, 617. 947. Although a contract for employment is partly in writing, evidence is admissible of a parol stipulation on the part of the em- ployee not to engage in business in compe- tition with his employer. Turner v. Ab- bott, 6: 892, 94 S. W. 64, 116 Tenn. 718. 948. The enforcement of a promise by those engaged in subdividing and selling a tract of land, that they will lay pavements and water mains, and secure the extension of street car service to the tract, is not pre- vented by the fact that it was not incor- porated into the written agreement of sale, and its enforcement would tend to vary the written contract. Anderson v. American Suburban Corp. 36: 896, 71 S. E. 221, 155 N. C. 131. (Annotated) 949. One who, after lending money to a corporation, gives his note for corporate stock to the president, who induces him to make the loan and take the stock upon the agreement . that he will not be called upon to pay his note until the loan is re- paid by the corporation, may set up such agreement as a defense to a suit on the note by the original payee. Gandy v. Weck- erly, 18: 434, 69 Atl. 858, 220 Pa. 285. (Annotated) d. Subsequent changes, (See also same heading in Digest L.R.A. 1-10.) 950. Parol evidence is admissible to show a change in the relation of parties to real estate under a contract for its transfer, in a proceeding to enforce a succession tax against it. Re Lamb, 18: 226, 117 N. W. 1118, 140 Iowa, 89. 951. Where the use of private seals has been abolished, parol evidence is admissible to show ratification by a principal of a seal- ed contract made by his broker in his own name without authority, for the sale of a parcel of real estate. McLeod v. Morrison & Eshelman, 38: 783, 120 Pac. 528, 66 Wash. 683. (Annotated) e. Meaning; intention; explanation. (See also same heading in Digest L.R.A. 1-10.) As to commercial paper, see infra, VI. f. 1144 EVIDENCE, VI. e. Fraudulent intent, see infra : VI. h. Evidence of condition, see infra, VI. i. Admissibility of circumstances to explain, < see infra, 1037. Prejudicial error as to, see APPEAL AND ERBOB, 1196. Merger of contract, see CONTRACTS, I. g. Parol evidence of prior conduct to aid in interpretation of contract, see CON- TRACTS, 364. See also supra, 899, 903, 919; infra, 1361. 952. Parol evidence is not admissible of the understanding of the parties as to th meaning of a clause in a contract the language of which is plain and unambig- uous. Hawley v. Kafitz, 3: 741, 83 Pac. 248, 148 Cal. 393. 953. If the language of the bond of a pub- lic official is not sufficiently specific in the designation of his office to be free from am- biguity, the ambiguity may be removed by parol evidence. Kuhl v. Chamberlain, ax: 766, 118 N. W. 776, 140 Iowa, 546. 954. In case a settlement with one of sev- eral joint tort feasors is in writing, oral evidence is competent to show the intention of the parties thereto in an action against one not a party to the settlement. Fitz- gerald v. Union Stock Yards Co. 33: 983, 131 N. W. 612, 89 Neb. 393. (Annotated) 955. When the fact that the purpose of a contract is to effect a renunciation of mari- tal rights and obligations is not obscure or doubtful, evidence is not admissible to contradict this intent. Hill v. Hill, 12: 848, 67 Atl. 406, 74 N. H. 288. 956. As against the tax officers, the par- ties to a contract which on its face purports to be a sale of real estate may testify that it was intended to be a mere option. Re Shields, 10: 1061, 111 N. W. 963, 134 Iowa, 559. 957. Parol evidence is admissible to show the practical interpretation of the rights of the parties under a contract for the con- veyance of real estate in consideration of support to be furnished, where the papers themselves are ambiguous, in a proceeding to assess an inheritance tax on the proper- ty. Re Lamb, 18: 226, 117 N. W. 1118, 140 Iowa, 89. 958. Upon the question of the interpreta- tion of unambiguous written contracts be- tween a mortgagor and an assignee of the mortgage, evidence of transactions between mortgagor and the original mortgagee is not admissible. Bartlett Estate Co. v. Fair- haven Land Co. 15: 590, 94 Pac. 900, 49 Wash. 58. 959. Evidence of a conversation between one who guaranteed another's account and the latter, in the absence of the one to whom the guaranty is addressed, is not ad- missible against the latter, for the purpose of showing the meaning in which the guar- antor intended the instrument to be under- stood. Newcomb v. Kloeblen, 39: 724, 74 Atl. 511, 77 N. J. L. 791. 960. Upon the question of the meaning of a written contract to drill a well which shall furnish a certain amount of water per Digest 1-52 L.R.A.(N.S.) month, evidence is admissible to show that the contractor knew the purpose for which the water was to be used, that a supply of salt water was readily accessible, and that he stated that he would furnish a quality of water equal to that of another well men- tioned. Smith v. Vose & Sons Piano Co. 9: 966, 80 N. E. 527, 194 Mass. 193. (Annotated) 961. One who has taken a judgment under a stipulation that he might have judgment for a specified sum in full satisfaction and settlement of all claims made in a petition which purported to state a cause of action for assault may, for the purpose of avoid- ing the effect of the payment of such judg- ment as a release of a judgment obtained against a third person for the same assault and under a substantially similar petition, show by extrinsic evidence that the former judgment was not rendered on the theory of compensation for an injury done to the plaintiff therein, that the defendant in such judgment was not in fact liable; and that there was no intent to satisfy a claim for injuries, but that the sole consideration for the stipulation was the avoidance of the expense of a trip by the defendant to defend the suit. Ryan v. Becker, 14: 329, 111 N. W. 426, 136 Iowa, 273. (Annotated) Of particular words. Opinion evidence as to, see infra, 1136. 962. A covenant "to pay" in a written instrument is not so ambiguous an expres- sion as to permit the introduction of evi- dence of an antecedent parol agreement that the stipulated payment might be made by giving an obligation. Henderson v. Arthur, 3 B. R. C. 73, [1907] 1 K. B. 10. Also Reported in 76 L. J. K. B. N. S. 22, 95 L. T. N. S. 772, 23 Times L. R. 60. (Annotated) 963. In an action by a sales agent to recover compensation under a contract which contains a provision for reimburs- ing him for money paid unknown persons as bonuses, evidence is admissible that the bonuses were used to influence purchasing agents in order to secure their business. Smith v. David B. Crockett Co. 39: 1148, 82 Atl. 569, 85 Conn. 282. 964. The commission referred to in a written contract permitting a real estate broker to deduct expenses and commission from th'e proceeds of the sale of certain real estate may, where the commission re- ferred to is not designated, be shown by parol to mean a commission earned by the sale of other lands. Kvamme v. Barthell, 31:207, 118 N. W. 766, 144 Iowa, 418. 965. Where, by deeds executed the same day, land is granted to one person, "ex- cepting and reserving therefrom a strip of land" of certain width, "to be used as a right of way," and this strip, "being the same premises as described in the other deed as a right of way," is granted to an- other, reserving the timber thereon, suf- ficient ambiguity exists as to grantor's in- tention to admit extraneous evidence in ex- planation. Pritchard v. Lewis, i : 565, 104 N. W. 989, 125 Wis. 604. EVIDENCS, VI. e. 1145 966. Parol evidence is inadmissible to show that the parties to a contract for the sale of a stock of goods, by which the pur- chaser agreed to assume and pay the "out- standing and open account" held by a cer- tain creditor, intended to include in such account promissory notes held by the cred- itor. Kramer v. Gardner, 22: 492, 116 N. W. 925, 104 Minn. 370. 967. Parol evidence of declarations and admissions of the vendor at the time the bargain of sale was made and the deed ex- ecuted is admissible to show that the right to use water from a drainage ditch was intended to pass by the words "privileges and appurtenances," in a deed of real es- tate, especially where it is conceded that the right to water from another ditch, also on the land, did pass. Fayter v. North, 6: 410, 83 Pac. 742, 30 Utah, 156. 968. Parol evidence is admissible to show that the term "as per your conversation," as used in the writing "as per your con- versation ... to supply ice at the rate of thirty cents per ton (30), we herewith send you the following orders to be shipped at once," to various points "via" specified railroads, none of which reached the con- templated loading place, referred to the fact that such price for the ice was made on con- dition of its being shipped out over a speci- fied railroad whose track reached the load- ing place, so as to prevent defendant re- ceiving credit, when sued for the contract price of the ice, for the difference between what the freight charges would have been had the ice been shipped as requested in the writing and what they were over the road agreed upon in the conversation by which it was shipped. Klueter v. Joseph Schlitz Brewing Co. 32: 383, 128 N. W. 43, 143 Wis. 347. (Annotated) Wills. Admissibility of testator's declarations to show intention, see infra, 1439-1443. See also supra, 926-928; REFORMATION OF INSTRUMENTS, 1; WILLS, 122, 399. 969. Parol evidence is not admissible to show that testator did not intend an instru- ment executed in pursuance of the formal requirements of the statute of wills to be a will. ' Re Kennedy, 28: 417, 124 N. W. 516, 159 Mich. 548. (Annotated) 970. It is not competent to allow the scrivener who writes the will, to testify what the intention of the testator was as to the devise of certain lands, or what the scrivener's intention was with reference to describing the boundaries of the lands de- vised. Napier v. Little, 38: 91, 73 S. E. 3, 137 Ga. 242. (Annotated.) 971. Where one devises a portion of his estate and there is property upon which the will can operate, evidence is not ad- missible for the purpose of enlarging the devise so as to include property belonging to another. McDonald v. Shaw, 28: 657, 121 S. W. 935, 92 Ark. 15. 972. Parol evidence is admissible to show that testator intended to bequeath the stock owned by him, wh6re he attempts to give Digest 1-52 L.R.A.(N.S.) stock in a bank which does not exist under the name used by him in distributing the stock. Re Snyder, 11:49, 66 Atl. 157, 217 Pa. 71. 973. Parol evidence is admissible for the purpose of showing that a child was in- tentionally omitted from a will, under a statute providing that if a parent omits to provide for a child in his will, such child will take the same share of the estate which he would have taken had such parent died intestate, "unless it appears that such omis- sion was intentional." Re Motz, "51: 645, 145 N. W. 623, 125 Minn. 40. (Annotated ) 974. Extraneous evidence is admissible upon the question whether or not money paid by a testator to his niece towards whom he does not stand in loco parentis was intended as a satisfaction of a legacy provided for her in his will. Johnson v. McDowell, 38: 588, 134 N. W. 419, 154 Iowa, 38. 975. Where the boundaries of lands de- vised by a will are fixed, and this fact is patent upon the face of the will itself, but the description of the land comprised with- in those boundaries is ambiguous, parol tes- timony is admissible to adjust the descrip- tion to the boundaries so fixed, but not for the purpose of changing the boundaries. Napier v. Little, 38: 91, 73 S. E. 3, 137 Ga. 242. As to construction of deeds generally. Intent as to consideration, see infra, 1010. Evidence that deed was intended as a mort- gage, see infra, 1030-1033. 976. Testimony of husband and wife as to the intention in placing the title to real estate in her name is competent in an ac- tion to quiet the husband's title against her judgment creditors. Fulkerson v. Stiles, 26: 181, 105 Pac. 966, 156 Cal. 703. 977. When ambiguity in the terms of a deed renders the meaning uncertain, parol evidence of the conditions under which it was executed and the character and situa- tion of the property may be considered, in connection with its terms, in arriving at the intention of the parties, which is the test by which to determine its legal effect. Clayton v. Gilmer County Court, 2: 598, 52 S. E. 103, 58 W. Va. 253. That deed was intended as will. 978. An unambiguous deed of bargain and sale cannot be converted into a will by parol evidence tending to show an animus testandi in the maker. Noble v. Fickes, 13: 1203, 82 N. E. 950, 230 111. 594. (Annotated) Intention of sureties on bond. 979. It is competent for the sureties up- on a school district treasurer's bond to tes- tify that, in signing the bond and leaving it with the school officer, it was not their intention to deliver the bond without the principal's signature. School Dist. No. 80 v. Lapping, 12: 1105, 110 N. W. 849, 100 Minn. 139. 980. Parol evidence is not admissible to show the intention of the sureties on the contractor's bond, under a contract to erect a building for a county and pay all claims for labor performed and materials furnished, 1146 EVIDENCE, VI. f. and give bond to that effect, and the bond conditioned that, if the contractor shall pay all claims for labor performed and material furnished, then the obligation shall be void. United States Gypsum Co. v. Gleason, 17: 906, 116 N. W. 238, 135 Wis. 539. Intention of parties to bill of sale. See also supra, 966. 981. The intention to convey a gasolene engine located on a farm, by bill of sale of the personalty rather than by a deed of the realty, cannot be shown by parol, where such intention does not appear in the instrument, although during the negotiation a list of personalty containing the engine was shown to the grantee of the realty. State Security Bank v. Hoskins, 8: 376, 106 N. W. 764, 130 Iowa, 339. 982. The purchaser in a contract for the sale of machinery which shall be satisfac- tory to him cannot be shown by parol to have believed that the seller understood by its terms that the machinery would be satis- factory if it did certain work, even under a statute that, when the terms of an agree- ment have been intended in a different sense by the parties to it, that sense is to prevail, against either party, in which he had rea- son to suppose the other understood it. Imnan Mfg. Co. v. American Cereal Co. 8: 1140, 110 N. W. 287, 133 Iowa, 71. ( Annotated ) Intention of parties to insurance con- tract. 983. A policy of fire insurance made pay- able to a first mortgagee in the standard mortgage clause cannot be altered by ex- trinsic testimony in a suit at law by the second mortgagee to recover thereon, for the purpose of establishing that the inten- tion of the parties to the contract was to include the second mortgagee as a party to the contract. Kupferschmidt v. Agri- cultural Ins. Co. (N. J. Err. & App.) 34: 503, 78 Atl. 225, 80 N. J. L. 441. (Annotated) Ordinances. 984. Evidence of the ordinary construc- tion placed upon a municipal ordinance pro- hibiting buildings of a certain character from being erected within prescribed fire limits is admissible to aid in its proper construction, where it is of ambiguous or doubtful meaning. Sylvania v. ' Hilton, 2: 483, 51 S. E. 744, 123 Ga. 754. /. As to commercial paper. (See also same heading in Digest L.R.A. 1-10.) Presumption as to, see supra, 448. Parol evidence as to, see infra, 990, 991. Evidence as to fraud, see infra, 1018. Evidence of condition, see infra, 1026. See also supra, 931, 949. 985. Parol evidence is inadmissible to es- tablish an oral agreement contemporaneous with the making of a negotiable instrument, whereby the instrument was not to be ne- Digest 1-52 KR.A.(N.S.) gotiatcd. Benton v. Sikyta, 24: 1057, 12 2 N. W. 61, 84 Neb. 808. 986. Parol evidence is admissible to show that a promissory note which was signed and delivered was not to take effect until the payee had secured a loan for the maker. Smith v. Dotterweich, 33: 892, 93 N. E. 985, 200 N. Y. 299. 987. In an action on a note naming a cer- tain rate of interest, parol evidence is not admissible to the effect that another rate was agreed upon. Cochran v. Zachery, 16: 235, 115 N. W. 486, 137 Iowa, 585. 988. Parol evidence is not admissible to show that a provision in a note, agreeing to pay the attorneys of the maker's wife the amount named in the instrument upon her obtaining a divorce, was intended as a pro- vision of alimony for her. Pierce v. Cobb, 44: 379, 77 S. E. 350, 161 N. C. 300. 989. Representations made prior to, or contemporaneous with, the execution of a note, complete on its face and given as sub- scription to aid in the construction of a proposed railroad, are inadmissible to con- tradict, change, or add to conditions plain- ly incorporated into and made a part of the note, under a statute providing that a contract in writing supersedes all oral ne- gotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution thereof. Guthrie & W. R. Co. v. Rhodes, 21: 490, 91 Pac. 1119, 19 Okla. 21. Consideration. See also infra, 1005. 990. In an action by a bona fide holder on a promissory note, evidence of conversa- tion with persons not parties to the action, but who were parties to a general scheme in the course of which the note in suit and others were given, is admissible to show the consideration. Exchange Nat. Bank v. Hen- derson, 51: 549, 77 S. E. 36, 139 Ga. 260. 991. In an action by a bona fide holder of a promissory note which does not dis- close the consideration therefor on its face, evidence tending to show that the consid- eration therefor was the votes and political influence of the payee, is admissible. Ex- change Nat. Bank v. Henderson, 51: 549, 77 S. E. 36, 139 Ga. 26. True relation of parties. See also infra, 1000, 1187-1189. 992. In an action between original par- ties to a negotiable instrument, oral evi- dence is admissible to prove an agreement between or among them different from that indicated by the relative positions of their signatures on the paper. Haupt v. Vint, 34: 518, 70 S. E. 702, 68 W. Va. 657. 993. Where the indorsement on checks deposited for collection is unrestricted, but there is an agreement that the indorsee is in fact merely an agent for collection, that fact may be shown, and, if the agency is a naked agency to collect, the indorser may revoke the agency and make a settle- ment with the drawer of the checks. Citi- zens' State Bank v. E. A. Tessman & Co. 45: 606, 140 N. W. 178, 121 Minn. 34. 994. Where a promissory note, made pay- EVIDENCE, VI. g. 1147 able to one who is alleged to be principal and signed by one who is alleged to be an agent of the payee, and who adds the ab breviation "agt." to his signature, is in dorsed with the name of the alleged princi pal, followed by the name of the allegec agent, who again adds to his signature the abbreviation "agt.," parol evidence is ad missible, as between a bank which discount ed the note and the agent, to show that il was intended as the obligation of the principal, to the knowledge of the bank Clark v. Talbott, 44: 731, 77 S. E. 523, 72 W. Va. 46. 995. An insurance company whose name does not appear upon a promissory note given to an agent thereof in payment of a premium upon a policy of life insurance cannot be charged as an indorser thereof by parol proof that the agent, the nominal payee, in accepting and indorsing the note was acting as its authorized agent, where nothing upon the face of the note suggests the existence of the agency. New York L. Ins. Co. v. Martindale, 21: 1045, 88 Pac. 559, 75 Kan. 142. (Annotated) Indorsements. See also supra, 993-995. 996. A bank which, in order to facilitate the collection of a customer's note, places its unrestricted indorsement thereon, may ex- plain such indorsement by parol evidence as against a purchaser with notice. Johnston v. Schnabaum, 17: 838, 109 S. W. 1163, 86 Ark. 82. (Annotated) 997. Parol evidence is not admissible to show that the indorsement of notes to an individual not designated as the cashier of a bank was such a transfer as to vest the legal title in the bank, and preclude a de- fense which would be good against the payee. First Nat. Bank v. McCullough, 17: 1105, 93 Pac. 366, 50 Or. 508. 998. As between a bank holding a note and its immediate indorser in blank, parol evidence is admissible to show that he in- dorsed as its agent to transfer title to the note, including the fact that he sold cer- tain property to the bank to be sold to the maker, and that the note was taken in his name and indorsed to the bank merely for its accommodation in the transaction. First Nat. Bank v. Reinman, 28: 530, 125 S. W. 443, 93 Ark. 376. (Annotated) 999. Parol evidence is admissible to show that the words, "without recourse," written on the back of a note between the signatures of the payee and a stranger, were intended to qualify the payee's indorsement where the statute provides that a qualified in- dorsement may be made by adding to the indorsing signature the words, "without re- course." Goolrick v. Wallace, 49: 789, 157 S. W. 920, 154 Ky. 596. (Annotated) 1000. Parol evidence is admissible in an ac- tion by the drawer of a bill of exchange payable to his own order, against a stranger who placed his name on the back of the instrument before delivery, and above which the drawer's indorsement was placed, to show that he intended to become surety for the acceptor, and assume liability to the Digest 1-52 L.R.A.(N.S.) drawer, notwithstanding the negotiable-in- struments law provides that, if the instru- ment is payable to the order of the drawer, a person not otherwise a party to the in- strument, who places thereon his signature in blank before deliver^ is liable to all per- sons subsequent to the drawer, since, the drawer being in legal effect an indorser, the parties are within the provisions of the sec- tion of the statute which declares that, as between indorsers, parol evidence is admissi- ble to show the order in which they agreed to be liable. Haddock, Blanchard, & Co. v. Haddock, 19: 136, 85 N. E. 682, 192 N. Y. 499. (Annotated) g. Consideration; or value of subject- matter. (See also same heading in Digest L.R.A. .Z-70J As to commercial paper, see supra, 990, 991. Evidence of generally, see infra, XI. m. Contract generally. See also supra, 961. 1001. Where the consideration stated in a contract consists of an unambiguous, spe- cific, and direct promise to do certain things, the writing is conclusive, and can- not be varied by extrinsic evidence. Kra- mer v. Gardner, 22: 492, 116 N. W. 925, 104 Minn. 370. 1002. The rule permitting the true con- sideration of written contracts to be in- quired into by parol evidence does not ap- ply where the statement in the contract as to the consideration is more than a mere acknowledgment of the payment of money, and is of a contractual nature. Kramer v. Gardner, 22: 492, 116 N. W. 925, 104 Minn. 370. 1003. Parol evidence is admissible to ex- plain what is meant by the term "other consideration" in a contract whereby a landowner agrees to pay a bonus to a rail- way company in consideration of $1 and other consideration. Bois6 Valley Constr. Co. v. Kroeger, 28: 968, 105 Pac. 1070, 17 Idaho, 384. 1004. Absence of consideration for an op- tion to purchase real estate may be shown in a proceeding to enforce specific perform- ance of the contract to sell, notwithstand- ing the instrument is sealed. Rude v. Levy, 24: 91, 96 Pac. 560, 43 Colo. 482. 1005. Evidence is admissible as to the act- ;ual consideration for a check delivered to ;he payee, although it contradicts a memo- randum contemporaneously signed by the maker. Foxworthy v. Adams, 27: 308, 124 S. W. 381, 136 Ky. 403. Of deed. See also supra, 805, 811. 1006. The recital of a consideration in a deed is open to modification or explanation by parol. Allen v. Rees, 8: 1137, 110 N. W. 583, 136 Iowa, 423. 1007. A recital in a deed of conveyance of a consideration of "one dollar and other valuable considerations," is not complete; 1148 EVIDENCE, VI. h. and the true consideration may be shown by parol. Herrin v. Abbe, 18: 907, 46 So. 183, 55 Fla. 769. 1008. A provision in a deed of conveyance, that the land is ^mveyed subject to all liens and mortga^s standing of record against it, has no controlling reference to the consideration of the deed, recited there- in as being "one dollar and other valuable considerations;" and evidence as to the true consideration does not vary the provision making the conveyance subject to the en- cumbrances. Herrin v. Abbe, 18: 907, 46 So. 183, 55 Fla. 769. 1009. In a contest between heirs of the whole blood and heirs of the half blood of an intestate, oral evidence is admissible to prove that the sole consideration for a deed to the ancestor from his mother, whereby ne was vested with title to the tract of land in controversy, was love and affection, not- withstanding the sole recitation in the deed of a consideration is a substantial, valuable consideration. Harman v. Fisher, 39: 157, 134 N. W. 246, 90 Neb. 688. 1010. In a suit by administrators of one who had granted property to his heirs for a consideration, which the deed recited to have been paid, to enforce payment of the consideration, on the allegation that it was not in fact paid, parol evidence is admis- sible to show that the recital was inserted merely to show that there was no intention on the part of the grantor that it should be paid. Koogle v. Cline, 24: 413, 73 Atl. 672, 110 Md. 587. (Annotated) 1011. Parol evidence is admissible to prove that the consideration expressed in a deed of land was an advancement, as the con- sideration clause of a deed of conveyance, although conclusive for the purpose of giv- ing effect to the operation of the deed, is prima facie evidence only of the amount, kind, and receipt of the consideration. Shehy v. Cunningham, 25: 1194, 90 N. E. 805, 81 Ohio St. 289. (Annotated) Lack of consideration. 1012. In the absence of fraud, a want of consideration cannot be shown against the recitals of consideration for the purpose of defeating the operative words of a deed. Strong v. Whybark, 12: 240, 102 S. W. 968, 204 Mo. 341. Additional consideration. 1013. Parol evidence is not admissible to show that the true consideration for a deed, which is recited to be a sum of money, was, in addition thereto, a contract to build a pass way across the property conveyed, since the effect would be to establish the reserva- tion of an easement inconsistent with the terms of the deed. Trout v. Norfolk & W. R. Co. 17: 702, 59 S. E. 394, 107 Va. 576. (Annotated) 1014. In an action to recover the purchase price of land conveyed to a railroad com- pany for a right of way, recovery cannot be had for breach of a contract to establish across it a pass way which is not mentioned in the deed. Trout v. Norfolk & W. R. Co. 17: 702, 59 S. E. 394, 107 Va. 576. (AnnDtated) Digest 1-52 L.R.A.CN.S.) 1015. A contemporaneous agreement that, as part of the consideration of a deed con- veying a right of way absolutely and un- conditionally to a railroad company, the grantor should have a permanent right to cross the land conveyed, and that the com- pany should erect and permanently main- tain crossings for that purpose, cannot be established by parol. Louisville & N. R. Co. v. Willbanks, 24: 374, 65 S. E. 86, 133 Ga. 15. (Annotated) Ti. Fraud; mistake; omissions. (See also same heading in Digest L.R.A. 1-10.) Fraud. See also infra, 1049. 1016. Parol evidence is admissible to show that one was induced to enter into a written contract to purchase goods, by false and fraudulent representations as to their qual- ity. American Pure Food Co. v. Elliott, 31:910, 66 S. E. 451, 151 N. C. 393. 1017. The fact that an entire contract of life insurance is contained in the policy and application does not preclude the in- surer from showing fraud in procuring the contract. Reagan v. Union Mut. L. Ins. Co. 2: 821, 76 N. E. 217. 189 Mass. 555. 1018. Breach by the payee of an agree- ment not to negotiate a promissory note until the happening of a certain event is such a fraud upon the maker as will jus- tify the admission of parol evidence of the agreement in an action between the orig- inal parties to the note or between the maker and one who is not a good-faith hold- er. McKnight v. Parsons, 22: 718, 113 N. W. 858, 136 Iowa, 390. 1019. Parol evidence is admissible to show that a writing purporting to fix compensa- tion for collecting a debt was in fact made to aid the collection of the debt by conceal- ing the creditor's interest in the recovery, and that the collector was attempting to use the instrument for the dishonest pur- pose of retaining an amount in excess of the compensation to which he was entitled. Lepley v. Andersen, 33: 836, 125 N. W. 433, 142 Wis. 668. Mistake. 1020. That a provision in a will locates land devised in a section where testator owned no land will not admit parol "vidence of a mistake in description, although he in fact owned land answering the description in another section, of which he d;d not dis- pose in the will. Lomax v. Lomax, 6: 942, 75 N. E. 1076, 218 111. 629. (Annotated) 1021. A contractor for public work who seeks cancelation of the contract because of mutual mistake as to the quantity of work to be done may show that, in making his bid, he acted on a mistake caused by an erro- neous estimate by the public's engineer of the amount of work to be done. Long T. Athol, 17: 96, 82 N. E. 665, 196 Mass. 497. EVIDENCE, VI. i, j. 1149 i. Condition; trust; mortgage. (See also same heading in Digest L.R.A. 1-10.) Condition. See also supra, 910, 985, 986. 1022. Parol evidence is admissible to show that a written contract of sale was not to take effect until the purchaser had an op- portunity to inspect the goods and find them satisfactory. American Sales Book Co. v. Whitaker, 37: 91, 140 S. W. 132, 100 Ark. 360. 1023. A deed which is absolute and com- plete on its face, and which has been de- livered to the grantee, cannot be defeated by parol evidence of a condition of delivery. Dorr v. Midelburg, 23: 987, 65 S. E. 97, 65 W. Va. 778. 1024. A deed delivered to the grantee with the intention on the part of the grantor that it shall be subject to a future condi- tion, but with no express provision for re- call by the grantor, and requiring for its validity no additional act on the part of the grantor or any third person, cannot be defeated by parol proof of such condition. Wipfler v. Wipfler, 16: 941, 116 N. W. 544, 153 Mich. 18. (Annotated) 1025. A sealed release of a debt may be shown by parol evidence to have been de- livered on condition that it should be re- turned if the maker was not forced into bankruptcy, so as to destroy its effect in an action upon the debt in case the con- dition happens. Stiebel v. Grosberg, 36: 1147, 95 N. E. 692, 202 N. Y. 266. (Annotated) 1026. Evidence is admissible in defense of an action by a receiver of an insolvent corporation to enforce a promissory note executed in its favor, that the note was de- livered on condition that 4 stock of the cor- poration should be procured and delivered to the maker within a specified time, and that the condition had not been performed. Beach v. Nevins, 18: 288, 162 Fed. 129, 89 C. C. A. 129. (Annotated) Trust. See also infra, 1349. 1027. A trust founded on an express prom- ise by the mother of one who conveys real estate to her to avoid a community inter- est therein, to reconvey it to him, cannot be established by parol, under a statute pro- viding that all conveyances of any interest in real estate, and all contracts creating or evidencing any encumbrance thereon, shall be by deed. Arnold v. Hall, 44: 349, 129 Pac. 914, 72 Wash. 50. 1028. The effect of an absolute deed of church property by its trustees to a stranger cannot be controlled by parol evidence that the transfer was made upon the understand- ing that the grantee should take the prop- erty in trust in order to secure a revenue from it by leasing it for a purpose which the members of the church would not sanc- tion. Lafayette Street Church Soc. v. Nor- ton, 39: 906, 95 N. E. 819, 202 N. Y. 379. Digest 1-52 L,.R.A.(N.S.) 1029. Where an apparently absolute legacy was made,in favor of several persons, upon the promise of one that they would hold it in trust for others, the fact that the promise was made on behalf of all may be established by parol evidence, and subse- quent declarations of either of the legatees are admissible against all. Winder v. Scho- ley, 33: 995, 93 N. E. 1098, 83 Ohio St. 204. Mortgage. See also supra, 946, 958. That deed was intended as mort- gage. 1030. In the absence of allegations that the execution of an authentic act of sale of immovable property was induced by error, misrepresentation, or fraud, parol evidence, to show that a contract of mortgage was intended, is properly excluded. Breaux v. RoyeT, 38: 982, 57 So. 164, 129 La. 894. 1031. Parol evidence is admissible to show that an absolute conveyance was intended as a mortgage. Mahaffy v. Faris, 24: 840, 122 N. W. 934, 144 Iowa, 220. 1032. The rule that a written contract cannot be varied or contradicted by parol is not violated by limiting to a mere mort- gage interest the right of one to whom a conveyance is given as security, where pa- rol evidence establishes that the relation of mortgagor and mortgagee exists between them. Smith v. Pfluger, 2: 783, 105 N. W. 476, 126 Wis. 253. 1033. Parol evidence is admissible as against a second vendee, even in the absence of a charge of fraud, to show that the original act, which purported to be an act of sale with right of redemption, was in- tended by the parties thereto as a mortgage to secure a specific debt, since the rule ex- cluding parol testimony to vary a written instrument applies only to the language used by the parties, and therefore does not forbid an inquiry into the object of the par- ties in executing and receiving the instru- ment. Jolivette v. Chavis, 32: 1046, 52 So. 99, 125 La. 923. j. To identify subject or persons. (See also same heading in Digest L.R.A. 1-10.) Persons. 1034. Parol evidence is admissible to identify the true owners of property granted by a deed in which a partnership is named as grantee. Walker v. Miller, i: 157, 52 S. E. 125, 139 N. C. 448. 1035. Extrinsic evidence is admissible to identify a legatee inadvertently described by an erroneous name in a will. Re Paulson, 5: 804, 107 N. W. 484, 127 Wis. 612. 1036. The legatee in a will may be shown by extrinsic evidence to be another than the person named as legatee, although the name used applied to an existing person. Siegley v. Simpson, 47: 514, 131 Pac. 479, 73 Wash. 69. (Annotated) 1150 EVIDENCE, VI. k m. 7c. Circumstances. (See also same heading in Digest L.R.A. 1-10.) See also supra, 977. 1037. An ambiguity in a written instru- ment which is developed by applying the paper to the subject dealt with may be solved by the circumstances characterizing its making. Smith v. Pfluger, 2: 783, 105 N. W. 476, 126 Wis. 253. I. Concerning records. (See also same heading in Digest L.R.A. 1-10.) Best and secondary evidence of, see supra, 708-710. Of public board. 1038. Where a motion was made and car- ried at an annual school meeting, authoriz- ing the district school officials to sell some piles of secondhand lumber, it is competent to show such action of the assembled voters by parol evidence, where the minutes fail to make any mention of the same, and where such minutes show on their face that they are a mere abstract or synopsis of what oc- curred at the meeting. Gilmer v. School Dist. No. 26, 50: 99, 136 Pac. 1086, 41 Okla. 12. (Annotated) 1039. Parol evidence is not admissible to show that a municipal ordinance is passed by a yea and nay vote as required by charter, if the charter provides that the ordinance shall not be valid unless the yeas and nays thereon be recorded in the journal of proceedings. Spalding v. Lebanon, 49: 387, 160 S. W. 751, 156 Ky. 37. Of legislative journals. See STATUTES, 85, 86. Judicial record. 1040. Where the record fails to show the facts as to an agreement upon which the dismissal of a suit is based, extrinsic evi- dence may be resorted to. Turner v. Flem- ing, 45: 265, 130 Pac. 551, 37 Okla. 75. 1041. Though the record of a judgment does not disclose that particular property is liable for its payment, that fact may be established by extrinsic evidence on appli- cation for a special writ of execution or other proceeding, when the right to resort to the land is called in question. Gregory Co. v. Cale, 37: 156, 133 N. W. 75, 115 Minn. 508. m. Character of party. '' yd hv'lLv K'if) 7. trs-> !;/ }:-Mii >> ]&**. /; (See also same heading in Digest L.R.A 1-10.) Relation of parties to commercial paper see supra, 992-995. 1042. A corporation organized as a busi ness corporation to conduct a hospital can not by parol evidence show itself to be a Digest 1-52 L.R.A.(N.S.) haritable organization. Gitzhoffen v. Sis- ers of the Holy Cross Hospital Asso. 8: 161, 88 Pac. 691, 32 Utah, 46. Agency. Of parties to commercial paper, see supra, 993-995. 1043. It may be shown for whom one mak- ing a contract as managing agent of a steamer was acting, so as to charge the srincipal with liability thereon. Great Lakes Towing Co. v. Mills Transportation to. 22: 769, 155 Fed. 11, 83 C. C. A. 607. 1044. The rule excluding parol evidence to contradict or vary a written contract does not exclude parol evidence to show that a person named in a written contract, or signing the same, was the agent of an undis- losed principal. Davidson v. Hurty, 39: 324, 133 N. W. 862, 116 Minn. 280. 1045. Specific performance of a contract to purchase real estate, duly signed by an agent, may be enforced against an undis- closed principal by the aid of parol evi- dence, where the statute provides that no action shall be brought to charge one on a contract for the sale of lands unless the agreement is in writing and signed by the party to be charged, or some other person by him lawfully authorized. Walker v. Hafer, 24: 315, 170 Fed. 37, 96 C. C. A. 311. (Annotated) 1046. Evidence as to the true ownership of real estate, a contract for the sale of which was entered into by a real estate company as agent for the owner, and ap- proved by the owner's husband, the wife's name not appearing therein, does not neces- sarily vary or contradict the terms of the contract, since the husband's approval was consistent with his wife's ownership. Da- vidson v. Hurty, 39: 324, 133 N. W. 862, 116 Minn. 280. 1047. A statute which prohibits contracts for the sale of real estate between husband and wife does not prevent the introduction of parol evidence in an action by a wife to enforce specific performance of a contract for the sale of her property, which was negotiated by a realty company and ap- proved by the husband in his own name, to prove that the wife was the owner and that her husband acted with her authority. Davidson v. Hurty, 39: 324, 133 N. W. 862, 116 Minn. 280. 1048. In an action by a principal on a written contract made by his agent in his own name, evidence may properly be ad- mitted to show that the principal was the real party in interest, notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol evidence, lankin v. Blaine Coun- ty Bank, 18: 512, 93 Pac. 536, 20 Okla. 68. 1049. In an action to recover from an agent to purchase real estate, the secret profit which he made by falsely represent- ing that he was compelled to pay for the property the price paid him, parol evidence is admissible on the ground of fraud, to show that he had, in fact, been acting as agent, and promised to purchase as cheaply as possible, although the positive written EVIDENCE, VII. a, b. 1151 contract to pay him a certain sum for the property as vendor is thereby contra-dieted. Lavalleur v. Hahn, 39: 24, 132 N. W. 877, 152 Iowa, 649. Suretyship. 1050. That one who signed a contract to purchase a machjne was a surety only may be shown by parol for the purpose of show- ing that he was not a necessary party to a cross petition by the purchaser, when sued on the purchase-money notes, filed to bring in and hold the seller liable for breach of warranty of the machine. First Nat. Bank v. Dutcher, i : 142, 104 N. V W. 497, 128 Iowa, 413. VII. Opinions and conclusions, a. In general. (See also same heading in Digest L.R.A. 1-10.) Dying declarations as expression of opin- ion, see infra, 1488. Weight of opinion evidence, see infra, 2055- 2057, 2114. Presumption of facts to save error in re- fusing to admit opinion evidence, see APPEAL AND ERROR, 449. Review of discretion as to competency of witness, see APPEAL AND ERROR, 613- 616. Discretion as to method of testing credi- bility of expert witness, see APPEAL AND ERROR, 620. Review of discretion as to cross examina- tion of expert, see APPEAL AND ERROR, 626. Prejudicial error as to, see APPEAL AND ERROR, 1102, 1111, 1170, 1185, 1218, 1222-1224, 1259-, 1261. Right of physician summoned as expert by defendant to hear plaintiff's testi- mony, where witnesses have been put under the rule, see WITNESSES, 2. 1051. A question is not always to be ex- cluded because it calls for a conclusion of fact. Schultz v. Frankfort Marine Acci. & Plate Glass Ins. Co. 43: 520, 139 N. W. 386. 151 Wis. 537. 1052. It is erroneous to permit a witness to answer a question calling for his conclu- sion on a matter within the province of the court or the jury. American Soda Foun- tain Co. v. Hogue, 17: 1113, 116 N. W. 339, 17 N. D. 375. 1053. A witness cannot be asked for hig opinion upon facts and conditions which must be determined by the jury, and which can be fully placed before them. Indianap- olis Traction & T. Co. v. Kidd, 7: 143, 79 N. E. 347, 167 Ind. 402. 1054. A question to a witness, which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent. Fowler v. Dela- plain, 21 : 100, 87 N, E. 260, 79 Ohio St. 279. 1055. If data supplied by a witness can be placed before the jury in such a way Digest 1-52 L.R.A.(N.S.) that they may draw the inference, as well as the witness, it is superfluous to add by way of testimony the inference which the jury may well draw for themselves. Auld v. Southern R. Co. 37: 518, 71 S. E. 426, 136 Ga. 266. 1056. One who is shown to have sufficient knowledge of a subject to be competent to testify thereon as an expert may be per- mitted so to do, although not shown to be highly qualified to speak upon the subject. Gates v. Com. 44: 1047, 69 S. E. 520, 111 Va. 837. 1057. An expert may base an opinion upon facts stated and the testimony of a single witness, which he is to assume to be true. Duthey v. State, 10: 1032, 111 N. W. 222, 131 Wis. 178. 1058. A question, "Did you, or not, sell a person goods at a certain time?" is not im- proper as calling for a mere conclusion. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 1059. The opinions of actual observers are admissible when drawn from facts which it is manifestly impossible to present to the jury with the same force and clearness as they appeared to such observers. Kunst v. Grafton, 26: 1201, 67 S. E. 74, 67 W. Va. 20. 1060. In a contest for the guardianship of a child* of tender years between the appli- cant, the maternal grandfather, and the caveator, the paternal grandfather, testi- mony that the applicant and his wife "are proper parties to raise and bring up a fe- male grandchild" is inadmissible as calling for a conclusion of the witness. Churchill v. Jackson, 49: 875, 64 S. E. 691, 132 Ga. 666. 6. Hypothetical questions. (See also same heading in Digest L.R.A. 1-10.) Presumption that jury was impressed with truth of opinion of witness upon which hypothetical questions were founded, see APPEAL AND ERROR, 457. Review as to, on appeal, see APPEAL AND ERROR, 457, 512. Review of discretion as to, see APPEAL AND ERROR, 618. What necessary to make available failure to supply missing elements in, see AP- PEAL AND ERROR, 777. Prejudicial error in excluding, see APPEAL AND ERROR, 1266. 1061. A hypothetical question based on facts which the evidence Avould justify the jury in finding may be submitted to a wit- ness. Pisford v. Norfolk Southern R. Co. 44: 865, 75 S. E. 860, 160 N. C. 93. 1062. Counsel who call a witness to testi- fy within the field of opinion evidence may frame his question upon such hypothesis as he thinks is reasonably warranted by the evidence, aiming to reasonably cover an entire situation, so warranted, subject to the opinion of the court as to com- 1152 EVIDENCE, VII. c, d. petency. Oborn v. State, 31:966, 126 N. | W. 737, 143 Wis. 249. 1063. Questions to expert witnesses should | be stated hypothetical ly, and not be in the form of a recital of actual facts. Shaugh- nessy v. Holt, 21: 826, 86 N. E. 256, 236 111. 485. 1064. Hypothetical questions to expert witnesses cannot be predicated upon the opinion of witnesses as to the possible cause of an explosion in a starch factory. Kearn- er v. Charles S. Tanner Co. 29: 537, 76 Atl. 833, 31 R. I. 203. (Annotated) 1065. A hypothetical question as to the value of services rendered in superintending the construction of a building is not errone- ous because it includes getting out plans as an item, although the employee is shown not to be an architect, where it appears that he joined in the consultation about plans, and saw that they were prepared. Davidson v. Laughlin, 5: 579, 71 Pac. 345, 138 Cal. 320. 1066. A hypothetical question should be predicated upon the testimony. Root v. Kansas City S. R. Co. 6: 212, 92 S. W. 621, 195 Mo. 348. - 1067. One submitting hypothetical ques- tions to an expert witness may select such portions of the evidence as he pleases, and need -not base his question upon the whole evidence. Arkansas M. R. Co. v. Pearson, 34: 317, 135 S. W. 917, 98 Ark. 399. 1068. A hypothetical question to an expert witness is erroneous which assumes facts contrary to the evidence, or which omits material facts in evidence. Baltimore & O. R. Co. v. Dever, 26: 712, 75 Atl. 352, 112 Md. 296. 1069. An objection to a hypothetical ques- tion that it was based upon only a part of the evidence which the witness heard, and that there were other parts of the testi- mony which he had not heard, is not well taken, where the objecting party secures the exclusion for immateriality of the offer to read the testimony the witness has not heard; since, even if the evidence was ma- terial, the party objecting to the reading of it is in no position to take advantage of the error into which he led the court. Smart v. Kansas City, 14: 565, 105 S. W. 709, 208 Mo. 162. 1070. A hypothetical question, which con- tains facts that are proved or claimed to be proved by either party, may be put to an expert witness against their will, but will opinion upon such facts, and by so doing such expert witness does not usurp the province of the jury, as the jury is not compelled to accept the opinions of such expert witness against their will, but will weigh such expert opinions as other evi- dence is weighed by them. Jones v. Cald- well, 48: 119, 116 Pac. 110, 20 Idaho, 5. 1071. Hypothetical questions to expert witnesses on a trial for homicide need not cover all the undisputed facts proven, since the opposite party may if he desires protect himself by including all such facts in other hypothetical questions propounded to the same witnesses on cross-examination. State Digest 1-52 L.R.A.(N.S.) v. Angelina, 51: 877, 80 S. E. 141, 73 W. Va. 146. c. Cause and effect. (See also same heading in Digest L.R.A. 1-10.) Hypothetical question as to, see supra, 1064. Cause of physical condition, see infra, 1084-1091. Cause of death, see infra, 1092. Prejudicial error in exclusion of, see AP- PEAL AND ERROR, 1259. 1072. One who had witnessed the treat- ment of an arm injured by another's negli- gence, and had observed the visible effects thereof, may state, in an action to recover for its injury, what effect the treatment had. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 1073. Mining engineers may give their opinion in an action to recover damages for injury to a well by blasting on neighboring property as to the cause ef the disappear- ance of the water in the well, based upon assumed facts which the evidence tends to establish. Patrick v. Smith, 48: 740, 134 Pac. 1076, 75 Wash. 407. Injuries to property. 1074. A witness with twenty years' experi- ence in the business of handling, buying, and selling fruits, who professes to know from given data the cause of decay in a shipment of peaches, may qualify as an expert. Alabama G. S. R. Co. v. McKen- zie, 45: 18, 77 S. E. 647, 139 Ga. 410. 1075. Upon the question of the liability of an insurance company upon a policy con- taining an exemption in case of the fall of a building except as a result of the fire, a witness cannot be permitted to give his opinion as to whether or not the building fell as the result of the fire. Davis v. Con- necticut F. Ins. Co. 32: 604, 112 Pac. 549, 158 Cal. 766. d. Physical conditions; medical testi- mony; intoxication. (See also same heading in Digest L.R.A. 1-10.) As to sanity or capacity, see infra, VII. e. Physical condition. Evidence as to appearance, see infra, VII. 1. Intoxicated condition, see infra, 1093-1095. 1076. A nonexpert familiar with the facts may express the opinion that, on the day when a deed was signed by a sick person, he was so ill as to be "beyond asking him anything, and in a condition to know noth- ing really." Atwood v. Atwood, 37: 591, 79 Atl. 59, 84 Conn. 169. 3077. One who has testified as to the con- dition of an injured arm at a certain time may state whether or not it is better or worse at the time of trial, in an action to recover damages for its negligent injury, EVIDENCE, VII. d. 1153 where the question is whether the injury is permanent or curable. Cleveland, C. C. .& St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. 1078. A physician, while testifying as an expert, is not permitted to testify to his -conclusions of the permanency of an in- jury to his patient, based partially upon the history of the injury detailed to him by the patient or other person, and partially upon his own examination. Federal Betterment Co. v. Reeves, 4: 460, 84 Pac. 560, 73 Kan. 107. 1079. One stating that she has had experi- ence, and knows the difference between full- term and premature children, may testify that a birth was premature. Bessemer Coal, Iron, & Land Co. v. Doak, 12: 389, 44 So. 627, 152 Ala. 166. Medical testimony generally. Admissibility of statements made to ex- amining physician attempting to quali- fy as expert, see infra, 1345, 1352. 1080. Medical experts may, in testifying, refer to medical writers and state in sub- stance the result of their conclusions. Fi- delity & C. Co. v. Meyer, 44: 493, 152 S. W. 995, 106 Ark. 91. 1081. A physician attending one injured by another's negligence may state as a witness his opinion as to the time of ultimate re- covery, based upon his observation of the case. Simone v. Rhode Island Co. 9: 740, 66 Atl. 202, 28 R. I. 186. 1082. In an action to recover damages for alleged malpractice in the amputation of a leg, testimony by a physician that he would never perform such an operation while the patient was in a condition of shock is in- competent. Staloch v. Holm, 9: 712, 111 N. W. 264, 100 Minn. 276. 1083. A physician who has testified as an expert in a murder case may be permitted to state that he was so confident of his opin- ion as to believe that, if an autopsy could have been had earlier, it would still more positively have confirmed his finding. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. Cause of physical condition. 1084. A physician who has qualified as an expert may give his opinion concerning the cause of a person's physical condition, where that opinion is based upon a hypothetical question fairly describing such condition and reflecting the testimony before the jury upon that point. Hilmer v. Western Trav- elers Acci. Asso. 27: 319, 125 N. W. 535, 86 Neb. 285. 1085. A physician who ha? attended a person injured by another's alleged negli- gence may, in an action to hold the latter liable for the injury, testify as to what might have been the cause of headache from which the injured person suffers. Strever v. Woodard. 46:644, 141 N. W. 931, 160 Iowa, 332. 1086. An expert cannot, in an action to hold a carrier liable for injury to a pas- senger alleged to have been caused by a sudden jerk of the car, due to negligent handling, state in response to a hypothet- , ical question that the injury was due to the Digest 1-52 L.R.A.(N.S.) impact of the cars, since that is the very question which the 'jury must answer. Sever v. Minneapolis & St. L. R. Co. 44: 1200, 137 N. W. 937, 156 Iowa, 664. 1087. That a witness to the fact of the tend- ency of the movements of machine tenders to become automatic, to their danger, gained his knowledge from talking with shop fore- men, does not render the evidence incom- petent in an action brought to hold an em- ployer liable for injuries due to his failure to warn an employee of the danger. Kacz- marek v. Geuder, P. & F. Co. 44: 779, 134 N. W. 348, 148 Wis. 46. 1088. Upon the question whether or not an employer is negligent in failing to warn an employee of the danger of injury from automatic action when working about a machine, a physician who has made a spe- cial study of the brain and nervous system may testify that the continuous operation of foot and hand in a certain order tends to produce an involuntary sequence of mus- cular activities which would become auto- matic and proceed without express brain action or will power. Kaczmarek v. Geuder, P. & F. Co. 44: 779, 134 N. W. 348, 148 Wis. 46. 1089. An expert in an action for personal injuries cannot be asked if the injury might have been caused by a crowbar thrown by coming in contact with a swiftly moving object such as a train, since his opinion is limited to the cause of the injury, and r. ;t to the cause of the throwing of the bar. Dunn v. Chicago, R. I. & P. R. Co. 6: 452, 107 N. W. 616, 130 Iowa, 580. 1090. A witness cannot give his opinion as to the cause of the fall of one upon the deck of a vessel to his injury. Pratt v. North German Lloyd S. S. Co. 33: 532, 184 Fed. 303, 106 C. C. A. 445. 1091. Where the amputation of plaintiff's leg was alleged by her to have been caused by an injury received from a fall, and by the defendant to have been made necessary by tuberculosis of the knee, it is error to permit an expert to state that "the injury precipitated the amputation," as the in- quiry should be limited to whether the fall was a sufficient cause to produce the con- dition in plaintiff's knee necessitating am- putation, the question which of the two causes was responsible for the amputation being for the jury. Smart v. Kansas City, 14: 565, 105 S. W. 709, 208 Mo. 162. Cause of death. 1092. Upon a prosecution for homicide, an expert witness properly qualified may, upon a given statement of the condition of the deceased immediately prior to her death and upon facts revealed to the witness by a post mortem examination, state his opinion as to the cause of death, and it is not necessary that he be confined to an opinion as to what could or might have been the cause of death. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. Intoxication; temperateness. 1093. A nonexpert may give his opinion as ' 73 1154 EVIDENCE, VII. e. to another's intoxication. Com. v. Eyler, ii : 639, 66 Atl. 746, 217 Pa. 512. (Annotated) 1094. Upon the question of one's capacity to make a contract, evidence is admissible that "he acted drunk." Kuhlman v. Wie- ben, 2: 666, 105 N. W. 445, 129 Iowa, 188. 1095. Upon the question whether or not a representation by an applicant for insur- ance that he was temperate in the use of in- toxicating liquors was false, witnesses may, after stating the basis of their information, state whether he was temperate or intem- perate. Taylor v. Security Life & Annuity Co. 15: 583, 59 S. E. 139, 145 N. C. 383. (Annotated) e. Sanity; capacity; ability; character. (See also same heading in Digest L.R.A. 1-70.) Instructions as to weight to be given to, see TRIAL, 950. 1096. A father may testify as to the abil- ity of his daughter in the profession of elocution, in an action by her to recover damages for personal injuries. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16: 527, 82 N. E. 1025, 170 Ind. 204. Sanity and mental capacity generally. See also supra, 1094. 1097. A nonexpert will be allowed to ex- press an opinion upon an issue of sanity only after he has testified to acts, conver- sations, or conduct which to some extent indicate sanity. Auld v. Cathro, 32: 71, 128 N. W. 1025, 20 N. D. 461. 1098. The opinion of a nonexpert witness concerning the mental condition of a liti- gant with whom he has been acquainted for many years, when formed upon facts within the personal knowledge of the witness, and sworn to by him before the jury, is admis- sible in an action wherein such condition is a material subject of inquiry. Hilmer v. Western Travelers Acci. Asso. 27: 319, 125 N. W. 535, 86 Neb. 285. 1099. It is error to exclude the opinion of a nonexpert witness as to the mental con- dition of one whose sanity is in issue where the opinion is based upon a fairly intimate acquaintance with the subject of the inquiry for several years. State v. Rumble, 25: 376, 105 Pac. 1, 81 Kan. 16. 1100. It is error to exclude the opinion of a nonexpert witness as to the mental condition of one whose sanity is in issue upon the sole ground that a number of in- stances of peculiar and unusual conduct on the part of the subject of the inquiry to which the witness has testified, do not of themselves justify an inference of in- sanity. State v. Rumble, 25: 376, 105 Pac. 1, 81 Kan. 16. 1101. A nonexpert witness may, after stat- ing the facts of his knowledge of, and ac- quaintance with, a person, give an opinion as to his sanity, without stating the facts on which it is based ; the weight of the testi- mony depending upon the importance of the Digest 1-52 L.R.A.(N.S.) ] particulars stated. Atkins v. State, 13: j 1031, 105 S. W. 353, 119 Tenn. 458. 1102. Witnesses may express their opinions as to whether or not one making an as- signment of an insurance policy was capable of transacting business at and prior to tlie time when the assignment was made. Searles v. Northwestern Mut. L. Ins. (Jo. 29: 405, 126 N. W. 801, 148 Iowa, 65. 1103. An illiterate father is competent to testify in an action by his minor son, who has grown up in the father's home, to re- cover damages for permanent personal in- juries, as to the son's incapacity to com- prehend danger, notwithstanding the giving by him of a wrong reason for his estimate. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. 1104. It is error to permit a jailer to ex- press an opinion as to the sanity of a pris- oner, which is based in part, at least, on what he has observed in others committed to his care as too dangerously insane to be at large. Duthey v. State, 10: 1032, 111 N. W. 222, 131 Wis. 178. Capacity to execute deed. See also supra, 1076. 1105. Capacity to make a deed is a mixed question of law and fact for the jury to determine on proper evidence and instruc- tions, and not for witnesses to decide ; and therefore it is not competent for expert wit- nesses to give an opinion as to whether such persons had sufficient mental capacity to make the deed in controversy. Coblentz v. Putifer, 42: 298, 125 Pac. 30, 87 Kan. 719. 1106. A witness may state that a person who signed a deed while ill was not capable of doing business or making any contract or agreement, as an opinion as to general mental condition and the degree of mental incapacity. Atwood v. Atwood, 37: 591, 79 Atl. 59, 84 Conn. 169. Testamentary capacity. Competency of physician to testify as to, see infra, 1282, 1290, 1294. Declarations as to sanity, see infra, 1365. See also infra, 1290, 1294. 1107. Upon the trial of an issue as to the testamentary capacity of the maker of a will, a nonexpert witness can state all the facts he knows in relation to the testator, bearing on the state of his mind and the nature of his acts, and may give his opinion, based on such facts, as to the condition of the testator's mind. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 1108. Upon the trial of an issue as to the testamentary capacity of the maker of a will, the opinion of a nonexpert witness as to whether the testator had a decided and rational desire when he made the will, or whether his desires were like the ravings of a madman or the pratings of an idiot, or a childish whim, is inadmissible. Slaughter v. Heath. 27: i, 57 S. E. 69. 127 ^.a. 747. 1109. One who has testified to the physical weakness of a testator on the day he exe- cuted his will cannot give his opinion as to his mental capacity, based on such testi- mony. Speer v. Speer, 27: 294, 123 N. W. 176/146 Iowa, 6. EVIDENCE, VII. f. 1155 1110. Testimony that a testator could not, on the day his will was executed, indicate that he could understand what witness said to him, is properly excluded from the jury as mere inference. Speer v. Speer, 27: 294, 123 N. W. 176, 146 Iowa, 6. 1111. An opinion that a testator was not easily influenced is not admissible upon the trial of an issue as to his testamentary ca- pacity, unless the facts upon which such opinion was based are stated. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 1112. Witnesses in a will contest cannot testify that testator was a monomaniac merely because believing in spiritualism. O'Dell v. Goff, 10: 989, 112 N. W. 736, 149 Mich. 152. Character; disposition. Sufficiency of objections to, see APPEAL AND ERROR, 318. 1113. One cannot testify as to the charac- ter of one accused of crime as to the par- ticular traits involved in the issue based on his personal acquaintance and observation. People v. Van Gaasbeck, 22: 650, 82 N. E. 718., 189 N. Y. 408. (Annotated) 1114. The individual opinion of a witness as to the good character or reputation of a person is not admissible in a criminal pros- ecution, since, when character is the sub- ject of inquiry, the evidence must be as to the general reputation derived from the speech of the people in the community in which he resides. State v. Magi 11, 22: 666, 122 N. W. 330, 19 N. D. 131. (Annotated) 1115. One personally acquainted with a person accused of rape may testify as to his character for chastity, basing his testi- mony upon the fact that it had never been assailed in the communitv. State v. Hosey, 22: 670, 103 Pac. 12, 54 Wash. 309. 1116. A witness who is personally ac- quainted with one accused of rape may tes- tify as to his character for good citizenship and chastity from his personal observation of him. State v. Hosey, 22: 670, 103 Pac. 12, 54 Wash. 309. (Annotated) 1117. One who has described the language and "acts of another may add his opinion that he has a very wilful, unpleasant, and domineering disposition. Mathewson v. Mathewson, 18: 300, 69 Atl. 646, 81 Vt. 173. /. Values; damages. (See also same ' heading in Digest L.R.A. 1-10.) Evidence as to generally, see infra, XI. f. Prejudicial error as to, see APPEAL AND ERROR, 1111. 1118. A passenger deprived of the use of his baggage by the carrier's negligence may, in an action to hold the carrier liable for the damages thereby caused him, state to the jury what the possession of the bag- gage would have been worth to him during the time of delay. Central of Georgia R. Co. v. Jones, 37: 588, 54 So. 509, 170 Ala. 611. Digest 1-52 L.R.A.(N.S.) Personal injuries. 1119. One seeking damages for personal injuries cannot express an opinion as to the monetary extent of his damages. Kirk v. Seattle Electric Co. 31: 991, 108 Pac. 604, 58 Wash. 283. 1120. A father may testify, in an action to recover damages for injury to his minor son, concerning the boy's capacity to earn money in his injured condition. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. Services. Evidence as to generally, see infra, 1685. Personal property generally. Evidence as to generally, see infra, 1686- 1691. 1121. A purchaser of goods to be resold who has repudiated his bargain because of fraud cannot estimate his own damages in an action to hold the seller liable therefor. American Pure Food Co. v. Elliott, 31: 910, 66 S. E. 451, 151 N. C. 393. 1122. Parties who have examined clothing injured through another's negligence, and who are familiar with the values of such articles, may state their opinions as to the proportion of damage done by the injury. Withey v. Pere Marquette R. Co. i: 352, 104 N. W. 773, 141 Mich. 412. 1123. A dealer in bonds cannot be allowed to give his opinion as to the value of par- ticular bonds which he has never dealt in, or seen, except those before the court. Peo- ple v. Turpin, 17: 276, 84 N. E. 679, 233 111. 452. Medicine. 1124. One who has merely read a report of an analysis of a patent medicine cannot testify as to the value of the medicine. Foster-Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. Real property. Evidence as to generally, see infra, 1692- 1702, 1735-1749. 1125. Opinion evidence is admissible upon the question of the effect upon the market value of property of a change in the grade of the street on which it abuts. Swift & Co. v. Newport News, 3: 404, 52 S. E. 821, 105 Va. 108. 1126. To admit expert evidence of the value of land as a source of water supply in a proceeding to secure compensation for it after it has been taken by right of emi- nent domain, petitioner must show that it is impossible to prove the value of the land in the usual way. Sargent v. Merrimac, n: 996, 81 N. E. 970, 196 Mass. 171. 1127. It is not necessary to qualify a wit- ness as an expert before allowing him to testify as to the value of property sought to be taken under condemnation proceed- ings, or the damage that will be sustained to the remaining property by reason of the severance of the part taken, since the relia- bility of his testimony may be tested on cross-examination. Idaho & W. R. Co. V. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 1128. In an action for damages for injury to growing crops from sulphurous fumes, 1156 EVIDENCE, VII. g i. the testimony of witnesses who have quali- fied as experts on agriculture familiar with the particular land in question, as to the amount of crops which would have been produced on the land but for the alleged fumes, the amount actually produced on the land in question with the fumes present, the value of the respective crops produced during the season in question, and the amount produced on land similar to that in question during the same season, under like mode of cultivation, and with the same kind of fertilizer, is admissible, not as showing the measure of damages, but as furnishing a basis from which to ascertain their amount. International Agricultural Corp. v. Abercrombie, 49: 415, 63 So. 549, 184 Ala. 244. Competency of witnesses. 1129. One who disclaims familarity with the price of property cannot give an opinion as to its value. Adler v. Pruitt, 32: 889, 53 So. 315, 169 Ala. 213. 1130. That witnesses have not gained their knowledge of the condition of land injured by flood, by personal observation, does not prevent their giving an opinion upon the cost of restoring it, where its condition was described by other witnesses. Hufnagle v. Delaware & Hudson Co. 40: 982, 76 Atl. 205, 227 Pa. 476. 1131. One who has observed the injury to a house by the breaking of its windows, clap- boards, and shingles by the casting of boards against it, may, after describing the injury to the jury, give his opinion as to the amount of damages * which should be awarded for the injury. Bishop v. Reads- boro Chair Mfg. Co. 36: 1171, 81 Atl. 454, 85 Vt. 141. 1132. The opinion of a farmer as to the value of a growing crop, which opinion is based on the average yield and market value of the crops of the same kind, planted and cared for in the same manner in the same community, less the cost of maturing, har- vesting, and marketing, and as to what the crop would have brought in its immature state at a sale in that community, is ad- missible in an action to recover damages for the unlawful destruction thereof. Chicago, R. I. & P. R. Co. v. Johnson, 27: 879, 107 Pac. 662, 25 Okla. 760. g. Contingent results; what might have been. (See also same heading in Digest L.R.A. 1-10.) 1133. Stock shippers who saw a carload of cattle which were alleged to have been injured by freezing may be permitted to testify as to whether or not cattle would freeze in such a car with a temperature such as was shown to have existed at the time. Colsch v. Chicago, M. & St. P. R. Co. 34: 1013, 127 N. W. 198, 149 Iowa, 176. 1134. Witnesses to a slander cannot state their impressions as to the injurious ef- fect of the statement upon the reputation of the one against whom it was uttered. Digest 1-52 L.R.A.(N.S.) Linehan v. Nelson, 35: 1119, 90 N. .E. 1114, 197 N. Y. 482. (Annotated) h. Legal questions; meaning of terms; foreign laws. {See also same heading in Digest L.R.A.. 1-10.) Legal questions. Evidence as to attorney's opinion concern- ing title to personalty, see infra, 1205. Foreign laws. 1135. It is permissible to prove the con- struction of the statutes and the common law of another jurisdiction by a competent witness who is a member of the bar of the foreign jurisdiction, and in the active prac- tice of his profession in that jurisdiction. Dimpfel v. Wilson, 13: 1180, 68 Atl. 561, 107 Md. 329. Meaning of terms. 1136. Expert testimony is not admissible upon the meaning of the words '"par" or "par value" as applied to commercial paper. Smith v. State ex' rel. McNeil, 35: 789, 56 So. 179, 99 Miss. 859. i. Estimates of quantity; speed; time. (See also same heading in Digest L.R.A. 1-10.) Speed. Prejudicial error in admitting, see APPEAL AND ERROR, 1170. 1137. Any person of ordinary ability and means of observation who may have ob- served an automobile traveling on a public highway may give his estimate as to the rate of speed at which it was moving. Miller v. Jenness, 34: 782, 114 Pac. 1052, 84 Kan. 608. 1138. A bystander not possessed of tech- nical or scientific knowledge may give his opinion as to the speed of an automobile which runs down and injures a person on a highway. Dugan v. Arthurs, 34: 778, 79 Atl. 626, 230 Pa. 299. (Annotated) 1139. A witness familiar with a locality, and with the passing of street cars there, may give his opinion as to the speed of a certain car which he saw at the time it collided with a vehicle on the street. Teck- lenburg v. Everett R., Light & Water Co. 34: 784, 109 Pac. 1036, 59 Wash. 384. (Annotated) 1140. Opinion evidence as to the rate 0f speed at which a street car may be operated in a city street is not admissible in an ac- tion for injuries to a pedestrian by collision with a car, since the question of the negli- gent operation of the car under all the cir- cumstances is for the jury. Ford v. Paducah City Ry. 8: 1093, 99 S. W. 355, 124 Ky. 488. 1141. One injured by collision with a street car may testify as to the speed at which the car appeared to him to be run- ning. Sluder v. St. Louis Transit Co. 5: 186, 88 S. W. 648, 189 Mo. 107. 1142. One familiar with a railroad cross- EVIDENCE, VII. j. 1157 ing, who has frequently seen trains pass there, may testify that a train seen by him which collided with a vehicle at the crossing was running at the rate usually maintained by trains at the crossing. Bracken v. Pennsylvania R. Co. 34: 790, 71 Atl. 926, 222 Pa. 410. (Annotated) Time. 1143. One who has gone over the route be- tween the home of one who committed an assault and that of his victim may give his opinion as to the time it would take a man at ordinary gait to travel between the two places. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 1144. Sufficient evidence of the qualifica- tion of an expert to give his opinion as to the time necessary to restore a building injured by an explosion is produced by his testimony that he knew the building before the explosion, and had examined it after- wards. Higgins v. Los Angeles Gas & Elec- tric Co. 34: 717, 115 Pac. 313, 159 Cal. 651. j. Danger; skill; negligence. (See also same heading in Digest L.R.A. 1-10.) Evidence as to speed of vehicles, see supra, 1137-1142. Sufficiency of evidence as to, see infra, XII. d. 1145. Testimony of horsemen is admissi- ble upon the question whether or not a steam shovel was calculated to frighten horses of ordinary gentleness. Heinmiller v. Winston, 6: 150, 107 N. W. 1102, 131 Iowa, 32. 1146. Upon the question of negligence on the part of a bailee of a horse, which re- sulted in its injury, opinion evidence is not admissible as to whether or not the vehicle was properly loaded and the driver was acting under the direction of the bailee, such questions being for the decision of the jury. Weller v. Camp, 28: 1106, 52 So. 929, 169 Ala. 275. 1147. A stock shipper may be allowed to testify in an action against a carrier for injury to live stock, that the car in which the stock was shipped, which he saw, was overloaded. Colsch v. Chicago, M. & St. P. R. Co. 34: 1013, 127 N. W. 198, 149 Iowa, 176. 1148. Opinion evidence as to the safety of placing doors closing the openings "into an elevator well on the side of the wall away from, instead of next to, the car, is not ad- missible in an action to recover for injuries caused by such construction. Siegel, C. & Co. v. Trcka, 2: 647, 75 N. E. 1053, 218 111. 559. 1149. It is not error to exclude the opin- ion of witnesses as to the dangerous char- acter of an obstruction in a street, where it can be easily described, and the question whether or not it was dangerous easily de- terminable by the jury. McKim v. Phila- delphia, 19: 506, 66 Atl. 340, 217 Pa. 243. Safety of bridge. Digest 1-52 L.R.A. (N.S.) 1150. A properly qualified witness may give an opinion as to the. sufficiency and safety of the guard rail on a bridge to protect users from loss or injury. Dar- danelle Pontoon Bridge & Turnp. Co. v. Croom, 30: 360, 129 S. W. 280, 95 Ark. 284. 1151. One not shown to possess any special skill or knowledge which would qualify him to instruct the jury cannot give his opin- ion as to what was necessary to safeguard a bridge when the draw was open, in an action to recover for the death of one who fell from it at such time. Anne Arundel County v. State use of Stansbury, 14: 452, 68 Atl. 602, 107 Md. 210. 1152. Opinion evidence as to the safety of a bridge is not admissible in an action to hold its owner liable for injury to an em- ployee, if the bridge has been so described and photographed that the jury can fully understand its character and condition. Duncan v. Atchison, T. & S. F. R. Co. 51: 565, 119 Pac. 356, 86 Kan. 112. (Annotated) Railroad employees. 1153. Evidence of a statement by an em- ployee injured by a bar struck and thrown by a passing train, that it was left too near the track by a coemployee, is inad- missible, as a mere conclusion. Dunn v. Chicago, R. I. '& P. R. Co. 6: 452, 107 N. W. 616, 130 Iowa, 580. 1154. In an action to hold a railway com- pany liable for the death of a brakeman, opinions of railway employees as to which side of a freight train it was proper for him to alight in order to give signals are ad- missible, since they relate to matters of special knowledge or experience. Duncan v. Atchison, T. & S. F. R. Co. 51: 565, 119 Pac. 356, 86 Kan. 112. Employees generally. Error in admission of expert testimony as to dangerous character of machine, see APPEAL AND ERROR, 1102. 1155. Witnesses experienced in the con- struction and operation of mills and who helped to construct the one in which the in- jury forming the basis of the action oc- curred, which was due to the blowing out of the cylinder head, may properly express their opinions that the operation of the mill or cylinder head without a protecting barrier to prevent injury to workmen in case it blew out was dangerous. Comer v. W. M. Ritter Lumber Co. 6: 552, 53 S. E. 906, 59 W. Va. 688. 1156. A person conversant for a number of years with the operation of threshing machines may properly give expert testi- mony in an action to recover for per- sonal injuries, to the effect that it is dan- gerous to undertake to put a belt upon the pulleys of a steam thresher while in mo- tion, and that it was dangerous to stand in the position occupied by the plaintiff while the belt was being handled as disclosed by the evidence. Maxson v. J. I. Case Thresh- ing Mach. Co. 16: 963, 116 N. W. 281, 81 Neb. 546. 1157. Expert evidence as to the tendency of emery wheels in general to burst in use 1158 EVIDENCE, VII. k m. is not admissible upon the question of neg- ligence in using a particular make of wheel of the ingredients of which the witness is ignorant, where it is shown that the in- gredients and danger of explosion of dif- ferent makes of wheels are different. Brands v. St. Louis Car Co. 18: 701, 112 S. W. 511, 213 Mo. 698. fc. Intent; mental conditions. (See also same heading in Digest L.R.A. 1-10.) 1158. The agent of a seller cannot state the intention of the seller in taking bills of lading in his name and forwarding them with drafts attached for collection before surrender of the property, since it is a. mere conclusion. Hamilton v. Joseph Schlitz Brewing Co. 2: 1078, 105 N. W. 438, 121> Iowa, 172. (Annotated) .1. Appearance ; identity; quality; au- thenticity. (See also same heading in Digest L.R.A. 1-70.) Appearance. Appearance of intoxication, see supra, 1093, 1094. Appearance as to speed, see supra, 1137- 1142. See also infra, 1474, 2045. 1159. One who saw an injured person at the time of the accident in question may properly state that the expression upon her face was that of a person in great pain. Morris v. St. Paul City R. Co. 17: 598, 117 N. W. 500. 105 Minn. 276. 1160. A witness in a homicide case who has testified to having seen a person near the place of the homicide about the time of its occurrence may state what he ap- peared to be doing. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. 1161. In a prosecution for homicide a wit- ness may properly testify as to whether or not the accused and the deceased appeared "friendly" toward each other 'a short time before the killing, since mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue. State v. Cooley, 52: 230, 140 Pac. 1111, N. M. . Identity. 1162. The question whether or not a par- ticular pin is one shown in a photograph is not one for expert testimony. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. 1163. A buyer of jewelry, who has at- tempted to rescind the order, may point out to the jury the articles covered by the dif- ferent items of the order, when the order and the jewelry are before them, if it does not require an expert to do so. Loveland v. Dinnan, 17: 1119, 70 Atl. 634, 81 Conn. 111. 1164. In a prosecution for homicide, to identify a substance administered as a medicine, persons who were present when it Digest 1-52 L.R.A.(N.S.) was given, and who described it as having a strong, disagreeable odor, may compare the odor of the liquid so given with that of a compound prepared in accordance with a prescription filled for the defendant previ- ous to the homicide and produced on the trial, and testify whether the smell is the same. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. (Annotated) 1165. Evidence as to identity of a man seen by a witness in his room at night is ad- missible, its weight being for the jury. Peo- ple v. Jennings, 43: 1206, 96 N. E. 1077, 252 111. 534. 1166. In a civil action to recover damages for the publication of a libelous article, the editor of defendant's paper, in which the al- leged libel was published, should not be re- quired, over objection, to testify as to whom tie considered and supposed the article re- ferred. Dennison v. Daily News Pub. Co. 23: 362, 118 N. W. 568, 82 Neb. 675. 1167. A prosecuting witness may be per- mitted to identify the accused solely from having heard his voice in the darkness at the time of the commission of the offense complained of. Mack v. State, 13: 373, 44 So. 706, 54 Fla. 55. (Annotated) Quality. 1168. In an action for the price of jewelry the order for which the buyer has attempted to rescind, expert evidence is admissible to show that articles in the order were marked so as to indicate that they were mado of better material than that actually used. Loveland v. Dinnan, 17: 1119, 70 Atl. 634, 81 Conn. 111. 1169. The merchantable quality of hay delivered under a contract requiring the delivery of good merchantable hay must be established by the evidence of experts, or by men who know what merchantable hay is in the markets where this hay is sold, and who have inspocted the hay tendered or an average sample of it. Trego v. Arave, 35: 1021, 116 Pac. 119, 20 Idaho, 38. m. Handwriting; finger prints. (See also same heading in Digest L.R.A. 1-10.) Admissibility of writings- for purpose of comparison, see supra, IV. p. Sufficiency of identification by finger prints, see infra, 2374. See also WITNESSES, 57. 1170. Expert testimony is admissible to aid in determining whether or not signa- tures properly admissible in evidence are facsimiles. Stitzel v. Miller, 34: 1004, 95 N. E. 53, 250 111. 72. 1171. In a prosecution for forgery a wit- ness who testifies that he has seen defend- ant sign his name on different occasions, and thinks he is familiar with defendant's signature, is competent to testify as to the signature of the defendant. Pittman v. State, 8: 509, 41 So. 385. 51 Fla. 94. 1172. A witness who has seen a lost in- strument alleged to have been written and EVIDENCE, VII. n. 1159 signed by a certain person may, if other- wise competent, testify, from a comparison of admittedly genuine specimens of such person's handwriting introduced in evidence for the purpose of comparison, that the lost instrument was written and signed by such person, though the witness has never seen any specimens of such person's handwriting, either admittedly genuine or otherwise, other than that in which the lost instrument was written and signed and the exhibits sub- mitted to him for comparison. Cochran v. Stein, 41: 391, 136 N. W. 1037, 118 Minn. 323. (Annotated) 1173. One having full opportunity and fre- quent occasion to observe and note the hand- writing of a person on ancient documents free from suspicion, from which he has been able to form a satisfactory opinion as to the writing on an ancient document in question, may give his opinion as to the genuineness of such writing, although he is not a handwriting expert. Nicholson v. Eureka Lumber Co. 36: 162, 72 S. E. 86, 156 N. C. 59. (Annotated) 1174. One who claims to have received let- ters from another, but who has never seen him write and is not an expert in handwrit- ing, is not competent to testify that they were written by him, although she claims that he acknowledged that he wrote two of them, where that fact is disputed, so that there is no undisputed writing in evidence to form the basis of comparison. State v. Mc- Bride, 7: 557, 85 Pac. 440, 30 Utah, 422. (Annotated) 1175. It is not error to refuse to permit an expert in handwriting to testify, from an examination of a will and an erasure there- in, that a person who wrote with a nervous hand would be unable to make such an era- sure, although the witness might properly testify that the hand of the person who wrote the "vill was nervous and unsteady. Scott v. Thrall, 17: 184, 95 Pac. 563, 77 Kan. 688. ringer prints. 3176. A comparison of finger prints may be made by witnesses skilled in the art, for the purpose of identifying one accused of crime. People v. Jennings, 43: 1206, 96 N. E. 1077, 252 111. 534. (Annotated) 1177. Witnesses who for several years have made a study of finger prints in connection with the detective bureaus, and had actual experience in identifying persons by that method, may make comparison, as experts. of finger prints in evidence for purposes of identification. People v. Jennings, 43: 1206, 96 N. E. 1077. 252 111. 534. 1178. Evidence of a finger print expert is not rendered inadmissible because he states that prints given him for comparison were made by the same person rather than that in his opinion they were so made. People v. Jennings, 43: 1206, 96 N. E. 1077, 252 111. 534. 1179. Expert testimony concerning finger prints obtained voluntarily from one being tried for murder, for the purpose of com- parison with finger prints upon a hatchet found near the body of the deceased at the Digest 1-52 L.R.A.(N.S.) time of the discovery of the body, is ad- missible. State v. Cerciello (N. J. Err. & App.) 52: 1010, 90 Atl. 1112, 86 N. J. L. 309. n. Miscellaneous. (See also same heading in Digest L.R.A. 1-10.) See also supra, 841. 1180. An officer of a bank may testify to its transactions from his knowledge of its course of business, although he has no per- sonal knowledge of them. Lilly v. Hamil- ton Bank, 29: 558, 178 Fed. 53, 102 C. C. A. 1. 1181. A witness may express an opinion as to the inferences to be drawn from the appearance of cattle brands, where he has some special training in the matter, al- though his experience has not been such as to enable him to speak with authority. State v. Wolfley, 11:87, 89 Pac. 1046, 75 Kan. 406. 1182. One from whose office a letter is alleged to have issued, who has testified that he had no knowledge of it, and as to the routine of the office, cannot be re- quired to express his opinion as to whether or not the letter did issue from his office over his apparent signature. Willner v. Sil- verman, 24: 895, 71 Atl. 962, 109 Md. 341. 1183. An employee jof the weather bureau cannot be allowed to testify from journal entries made by a predecessor in the office, that the weather at a certain time had caused streams to rise rapidly and to over- flow adjoining land, since it consists large- ly of the individual opinion of the writer. Hufnagle v. Delaware & Hudson Co. 40: 982, 76 Atl. 205, 227 Pa. 476. 1184. It is not error to permit an expert, in an action for the price of an organ, to answer the question "What did the regula- tion indicate?" for the purpose of showing that the management of the organ had been improper, at least where He states the facts on which his opinion is based. Estey Organ Co. v. Lehman, n: 254, 111 N. W. 1097, 132 Wis. 144. 1185. Witnesses in a murder trial who had experience in trailing men, and who fol- lowed the tracks of two men from the scene of the murder, may testify as to the differ- ence in the characteristics of the tracks of men walking and running. Grant v. State, 42: 428, 148 S. W. 760, Tex. Crim. Rep. 1186. Citizens of a municipality may tes- tify as to how a red flag is regarded by law- abiding citizens in the community. People v. Burman, 25: 251, 117 N. W. 589, 154 Mich. 150. 1187. One who has served as motorman and conductor on electric cars, but has had no experience in superintending the construc- tion of the trolley wires for cross-over tracks, is not qualified to express his opinion as to the practicability of such device. Nor- 1160 EVIDENCE, VII. n. folk & P. Traction Co. v. Ellington, 17: 117, 61 S. E. 779, 108 Va. 245. 1188. Evidence by comparison of odors tending to prove that one accused of mur- der by administering to a person named "certain deadly drugs and poisons, to wit, cyanide of potassium and hydrocyanic acid, and also other drugs and poisonous sub- stances to" the county attorney unknown, administered a preparation of ergot, cotton root, and dilute sulphuric acid to his al- leged victim several times in the two days preceding her death, is admissible although the accused administered a different treat- ment immediately before the death, where the various treatments appear to be parts of a connected transaction. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. 1189. Although courts take judicial notice of the methods of mercantile agencies, this knowledge may be supplemented respect- ing disputed methods of business by the testimony of experienced officers of the agencies themselves. Davis v. Louisville Trust Co. 30: ion, 181 Fed. 10, 104 C. C. A. 24. Purpose, motive, or intent. 1190. Upon a prosecution for selling opium to an habitual user, under a statute re- quiring persons selling it at retail to sat- isfy themselves that it is desired for legiti- mate purposes, physicians and druggists may testify that, in their opinion, such sale is not for a legitimate purpose. Katzman v. Com. 30: 519, 130 S. W. 990, 140 Ky. 124. 1191. A question whether a payment was made to accommodate one person or another calls for the mere opinion of the witness to whom it is propounded, and the court may properly refuse to allow it to be an- swered. Mankin v. Jones, 15: 214, 60 S. E. 248, 63 W. Va. 373. Authority of agent. 1192. An agent, the validity of a contract executed by whom is in controversy, cannot state as a witness whether or not he had authority to spend money for the purposes to which the contract relates. Parrot v. Mexican C. R. Co. 34: 261, 93 N. E. 590, 207 Mass. 184. 1193. On an issue as to the authority of the president of a corporation as agent of the corporation, such president is a compe- t|nt witness, and may state that he had full management and control of the affairs of the company, buying and selling and looking after its finances, and was under the duty of executing notes, checks, and other papers, and did all these things with the approbation of the directors, such being statements of fact, and not mere expressions of opinion; and proof that the person in whose favor such president had assumed to hind the corporation had knowledge of these facts is not essential. Union Bank & T. Co. v. Long Pole Lumber Co. 41: 663, 74 S. E. 674, 70 W. Va. 558. Character of property. 1194. The opinion of a man upon the ques- tion whether or not part of his property was community is not admissible in evi- Digest 1-52 L.R.A.(N.S-) dence in a proceeding by the wife to estab- lish title to part of the property left by him as community. Re Pepper, 31:1092, 112 Pac. 62, 158 Cal. 619. Physical facts. See also supra, 1183. 1195. An employee of the weather bureau who has testified to the temperature and precipitation on a certain date, and what would or would not constitute extraordi- nary precipitation, cannot state his opin- ion whether or not tho precipitation on that date was extraordinary. Hufnagle v. Dela- ware & Hudson Co. 40: 982, 76 Atl. 205, 227 Pa. 476. 1196. An engineer having experience in cleansing and purifying water for drinking purposes cannot be said to be clearly incom- petent to testify as an expert as to the purification of mine water to avoid pollu- tion of a stream into which it flows, al- though he has had no experience in the purification of such water. Arminius Chem- ical Co. v. Landrum, 38: 272, 73 S. E. 459, 113 Va. 7. 1197. A person who has had nine years' experience as manager of a cold storage- plant, and who has had occasion to observe the condition of frozen products kept in storage, 'is qualified to state his opinion whether a product such as egg meats, hav- ing been once solidly frozen, will thaw in a temperature lower than the freezing point. Stewart v. Henningsen Produce Co. 50: in, 129 Pac. 181, 88 Kan. 521. 1198. An experienced locomotive engineer is competent to testify from his observa- tion and experience as to the distance that sparks from a properly equipped locomotive will set fires, although he has made no scientific tests and is not a competent physicist. Potter v. Grand Trunk Western R. Co. 22: 1039, 121 N. W. 808, 157 Mich. 216. (Annotated) Practice of medicine. 1199. Expert evidence is not admissible up- on the question whether a person doing the things upon which the parties agree is prac- tising medicine, that being a question for the court to decide. Com. v. Porn, 17: 94, 82 N. E. 31, 196 Mass. 326. Nuisance. 1200. A witness familiar with the condi- tions may be permitted to state his opinion as to whether or not odors from a sewage purification plant could be smelled at the residence of a complaining property owner, although he could not give such evidence as an expert, because the subject was with- in the knowledge of all men of common observation and experience. Adler v. Pruitt, 32: 889, 53 So. 315, 169 Ala. 213. Habits of animals. 1201. In a prosecution for maliciously kill- ing and wounding dogs which were chasing and worrying defendant's live stock, evi- dence of experts as to the habits and traits of the particular breed of dogs, to the effect that they would not in fact harm or injure domestic animals, is inadmissible where the evidence as to the occurrence is direct, and not circumstantial, unless it appear that the EVIDENCE, VIII. 1161 defendant at the time had knowledge of such habits and traits. State v. Churchill, 19: 835, 98 Pac. 853, 15 Idaho, 645. Knowledge of animal propensities. 1202. Expert testimony concerning the pro- pensity of boar hogs in general to become vicious after a certain age is inadmissible to prove that the owner of a boar which had inflicted personal injuries while stray- ing upon the uninclosed land of the injured person had constructive knowledge of the vicious propensities of his boar, as a boar is a domestic animal, and of a class the habits and propensities of which in general are matters of common knowledge. Johnston v. Mack Mfg. Co. 24: 1189, 64 S. E. 841, 65 W. Va. 544. (Annotated) Marriage. 1203. One claiming to be the common-law wife of a decedent cannot testify that she married him, as it is a mere conclusion, and has no tendency to prove common-law mar- riage. Berger v. Kirby, 51: 182, 153 S. W. 1130, 105 Tex. 611. Good faith; purchase for value. 1204. One suing on a note which had been procured from the maker by fraud cannot be permitted to testify that he purchased the note in good faith and for value, since that is the question which the jury must decide. Arnd v. Aylesworth, 29: 638, 123 N. W. 1000, 145 Iowa, 185. Title or possession. 1205. Testimony as to the opinion of an attorney concerning the title to person- al property in dispute is not admissible in an action to recover possession of it. Log Owners' Booming Co. v. Hubbell, 4: 573, 97 N. W. 157, 135 Mich. 65. 1206. A question asked of a witness in an action of forcible entry and detainer, as to who was in possession of the property, is not objectionable as calling for the conclu- sion of the witness on legal possession, in the absence of anything in the form of the question, or of previous questions put to witnesses, indicating that the word is used in its technical sense, as synonymous with "seisin." Her v. Miller, 14: 289^ 111 N. W. 589, 78 Neb. 675. (Annotated) VIII. Confessions; testimony or evi- dence wrongfully obtained. (See also same heading in Digest L.R.A. 1-10.) Admissions, see infra, IX. Confessions of accomplice, see infra, X. g. Confession by stranger, see infra, 1404. Sufficiency of corroborating evidence, see infra, 2352, 2353. Review of discretion in admitting confes- sion, see APPEAL AND ERROR, 606. Production of books or documents of ac- cused as infringing privilege against self-crimination, see CRIMINAL LAW, 103-118. Instruction as to weight and value to be given confession, see TRIAL, 911. See also WITNESSES, 114. Digest 1-52 !L.R.A.(N.S.) 1207. Prima facie any confession is ad- missible in evidence, and, where its ad- missibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such cir- cumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 31:849, 111 Pac. 676, 4 Okla. Crim. Rep. 202. 1208. Confessions of one accused of arson are properly admitted in evidence against him after proof of the corpus delicti. Speara v. State, 16: 285, 46 So. 166, 92 Miss. 613. 1208a. A confession signed and sworn to by one arrested while committing a murderous assault and taken immediately before the police officials, without threats or promises on their part, is not rendered inadmissible in evidence against him upon his trial for the assault, on the theory that he thereby is made a witness against himself. People v. Owen, 21 : 520, 118 N. W. 590, 154 Mich. 571. 1209. The admissibility in evidence of a voluntary statement made by one arrested by an officer without warrant is not affected by the illegality of the arrest. Gilmore v. State, 27: 151, 106 Pac. 801, 3 Okla. Crim. Rep. 434. (Annotated) 1210. Statements made by one charged with murder to a county attorney and coun- ty commissioner, giving in detail the facts of the crime, are properly received in evi- dence when there is no showing that such statements were procured by duress, prom- ise of reward, or other improper means. State v. Adams, 35: 870, 116 Pac. 608, 85 Kan. 435. 1211. The drunken condition of an accused when making a confession does not affect the admissibility in evidence of such con- fession, unless the drunkenness goes to the extent of mania, but is a fact for the con- sideration of the jury tending to discredit such confession. Lindsay v. State, 50: 1077, 63 So. 832, 66 Fla. 341. 1212. In order to the admissibility of a statement made by an accused person, it need not appear that it is a full acknowl- edgment of guilt so as to be a confession in the strictest sense of the term. If it con- nects or tends to connect the accused, either directly or indirectly, with the commission of the crime charged, it cannot be ex- cluded on the ground that it is not a plenary confession. Rex v. Martin, 2 B. R. C. 336, [1905] 9 Ont. L. Rep. 218. Confessions procured by inducements or threats. See also infra, 1228, 1229. 1213. Primarily there are two facts which render a confession inadmissible as evi- denc'e: First, that it was obtained under any form of compulsion, so that to receive it in evidence would, violate the defendant's constitutional privilege against self-incrim- ination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testi- monial untrustworthiness. Berry v. State, 1162 EVIDENCE, VIII. 31:849, 111 Pac. 676, 4 Okla. Grim. Rep. 202. 1214. The statement of an officer at the time of the arrest of one accused of murder by shooting his victim, that he had missed, is not such an inducement as will prevent a confession thereafter made being introduced in evidence. Lindsay v. State, 50: 1077, 63 So. 832, 66 Fla. 341. (Annotated) 1215. Where a sheriff having the custody of a person accused of murder obtains a confession from him by promises of assist- ance, and statements that he would do all he could to save him from being hung, other confessions subsequently made to dif ferent persons, but in the presence of such sheriff, must be regarded as tainted with the same improper influence, and are in- admissible against accused, though he was warned before making them that, if made, they would be used against him. State v. Wood, 20: 392, 48 So. 438, 122 La. 1014. 1216. A confession by a prisoner after be- ing confined for several days in a "sweat box" 5 or 6 feet by 8 in size, carefully blanketed to exclude all light and air, is not admissible in evidence against him, al- though no threats or offers of reward were made to coerce him, and he was merely told that it would be better for him to tell the truta. Ammons v. State, 18: 768, 32 So. 9, 80 Miss. 592. (Annotated) 1217. An alleged confession secured from one suspected of crime, by a protracted searching examination of public officials, who assumed a menacing and browbeating attitude, accompanied by threats, invective and false statements, and profanity, is not admissible in evidence against him. Peo- ple v. Borello, 37: 434, 119 Pac. 500, 161 Cal. 367. 1218. A confession procured by a news- paper man from one locked up on the charge of murder, who is suffering from fever and is in fear of mob violence, by telling him that the speaker is a Spiritualist and can look into accused's heart and see the crime he committed, is not admissible in evidence against accused. Johnson v. State, 51: 1183, 65 So. 218, Miss. . 1219. A confession obtained from one un- der suspicion, though not under arrest, by detectives who pretended that they belonged to a gang of organized criminals from the operations of which large profits were likely to be made, and who offered to make the prisoner a member of the gang if he would satisfy them that he had committed some serious crime, is not inadmissible as having been obtained by an inducement of a tem- poral nature, the alleged inducement not having been held out by a person in au- thority nor made in reference to the charge against the prisoner. Rex v. Todd, 1 B. R. C. 883, 13 Manitoba L. Rep. 364. (Annotated) Testimony at coroner's inquest. 1220. Confessions or inculpatory statements elicited from persons accused of homicide, on their examination before a coroner's jury, are not admissible against them on their subsequent trial, where they are taken in Digest 1-52 L.R.A.(N.S.) custody before the coroner's jury, and, with- out being informed that they are not com- pelled to testify, are sworn and examined as witnesses, not on their own motion, but on that of the coroner or the jury, in regard to the homicide and their connection with it. Adams v. State, 17:468, 58 S. E. 822, 129 Ga. 248. 1221. Testimony of one under arrest on a charge of murder, given before the coroner at the inquest upon the death of his al- leged victim, in response to the coroner's inquiry as to whether or not he wanted to testify, is not admissible against him at his trial, if he was not informed that he need not testify or that his testimony might be used against him. Maki v. State, 33: 465, 112 Pac. 334, 18 Wyo. 481. ( Annotated ) Testimony before grand jury. 1222. Statements and declarations by a de- fendant in a criminal action, in denial of guilt, while a witness before a grand jury, are not confessions within the rule requir- ing them first to be shown to have been made voluntarily before tl^y are compe- tent evidence against him. State v. Camp- bell, 9: 533, 85 Pac. 784, 73 Kan. 688. (Annotated) 1223. The fact that testimony given before the grand jury by a defendant in a criminal action is in obedience to a subpoena does not make his statements or declarations involun- tary and therefore inadmissible against him, since his rights are protected by his privi- lege to refuse to answer when the answer tends to incriminate him, and by the fail- ure to exercise these privileges his state- ments and declarations become voluntary. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. (Annotated) By silence. See also infra, 1402, 1403. 1224. A statement by one under arr&st charged with murder, on a confession by an accomplice being read to him and on being asked by officers in whose custody he was if he wanted to make any statement in regard to it, that he would make his state- ment at the proper time or that he would stand trial and tell his story then, does not show assent to the statement of the accom- plice so as to render it admissible in evi- dence as a tacit confession under the rule that uncontradicted statements or confes- sions made in the presence of one accused of crime are admissible in evidence if the time, the place, and the circumstances are such as to lead to the inference that the accused by his silence assented to the truth thereof. O'Hearn v. State, 25: 542, 113 N. W. 130, 79 Neb. 513. Evidence wrongfully obtained. See also supra, 1213. 1225. That a bottle of cocaine was ob- tained from the accused by an officer who, when he saw the accused in the act of selling the same, rushed into his presence with a pistol and commanded him to throw up his hands, searched him, and found on his per- son the bottle of cocaine, does not render the bottle of cocaine inadmissible in evi- EVIDENCE, IX. 1163 dence on the ground that it was obtained by unlawful search of the person and by force of threatened shooting. State v. Sut- ter, 43: 399, 76 S. E. 811, 71 W. Va. 371. 1226. If officers armed with a search warrant, upon presenting it at the home of one accused of crime, are invited by his mother to enter and search the premises, so that they do not act under the warrant, evidence obtained during the search is not inadmissible against accused, although the act may have- been a trespass as against him. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. 1227. Testimony of persons who make a peephole into a saloon, as to what they ob- served inside, and that they took some ar- ticles from the room and brought them to court, is not inadmissible in a prosecution for illegal liquor selling as being an un- reasonable search or seizure, or as compel- ling one to become a witness against him- self. Cohn v. State, 17: 451, 109 S. W. 1149, 120 Tenn. 61. (Annotated) 1228. The admission of evidence showing that one charged with murder produced from a hiding place a revolver similar to that with which the homicide was known to have been committed does not violate the rule excluding proof of an involuntary con- fession, although such production waa in- duced by intimidation. State v. Turner, 32: 772, 109 Pac. 654, 82 Kan. 787. (Annotated) 1229. That a confession of guilt was se- cured by the authorities through the trick *of admitting a friend of accused to his presence, his offering to take a letter from accused to his wife, and then intercepting the letter, which contained the confession, does not prevent its use in evidence against him. People v. Dunnigan, 31: 940, 128 N. W. 180, 163 Mich. 349. IX. Admissions. (8ee also same heading in Digest L.R.A. 1-10.) From failure to testify, see supra, II. e, 9. Confessions, see supra, VIII. Admissibility ,oi deed containing admis- sions, see supra, 786. In reports of car inspectors, see supra, 826. Weight of admission, see infra, 2119. Prejudicial error as to, see APPEAL AND ER- BOR, 1114, 1123. Estoppel by admissions, see ESTOPPEL, 219. Failure to attempt to disprove charges in divorce suit as admission of their truth, see JUDGMENT, 179. Showing admissions by cross-examination of party, see WITNESSES, 79. Effect of admissions to impeach witness, see WITNESSES, 155. Evidence of admissions by administrator to contradict his testimony, see WIT- NESSES, 145. See also supra, 690, 818, 877, 967, 1029; infra, 1402, 1403; WITNESSES, 114. Digest 1-52 L.R.A.(N.S.) Of parties. 1230. Confessions of adultery, made in the country, cannot be given in evidence or con- sidered in a suit for divorce for such of- fense. Trough v. Trough, 4: 1185, 53 S. E. 630, 59 W. Va. 464. 1231. The publication in a newspaper owned and controlled by a corporation of which one who promised to give a specific sum of money to a Young Men's Christian Association was president and principal stockholder, and with his knowledge, and without repudiation by him, of a list of subscribers to the association, embracing his own subscription, is relevant as tending to show an admission of the promiser to donate the particular sum to the association. Young Men's Christian Asso. v. Estill, 48: 783, 78 S. E. 1075, 140 Ga. 291. 1232. The conduct of a wife when her hus- band made declarations in her presence to the effect that all his property was made before his marriage is admissible against her in a proceeding to establish her claim to part of the estate as community prop- erty. Re Pepper, 31: 1092, 112 Pac. 62, 158 Cal. 619. 1233. Statements made by a person after a collision with another on the public high- way are competent as admissions, in an action against him for the injuries result- ing from such collision. Smith v. Barnard (N. J. Err. & App.) 41: 322, 81 Atl. 734, 82 N. J. L. 468. 1234. Upon the question of the liability of a carrier for injury to live stock in tran- sit, evidence is admissible of admissions by the owner to a conductor of the train, that his agent in loading the car had put too many animals in it. Colsch v. Chicago, M. & St. P. R. Co. 34: 1013, 127 N. W. 198, 141) Iowa, 176. 1235. Evidence of an admission by the chil-'s parent, since deceased, to the effect that it fell off a box and was injured, is not admissible in an action by it to hold a municipal corporation liable for the injury on the theory that it was caused by a de- fective sidewalk. Neff v. Cameron, 18: 320, 111 S. W. 1139, 213 Mo. 350. In action for personal injuries. 1236. The declaration of a minor as to his age are admissible in evidence in an action by him to hold his employer liable for per- sonal injuries because he was employed con- trary to the provision of a statute making it a misdemeanor to employ minors of less than a specified age. Koester v. Rochester Candy Works, 19: 783, 87 N. E. 77, 194 N, Y. 92. 1237. Admissions made by one injured by another's negligence are admissible in evi- dence against him at the trial without call- ing his attention to them while he is on the stand, as would be necessary to render them admissible for purposes of impeach- ment against an ordinary witness. Adams v. Chicago G. W. R. Co. 42: 373, 135 N. W. 21, 156 Iowa, 31. 1238. The admission of an employee in- jured through the alleged defective condi- tion of the brake on a car, that it operated 1164 EVIDENCE, IX. when he undertook to loosen it, to permit the car to be set in motion, does not show that it was in condition to stop the car. Republic Elevator Co. v. Lund, 45: 707, 196 Fed. 745, 116 C. C. A. 373. In criminal prosecution. See also supra, 1224. 1239. Voluntary statements of fact, made by a defendant in a criminal action, which do not tend to establish his guilt, but which are exculpatory in their nature, are com- petent evidence against him as admissions of a party. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. 1240. Upon trial for operating a pool room, evidence is admissible that defendant had pleaded guilty to the offense in police court. Ehrlick v. Com. 10: 995, 102 S. W. 289, 125 Ky. 742. 1241. Upon the question of perjury in swearing that certain voters lived at the place from which they registered, evidence is admissible that, at the time accused in- structed them to register, he told them that if any harm came he would see that they got out. People v. Cahill, 20: 1084, 86 N. E. 39, 193 N. Y. 232. 1242. Where one who a person on trial for perjury falsely swore was properly regis- tered as a voter from a certain place was disqualified both because of nonage and non- residence, evidence of an admission by ac- cused, prior to the other's registry, that he was not qualified, may be considered by the jury as relating to either disqualification. People v. Cahill, 20: 1084, 86 N. E. 39, 193 N. Y. 232. Of interested third persons generally. 1243. One's statement out of court that his injury is due to his own fault is admis- sible in evidence against him in an action to hold another liable for it. Rudd v. Byrnes, 26: 134, 105 Pac. 957, 156 Cal. 636. 1244. Upon the question of fixing rates for a telephone company, evidence is not admis- sible of a circular issued by an investment company, purporting to state the earnings of the telephone company, although the two companies have the same president. Home Teleph. Co. v. Carthage, 48: 1055, 139 S. W. 547, 235 Mo. 644. 1245. The admissions against interest of the owner of an estate are admissible in evidence against his trustee in bankruptcy, subsequently appointed. Smith v. Au Gres Twp. 9: 876, 150 Fed. 257, 80 C. C. A. 145. 1246. Upon a joint trial, the whole of a statement tending to prove the guilt of the party making it is admissible in evidence, although it contains matter prejudicial to a codefendant, the jury being cautioned that it is evidence only against the party making it. Rex v. Martin, 2 B. R. C. 336, 9 Ont. L. Rep. 218. (Annotated) Of former owner. 1247. Upon the question of the right of a tenant to remove improvements against a remote grantee of the reversion with notice, evidence is admissible of admissions and dealings between the lessees and intermedi- ate grantees. Searle v. Roman Catholic Bishop, 25: 992, 89 N. E. 809, 203 Mass. 493. Digest 1-52 I*R.A.(N.S.) 1248. In an action by a bona fide holder of a promissory note in which the defense is an illegal and immoral consideration, evidence of a conversation with the payee of the note, in the nature of an admission of the consideration, occurring after the transaction, is admissible. Exchange Nat. Bank v. Henderson, 51: 549, 77 S. E. 36, 139 Ga. 260. Of agent or servant. Admissibility of agent's report, see supra, 876. Cure of error in admitting in evidence ad- missions of attorneys, see APPEAL AND ERROR, 841. See also WITNESSES, 150. 1249. It is as competent to prove the ad- mission by one that he is the agent of another, where that is the fact sought to be established against him, as it is to prove any other admission against his interest. Blake v. Bremyer, 35: 165, 115 Pac. 538, 84 Kan. 708. (Annotated) 1250. An admission by a servant whose negligence caused injury to another, made long after the accident, is not admissible in evidence against the master, but is ad- missible against the .servant himself. Illinois C. R. Co. v. Houchins, i: 375, 89 S. W. 530, 121 Ky. 526. 1251. Evidence of a declaration by the op- erator of a derrick used in unloading steel rails from a car, upon witnessing an acci- dent to plaintiff by the dropping of the lever or boom rail, that "the damn thing was about wore out anyhow, and they would, keep running it until they killed somebody," is not competent as an admission made by an agent of the defendant with respect to an act done by him while engaged in the line of his service. Illinois C. R. Co. v. Lowery, 49: 1149, 62 So. 952, 184 Ala. 443. 1252. In an action against the owner of a railroad to recover damages for injury to a traveler at a street crossing by the negli- gence of the lessee, who was operating the road, evidence is not admissible of a set- tlement by the lessee with the owner of the vehicle in which the injured person was riding, since the act was beyond the scope of the agency, and public policy requires that the settlement of claims shall be en- couraged, without the menace of the set- tlement requiring justification in other suits. Rookardt v. Atlanta & C. Air Line R. Co. 27: 435, 65 S. E. 1047, 84 S. C. 190. 1253. Evidence is admissible in a suit on a renewal note of declarations and admis- sions of one having possession of the origi- nal, which was signed and delivered sub- ject to a condition, made at the time he secured the renewal, to the effect that the condition existed, although it was made in the absence of the payee, and there is no proof that he had any authority to do anything except to get an unconditional renewal. Smith v. Dotterweich, 33: 892, 93 N. E. 985, 200 N. Y. 299. Of attorney. 1254. An admission by attorneys for an accused at the preliminary hearing, to pre- vent a continuance to enable the state to EVIDENCE, X. a. 1165 secure certain evidence, and to secure a hearing without delay, is not admissible against accused at the trial, where the state has secured the evidence which it sought. State v. Butler, 25: 169, 65 S. E. 993, 151 N. C. 672. (Annotated) 1255. Upon the question of the validity of a defense of fraud to the enforcement of a foreign judgment, evidence is not admissible that defendant's attorney had stated, after the rendition of the judgment, that he knew of the facts out of which the claim arises, but did not base a defense upon them be- cause he did not believe it good. Mahoney v. State Ins. Co. 9: 490, 110 N. W. 1041, 133 Iowa, 570. Of executor. 1256. Evidence of an executor that he un- duly influenced the execution of the will is not admissible against the devisees and legatees, to prevent its probate. Re Fowler, 38: 745, 72 S. E. 357, 156 N. C. 340. Of coheir. 1257. In an action to enforce a promissory note against an estate, evidence is not ad- missible that, before purchasing the note, plaintiff showed it to certain heirs at law, one of whom was administrator, and asked if it was genuine, to which no reply was made, since they could not by their admis- sions bind the other heirs. Stitzel v. Mil- ler, 34: 1004, 95 N. E. 53, 250 111. 72. Of partner. 1258. An admission by one partner, made after dissolution, of the existence of a debt against the firm, or a settlement made with him finding a debt against it, the other partner not being present when such ad- mission or settlement is made, does not bind the latter, and is not admissible in evidence against him. Burdett v. Hayman, 15: iolfl, GO S. E. 497, 63 W. Va. 515. As against surety. 1259. The 0. K. by an insurance agent who is required to remit, for business done, with- in two months after the expiration of the month in which it is transacted, of a state- ment of amount due by him to the company within such time, after he has resigned from his position, is admissible in evidence against his surety in an action to hold him liable for a defalcation, since the duty to remit did not terminate with the resigna- tion, and statement as to the amount due, made within the time during which his contract required him to make remittances, was part of the res gestce. United Ameri- can F. Ins. Co. v. American Bonding Co. 40: 661, 131 N. W. 994, 146 Wis. 573. (Annotated) Next friend. Admissibility for purpose of impeaching next friend as witness, see WITNESSES, 166. 1260. A child seeking to recover damages for personal injuries is not bound by ad- missions made after the injury and before suit, by one who becomes its next friend for the purpose of bringing the suit. Neff v. Cameron, 18: 320, 111 S. W. 1139, 213 Mo. 350. Digest 1-52 !L.R.A. it when offered, will prevent his objecting to the introduction of the tes- timony of the physician on a subsequent trial of a prosecution against him for per- jury. People v. Bloom, 18: 898, 85 N. E. 824, 193 N. Y. 1. 1329. One injured in a railroad wreck, who, in a suit to recover damages for the injuries, testifies as to the injuries and the treatment given him, and calls his own phy- sician to testify as to such injuries, waives the provision of the statute making incom- petent as a witness a physician or surgeon concerning information acquired from a patient while attending him in a profes- sional character, and other physicians who treated him for such injuries at the time of the accident may therefore testify as to their extent and the treatment given. Ep- stein v. Pennsylvania R. Co. 48: 394, 156 S. W. 699, 250 Mo. 1. (Annotated) 1330. The calling, in an action on an acci- dent insurance policy, of a physician who attended insured shortly after his injury, does not render admissible evidence of an- other physician who made an examination of him at a different time, where the stat- ute prohibits the disclosure by a physician without consent of any information con- fidential in its nature, acquired in attend- ing a patient in a professional capacity, and necessary to enable him to act in that capacity. Mays v. New Amsterdam Casual- ty Co. 46:1108, 40 App. D. C. 249. 1331. One claiming under an accident in- surance policy does not waive the privilege existing between the attending physician and insured so as to render his testimony admissible, by reading in evidence incident- ally as part of a deposition of one of de- fendant's officers upon another issue an affidavit of the physician voluntarily fur- nished as part of the proof of loss. Fideli- ty & C. Co. v. Meyer, 44: 493, 152 S. W. 995, 106 Ark. 91. 1332. A stipulation, in a contract of life insurance, to the effect that the proofs of death shall consist in part of the affidavit of the attending physician, which shall state the cause of death and such other information as may be required by the in- surer, constitutes a waiver within the meaning of said sections, and renders the attending physician a competent witness as to the confidential disclosures made to him by the assured concerning his last sick- ness. Western Travelers' Acci. Asso. v. Munson, i: 1068, 103 N. W. 688, 73 Neb. 858. (Annotated) 1333. The plaintiff in a suit for malprac- tice, who fully describes his injury and the operation to which he was compelled to sub- mit because of the defendant's alleged fail- ure properly to care for it, waives the statu- tory privilege of excluding from evidence the testimony of the surgeon performing the operation. Capron v. Douglass, 20: 1003, 85 N. E. 827, 193 N. Y. 11. (Annotated) I EVIDENCE, X. c. 1171 1334. A beneficiary in a life insurance pol- icy seeking to set aside a settlement of the claim because of the alleged falsity or a statement of the attending physician as to the cause of the death of insured, and as to which she introduces testimony, waives the privilege in regard to the testimony of such physician concerning the cause of death. National Annuity Asso. v. McCall, 48: 418, 146 S. W. 125, 103 Ark. 201. (Annotated) 1335. An applicant for life insurance may make a valid contract with the insurer, waiving the privilege afforded him by a statute rendering a physician incompetent to testify to professional communications from his patient and to knowledge of his patient obtained in a professional way. Metropolitan L. Ins. Co. v. Brubaker, 18: 362, 96 Pac. 62, 77 Kan. 599. 1336. That the physician of one seeking damages for personal injuries is not intro- duced as a witness by him does not pre- vent his waiver of his privilege from op- erating in future trials. Elliott v. Kansas City, 6: 1082, 96 S. W. 1023, 198 Mo. 593. 1337. The waiver of privilege by one seek- ing damages for personal injuries, so as to permit his physician to testify in the ac- tion, extends to subsequent trials, so that he cannot object to the introduction in them of substantially the same testimony given under the waiver. Elliott v. Kansas City, 6: 1082, 96 S. W. 1023, 198 Mo. 593. (Annotated) In communication to attorney. 1338. The fact that one who is claimed to have dictated a letter through a confiden- tial agent to an attorney for the purpose of employing the attorney in his defense de- nies any intention of employing the attor- ney to whom the letter was addressed does not take the communication out of the privileged class, where the letter itself pur- ports to seek such employment. State v. Loponio (N. J. Err. & App.) 49: 1017, 88 Atl. 1045, 85 N. J. L. 357. Loss of privilege. 1339. The use as evidence against accused of a letter written by him to his wife, but intercepted by the authorities before it reached her possession, is not prevented by a statute prohibiting either husband or wife to be examined as to any communication made by one to the other. People v. Dun- nigan, 31:940, 128 N. W. 180, 163 Mich. 349. 1340. Letters written by a woman, who was charged with burning her property to collect the insurance, to her husband, which were lost by him and came into possession of strangers, are admissible in evidence against her. O'Toole v. Ohio German F. Ins. Co. 24: 802, 123 N. W. 795, 159 Mich. 187. 1341. One who has read a letter from a man to his wife, which was casually picked up where the wife had laid it, cannot tes- tify to its contents in a criminal prosecu- tion against the husband, where the statute forbids either spouse to testify in a crimi- nal prosecution to communications from the Digest 1-52 L.K.A.(N.S.) other. Gross v. State, 33: 477, 135 S. W. 373, 61 Tex. Grim. Rep. 176. (Annotated) c. Party's awn nets and declarations. (See also same heading in Digest L.R.A. 1-10.) Admissions by party, see supra, IX. Complaints of injury and suffering, see in- fra, X. h. Prejudicial error in admitting, see APPEAL AND ERROR, 1096. 1342. Declarations of a party to a contract, as to its terms, are not admissible as part of the res gestce, when made after the con- tract is completed, and not in the presence of the parties, although made very soon aft- er the parties separate. State v. Murphy, 17: 609, 115 N. W. 84, 17 N. D. 48. 1343. The statement of one having a bot- tle of wood alcohol purchased the previous day, made to induce another to drink with him, that "it is good. I got it of Chase Brown," is inadmissible as res gestce evi- dence in an action for the death of the purchaser, based upon the alleged negligence of Brown in selling wood alcohol for grain alcohol without a proper label, as such statement was not concomitant with the act of obtaining the alcohol, nor a part of it, but was simply narrative of a completed transaction. Campbell v. Brown, 26: -142, 106 Pac. 37, 81 Kan. 480. 1344. All statements made by the defend- ants to an action for damages for personal injuries inflicted by a dog while trespassing, as to their custody of the dog at the time of the accident and immediately preceding thereto, and the ownership and harboring of the dog, are admissible to aid the jury in determining whether or not the defend- ants were the owners or harborers of the dog and liable for the damage done by it. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 1345. Statements of one injured by an- other's negligence, during examination by physicians who are attempting to qualify as expert witnesses in an action to recover for the injuries, are not admissible in such ac- tion as part of the res gestce. Shaughnessy v. Holt, 21 : 826, 8b N. E. 256, 236 111. 485. (Annotated) 1346. Statements made by one rendered unconscious by a personal injury, immedi- ately upon his regaining consciousness, eight days later, as to the cause of the in- jury, are admissible in evidence against one alleged to be responsible therefor, and the fact of the appearance of semiconsciousness before full consciousness returns goes to the weight of the evidence, and not to its admissibility. Britton v. Washington Water Power Co. 33: 109, 110 Pac. 20, 59 Wash. 440. 1347. Serving a notice of accident on a city, as required by statute, is not a bring ine of an action, within the meaning of a statute permitting tli2 admission of evi- dence of declarations of an injured person 1172 EVIDENCE, X. d. made before action brought. Dickinson v. Boston, 1:664, 75 N. E. 68, 188 Mass. 595. Against interest. Admissions, see supra, IX. See also supra, 1029. 1348. Statements against interest, by a party to an attempted arbitration to one of the selected arbitrators, are admissible in evidence against him, in an action grow- ing out of the subject-matter of the con- troversy. Sullivan v. Sullivan, 7: 156, 92 S. W. 966, 122 Ky. 707. 1349. A trust in an absolute legacy may be established by parol evidence, and the con- temporaneous declarations of the testator, and subsequent declarations of the legatee, that the bequest was made for the benefit of a third person, upon the promise of the legatee to hold it in trust, are admissible for that purpose. Winder v. Scholey, 33: 995, 93 N. E. 1098, 83 Ohio St. 204. In party's favor. Complaints of injury and suffering, see in- fra, X. h. 1350. A statement of an employee who had fallen from a ladder, made in response to a question while he was lying on the floor, that the ladder bent under him, is narrative, and not spontaneous, and is therefore not admissible as res gestce in an action to hold his employer liable for the injury. Greener v. General Electric Co. 46:975, 102 N. E. 527, 209 N. Y. 135. 1351. Upon the question of negligence of the owner of a garage in driving a . car against another on the highway, repair tickets issued by the garage showing the nature of repairs made upon his car are not admissible in evidence, nor is a private letter from him relating to repairs made just prior to the accident admissible, since they are mere self-serving declarations. Granger v. Farrant, 51: 453, 146 N. W. 218, 179 Mich. 19. 1352. Testimony by a plaintiff in an action to recover damages for personal injuries, that statements made to a physician who examined him to qualify as an expert wit- ness in the case were true, will not render admissible testimony of such physician, based upon such statements. Shaughnessy v. Holt, 21 : 826, 86 N. E. 256, 236 111. 485. Criminal cases. Review of discretion as to, see APPEAL AND ERROR, 609. Admissibility to corroborate witness, see WITNESSES, 193. See also infra, 1887. 1353. Statements of an accused are not rendered inadmissible at his trial by the fact that at the time of making them he was a convict hired out on bond. Andrews v. State, 42: 747, 141 S. W. 220, 64 Tex. Crim. Rep. 2. 1354. In a prosecution for receiving money stolen from the mail, evidence is not ad- missible that, after arrest, accused in- formed his attorney that he did not know that the money was stolen. Thomp&on v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. 1355. Upon a trial for assault with intent Digest 1-52 L.R.A.(N.S.) to murder, evidence is admissible of state- ments of accused made shortly after the assault that he had considerable feeling against his victim. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 1356. In a trial for homicide it is compe- tent to put in evidence the actions, con- duct, and general demeanor of defendant before the killing, for the purpose of prov- ing that he was armed and in a vicious humor, provided only that such conduct is so near the time of the homicide as to tend to show the state of mind of the defend- ant at the time of the killing. Hampton v. State, 40: 43, 123 Pac. 571, 7 Okla. Crim. Rep. 291. 1357. Upon the question whether one found dead had committed suicide or had been murdered, evidence is admissible of a declaration by accused of an intention to dispose of another person in the identical manner in which decedent appears to have met his death, and which is peculiar and unusual. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. 1358. A statement by one accused of mur- der that he was a straight shot, a game man, which his hearer would find out be- fore they got back, is admissible in evidence upon his trial for a homicide occurring dur- ing the expedition, although several hours later, as tending to show general malice and a disposition to do a criminal act. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 1359. Upon trial of one for killing a po- liceman, evidence of a casual remark of ac- cused several months before, to the effect that "if they arrested me like that fellow was arrested I would shoot them," is not admissible in evidence if there is nothing to show the circumstances of the arrest al- luded to. State v. Meyers, 33: 143, 110 Pac. 407, 57 Or. 50. d. Acts and declarations of third per- sons, generally. (See also same heading in Digest L.R.A. 1-70.) Admissions of third persons, see supra, IX. Prejudicial error as to, see APPEAL AND ERROR, 1140. See also supra, 1272. 1360. A witness's prior contradictory statement cannot be used as substantive testimony tending to show the truth of the facts alleged in such statement. Culpepper v. State, 31: 1 1 66, 111 Pac. 679, 4 Okla. Crim. Rep. 103. 1361. Evidence is not admissible in an ac- tion to set aside a deed, of a declaration by one person as to what another meant by remarks made to the speaker concerning the preparation of papers. Holt v. Guer- guin, 50: 1136, 163 S. W. 10, Tex. . 1362. Evidence of declarations by heirs to their mother, that real estate left by their father is hers, is not admissible as proof of title in her. Munsey v. Hanly, 13: 209, 67 Atl. 217, 102 Me. 423. EVIDENCE, X. d. 1173 1363. Evidence of expression of other pas- sengers is not admissible in evidence upon the question of the liability of a street car company for ejecting a person from its car. Kirk v. Seattle Electric Co. 31: 991, 108 Pac. 604, 58 Wash. 283. 1364. Upon the question of the tempera- ture and condition of a car in which pas- sengers are compelled to travel, evidence is not admissible of complaints of passengers made to each other, but not brought to the attention of the carrier's employees. Louis- ville & N. R. Co. v. Scalf, 26: 263, 110 S. W. 862, 33 Ky. L. Rep. 721. 1365. Declarations of .a witness who at- tested a will, unfavorable to the capacity of testator, are not admissible in evidence on the question of the validity of the will. Speer v. Speer, 27: 294, 123 N. W. 176, 146 Iowa, 6. (Annotated) 1366. The statements of the employer when discharging an employee because of notice of an assignment of his wages are admis- sible in evidence in an action to hold one liable in damages, who caused the discharge by wrongfully claiming the assignment. Lopes v. Connolly, 38: 986, 97 N. E. 80, 210 Mass. 487. 1367. In an action against a member of an employers' association for blacklisting an employee, the latter should not be permitted to testify as to the reasons given by mem- bers of the association for refusal to em- ploy him. Willner v. Silverman, 24: 895, 71 Atl. 962, 109 Md. 341. 1368. In an action to recover damages for trespass and assault in compelling, through an unlawful affray, a person to take refuge in his home, and in shooting at him, evi- dence of what was said by persona in the crowd in the street in front of the house, of the one against whom the demonstration was made, is admissible as part of the res gestce. Saunders v. Gilbert, 38: 404, 72 S. E. 610, 156 N. C. 463. 1369. One receiving upon a trial the bene- fit of a declaration of an absent witness through the admission of his opponent that he had heard of it takes it subject to the same conditions and limitations which would attach to it had the declarant been called as a witness. Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. As to accident or injury. Admissibility of admissions, see supra, IX. Evidence of person killed, see infra, 1380- 1385. Acts and declarations of agent or represen- tative, see infra, 1411-1425. Admissibility to impeach witness, see WIT- NESSES, 145, 170. 1370. Statements of bystanders at the time of the killing of a person by a street car are not admissible in evidence as part of the res gestce in an action to hold the street car company liable for the death. Louis- ville R. Co. v. Johnson, 20: 133, 115 S. W. 207, 131 Ky. 277. (Annotated) 1371. One rendered hysterical by an acci- dent, who had been assisting in bringing to consciousness her companion who was ren- Digest 1-52 L.R.A.(N.S.) dered unconscious by it, is not bound by a statement made by the latter, immediately on regaining consciousness, as to the cause of the accident, although she does not con- tradict it. McCord v. Seattle Electric Co. 13= 349, 89 Pac. 491, 46 Wash. 145. (Annotated) 1372. An exclamation by a bystander, not in the hearing of those in charge of an elec- tric car, as to an impending collision be- tween the car and a child on the track, is not admissible as res gestce in an action for injury to the child. Shadowski v. Pitts- burgh R. Co. 29: 302, 75 Atl. 730, 226 Pa. 537. 1373. The declaration of a passenger on a street car at a time when the conductor is attempting to drive a boy off the step, to the effent that he is off, before the conduct- or opens the door, is admissible in evidence as res gestce, in an action by the boy to hold the company liable for injury alleged to have been caused by the conductor kick- ing him off the car. Britton v. Washington Water Power Co. 33: 109, 110 Pac. 20, 59 Wash. 440. (Annotated) Of deceased person. Effect on admissibility of book entries of death of party making, see supra, 800- 802, 819, 844-846, 864. Evidence as to pedigree, see supra, 1273 1274. Declarations of testator, see infra, X. f. Dying declarations, see infra, X. 1. Evidence of threats by person murdered, see infra, 1479-1483. Waiver of cure of error as to, see APPEAL AND ERKOE, 832. Prejudicial error as to, see APPEAL AND EKKOR, 1155, 1226. 1374. Declarations of a person since de- ceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestce, are mere hearsay, and not ad- missible in evidence. Drawdy v. Hesters, 15: 190, 60 S. E. 451, 130 Ga. 161. 1375. The declarations of a woman and her children and their husbands and wives, if deceased, are admissible in behalf of one claiming to be her illegitimate child, born before her marriage, where the statutes permit him to inherit from or through her. Champion v. McCarthy, n: 1052, 81 N. E. 808, 228 111. 87. (Annotated) 1376. Statements of a deceased person are admissible upon the question of his citizen- ship. State ex rel. Phelps v. Jackson, 8: 1245, 65 Atl. 657, 79 Vt. 504. 1377. If equivocal conduct, such as co- habitation, is relied upon as a circumstance material to prove the fact of marriage, dec- larations of one of the parties, since de- ceased, made pending the period of cohab- itation, disaffirming the marriage, are ad- missible under the principle of res gestce, for the purpose of showing the character of the cohabitation. Drawdy v. Hesters, 15: 190, 60 S. E. 451, 130 Ga. 161. (Annotated) Insured. 1378. Assuming that it is proper in an ac- tion on an old line insurance policy, to ex- clude evidence of statements made by the 1174 EVIDENCE, X. d. insured subsequent to his application, tend- ing to impeach the veracity of his answers to questions therein, on the ground that the rights of the beneficiary cannot be preju- diced by declarations made by the insured subsequent to the contract, the rule should not be extended to the case of benefit or fraternal insurance, where the insured con- trols entirely the disposition of any bene- fits, and so is really the only party in in- terest. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043, 156 Ky. 270. (Annotated) 1379. In an action to recover upon a mutual benefit certificate, declarations and admissions of the assured, made ante litem motam, respecting the date of his birth, are admissible in evidence against his bene- ficiary, where the defense interposed is that a false date of birth was given in the ap- plication for membership. Taylor v. Grand Lodge A. O. U. W. xi: 92, 111 N. W. 919, 101 Minn. 72. (Annotated) Person negligently killed. 1380. The statement of one killed by an electric wire, made at the time he took hold of it, is admissible in evidence in an action to recover damages for his death, as part of the res gestce. Lewis v. Bowling Green Gaslight Co. 22: 1169, 117 S. W. 278, 135 Ky. 611. 1381. The statement by one killed on be- ing mistaken for a burglar at about 11 o'clock P. M., made while in his store at 8 o'clock P. M., as to where he intended to spend the night, is not admissible as res gestce in an action to hold his assailant liable for damages for his death. Foster v. Shepherd, 45: 167, 101 N. E. 411, 258 111. 164. 1382. Declarations of a man crushed by cars, after he has reached the station and assistance has been summoned, as to how the accident happened, is admissible as part of the res gestce, if his friends are not present, and he is so badly hurt that he dies within thirty-six hours after the acci- dent, so that th^ presumption would be violent that the statement was made for self-serving purposes. Starr v. ^Etna L. Ins. Co. 4: 636, 83 Pac. 113, 41 Wash. 199. 1383. Statements to witnesses by one struck by a railroad train and rendered un- conscious for an unascertained period of time, made after he recovered consciousness, as to what he knew of the accident, are not admissible as part ot the res gestce in an action against the railroad company to re- cover damages for his resulting death, since they cannot be regarded as part of the transaction nor the immediate outcome of the act complained of. Bionto v. Illinois C. R. Co. 27: 1030, 51 So. 98, 125 La. 147. 1384. The statements of a boy eight years of age who had suffered injuries from which he subsequently died, within a few minutes of the injury, to a relative to whom he had made his way after the injury had been in- flicted, form part of the res gestcr, and are admissible in evidence upon the trial of one accused of inflicting the injury. State Digest 1-52 L.R.A.(N.S.) v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. 1385. The conversation of a boy eight years of age who had suffered injuries from which he subsequently died, with the county attor- ney a short tjme prior to his death, on the subject of his injuries and as to who inflict- ed them, during which he pointed out a cer- tain person as the guilty party, may proper- ly be testified to by the county attorney upon the trial of the one thus pointed out, since the whole object, purpose, and effect thereof is to identify the person who com- mitted the crime. State v. Findling, 49: 449, 144 N. W. 142, 123 Minn. 413. Person owning or interested in property. 1386. Declarations made by a person since deceased, as to the value of certain property and the disposition she made of it, are not admissible within the rule allowing proof of declarations of deceased persons accom- panying an act of possession, to show that possession was held under a claim of title. Kuykendall v. Fisher, 8: 94, 56 S. E. 48, 61 W. Va. 87. 1387. In an action by a remainderman to set aside a deed signed by himself and the life tenant, on the ground that it was pro- cured under the representation that it was a will, declarations by the life tenant, since deceased, are admissible, to the effect that the estate had been conveyed, as tending to show that the alleged representations were not made. Smith v. Moore, 7: 684, 55 S. E. 275, 142 N. C. 277. 1388. Evidence of declarations of one in possession of a stock of goods, claiming ownership in himself, made in the absence of rival claimants, is not admissible after his decease against them to prove owner- ship, either as res gestce or verbal acts ex- plaining and characterizing the nature of the possession. Freda v. Tischbein, 49: 700, 140 N. W. 502, 174 Mich. 391. ( Annotated) 1389. Evidence of declarations by one in possession of real estate, that he has con- veyed the property to another by deed based upon a meritorious consideration, is admissible, in a suit after his death, to set aside a purported deed on the ground of fraud in that the signature was procured un- der the representation that it was a will. Smith v. Moore, 7: 684, 55 S. E. 275, 142 N. C. 277. 1390. Declarations of a person since de- ceased that he had not started, and did not intend to start, actions to recover property which he had conveyed, are not against his pecuniary or proprietary interert, so as to make them admissible in an action by the attorney to recover from the estate com- pensation for services rendered in such suits. Smith v. Hanson, 18: 520, 96 Pac. 1087, 34 Utah, 171. 1391. Statements made by a mother, since deceased, after acknowledging and recording a deed of real estate to her infant child, as to when she understood the conveyance was to take effect, and declaring that it was re- corded against her wishes, are hearsay, and EVIDENCE, X. d. 1175 cannot be proved in derogation of the title of the child or her grantee. Pentico v. Hays, 9: 224, 88 Pac. 738, 75 Kan. 76. In action for alienating affections. 1392. One suing her husband's parents for causing his separation from her is not entitled to testify to declarations by him tending to show their hostile attitude and disposition, which were made in their ab- sence. Cochran v. Cochran, 24: 160, 89 N. E. 470, 196 N. Y. 86. 1393. A woman sued for alienating the affections of the husband of another woman from her may testify to conversations with him in plaintiffs absence, in which she tried to induce him to return to his wife, where the defense is that he sought defendant for her money. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. 1394. In an action against a woman for alienating ^the aifections of the husband of another woman from her, evidence is admis- sible of remarks by him that defendant, with her money, would be a good catch, as well as conversations and letters showing demands on her by him for money. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. 1395. In an action to hold a man liable in damages for causing his son to leave his wife, evidence is admissible of the reason given by the son for leaving, on the day be- fore his departure. Ickes v. Ickes, 44: 1118, 85 Atl. 885, 237 Pa. 582. 1396. In an action to hold a man liable for causing his son to separate from his wife, in which the defense is that the separation was caused by the fact that the wife con- fessed that a child she was carrying was not the son's, a witness called to testify as to the son's declaration concerning the cause of his leaving cannot state that, when the son informed him that he had had trouble with his wife and was going to leave her, he himself stated that he knew all about it, having overheard the confession. Ickes v. Ickes, 44: 1118, 85 Atl. 885, 237 Pa. 582. Criminal cases. Acts and declarations of co-conspirators, see infra, X. g. Admissibility of dying declarations, see in- fra, X. 1. Admissibility of testator's declarations in prosecution for forgery, see infra, 1433, 1440. Prejudicial error as to, see APPEAL AND EEROK, 1123. See also supra, 1384, 1385. 1397. Contradictory statements made out of court by a witness in a homicide case cannot be received unless for purposes of impeachment, and not as substantive evi- dence. Watkins v. Com. 38: 1052, 142 S. W. 1035, 146 Ky. 449. 1398. Upon trial of a man for incest who left home after the charge was made, evi- dence is not admissible of a conversation between his wife and her brother, in his ab- sence, in which, because of an assumed sepa- ration, she was advised to return to her father. Gross v. State, 33: 477, 135 S. W. 373, 61 Tex. Crim. Rep. 176. Digest 1-52 L.R.A.(N.S.) 1399. In a prosecution for the illegal sale of intoxicating liquor, the testimony of an officer that he had watched certain persons who had previously testiried to having pur- chased intoxicating liquor from the accused on the date of the alleged sale, shortly after they had come from the place where the accused was, and had questioned them, and was told by them that they had whisky, and upon arresting them, had found whisky in their possession, is admissible. Jones v. State, 48: 204, 133 Pac. 249, 9 Okla. Crim. Rep. 646. 1400. Evidence of a conversation between one who was attempting to secure aid for one upon whom an abortion had been com- mitted and a physician who refused to at- tend the case, while such person was tele- phoning from his office to secure the aid of the one subsequently accused of the crime, is not admissible against the latter, since it is mere hearsay. State v. Gilmore, 35: 1084 132 N. W. 53, 151 Iowa, 618. 1401. Upon trial of one charged with as- sisting in the importation of a contract laborer into the country, evidence is not admissible against him, of a statement made in the foreign country in an unused manifest blank by one not shown to be the agent of accused, to the effect that accused paid the passage money of the laborer. Regan v. United States, 31: 1073, 183 Fed. 293, 105 C. C. A. 505. 1402. A person held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence by another; and though such state- ments were not contradicted by such per- son, they are not admissible in evidence against him. Ellis v. State, 43: 811, 128 Pac. 1095, 8 Okla. Crim. Rep. 522. 1403. Upon trial of one for larceny decla- rations of his wife, made in his presence, and uncontradicted by him, to the effect that stolen property found in the house be- longed to him, are admissible against him. State v. Record, 25: 561, 65 S. E. 1010, 151 N. C. 695. 1404. An extra-judicial confession not un- der oath, by a stranger who cannot be pro- duced as a witness, is not admissible at the trial of an indictment for murder. Brown v. State, 37: 345, 55 So. 961, 99 Miss. 719. Acts and declarations of victim of crime. See also infra, 1655. 1405. Evidence of statements of one who was knocked senseless by one attempting to rob him, immediately upon regaining consciousness, as to the identity of his as- sailant, is not admissible as res gestce in a prosecution of the person so named for the crime. Rogers v. State, 41:857, 115 S. W. 156, 88 Ark. 451. 1406. Statements by one injured in a quar- rel, made some hours after the injuries were received and purporting to detail what occurred, are not admissible as res gestce in a prosecution of the one who inflicted the injuries. Salas v. People, 37: 252, 118 Pac. 992, 51 Colo. 461. 1407. The state cannot prove, over the ob- 1176 EVIDENCE, X. e. jection of one accused of having ravished the witness's wife, the details of a com- plaint made by her to him some twenty hours after the alleged criminal act. Hen- derson v. State, 26: 1149, 123 N. W. 459, 85 Neb. 444. e. Acts and declarations of agent, rep- resentative, or tenant. 'See also same heading in Digest L.R.A. 1-10.) Admissibility of records and reports of cor- porate agents, see supra, IV. 1. Admissibility of letters of, see supra, 811- 815. Admissions by, see supra, 1249-1257. Admissibility to contradict witness, see WITNESSES, 145. See also WITNESSES, 150. 1408. Upon the question of fraud in in- ducing a contract, evidence is admissible of declarations of the agent who secured it at the time it was made. American Pure Food Co. v. Elliott, 31:910, 66 S. E. 451, 151 N. C. 393. 1409. Statements by an alleged agent, not brought to the knowledge of the principal, are not admissible to show the extent of the agent's authority. Mason v. Wolkowich, 10 : 765, 150 Fed. 699, 80 C. C. A. 435. 1410. The admission of declarations of an alleged agent tending to establish the agen- cy, in an action against the principal, is not error where a prima facie case of con- nection between the alleged principal and agent has been shown. Mullen v. J. J. Quinlan & Co. 24: 511, 87 N. E. 1078, 195 N. Y. 109. As to accident or injury. Admissibility of admissions, see supra, 1250-1252. 1411. A statement by an employee twenty minutes after he had caused an accident by starting machinery, in response to a ques- tion as to why he did so, is tot admissible in evidence, in an action to hold the em- ployer liable for the injury, as part of the res gestce. Bernard v. Grand Rapids Paper Box Co. 42: 930, 136 N. W. 374, 170 Mich. 238. (Annotated) 1412. Statements made by a chauffeur at the time of an accident which occurred while he was using the machine in violation of his express orders are not binding upon the owner. Riley v. Roach, 37: 834, 134 N. W. 14, 168 Mich. 294. 1413. The conduct of a chauffeur after col- lision of his machine with a pedestrian is not relevant in an action to hold the owner of the vehicle liable for the injury, except in so far as it may be part of the res gestce, and tend to throw light on the act which is charged to be negligent. Minor v. Stevens, 42: 1178, 118 Pac. 313, 65 Wash. 423. 1414. Evidence of statements by an agent with authority to set out a fire which re- sulted in injury to a child, made at the time of the fire and as part of the res gestce, is admissible against his principals in an action brought to hold them liable Digest 1-52 L.R.A.(N.S-) for the injury. Arkansas Valley Trust Co. v. Mcllroy, 31: 1020, 133 S. W. 816, 97 Ark. 160. 1415. In an action to hold the owner of a steer liable for injuries done by it to a traveler on the highway, evidence is not ad- missible that the day after the injury the drover in charge of the animal stated that the animal was vicious and attempted to in- jure others, since the agent's declarations at such time cannot bind the principal. Har- ris v. Carstens Packing Co. 6: 1164, 86 Pac. 1125, 43 Wash. 647. 1416. In an action by a tenant for injuries caused by negligent blasting for which his landlord is alleged to be responsible, evi- dence is not admissible that the landlord's superintendent, after the injury, made state- ments as to making repairs or furnishing another house, or that the landlord was do- ing the work. Bessemer Coal, Iijpn, & Land Co. v. Doak, 12: 389, 44 So. 627, 152 Ala. 166. 1417. Declarations of village officers at the coroner's inquest upon one killed on an un- safe highway, as to their knowledge of such condition, are not admissible in an action to hold the village liable for the injury. Fox v. Manchester, 2: 474, 75 N. E. 1116, 183 N. Y. 141. To employee. 1418. The statement of a street-car super- intendent, made some time after a collision between two cars, and after the cars had been removed to another place, that he should have known better than to place the motorman responsible for the collision, in charge of the car, is not admissible in an action against the company to recover for injuries to an employee on the other car. Ft. Wayne & W. V. 'Traction Co. v. Cros- bie, 13: 1214, 81 N. E. 474, 169 ind. 281. 1419. Evidence, in an action for injuries to plaintiff while engaged in unloading steel rails from a car, cause, by the dropping of a lever or boom rail, together with the heavy steel rail which it was carrying from *he car at the time, that the operator of the derrick used, upon witnessing the accident, immediately exclaimed that "the damn thing was about wore out anyhow, and they would keep running it until they killed somebody," is not admissible as a part of the res gestce; the declaration relating, not to the accident, but to a condition of the machinery previously observed, and showing retrospection and mental deliberation. Illi- nois C. R. Co. v. Lowery, 49: 1149, 63 So. 952, 184 Ala. 443. 1420. A statement by the conductor of a train which broke in two and injured an employee thereon, as to the cause of the break, made a half hour after he had as- certained it, in response to a question by the injured person, is not admissible in evi- dence in an action to hold the railroad company liable for the injury, under a statute making admissible declarations which form part of the transaction which is itself the fact in dispute or evidence of such fact. Callahan v. Chicago, B. & Q. R. Co. 47: 587, 133 Pac. 687, 47 Mont. 401. EVIDENCE, X. e. 1177 . 1421. Statements to an employee injured on a train, by the conductor and road- master, whose duties are to ascertain the cause of the accident and the nature and extent oi the injuries caused by it, and re- port the same to their superior officers, made while attempting to ascertain the ex- tent of his injuries, as to the cause of the accident, are admissible in evidence against the railroad company in an action to hold i* liable for the injury, as admissions in the line of their duty. Callahan v. Chicago, B. & Q. R. Co. 47: 587, 133 Pac. 687, 47 Mont. 401. 1422. Statements by the conductor in charge of a train the engine of which was derailed to the injury of the engineer and head brakeman, at a time when he had the responsibility of caring for the injured men, to the first stranger to reach the scene of the disaster, as to thj cause of the accident, may, in the discretion of the trial judge, be admitted as res gestce, in an action against the railroad company to recover damages for the death of the brakeman, although they were not made until two hours after the accident, and until after he had gone to a farmhouse some distance away to sum- mon assistance and returned to the train. Walters v. Spokane International R. Co. 42: 917, 108 Pac. 593, 58 Wash. 293. (Annotated) On railroad or street car track. 1423. Evidence of a statement by an engi- neer in charge of a locomotive which struck and injured a person on the track, at the first station where a stop was made after the accident, that he had knocked a man from the track, is inadmissible as res gestas. Frye v. St. Louis, I. M. & S. R. Co. 8: 1069, 98 S. W. 566, 200 Mo. 377. 1424. The statement of a motorman in charge of a car which killed a person on the track, immediately after the accident when he had reached the body of deceased, that he saw the man and tried to stop, but could not, is admissible in an action against the street car company to recover damages for the death as part of the res gesice, when one controversy in the case is whether de- ceased was struck by the front of the car, or fell, or was pushed against the side of it. Louisville R. Co. v. Johnson, 20: 133, 115 S. W. 207, 131 Ky. 277. 1425. The statement by the conductor of a car which kills a man on the track, made when he and the motorman had reached de- ceased, admonishing the motorman to make no statements, is not admissible as res gestce in an action against the street car company to recover damages for the death, since it does not tend to throw light upon any phase of the controversy. Louisville R. Co. v. Johnson, 20: 133, 115 S. W. 207, 131 Ky. 277. Corporate officers and agents general- ly. As to accident or injury, see supra, 1418- 1425. 1426. The statements of the receiving clerk and cashier in the main office of a telegraph company respecting matters Digest 1-52 L.R.A.(N.S.) within the apparent scope of their au- thority are not hearsay. Western U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, uU Fla. 474. 1427. The declarations and conduct of the agent of a corporation who has been in- trusted with the rental and management of its property are admissible in evidence against it in an action to recover damages for his causing the wrongful arrest of a tenant to get rid of him. White v. Apslfy Rubber Co. 8: 484, 80 N. E. 500, 194 Mass. 97. Carrier's agent. 1428. Evidence of insulting remarks by a brakeman about a passenger in his hearing is admissible against the railroad company. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. 1429. Evidence of statements of a brake- man to a stranger four or five minutes after he has removed a person from the car, in explanation of his act, is not admissible in evidence against the railroad company as part of the res gestas. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. 1430. Declarations of a brakeman who has removed a woman from a car to which she is returning under charge of the conductor, derogatory to her character, are not admis- sible against the railroad company, since the brakeman's authority has ceased, and the declarations are not made in the course of the master's business. Southern R. Co. v. Thurman, 2: 1108, 90 S. W. 240, 121 Ky. 716. 1431. Declarations of the train agent when -confiscating a passenger's ticket and remov- ing him from the train are admissible in evidence in an action to hold the railroad company liable for the injuries thereby caused. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 1432. In an action against a carrier for the value of a package lost by it in trans- portation, evidence is admissible of a state- ment by its agent who called upon the owner's attorney to settle the claim, that the package had been embezzled by the car- rier's servant. Adams Express Co. v. Berry & Whitmore Co. 31 : 309, 35 App. D. C. 208. Insurance agent. Waiver of error as to, see APPEAL AND ER- ROB, 838. Physician of insured. 1433. A letter written by the physician of one insured against accident describing an illness, at the request of insured, to satisfy a demand of the insurer, is not binding on the insured so as to be admissible in evi- dence against him in an action on the pol- icy, if he did not know its contents. Al- dridge v. ./Etna L. Ins. Co. 38: 343, 97 N. E. 399, 204 N. Y. 83. (Annotated) Tenant. 1434. In an action against a property own- er for the price of lumber delivered on his premises, evidence is not admissible as to statements of the tenant at time of delivery in his absence. Walter v. Sperry, 44:28, 85 Atl. 739, 86 Conn. 474. 1178 EVIDENCE, X. f. /. Acts or declarations of former party in interest; testator or former owner. (See also same heading in Digest L.R.A. 1-10.) Of testator. See also supra, 1349. 1435. Conduct and declarations of a tes- tator manifesting ignorance of the existence of his will are not competent on the ques- tion of its validity or existence. La Rue v. Lee, 14: 968, 60 S. E. 388, 63 W. Va. 388. 1436. Ante-testamentary declarations of a testator are not admissible as substantive evidence of undue influence in the making of the will. Hobson v. Moorman, 3: 749, 90 S. W. 152, 115 Tenn. 73. (Annotated) 1437. Upon the question of the revival of a will by destruction of an instrument pur- porting to revoke it, declarations of testator at the time of destroying the latter instru- ment are admissible in evidence. Blackett v. Ziegler, 37: 291, 133 N. W. 901, 153 Iowa, 344. 1438. Upon trial of a prosecution for con- spiracy to forge a will so as to establish title in testator's widow to certain proper- ties including an automobile, evidence is admissible of a declaration made by testa- tor before his death that he had given the machine to her; and it is immaterial that the declaration was made before the instru- ment purported to have been executed, if the reference to the gift which it contained is a mere recital of a past transaction. People v. Storrs, 45: 860, 100 N. E. 730, 207 N. Y. 147. As to intent generally. 1439. In the absence of ambiguity in a will parol evidence of declarations of testator as to his intention is not admissible. Scott v. Scott, 23 : 716, 114 N. W. 881, 137 Iowa, 239. 1440. In defense of a prosecution for for- gery of a will, evidence is admissible of declarations of the testator indicating an intent to execute a will of the tenor of that alleged to have been forged, if made at a period not so remote from the date of the will as to render them immaterial. State v. Ready (N. J. Err. & App.) 28: 240, 75 Atl. 564, 78 N. J. L. 599. (Annotated) 1441. Statements by testator, either before or after the execution of his will, with re- spect to his intention to disinherit a child born after the execution of the will, are not admissible for the purpose of ascer- taining his intention in that respect, under a statute which provides that, in case a child for whom no provision is made is born to the testator after the execution of the will, the devises and legacies shall abate to raise a portion for such child equal to that which he would have received had the testator died intestate, unless it appears "by such will" that it was the intention of the testator to disinherit such child ; but it is competent, for that purpose, to con- sider the language of the will in the light of the ertrinsic circumstances surrounding the testator at the time of its execution. Digest 1-52 L.R.A.(N.S.) Peet v. Peet, 13: 780, 82 N. E. 376, 229 111. 341. (Annotated) As to intent to destroy will. 1442. Subsequent declarations of a testa- tor are admissible in evidence in a pro ceeding to probate a will which had been destroyed by him, upon the question of the intention with which the will was destroyed. Managle v. Parker, 24: 180, 71 At]. 637, 75 N. H. 139. (Annotated) 1443. Evidence of declarations of a testa- tor as to his intent in tearing a will is not inadmissible because it will tend to establish the will, which the heirs had Ueen led to believe was revoked, and therefore perpetrate a fraud on them. Managle v. Parker, 24: 180, 71 Atl. 637, 75 N. H. 139. To show lack of testamentary ca- pacity. 1444. Upon a will contest, evidence of declarations tending to show want of testa- mentary capacity may be admitted in evi- dence, although made after the execution of the will. O'Dell v. Goff, 10: 989, 112 N. W. 736, 149 Mich. 152. Of former owner. Cross-examination of one testifying to con- versation between parties to deed, see WITNESSES, 77. Reversible error in excluding, see APPEAL AND EEKOB, 1226. See also supra, 967, 1386-1391. 1445. In an action by the finder of money against one to whom he delivered it for safe-keeping, and who refused to return it because he claimed to have delivered it to the true owner, evidence is admissible of a denial by the alleged" owner that he had lost the money, although made in the de- fendant's absence. Roberson v. Ellis, 35: 979, 114 Pac. 100, 58 Or. 219. Of mortgagor against mortgagee. 3446. The mere relation of mortgagor and mortgagee does not create such a privity of estate as to render the declarations of one with regard to the property admissible in evidence against the other. Mower v. Mc- Carthy, 7: 418, 64 Atl. 578, 79 Vt. 142. 1447. Statements of a mortgagor tending to show intent on his part to defraud his creditors, with which the mortgagee is in no wise connected, are not admissible in an ac- tion to recover property from the mortgagee after he has taken possession of it under his mortgage. Mower v. McCarthy, 7: 418, G4 Atl. 578, 79 Vt. 142. 1448. Evidence of a statement by a mort- gagor that the mortgagee had loaned him money and had a right to take possession of the property at any time is admissible in an action on behalf of creditors to recov- er possession of the property from the mort- gagee after he has taken possession of it under his mortgage. Mower v. McCarthy, 7: 418, 64 Atl. 578, 79 Vt. 142. Of grantor or donor against gran- tee or donee. 1449. Declarations, against title, of an owner in possession, i are admissible in evi- dence against those claiming under him, although he is alive at the time they are EVIDENCE, X. g. 1179 offered in evidence. Abbott v. Walker, 26: 814, 90 N. E. 405, 204 Mass. 71. ( Annotated ) 1450. A defendant in an action by the ad- ministrator of a deceased grantor to com- pel payment of the consideration named in the deed cannot, under the statute, tes- tify as to conversations with the grantor at the time of the transaction, unless called and examined by plaintiff in regard there- to. Koogle v. Cline, 24: 413, 73 Atl. 672, 110 Md. 587. 1451. The attorney who prepared a deed from a father to his son may testify, in a suit to compel the son to pay the consid- eration named in the deed, as to state- ments made by the father in the son's pres- ence at the time the deed was prepared, to the effect that the deed was intended as a gift. Koogle v. Cline, 24: 413, 73 Atl. 672, 110 Md. 587. ] 452 A son who, having entered into pos- session of his father's land by the latter's permission, fails to show that it was given to him as an advancement, or that he has se- cured title by adverse possession, cannot complain of the admission in evidence, in an action for partition of the property, of declarations by his father as to his title or intentions as to the "property. McCutchen v. McCutchen, 12: 1140, 57 S. E. 678, 77 S. C. 129. 1453. In an action for damages for tres- pass upon real estate, declarations of de- fendant's predecessor in title, as to the boundary lines made while he was owner of the property, are admissible in evidence against defendant. Beaufort Land & Invest. Co. v. New River Lumber Co. 30: 243, 68 S. E. 637, 86 S. C. 358. 1454. Evidence of declarations of an al- leged donor is admissible as corroborative of evidence of the gift. Garrison v. Union Trust Co. 32: 219, 129 N. W. 691, 164 Mich. 345. Of grantor in favor of grantee. 1455. The declarations of a father and mother made to the scrivener of a deed whereby a farm was conveyed by them to their son for an express consideration, which was nominal, that the son was dissatisfied with having worked on the farm for a long time without pay and that, unless he I received something to show for it, he would ' leave, so to .recompense him they were giv- ing him the farm, are inadmissible in an action between such son and a creditor wherein the good faith of the deed is in- volved, where the statements (the reason for the making of which does not appear) were not made in the presence of either the son or the creditor in suit, nor under circumstances which were a substitute for the usual test of an oath and cross-exam- ination, and were not a part of the prin- cipal act in suit, which is the good faith of the transaction and not the act of deed- ing the land, but were made under circum- stances which admitted of premeditation and voluntary wariness seeking to manu- Digest 1-52 L.R.A.(N.S.) facture evidence. Johnston v. Spoonheim, 41: i, 123 N. W. 830, 19 N. D. 191. (Annotated) By former owner of note. 1456. In an action upon a promissory note given for a patent right, although the note was not so indorsed, where it appears that the indorsee and his predecessors in title had knowledge of the consideration, the maker may prove by a third party declara- tions of the payee, made while in posses- sion of the note, and tending to impeach its validity. Benton v. Sikyta, 24: 1057, 122 N. W. 61, 84 Neb. 808. g. Acts or declarations of partner, as- sociate, co-conspirator or codefend- ant. (See also same heading in Digest L.R.A. 1-10.) Codefendants. 1457. Evidence of statements by one of several codefendants sought to be held lia- ble for the negligent burning of a child through fire set out by him, made after the occurrence and in the absence of the other defendants, to the effect that he told the child to watch the fire is not admissi- ble against them. Arkansas Valley Trust Co. v. Mcllroy, 31: 1020, 133 S. W. 816, 97 Ark. 160. Colegatees. 1458. The declarations of one of several beneficiaries under a will whose interests are not joint, made long enough after the execution of the will so as not to be part of the res gestce, are not admissible in evi- dence to show testator's incapacity to make the will, or that he was unduly influenced, in the proceeding to which all the benefic- iaries are parties. James v. Fairall, 38: 731, 134 N. W. 608, 154 Iowa, 253. (Annotated) Partners. Admissions of partner, see supra, 1258. Co-conspirators. Prima facie proof of conspiracy as condition of right to admission of declarations, see TRIAL, 38. Mode of preserving error in admitting, see APPEAL AND EKROB, 368. Prejudicial error as to, see APPEAL AND ER- ROR, 1124. Weight of testimony of accomplice, see EVI- DENCE, 2364-2372. 1459. A conspiracy may be proved by showing the declarations, acts, 'and conduct of the conspirators. State v. Ryan, i: 862, 82 Pac. 703, 47 Or. 338. 1460. The existence of evidence in a will contest tending to show the existence of a conspiracy will render admissible admissions of one of the conspirators along the line of the conspiracy, touching its subject-matter, and in furtherance thereof. Meier v. Buch- ter, 6: 202, 94 S. W. 883, 197 Mo. 68. 1461 Evidence of acts and declarations of persons alleged to have been engaged in an unlawful combination to prevent competi- tion is admissible not only to charge the 3180 EVIDENCE, X. h. several persons engaged therein with the consequence of such acts, but also to estab- lish the existence and extent of the combi- nation. Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 1462. The acts of any member of an as- sociation of retail dealers, or of any person acting in concert with him, in endeavoring to prevent or hinder sales by wholesale dealers to a particular retail dealer not eligible to membership in the association, are in furtherance of the common design, where the express object of the association is to prevent competition by wholesalers in selling to consumers directly, or to retail dealers not eligible to membership in the as- sociation; and such acts may be shown in evidence against all, whether directly par- ticipated in or expressly authorized by the association as a whole, or not. Cleland v. Anderson, 5: 136, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 66 Neb. 252, 105 N. W. 1092, 75 Neb. 273. 1463. Upon trial of one for homicide through an abortion which was alleged to have been the result of a conspiracy be- tween accused and the victim, declarations of the latter in the absence of accused, which purport to be a recital of what ac- cused did and said during the commission of the crime, are not admissible in evidence against accused. State v. Gilmore, 35: 1084, 132 N. W. 53, 151 Iowa, 618. (Annotated) 1464. An accomplice of one on trial for murder may testify as to their trailing the victim before any suggestion was made to kill him, and also as to what the parties did and agreed to do after the money taken from the victim was divided. Grant v. State, 42: 428, 148 S. W. 760, Tex. Crim. Rep. . 1465. In an action against an agent of an insurance company to recover secret com- missions made by him in negotiating a re- insurance of its policies, evidence of decla- rations of the other party to the negotiation is admissible to prove the character of the transaction, although made in the absence of the agent. Johns v. Arizona F. Ins. Co. 49: 101, 136 Pac. 120, 76 Wash. 349. Before conspiracy is entered into. 1466. Declarations of an alleged co-con- spirator, made before the existence of the alleged conspiracy, are not admissible in evidence against the other conspirators. State v. Gilmore, 35: 1084, 132 N. W. 53, 151 Iowa, 6 % 18. 1467. Upon trial of one accused of getting money from another by means of a con- spiracy to steal, evidence is admissible of declarations by one of the conspirators which induced the victim to go to the de- sired spot, where the others carried out the scheme, although no conspiracy was shown to have existed at the time they were made. State v. Ryan, i: 862, 82 Pac. 703, 47 Or. 338. 1468. Acts or declarations of an alleged conspirator are not admissible against a co- conspirator, in the absence of evidence from which the latter's assent, jointly with the Digest 1-52 L.R.A.(N.S.) other conspirators, to the existence and ex- ecution of the conspiracy within the period of statutory limitation, may be inferred; but, if such joint assent is shown, then any subsequent act or declaration of any one of the conspirators in reference to the com- mon object may be given in evidence against one of the others who has consent- ed to the enterprise. Ware v. United States, 12: 1053, 154 Fed. 577, 84 C. C. A. 503. Subsequent to transactions. 1469. Statements of an accomplice who has confessed and has testified to the de- tails of the crime, made some days after its commission to witnesses while acting out such details under the supervision of the police at the place of commission, are inadmissible in evidence as corroborative of the confession. O'Hearn v. State, 25: 542, 113 N. W. 130, 79 Neb. 513. 1470. Upon the question of conspiracy, to establish which some evidence lias been of- fered, declarations of one of the parties made subsequent to the transaction are ad- missible against him, but not against the other alleged conspirators. State v. Davis, 34: 295, 70 S. E. 811, 88 S. C. 229. 1471. In case of a conspiracy between a widow and her attorney to secure property of her deceased 'husband by means of a forged will, and the securing of the neces- sary evidence to sustain it in a court pro- ceeding in which he is to represent her, evi- dence of her declarations made after the will is prepared while she is endeavoring to procure testimony to sustain it is ad- missible against him. People v. Storrs, 45: 860, 100 N. E. 730, 207 N. Y. 147. h. Complaints of injuries and suffer- ing. (See also same heading in Digest L.R.A. 1-10.) See also supra, 1407. 1472. Witnesses for a servant may testify in an action to hold his employer respon- sible for personal injuries, to expressions of existing pain at a time long subsequent to the date of injury. Duffey v. Consoli- dated Block Coal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. 1473. Statements of fact fairly indicative of a relevant bodily condition of the declar- ant at the time of the declaration are ad- missible as evidence of the existence of such condition, although made a consider- able time after the injury was received. Western Travelers' Acci. Asso. v. Munson, i: 1068, 103 N. W. 688, 73 Neb. 858. 1474. A nonexpert may testify as to ex- pressions of present pain and suffering by one injured by another's negligence, al- though they occur some time after the in- jury. Mississippi C. R. Co. v. Turnage, 24: 253, 49 So. 840, 95 Miss. 854. (Annotated) 1475. Evidence is not admissible in an ac- tion to hold one liable in damages for per- EVIDENCE, X. i k. 1181 sonal injuries due to his negligence, to the | effect that two months after the accident ; the injured person complained to his phy- sician that he was suffering from dizziness and sleeplessness. John J. Radel Co. v. Borches, 39: 227, 145 S. W. 155,. 147 Ky. 506. 1476. Evidence of exclamations of a person made when taking a dose of supposed medi- cine, that it burned her stomach, which exclamations were accompanied by a wry face, sudden sickness, and vomiting, is ad- missible in evidence on the trial of one charged with poisoning such person. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. i. Threats. (See also same heading in Digest L.R.A. 1-10.) See also supra, 1357-1359 ; infra, 1893. 1477. Upon a prosecution for assault with indent to kill evidence is admissible that some days before the assault, threats had been made to the victim, if there is evi- dence tending to show that the persons making the threats were in the party which committed the assault. People v. Connors, 39: 143, 97 N. E. 643, 253 111. 266. By accused. 1478. Upon trial of one for assault, with fntent to kill his wife, evidence is admissi- ble that, on the evening before the assault was committed, he went to the house of her parents, where she was staying, with the expectation of finding her, and assaulted them with a deadly weapon, and threatened to kill the wife and parents. People v. Owen, 21 : 520, 118 N. W. 590, 154 Mich. 571. By person killed. 1479. Evidence of threats by deceased against one accused of killing him, prior to the conflict, is admissible upon the ques- tion, Which was the aggressor? State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1480. Where one charged with homicide of- fered evidence tending to show self-defense, evidence is admissible to show recent threats by deceased to kill accused as tend- ing to show who was the aggressor, al- though they were not communicated to ac- cused. Howard v. State, 34: 990, 55 So. 255, 172 Ala. 402. 1481. Evidence of uncommunicated threats by deceased against accused are admissible upon trial for homicide committed by a po- lice officer in attempting to make an arrest, where the plea is self-defense, and the evi- dence leaves it doubtful which was the ag- gressor, or where it will throw light on the significance of the acts of the deceased, and what, from them, would be reasonable ap- prehension on the part of the accused. Sin- clair v. State, 2: 553, 39 So. 522, 87 Miss. 330. 1482. One accused of murder may show that deceased had stated that, if accused kept on going with the girl with whom he Digest 1-52 L.R.A.(N.S.) was at the time of the homicide, "he would get killed or kill somebody," in connection with evidence of direct threats at the time of the homicide. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. 1483. In a homicide case, testimony ot antecedent threats or acts of violence by the deceased against the defendants is not admissible, when it appears that at the time of the homicide there was no threat or act by the deceased, which, even in the light of any previous threats, or acts, could justify the homicidal act. State v. Tolla, 3: 523 (N. J. Err. & App.) 62 Atl. 675, 72 N. J. L. 515. (Annotated) j. Telephone conversations. (See also same heading in Digest L.R.A. 1-10.) See also infra, 1811. 1484. One in the office of one of the par- ties to a telephone conversation at the time it is being conducted, and claiming to have had it repeated to him at its close, will not be permitted to repeat it on the witness stand in a suit by him against the absent party to the conversation, since the evidence would be clearly hearsay. Will- ner v. Silverman, 24: 895, 71 Atl. 962, 109 Md. 341. Identification of parties to. 1485. Evidence of a telephone conversa- tion is admissible against a corporation, al- though the voice of the person talking was not recognized, where witness called for the corporation, and, in response to inquiry, was informed that he was talking with it. and, upon ordering a product manufactured by it, received what he ordered. Knicker- bocker Ice Co. v. Gardiner Dairy Co. 16: 746, 69 Atl. 405, 107 Md. 556. 1486. Proof that the plaintiff's agent, in an attempt to deliver a telegraph'-: message for transmission, used the telephone, calling upon the telephone company for a connec- tion with the office of the telegraph com- pany, and, upon being assured by the per- son answering that it was the telegraph office, repeated to him the message intended to be sent, does not show that the message was in fact delivered for transmission, so as to impose liability upon the telegraph company for failure to deliver it, where the agent of the plaintiff did not recognize the voice of the person who answered him as that of an agent of the telegraph company or of anyone known to him, and it does not appear that such person was in fact an agent of the telegraph company. Planters' Cotton Oil Co. v. Western U. Teleg. Co. 6: 1180, 55 S. E. 495, 126 Ga. 621. (Annotated) fc. Conversation through interpreter. (See same heading in Digest L.R.A. 1-70.) 1182 EVIDENCE, X. 1. I. Dying declarations, or those made in travail. (See also same heading in Digest L.R.A.. 1-10.) Declarations of deceased persons generally, see supra, 1374-1391. Prejudicial error as to, see APPEAL AND ERROR, 1121. Instruction as to weight of dying declara- tions, see APPEAL AND ERROR, 1389. Permitting jury to take dying declarations to juryroom, see APPEAL AND ERROK, 1477; TRIAL, 15. Departure from rule as to admissibility in civil cases, see COURTS, 303. Admissibility of, as against general objec- tion, see TRIAL, 83. Question for jury as to whether dying dec- laration was made, under belief of im- pending death, see TRIAL, 295. Instructions as to weight to be given dying declarations, see TRIAL, 949. See also infra, 1657. 1487. A statement by deceased that he nev- er had any trouble with accused before is not admissible as a dying declaration in a prosecution for homicide. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1488. An expression in a statement offered in evidence as a dying declaration, "you killed me without cause," is not an expres- sion of opinion rather than of fact, so as to render it inadmissible, if it appears that all the facts were fully known to declarant. House v. State, 21: 840, 48 So. 3, 94 Miss. 107. (Annotated) 1489. A statement by one, after being shot by another, that he had no gun and never carried one, is not admissible in evidence as a dying declaration in a prosecution for homicide. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1490. Admissions made by an injured per- son to accused after he had made a state- ment tending to charge accused with mur- der, which had been introduced in evidence by the state as a dying declaration, which admissions tend to show justification, are admissible as dying declarations, and are therefore original substantive evidence, and not merely as evidence tending to impeach the declaration admitted. Tittle v. State, 52: 910, 66 So. 10. Ala. . 1491. A mere affirmative reply by one un- der sense of impending death, to a question whether or not statements madj by him to a certain person named on a specified day are true, is not sufficient to identify the statements so as to render them admissible as dying declarations, although on the day named the person named had secured a sworn statement from the one making the declaration. State v. Peacock, 27: 702, 107 Pac. 1022, 58 Wash. 41. (Annotated) Against whom admissible. 1492. Dying declarations are limited to criminal prosecutions when the subject-mat- ter of the investigation is the declarant's Digest 1-52 L.R.A.(N.S-) death; and where in a melee two persons are shot one killed and the other mortally wounded the dying declarations of the lat- ter are not admissible in evidence against the party charged with killing the former. Johnson y. State, 40: 1195, 58 So. 540, 63 Fla. 16. (Annotated) Competency as witness of person making. 1493. It is no ground for excluding a dy- ing declaration that it does not appear that the declarant believed in God, and rewards and punishment after death. State v. Hood, 15: 448, 59 S. E. 971, 63 W. Va. 182. Spontaneity of. 1494. Dying declarations made by a party who was shot and mortally wounded in a melee, made four or five hours after the shooting, and after the party had seen and spoken to several persons, cannot be said to be the spontaneous utterances of thoughts created by or springing out of the transac- tion, and therefore cannot be considered as a part of the res gestce. Johnson v. State, 40: 1195, 58 So. 540, 63 Fla. 16. Form of. 1495. A statement of a remark by one shot by another just prior to his death, signed by a bystander, is admissible as evidence of an oral declaration of decedent, but cannot be considered as part of a signed statement by decedent, although appended thereto. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1496. When both a written statement by a decedent, and oral evidence of his declara- tions, are admitted as dying declarations, the oral one should be placed on the same equality with the written by refusing to permit the latter to be taken into the jury box. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1497. The admission in evidence, as a dy- ing declaration, of a written statement by decedent, does not preclude oral evidence of other declarations made at the same time and under the sense of impending death. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1498. A statement is not rendered inad- missible as a dying declaration by the fact that it was obtained by question and an- swer, although some answers consisted mere- ly of nods, where the deceased had been enjoined by the doctor to speak as little as possible. Rex v. Louie, 2 B. R. C. 912, 10 B. C. 1. (Annotated) 1499. It is not necessary to render a statement obtained by question and answer admissible as a dying declaration that it should contain the questions put as well aa the answers given. Rex v. Louie, 2 B. R. C. 912, 10 B. C. 1. Sense of impending death. 1500. Declarations by one in articulo mortis who believes that he is mortally wounded are admissible in evidence. State v. Dyer, 29: 459, 124 N. W. 629, 147 Iowa, 217. 1501. That at the time of making a dec- laration declarant stated that he did not expect to live does not render the declara- EVIDENCE, X. m. 1183 tion admissible in evidence as a dying dec- i laration, if all his other conversations and acts tend to show that he did not expect to die. Tibbs v. Com. 28: 665, 128 S. W. 871, 138 Ky. 558. 1502. An expression by one who has been shot in the stomach so that he is unable to arise, and who has been told by his physi- cian that he has but a few hours to live, in a statement offered in evidence as his dying declaration, "if I have to die," does not raise such doubt of his entire conviction of impending dissolution as to render the statement inadmissible, where in the same statement he declares that he is going to die, and from all the circumstances it is evident that he was fully conscious that his end was at hand. House v. State, 21: 840, 48 So. 3, 94 Miss. 107. 1503. The deduction that declarations were made under a cer -.e of impending death, without hope of recovery, is war- ranted where the person making them, after great shock and exposure, declared that he did not believe that he could get well, and made them several hours later, having been sinking all the time, and hav- ing reached a state of extreme weakness. Gipe v. State, i: 419, 75 N. E. 881, 165 Ind. 433. (Annotated) 1504. Declarations will be presumed to have been made under a sense of impending death where it appears that the person making them was wounded by a bullet which entered the body near the base of the breast bone and ranged downward, leav- ing the body at about the mid scapular line, posteriorly just above the brim of the pelvis, that the wound was large and gap- ing, that there was marked internal hem- orrhage, that the abdomen was greatly distended, that his temperature was sub- normal, that he vomited blood and all nourishment given him, that there was a discharge of the intestinal contents at the point of exit of the bullet, and that a no- tary was called to take his statement, al- though there was but little external bleed- ing, and the deceased made no statement showing that he knew his danger or was conscious of his impending death, and there was nothing in his conduct or that of those present, acquiesced in by him, from which such consciousness of impending death could be ascertained. Territory v. Eagle, 30: 391, 110 Pac. 862, 15 N. M. 609. ( Annotated ) 1505. An Indian woman's statement that she thinks she is going to die is a suffi- cient indication of such settled hopeless ex- pectation of immediate death as to render the statement admissible as a dying decla- ration, it appearing that the medical atten- dant had informed her that she was dying, and that Indians are accustomed to use the term "think" generally as a statement of fact. Rex v. Louie, 2 B. R. C. 912, 10 B. C. 1. Impeachment of. 1506. Evidence that deceased did not be- lieve in a Supreme Being, offered to discredit his dying declaration, is not rendered inad- Digcst 1-52 L,R.A.(N.S.) missible by the fact ttat it relates to a time a year before his death. Gambrell v. State, 17: 291, 46 So. 138, 92 Miss. 728. 1507. Evidence of inconsistent statements made by one after receiving a mortal wound is admissible to impeach his dying declara- tion in a prosecution of one who is alleged to have inflicted the wound, although no foundation has been laid for it. Salas v. People, 37: 252, 118 Pac. 992, 51 Colo. 461. In civil cases. 1508. The dying declaration of a vendor in a land contract as to the terms of the con- tract is admissible in an action by his ad- ministrator against the vendee for the bal- ance of the purchase price. Thurston v. Fritz, 50: 1167, 138 Pac. 625, 91 Kan. 468. (Annotated) 1509. The dying declaration of one injured by being struck by a railroad train is not admissible in a civil action to recover dam- ages therefor. Bionto v. Illinois C. R. Co. 27: 1030, 51 So. 98, 125 La. 147. Made in travail. 1510. Declarations of the mother of a child, made during travail, as to its pater- nity, are admissible in support of her testi- mony in a bastardy proceeding. Johnson v. Walker, i : 470, 39 So. 49, 86 Miss. 757. 1511. Testimony of a living witness at a former trial cannot be proved at a subse- quent trial of the same case, although he is too ill to attend court, if the illness existed at the beginning of the trial, so that, if his evidence was material, an adjournment could have been had until he could be pres- ent. McCrorey v. Garrett, 24: 139, 64 S. E. 978, 109 Va. 645. m. Former testimony. (See also same heading in Digest L.R.A. 1-10.) Documentary evidence of, see supra, 775- 779. Testimony at coroner's inquest, see supra, 1220, 1221. 1512. The properly proved testimony of witnesses who have left the state after a first trial may be given in evidence on a second one. Grant v. State, 42: 428, 148 S. W. 760, Tex. Crim. Rep. . 1513. Where a witness has testified in a preliminary trial, and has been cross- examined by the defendant, and his attend- ance cannot be obtained upon a subsequent trial of said cause, it is not error for the trial court to permit the introduction by the state of the testimony given by said witness upon such former trial. Edwards v. State, 44: 701, 131 Pac. 956, 9 Okla. Crim. Rep. 306. (Annotated) 1514. The admission, in favor of the state upon the trial of one accused of homicide, of testimony given by a witness upon the former trial of the cause upon the showing that a subpoena had been issued for the wit- ness to testify and a return had been in- dorsed thereon by the sheriff of the county that the witness could not be found in the 1186 EVIDENCE, XI. c. thrown from a platform while attempting to do so, as bearing upon the question of his negligence. Auld v. Southern R. Co. 37: 518, 71 S. E. 426, 136 Ga. 266. 1539. In an action for the death of a brake- man due to the giving way of a crosspiece nailed across a loaded lumber car, evidence is admissible of a custom on the part of railroad men to use, such crosspieces to as- sist them in climbing about the car in the performance of their work, for the purpose of showing that such pieces were put by the employees to a secondary use, for which they were not intended, under circumstances charging the company with notice, and thereby placing upon it a responsibility for their safety. Wallace v. Seaboard Air Line R. Co. 13: 384, 54 S. E. 399, 141 N. C. 646. 1540. Exclusion, in an action for death of a freight conductor being run over by train while walking along a track to check his train, of evidence that his act was accord- ing to custom in railroad yards generally, is not error where he was negligent in be- coming so absorbed in his duties as to fail to observe his surroundings. Neary v. Northern P. R. Co. 19: 446, 97 Pac. 944, 37 Mont. 461. 1541. Upon the question of the negligence and contributory negligence of hunters one of whom shot the other under the mistaken belief that he was an animal, while he was moving through bushes in violation of an understanding as to where each should sta- tion himself, evidence is not admissible of the custom of hunters under such circum- stances, at least where the custom is not shown to have been known to the parties. Rudd v. Byrnes, 26: 134, 105 Pac. 957, 156 Cal. 636. As to sobriety or drunkenness. Evidence of reputation as to, see infra, 1549, 1559. 1542. In an action to hold an employer liable for assault in removing a servant from I. is premises after termination of the relation, evidence is not admissible that the servant was steady and did not drink, where no attempt had been made to im- peach his credibility as a witness. Noonan v. Luther, 41: 761, 99 N. E. 178, 206 N. Y. 105. 1543. Evidence of a plea of guilty, by an applicant for insurance, to a charge of drunkenness, is admissible hi an action by an assignee of the V neticiary upon the pol- icy in support of a defense of misrepresen- tation by the applicant as to his habits in that regard, where the plea was not so re- mote from the time of the application as to have no evidentiary value. Langdeau v. John Hancock Mut. L. Ins. Co. 18: 1190, 80 N. E. 452, 194 Mass. 56. As to mode of reckoning time. 1544. In determining the meaning of the word '"noon" in a contract, evidence is ad- missible to prove the prevailing custom as to the system of reckoning time in the community where the contract was made. Rochester German Ins. Co. v. Peasloe-Gaul- bert Co. i: 364, 87 S. W. 1115, 120 Ky. 752. Digest 1-52 L.R.A.(N.S.) C. Character; reputation; age. (See also same heading in Digest L.R.A. 1-10.) Opinion evidence as to, see supra, VII. e. Hearsay evidence of, see supra, 1276-1278. Proof of, by negative evidence, see infra, 1936. Evidence as to bad character of person as- saulted, see infra, 2002. Sufficiency of evidence as to, to sustain con- viction of keeping disorderly house, see infra, 2411, 2412. Prejudicial error as to, see APPEAL AND EBROR, 1112, 1117. Evidence of character in mitigation of dam- ages, see infra, 2014; DAMAGES, 714, 721. 1545. Evidence that one suing a hotel- keeper for injury to his feelings and repu- tation by refusal to serve him was a chron- ic fault-finder, and that his reputation as a guest was bad, is not admissible. Morn- ingstar v. Lafayette Hotel Co. 52: 740, 105 N. E. 656, 211 N. Y. 465. 1546. Evidence of the general reputation of a person for financial responsibility is rele- vant on the question of his solvency. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 1547. Evidence of the character of a grant- or is not admissible in support of a recital in his deed that he had received a convey ance from the original patentee of the land: where no other evidence of such conveyance is produced. Quinalty v. Temple, 27: 1114, 176 Fed. 67, 99 C. C. A. 375. 1548. Evidence of the immoral character of the mother is immaterial in an action by her for the abduction of her'child. Magnu- son v. O'Dea, 48: 327, 135 Pac. 40, 75 Wash. 574. 1549. Evidence of the general reputation for drunkenness of a physician selected by a master to treat his employees, in the community in which he practises, is admis- sible as tending to prove that the master knew, or by proper diligence should have known, of it. Guy v. Lanark Fuel Co. 48: 536, 79 S. E. 941, 72 W. Va. 728. 1550. In an action to set aside a compro- mise for fraud, proof of the good character of the one accused of fraud cannot be con- sidered as substantive evidence against its existence. Wilson Lumoer & Mill. Co. v. At- kinson, 49: 733, 78 S. E. 212, 162 N. C. 298. (Annotated) Of accused. Opinion evidence as to, see supra, VII. e. Review of error as to, see APPEAL AND ERROR, 837. Competency of witness to testify to general reputation of person, see WITNESSES, 7, 8. For purpose of impeaching as witness, see WITNESSES, 115, 117-119, 121. Admissibility to impeach accused aa wit- ness, see WITNESSES, 151. 1551. One accused of crime cannot testify in defense that he has never before been ac- EVIDENCE, XI. c. 1187 vused of, or arrested for, crime. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. 1552. Evidence of the general reputation of one accused of crime as to the particular traits involved in the issue is admissible in his favor. People v. Van Gaasbeck, 22: 650, 82 N. E. 718, 189 N. Y. 408. 1553. Evidence of the details of the shots fired by one accused of murder is not ad- missible to impeach his reputation as a peaceable and law-abiding citi/en. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. 1554. A person on trial for homicide may show that prior to the date of the crime al- leged his character as a quiet and peaceable citizen was good; and he is not limited to proving what people may have said concern- ing him in that regard, but may inquire as to his character from those acquainted with him. State v. Dickerson, 13: 341, 82 N. E- 9G9. 77 Ohio St. 34. 1555. Upon a trial of a chauffeur for homi- cide in running his car at a reckless rate on a city street, and striking and killing a pedestrian, evidence is not admissible as to the reputation of accused as a skilful chauffeur and careful driver. State v. Goetz, 30: 458, 76 Atl. 1000, 83 Conn. 437. 1556. That a witness has never heard the matter discussed does not prevent his testi- fying to the general reputation of an ac- cused person for peace or violence in the community. Sinclair v. State, 2: 553, 39 So. 522, 87 Miss. 330. (Annotated) 1557. Where the state cross-examines the witm'ss of accused as to rumors of particu- lar instances of trouble by accused, who tries to prove his good character, he may show, on redirect examination, what wit- ness had heard of the rumors, and the gen- eral nature of the trouble. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. Of deceased person. To corroborate witness, see WITNESSES, 190. See also infra, 1655. 1558. In an action on a benefit certificate in which it is set up as a defense that the insured was killed in a quarrel in which he was the offending party, under which cir- cumstances the defendant would not be lia- ble, evidence of his general reputation for peace and quiet is incompetent. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043. 156 Ky. 270. 1559. The applicant's reputation "for being an intemperate user of alcoholic beverages" is not admissible to contradict a statement in his application for life insurance that, while he used intoxicating liquors, he did so temperately; for it is not offered to af- fect credibility, but in denial of a fact, pertinent to the issue raised, and not diffi- cult to prove, if true, by the acts of the insured. Smith v. Prudential Ins. Co. (N. j J. Err. & App.) 43: 431, 85 Atl. 190, 83 N. J. L. 719. Victim of homicide. 1560. One accused of murder, who claims that he fired the fatal shot in self-defense, may prove that the deceased was a person Digest 1-52 L.R.A.(N.S.) of violent and dangerous character, if such : character was known to him at the time of the affray. State v. Roderick, 14: 704, 82 N. E. 1082, 77 Ohio St. 301. 1561. Upon a trial of one for killing a per- son who had assaulted him immediately be- fore the striking of the fatal blow, evidence is admissible that deceased was known by accused to be a violent, passionate, and dan- ererous man. Com. v. Tircinski, 2: 102, 75 N. E. 261, 189 Mass. 257. (Annotated) 1562. Upon trial of a man for killing his brother-in-law while the latter was attempt- ing to force an entrance of his home in search of his wife, who had taken refuge there, evidence is admissible that the gen- eral reputation of deceased indicated that he was quarrelsome and dangerous. Bailey v. People, 45: 145, 130 Pac. 832, 54 Colo. 337. 1563. Knowledge on the part of one on trial for homicide that decedent was a quarrelsome and dangerous man is not necessary to admit evidence of that f;ict in support of his claim that he shot in self- defense. State v. Feeley, 3: 351, 92 S. W, 663, 194 Mo. 300. (Annotated) 1564. The limitation by one accused of homicide of evidence of the quarrelsome character of deceased to times when he was drinking, as he was at the time of his death, does not preclude evidence on the part of the state of his general character for peace, ~uiet, and good citizenship. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 1565. In a trial for homicide, where it is claimed that the fatal shot was fired in self-defense, the defendant cannot be per- mitted to prove, for the purpose of show- ing reasonable ground for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness on the- part of the deceased, which did not concern- the defendant and at which he was not present and of which he has no personal! knowledge; but he may show that the de- ceased was generally reputed to be a mam of violent and dangerous character. State- v. Roderick, 14: 704, 82 N. E. 1082, 77 Ohio- St. 301. (Annotated) 1566. Evidence of the reputation of de- ceased for peaceableness, which has not been attacked, is not admissible in a prose- cution for homicide merely because the de- fendants rely upon self-defense, and their evidence tends to prove that the deceased was the aggressor. Kelly v. People, 12: 1169, 82 K E. 198, 229 111. 81. 1567. An attack upon the reputation of de- ceased for peaceableness whicli will admit the evidence of his good reputation in that respect in rebuttal is not involved in the testimony of a brother of deceased to- the effect that the latter was a strong mani and capable of caring for himself, the wit- ness having answered in the negative a ques- tion as to whether deceased had not acted' as a sparring partner for a pugilist. Kelly v. People, 12: 1169, 82 N. E. 198, 229 111.81. Of person assaulted. 1568. In a prosecution for assault and bat- tery, evidence of the good character or repu- tation of the complaining witness is inad- 1186 EVIDENCE, XI. c. thrown from a platform while attempting to do so, as bearing upon the question of his negligence. Auld v. Southern R. Co. 37: 518, 71 S. E. 426. 136 Ga. 266. 1539. In an action for the death of a brake- man due to the giving way of a crosspiece nailed across a loaded lumber car, evidence is admissible of a custom on the part of railroad men to use, such crosspieces to as- sist them in climbing about the car in the performance of their work, for the purpose of showing that such pieces were put by the employees to a secondary use, for which they were not intended, under circumstances charging the company with notice, and thereby placing upon it a responsibility for their safety. Wallace v. Seaboard Air Line R. Co. 13: 384, 54 S. E. 399 r 141 N. C. 646. 1540. Exclusion, in an action for death of a freight conductor being run over by train while walking along a track to check his train, of evidence that his act was accord- ing to custom in railroad yards generally, is not error where he was negligent in be- coming so absorbed in his duties as to fail to observe his surroundings. Neary v. Northern P. R. Co. 19: 446, 97 Pac. 944, 37 Mont. 461. 1541. Upon the question of the negligence and contributory negligence of hunters one of whom shot the other under the mistaken belief that he was an animal, while he was moving through bushes in violation of an understanding as to where each should sta- tion himself, evidence is not admissible of the custom of hunters under such circum- stances, at least where the custom is not shown to have been known to the parties. Rudd v. Byrnes, 26: 134, 105 Pac. 957, 156 Cal. 636. As to sobriety or drunkenness. Evidence of reputation as to, see infra, 1549, 1559. 1542. In an action to hold an employer liable for assault in removing a servant from his premises after termination of the relation, evidence is not admissible that the servant was steady and did not drink, where no attempt had been made to im- peach his credibility as a witness. Noonan v. Luther, 41: 761, 99 N. E. 178, 206 N. Y. 105. 1543. Evidence of a plea of guilty, by an applicant for insurance, to a charge of drunkenness, is admissible hi an action by an assignee of the r neficiary upon the pol- icy in support of a defense of misrepresen- tation by the applicant as to his habits in that regard, where the plea was not so re- mote from the time of the application as to have no evidentiary value. Langdeau v. John Hancock Mut. L. Ins. Co. 18: 1190, 80 N. E. 452, 194 Mass. 56. As to mode of reckoning time. 1544. In determining the meaning of the word "noon" in a contract, evidence is ad- missible to prove the prevailing custom as to the system of reckoning time in the community where the contract was made. Rochester German Ins. Co. v. PeasLee-Gaul- bert Co. i: 364, 87 S. W. 1115, 120 Ky. 752. Digest 1-52 L.R.A.(N.S.) C. Character; rep^itation; age. (See also same heading in Digest L.R.A. 1-10.) Opinion evidence as to, see supra, VII. e. Hearsay evidence of, see supra, 1276-1278. Proof of, by negative evidence, see infra, 1936. Evidence as to bad character of person as- saulted, see infra, 2002. Sufficiency of evidence as to, to sustain con- viction of keeping disorderly house, see infra, 2411, 2412. Prejudicial error as to, see APPEAL AND ERROR, 1112, 1117. Evidence of character in mitigation of dam- ages, see infra, 2014; DAMAGES, 714, 721. 1545. Evidence that one suing a hotel- keeper for injury to his feelings and repu- tation by refusal to serve him was a chron- ic fault-finder, and that his reputation as a guest was bad, is not admissible. Morn- ingstar v. Lafayette Hotel Co. 52: 740, 105 N. E. 656, 211 N. Y. 465. 1546. Evidence of the general reputation of a person for financial responsibility is rele- vant on the question of his solvency. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 1547. Evidence of the character of a grant- or is not admissible in support of a recital in his deed that he had received a convey ance from the original patei.tee of the land: where no other evidence of such conveyance is produced. Quinalty v. Temple, 27: 1114, 176 Fed. 67, 99 C. C. A. 375. 1548. Evidence of the immoral character of the mother is immaterial in an action by her for the abduction of her'child. Magnu- son v. O'Dea, 48: 327, 135 Pac. 40, 75 Wash. 574. 1549. Evidence of the general reputation for drunkenness of a physician selected by a master to treat his employees, in the community in which he practises, is admis- sible as tending to prove that the master knew, or by proper diligence should have known, of it. Guy v. Lanark Fuel Co. 48: 536, 79 S. E. 941, 72 W. Va. 728. 1550. In an action to set aside a compro- mise for fraud, proof of the good character of the one accused of fraud cannot be con- sidered as substantive evidence against its existence. Wilson Lumoer & Mill. Co. v. At- kinson, 49: 733, 78 S. E. 212, 162 N. C. 298. (Annotated) Of accused. Opinion evidence as to, see supra, VII. e. Review of error as to, see APPEAL AND ERROR, 837. Competency of witness to testify to general reputation of person, see WITNESSES, 7, 8. For purpose of impeaching as witness, see WITNESSES, 115, 117-119, 121. Admissibility to impeach accused as wit- ness, see WITNESSES, 151. 15ol. One accused of crime cannot testify in defense that he has never before been ac- EVIDENCE, XI. c. 1187 vused of, or arrested for, crime. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. 1552. Evidence of the general reputation of one accused of crime as to the particular traits involved in the issue is admissible in his favor. People v. Van Gaasbeck, 22: 650, 82 N. E. 718, 189 N. Y. 408. 1553. Evidence of the details of the shots fired by one accused of murder is not ad- missible to i in poach his reputation as a peaceable and law-abiding citixen. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. 1554. A person on trial for homicide may show that prior to the date of the crime al- leged his character as a quiet and peaceable citi/en was good; and he is not limited to proving what people may have said concern- ing him in that regard, but may inquire as to his character from those acquainted with him. State v. Dickerson, 13: 341, 82 N. E. 969. 77 Ohio St. 34. 1555. Upon a trial of a chauffeur for homi- cide in running his car at a reckless rate on a city street, and striking and killing a pedestrian, evidence is not admissible as to the reputation of accused as a skilful chauffeur and careful driver. State v. Goetz, 30: 458, 76 Atl. 1000, 83 Conn. 437. 1556. That a witness has never heard the matter discussed does not prevent his testi- fying to the general reputation of an ac- cused person for peace or violence in the community. Sinclair v. State, 2: 553, 39 So. 522, 87 Miss. 330. (Annotated) 1557. Where the state cross-examines the witm-ss of accused as to rumors of particu- lar instances of trouble by accused, who tries to prove his good character, he may show, on redirect examination, what wit- ness had heard of the rumors, and the gen- eral nature of the trouble. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. Of deceased person. To corroborate witness, see WITNESSES, 190. See also infra, 1655. 1558. In an action on a benefit certificate in which it is set up as a defense that the insured was killed in a quarrel in which he was the offending party, under which cir- cumstances the defendant would not be lia- ble, evidence of his general reputation for peace and quiet is incompetent. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043. 156 Ky. 270. 1559. The applicant's reputation "for being an intemperate user of alcoholic beverages" is not admissible to contradict a statement in his application for life insurance that, while he used intoxicating liquors, he did so temperately; for it is not offered to af- fect credibility, but in denial of a fact, pertinent to the issue raised, and not diffi- cult to prove, if true, by the acts of the insured. Smith v. Prudential Ins. Co. (N. J. Err. & App.) 43: 431, 85 Atl. 190, 83 N. J. L. 719. Victim of homicide. 1560. One accused of murder, who claims that he fired the fatal shot in self-defense, may prove that the deceased was a person Digest 1-52 !L.R.A.(N.S.) of violent and dangerous character, if such ; character was known to him at the time of the affray. State v. Roderick, 14: 704, 82 N. E. 1082, 77 Ohio St. 301. 1561. Upon a trial of one for killing a per- son who had assaulted him immediately be- fore the striking of the fatal blow, evidence is admissible that deceased was known by accused to be a violent, passionate, and dan- ererous man. Com. v. Tircinski, 2: 102, 75 N. E. 261, 189 Mass. 257. (Annotated) 1562. Upon trial of a man for killing his brother-in-law while the latter was attempt- ing to force an entrance of his home in search of his wife, who had taken refuge there, evidence is admissible that the gen- eral reputation of deceased indicated that he was quarrelsome and dangerous. Bailey v. People, 45: 145, 130 Pac. 832, 54 Colo. 337. 1563. Knowledge on the part of one on trial for homicide that decedent was a quarrelsome and dangerous man is not necessary to admit evidence of that fact in support of his claim that he shot in self- defense. State v. Feeley, 3: 351, 92 S. W, 663, 194 Mo. 300. (Annotated) 1564. The limitation by one accused of homicide of evidence of the quarrelsome character of deceased to times when he was drinking, as he was at the time of his death, does not preclude evidence on the part of the state of his general character for peace, "uiet, and good citizenship. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 1565. In a trial for homicide, where it is claimed that the fatal shot was fired in self-defense, the defendant cannot be per- mitted to prove, for the purpose of show- ing reasonable ground for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness on the- part of the deceased, which did not concern- the defendant and at which he was not present and of which he has no personal! knowledge; but he may show that the de- ceased was generally reputed to be a mam of violent and dangerous character. State- v. Roderick, 14: 704, 82 N. E. 1082, 77 Ohio- St. 301. (Annotated) 1566. Evidence of the reputation of de- ceased for peaceableness, which has not been attacked, is not admissible in a prose- cution for homicide merely because the de- fendants rely upon self-defense, and their evidence tends to prove that the deceased was the aggressor. Kelly v. People, 12: 1169, 82 N. E. 198, 229 111. 81. 1567. An attack upon the reputation of de- ceased for peaceableness which will admit the evidence of his good reputation in that respect in rebuttal is not involved in the testimony of a brother of deceased to- the effect that the latter was a strong mani and capable of caring for himself, the wit- ness having answered in the negative a ques- tion as to whether deceased had not acted' as a sparring partner for a pugilist. Kelly v. People, 12: 1169, 82 N. E. 198, 229 111.81. Of person assaulted. 1568. In a prosecution for assault and bat- tery, evidence of the good character or repu- tation of the complaining witness is inad- 1188 EVIDENCE, XI. c. missible where the defendant has made no attack upon such reputation. State v. Ma- gill, 22: 666, 122 N. W. 330, 19 N. D. 131. 1569. Upon the question of the amount of force which one accused of assault and bat- tery thought necessary for his own defense, evidence is admissible that he had been cau- tioned by his parents as to his conduct to- ward the person assaulted because of such person's dangerous character. McQuiggan v. Ladd, 14: 689, 64 Atl. 503, 79 Vt. 90. 1570. To show that one upon whom an as- sault was committed in alleged self-defense was in fact a dangerous man when intoxi- cated, evidence is admissible of his acts on specified occasions when so intoxicated. Mc- Quiggan v. Ladd, 14: 689, 64 Atl. 503, 79 Vt. 90. (Annotated) 1571. To render admissible evidence of spe- cific instances to show the dangerous char- acter of one upon whom an assault is al- leged to have been committed in self-de- fense, defendant need not be shown to have known of all their details if he knew that such character existed. McQuiggan v. Ladd, 14: 689, 64 Atl. 503, 79 Vt. 90. (Annotated) 1572. Evidence that a boy injured by another's negligence was obedient and economical is admissible upon the question of damages, in an action by him to recover for the injuries. Cameron Mill & Elevator Co. v. Anderson, i: 198, 81 S. W. 282, 98 Tex. 156. (Annotated) Of witness. Prejudicial error as to, see APPEAL AND ERROR, 1117. To impeach witness, see WITNESSES, 99- 101, 105-109, 151-164. 1573. Evidence is admissible to prove the good character of a witness in a civil ac- tion, where an effort was made to impeach him on cross-examination. Minton v. La Follette Coal, I. & R. Co. n: 478, 101 S. W. 178, 117 Tenn. 415. Chastity. Opinion evidence as to, see supra, 1116. Evidence as to, to impeach witness, see WITNESSES, 153, 155. See also infra, 1655. 1574. Upon the question of the existence vel non of a common-law marriage between a decedent and a woman claiming his prop- erty, evidence is admissible of the character of the community in which she lived and her own character for virtue, to interpret the association of decedent with her. Berg- er v. Kirby, 51: 182, 153 S. W. 1130, 105 Tex. 611. 1575. Evidence of the good character of the wife is inadmissible in a prosecution of her husband for murder of her alleged para- mour, to show that she was not guilty of conduct which accused assigned as a reason for his crime. Shipp v. Com. 10: 335, 99 S. W. 945, 124 Ky. 643. (Annotated) 1576. The state cannot, on a trial for in- cest, introduce evidence of good behavior of prosecutrix at the time the child must have been conceived, the evidence of the birth of which introduced against accused Digest 1-52 L.R.A.(N.S.) he is attempting to overcome by showing criminal intimacy between prosecutrix and another at such time. Skidmore v. State, 26: 466, 123 S. W. 1129, 57 Tex. Crim. Rep. 497. Carelessness. Custom or habit as to, see supra, 1527- 1541. See also supra, 1555. 1577. The general reputation of an em- ployee among those acquainted with him or his work is competent, after proof of his incompetence has been introduced, to show notice to the master of his habit of incom- petency; but reputation among a particu- lar class, which obviously includes only a part of those who know his character or work, is inadmissible for such purpose. Southern P. Co. v. Hetzer, i: 288, 135 Fed. 272, 68 C. C. A. 26. 1578. Specific acts of negligence, lack of skill, or incompetence, of which the master had no notice, are inadmissible to prove the incompetence of a servant employed with due care; but the proper proof of habit and character in such a case is the testimony of witnesses qualified to speak of them, subject to proper cross-examina- tion in relation to the facts upon which their testimony is based. Southern P. Co. v. Hetzer, i: 288, 135 Fed. 272, 68 C. C. A. 26. 1579. In an action against a man for in- jury done by his horse while being ridden by his son at his direction, evidence is ad- missible as to the son's reputation for reck- less and careless driving, and as to specific instances thereof, to charge defendant with knowledge of the son's incompetency to be intrusted with the management of the horse. Broadstreet v. Hall, 10: 933, 80 N. E. 145, 168 Ind. 192. 1580. In an action to hold one who has con- tracted to place the superstructures of a bridge on concrete piers to be erected by another, liable for injury to his employees because they were permitted to begin the work before the piers were sufficiently hard, evidence is not admissible as to the gen- eral reputation of the engineer in charge of the whole work, to whom defendant intrust- ed the duty of determining whether or not the piers were sufficiently hard, since, if it delegates that duty to the engineer, it is responsible for his negligence regardless of his reputation. Pennsylvania Steel Co. v. Nace, 45: 281, 77 Atl. 1121, 113 Md. 460. Age. Sufficiency of evidence, see infra, 2236, 2237. 1581. That one to whom a mutual benefit certificate was issued gave a different date of birth in a prior application for life in- surance in another company from that given in the application for the mutual benefit certificate is competent evidence tending to establish the true date of his birth, and ad- missible in an action brought by the bene- ficiary to recover upon the certificate. Tay- lor v. Grand Lodge A. 0. U. W. n: 92, 111 N. W. 919, 101 Minn. 72. EVIDENCE, XI. d. 1189 d. Knowledge; notice; belief; mental capacity. (See also same heading in Digest L.R.A. 1-10.) Knowledge; notice. Sufficiency of evidence, see infra, 2179, 2218, 2219. See also infra, 1858, 1859, 1884, 1913. 1582. Upon the* question of notice to a debtor of an assignment of a claim against him, evidence is not admissible of notice to his brother. Gunby v. Ingram, 36: 232, 106 Pac. 495, 57 Wash. 97. 1583. Upon the question of the knowledge of the conductor of a railway train, of the physical condition of a passenger, and whether he failed in his duty toward a sick passenger, as affecting the question of liability of the railroad company and the extent of the recovery, if any, it was ad- missible for him to testify that the pas- senger complained of being sick, but did not state the nature of such sickness, and that he "supposed it was train sickness/' Central of Georgia R. Co. v. Madden, 31: 813, 69 S. E. 165, 135 Ga. 205. 1584. In a suit upon a note executed in the name of a dissolved partnership by one of the former partners, against his copart- ner, evidence is admissible that the money for which the note of which that in suit is a renewal was borrowed with the knowledge of defendant, and credited to the account of the firm on the books of the corporation, which was organized to take over the part- nership business. Seufert v. Gille, 31: 471, 131 S. W. 102, 230 Mo. 453. In action for personal injuries. 1585. Evidence of knowledge by village trustees that a broken telephone wire is live is not admissible to show their knowledge, when an injury is caused by the same line of wire a quarter of a mile distant from such break, eight or ten months later, of the fact that the wire must be in contact at some point with a dangerous current, which con- dition should be corrected. Fox v. Man- chester, 2: 474, 75 N. E. 1116, 183 N. Y. 141. 1586. Upon the question of the negligence of a city in maintaining an unsafe sidewalk, evidence is competent that the street com- missioner and one member of the city coun- cil had actual notice of its condition. Woods v. Lisbon, 16: 886, 116 N. W. 143, 138 Iowa, 402. 1587. One injured by the movement of a standing freight train -while he is attempt- ing to cross it upon invitation of the brakeman cannot be permitted to testify as to whether or not the invitation was given loud enough for the engineer in charge of the train to hear it, in the absence of anything to show where the engineer was at the time. Westbrook v. Kansas City, M. & B. R. Co. 34: 469, 54 So. 231, 170 Ala. 574. 1588. Evidence that a father told the mine boss, who was also the employing agent of a coal mine operator, to keep his son, who was employed about the mine, out of it, is admissible in an action by such son to re- Digest 1-52 L.R.A.(N.S.) cover damages for personal injuries sus- tained while working in the mine at the di- rection of the boss, for the purpose of show- ing that the defendant was put on inquiry as to the boy's capacity to perform the work inside the mine, since such evidence tenda to show that the father thought such work dangerous for one of his son's capacity. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. 1589. Evidence of a conversation between a person injured while alighting from an electric car, and officers of the railway com- pany, bearing upon the question of the neg- ligence of the motorman, is admissible to show knowledge of his incompetence, in an action by a coemployee to hold the company liable for injuries due to his disobedience of orders. Robbins v. Lewiston, A. & W. Street R. Co. 30: 109, 77 Atl. 537, 107 Me. 42. 1590. Evidence of specific acts of negli- gence on the part of an employee, tending to show his incompetence, by which the master had actual knowledge, or, by the ex- ercise of due care, should have had such knowledge, is admissible on the question of incompetence and knowledge, in an action to hold the master liable for injury to an employee through a negligent act of the one alleged to be incompetent. Robbins v. Lewiston, A. & W. Street R. Co. 30: 109, 77 Atl. 537, 107 Me. 42. 1591. Upon the question whether or not an employee injured by the use of a defective cant hook ought to have known of its defec- tive condition, evidence should be consid- ered as to the use he had made of it and his familiarity with such tools. Parker v. W. C. Wood Lumber Co. 40: 832, 54 So. 252, 98 Miss. 750. In criminal cases. 1592. As bearing upon the question of one's guilt for violation of a statute, evidence ia admissible relating to his knowledge of the pendency of the bill, which ripened into the statute. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 1593. Upon trial of one for murder of a boarder at a hotel, evidence that accused knew that the proprietor had a certain sum of money in his possession is admissible, where it also appears that accused had formed a purpose to secure possession of the hotel, and put the keeper out of the way, to the accomplishment of which decedent stood in the way. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. Belief. See infra, 2002. , Mental capacity. Opinion evidence, see supra, VII. e. Sufficiency of evidence, see infra, 2220-2225. Right to show insanity of accused in pro- ceedings for extradition, see EXTRADI- TION, 4. 1594. Testimony of one alleged to have conveyed real estate while ill, that he did not learn of the conveyance until a short time before beginning action to set aside the deed, is material on the question of his mental incapacity to execute the deed. At- 1190 EVIDENCE, XI, e. wood v. Atwood, 37: 591, 79 Atl. 59, 84 Conn. 169. Of testator. Evidence of testator to show lack of, see supra, 1444. Declarations of colegatee to show, see su- pra, 1458. 1595 Upon the trial of an issue as to the testamentary capacity of the maker of a will, where it appears that a certain woman had been asked by the testator to write his will, and that she had refused, it is compe- tent to show, as explanatory of his acts, that she had drawn several wills, if that fact had been communicated to him. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 1596. Where a testator bequeathed but a nominal sum to a daughter, and in the will assigned as a reason therefor that her hus- band had not treated him justly, evidence that the son-in-law withheld money from him, to his knowledge, whether rightfully or wrongfully, and that he asked such son-in- law for a bond to which he claimed title, and that the son-in-law, with an oath, re- plied that he would give it to the testator when he pleased, is admissible upon the trial of an issue formed by a caveat to the pro- pounding of the will, as explanatory of the reason assigned. Slaughter v. Heath, 27: i, 57 S. E. 69, 127 Ga. 747. 1597. Whether or not testator's recognition of a witness on the day his will was execut- ed was the same as his recognition when in good health is immaterial upon the question of testamentary capacity. Speer v. Speer, 27: 294, 123 N. W. 176, 146 Iowa, 6. 1598. Testimony as to the condition cf one suffering from a progressive illness on the days preceding or following th~t on which he executed a will is not admissible on the question of his testamentary capacity on the day the will was executed. Speer v. Speer, 27: 294, 123 N. W. 176, 146 Iowa, 6. 1599. Where a testator bequeathed but a nominal sum to a daughter, and in the will assigned as a reason therefor that Ler hus- band had not treated him justly, evidence to show a transaction between them, or the conduct of the son-in-law in respect thereto, in so far as it was known to the testator, is admissible upon the trial of an issue formed by a caveat to the propounding of the will, as tending to show what operated on his mind. Slaughter v. Heath, 27: i, 57 S. E 69, 127 Ga. 747. 1600. In a will contest based on testator's belief in spiritualism, evidence is admis- sible as to whether or not certain beliefs ' would be irrational from the standpoint of a spiritualist. O'Dell v. Goff, 10: 989, 112 N. W. 736, 149 Mich. 152. 1601. Upon the question of the testamen- tary capacity of a believer in spiritualism, evidence of the truth or untruth of such faith is inadmissible. O'Dell v. Goff, 10: 989, 112 N. W. 736, 142 Mich. 152. Of accused. 1602. Whether evidence of conduct of a person after the fact in a criminal prose- cution is admissible on the question of whether such person was legally sane at Digest 1-52 L.R.A.(N.S.) the time of such fact depends upon whether such conduct bears such relation to such person's former condition of mind as, in reason, to be worthy of consideration in respect thereto. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 1603. Upon an indictment for perjury, evi- dence is admissible that, down to a date re- cently before the commission of the alleged crime, accused stood on the brink of paresis, and that his memory was - wholly unreliable. State v. Coyne, 21: 993, 114 S. W. 8, 214 Mo. 344. (Annotated) 1(304. It is not competent to prove tuai one accused of homicide is of weak mind, when it is admitted that he is neither an idiot nor an insane person, since the evidence would not tend to establish non-responsibil- ity for his crime. Rogers v. State, 10: 999, 57 S. E. 227, 128 Ga. 67. (Annotated) 1605. Evidence as to the insanity of one accused of murder need not be confined to the mental condition of the defendant at the time of the homicide where the defense is based on the theory that mental derange- ment had existed for a considerable time. State v. Rumble, 25: 376, 105 Pac. 1. 81 Kan. 16. 1606. Where the defense to a charge of murder is delusional insanity, evidence is admissible tending to show the conduct of accused upon the occasion of other fights which he had had, during which there is no pretense that he was not sane. Smith v. State, 27: 461, 49 So. 945, 95 Miss. 786. e. Intent; motive; fraud; undue in- fluence; duress; malice; good faith; interest. (See also same heading in Digest L.R.A. 1-10.) Intent; purpose. Sufficiency of evidence, see infra, 2191, 2228-2235. Prejudicial error as to, see APPEAL AND ER- ROR, 1196, 1238. See also infra, 1850, 1884, 1904, 1908, 1912, 1913. 1607. While the circumstances attending the act of a party are competent evidence of the condition or state of his mind in doing it, his own testimony as to his motive, pur- pose, and intent is also competent. Eckerd v. Weve, 38: 516, 118 Pac. 870, 85 Kan. 752. 1608. lhat the treasurer of a corporation maMe use, for his own purposes, of money belonging to his ward, soon after depositing it in the corporation's bank account, and that, in so doing, he pursued the course of his habit in the use of private frnds, is com- petent evidence upon the question of his in- tention in withdrawing the money from the ward's account, and depositing it in that of the corporation. Brookhouse v. Union Pub. Co. 2: 993, 62 Atl. 219, 73 N. H. 368. 1609. One whose property is sought by right of eminent domain to widen a street may introduce evidence to prove that the purpose of the widening is to accommodate a railway connection with private property. EVIDENCE, XI. e. 1191 Kansas City v. Hyde, 7: 639, 96 S. W. 201, 196 Mo. 498. ]610. That a jury in an eminent domain proceeding is impaneled merely to try the question of damages does not preclude the admission of evidence, for the consideration of the court, that the proceeding is insti- tuted for private, and not for public benefit. Kansas City v. Hyde, 7: 639, 96 S. W. 201, 196 Mo. 498. 161 J. A question propounded plaintiff in an action for an accounting for notes de- livered to defendant's intestate for collec- tion, as to whether certain items in an ac- count previously rendered defendant and offered in evidence by him represented or was intended to represent the notes as to which an accounting was demanded, was properly rejected, as the question of plain- tiff's intent was not material, and it was for the court, or the jury instructed by the court, to determine whether the declara- tion or any of the items in the account were supported by the evidence. Sayre v. Woodyard, 28: 388, 66 S. E. 320, 66 W. Va. 288. 1612. In an action to hold an employer liable for assault on his servant in remov- ing him from his premises after termina- tion of the employment, he may testify that his intent in placing his hands upon the servant was merely to effect a peaceable removal. Noonan v. Luther, 41: 761, 99 N. E. 178, 206 N. Y. 105. 1613. One ejected from a train because of his refusal to give up the amount tendered to the conductor in payment of the fare unless the latter would first give him the change representing the difference between that amount and the correct fare should not be permitted to testify, in an action for damages sustained by his ejection, that he was only joking, and really intended to pay the fare, and would have done so had he not been ejected, unless he stated to the con- ductor that he was joking, or that fact was known to the latter. Louisville & N. R. Co. v. Cottengim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. 1614. In an action against a railway com- pany for damages alleged to have been caused by its employee riding a railroad tricycle over a highway crossing in a wan- tonly reckless manner, thereby frightening plaintiff's horse and injuring the owner, such employee is a competent witness to testify as to his motive and intention at such time. Baker v. Missouri, K. & T. R. Co. 35: 822, 116 Pac. 816, 85 Kan. 18. Of parties to contract. 1615. Upon the question of the interpreta- tion of a contract, evidence is not admis- sible as to what one of the parties had in contemplation about its effect. Valley Planting Co. v. Wise, 26: 403, 123 S. W. 768, 93 Ark. 1. 1616. Evidence of intention to restore money borrowed by a man of his wife to pay for real estate is not admissible in an action by her to establish her rights under an agreement by him to take the title in her Digest 1-52 L.R.A.(N.S.) name. Sparks v. Taylor, 6: 381, 90 S. W. 485, 99 Tex. 411. 1617. Evidence as to the intent of a buyer of machinery is immaterial in an action for the purchase price, if he has accepted it by appropriating it to his own use. Fred W. Wolf Co. v. Monarch Refrigerating Co. 50: 808, 96 N. E. 1063, 252 111. 491. 1618. As between a mortgagee of machinery and one who had sold it to the mortgagor on condition, evidence is admissible to show the intent with which the mortgage was given as bearing on the question whether or not the machinery had been accepted by the mortgagor. Harrison v. Scott, 38: 1035, 96 N. E. 755, 203 N. Y. 369. 1619. Evidence of transactions between a buyer and agent of the seller, who, upon existing relations between the parties be- coming unsatisfactory, is sent to negotiate an adjustment, is admissible upon the ques- tion of the intention of the parties as to future sales, although the agent had no authority to conclude a contract, where he assumed to agree to a new arrangement, which the seller acted upon. Hamilton v. Joseph Schlitz Brewing Co. 2: 1078, 105 N. W. 438, 129 Iowa, 172. 1620. Although checks given by a debtor to his creditor within the time of the transac- tions making up an account are presumed to have been payments upon the account, they may be shown to have been for another pur- pose, as to procure money to carry on the business of the debtor. Lewis v. England, 2: 401, 82 Pac. 869, 14 Wyo. 128. 1621. In an action by a bank which has re- turned money paid on a forged check, to recover the amount from the bank to which it paid the check and which guaranteed prior indorsements, evidence is admissible' which tends to show that the one who made the first indorsement was the one who the maker of the check intended should re- ceive the money. Central Nat. Bank v. Na- tional Metropolitan Bank, 17: 520, 31 App. D. C. 391. 1622. In an action by a surety on a guard- ian's bond to recover from the receiver of an insolvent bank the amount of dividends paid to, but not accounted for by, the guardian, who held a certificate of deposit, payable to the order of the surety, evidence that the purpose of the surety in making an arrangement with the guardian, with the knowledge of the officers of the bank, that funds were not to be withdrawn except upon the joint check or indorsement of both the surety and guardian, was to prevent the latter from making an improper use of the ward's funds, is inadmissible where it forms no part of what was said or done. Fidelity & D. Co. v. Butler, 16: 994, 60 S. E. 851, 130 Ga. 225. 1623. A "nonwaiver agreement" executed by the insured after loss, without considera- tion, is admissible in an action on the policy only for the purpose of determining what the intentions of the parties were at the time. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, Hi Okla. 59. 1624. In an action by a subcontractor to 1192 EVIDENCE, XI. e. recover for work and labor on a building under an alleged oral contract with the owner, the fact that the subcontractor filed an unsuccessful claim for a lien after com- pletion of the building is an evidential fact for the jury on the question of the subcon- tractor's intention to release defendant from his oral promise. Howell v. Harvey, 22: 1077, 64 S. E. 249, 65 W. Va. 310. Fraudulent intent. Sufficiency of evidence as to, see infra, 2233. See also infra, 1633. 1625. One charged with deceit in making false representations for another to act upon may testify as to the intent with which they were made. Beach v. Beach, 46: 98, 141 N. W. 921, 160 Iowa, 346. 1626. In an action for rescission of a con- tract for fraud in making promises not in- tended to be performed, the subsequent acts and conduct of the promisor may be sub- mitted to the jury as some evidence of the original intent and purpose when they tend to indicate it. Braddy v. Elliott, 16: 1121, 60 S. E. 507, 146 N. C. 578. 1627. In an action to recover damages for false representations in regard to an animal which one who had defrauded another in a trade substituted for the one which he first transferred, evidence of the deceit in the first transaction is admissible to prove in- tent in the last. Robertson v. Halton, 37: 298, 72 S. E. 316, 156 N. C. 215. To dedicate land. . > 1628. Upon the question of the intent of one who has filed a plat of lots to be sold, and dedicated to public use spaces shown thereon as streets, evidence is not admissi- ble of instructions given by him to his sur- veyor. Los Angeles v. McCollum, 23: 378, 103 Pac. 914, 156 Cal. 148. 1629. A quitclaim deed by a littoral owner to the publy;, of a right of way along the tide land in front of his property, may be considered as evidence of intention to re- lease to the public his littoral rights of ac- cess to the water. McCloskey v. Pacific Coast Co. 22: 673, 160 Fed. 794, 87 C. C. A. 568. In making slanderous statement. 1630. In support of a defense of privileged communication, one charged with slander may testify that he had no design to injure the person slandered. Fleet v. Tichenor, 34: 323, 104 Pac. 458, 156 Cal. 343. 1631. To avoid exemplary damages a de- fendant in an action for slander may testify that he was not actuated by a desire to injure the person slandered. Fleet v. Tichenor, 34: 323, 104 Pac. 458, 156 Cal. 343. (Annotated) Of testator. 1632. The mere fact that a will, making no reference to real estate, gives legacies in ex- cess of testator's personalty, will not ad- mit evidence that testator meant by the legacies to repay money loaned him for the purchase of the realty, and therefore in- tended them to be a charge upon it. Fries v. Osborn, 19: 457, 82 N. E. 716, 190 N. Y. 35. (Annotated) Digest 1-52 L.R.A.CN.S.) In criminal cases. 1633. Upon the question of fraudulent in- tent of one who obtains from a county pay- ment of an account a second time, evidence is admissible of other acts of the same char- acter by the defendant. State v. Talley, ii : 938, 57 S. E. 618, 77 S. C. 99. 1C34. Testimony of a client that money de- livered to his attorney for investment had never been returned is admissible in evi- dence on the question of intent in a prose- cution against the attorney for forgery of a note purporting to represent the invest- ment. People v. Campbell, 34: 58, 125 N. W. 42, 160 Mich. 108. 1635. One on trial for murder because of a homicide caused by a spring gun set by him cannot testify that he did not intend to kill deceased. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. 1636. One on trial for shooting a man larger than himself may testify that he had been assaulted and maimed by a similar man on a previous occasion, after which he had carried a weapon, as tending to show that he did not arm himself especially for the occasion of the shooting, and as showing his apprehension of bodily harm. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 1637. The representations of one as to his intention with respect to the future use of securities which he obtains as collateral, and which he subsequently converts to his own use in selling them to a stranger, are material on the question whether or not he obtained possession of them for the purpose of feloniously converting them to his own use, so as to render him guilty of larceny. Com. v. Althause, 31: 999, 93 N. E. 202, 207 Mass. 32. 1638. In a prosecution for having in pos- session intoxicating liquor with intent to sell same, proof that the defendant kept large quantities of liquor concealed on his premises is competent as a circumstance tending to show the intent to sell. Childs v. State, 33: 563, 113 Pac. 545, 4 Okla. Criui. Rep. 474. 1639. Upon trial of one accused of violating the liquor law, evidence is admissible that he purchased for sale a soft drink under the manufacturer's guaranty that it was non- alcoholic, was shown _ certificate from the state official that it was not taxable, sold only a small portion of it, and, upon receiv- ing notice that it seemed to be intoxicating, he immediately returned the remainder Lo the manufacturer. State v. Powell, 6: 477, 53 S. E. 515, 141 N. C. 780. 1640. On the trial of a member of the board of education charged with receiving money as a bribe to influence his opinion, judgment, and action as a member of the board in causing a contract to be let for the cleaning of school buildings, testimony that the contractor who paid defendant the alleged bribe soon afterwards took a similar contract with an individual at a much lower price is material and competent evidence of the intent with which the money was re- ceived. State v. Campbell, 9: 533, 85 Pac. 784, 73 Kan. 688. (,?..~r i. *.,'/'.. J. '-.:- i. )<->:3tCf EVIDENCE, XI. e. 1193 104]. Evidence of a trip to another state and what happened there between the de- fendant in a prosecution for adultery and the woman with whom he is charged with having committed adultery is competent and admissible in evidence, since it is part of the general plan or conspiracy of the par- ties, and tends to explain the purposes of the defendant and the woman in being to- gether under suspicious circumstances in the county where the prosecution is taking place. Woody v. State, 49: 479, 136 Pac. 430, 10 Okla. Crim. Rep. 322. Motive; reason. Evidence of other crimes to show, see infra, 1914, 1915. See also supra, 1394, 1607, 1614; infra, 1680, 1832, 1928. 1642. For the purpose of showing the motive of the husband, defendant, in an action for enticing away another woman's husband, may show her own financial con- dition. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. 1643. As against a general objection, evi- dence as to the suffering for food of a wife and children may be admitted for the pur- pose of explaining why one spent a small sum of money on them rather than to re- lieve his own wants, where the jury is charged that they must not allow any dam- ages for the suffering of the wife or chil- dren. Western U. Teleg. Co. v. Wells, 2: 1072, 39 So. 838, 50 Fla. 474. 1644. In an action by one detained unlaw- fully and against her will in a reforma- tory institution, to recover damages for false imprisonment, evidence is admissible tending to prove a motive other than a purely charitable one for the detention, and that she was made to work for the profit of the institution. Gallon v. House of Good Shepherd, 24: 286, 122 N. W. 631, 158 Mich. 361. 1645. Evidence tending to show that pas- sengers left a street car because of the conduct of other passengers, and that in so doing they complained to the conduc- tor or within his hearing of such conduct, is admissible in an action by the latter passengers to recover damages for unlawful ejection from the car, as part of the res gestce, and as tending to explain the motive of the conductor, irrespective of whether or not such complaints were made within the hearing of the ejected passengers. United Power Co. v. Matheny, 28: 761, 90 N. E. 154, 81 Ohio St. 204. 1046. For the purpose of determining the validity of a general ordinance relating to the imposition of a license fee upon mov- ing picture shows, it is error to receive in evidence admissions by members of the vil- lage council that the motive in enacting the ordinance was to obtain revenue for a depleted village treasury. Higgins v. La- croix, 41: 737, 137 N. W. 417, 119 Minn. 145. 1647. A carrier sued for excluding from its boat an intending passenger may, in ex- planation of its conduct, show his miscon- duct upon a former occasion upon the boat. Digest 1-52 L.R.A.(N.S.) Reasor v. Paducah & I. Ferry Co. 43: 820, 153 S. W. 222, 152 Ky. 220. 1648. In an action by a subcontractor to recover for work and labor on a building under an alleged oral contract with the owner, entered into after the subcontract- or's abandonment of the contract because of the principal contractor's failure to pay him, the fact that the subcontractor was sued on the original contractor's bond for the com- pletion of the building is an evidential fact for the jury on the question whether the subcontractor was induced to comply with the contract because of defendant's promise, or whether he did it to relieve himself from a liability greater than his loss of the pay for services. Howell v. Harvey, 22: 1077, 64 S. E. 249, 65 W. Va. 310. In criminal cases. 1649. In a trial for obtaining money by false pretenses, it is competent to prove, by direct testimony of a prosecuting witness, that he would not have parted with the money if he had not believed the repre- sentations. State v. Hetrick, 34: 642, 113 Pac. 383, 84 Kan. 157. (Annotated) 1650. One on trial for libeling a public officer may state to the jury what his mo- tive was in making the publication, if there is evidence which would justify the jury in finding that the alleged libelous matter was true. Oakes v. State, 33: 207, 54 So. 79, 98 Miss. 80. 1651. Upon trial of one for perjury in falsely swearing that certain persons were properly registered as voters from a cer- tain place, evidence is admissible that ac- cused directed them to register, and prom- ised to protect them from harm if they did so, as tending to establish a motive for the testimony as to their being properly registered. People v.. Cahill, 20: 1084, 86 N. E. 39, 193 N. Y. 232. 1652. The state, upon a trial for assault with intent to kill, in which the defendant, to mitigate the offense, has testified that he made the assault while smarting under a sense of wounded honor, caused by the offering of money by the complainant to de- fendant's wife to induce her to have sexual intercourse with him, may show, in order that the jury may understand the true mo- tive of the defendant in making the as- sault, that the defendant was being prose- cuted for statutory rape at the time he married her, that the defendant and hia wife were, at the time of the alleged in- sult, living at a house of ill repute, and that he had absented himself from her, thereby leaving her where she might come in contact with people liable to approach her improperly. Caples v. State, 26: 1033, 104 Pac. 493, 3 Okla. Crim. Rep. 72. 1653. One on trial for killing another may testify that his wife confessed to him her criminal intimacy with deceased as tend- ing to show motive. Shipp v. Com. 10: 335, 99 S. W. 945, 124 Ky. 643. 1654. Evidence of a confession by a wife to infidelity is not admissible on a trial of her husband for killing her paramour, un- less it is shown that knowledge of it came 1194 EVIDENCE, XI. e. to accused before the homicide. Shipp v. Com. 10: 335, 99 S. W. 945, 124 Ky. 643. 1655. Upon trial of a father for killing a man who was paying unwelcome atten- tions to his daughter, he may testify to conversations with deceased indicating that the latter was lecherous to a high degree, and in which he boasted of his conquests of women. Smithson v. State, 36: 397, 137 S. W. 487, 124 Tenn. 218. (Annotated) 1656. Upon the trial of a wife for the mur- der of her husband, testimony tending to show the existence, prior to the alleged kill- ing, of adulterous relations between the prisoner and a third person, is admissible, for the purpose of showing motive for the commission of the offense. State v. Legg, 3: 1152, 53 S. E. 545, 59 W. Va. 315. 1657. Upon the question of the weight to be given to a dying declaration which has been admitted in evidence, testimony as to all circumstances bearing upon and immedi- ately connected with its execution, includ- ing all statements made at the time to and by the decedent as to his condition, and by him as to his sense thereof, as well as any- thing tending to throw light upon the motive prompting him to make the state- ment, is admissible in evidence. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. Fraud; good faith. Fraudulent intent, see supra, 1625-1627, 1633. Sufficiency of evidence, see infra, XII. c. Evidence of similar frauds, see infra, 1883- 1886. See also infra, 1816. 1658. Upon the question of fraud in the conveyance of property in contemplation of marriage, misrepresentations after the mar- riage, as to the amount of property owned by the grantor, are immaterial. Beechley v. Beechley, 9: 955, 108 N. W. 762, 134 Iowa, 75. 1659. Evidence of actual misrepresentation by a man to his intended wife as to the amount of his property is inadmissible upon the question of fraud in a prior conveyance by him of property. Beechley v. Beechley, 9: 955, 108 N. W. 762, 134 Iowa, 75. 1660. Upon the question of fraud in pro- curing the signature of a deed under a mis- representation as to its character, the jury may be permitted to consider the fact that it was kept off the record for a period of ten months. Smith v. Moore, 7: 684, 55 S. E. 275, 142 N. C. 277. 1661. In an action to'compel the restoration of money by one to whom it was taken for investment, and who gave therefor worthless obligations of a corporation of which he was president, evidence is admis- sible of the confidence which the customer had in him, and of his method of transact- ing business in the name of corporations to avoid his personal obligations. Donovan v. Purtell, i: 176, 75 N. E. 334, 216 111. 629. 1662. That stock was resold at a profit several months after it was purchased by one who is alleged to have acted fraudu- lently is not sufficient to show that it was worth that amount at the time of the al- Diges* 1-52 L.R.A.(N.S.) leged fraudulent purchase, for the purpose of forming a basis for damages. Boulden v. Stilwell, i: 258, 60 Atl. 609, 100 Md. 543. 1663. In an action by a bank on a note purchased by it from one who is alleged to have obtained it by fraud for property which he was to deliver, but did not, evi- dence is not admissible as to his lack of possession of the property, where the bank is shown to be a bona fide holder. Lilly v. Hamilton Bank, 29: 558, 178 Fed. 53, *102 C. C. A. 1. 1664. In a prosecution against a railroad company for nuisance in the manner of run- ning trains over a street crossing, evidence is admissible that it acted on the suggestion of the railroad commissioners and placed a watchman at the crossing, as tending to show its good faith in attempting to protect persons using the crossing, against the dan- gers arising from the passing of its trains. Cincinnati, N. O. & T. P. R. Co. v. Com. 17: 561, 104 S. W. 771, 126 Ky. 712. 1665. Upon the question of the good faith of an officer who makes an illegal arrest without a warrant, evidence is admissible of the instructions received from superior officers. Klein v. Pollard, 10: 1008, 112 N. W. 717, 149 Mich. 200. 1666. Upon the question of good faith and use of excessive force by a property owner who, in attempting to enter upon the prop- erty when it was in the wrongful posses- sion of a trespasser, used firearms and shot an employee of the trespasser, for which he is being sued for damages, evidence is ad- missible that the trespasser gained posses- sion of the property by the use of firearms, and had remained armed up to the time of attempted entry. Walker v. Chanslor, 17: 455, 94 Pac. 606, 153 Cal. 118. Of applicant for insurance. 1667. In an action on a benefit certificate where an issue is raised as to false represen- tations, in that the insured stated in his application that he had not had consump- tion, evidence that the applicant knew when he applied for the insurance, that he was or had been afflicted with tuberculosis, is ad- missible. Brvant v. Modern Woodmen of America, 27:326, 125 N. W. 621, 86 Neb. 372. 1668. Evidence that an applicant for insur- ance had previously been told, when seek- ing medical advice, that he had tuberculosis, is admissible in an action on the policy, upon the issue whether or not the statement in the application that the applicant had not had consumption was made honestly and in good faith, where the privilege of the wit- ness has been waived. Bryant v. Modern W r oodmen of America, 27: 326, 125 N. W. 621, 86 Neb. 372. In procuring release. Sufficiency of evidence, see infra, 2087, 2088. 1669. Upon the question of fraud in se- curing a release from an injured person, the one who secured it may be permitted to testify that he understood that the re- leasor understood the nature of the trans- action. Blossi v. Chicago & N. W. R. Co. 26: 255, 123 N. W. 360, 144 Iowa, 697. EVIDENCE, XI. e. 11P5* 1670. Upon the question of fraud vel non in inducing an employee to accept benefits from a relief department in release of th master's liability for negligent injuries, his situation, conduct, and surroundings at th time, as well as the amount received, may be considered. King v. Atlantic C. L. R Co. 48: 450, 72 S. E. 801, 157 N. C. 44. Of subscribers to stock. 1671. Upon the question whether or noi subscriptions to the stock of a corporatioi were made in good faith, evidence as to the ability of the subscribers to pay must be limited to facts known by the witnesses, al- though upon the question whether or noi the directors exercised ordinary care in ac- cepting the subscriptions, evidence is ad- missible of statements made in their pres- ence as to the ability of subscribers. Stone v. Monticello Constr. Co. 40: 978, 117 S. W. 369, 135 Ky. 659. Of promoters or organizers. 1672. In an action to hold promoters liable for fraud in the sale of bonds of a cor- poration, the jury may consider the ques- tion of fraud in a statement of the prospec- tus that a certain number of shares of stock had been issued, or directed to be issued, when a portion of such stock represented property turned over by the promoters at more than 150 times what they paid for it. Downey v. Finucane, 40: 307, 98 N. E. 391, 205 N. Y. 251. 1673. In an action to hold promoters lia- ble for fraud in selling bonds of a consoli- dated corporation, the jury may consider statements in the prospectus that dividends had been paid on the stock of one of the constituent corporations, when in fact they were never earned. Downey v. Finucane, 40: 307, 98 N. E. 391, 205 N. Y. 251. 1674. In an action by the purchaser of bonds of a consolidated corporation, to hold the promoters liable for fraud in inducing the sale by means of a prospectus which stated that one of the corporations which went into the consolidation owned a fran- chise acquired under advice of eminent coun- sel, which if good would be very valuable, evidence is admissible that under the law it was extremely doubtful if it had any value whatever, and that they suppressed the fact that they turned the franchise over to the corporation for more than 150 times what they paid for it. Downey v. Finucane, 40: 307, 98 N. E. 391, 205 N. Y. 251. 1675. In an action by a subscriber to the stock of a trust company the organization of which was not perfected, to enforce the personal liability of the organizers for fail- ure to return his money, evidence is admis- sible that money subscribed was used to start a bank, as tending to show a breach of trust and lack of good faith on the part of the incorporators. Miller v. Denman, 16: 348, 95 Pac. 67, 49 Wash. 217. Undue influence; duress. Sufficiency of evidence, see infra, XII. c. 1676. Evidence of the provision of a former the changes made in preparing the later will would in no event affect the result of the contest. Re Young, 17: 108, 94 Pac. 731, 33- Utah, 382. 1677. In a prosecution for selling pooled- tobacco contrary to statute, evidence is ad- missible, in support of a defense that the pooling contract was signed under duress, that night riders had inflicted personal in- jury upon, and destroyed the property of, those who had refused to pool, and that ac- cuse I had been approached and told that it would be best for him to pool. Com. v. Reffitt, 42: 329, 148 S. W. 48, 149 Ky. 300, Malice. Sufficiency of evidence, see infra, XII. c. Prejudicial error as to, see APPEAL AND EB- EOR, 1238. Evidence to show, in trial for murder by spring gun, see HOMICIDE, 60. See also supra, 1358, 1667, 1668. 1678. That one who has made alleged slan- derous statements upon a privileged occa- sion repeats them subsequently when called upon for an explanation is not admissible to show malice in the first utterance, if the statement would not of itself afford an ac- tion for slander. Hayden v. Hasbrouck, 42: 1109, 84 Atl. 1087, 34 R. I. 556. (Annotated) 1679. To prove malice in an action for the publication of a libel, other articles pub- lished by the same defendant are admissible in evidence, if they will bear the construc- tion of ill-will towards plaintiff, although in one construction they contain mere matter* of general political interest. Meri wether v. George Knapp & Co. 16: 953, 109 S. W. 750, 211 Mo. 199. 1680. In an action for damages for being^ called a cattle thief, actual malice being charged as a basis for punitive damages, where the defendant denied having made that charge, but avows having said that it was generally believed that the plaintiff had stolen cattle, he should be allowed to testify upon what he based the statements he avowed making, whether he believed them, what basis he had for them, and whether he was actuated by a desire to injure the plaintiff. Wood v. Custer, 38: 1176, 121 Pac. 355, 86 Kan. 387. 1681. To show malice, evidence is admissi- ble that a property owner, after notice, made no attempt to prevent snow from sliding from his building onto adjoining jroperty, and permitted the nuisance to :ontinue after action was brought to re- cover damages for the injury. Bishop v. Readsboro Chair Mfg. Co. 36: 1171, 81 Atl. 454, 85 Vt. 141. 1682. In an action to enjoin defendants rom shooting over plaintiff's land from overs or blinds, the plaintiff is entitled to show, where the distance of the blinds from ler property is in dispute, that the defend- nts' proposed act is malicious, would con- stitute a nuisance, or would make the use will is not immaterial in a will contest on \ of her property eminently dangerous, the ground of undue influence, unless it is | Whittaker v. Stangvick, 10: 921, 111 N. W. made clear beyond a reasonable doubt that 295, 100 Minn. 386. Pigest 1-5* I*R.A.(N.S.) 1196 EVIDENCE, XI. f. Interest. 1683. One on trial for perjury alleged to have been committed in a civil action, the parties to which are witnesses against him, may show the status of such action for the purpose of showing that such parties would profit by his conviction, because the action IB still pending and his conviction would render him incompetent to testify in it. State v. Eaid, 33: 946, 104 Pac. 275, 55 Wash. 302. /. Prices; valiies. (See also same heading in Digest L.R.A. 1-10.) Opinion evidence as to, see supra, VII. f. Evidence as to damages, see infra, XI. g. Prejudicial error as to, see APPEAL AND EB- BOB, 1173, 1224. Evidence of value on question of insolvency, see EVIDENCE, 1955. See also supra, 1662. 1684. Upon the question whether or not the property of a corporation is taxed at the same rate as that of other corporations in the state, evidence is relevant which tends to establish the value of the stock in trade of the latter corporations. Boston & M. R. Co. v. State, 31 : 539, 77 Atl. 996, 75 N. H. 513. Market value. Admissibility of market quotations, see su- pra, 862, 863. Prejudicial error as to, see APPEAL AND ERROR, 1173. Services. See also infra, 1719. 1685. In an action for negligent injuries, evidence of the market value of services in the profession for which plaintiff had fitted himself is admissible. Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. Personal property. 1686. In determining the value of the use of an article where it does not appear that there is an absolute standard by which such value may be determined with definiteness and certainty, it is not error to admit evi- dence of the price at which the renter sub- sequently sold the article. Carey Coal Co. v Bebee Concrete Co. 44: 499, 129 Pac. 191, 88 Kan. 515. (Annotated) 1687. Upon the question of damages for the destruction of an artist's picture, evi- dence is not admissible as to its value to him individually as a design, apart from its market value. Wade v. Herndl, 5: 855, 107 N. W. 4, 127 Wis. 544. 1688. Upon an issue as to what the use of an article is reasonably worth per day, whore it does not appear that there is any absolute standard by which such value may be de-termined with definiteness and certain- ty, it is not error to admit evidence of the value of the article itself, to be considered with other circumstances in determining the value of its use. Carey Coal Co. v. Bebee Digest 1-52 I,.R.A.(N.S.) Concrete Co. 44: 499, 129 Pac. 191, 88 Kan. 515. Market value. Market value of services, see supra, 1685. 1689. In an action for damages for pro- curing the sale of corporate stock by fraud, evidence is admissible as to the value of the stock at the time of the sale. McDonough v. Williams, 8: 452, 92 S. W. 783, 77 Ark. 261. 1690. Although the measure of damages for the conversion of chattels is their value at the time of conversion, it is not error to permit evidence as to the highest mar- ket value between the time of conversion and the time of trial. Austin v. Vanderbilt, 6: 298, 85 Pac. 519, 48 Or. 206. 1691. The value of a dog wantonly and maliciously killed or injured may be proved by evidence that he was of a particular breed and had certain qualities, and by witnesses who know the market value of such an animal, if any market value be shown. Columbus R. Co. v. Woolfolk, 10: 1136, 58 S. E. 152, 128 Ga. 631. Real property. Prejudicial error as to, see APPEAL AND ERROR, 1224. 1 692. Upon the question of the rental value of a cotton gin which has been operated during past seasons, evidence may be con- sidered of the physical conditions of the property, the conditions which surround it, including its patronage, th> success and hazards in the past, and any change tor better or worse. Standard Supply Co. v. Carter, 19: 155, 62 S. E. 150, 81 S. C. 181. 1693. The measure of damages for causing a subsidence of the surface of land being the diminution in its market value, evidence is not admissible as to the value, in them- selves, of springs destroyed. Rabe v. Shoen- berger Coal Co. 3: 782, 62 Atl. 854, 213 Pa. 252. 1694. Evidence that the erection of a pow- er plant had increased the value of lands is not admissible to impeach the testi- mony of a witness as to the value of land near it and the price at which sales had been made, in a proceeding to fix the com- pensation for land taken by the plant. Brown v. W. T. Weaver Power Co. 3: 912, 52 S. E. 954, 140 N. C. 333. 1695. Evidence of the communities which could utilize the water in a particular tract of land for a water supply is properly ex- cluded in an action for compensation from one of them, which has taken it for that purpose, where such utilization depends in part upon the authority of the legislature is to distribution of the water. Sargent v. Merrimac, n: 996, 81 N. E. 970, 196 Mass. 171. Offers. 1696. Evidence that an owner of land abutting on a highway wholly within which a right of way for a telephone line is sought to be condemned has been ac- customed to use a portion of the highway for agricultural purposes is inadmissible in a proceeding so to condemn a right of way, since such testimony tends improperly to EVIDENCE, XI. g. 1197 enhance in the minds of the jury the value of the strip to be taken, as the abutting owner in the use of the highway for sucli pu. poses was a trespasser without any right' of pecuniary value. Tri-State Teleph. & Teleg. Co. v. Cosgriff, 26: 1171, 124 N. W. 75, 19 N. D. 771. 1697. Upon the question of measure of damages for breach of contract to sell real estate, evidence is admissible of the price at which the grantee had agread to sell it to a stranger if he secured t toa title. Kuhlman v. Wieben, 2: 666, 105 N. W. 445, 129 Iowa, 188. Sales of similar property. 1698. It is not error in the trial court where a question of damages under the law of eminent domain is being tried, to reject evidence ol offers to purchase other property in the neighborhood of the land in question, about the time condemnation proceedings were instituted. Blincoe v. Choctaw, O. & W. R. Co. 4: 890, 83 Pac. 903, 16 Okla. 286. 1699. Upon the question of market value of property taken by eminent domain, evi- dence is admissible of the value of lands similar to those taken, or with respect to which differences from the land taken are explained, so as to show the compara- tive market value of the different tracts. St. Louis, I. M. & S. R. Co. v. Theodore Maxfield Co. 26: mi, 126 S. W. 83, 94 Ark. 135. Previous sales of same property. 1700. The value of a mine which is turned into a corporation organized to operate it in consideration for its stock may be deter- mined from what its former owners sold it for, where they were men of large business operations, not unaccustomed to mining, and were under no compulsion to sell. Old Dominion Copper Min. & Smelting Co. v. Billow, 40: 314, 89 N. E. 193, 203 Mass. 159. 1701. Evidence of the prices realized up- on a resale by attorneys at a large profit of an undivided half interest in land sub- ject to a life estate, purchased from their clients, is admissible in a suit by the cli- ents to recover the profits realized by such resale, and may be considered in determin- ing whether the price paid by the attorneys was fair, where their witnesses have testi- fied to the changes in value in the mean- time, and that the undivided interest had no market value at the time of the orig- inal purchase. Hamilton v. Allen, 28: 723, 125 N. W. 610, 86 Neb. 401. Growing crop. Evidence as to damages to, see infra, 1739- 1742. 1702. In arriving at the value of a grow- ing crop, it is proper to show by evidence the probable yield under proper cultivation, and the value of such probable yield when matured, gathered, prepared, and ready for sale; also the probable cost of proper cul- tivation necessary to mature the crop, as well as the cost of its gathering, prepara- tion, and transportation to market. Mis- souri, 0. & G. R. Co. v. Brown, 50: 1124, 136 Pac. 1117, 41 Okla. 70. Digest 1-52 L.R.A.(N.S.) g. Damages. (See also same heading in Digest L.R.A. 1-10.) Opinion evidence as to, see supra, VII. f. As to values, see supra, XI. f. Admissibility of deed on question of, see supra, 787. Mitigation of damages, see infra, XI. w. Admissibility of evidence under pleadings, see infra, 2436-2438. Prejudicial error in admission of evidence as to, see APPEAL AND ERROR, 1099, 1107, 1108, 1111, 1168, 1184, 1193, 1195. Reversible error in exclusion of evidence as to, see APPEAL AND ERROR, 1228. Limiting number of witnesses on question of damages, see APPEAL AND ERROR, 1220. Proof of seduction in aggravation of dam- ages, see COURTS, 302. Competency of witness to testify to, see WITNESSES, 10. See also supra, 1662, 1687, 1690. 1703. In an action by an employee to hold another liable in damages for securing hia discharge from his employment, evidence is admissible that, although using due dili- gence, he was unable to obtain regular work, and was left without his accustomed means of subsistence, as well as a statement of his earnings from other sources. Lopes v. Con- nolly, 38: 986, 97 N. E. 80, 210 Mass. 487. 1704. Upon the question of wilfulness in removing a telephone for nonpayment of rent, although the subscriber claimed that he had paid it and had a receipt, evidence is- to be considered both that the phone was re- moved notwithstanding this claim, and that he had been in arrears before, and that the collecting agent had informed the company that only part of the amount due had been paid. Carmichael v. Southern Bell Teleg. & Teleph. Co. 39: 651, 72 S. E. 619, 157 N. C. 21. 1705. In an action against a carrier for failure to transport a salesman's baggage with reasonable despatch, by reason of which his business is interrupted, evidence is admissible as to the periods of activity in his business. Webb v. Atlantic Coast Line R. Co. 9: 1218, 56 S. E. 954, 76 S. C. 193. 1706. Where the price of cattle at place of sale is governed by that ruling in a near- by cattle market, less freight, evidence of the price in the latter place is admissible in an action to cover damages for breach of contract to purchase and receive cattle at the former place. Evans v. Moseley, 50: 889, 114 Pac. 374, 84 Kan. 322. Telegraph cases. 1707. In an action against a telegraph com- pany to recover for the negligent nondeliv- ery of a message containing an offer to make a contract with the sendee, it is competent for such sendee to testify that, if the message had been delivered, the offer would have been accepted. Western U. 1198 EVIDENCE, XI. g. Telcg. Co. v. Sights, 42: 419, 12C Pac. 234, 34 Okla. 461. Mental suffering. 1708. Upon the question of the damages to be allowed a son for mental anguish in being deprived of the privilege of attending his mother's deathbed, because of neglect to de- liver a telegram, evidence is not admissible that he is a physician, and that treatments given by him when she had previously had similar attacks had resulted in recovery, or that she was depressed by his failure to oome when expected, which had a tendency to hasten her death. Western U. Teleg. .Co. v. Williams, 19: 409, 112 S. W. 651, 129 Ky. 515. (Annotated) Personal injuries. Admissibility under pleadings, see infra, 2436, 2437. Prejudicial error as to, see APPEAL AND ERBOR, 1108, 1168. See also supra, 1572, 1685. 1709. The expectation of life of one injured by another's negligence may be shown as a basis for the estimation of damages. Illi- nois C. R. Co. v. Houchins, i : 375, 89 S. W. 530, 121 Ky. 526. 1710. In an action by an injured employee for damages, evidence that he was working by the day, or otherwise, is immaterial. II- nois C. R. Co. v. Lowery, 49: 1149, 63 So. 552, 184 Ala. 443. 1711. Evidence of the shortening of the leg Jis admissible upon the question of damages tin an action against a surgeon for negli- .gent failure properly to diagnose a frac- ture of the neck of the femur, where there is sufficient evidence in the case to estab- lish the negligence. Bonnet v. Foote, 28: 136, 107 Pac. 252, 47 Colo. 282. 1712. Evidence that one injured by neg- ligence is sober and industrious is admis- sible upon the question of damages, but not that he was moral. Louisville & N. R. Co. v. Daniel, 3: 1190, 91 S. W. 691, 122 Ky. 256. Earning capacity and effect of in- jury thereon. In case of death, see infra, 1726-1728. 1713. In an action to recover damages for personal injuries, evidence showing the earning capacity of the party injured, the nature and extent of his business, and his inability to pursue such business in his ac- customed way, is admissible as an aid and guide to the jury in exercising their judg- ment iv determining the amount of dam- ages to be awarded. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 1714. In an action for personal injuries to A horse jockey which incapacitated him from following that vocation, evidence as to his experience and ability is admissible to aid the jury in properly estimating the compensatory damages. McClain v. Lewis- ton Interstate Fair & R, Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 1715. While, upon the question of damages to be awarded for a personal Injury, plain- tiff, as proof of his personal incapacity to perform labor, may give evidence that he Digest 1-52 L.R.A.(N.S.) was compelled to empl!oy servants to per- form labor formerly done- by himself, lie cannot ahow the amount which he is com- pelled to pay for such se-rvice, since it would have no bearing upon tlie diminished valfue of his own services. Stynes v. Bos- ton Elevated R, Co. 30: 737,, Ul N. E. 9!)8, 206 Mass, 75. (Annotated) 1716. Upon the question: of damages to be allowed for a personal injury,, evidence is not admissible that, because of the experi- ence of the injured person: in holding a cer tain position in a manufactory, he was qualified to hold a better one, so as to make the wages of the latter the basis for computation, if there is nothing to show probability of receiving the higher position. Marshall v. Dalton Paper Mills, 24: 128, 74 Atl. 108, 82 Vt. 489. 1717. Evidence showing the earning capac- ity of a minor is admissible in an ac- tion for damages for personal injuries as an aid and guide to the jury in determin- ing the amount of damages, to- be awarded for impaired capacity to pursue ordinary vocations after he reaches his- majority, al- though he cannot recover compensation for impaired capacity during minority because he has not alleged and proved that he has been given his liberty and that his parents do not claim, the right to receive such compensation. McClaim v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 1718. Upon the question of damages to be awarded a married woman for negligent in- jury to her person, witnesses may state that before her injury she performed certain household duties, and what she was able or not able to do after the injiury, for the pur- pose of showing the extent of the injury. Colorado Springs & I. R. Co. v. Nichols, 20: 215, 92 Pac. 691, 41 Colo. 272. 1719. Upon the question of damages for personal injuries to a physician, b; which ho was for a time disabled from attending tc his business, he may testify as to the value of the time lost by stating what his actual monthly practice averages, and may state- the actual earnings of the corresponding time of the previous year. Sluder v. St. !xiui Transit Co. 5: 186, 88 S. W. 648, 189 Mo. 107. Mental anguish. 1720. It is competent for the plaintiff in an action against a railroad company for per sonal injuries to testify as to the mental anguish which he suffered while in immi- nent danger of being burned to death in the debris of a wreck; and, in this connec- tion, it is also proper for others to testify that they saw the fire burning close to him. Louisville & N. R. Co. v. Brown, 13: 1135, 106 S. W. 795, 127 Ky. 732. 1721. Upon the question of damages to an insurance solicitor injured through another's negligence, whose compensation depended upon the risks secured by him, evidence is admissible as to his average earnings dur- ing periods corresponding with that dur- ing which he was incapacitated by the ao- EVIDENCE, XI. g. 1199 cident. Gregory v. Slaughter, 8: 1228, 99 S. W. 247, 124 Ky. 345. (Annotated; . Physical suffering. 1722. In an action for damages for person- al injuries, it is competent to ask the plain- tiff to tell the jury how he suffered and the extent of the suffering, as physical suffering is a proper element of damages. McClain v. Lewiston Interstate Fair & R. Asso. 25: 691, 104 Pac. 1015, 17 Idaho, 63. 1723. In an action to recover for the con- scious suffering prior to death of one in- jured by another's negligence, evidence is admissible that he was suffering, and finally died, from an intercurrent disease. Dickin- son v. Boston, i : 664, 75 N. E. 68, 188 Mass. 595. Pecuniary condition. 1724. The father of an infant suing for damages for personal injuries cannot be in- terrogated on behalf of the infant as to his pecuniary ability, although defendant has propounded questions to him upon that sub- ject. Kelly v. Southern Wisconsin R. Co. 44: 487, 140 N. W. 60, 152 Wis. 328. Death. Prejudicial error as to, see APPEAL AND ERROR, 1107. See also supra, 850. 1725. Although evidence of the crippled condition of children at the time of their father's death is admissible in an action for causing his death, on the question of damages, for the purpose of measuring their pecuniary loss, evidence that the children had suffered from various diseases since their father's death, and that the widow lately had not enjoyed such good health as at the time of her husband's death, is in- competent. Simoneau v. Pacific Electric R. Co. 49: 737, 136 Pac. 544, 166 Cal. 264. (Annotated) Possible earnings. 1726. Upon the question of damages to be awarded for wrongful death, the habits, character, physicial condition, earning ca- pacity, and possible duration of life of de- ceased may be considered. Cincinnati, N. O. & T. P. R. Co. v. Lovell, 47: 909, 132 S. W. 569, 141 Ky. 249. 1727. Evidence of the earnings of persons proficient in a trade is not admissible upon the question of damages for negligently killing an apprentice. Central Foundry Co. v. Bennett, i: 1150, 39 So. 574, 144 Ala. 184. (Annotated) 1728. Upon the question of the amount to be allowed parents for the death of a child, under the Federal employers' liability act, evidence may be considered of the means and earning capacity of the son and of the parents, and the extent of contributions which he made to them. McCullough v. Chicago, R. I. & P. R. Co. 47: 23, 142 N. W. 67, 160 Iowa, 524. Interference with business. 1729. Upon the question of damages for wrongfully interfering with another's busi- ness to the extent of suspending it for a definite period, beyond mere temporary dis- turbance, evidence is admissible of the value Digest 1-52 L.R.A.(N.S.) of the business. Sparks v. McCrary, 22: 1224, 47 So. 332, 156 Ala. 382. Libel and slander. Mitigation of damages, see infra, 2013, 2014. 1730. In a civil action to recover damages for the publication of a libelous article, in a state where punitive damages are not re- coverable, neither evidence of defendant's re- fusal to publish a retraction, nor evidence that others who had also published the al- leged libel had published a retraction, is ad- missible for the purpose of enhancing the plaintiff's recovery. Dennison v. Daily Newa Pub. Co. 23 : 362, 118 N. W. 568, 82 Neb. 675. 1731. One suing for damages for the un- authorized publication of his name in con- nection with a patent medicine testimonial may testify that he has been ridiculed and laughed at by his friends and acquaintances on acccount of the publication, to show mor- tification of feelings. Foster-Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. 1732. In an action for damages for the un- authorized publication of one's name in con- nection with a patent medicine testimonial, physicians cannot be allowed to testify that medical men hold persons who give such testimonials in bad repute, where plaintiff is not a physician, and there is no allega- tion of special damage. Foster-Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. 1733. One suing for damages for the pub- lication of his name in connection with a patent medicine testimonial may show that there is a scale of prices paid for such testimonials, the amount being dependent on the office of the person, as tending to show that people might infer that he had sold his signature. Foster-Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. Loss of, or injury to personal prop- erty. 1734. Upon the question of damages for injury to cattle in transportation, evidence is not admissible as to what they sold for after they had been prepared for market upon reaching their destination. Wabash R. Co. v. Campbell, 3: 1092, 76 N. E. 346, 219 111. 313. Loss of, or injury to real property or crops. Opinion evidence, see supra, 1125-1132. Evidence as to value, see supra, 1692- 1702. In eminent domain proceedings, see infra, 1746-1749. Prejudicial error as to, see APPEAL AND ERROR, 1165, 1228. 1735. Evidence of the difference between the value of real property both before and after the flooding thereof by surface water, caused by a street improvement, is inad- missible in an action against a city to re- cover temporary damages therefor. Mc- Henry v. Parkersburg, 29: 860, 66 S. E. 750, 66 W. Va. 533. 1736. Upon the question of damages to par-j ticular property because of the maintenance] 1200 EVIDENCE, XL g. of a nuisance near it, evidence is not admis- sible as to the general decrease of property values in the town. Sherman Gas & Elec- tric Co. v. Belden, 27:237, 123 S. W. 119, 103 Tex. 59. Trees. 1737. Testimony as to the actual mar- ket value of shade trees is not admissible on the question of damages, in an action for their destruction, as the damages are meas- ured by the deterioration in the valup of the land. Cleveland School Dist. v. Great Northern R. Co. 28: 757, 126 N. W. 995, 20 N. D. 124. 1738. In an action based upon the destruc- tion of standing forest timber by fire, evi- dence of the value of the timber itself is admissible, not as defining the measure of damages, which is the diminution in the value of the land, but as being proper to be considered by the jury in applying the true measure and ascertaining the amount of the damages suffered. Reynolds v. Great Northern R. Co. 52: 91, 138 N. W. 30, 119 Minn. 251. Growing crops. Evidence as to value of, see supra, 1702. 1739. Upon the question of injury to a crop by turning surface water upon it early in July, witnesses may state its condition in June and in August, there be- ing no question that the difference in con- dition, if any, was due to the water. Mar- tin v. Schwertley, 40: 160, 136 N. W. 218, 155 Iowa, 347. 1740. Upon the question of measure of damages for failure to furnish water to ir- rigate crops, so that they are lost, evidence is admissible of the value of matured crops of like kind with those planted, in the neigh- borhood where they were growing. Smith v. Hicks, 19: 938, 98 Pac. 138, 14 N. M. 560. 1741. Evidence of the kind of crop the land will ordinarily yield, of the stage of the crop's growth when injured or destroyed, of the average yield per acre of similar land in the neighborhood, the crop of which was cultivated in the same way and was not injured, of the market value of the crop injured, and of the market value of the probable crop without the injury at the time of maturity, of the expense that would have been incurred after the injury in fitting for market the portion of the probable crop the wrongful act prevented from maturing, of the time of the injury, and of the circumstances which conditioned the probability of the maturing of the crop at that time in the absence of the injury, is competent, and may be weighed by the jury to find the damage to a growing crop at the time of its injury. United States Smelting Co. v. Sisam, 37: 976, 191 Fed. 293, 112 C. C. A. 37. 1742. The facts from which the conclusion of an expert as to the value of a growing crop has been arrived at are admissible in an action to recover for the destruction of such crop, in which action he has been al- lowed to testify as to such conclusion, as an aid to the jury in determining the correct- Digest 1-52 L.R.A.(N.S.) ness of the estimate. Chicago, R. I. & P. R. Co. v. Johnson, 27: 879, 107 Pac. 662, 25 Okla. 760. Assault. Mitigation of damages, see infra, 2011, 2012. 1743. Upon the question of exemplary dam- ages for assault in attempting to force an occupant off from land, evidence is admissi- ble that defendant had title to the property, took advice of counsel, and as to his inten- tion in entering upon the land. Walker v. Chanslor, 17: 455, 94 Pac. 606, 153 Cal. 118. Arrest. 1744. Upon the question of damages for causing the arrest and detention of a pas- senger as a witness, evidence is admissible that he was taken to the jail and com- pelled to leave a cash deposit as bail. iS'ew York, P. & N. R. Co. v. Waldron, 39: 502, 82 Atl. 709, 116 Md. 441. 1745. Upon the question of the liability of a railroad company for wrongfully ejecting a party of excursionists from its train, evi- dence is not admissible that they were ar- rested at the place of their ejection for dis- turbing the peace, in the absence of any- thing to connect the railroad company with the arrest. Louisville & N. R. Co. v. Scott, 34: 206, 133 S. W. 800, 141 Ky. 538. Eminent domain proceedings. Evidence as to value of property, see supra, 1694-1696, 1698, 1699. See also infra, 1920. 1746. Rejection of evidence on the subject of insurance rates, in a proceeding to assess damages for the exercise of the right of eminent domain, is not error where the property owner expressly disclaims a right to recover for increased fire risk. Boyne City, G. & A. R. Co. v. Anderson, 8: 306, 109 N. W. 429, 146 Mich. 328. 1747. In the absence of any special circum- stances showing that the price paid for land was abnormal, the fact that a municipality making a purchase of land for park pur- poses, at private sale, had the power of con- demnation of such land, does not render the price paid inadmissible in the trial of an issue before a jury to determine the amount to be paid for other lands similar in character and similarly situated and con- demned for the same purpose. Curley v. Jersey City (N. J. Err. & App.) 43: 985, 85 Atl. 197, 83 N. J. L. 760. (Annotated) 1748. Upon the question of damages to be awarded abutting property owners for the construction by a municipal corporation of a subway under a street for rapid transit purposes, evidence is admissible as to the condition of the property down to the time of the trial, and should not be limited to the opinion of experts as to the probable diminution in value of the property by the act of taking. Re Board of Rapid Transit R. Comrs. 36: 647, 90 N. E. 456, 197 N. Y. 81. 1749.- In determining the damages to pri- vate property caused by the exercise of the right of eminent domain for a right of way for railroad purposes, testimony showing the excavations, embankments, and obstruc- tions to the natural flow of surface water EVIDENCE, XI. h. 1201 necessarily caused by the construction of the road is properly admitted for the pur- pose of showing in what way and to what extent the remaining portion of the uncon- demned tract has been damaged by reason of the construction of the road. Arkansas Valley & W. R. Co. v. Witt, 13: 237, 91 Pac. 897, 19 Okla. 262. (Annotated) Mental suffering. From failure to deliver telegram, see supra, 1708. In case of personal injuries, see supra, 1720, 1721. See also infra, 1806. 1750. Evidence of mental anguish is admis- sible upon the question of damages in an action to recover for the wrongful search of the dwelling of a widow against her con- sent in the night, when she was alone in the house, for the avowed purpose of connecting her son with a burglary. Shall v. Min- neapolis, St. P. & S. Ste. M. R. Co. 50: 1151, 145 N. W. 649, 156 Wis. 195. ( Annotated ) Pecuniary condition. 1751. Evidence relating to the financial credit and standing of a customer of a bank is admissible against him in a suit brought by him against the bank to recover dam- ages for the wrongful dishonor of his check, although special damages are not claimed by him. Hilton v. Jesup Bkg. Co. n: 224, 57 S. E. 78, 128 Ga. 30. (Annotated) Loss of profits. 1752. Evidence of sales made subsequently to breach and during the pendency of the contract term, although made by the prin- cipal, through other agents than the plain- tins, are admissible in evidence, and, under proper direction by the court, may be weighed by the jury in estimating prevented gains. Emerson v. Pacific Coast & N. Pack- ing Co. i: 445, 104 N. W. 573, 96 Minn. 1. 1753. Upon the trial of a suit by a lower against an upper riparian owner for un- reasonable diminution and detention of the water in a stream, where the damages claimed are loss of profits in operating a grist and flour mill from a specified time, testimony offered by a witness for plaintiff, "that he had heard people say that they had quit carrying their grinding to plain- tiff's mill because they could not get it ground on account of low water," is inad- missible where it does not appear that such statements were made subsequent to such specified time. Price v. High Shoals Mfg. Co. 22: 684, 64 S. E. 87, 132 Ga. 246. Exemplary damages. Mitigation of damages, see infra, 2009. 1754. Evidence as to the value of defend- ant's property is admissible in an action for alienation of affections, if exemplary dam- ages are claimed. Miller v. Pearce, 43: 332, 85 Atl. 620, 86 Vt. 322. 1755. Upon the question of exemplary dam- ages in an action against police officers for excluding an acceptable guest from a dance, evidence is admissible that they were acting under orders of a superior officer, but it cannot be considered on the question of Digest 1-52 L.R.A.(N.S.) actual damages. Cullen v. Dickenson, 50: 987, 144 N. W. 656, 33 S. D. 27. h. Care; skill; negligence. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof, see su- pra, II. h. Opinion evidence as to, see supra, VII. j. Admissibility of declarations as to accident or injury, see supra, 1370-1373, 1411- 1425. Custom or habit as to, see supra, 1527- 1541. Character or reputation as to carelessness, see supra, 1555, 1577-1580. Evidence as to notice or knowledge, see su- pra, 1585-1591. Similar acts or facts in negligence case, see infra, XI. k. Evidence as to precautions ta,ken at other times, see infra, 1808. Precautions after accident, see infra, 1820 1823. Relevancy and materiality under particu- lar pleadings, see infra, 2436-2446. Sufficiency of evidence, see infra, XII. d. Prejudicial error in admission or exclusion of evidence, see APPEAL AND ERROR, VII. m, 3. 1756. In an action for damages for failure promptly to deliver a telegram, the ad- in his house and that there was also one in the office of the telegraph company. West- ern U. Teleg. Co. v. Hill, 23: 648, 50 So. 248, 163 Ala. 18. 1757. Evidence that one who received the cash on checks payable to another by wrong- fully indorsing them has not been located since is admissible upon the question of the owner's laches in making demand for the proceeds upon the one who cashed them. Blum v. Whipple, 13: 211, 80 N. E. 501, 194 Mass. 253. 1758. In an action upon an indemnity bond to hold the indemnitor liable for loss to an express company through robbery of its messenger, evidence is admissible of a rule requiring him to keep the doors of his car chained as tending to show what were the duties of the position, where the bond undertakes to indemnify the employer for loss sustained by the culpable negli- gence of the messenger in conducting the duties pertaining to hia position, although the term is defined by the bond to mean failure to exercise the degree of care which men of ordinary prudence usually exercise in regard to their own affairs. Great Northern Express Co. v. National Surety Co. 31: 775, 129 N. W. 127, 113 Minn. 162. 1759. Evidence as to the conditions outside a warehouse is admissible in an action to recover for the loss by fire originating from without, of goods stored therein, where it is averred that defendant had failed to exer- cise the care which the law requires of a bailee for hire, as it is the duty of a ware- 76 1202 EVIDENCE, XI. h. *. houseman to exercise due care that goods intrusted to him for storage shall not be exposed to unusual hazards from without the building in which they are stored. Locke v. Wiley, 24: 1117, 105 Pac. 11, 81 Kan. 143. 1760. In support of exceptions to the re- port of a trustee in bankruptcy, evidence is admissible as to property belonging to the bankrupt which the trustee fails to reduce to his possession. Re Reinboth, 16: 341, 157 Fed. 672, 85 C. C. A. 340. Negligence causing personr.l injury generally. 1761. Testimony that the plaintiff may have been negligent in a previous isolated instance is irrelevant, when one of the dis- puted issues is as to the observance of prop- er care on his part. Pullman Co. v. Schaff- ner, 9: 407, 55 S. E. 933, 126 Ga. 609. 1762. Evidence that in conspicuous places in a baseball park grand stand the man- agement posted signs in large letters, stat- ing that it would not be responsible for injuries received from thrown or batted balls, is admissible as tending to prove a precaution taken to warn spectators of the peril incident to watching the game. Wells v. Minneapolis Baseball & A. Asso. 46:606, 142 N. W. 706, 122 Minn. 327. 1763. Whether or not evidence that the owner of a lumber pile promised to weight the top boards, to prevent their being blown against a neighboring building, is material in an action to hold him liable tor injury caused by boards so blown, depends upon what a careful and prudent man would do under the circumstances. Bishop v. Readsboro Chair Mfg. Co. 36: 1171, 81 Atl. 454, 85 Vt. 141. 1764. It is competent, upon the question of negligence in the manner of fastening to the ceiling a hook from which an arc light was suspended, to ask a carpenter who has worked at his trade for eighteen years as to where hooks are usually screwed in at- taching them to a ceiling, the purpose of the question being to show that the hook should have been screwed through a joist, instead of merely through a ceiling board at a place between joists. Fish v. Waverly Electric Light & P. Co. 13: 226, 82 N. E. 150, 189 N. Y. 336. 1765. In an action to hold a gas company liable for destruction of a house because of an escape of gas from a cap placed on a pipe by it, evidence is admissible as to whether or not one who approached the pipe to connect it with a stove was drunk, whether or not he had been drinking during the day, and his condition a short time after the accident. Louisville Gas Co. v. Guelat, 42: 703, 150 S. W. 656, 150 Ky. 583. 1766. Upon the question of the negligence of one who has contracted to place the su- perstructure of a bridge upon concrete piers to be erected by another, in starting his work before the piers had hardened sufficient- ly to be safe, evidence is admissible to the tffect that the piers were properly construct- ed, but were not allowed to become suffi- ciently hard, and as to the time which should be allowed for such piers to harden, Digest 1-52 L.R.A.(N.S.) and the danger of attempting to place heavy weights upon such piers before they are sufficiently hard. Pennsylvania Steel Co. v. Nace, 45: 281, 77 Atl. 1121. 113 Md. 460. 1767. Upon the question of the safety of chimneys left standing during the demoli- tion of a building, evidence is immaterial that a person, in passing the building, walked on the opposite side of the street because he was afraid the chimney would tall. Wilmot v. McPadden, 19: noi, 65 Atl. 157, 79 Conn. 367. 1768. Upon the question of negligence in leaving in a street a team unattended, but hitched to a ground weight, a municipal ordinance prescribing the care to be use;l in such cases, and the weight of the blocks to which they must be fastened, is admissible in evidence. Caughlin v. Campbell-Sell Bak- ing Co. 8: 1001, 89 Pac. 53. 39 Colo. 148. 1769. Evidence as to the traffic which might reasonably be expected to be on the highway is admissible upon the hearing of an appeal to the quarter sessions from a conviction before justices of driving a motor car on a certain public highway "at a speed which was dangerous to the public having regard to all the circumstances of the case." Elwes v. Hopkins, 2 B. R. C. 198, [1906] 2 K. B. 1. Also Reported in 75 L. J. K. B. N. S. 450, 70 J. P. 262, 94 L. T. N. S. 547, 4 L. G. R. 615, 21 Cox, C. C. 133. (Annotated) 1770. A municipal ordinance forbidding any person to permit water from his eaves to be discharged upon the sidewalk, or to per- mit any conduit upon his land to discharge water upon the sidewalk, is not immaterial upon the question of the negligence of the property owner who cast water from his own roof upon his own walk in such a man- ner that it flowed naturally upon the side- walk. Field v. Gowdy, 19: 236, 85 N. E. 884, 199 Mass. 568. 1771. In an action against the owner of a steer for injuries done by it to a traveler on a highway, evidence is admissible that the steer was of a class which are generally wild and vicious, and when alone, or dis- turbed and warm, are dangerous, and that after the injury it attacked other persons. Harris v. Carstens Packing Co. 6: 1164, 86 Pac. 1125, 43 Wash. 647. 1772. In an action for damages caused by frightening horses on a public bridge by the blast of a municipal waterworks whistle, a petition of a trade and labor assembly that the whistle be blown at 5 P. M. each day, and the action of the city council in grant- ing such petition, are not rendered inadmis- sible in evidence by reason of the fact that the water commissioner, who had directed the blowing of the whistle in accordance with the ordinance, had gone out of office be- fore the accident, the power to regulate thereafter being vested in a board of muni- cipal works, where such board never revoked the order, since in such case the acts of the council are material upon the question as to whether or not the city exercised ordinary care in the use of the whistle. Winona v. ' EVIDENCE, XI. h. 1203 Botzet, 23: 204, 169 Fed. 321, 94 C. C. A. 563. Manufacturers. Sufficiency of evidence, see infra, 2116, 2117, 2119-2142. 1773. Upon the question of the negligence of a manufacturer of a stovepipe enamel in selling it without warning of its danger- ous character, witnesses should not be per- mitted to compare it with other mixtures, and what warnings were given by other manufacturers, if the constituents of the various mixtures or their manner of use is not shown to be the same. Wolcho v. A. J. Rosenbluth & Co. 21:571, 71 Atl. 566, 81 Conn. 358. Parents. 1774. Upon the question of the measure of restraint which a parent should have exer- cised over an adult son mentally incom- petent, to prevent his inflicting injury upon another with a deadly weapon, evi- dence is not admissible as to how people generally regarded his mental condition. Whitesides v. Wheeler, 50: 1104, 164 S. W. 335, 158 Ky. 121. Employers. Negligence of employee, see infra, 1798- 1800. See also supra, 1766. 1775. Evidence of specific acts of negli- gence known to the master, and of acts of negligence like those which cause the death of passengers, so notorious that the master must have known of them if he had exer- cised reasonable diligence, is admissible to prove the habit or character for incompe- tence of a servant who is employed with due care. Southern P. Co. v. Hetzer, i: 288, 135 Fed. 272, 68 C. C. A. 26. 1776. Evidence in an action for negligence in failing to safeguard a saw, that a smaller and safer saw could have been used, is im- material where no issue in the case involves that question. Barclay v. Puget Sound Lumber Co. 16: 140, 93 Pac. 430, 48 Wash. 241. 1777. Evidence is not admissible that a particular kind of guard should have been used on exposed gearing about which em- ployees were required to work, in an action to hold the master liable for injury to a servant through the defective character of the guard which was furnished. West v. Bayfield Mill Co. 45: 134, 128 N. W. 992, 144 Wis. 106. 1778. Evidence that it was practicable and feasible to have so guarded an engine lo- cated in a small engine house, and used to operate an elevator, as to have protected a servant who was injured by falling on an unguarded belt and pulley connected there- with, is admissible, where a statute re- quires that dangerous machinery in any factory, mill, or shop be guarded, if practi- cable. Rase v. Minneapolis, St. P. & S. Ste M. R. Co. 21 : 138, 120 N. W. 360, 107 Minn. 260. 1779. Evidence of absence of ladders and bulkheads at places where they should have been in a mine is admissible, in an action against the mine owner for the death of an Digest 1-52 L.R.A.(N.S.) employee drowned by the flooding of a mine through an adjoining one, as tending to show that, if the defendant knew of the danger from the water, he failed to use rea- sonable precautions for the safety of his employees. Williams v. Sleepy Hollow Min. Co. 7: 1170, 86 Pac. 337, 37 Colo. 62. 1780. Evidence of lack of ladders and bulk- heads where they should have been in a mine in ;Qich an employee was drowned by an inrush of water cannot be excluded in an action for his death merely because he knew of their absence, unless he had knowledge of the danger arising from the presence of the water in an adjoining mine in connection with the absence of such appliances. Wil- liams v. Sleepy Hollow Min. Co. 7: 1170, 86 Pac. 337, 37 Colo. 62. 1781. In an action by a minor son to re- cover damages for permanent personal in- juries sustained while working in a coal mine, because of the alleged negligence of defendant in employing him without proper warning and instruction, to perform a duty the dangers of which he was incapable of comprehending, evidence that work on the outside of the mine on which the father was willing that his son should be employed was more hazardous than that which the son was performing at the time of his injury is not admissible as tending to prove either the capacity of the plaintiff to perform the inside work or the extent of the dangers of such work, at least where it does not appeal- that the father knew that the outside work was more dangerous. Ewing v. Lanark Fuel Co. 29: 487, 65 S. E. 200, 65 W. Va. 726. 1782. In an action against a railroad com- pany for injuries to an employee in attempt- ing to break a lump of coal containing rock and slate, evidence is not admissible of com- plaint to the authorities that the coal fur- nished was bad for making steam, without anything to show that it was unsafe or dan- gerous to handle. Vissman v. Southern R. Co. 2: 469, 89 S. W. 502, 28 Ky. L. Rep. 429. (Annotated ) Carriers. Presumption and burden of proof as to, see supra, II. h, 1, b. Evidence of custom or habit, see supra, 1535. Negligence of passenger, see infra, 1795. Evidence of subsequent precaution, see in- fra, 1804. Sufficiency of evidence, see infra, 2145- 2154. See also supra, 791, 1583; infra, 1848. 1783. In an action for damages accruing from delay in transportation, the time ordi- narily required for carriage between two points, the preparations made by the car- rier, the effort at despatch, the character of the freight, and kindred circumstances, are proper matters of inquiry. Alabama G. S. R. Co. v. McKenzie, 45:18, 77 S. E. 647, 139 Ga. 410. 1784. Upon the question of negligence of a railroad company in failing to furnish cars according to a particular requisition, another and distinct requisition, made at 1204 EVIDENCE, XI. h. another time, is not admissible in evidence. Di Giorgio Importing & S. S. Co. v. Penn- sylvania R. Co. 8: 108, 05 Atl. 425, 104 Md. 693. 1785. Evidence of mistakes of government inspectors as to the presence of fever ticks on cattle a year after injury occurred to a particular lot by that means is not admis- sible in evidence upon the question as to whether or not such cattle were infected by the negligence of the carrier having them in custody for transportation. Bal- timore & O. R. Co. v. Dever, 26: 712, 75 Atl. 352, 112 Md. 296. Injuries to passengers. 1786. The rules of a carrier which were not known to and relied upon by the pas- senger are not admissible in evidence in an action against it for injury to him, where they require of the employees a greater duty than the law imposes upon it. Chi- cago, B. & Q. R. Co. v. Lampman, 25: 217, 104 Pac. 533, 18 Wyo. 106. 1787. Evidence of care customary among well-constructed and operated roads of the same class is admissible to show diligence, in an action brought by a passenger injured while riding in a freight train of a log- ging road. Campbell v. Duluth & N. E. R. Co. 22: 190, 120 N. W. 375, 107 Minn. 358. 1788. Upon the question of the negligence of a conductor in permitting a passenger to go on to the step of a platform on which he was standing, but from which he was con- tinuously looking ahead, at a time when he knew that a fast train was to pass from the opposite direction, evidence is admis- sible of a rule forbidding passengers to go upon the platform while the car was in mo- tion. Renaud v. New York, N. H. & H. R. Co. 38: 689, 9Z N. E. 98, 210 Mass. 553. Street railways. Evidence as negligent habits of person in- jured, see supra, 1536. Negligence of person killed, see infra, 1796. Sufficiency of evidence, see infra, 2164-2166. 1789. In an action for injury to the driver of a fire wagon by collision with a street car as he leaves the engine house, evidence that the fire captain had complained to the street railway company about the manner in which the street cars were run by the engine house, and that the street railway officials told him the motormen were instructed to keep the cars under control when passing the house, for the reason that a hose wagon or other apparatus might come out on the track, is admissible as emphasizing the fact that an employee at the engine house who signaled the street car just before the wagon left the house was authorized to as- sume that the car was under control, and would therefore be stopped in time to avoid collision with the outcoming wagon. Dole v. New Orleans R. & L. Co. 19: 623, 46 So. 929, 121 La. 945. At railroad crossing. Presumption and burden of proof, see, su- pra, 393-395. See also supra, 1587. Digest 1-52 L.R.A.(N.S.) Railroad cases. Presumption and burden of proof, see supra, II. h, 1, c. Negligence towards railroad employee, see supra, 1782. Sufficiency of evidence, see infra, 2155-2163. See also supra, 1664. 1790. Upon the question of negligence of those in charge of a train which has- knocked down a person using the tracks ac-~ cording to custom as a thoroughfare, and who was himself negligent, which will ren- der the company liable for his death, evi- dence is admissible that the engine which killed him could have been stopped before it reached him, after he was helpless be- tween the tracks. Teakle v. San Pedro, L. A. & S. L. R. Co. 10: 486, 90 Pac. 402, 32 Utah, 276. As to electricity. 1791.. Upon the question of liability of an electric company for the death of a fire- man by live wires which fell from a burn- ing building, evidence is admissible of a report by the city electrician to the board of trustees and adopted by them, of an ar- rangement with the electric company by which it was to cut off power from any dis- trict upon notification from him or the fire chief, and that no request for disconnection was made with respect to the lines serving the district in which the fire was located, prior to the death of the fireman. Penne- baker v. San Joaquin Light & Power Co. 31: 1099, H2 Pac. 459, 158 Cal. 579. 1792. In an action against an electric light company for injuries caused by a grounded current evidence is not admissible that ap- pliances existed which would enable it to cut out the grounded portion and turn the curre'nt into the remainder of the circuit, since it is not bound to adopt any particu- lar appliance, but is required to have the appliances which it does adopt reasonably safe. Harrison v. Kansas City Electric Light Co. 7: 293, 93 S. W. 951, 195 llo. 606. Physicians. 1793. Evidence of the result of an exami- nation of a hip, made five years after de- fendant was called upon to treat it, is ad- missible in an action against him for mal- practice in failing to discover that it was fractured, in corroboration of evidence that its condition immediately after the injury tended to show a fracture. Bonnet v. Foote,. 28: 136, 107 Pac. 252, 47 Colo. 282. Contributory negligence. Evidence of custom or habit, see supra, 1531,. 1536-1541. Sufficiency of evidence, see infra, 2170-2179. 1794. Upon the issue whether at a par- ticular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively estab- lishing negligence on his part, but as being a circumstance to be considered in de- termining the matter. Mclntosh v. Stand- ard Oil Co. 47: 730, 131 Pac. 151, 89 Kan. 289. (Annotated) 1795. In an action for injury to a street car passenger thrown from the car while- EVIDENCE, XI. i.. 1205 holding with both hands to the hand holds, evidence is not admissible that prior to the time of accident he had swung outside the car and tapped on the window. South Cov- ington & C. Street R. Co. v. Hardy, 44: 32, 153 S. W. 474, 152 Ky. 374. 1796. In an action against a street railway company for striking and killing a pedes- trian at a crossing at night, evidence as to the quality, strength, and effect of head- lights of strength and brilliancy equal to that on the car which occasioned the acci- dent on cars operating on the same line over the crossing, making it difficult to judge the position of the approaching car, is admissible to show the conditions pre- vailing at the time the person killed at- tempted to cross the track, as bearing on the question of his alleged contributory negligence. Simoneau v. Pacific Electric R. 'Co. 49: 737, 136 Pac. 544, 166 Cal. 264. 1797. Although the fact that an electric light located near the place where an acci- dent occurred on a public street, was not burning at the time of the accident, is not evidence of negligence on the part of the municipality, it may be considered by the jury as tending to show why the injured person did not avoid the obstruction. Campbell v. Chillicothe, 39: 451, 144 S. W. 408, 239 Mo. 455. Of employee. 1798. In an action to hold an employer liable for injury to a machine operator in reaching under the machine to recover a dropped shuttle, evidence is admissible of the forewoman's instructions to her that anything lost must be hunted for, and if not found, must be paid for. Balzer v. Waring, 48: 834, 95 N. E. 257, 176 Ind. 585. 1799. In an action brought by an employee injured while unloading steel rails from a ear, an offer on the part of defendant to show that its foreman frequently instructed some of the men, or the gang in general, to stay from under the lever and rails, and, further, that he was giving such instruc- tion all along during the time the plaintiff was at work, is properly rejected, in the absence of any showing that this was done in the presence or hearing of the plaintiff. Illinois C. R. Co. v. Lowery, 49: 1149, 63 So. 952, 184 Ala. 443. 1800. Upon the question of the negligence of a driver in a mine, seeking to hold his employer liable for personal injuries due to his coming in contact with the roof of the tunnel, evidence is competent that it was proper and customary for him to ride upon the drawbar at the rear of the car, where hte was when he was injured, rather than upon the tail chain at the mule's heels. Duffey v. Consolidated Block Coal Co. 30: 1067, 124 N. W. 609, 147 Iowa, 225. i. Suggestive facts; facts supporting inferences. (See also same heading in Digest L.R.A. 1-10.) 'Offer of compromise as confidential com- munication, see supra, 1319, 1320. Digest 1-52 L.R.A.(N.S.) Prejudicial error as to, see APPEAL AND ER- ROR, 1245. 1801. In determining whether an inter- lineation in a deed was made before or after execution, the jury may consider any difference in ink and writing, and also the fact that it was withheld from registration. Wicker v. Jones, 40: 69, 74 S. E. 801, 159 N. C. 102. 1802. Upon the question of usury because of a bonus taken by the lender's agent, who claims that the bonus was for services per- formed by him for the borrower, evidence of the performance of such services is ad- missible. Brown v. Johnson, 46:1157, 134 Pac. 590, 43 Utah, 1. 1803. The fact that plaintiff, an adjoining landowner, had not notified defendant, the owner of an irrigation ditch, of a claim for damages for casting water upon his prop- erty, is admissible in evidence upon a dis- puted question as to the existence of plain- tiff's consent thereto. Howell v. Big Horn Basin Colonization Co. i : 596, 81 Pac. 785, 14 Wyo. 14. 1804. In an action to hold a street rail- way company liable for injury to a pas- senger by his becoming entangled in a trolley rope negligently left lying on the floor of the car, evidence is not admissible that no similar accident had ever been re- ported to it, as tending to show care in the maintenance of the appliance. Denver City Tramway Co. v. Hills, 36: 213, 116 Pac. 125, 50 Colo. 328. 1805. A conviction in a criminal prosecu- tion for using profane and vulgar language in the presence of females while upon a rail- road train is inadmissible in evidence in an action against the carrier by the person con- victed for wrongfully and forcibly expelling him from the train. Seaboard Air Line R. Co. v. O'Quin, 2: 472, 52 S. E. 427, 124 Ga. 357. 1806. Upon the question of the liability of a railroad company in damages to the widow of one killed upon its track, for fail- ure to gather up the remains, evidence is not admissible that the section master mani- fested impatience at the prospect of spend- ing the night in guarding the body awaiting the arrival of the coroner. Kyles v. South- ern R. Co. 16: 405, 61 S. E. 278, 147 N. C. 394. 1807. Upon the question whether or not a rule of a railroad company requiring the stopping of trains when signal lights were out had been abrogated, evidence is ad- missible as to the train's schedules, the num- ber of lights usually out, the time which would be required to comply with the rule, and whether or not the rule could be com- plied with and the schedules met. Haynes v. North Carolina R. Co. 9: 972, 55 S. E. 516, 143 N. C. 154. 1808. In an action for injuries alleged to have been caused by blasting, evidence is not admissible as to measures taken to pro- tect the persons of members of the family of the injured person at times other than that at which the injury was done. Besse- 1206 EVIDENCE, XI. i. mer Coal, Iron, & Land Co. v. Doak, 12: 389, 44 So. 627, 152 Ala. 166. 1809. In a suit to hold one liable for the value of sheep killed by a dog owned by his daughter who lives with him, in which he denies that the dog did the killing, evi- dence is not admissible that, without his knowledge, his daughter killed the dog soon after the transaction upon which the suit is based, especially where it appears that she did so because she thought there was danger of trouble between her father and plaint! 11'. Holmes v. Murray, 17: 431, 105 S. W. 1085, 207 Mo. 413. 1810. Evidence of the state of health of an insured person for a considerable period of time prior to his death, where it is claimed he died by suicide, is proper as bearing on whether the deceased came to his death as the result of a suicidal intent. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 1811. Where, in defense to an action on an insurance policy, the company claims that the insured burned the property, and in- troduces evidence of suspicious circum- stances, evidence is admissible on his be- half that witnesses overheard a telephone conversation which he had with the sheriff, in which he asked for an investigation of the burning of the property. O'Toole v. Ohio German F. Ins. Co. 24: 802, 123 N. W. 795, 159 Mich. 187. 1812. Evidence of advancements is admis- ble in a will contest, where it tends to show an unnatural will. Meier v. Buchter, 6: 202, 94 S. W. 883, 197 Mo. 68. 1813. Evidence of seduction is not admis- sible to show either a contract of marriage or its breach. Wrynn v. Downey, 4: 615, 63 Atl. 401, 27 R. I. 454. 1814. Upon trial of an action for libel in charging plaintiff with larceny, evidence that plaintiff had been indicted for misde- meanor at other times is not admissible where none of the indictments charged theft. Register Newspaper Co. v. Stone, ii : 240, 102 S. W. 800, 31 Ky. L. Rep. 458. 1815. Evidence that, several months after the injury to one riding on a freight train, the railroad company issued to him a pass describing him as an injured employee, is not admissible as tending to show ratifica- tion of the conductor's act in permitting him to ride in consideration of services to be rendered in handling freight. Vassor v. Atlantic Coast Line R. Co. 7: 950, 54 S. E. 849, 142 N. C. 68. 1816. One resisting payment of a note on the ground of fraud may be asked if, when h suspected fraud, he took any steps to recover possession of the note, as bearing upon the consistency of his conduct with his statement that he suspected fraud. Lilly v. Hamilton Bank, 29: 558, 178 Fed. 53, 102 C. C. A. 1. 1817. Upon the question of the liability of a railroad company for malpractice of & physician employed with funds deducted from employees' wages, testimony of the one having charge of the disbursement of the funds, to the effect that they were all Digest 1-52 L,R.A.(N.S.) expended in the service of the hospital, and that the railroad company realized no gain or profit therefrom, is competent. Arkan- sas M. R. Co. v. Pearson, 34: 317, 135 S. W. 917, 98 Ark. 399. As to husband and wife. See also supra, 1276. 1818. In an action against a woman for alienating the affections of the husband of another woman from her, evidence is admis- sible that he was the active and aggressive party. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. (Annotated) 1819. The subsequent conduct of the par- ties to an alleged marriage contract is re- ceivable in evidence on the issue as to whether it was a consensual or a ceremo- nial marriage. Drawdy v. Hesters, 15: 190, 60 S. E. 451, 130 Ga. 161. Precautions after accident. See also supra, 1809; infra, 2024. 1820. Evidence that, after the breaking of a pane of glass causing an injury, new beading or strips to hold the pane in place were placed in the sash, is not admissible to prove negligence on the part of the owner in the maintenance of the window. Stewart & Co. v. Harman, 20: 228, 70 Atl. 333, 108 Md. 446. 1821. Evidence that an obstruction on a sidewalk was removed after a person had tripped upon it and had been injured, if admissible for other purposes, cannot be considered on the question of negligence. Diamond Rubber Co. v. Harryman, 15: 775, 92 Pac. 922, 41 Colo. 415. 1822. Evidence of change of machinery af- ter an accident is admissible in evidence in an action to hold an employer liable for an injury, for the purpose of showing the practicability of safeguarding it in the man- ner adopted. Kanz v. J. Neils Lumber Co. 36: 269, 131 N. W. 643, 114 Minn. 466. 1823. Testimony on behalf of an infant as to the condition of a machine immediately after an accident to him for which the ac- tion was brought does not admit evidence of additional safeguards after the acci- dent. Worthy v. Jonesville Oil Mill, n: 690, 57 S. E. 634, 77 S. C. 69. Criminal cases. Admitting proof of former conviction before identifying person convicted with ac- cused, see APPEAL AND EBBOR, 655. 1824. The fact that one accused of crime failed to take the stand in other proceed- ings, to deny accusations against him by witnesses therein, is not admissible in evi- dence against him upon his trial. Parrott v. State, 35: 1073, 139 S. W. 1056, 125 Tenn. 1. 1825. In a prosecution for keeping into^i- cating liquor with intent to sell the same without authority, evidence is admissible of a seizure of a large quantity of "beer" in the possession of accused, together with quantities of whisky and porter, as tending to show the keeping of a stock of liquors with intent to sell them. State v. Barr, 48: 302, 77 Atl. 914, 84 Vt. 38. (Annotated) 1826. Upon the question of keeping intoxi- cating liquors with intent to sell them with- EVIDENCE, XI. j. 12C7 cut authority, evidence is admissible that a truckman from time to time carted away from Hie premises of accused, barrels sim- ilar to those seized at the time of search- ing the premises, with such liquors in them. State v. Barr, 48: 302, 77 Atl. 914, 84 Vt. 38. 1827. Evidence that witnesses became in- toxicated by drinking a beverage of the same name as that lor the sale of which one is being tried is not admissible against him, if there is nothing to show that the constituents of the beverage sold and that which intoxicated are the same. Gourley v. Com. 48: 315, 131 S. W. 34, 140 Ky. 221. 1828. Evidence of pregnancy is properly ad- mitted in a prosecution for statutory rape. State v. Kelly, 43: 476, 150 S. W. 1057, 245 Mo. 489. 1829. Upon trial of one for murder, evi- dence is admissible that, just prior to the killing, he tried to show an important wit- ness that it would be for her interest to say nothing against him. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. 1830. Upon trial of one for homicide in killing the husband of a woman with whom he was found in company after dark, under a tree, at which place the homicide oc- curred, beer bottles found there at the time are admissible in evidence. State v. Lar- kin, 46:13, 157 S. W. 600, 250 Mo. 218. 1831. In a trial for murder, a justice of the peace may properly testify that before the homicide the accused asked him if the woman subsequently killed had called upon him to consult upon the conduct of the ac- cused toward her, as tending to show trou- ble or hostile feeling between the parties. State v. Dickerson, 13: 341, 82 N. E. 969, 77 Ohio St. 34. 1832. Upon trial of one for murder of a boarder at a hotel, evidence is admissible of a proposition by accused to kill its keep- er by means similar to those used in case of decedent, for the purpose of getting con- trol of the place, when it also appears that accused thought decedent stood in the way of the accomplishment of his purpose. Com. v. Snell, 3: 1019, 75 N. E. 75, 189 Mass. 12. 1833. Upon a trial for murder, evidence is admissible of the finding of a ring which belonged to deceased, several weeks after the commission of the crime, in a piece of tin foil which was found in a sack of po- tatoes belonging to accused shortly after the crime was committed, but which was not examined until the time of the finding of the ring. State v. Barnes, 7: 181, 85 Pac. 998, 47 Or. 592. 1834. Testimony of a druggist that one accused of homicide by poison had re- quested that a prescription for ergot and other drugs presented by and filled for him should be kept from the prescription files kept in the drug store, is admissible with the prescription, in connection with evi- dence that a preparation the smell of which was the same as a preparation prepared during the trial, consisting of the drugs called for in the prescription had been ad- ministered to the deceased in the two days Digest 1-52 L.R.A.(N.S.) preceding her death. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. 1835. Upon a trial for murder, it is not error to admit in evidence the name and address on a card found in the pocket of accused, in connection with a slip of paper found near the dead body, containing a name and address which are alleged to have been written shortly after the crime was committed, and which are similar to that on the card, as tending to connect accused, through an association of ideas, with the writing on the paper. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. Flight or refusal to flee. 1830. Forfeiting the bond and fleeing from the county after arrest for seduction may be considered, in corroboration of the testi- mony of the victim, to support a conviction. Thorp v. State, 29: 421, 129 S. W. 607, 59 Tex. Crim. Rep. 517. 1837. Evidence that one on trial for crime refused to embrace an opportunity to escape from prison is not admissible in his favor, although the state has proved his night im- mediately after the crime was committed, where the two occurrences are entirely dis- tinct and independent. Bailey v. State, 20: 409, 48 So. 227, 94 Miss. 863. (Annotated) Change in financial condition. 1838. On the trial of one charged with forgery, it is competent for the state to prove tkat for some time immediately pre- ceding the date when the check alleged to have been forged was cashed the defend- ant was without means and in need of money, and that immediately thereafter he was seen with a considerable sum of mon y, and presented a $10 bill to a witness in pay- ment of a debt. Walker v. State, 8: 1175, 56 S. E. 113, 127 Ga. 48. 1839. For the purpose of connecting one accused of murder with money taken from the possession of the victim, evidence is ad- missible that, before the crime, accused was short of money, pawning his belongings, and that, after the crime, he had money, as well as his statements as to his lack of money, his losses, and his financial transac- tions before and after the crime ; and the fact that it has not been shown as yet that money had been taken from the possession of the victim is immaterial. Com. v. Tuck- er, 7: 1056, 76 N. E. 127, 189 Mass. 457. j. Circumstances. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of circumstantial evidence, see infra, 2206, 2348-2351. 1840. Upon the question of usury in a loan, evidence of the agent of the borrower, who secured the loan, as to the transactions attending it, is admissible. Brown v. John- son, 46:1157, 134 Pac. 590, 43 Utah, 1. 1841. Circumstantial evidence is admissible upon the question whether or not fire set out by a railroad company caused the loss 1208 EVIDENCE, XI. k. of property burned when some distance away from the origin of the fire, when numerous fires were running through the section of the state where the property was located and the dryness of vegetation facil- itated the spread of fire. Miller v. North- ern P. R. Co. 48: 700, 135 Pac. 845, 24 Idaho, 567. 1842. In determining whether a license fee of $200 per annum for a permanent mov- ing picture show is unreasonable, evidence may properly be received as to the char- acter and number of the inhabitants of the village, its situation, the general character of exhibitions of the kind in question in similar villages, the crowds attracted, and the need of police surveillance; but it is error to receive evidence of the kind of exhibitions carried on by one such show and to consider the good quality thereof as con- trolling on the question of the reasonable- ness of this, a general ordinance, fixing a license fee for all who might conduct mov- ing picture shows in the village. Higgins v. Lacroix, 41:737, 137 N. W. 417, 1-19 Minn. 145. Criminal cases. 1843. Evidence of circumstances tending to connect the accused with the commission of the alleged crime, even though inconclusive, is properly admitted. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. ] 844. The attempt of one awaiting trial to escape from jail is a circumstance which may be considered on the question of his guilt. State v. Barnes, 7: 181, 85 Pac. 998, 47 Or. 592. k. Similar acts or facts. (See also same heading in Digest L.R.A. 1-10.) Intercourse with others, of prosecutrix for rape, see APPEAL AND ERROR, 1267. 1845. Upon an issue of the right to a di- vorce for a specified act of adultery, evi- dence is immaterial as to other acts of a similar nature. People v. Teal, 25: 120, 89 N. E. 1086, 196 N. Y. 372. 1846. For the purpose of showing discrim- inating freight rates for a haul of a certain distance, it is not necessary to confine the evidence to shipments to the same terminal. Hilton Lumber Co. v. Atlantic Coast Line R. Co. 6: 225, 53 S. E. 823, 141 N. C. 171. 1847. Upon the question of liability of a property owner for lumber used by his ten- ant in making improvements on the prop- erty, evidence is admissible that the tenant purchased lumber for such improvements from other dealers on his own account. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 1848. Evidence of observations as to the washing of decks in respect to leaving them in a slippery condition, which one injured by falling upon a steamer deck had made on other voyages, is not admissible upon the question of negligence in respect to the one on which she fell. Pratt v. North German Digest 1-52 HR.A.(N.S.) Lloyd S. S. Co. 33: 532, 184 Fed. 303, 106 C. C. A. 445. 1849. In an action against members of a combination in restraint of trade having for its object the driving out of business of aggressive cutters of prices, evidence is not admissible of other measures adopted by on- ly part of the members of the former com- bination, which are separate and distinct from it, unless they are shown to have been agreed to by all the defendants. Jayne v. Loder, 7: 984, 149 Fed. 21, 78 C. C. A. 653. 1850. The acts of an officer during a previ- ous term, though not grounds for impeach- ment, may be considered in so far as they are connected with or bear upon his gen- eral course of conduct during his present term, for the limited purpose of inquiring into his motive and intent as to the acts and omissions charged to him during his second term. State ex rel. Brickell v. Hasty, 50: 553, 63 So. 559, 184 Ala. 121. Libel and slander. 1851. In an action for the publication of a libel consisting, in part, of coupling plain- tiff with another person named, an article is admissible in evidence relating entirely to such other person, but which places him in such light that associating plaintiff's name with his might be libelous. Meri- wether v. George Knapp & Co. 16: 953, 109 S. W. 750, 211 Mo. 199. Other assaults. See also infra, 1893. 1852. In an action to recover damages for personal injuries alleged to have been sus- tained by reason of an assault and battery by the defendant upon the plaintiff, it was not error for the court to admit evidence of the intoxication of the defendant at the time of the assault, and that he had as- saulted another person shortly before he committed the battery upon the plaintiff, and also had assaulted another person short- ly thereafter. Harshbarger v. Murphy, 44: 1173, 125 Pac. 180, 22 Idaho, 261. ( Annotated ) Other accidents. See also supra, 1267. 1853. Evidence that others had stumbled over an obstruction upon which a person had caught his foot is inadmissible, either on the question of negligence, or to establish as a substantive fact that the obstruction was of such a character that a man's foot would strike against it. Diamond Rubber Co. v. Harryman, 15: 775, 92 Pac. 922, 41 Colo. 415. 1854. In an action for injury to a pedes- trian by the sinking of a sidewalk, against a contractor for public work who had, in the execution of his contract, taken it up and relaid it, evidence is admissible of a previous cave-in, as tending to show the na- ture of the soil and the degree of care re- quired of defendant in refilling the excava- tion made by him. Rockwell v. McGovern, 23 : 1022, 88 N. E. 436, 202 Mass. 6. 1855. In an action to hold a town liable for injury on a highway because of an al- leged defect, evidence is not admissible of another accident near the place of an en- EVIDENCE, XI. k. 1209 tirely different nature, to which the alleged defect could in no way have contributed. Flansburg v. Elbridge, 41 : 546, 98 N. E. 750, 205 JSL Y. 423. 1856. Evidence that thirteen days before and three days after a wagon wheel had caught in a street car switch, to the injury of the driver, similar accidents have hap- pened to others, is admissible in corrobora- tion of evidence that a defective condition existed at the time of the injury complained of. Alcott v. Public Service Corp. (N. J. Err. & App.) 32: 1084, 74 Atl. 499, 78 N. J. L. 482. ' (Annotated) 1857. Evidence that thirteen days before a wagon wheel had caught in a street car switch, to the injury of the driver, a similar accident had happened, is admissible, where the evidence shows that a defective condi- tion existed at the time of the accident com- plained of, as tending to show the existence of the defective condition for such a length of time that defendant with due diligence should have discovered and rectified it. Alcott v. Public Service Corp. (N. J. Err. & App.) 32: 1084, 74 Atl. 499, 78 N. J. L. 482. 1858. To show the dangerous character of a machine and the owner's knowledge there- of, in an action to recover damages, for in- juries to a child from its use, evidence is admissible of accidents to other children under like circumstances. Leathers v. BlackwelPs Durham Tobacco Co. 9: 349, 57 S. E. 11, 144 N. C. 330. 1859. Upon the question whether or not an employer is charged with knowledge that movements by machine tenders tend to be- come automatic so as to render them liable to injury, evidence is admissible that such accidents have frequently occurred in his establishment. Kaczmarek v. Geuder, P. & F. Co. 44:779, 134 N. W. 348, 148 Wis. 46. Other fires. 1860. In an action to hold a railroad com- pany liable for loss of property through fire set out by its locomotive, evidence is admissible that, at times other than that at which the loss occurred, sparks and cin- ders had escaped from defendant's locomo- tives and set fire to logs and grass along the right of way. " Illinois C. R. Co. v. Hick- lin, 23: 870, 115 S. W. 752, 131 Ky. 624. 1861. Where evidence introduced shows that the particular engine which is identified as having , set a fire for the loss occasioned by which damages are sought is no better than any of defendant's other engines, evi- dence of the setting of other fires a short time previous to the destruction of plaintiff's property is admissible, since, under such con- ditions and circumstances, the reasonable inference of fact would be that the identified engine would be as likely to throw igniting sparks and live coals and set the fire as was any of the other of the company's engines that are shown to have emittej sparks and fire about the same time. Osburn v. Oregon R. & Nav. Co. 19: 742, 98 Pac. 627, 15 Idaho, 478. 1862. Evidence that other fires had been seen along the right of way of a railroad Digest 1-52 I,.R.A.(N.S.) company is not admissible in an action against it for negligently setting fire to neighboring property, where there is nothing to show how any of them originated, or that thte railroad company was responsible for them. Hawley v. Sumpter Valley R. Co. 12: 526, 90 Pac. 1106, 49 Or. 509. Oilier frightening of horses. 1863. For the purpose of showing that a steam shovel located near a highway was reasonably calculated to frighten horses or- dinarily safe and gentle for road purposes, evidence is admissible that such horses were in fact frightened by it at or about the time of the fright of the horse for injuries caused by which the action is brought against the owner of the shovel. Heinmil- ler v. Winston, 6: 150, 107 N. W. 1102, 131 Iowa, 32. 3864. In an action for damages caused by frightening horses on a public bridge by the blast of a nearby municipal waterworks whistle, evidence that tractable and gentle horses had often been frightened previously by blasts of the same whistle under similar circumstances, was competent as tending to show that the blasts were of 'a character likely to frighten horses under such circum- stances, that their fright and flight were natural and probable consequences of the blowing of the blast, and that these facts were so notorious that they might be con- sidered by the jury to constitute notice to the city of the dangerous character and prob- able effect of the blowing thereof. Winona v. Botzet, 23: 204, 169 Fed. 321, 94 C. C. A. 563. Other acts of carrier's employees or agents. 1865. Upon the question whether or not the rule of a railroad company requiring the stopping of trains when signal lights were out had been abrogated by habitual viola- tion with knowledge of the company, evi- dence is admissible to show a number of violations during such a space of time and under such circumstances, known to the company's officers and agents, as to sub- stitute the practice for the rule. Haynes v. North Carolina R. Co. 9: 972, 55 S. E. 516, 143 N. C. 154. 1866. Upon the question of the liability of a railroad company for an assualt upon a colored passenger, because of the conduct- or's failure to obey the statutory require- ment to remove a white man from the col- ored compartment of a train, evidence is not admissible of his failure to remove other white persons therefrom, of his failure to station a guard to prevent white passen- gers from entering the compartment, or of the manner in which white passengers were behaving in their own compartment. Louis- ville & N. R. Co. v. Renfro, 33: 133. 135 S. W. 266, 142 Ky. S92. 1867. Evidence that the defendant's con- ductor had previously knocked passengers down, and that the company had been sued for his acts, is not admissible in an action for damages from the ejection of a person at the conductor's direction, where a com- mon carrier is liable for the wanton and 1210 EVIDENCE, XI. k. malicious acts of its servants done in the course of their employment, irrespective of its knowledge of their character. Louis- ville & N. R. Co. v. Cottengim, 13: 624, 104 S. W. 280, 31 Ky. L. Rep. 871. 18G8. In an action by a licensed drayman against a railroad company to recover dam- ages for alleged injury to his business, aris- ing from the malicious acts of the company's agent, evidence as to the conduct of the lat- ter when acting as agent for an express company, in reference to packages which the plain tilt* had authority to receive, is irrele- vant and inadmissible. Southern R. Co. v. Chambers, 7: 926, 55 S. E. 37, 126 Ga. 404. Condition at other times. Review of discretionary ruling as to, see APPEAL AND ERROR, 607. Failure to show continuance of conditions, see APPEAL AND ERROR, 1101. 1869. The defective -condition of a coal hole in a sidewalk at the time of the exe- cution of a lease may be shown by evi- dence that it was defective prior to the time of its execution and continued so sub- sequent to that time. Hill v. Hayes, 18: 375, 85 N. -E. 434, 199 Mass. 411. 1870. Upon the question of liability of a property owner for injuries caused to a passer-by from a coal hole defective at the time the premises were leased, evidence is admissible describing the hole at various times as bearing upon its condition at the time of the lease, and also as identifying the defect existing at the time of the acci- dent with that existing when the property was leased. Hill v. Hayes, 18: 375, 85 N. E. 434, 199 Mass. 411. 1871. In an action by county commis- sioners to hold a railroad company liable for damages which they had been compelled to pay because of a defect in a highway due to a change made by the company, evi- dence is admissible as to the condition of the road before the changes, were made and the character of the changes. Balti- more & 0. R. Co. v. Howard County Comrs. 40: 1172, 73 Atl. 656, 111 Md. 176. 1872. Witnesses who examined a building five months after a bracket fell therefrom should be allowed to testify aa to how it had been attached to the building, if there is evidence to show that no change had been made in the building between the time of the fall and that of the examination. Joyce v. Black, 27: 863, 75 Atl. 602, 226 Pa. 408. 1873. Evidence of an examination of the foundation of a bridge which gave way, made five months after the accident, when conditions had so far changed that it could not be relied on as proof of the conditions existing before the bridge fell, is not ad- missible upon the question of negligence in the construction or maintenance of the bridge. Johns v. Pennsylvania R. Co. 28: 591, 75 Atl. 408, 226 Pa. 319. 1874. The fact that the space between a main and repair track of a railroad company is at times obstructed so that it cannot be used by conductors in checking their trains is not admissible to show that it was ob- structed at the time a particular conductor Digest 1-52 L.R.A.(N.S.) was injured while attempting to use the main track for that purpose. Neary v. Northern P. R. Co. 19: 446, 97 Pac. 944, 37 Mont. 461. 1875. Upon the question of the negligence of a street car company in permitting peo- ple to crowd into a car at a terminal, to the injury of a passenger seeking to alight, evidence is admissible of the condition and character of the crowds which had been at that terminal on similar days and at simi- lar times on previous years. Glennen v. Boston Elevated R. Co. 32: 470, 93 N. E. 700, 207 Mass. 497. 1876. Testimony to the effect that a guy wire and service wire were in contact two or three days after au accident is admissible on the question whether they were in con- tact at the time of the accident, where there is testimony by another witness that at the time of the accident he noticed that the guy wire and the service wire seemed to be in contact, and there was no evidence of any change in the condition in the mean- time. Snyder v. Mutual Teleph. Co. 14: 321, 112 N. W. 776, 135 Iowa, 215. 1877. In an action for the death of a tele- phone lineman, caused by a wire which was being raised to him coming in contact with a heavily charged wire of the defendant electric company, which was strung upon the telephone company's poles, evidence con- cerning the condition of the insulation of defendant's wire the morning after the ac- cident is admissible. Musolf v. Duluth Kd- ison Electric Co. 24: 451, 122 N. W. 499, 108 Minn. 369. 1878. Upon the question of the condition of a passenger ejected from a street car, evi- dence of his condition when he boards an- other car immediately afterward may be ad- mitted. Thayer v. Old Colony Street R. Co. 44: 1125, 101 N. E. 368, 214 Mass. 234. 1879. Evidence is admissible, upon a prose- cution for violation of an ordinance pro- hibiting water mains in the street to be left in a leaky condition, showing the con- dition of the street prior to the time of the institution of the proceedings. Crump- ler v. Vicksburg, 11:476, 42 So. 673, 89 Miss. 214. Condition at other places. 1880. How other neighboring property was affected by the maintenance of a nuisance cannot be shown in an action to recover for injury to a particular tract. Louisville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. 1881. Upon the question of injury to prop- erty by the maintenance of a nuisance upon it, evidence is admissible to show that it is injuriously or prejudicially affected by similar causes from other sources, but not the effect thereof on other property nea> or contiguous to it. Louisville & N. Ter minal Co. v. Lellyett, 1:49, 85 S. W. 881 114 Tenn. 368. 1882. Upon the question of nuisance to ad- joining property in the maintenance and operation of a railroad terminal, no com- parison is proper between the noise in its vicinity and in other portions of the city; EVIDENCE, XL k. nor is evidence admissible that the city is I generally a dirty, smoky, and noisy place. Louisville & N. Terminal Co. v. Lellyett, i: 49, 85 S. W. 881, 114 Tenn. 368. Fraud. 1883. In an action for fraud in the sale of a mine, evidence is admissible of an attempt to defraud another person into purchasing it. Tooker v. Alston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. 1S84. Upon trial of a prosecution for giv- ing a check in payment of goods with knowl- edge of absence of funds or credit to meet it, with intent to defraud, evidence is admis- sible of similar transactions on the same or previous day as tending to show defend- ant's knowledge of the state of his account, as well as guilty knowledge and intent to deceive. People v. Bercovitz, 43: 667, 126 Pac. 479, 163 Cal. 636. (Annotated) 1885. Upon the question of fraud in secur- ing an indorsement upon a note by means of a trick, evidence is admissible that the same trick was employed by the same persons, to secure the signatures of other persons, the effect of which is to show a general scheme to perpetrate this particular fraud upon the people of the neighborhood at the same time, to effect a common purpose. Ya- kima Valley Bank v. McAllister, i: 1075, 79 Pac. 1119, 37 Wash. 566. 1886. Evidence of prior and subsequent transactions in which a bank has aided a gang of men in fleecing strangers by means of a fictitious race, through its aid in lend- ing respectability to the transaction and in exchanging and transferring money, is ad- missible in an action to recover from it money lost by a victim, as tending to show its knowledge of the methods and course of conduct of the gang, and also to show the fraudulent course of business, and the bank's motive. Hobbs v. Boatright, 5: 906, 93 S. W. 934, 195 Mo. 693. Other crimes. Prejudicial error as to, see APPEAL AND ER- ROR, 1177, 1199. See also supra, 1633, 1884; INDICTMENT, ETC., 49; WITNESSES, 94. 1887. Upon trial for crime, original evi- dence is not admissible against accused, that he had told witness that he had been previously charged with crime. Fanin v. State, 10: 744, 100 S. W. 916, 51 Tex. Crim. Rep. 41. 1888. To overthrow an alibi set up by one accused of crime, evidence is admissible that he was seen in the vicinity of the crime at about the time it was committed, although at the time when seen he was engaged in the commission of other crimes. People v. Jennings, 43: 1206, 96 N. E. 1077, 252 111. 634. 1889. Evidence that other checks drawn by one on trial for obtaining money on a bad check were not paid is inadmissible in the absence of anything to show that they were presented to the drawee, or that they would not have been paid if presented. State v, Foxton, 52: 919, 147 N. W. 347, Iowa, Digest 1-52 L.R.A.(N.S.) 1890. Upon trial of an indictment for con- spiracy to induce a shipper to receive- re- bates in violation of the "Elkins law,' r evi- dence is admissible of similar dealings- with other merchants. Thomas v. United States,. 17: 720, 156 Fed. 897, 84 C. C. A. 477, 1891. Upon a prosecution for permitting a female to remain in or about a saloon> evi- dence is admissible that while she was- there the defendant sold her beer, as tending to- show that he was engaged in the sale of in- toxicating liquor, and permitted her to re- main in the saloon. State v. Baker r 13* 1040, 92 Pac. 1076, 50 Or. 381. 1892. In prosecuting a foreign corporation for violations of a state statute regulating intrastate commerce, evidence as to prior but wholly independent contracts and trans- actions between the plaintiff and defendant or third parties, claimed to have been viola- tions of the statute, is irrelevant. Sucker State Drill Co. v. Wirtz, 18: 134, 115 N. W. 844, 17 N. D. 313. 1893. Upon trial of a man for kiling his brother-in-law to prevent the latter's en- tering his home in search of the wife of the brother-in-law, evidence is admissible of assaults which the husband had made on- the wife, and of his threats to take the life of both the wife and the accused. Bailey/ v. People, 45: 145, 130 Pac. 832, 54 Colo, 337. 1S94. In the prosecution of a parent for manslaughter for failure to obtain medical aid for a child of tender years, suffering with frozen feet, the admission of evidence showing the existence of bruises, scars r and marks on the body of the child is not error,, where the jury were instructed that such evidence should only be considered in de- termining whether the defendant's atti- tude toward the child was such as might cause him to be negligent in his failure to secure medical aid after he had ascer- tained the child's condition. Stehr v. State, 45: 559, 139 N. W. 676, 142 N. W. 670, 92 Neb. 755. Other false pretenses. 1895. In a prosecution for obtaining money by false pretenses, evidence tending to prove that the defendant made other pretenses about the same time of like character to- those charged in the information, is admis- sible when it tends to prove identity or in- tention in the issue on trial. State T. Het- rick, 34: 642, 113 Pac. 383, 84 Kan. 157. Other burglaries or thefts. 1896. In a prosecution of one found com- mitting theft in a house into which he had broken, evidence' is not admissible of other burglaries committed in the neighborhood the same night. Clark v. State, 29: 323, 128 S. W. 131, 59 Tex. Crim. Rep. 2~46. 1897. In a prosecution for larceny of a cow which was loaded on a car for transporta- tion, evidence is admissible that a number of cattle belonging to other persons, with different brands, were loaded at the same time, where all cattle were gathered from the range and driven in for transportation as part of one transaction, and th defense claims that the particular animal was 1212 EVIDENCE, XI. k. brought in by mistake. State v. Gillies, 43: 776, 123 Pac. 93, 40 Utah, 541. ( Annotated ) 1898. The state may, in a prosecution for embezzlement in taking money from the employer's cash drawer, give evidence of failure to credit on the books money re- ceived from customers at times other than those when the offense charged was com- mitted, for the purpose of showing a sys- tem or scheme for procuring the employer's money. State v. Downer, 43: 774, 123 Pac. 1073, 68 Wash. 672. (Annotated) 1899. Upon trial of a prosecution for re- ceiving stolen goods, evidence is admissible that accused had previously purchased stol- en property from the one from whom he is charged with having received the property in the case on trial. State v. Rountree, 22: 833, 61 S. E. 1072, 80 S. C. 387. Other swindlers. See also supra, 1889. 1900. Upon a trial for larceny through conspiracy to secure money from a certain person by fraud, evidence is admissible that the same persons swindled another person by similar means, for the purpose of show- ing the scope and purpose of the conspir- acy, if one is found to exist, although ac- cused is not shown to have been connected with the conspiracy until a date later than that to which the evidence relates. State v. Dobbins, 42: 735, 132 N. W. 805, 152 Iowa, 632. Other forgeries. 1901. The fact that one on trial for for- gery is under indictment for the forgery of other instruments does not affect their ad- missibility in evidence in the pending trial. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. 1902. In a prosecution for forgery, it is competent to show that, about the time of the alleged forging and uttering by defend- ant, other similar instruments had been forged or uttered by him, in pursuance of a general scheme to defraud. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94. 1903. Upon the trial of an employee on the charge of uttering a note payable to his employer, which lie had forged for the pur- pose of covering up a shortage, evidence that he had forged other notes for the same pur- pose is competent. State v. Chance, 27: 1003, 108 Pac. 789, 82 Kan. 388. 1904. Proof of similar offenses by one on trial for forgery is Admissible only as bear- ing on the question of intent, although the accused admits that he signed to the instru- ment in question the name of the person whose name is claimed to have been forged, and uttered the instrument, knowing that he had done so, and even though the jury, with- out proof of such similar offenses, would be justified in finding a fraudulent intent on the part of the accused if he was not authorized to sign the name of such person to the in- strument. State v. Murphy, 17:609, 115 j N. W. 84, 17 N. D. 48. Other false certifications. 1905. Upon trial of a commissioner of deeds for forgery in wilfully certifying false- Digest 1-52 L.R.A.(N.S.) ly to an acknowledgment of a mortgage, evu- dence is admissible of other similar false- certifications of mortgages by mythical per- sons, for the purpose of showing that the offense charged was part of a scheme to- defraud one who had placed money in his hands for investment, which he embezzled and for which he gave his client fictitious mortgages as pretended securities, and there- by establishing intention. People v. Mar r in, 43: 754, 98 N. E. 474, 205 N. Y. 275. (Annotated) Other sexual offenses. 1906. Upon a trial for statutory rape, evi- dence is not admissible of a rape committed by accused upon a companion of the prose- cuting witness immediately after the offense for which he is on trial, both girls having been called into the oilice of accused at the same time, and the two crimes being com- mitted while both were present. People v. Gibson, 48: 236, 99 N. E. 599, 255 111. 302. ( Annotated ) 1907. Upon a prosecution for incest, evi- dence of other acts of intercourse between the parties is not admissible. Skidmore v. State, 26: 466, 123 S. W. 1129, 57 Tex. Crim. Rep. 497. (Annotated) 1908. Upon trial of a prosecution for in- cest in which the state relies upon a single act, evidence is not admissible of conduct at subsequent times tending to show a crim- inal intent. Gross v. State, 33: 477, 135 S. W. 373, 61 Tex. Crim. Rep. 176. 1909. Where by statute each act of sexual intercourse between a father and a daughter is a separate offense, evidence of prior or subsequent acts is not admissible in sup- port of an indictment charging one specific act. Pridemore v. State, 29: 858, 129 S. W. 1112, 59 Tex. Crim. Rep. 563. 1910. Evidence of the commission of simi- lar crimes at other times is not admissible against one on trial for commission of a crime against nature. State v. Start, 46: 266, 132 Pac. 512, 65 Or. 178. (Annotated) 1911. Upon prosecution for an assault with attempt to commit sodomy, evidence is admissible of an attempt by accused to com- mit a similar act upon another person pres- ent at the time, immediately after making the attempt for which he is on trial. State v. McDowell, 32: 414, 112 Pac. 521, 61 Wash. 398. To shove intent, animus, or motive. See also supra, 1908. 1912. To show intent of one who obtained money on a bad check, evidence is admis- sible of other similar transactions by him at about the time the alleged offense was committed. State v. Foxton, 52: 919, 147 N. W. 347, Iowa, . 1913. That one on trial for obtaining mon- ey by false pretenses had made similar false representations and pretenses to others is admissible to show his knowledge of the falsity of the representations made to the prosecuting witness, and his guilty intent in making them. State v. Briggs, 7: 278, 86 Pac. 447, 74 Kan. 377. 1914. To show the animus probably exist- EVIDENCE, XI. 1. 1213 ing between a murderer and his victim, evi- dence is admissible of quarrels months be- fore the homicide. State v. Brooks, 17: 483, 60 S. E. 518, 79 S. C. 144. 1915. While it is not competent for the fltate, in making out its case in chief, to in- troduce evidence of other and prior crimes, for the purpose of supporting the charge made in the indictment, or of reflecting on the character of the accused, yet the com- mission of a prior crime may be shown for the purpose of furnishing a motive for the commission of the crime charged in the in- dictment, provided such prior crime is so related to the latter as to have a logical con- nection therewith, and reasonably to disclose a motive for its commission. State v. Dick- erson, 13: 341, 82 N. E. 969, 77 Ohio St. 34. I. Explanation and rebuttal. {See also same heading in Digest L.R.A. 1-10.) Prejudicial error as to, see APPEAL AND ERROR, 1105, 1112, 1122. As to order of proof generally, see TRIAL, 32-40. Admissibility to impeach or corroborate wit- ness, see WITNESSES, III. See also supra, 810. 1916. To meet evidence that defendant had asked for figures for improvements made on his property according to an exhibited sketch, evidence is admissible that the sketch was made at the instance of his ten- ant, who is claimed to have undertaken to make the improvements at his own expense. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 1917. Upon garnishee disclosure, the execu- tor of an estate may introduce testimony and evidence other than his own, for the purpose of corroboration and explanation by developing facts additional to those dis- closed by him, and for the purpose of show- ing that money and effects under his control as executor do not in fact belong to the judgment debtor. Pitzl v. Winter, 5: 1009, 105 N. W. 673, 96 Minn. 499. 1918. Defendant in an action for damages for killing a person may contradict wit- nesses who testify as to his first statement to another person, upon the latter's arrival upon the scene of the homicide, and state what the conversation was, and it is im- material that the witnesses differ as to where he was located at the time of the conversation, if all agree that the conversa- tion referred to by all parties was the same. Foster v. Shepherd, 45:167, 101 N. E. 411, 258 111. 164. 1919. One suing for slander in being charged by another with setting fire to his building cannot be permitted to testify that he never made threats to burn the build- ing for the purpose of contradicting wit- nesses who have testified that they commu- nicated to defendant, before the fire, the fact that they had heard plaintiff make Digest 1-52 L.R.A.(N.S.) such threats. Edwards v. Kevil, 28: 551, 118 S. W. 273, 133 Ky. 392. 1920. Where a witness in a condemnation proceeding testifies on behalf of the land- owner, that the land sought to be taken is of a certain value, it is not error for the witness to be allowed thereafter to explain that he bases his estimate upon the fact that the land could be subdivided into town lots, and would for such purpose sell for the amount fixed by him as the value of the property. Idaho & W. R. Co. v. Columbia Conference, 38: 497, 119 Pac. 60, 20 Idaho, 568. 1921. The statutory presumption that real estate which was purchased with com- munity funds, and its title placed in the wife, was intended as a gift to her, may be rebutted by the husband's evidence that such was not the intention. Fulkerson v. Stiles, 26: 181, 105 Pac. 966, 156 Cal. 703. 1922. The presumption that checks given by a debtor to his creditor were in payment of the account may be rebutted by evidence that the debtor acknowledged the correct- ness of the account without the credit of the checks. Lewis v. England, 2: 401, 82 Pac. 869, 14 Wyo. 128. Insurance. Prejudicial error as to, see APPEAL AND ERROR, 1112. 1923. In an action on a policy of insur- ance, where the insurer relies on a condition subsequent incorporated in the policy, to defeat the right of the insured to recover after loss, the plaintiff has a right to intro- duce evidence to rebut any proof of breach of condition so pleaded, or to show a waiver of the condition by the insurer. Allen v. Phoenix Assur. Co. 8: 903, 88 Pac. 245, 12 Idaho, 653. Criminal cases. Impeachment of dying declaration, see su- pra, 1506, 1507. Prejudicial error as to, see APPEAL AND ERROR, 1122. Admissibility of evidence to impeach or con- tradict witness, see WITNESSES, III. See also infra, 1987. 1924. If one accused of murder attempts to show the size and weight of deceased for the purpose of establishing a necessity for self-defense, the state may show his state of health and physical condition at the time of the homicide. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. 1925. In rebuttal of evidence that one who had attempted to escape from jail had stat- ed that he would have his wife bring him saws, her testimony that she did not do so is competent. State v. Duff, 24: 625, 122 N. W. 829, 144 Iowa, 142. 1926. To rebut the effect of the evidence of birth of a child in support of a prosecu- tion for incest, accused may show inter- course between prosecutrix and another at about the time the child was alleged to have been conceived. Skidmore v. State, 26: 466, 123 S. W. 1129, 57 Tex. Crim. Rep. 497. 1927. The testimony of accused in a homi- cide case, given on former trials for the 1214 EVIDENCE, XI. m-o. same offense, may be introduced in rebuttal of the defense of insanity. State v. Speyer, 14: 836, 106 S. W. 505, 207 Mo. 540. 1928. Letters of accused to his wife, inad- missible in a homicide case for the purpose of showing his affection for his son whom he has killed, cannot be introduced to show that he has not abandoned his wife, when the only evidence of abandonment consists of the defendant's statement that his son was the only thing on earth for his wife to get, and that the defendant had had a great deal of trouble, especially where the case is submitted to the jury on a theory not involving abandonment in the motive for the crime. State v. Speyer, 14: 836, 106 B. W. 505, 207 Mo. 540. m. Payment; consideration; credit. (See also same heading in Digest L.R.A. 1-10.) Payment. 1929. In a suit against the owner of a building to enforce a subcontractor's lien, evidence of payments made by the owner to other subcontractors during the sixty days within which they were entitled to, but did not, file liens, is admissible. Fos- sett v. Rock Island Lumber & Mfg. Co. 14: 918, 92 Pac. 833, 76 Kan. 428. 1930. Upon the question whether or not payments of license fees for a particular year were voluntary, evidence is inadmis- sible as to the receipt, agreement, and pro- test relative to the fee of the previous year. Eslow v. Albion, 22: 872, 117 N. W. 328, 153 Mich. 720. 1931. A witness may testify in a suit upon a promissory note, where the defense of usury is interposed, that part of a sum of money apparently in excess of the legal rate of interest, which was retained by the lend- er, was received in payment of an independ- ent claim, and not reserved as interest upon the loan. Fatten v. Bank of La Fayette, 5: 592, 53 S. E. 664, 124 Ga. 965. Consideration. 1932. Upon the question of consideration for a subscription to a benevolent institu- tion, evidence is admissible that the sub- scription was published in a newspaper with the consent of the donor, as tending to show that it may have influenced the making of other subscriptions. Brokaw v. McElroy, 50: 835, 143 N. W. 1087, 162 Iowa, 288. 1933. Upon the question of consideration for a subscription, a letter by a subscriber extending the time within which the total amount must be subscribed to make his subscription binding, on the faith of a list containing inter alia the one in dispute, is admissible in evidence. Brokaw v. McElroy, 50: 835, 143 N. W. 1087, 162 Iowa, 288. 1934. In & suit brought by the payee on rent notes, evidence is admissible that, at the time they were given, the payee agreed that liability should exist only so long as possession continued, and that before the notes became due the possession had been surrendered and accepted by him. Martin Digest 1-52 L.R.A.(N.S.) & Garrett v. Mask, 41: 641, 74 S. E. 343, 158 N. C. 436. 1935. In an action upon a note given in compromise of a suit upon a former one, evidence is admissible that the original note was given in consideration of a gambling; debt. Union Collection Co. v. Buckman, 91 568, 88 Pac. 708, 150 Cal. 159. Credit. Evidence as to crediting account to partner- ship, see supra, 1584. n. Proof of negative. (See also same heading in Digest L.R.A.. 1-10.) See also supra, 1850. 1936. Negative evidence is admissible to> establish a good reputation. People v. Van Gaasbeck, 22: 650, 82 N. E. 718, 189 N. Y. 408. 1937. In an action to recover damages for injury to horses through the negligence of the carrier in failing to deliver them upon arrival at destination, and in caring for them subsequently, a waybill calling for freight in excess of the contract rate is ad- missible in evidence, and also fncts tending- to show an attempt to ascertain the true- rate, as tending to negative the charge of negligence. Beasley v. Baltimore & P. R. Co. 6: 1048, 27 App. D. C. 595. o. Contracts; breach; waiver. (See also same heading in Digest L.R.A. 1-10.) Evidence as to intent of parties, see supra, 1624. Breach of contract as to delivery of tele- gram, see supra, 1756. Consideration for contract, see supra, 1932- 1935. 1938. In an action to recover for services rendered after obtaining majority, but while remaining in the household of a family not of kin, into which plaintiff had been re- ceived during infancy, evidence relating to- the character and extent of the services, the declarations and conduct of the re- cipient, the value of the services, and cor- responding benefits to the recipient, is ad- missible upon the question whether the services were rendered gratuitously or un- der an implied promise of compensation. Howard v. Randolph, 29: 294, 68 S. E. 586. 134 Ga. 691. 1939. Upon the question of the acceptance- of a contract for services, evidence is not admissible of objections to reports made by persons acting under the contract. Man- ufacturers' & M. Inspection Co. v. Ever- wear Hosiery Co. 42: 847, 138 N. W. 624, 152 Wis. 73. 1940. In an action to recover back post- office equipment which the owner had as- signed to the postmaster in consideration of the location of the office in a certain build- EVIDENCE, XL p, q. 1215 ing, it is not error to admit in evidence the contract showing the assignment and the consideration. Benson v. Bawden, 13: 721, 113 N. W. 20, 149 Mich. 584. 1941. Upon the question whether a livery rig was engaged absolutely or the customer offered tc take it if satisfactory upon in- spection, testimony is admissible of one for whose use it was intended, that she was old and ill, and required the easiest kind of a vehicle. Kilpatrick v. Inman, 26: 188, 105 Pac. 1080, 46 Colo. 514. 1942. In determining the reasonableness of the conduct of one who upon his vendor's failure to make delivery of goods which, to the knowledge of his vendor, he has pur- chased for resale, goes into the open market and purchases a substitute in order to fill his subcontract of sale, and of the time of his purchase, the conduct of the original vendor in asking delay after the failure to deliver and his promise to make de- livery may be considered in an action brought by the original vendee to recover damages caused by the failure of his vendor to make delivery. Hardwood Lumber Co. v. Adam, 32: 192, 68 S. E. 725, 134 Ga. 821. (Annotated) 1943. As tending to throw light upon the scope of an alleged warranty of quality of a manufactured article, and the circumstances under which it was given by the manufac- turer to a consumer, correspondence between them at or about the time it was given, con- taining, inter aha, complaints about the quality of material with which other or- ders had been filled, is admissible. Leavitt v. The Fiberloid Co. 15: 855, 82 N. E. 682, 196 Mass. 440. Insurance contract. Evidence as to intent of parties, see supra, 1623. As to fraud, see supra, 1667, 16G8. 1944. Evidence as to the manner in which an application for life insurance was pre- pared is admissible in an action on the pol- icy, to estop the company from availing itself of the falsity of statments contained therein as a defense. Roe v. National L. Ins. Asso. 17: 1144, 115 N. W. 500, 137 Iowa, 696. 1945. When the actual effect produced on the medical 'xaminer by erroneous answers given by an applicant for insurance to ques- tions propounded to him is shown, evidc-nce is not admissible as to what weight might have been given by physicians generally to the answers had they been correct. Roe v. National L. Ins. Asso. 17: 1144, 115 N. W. 500, 137 Iowa. 696. 194G. Evidence of the examining physician that his recommendation of an applicant for insurance would not have been prevent- ed by knowledge that his attending physi- cian thought he had heart disease, since ho would have relied on his own examination, is admissible in an action upon the policy, as pertinent to the issue whether or not he was misled by answers in the application. Roe v. National L. Ins. Asso. 17: 1144, 115 N. W. 500, 137 Iowa, 696. 1947. Evidence of having written letters Digest 1-52 L.R.A.(N.S.) subsequent to the commencement of an ac- tion on a policy of insurance upon the life of one who disappeared without explana- tion, and has not been heard from for more than seven years, making inquiry as to the presence of the insured in a certain place within the seven years, and about the time an informant claimed to have seen him there, is admissible in the action. Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. Breach. 1948. Upon the question whether or not goods sold to fill an order correspond w,tli the sample, the one giving the order may testify as to the quality and condition of the sample. Schiller v. Blyth & Fargo Co. 8: ii67, 88 Pac. 648, 15 Wyo. 304. 1949. Upon the question of breach of war- ranty of quality of a composition material manufactured by defendant, evidence is n >t admissible of the specific number of men em- ployed by him in a particular process of the manufacture. Leavitt v. The Fiberloid Co. 15: 855, 82 N. E. 682, 196 Mass. 440. 1950. In a suit for breach of warranty of the dryness of cases purchased as carriers for tin cans, by reason of which the cans rusted, evidence that other cans manufac- tured by the same maker were found to have moisture on them which might have been the cause of the rust is not admissible, in the absence of anything to show that they were manufactured by the same process or in the same manner as those for which the cases were intended. North Alaska Salmon Co. v. Hobbs, W r all, & Co. 35: 501, 113 Pac. 870, 159 Cal. 380. 1951. In an action for breach of a contract for transportation contained in a limited ticket, it is not error to exclude evidence that the ticket was sold at a reduced price, where it was furnished the passenger by an immigrant agent, so that the passenger was not entitled to demand any kind of ticket he might have desired, but is presumed, from the fact that he accepted the ticket, to have received what was paid for. Brian v. Ore- gon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. p. Matters pending suit. (See same heading in Digest L.R.A. 1-~0.) q. Pecuniary condition; family circum- stances. (See also same heading in Digest L.R.A. 1-10.) Pecuniary condition. For purpose of showing amount of damages, see supra, 1724, 1751. Review of discretion in admitting evidence of, see APPEAL AND ERROR, 603. Offer of evidence as to, see TRIAL, 45. 1952. In a contest between the maternal grandfather of a child whose parents are dead, who has possession of the child and has applied for its guardianship, and the paternal grandfather, over such guardian- 1216 EVIDENCE, XI. r, g. ship, evidence of the financial condition of the applicant and his wife is admissible. Churcliill v. Jackson, 49: 875, 64 S. E. 691, 132 Ga. 666. 1953. In an action by a surgeon to recover for services to a stranger who had been rendered unconscious by an accident, and who died without recovering consciousness, evidence is not admissible of the financial ability of the patient. Cotnam v. Wisdom, 12: 1090, 104 S. W. 164, 83 Ark. 601. 1954. Evidence of defendant's wealth is not admissible in an action to recover damages for alienation of the affection of plaintiff's husband. Phillips v. Thomas, 42: 582, 127 Pac. 97, 70 Wash. 533. Insolvency. Evidence of general reputation as to, see su- pra, 1546. Sufficiency of evidence, see infra, 2199- 2201. 1955. Evidence of the value of specific pieces of commercial paper, based wholly on ignorance of the witness as to whether the maker possesses any property liable to execution, is not relevant on the subject of the solvency of the maker thereof. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. 1956. Proof that a person was insolvent at a particular time, by means of judgments against him, shown at such time to be un- collectable, is not relevant as circumstan- tial evidence that he was insolvent six months or more prior thereto, especially where, shortly after the earlier date, he transferred his property for the payment of his obligations. Ellis v. State, 20: 444, 119 N. W. 1110, 138 Wis. 513. Family circumstances. 1957. In an action on a certificate of bene- fit insurance, evidence of the number of chil- dren of the insured and their ages, and of the date of his marriage with the bene- ficiary, and of the fact that some efforts had been made to compromise the case, is incompetent. Knights of Maccabees of W. v. Shields, 49: 853, 160 S. W. 1043, 156 Ky. 270. 1958. In an action to recover damages from a man for causing his son to separate from his wife, evidence is not admissible as to her efforts to support her child after the separation, or as to the father's collecting the son's wages. Ickes v. Ickes, 44: 1118, 85 Atl. 885, 237 Pa. 582. r. Persons; personal relations. (See also same heading in Digest L.R.A. 1-10.) Opinion evidence as to, see supra, 1193. Admissions of person to prove agency, see supra, 1249. 1959. Testimony of persons sued for tres- pass on real estate, that they were mem- bers of the board of health, is competent to prove their official capacity. Barry v. Smith, 5: 1028, 77 N. E. 1099/191 Mass. 78. 1960. Where it was a material question for the jury whether one acting as superintend- Digest 1-52 L.R.A.(N.S.) ent of a mine was so superintending for the owner, as its employee, or operating it for himself, as an independent contractor, evi- dence that the owner held insurance indem- nifying it against loss and damages from accidents to laborers in the mine, and of the terms of the policy, and of the corres- pondence between the owner and the insur- ance company and with the alleged contract- or, was competent as tending to show the real relation between the person so super- intending the operation of the mine and the mine owner. Laffery v. United States Gyp- sum Co. 45:930, 111 Pac. 498, 83 Kan. 349. 1961. Upon the question of a person's lia- bility for injury to a servant, evidence of the officer who served notice of the injury, that he saw the defendant's sign over the door, is admissible. Beauregard v. Benja- min F. Smith Co. 45:200, 100 N. E. 627, 213 Mass. 259. 1962. Upon the question whether or not one operating his father's automobile on a highway at the time of its collision with another car was acting as the servant of his father, evidence is admissible that he was the regularly employed chauffeur of his father's family and had secured the car to take persons to a dance, and that they were in the presence of his father when they started upon the journey, and the father gave instructions as to headlights. Bourne v. Whitman, 35: 701, 95 N. E. 404, 209 Mass. 155. 1963. Upon the question whether or not a railroad employee was engaged in inter- state commerce at the time of his injury, evidence is admissible as to the general duties with which he was charged during the time of his employment with the fur- therance of which he was engaged at the time of his injury. Montgomery v. South- ern P. Co. 47: 13, 131 Pac. 507, 64 Or. 597. 1964. Testimony of the wife is not admis- sible to show nonaccess of the man she sub- sequently married during the period when she became pregnant by another of a child born in wedlock, because of which he is suing for divorce. Wallace v. Wallace, 14: 544, 114 N. W. 527, 137 Iowa, 37. (Annotated) 1965. Upon the question of the liability of a railroad company for injury to an oc- cupant of a building on its right of way through derailment of its train, evidence is admissible with respect to the occupation and use of the right of way at and near the point of accident to show the relation of the parties and the duty enjoined upon the railroad company. Gilligan v. Denver & R. G. R. Co. 50: 1191, 136 Pac. 958, 43 Utah, 543. s. Connecting with subject; matters about other persons. (See also same heading in Digest L.R.A. 1-10.) See supra, 1843. EVIDENCE, XI. t. 1217 Matters about other persons. See also supra, 825. 19GU. Upon a trial of an action against a railroad company for assault on a passen- ger, evidence is not admissible of conviction of the servant who made the assault, for the murder of plaintiff's brother, a fellow passenger, just prior to the assault on plaintiff. Layne v. Chesapeake & 0. R. <_o. 31: 414, (J'J S. E. 700, 68 W. Va. 213. t. Criminal matters generally. (Sec also same heading in Digest L.R.A. 1-10.) Acts or declarations of coconspirators, see supra, X. g. Evidence in explanation and rebuttal, see supra, XI. 1. Documentary evidence, see supra, 772, 778, 779, 784, 806, 808, 817, 820, 834, 837, 838, 840, 843, 877. Demonstrative evidence, see supra, 880, 882, 883, 885, 891. Declarations or acts of accused, see supra, 1353-1359. Evidence as to character or reputation of accused, see supra, 1551-1557. Evidence as to character and reputation of person killed, see supra, 1560-1567. As to character or reputation of person as- saulted, see supra, 1568. Evidence as to chastity in criminal prose- cution, see supra, 1575, 1576. Evidence as to knowledge or notice in crimi- nal case, see supra, 1592, 1593. Motive, see supra, 1593, 1599, 1649-1657. As to mental responsibility of accused, see supra, 1602-1606. Evidence as to intent or purpose, see supra, 1633-1641. Evidence to support defense of duress, see supra, 1677. Evidence of suggestive facts, see supra, 1824-1839. Circumstantial evidence, see supra, 1843, 1844. Evidence of other crimes, see supra, 1884, 1887-1915. Evidence of experiments, see infra, 2020, 2021. Evidence admissible under pleading, see in- fra, 2447-2451. Cure of error in admitting evidence, see APPEAL AND ERROR, 829. Prejudicial error as to, see APPEAL AND ERROR, 1119-1129, 1150-1155. Right to read at trial of one accused of crime testimony of witnesses given be- fore committing magistrate, see CRIMI- NAL LAW, 103. Upon trial of expressman for breach of stat- ute requiring recording, in book, of liq- uors received for transortation, see MASTER AND SERVANT, 893. Admissibility to impeach or corroborate witness, see WITNESSES, III. 1967. Evidence of cures effected by Chris- tion Science treatment is not admissible in with medical attendance and remedies, where motive or belief is not a lawful ex- cuse for omitting to provide what the law requires. Rex v. Lewis, 1 B. R. C. 732, 6 Ont. L. Rep. 132. 1968. Upon the question whether or not a letter deposited in the mail gives informa- tion prohibited by statute, evidence is ad- missible of an interview with the sender by one supposed by him to have appeared in response to it. Kemp v. United States, 51: 825, 41 App. D. C. 539. 1969. In a prosecution of the officers of a trust company for larceny of state moneys in converting those deposited with the com- pany to their own use by using them for its benefit, evidence is admissible of a de- mand upon the company for their return, since a demand on the company for which they are acting is sufficient to charge them. State v. Ross, 42: 601, 104 Pac. 596, 106 Pac. 1022, 55 Or. 450. 1970. Upon trial of an information for carrying a red flag in a parade, and thereby infuriating the public, in violation of an ordinance against riot, evidence is admissi- ble as to how such was regarded by the public. People v. Burman, 25: 251, 117 N. W. 589, 154 Mich. 150. (Annotated) 1971. In a prosecution for a conspiracy to defraud the United States of public land, proof of the formation of the conspiracy and of an overt act thereunder more than three years before the filing of an indictment, prosecution for which is barred by the stat- ute of limitations, is competent evidence for the consideration of the jury, in connection with evidence aliunde of the existence of the conspiracy and of defendant's conscious par- ticipation in it within three years. Ware v. United States, 12: 1053, 154 Fed. 577, 84 C. C. A. 503. 1972. In a prosecution for perjury alleged to have been committed in the trial of a certain criminal case in testifying in be- half of the defendant therein, it is ordi- narily not competent for the state to prove that such trial resulted in a conviction. Gray v. State, 32: 142, 111 Pac. 825, 4 Okla. Grim. Rep. 292. 1973. Upon the question whether or not a man committed perjury in testifying that he did not have sexual intercourse with his wife before their marriage, her testimony as to such acts of intercourse is material and relevant. Spearman v. State, 44: 243, 152 S. W. 915, Tex. Crim. Rep. . 1974. In defense of an indictment for sell- ing intoxicating drinks, the article sold being labeled "Temperance Beer," the de- fendant has the right to show that it is not intoxicating. State v. Durr, 46:764, 71 S. E. 767, 69 W. Va. 251. 1975. Upon a prosecution for selling intoxi- icating liquor without a license, evidence is not admissible that accused purchased the beverage under a warranty that it was not intoxicating. Haynes v. State, 13: 559, 105 S. W. 251, 118 Tenn. 709. 1976. In a prosecution for having in pos- session intoxicating liquor with intent to a prosecution for failure to provide a child sell same, and to convey same from one Digest 1-52 L.R.A.(N.S.) 77 1218 EVIDENCE, XL t. place within the state to another place therein, evidence that previously a justice of the peace had caused the liquor to be seized under a search warrant, and, on the defendant's motion, has subsequently quashed the warrant and ordered the liquor redelivered to the defendant, is not com- petent or admissible in the defendant's be- half. Chi Ids v. State, 33: 563, 113 Pac. 545, 4 Okla. Crim. Rep. 474. 1977. Testimony showing that defendant charged with violating the white slave act of June 25, 1910, by obtaining, aiding, or inducing the interstate transportation of women or girls for immoral purposes, re- strained the liberty of the women at her house in the place where the transportation ended, and coerced their stay with her, is relevant as illustrating and constituting a completion of what was done at the begin- ning of the transportation. Hoke v. United States, 43: 906, 33 Sup. Ct. Rep. 281, 227 U. S. 308, 57 L. ed. 523. 1978. Upon trial of one for murder of a girl, evidence is not admissible that during his absence, and without his knowledge, the girl was accustomed to make social visits to the family where he boarded. Sanders v. State, 22: 243, 112 S. W. 68, 54 Tex. Crim. Rep. 101. 1979. In a murder trial, a witness may tes- tify as to the number of shot of the size found in the body of the victim, contained in a shell of the kind found at the point where accused is said to have been standing at the time the fatal shot was fired. Grant v. State, 42: 428, 148 S. W. 760, Tex. Crim. Rep. . 1980. Upon the trial of one accused of murder of his son with whom he had been at outs for two years, it is not error to ex- clude the testimony of the accused as to how many of his children took sides with the deceased in the controversy. Lindsay v. State, 50: 1077, 63 So. 832, 66 Fla. 341. 1981. Where it is shown upon the trial of one accused of murder that ill feeling had existed between him and his victim for about two years, it is not error to exclude evidence of the accused as to what first started the trouble, since this is too remote and immaterial and irrelevant to any issue in the case. Lindsay v. State, 50: 1077, 63 So. 832, 66 Fla. 341. 1982. That several days elapse between the finding of a corpse and, near the spot, an article known to have belonged to a certain person who is charged to have been mur- dered, does not render the fact of the find- ing inadmissible in proof of the corpus de- licti, but it weakens its force for that pur- pose. State v. Barnes, 7: 181, 85 Pac. 998, 47 Or. 592. 1983. Evidence of an ex parte post mortem examination of the body of deceased, made two years after the burial, is not admissible in evidence upon trial of^a prosecution for murder. Self v. State, iar: 238, 43 So. 945, 90 Miss. 58. Trailing with bloodhounds. 1984. Before evidence of the conduct of bloodhounds alleged to have been put upon Digest 1-52 L.R.A.XN.S.) the trail of the defendant can properly Ue received, it should appear that the dogs in. question were able, at the time and under the circumstances, to follow the scent or track of a person. State v. Adams, 35: 870, 116 Pac. 608, 85 Kan. 435. 1985. The evidence and result of the work of dogs in following the tracks of a per- son accused of crime may be considered by the jury where they are found to have been able at the time and under the circumstan- ces to follow the scent or track of a per- . son and to have been accurate, certain, and reliable in so doing. State v. Adams, 35: 870, 116 Pac. 608, 85 Kan. 335. (Annotated) 1986. Evidence of the location of a crimi- nal by bloodhounds is admissible where they are shown to be of pure blood, well trained to track human beings by an experienced trainer, and to have been subjected to severe and satisfactory tests, and it appears that they were put on the trail at a place where the criminal agency must have had its origin. Spears v. State, 16: 285, 46 So. 160, 92 Miss. 613. 1987. To discredit the evidence furnished by bloodhounds in trailing a criminal from the scene of the crime, evidence is not ad- missible of the conduct of other dogs trained by the same trainer, which failed to keep a trail. Spears v. State, 16: 285, 46 So. 166, 92 Miss. 613. 1988. In order to make competent evidence of the conduct of bloodhounds in trailing or following the tracks of one accused of crime, it is necessary that a preliminary founda- tion be laid therefor, by showing by some one or more having personal knowledge of the facts that the particular dog so used had been trained and tested in trailing hu- man beings, and, by experience, had been found reliable in such cases, and that the dog so trained and tested was, in the in- stance involved, laid on the trail, whether it was visible or invisible, at a point where the circumstances tended to show that the guil- ty party had been, or upon a track which the circumstances indicated to have been made by him. State v. Dickerson, 13: 341, 82 N. E. 969, 77 Ohio St. 34. Evidence as to footprints. 1989. The description and measurement of the tracks at the scene of the crime, which correspond with the shoes worn by one ac- cused of having committed it, and which have been introduced in evidence, are admis- sible upon the questionof his guilt. State v. Adams, 35: 870, 116 Pac. 608, 85 Kan. 135. Cause. 1990. Upon a prosecution against the own- er for violation of an ordinance prohibiting mains in a highway to be left in a leaky condition, evidence is ^ot admissible that the leaks were caused by the jar of trains passing over them. Crumplor v. Vicksburg, 11:476, 42 So. 673, 89 Miss." 214. EVIDENCE, XI. u-w. 1219 u. Title or possession. (See also same heading in Digest L.R.A. 1-10.) Admissibility of document for purpose of, see supra, IV. p. Admissibility under pleading, see infra, 2472-2474. Sufficiency of evidence, see infra, XII. e. Of personal property. 1991. Upon the question of ownership of a team which was negligently driven so as to injure a person on a street car, evidence is admissible of a report by the alleged owner to a casualty company admitting that he owned the team. Sibleji v. Nason, 12: 1173, 81 N. E. 887, 196 Mass." 125. 1992. The jury have a right, in a prosecu- tion for larceny, to consider the fact that the cattle alleged to have been stolen bore the brand of the complaining witness, as some evidence that they were owned by him. State v. "Wolfley, n: 87, 89 Pac. 1046, 75 Kan. 406. (Annotated) 1993. Upon the question raised after their death, as to whether an article of furniture belonged to a man or his wife, evidence is not admissible that she, while it was in her possession, referred to it as her mother's, since this does not characterize the nature of the possession, but only the source of title. Hopkins v. Heywood, 49: 710, 86 Atl. 305, 86 Vt. 486. Of real property. 1994. Upon the question of the liability of a property owner for lumber used by his tenant in improvements upon the property, evidence is admissible of a bill of sale by the tenant to him of the building. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 1995. One suing on a duebill upon which a payment to a lumber company is claimed as a credit may be required to testify that her husband owned no real estate, for the purpose of showing that the lumber furnished by the company was used on her property. Wells v. Hays, 42: 727, 76 S. E. 195, 93 S. C. 168. 1996. Upon the question whether or not a tenant of a life tenant wilfully holds over after the death of the life tenant so as to be subject to double damages under the stat- ute, evidence is admissible of permission to hold as mortgagee in possession, given by one of the remaindermen. Barson v. Mulli- gan, 16: 151, 84 N. E. 75 191 N. Y. 306. 1997. In an action by a mortgagor to re- cover possession of the mortgaged property from the mortgagee, in which the complaint alleges that defendant is wrongfully in pos- session without leave of pl?iptiff and with- out legal right, which is denied by the an- swer, evidence is admissible that the mort- gagor gave permission to enter under the mortgage. Barson v. Mulligan, 16: 151, 84 N. E. 75, 191 N. Y. 306. 1998. Upon the question of the .right, as' between landlord and tenant, to improve- ments placed by the tenant on the leasehold, evidence is admissible that, aiter the ex- Digest i-52 L.R.A.CN.S.) piration of the lease, the tenant paid the taxes on ttie building. Miller v. Johnson, 48: 294, 134 Pac. 1017, 43 Utah, 468. 1999. Upon trial of a proceeding to pro* cure a right of way for a ditch to conduct water the right to which petitioner claims by right of appropriation, evidence is not ad- missible as to the rights of other alleged appropriators from the same stream, who are not made parties to the proceeding. Walker v. Shasta Power Co. 19: 725, ItiU Fed. 856, 87 C. C. A. (500. v. Identification. (See a/so same heading in Digest L.R.A.. 1-10.) Of person. Opinion evidence as to identity, see supra, 1165-1167. Identification of parties to telephone con- versation, see supra, 1485, 1486. Prejudicial error as to, see APPEAL AND ERROR, 1155. See also supra, 1385, 1405. 2000. In a civil action to recover damages for the publication of a libelous article, evi- dence showing the relations existing between the plaintiff and the author of the alleged libel is admissible for the purpose of proving, that the plaintiff was the person referred to, when his name does not appear in the ar- ticle, and defendant does not admit that he is the one referred to. Dennison v. Daily News Pub. Co. 23 : 362, 118 N. W. 568,. 82 Neb. 675. Of thing. Opinion evidence as to identity, see supra* 1162-1164. w. Justification; mitigation; aggrava- tion. (See aln same heading in Digest L.R.A. 1-10.) Jnsti^ cation. Sufficiency of evidence to prove, see infra, 2337. Disqualified person voting under advice of counsel, see ELECTIONS, GO. 2001. Evidence of ownership of the prop- erty is admissible in defense of an nction for assault upon one in wrongful possession, made during an attempt to effect an entry thereon. Walker ". Chanslor, 17: 455, 94 Pac. 606. 153 Cal. 118. 2002. Evidence is not admissible, in justifi- cation of an assault with a deadly weapon, that the person assaulted had a bad moral character, and had interfered with the do- mestic relations of others, and the assail- ant believed that he intended the serlnctioit of his wife, whom he had seen entering the rooms of tlie person assaulted, whore she was not pres-ent or in imminent danger at the time of the assault. State v. Young; 18: 688, 96 Pac. 1067. 52 Or. 227. 2003. Upon trial of an action for damages for wrongful death, whexe the defense is that the killing was in making an arrest 1220 EVIDENCE, XI. x. for burglary, evidence is admissible that the building into which deceased was attempt- ing to break contained a safe with money in it. Suell v. Derricott, 23 : 996, 49 So. 895, 161 Ala. 259. -In libel suit. 2004. In defense of an action for libel in charging a school director with furnishing material for a schoolhouse in process of erection, a bill for goods sold is admissible under the common-law rule forbidding him to contract with himself for supplies, al- though it is not shown that they were used in the construction of the building, and the statute, by specifically prohibiting the fur- nishing of material to be used in the erec- tion, ventilating, warming, furnishing, or repairing of a schoolhouse, might, by impli- cation, seem to allow the furnishing of sup- plies for other purposes. Woolley v. Plain- dealer Pub. Co. 5: 498, 84 Pac. 473, 47 Or. 619. Mitigation. Admissibility under pleading, see infra, 2461. 2005. That the defendant in an action for maliciously levying an attachment on ex- empt property acted under the advice of counsel is not a defense, but the fact may be shown in mitigation of damages. Grime- stad v. Lofgren, 17: 990, 117 N. W. 515, 105 Minn. 286. 2006. The fact that the injurious results of seepage from an irrigation ditch may be obviated by drainage may be shown, as af- fecting the measure of damages. Howell v. Big Horn Basin Colonization Co. i : 596, 81 Pac. 785, 14 Wyo. 14. 2007. In an action against an individual for causing the plaintiff to be taken into custody on a charge of felony, evidence af- fording reasonable and probable cause of suspicion of the plaintiff's guilt is admis- sible in mitigation of damages. Rogers v. Toliver, 45: 64, 77 S. E. 28, 139 Ga. 281. ( Annotated ) ' 2008. In an action by a lessee against the lessor for failure to give possession of the leased premises at the time stipulated for the commencement of the term, evidence that other premises in the same portion of the city were completed and ready for oc- cupancy at the time fixed for the commence- ment of the term, and offered as tending to mitigate damages, is properly excluded for failure to show that the premises could have been rented by the lessee. Huntington Easy Payment Co. v. Parsons, 9: 1130, 57 S. E. 253, 62 W. Va. 26. 2009. In an action for both actual and punitive damages for causing the ejection of a passenger from a train, his arrest, and his fine by a justice of the peace, the com- plaint, warrant, and a transcript of the record of the justice are, after the plain- tiff has testified to the proceedings before the justice, admissible evidence to show what those proceedings were and who con- ducted them, and to mitigate the damages, or to defeat the claim therefor. Thompkins v. Missouri, K. & T. R. Co. 52: 791, 211 I Fed. 391, 128 C. C. A. 1. Digest 1-52 L.R.A.(N.S.) 2010. Evidence of the appreciation in value of the property because of the im- provement is not admissible in mitigation of damages for damming back water upon abutting property by the constructing of an alley, to its injury. Ewing v. Louis- ville, 31: 612, 131 S. VV. 1016, 140 Ky. 726. For assault. 2011. A defendant in an action for assault and battery cannot give in evidence, in mitigation of punitive damages, the exact words of insult to his daughter for which the assault was committed, which were told to him some time after he learned of the insult and thirty minutes before the as- sault. Lovelace v. Miller, n: 670, 43 So. 734, 150 Ala. 422. (Annotated) 2012. Evidence of insulting language by a passenger on a car, which induced the con- ductor to assault him, is admissible in evi- dence in mitigation of damages in an action against the carrier based on the assault. Jackson v. Old Colony Street R. Co. 30: 1046, 92 N. E. 725, 206 Mass. 477. For libel or slander. 2013. The fact that an unauthorized pub- lication of one's photograph and signature in connection with a patent medicine testi- monial was made innocently and in good faith, believing the signature to be genuine, may be considered in mitigation of damages in an action by the one whose signature was used, against the publisher. Foster-Milburn Co. v. Chinn, 34: 1137, 120 S. W. 364, 134 Ky. 424. 2014. In an action for slander, it is com- petent for the defendant to show in mitiga- tion of damages that, at the time of the defamation complained of, the plaintiff's general reputation was bad with respect to the matters involved in the charge made against him. Wood v. Custer, 38: 1176, 121 Pac. 355, 86 Kan. 387. Aggravation. 2015. Proof of seduction cannot be made in an action for breach of promise of mar- riage, in aggravation of damages. Wrynn v. Downey, 4: 615, 63 Atl. 401, 27 R. I. 451. (Annotated) x. Authority. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to, see supra, II. i. Opinion evidence as to, see supra, 1192, 1193. Evidence of custom to show husband's au- thority, see supra, 1520. Admissibility of receipt signed by agent, see supra, 869. Sufficiency of evidence as to, see infra, 2226, 2227." 2016. In an action to hold a master liable for the act of his servant, for assaulting an- other person fishing in the master's pond, evidence is admissible that prior to the as- sault the servant had recognized the ri^ht of the injured person to fish there. New EVIDENCE, XI. y, z. 1221 Ellerslie Fishing Club v. Stewart, 9: 475, 93 S. W. 598, 123 Ky. 8. 2017; Evidence that a former member of a partnership settled a note which had been executed by his copartner in the firm name after a dissolution of the partnership is admissible in a suit upon another note of the same character, as tending to show that he had recognized the copartner's authority to sign notes in the name of the firm. Seufert v. Gille, 31: 471, 131 S. W. 102, 230 Mo. 453. 2018. Evidence that the conductor had no authority to cause the detention of a pas- senger as a witness to a misdemeanor on the train is not admissible in an action to hold the railroad company liable for false imprisonment because of such detention. New York, P. & N. R. Co. v. Waldron, 39: 502, 82 Atl. 709, 116 Md. 441. 2019. Evidence of a conversation between a tenant of premises leased with a defective coal hole in the sidewalk and the one col- lecting the rent for the property, as to re- pairing the defect, is admissible in an ac- tion to hold the landlord liable for injuries caused by it, as tending to show whether subsequent repairs were made by authority of the landlord, or by strangers. Hill v. Hayes, 18: 375, 85 N. E. 434, 199 Mass. 411. y. Experiments, (See also same heading in Digest L.R.A. 1-10.) See also supra, 835. 2020. Evidence of an experiment made by an expert to determine whether or not a stab in the body of a murdered person sev- ered a particular vein is properly excluded. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. 2021. Evidence of experiment to test the capacity of a child to fire a pistol is ad- missible to repel evidence of one accused of murder, going to show that the child fired the pistol, causing the homicide. State v. Woodrow, 2: 862, 52 S. E. 545, 58 W. Va. 527. 2021a. Upon the question whether or not one found strangled by a strap in his barn met death by accident or suicide, evidence is admissible of experiments showing that, with the strap hanging in a certain manner, an accidental fall upon the strap would tighten it around the neck three times out of four, where the custom to hang the strap over the peg as it hung in the experiment, and the fact that it was not tied around the neck of decedent, are shown, so that the only con dition not shown, and necessary to be in- ferred to make the conditions in the ex- periment the same as those under which the death occurred, is that the strap hung in the form of a loop. Tackman v. Brother- hood of A. Y. 8: 974, 106 N. W. 350, 132 Iowa, 64. (Annotated) Digest 1-52 L.R.A.(N.S.) z. Miscellaneous. (See also same heading in Digest L.R.A. 1-70.) To impeach, discredit, or corroborate wit- ness, see WITNESSES, III. 2022. In an action for libel, it is not com- petent to prove wide and general circiilation of the libel, for the purpose of establishing the falsity of the charge or that the defend- ant was responsible for the libel. Bigley v. National Fidelity & C. Co. 50: 1040, 144 N. W. 810, 94 Neb. 813. 2023. In an action by a surgeon to recover for services rendered to a stranger who had been rendered unconscious by an accident, and who died without regaining conscious- ness, evidence is not admissible that de- cedent's estate will be distributed among collateral relatives. Cotnam v. Wisdom, 12: 1090, 104 S. W. 164, 83 Ark. 601. 2024. Evidence that a trolley pole which struck and killed a conductor was moved farther back from the track after the acci- dent, although incompetent to show an im- plied admission of negligence, is admissible to show the location of the pole at the time of the accident, when it was moved before measurements were taken. East St. Louis & Suburban R. Co. v. Kath, 15: 1109, 83 N. E. 533, 232 111. 126. 2025. In an action by one detained un- lawfully and against her will in a reforma- tory institution, to recover damages for the wrongful imprisonment, evidence is admis- sible as to efforts of her relatives, by means of detectives and advertisements, to ascer- tain her whereabouts. Gallon v. House of Good Shepherd, 24: 286, 122 N. W. 631, 158 Mich. 361. 2026. Upon the question of the propriety of permitting the adoption of a child, a resolution of the State Board of Charity as to its course with respect to the parents' control of the religious instruction of chil- dren under control of the board is imma- terial. Purinton ". Jamrock, 18: 926, 80 N. E. 802, 195 Mass. 187. 2027. The statement of a train master of a railroad that, had the medical examiner found an employee to have been afflicted with color blindness he would have re- ported that fact to the witness, is noi com- petent evidence to disprove the employee's contention that he is color blind. Kane v. Chicago, B. & Q. R. Co. 36: 1145, 132 N. W. 920, 90 Neb. 112. 2028. Evidence that a mortgagor would have sold property enough to pay arrearages due at the time the mortgagee declared the whole sum due and payable for nonpayment of instalments, if the mortgagee had exe- cuted releases according to contract, is in- admissible in an action to foreclose the mortgage, since the right to a release was terminated by the act of declaring the whole sum due. Bartlett Estate Co. v. Fairhaven Land Co. 15: 590, 94 Pac. 900, 49 Wash. 58. 2029. Evidence of the requirement of a li- cense for theaters is inadmissible in an ac- 1222 EVIDENCE, XI. z. tion for services rendered by a fireman at a theater, under an ordinance making the theater manager liable for the value of such services. Tannenbaum v. Rehm, u: 700, 44 So. 532, 152 Ala. 494. 2030. In an action in which it is sought to recover from an irrigation company sums paid it in excess of a reasonable rate for water service, evidence which tends to show the effect of the rate upon those to whom service is rendered is relevant, as well as facts which tend to throw some light upon the company's necessary expenses. Salt River Valley Canal Co. v. Nelssen, 12: 711, 85 Pac. 117, 10 Ariz. 9. 2031. Evidence as to shipments of freight upon a railroad in an action to recover back discriminatory charges is not inadmissible for failure to fix dates, where it merely seeks to lay a foundation on which t > show the character of the business, the character of defendant's roads and business, and plain tiffs dealings with it. Hilton Lumber Co. v. Atlantic Coast Line R. Co. 6: 225, 53 S. E. 823, 141 N. C. 171. 2032. That a particular shipment of freight is interstate does not preclude evidence of the rate of freight charged on it for the purpose of showing discrimination against, shipments for like distances on other brandies of the road. Hilton Lumber Co. v. Atlantic Coast Line R. Co. 6: 225, 53 S E. 823, 141 N. C. 171. 2033. Evidence is admissible of the con- tents of a package delivered to a carrier for transportation, and lost by it, in an action for the value, although the classification marks on it were erroneous. Bottum v. Charleston & W. C. R, Co. 2: 773, 51 S. E. 985, 72 S. C. 375. 2034. In a proceeding to open a street, which, as proposed, would result in a mere cul-de-sac, and therefore be of no benefit to the public, evidence is admissible of a proposal to extend another street at right angles to its termination, and thereby se- cure the necessary thoroughfare and public bench t. Kansas City v. Hyde, 7: 639, 96 S. W. 201, 196 Mo. 498. 2035. The allowance of a elaim against a bankrupt's estate is not evidence against its owner, in an action to hold a stranger liable thereon, in the absence of anything to show that he was responsible for listing the claim in the bankruptcy proceedings. Walter v. Sperry, 44: 28, 85 Atl. 739, 86 Conn. 474. 2036. A real estate broker against whom suit is brought to compel him to turn ovei the proceeds of land sold should be per- mitted to prove what he in fact received for the land. Kvamme v. Barthell, 31: 207, 118 N. W. 766, 144 Iowa, 418. 2037. Evidence as to the commission for securing a life insurance policy is imma- terial in an action to recover a statutory penalty for rebating, where the rebate was given not to an agent, but to an applicant. People v. Hartford L. Ins. Co. 37: 778, 96 N. E. 1049, 252 Til. 398. 2038. Evidence that one accused of alien- ating the affections of another's husband Digest 1-52 L.R.A.(N.S.) told him of her great wealth is not admis- sible in an action to recover damages for such alienation, if there is nothing to show that it was held out as an inducement to him to desert his wife. Phillips v. Thomas, 42 : 582, 127 Pac. 97, 70 Wash. f)33. 2039. Evidence of the spreading of the solid matter fron a sewage purification plant over the adjoining ground is admis- sible under a complaint for operating the plant in such a manner as to constitute a nuisance to neighboring property, where such use of it is part of the common pur- pose of those operating the plant, and it is immaterial that the owner of the plant, which was in possession of a lessee, re- served the right to change or enlarge it at any time it saw fit. Adler v. Pruitt, 32: 889, 53 So. 315, 169 Ala. 213. 2040. Evidence tending to show that an upper riparian owner is using water from a stream sufficient to propel machinery not adapted to the size and capacity of the stream is admissible upon the trial of a suit by a lower owner against such upper owner for damages sustained because of the unreasonable diminution and detention of the water in the stream. Price v. High Shoals Mfg. Co. 22: 684, 64 S. E. 87, 132 Ga. 246. 2041. In a contest between the applicant, the maternal grandfather, for guardianship of a child of tender years and the caveator, the paternal grandfather, testimony of the wife of the applicant, to the effect that her daughter "gave her [the child] to me," is admissible for consideration by the jury in the trial of the issue of the case. Churchill v. Jackson, 49: 875, 64 S. E. 691, 132 Ga. 666. 2042. In a contest between the applicant, the maternal grandfather, for guardianship of a child of tender years, and the caveator. the paternal grandfather, it is incompetent to introduce in evidence testimony showing the invalidity of the will of the child's fa- ther which had previously been admitted to probate. Churchill v. Jackson, 49: 875, 64 S. E. 691, 132 Ga. 666. 2043. In an action against a city for in- juries from falling on an icy sidewalk it is not error to introduce in evidence the char- ter of the city, which gives it the power to require the owner or occupant of any premises to keep the sidewalks in front of and along the same free from snow or other obstruction, or the ordinances of the city which provide that the owners and occu- pants of the land shall clear the sidewalks of all accumulations of snow and ice within ten hours after the same have fallen or accumulated, under liability to a fine; the court being justified in assuming that such charter and ordinances were introduced not for the purpose of prejudicing the jury, and making them believe that the owner or oc- cupant would be ultimately liable in the action, but for the purpose of showing an assumption of control by v the city, and its construction of its duty in relation to the sidewalks in question, as well as the right of the plaintiff to rely upon such assump- EVIDENCE, Xil. a. 1223 tion. Jackson v. Grank Forks, 45: 75, 140 N. W. 718, 24 N. D. 601. 2044. 'Hie ijoniogeneuus business of a mas- ter in dismantling machinery in the different buildings of a world's fair cannot be di- vided nuo distinct and separate departments, so as to bring it within a rule to the effect that the superintendent of a distinct depart- ment of a vast, diversified business may be .a vice principal, by the testimony to that effect of his servants, and such testimony is incompetent for that purpose, as the na- ture of the business alone can separate it into departments. Westinghouse, C. K. & -Co. v. Callaghan, 19: 361, 83 C. C. A. 609, 155 Fed. 397. 2045. A witness cannot be asked how a sample of oleomargarin compares in color with the color of butter manufactured for certain markets, for the purpose of showing that it resembles yellow butter. State v. Meyer, 14: 1061, 114 N. W. 501, 134 Wis. 156. XII. Weight, effect, and sufficiency, a. In general. (See also same heading in Digest L.R.A. 1-10.) Variance between pleading and proof, see infra, XIII. d. Sufficiency of assignment of error as to, see APPEAL AND ERROR, 273-276. Presumption on appeal as to sufficiency of evidence, see APPEAL AND ERROB, 450. Review of facts on appeal, see APPEAL AND ERROR, VII. 1. Effect of interest of witness on weight and quality of his evidence, see APPEAL AND ERROR, 617. First objecting to, on appeal, see APPEAL AND ERROR, 782, 783. Prejudicial error in instruction as to weight of evidence, see APPEAL AND ERROR, 1378, 1388. Instruction as to weight of dying declara- tions, see APPEAL AND ERROR, 1389. Certifying question as to, see CASES CER- TIFIED, 4. Constitutionality of statute as to, see CON- STITUTIONAL LAW, 625, 626. Absence of testimony to support complaint in injunction proceeding, see INJUNC- TION, 424. Sufficiency of evidence to establish necessity of existence of hotel, see INNKEEPERS, 1. Sufficiency of evidence to show that one is not a bona fide tavern keeper, see INN- KEEPERS, 2. Insufficiency of evidence as ground for va- cating judgment, see JUDGMENT, 340. Sufficiency of preponderance of evidence of truth of charge to justify verbal accu- sation, see LIBEL AND SLANDER, 176. As ground for new trial, see NEW TRIAL, 28-30. Remark of judge as comment on facts, see TBIAL, 87. Digest 1-52 L.R.A.(N.S-) Sufficiency to overcome presumption as question for jury, see 'IRIAL, 161, 243, 364, 366, 368. Instructions as to, see TRIAL, 944-953. Instructions as to credibility of witnesses, see TRIAL, 958-964. Sufficiency of evidence to go to jury, see TRIAL, II. b. Credibility of witnesses, see WITNESSES, IV. See also supra, 1261. 2046. A fact may be established by incom- petent evidence, if it is material, when it is received without objection. Lindquist v. Dickson, 6: 729, 107 N. W. 958, 98 Minn. 369. 2047. A fact may be established by in- competent evidence, if material, where it is received without objection. Plunkett v. Jaggar, 25: 935, 106 Pac. 280, 81 Kan. 565. 2048. The jury is not absolutely bound by the testimony of a witness, although it is not contradicted by direct evidence, where the evidence itself indicates that it is un- worthy of belief. Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. 2049. The presumption of the constitution- ality of a 2-cent passenger-rate act may be rebutted by very slight evidence when it was passed without investigation and in obedience to popular agitation, not only in the state, but over the whole country. Penn- sylvania R. Co. v. Philadelphia County, 15: 108, 68 Atl. 676, 220 Pa. 100. 2050. Evidence offered and admitted for the purpose of showing that a particular matter has been litigated and judgment ren dered thereon cannot be considered for any other purpose. William Deering & Co. v. Mortell, 16: 352, 110 N. W. 86, 21 S. D. 159. 2051. Weight will be given to corroborated statements of persons suffering from the effects of a personal injury, although they are made while under great pain, and at the persistent importunity of one alleged to be responsible for the injury, if they are mnrle after time for reflection. Morris v. Illinois C. R. Co. 31:629, 53 So. 698, 127 La. 445. 2052. A judgment in favor of plaintiff can- not, in the absence of any explanation of the inconsistency, be based on evidence given by him which is materially inconsistent with his testimony on a former trial, upon a matter within his personal knowledge, and which supplies a weakness in the case as first made. Smith v. Boston Elevated R. Co. 37: 429, 184 Fed. 387, 106 C. C. A. 497. 2053. A prosecution for the violation of a city ordinance which does not embrace any offense made criminal by the laws of the state, although in form a criminal prosecution, is, in fact, a civil proceeding to recover a penalty; and proof beyond a reasonable doubt is not required to sus- tain a conviction, but clear and satisfactory proof that the offense has been committed is sufficient. Peterson v. State, 14: 292, 112 N. W. 306, 79 Neb. 132. 2054. No corroboration of the testimony of relatrix in a bastardy proceeding is neces- sary to warrant a conviction. Evans v. 1224 EVIDENCE, XII. b. State ex rel. Freeman, 2: 619, 74 N. E. 244, 165 Ind. 369. Expert testimony; opinions. See also supra, 1165; infra, 2114. 2055. The ultimate weight to be given to the opinion of an expert is for the jury, which may accept it, or reject it and act upon its own judgment as applied to the general evidence in the case. Alabama G. S. R. Co. v. McKenzie, 45:18, 77 S. E. 647, 139 Ga. 410. 2056. Expert evidence as to a matter of which a layman can have no knowledge, such as post mortem digestion, must be de- pended upon by the court and jury, and cannot arbitrarily be cast aside, where there is no contradictory evidence. Flege v. State, 47: 1106, 142 N. W. 276, 93 Neb. 610. 2057. The court will not determine, as matter of common knowledge, that a train which comes into collision with and in- jures a person on the track might have been stopped more quickly than it was by re- versing the engine, where the engineer tes- tifies that, although the engine was not reversed, the most efficient means for quick- ly stopping the train were employed. Har- ris v. Nashville, C. & St. L. Railway, 14: 261, 44 So. 962, 153 Ala. 139. (Annotated) Circumstances. Failure to instruct as to weight of circum- stantial evidence, see APPEAL AMD EBROB, 1436, 1437. Positive and negative. See infra, 2239. &. Cause and effect. (See also same heading in Digest L.R.A.. 1-10.) Presumption and burden of proof, see supra, II. g. 2058. That firemen would have been able to prevent the destruction of a building by fire had they not been interfered with may be found by the fact that the buildings on fire were small and burned slowly, and that, but for. the interference, they would have reached the scene seventeen minutes before the building in question began to burn, and would have been fully equipped to fight the fire. Houren v. Chicago, M. & St. P. R. Co. 20: mo, 86 N. E. 611, 236 111. 620. 2059. The jury will not be permitted to in- fer the buckling of a freight train and the falling of a car in the path of another train on the adjoining track from the fact that the train, consisting of 68 cars, proceeding up grade 7 or 8 miles an hour, was stopped in 5 or 6 car lengths by the application of air Lrakes to the first half of the cars, depending upon their inertia to arrest the motion of the other ca'rs. Lewis v. Penn- sylvania R. Co. 18: 279, 69 Atl. 821, 220 Pa. 317. 2060. Evidence that a carrier, by delay in transporting a horse, exposed it to cold and stormy weather, and, for five or six hours after the arrival of the animal at the end of its line, neglected to deliver it to the Digest 1-52 L.R.A.(N.S.) consignor, who paid the charges and de- manded possession of the animal, which had become ill, and which thereafter died of pneumonia, is sufficient to sustain a finding that the carrier's delay constituted negli- gence proximately causing the death of the horse. Wente v. Chicago, B. & Q. R. Co. 15: 756, 115 N. W. 859, 79 Neb. 179. Fires. See also supra, 2058. 2061. The jury may find that the contents of a building were set on fire between the beginning and ending of an earthquake which lasted forty-five seconds, from evi- dence that from four to five minutes after the shock the contents were burning with a good body of fire, and that there were live electric wires running into the building. Davis v. Connecticut F. Ins. Co. 32: 604, 112 Pac. 549, 158 Cal. 766. Set by locomotive. 2062. That a fire which communicated to and destroyed adjacent property was set out by a railroad locomotive may be found from evidence that immediately after a train passed, fire was seen on the right of way. New York, C. & St. L. R. Co. v. Roper, 36: 952, 96 N. E. 468, 176 Ind. 497. 2063. The jury may find that a fire was set out by a passing locomotive from evidence that, at the time of its passing, it was throw- ing out large quantities of sparks, that oth- er fires had been discovered at the same place soon after the passing of locomotives, and that the fire complained of was discov- ered in inflammable material negligently al- lowed to accumulate on the right of way, al- though the discovery was not made until the lapse of a considerable time after the pass- ing of the locomotive. Hawley v. Sumpter Valley R. Co. 12: 526, 90 Pac. 1106, 49 Or. 509. 2064. Where the evidence in an action against a railroad company for damages due to fire shows that the locality where the fire was claimed to have started was uninhabited, that the fire was discovered in the dry grass on and adjacent to the right of way almost immediately after the train passed, and where other causes are fairly negatived, the evidence is sufficient to justify the conclusion that the fire was set by the locomotive that had just passed. Farrell v. Minneapolis & R. R. R. Co. 45: 215, 141 N. W. 491, 121 Minn. 357. 2065. Mere proof that fire which destroyed neighboring property originated on the right of way of a railroad is not sufficient to hold the railroad company liable for the loss, where the statute makes it liable for damages caused by fire originating from engines, from that set out by employees under direction of the company, or other- wise originating in the construction or operation of the road. Hewitt v. Pere Mar- quette R. Co. 41:635, 137 N. W. 66, 171 Mich. 211. 20fi6. That fire to neighboring property- was communicated by the engines of a rail- road company may be found from the facts that the fire was discovered shortly after locomotives had passed, and that pieces of EVIDENCE, XII. b. 1225 coke and cinders with the heat of fire still in them were found at the place where the fire originated. Jensen v. South Dakota . R. Co. 35: 1015, 127 N. W. 650, 25 S. D. 506. i Personal injuries. Presumption and burden of proof as to, see supra, 324-329. Provision in policy as to evidence required, see INSURANCE, 723. Sufficiency of evidence to go to jury, see TRIAL, 142. 2067. Proof of the existence of a nail pro- jecting from the floor near a machine a week after an employee stumbles over some- thing at that point and falls into the ma- chine to his injury will justify a finding that it was there at the time of, and was the cause of, the accident. Young v. Snell, 19: 242, 86 N. E. 282, 200 Mass. 242. 2068. In an action by a track repairer struck by a switch engine, to recover dam- ages for the injury sustained, the evidence is insufficient to sustain a verdict based on the ground that the engine was operated at an excessive rate of speed, where the per- son injured testified that he did not observe the approach of the engine, and therefore could not have relied upon the observance of the custom to operate engines in the yards at a certain rate of speed. Joyce v. Great Northern R. Co. 8: 756, 110 N. W. 975, 100 Minn. 225. 2069. The master's negligence in failing to guard a machine is sufficiently shown to have been the proximate cause of an injury where circumstantial evidence tended di- rectly to show that the servant received such injury by coming in contact with an unguarded belt and pulley, in the absence of a showing of any other cause to require a jury finding as to whether it was negli- gence not to provide a guard, and whether, if that negligence was proved, it was the proximate cause of the injury. Rase v. Minneapolis, St. P. & S. Ste. M. R. Co. 21 : 138, 120 N. W. 360, 107 Minn. 260. 2070. The inability of a helper on a com- plicated machine to understand the lan- guage of his superior may be found to be the cause of the latter's loss of fingers, cut off by the machinery, where they were caught in such a way as to be fastened, but not injured, and the superior directed the helper, whose duty it was to do so, to put the power off from the machine, but the latter, not knowing the situation, and not understanding the directions, started the machine, cutting off the fingers. Beers v. Prouty, 20: 39, 85 N. E. 864, 200 Mass. 19. Death. Presumption and burden of proof, see su- pra, 152-156, 327, 329. Sufficiency of evidence to go to jury, see TRIAL, ]01. See also infra, 2377. 2071. It is not necessary, in order to re- cover for death alleged to have been occa- sioned by the negligent administration of chloroform, to exclude other possible causes, it being enough to show that this was the probable cause. Boucher v. Larochelle, 15: 416, 68 Atl. 870, 74 N. H. 433. (Annotated) Digest 1-52 1L.R.A.(N.S.) 2072. Death by inhalation of gas by a miner is sufficiently shown by evidence that it was present in a drift, that another was overcome by it, and that deceased in at- tempting to rescue him was also overcome and died, that others of the rescuing party were more or less affected by it, and were finally obliged to make use of helmets before they succeeded in effecting the rescue. Da Rin v. Casualty Co. 27: 1164, 108 Pac. 649, 41 Mont. 175. By defective highway. 2073. The jury may find that a person found in a river bed after he had attempted to drive across the bridge was precipitated there because of absence of barriers or guard rails upon the bridge approach, al- though there is no direct evidence upon the subject, if the circumstances proved are such as to render such conclusion more probable than that it was due to some other ?ause. Magee v. Jones County, 48: 141, 142 N. W. 957, 161 Iowa, 296. 2074. Absence of barriers on the bridge approach may be found to be the cause of injury to a person who lost consciousness when driving a gentle, blind horse towards the bridge, and was afterwards found, to- gether with the horse and wagon, on the river bottom, since it may be assumed that barriers would have turned the horse and prevented it going off the side of the approach. Magee v. Jones County, 48: 141, 142 N. W. 957, 161 Iowa, 296. By railroad car. 2075. Direct evidence of eyewitnesses is not necessary to establish the fact that a per- son found dead on a railroad track was killed by a car. Southern R. Co. v. Cap- linger, 49: 660, 152 S. W. 947, 151 Ky. 749. 2076. A pedestrian in a street in the night may be found to have been killed by a car making a flying switch, from evidence of a train hand that, after the engine passed, lie saw the pedestrian start across the track in the path of the following car, when his vision was obscured by smoke, and a few minutes later his body was found at about the point where the car would naturally have struck him. Southern R. Co. v. Cap- linger, 49: 660, 152 S. W. 947, 151 Ky. 749. Of insured. 2077. Though the condition of the heart of one insured in an accident insurance pol- icy may have been such as more readily to permit a rupture thereof through a fall, it not having been shown that death would have ensued at the time it did but for the accident, a jury is warranted in finding tliat the accident was the proximate cause of the death. Moon v. Order of United Com- mercial Travelers, 52: 1203, 146 N. W. 1037, 96 Neb. 65. 2078. That a person delirious from fever fell from a window to his death does not establish suicide as matter of law, since the presumption against self-destruction is sufficient to sustain a finding that the fall was accidental, and not intentional. Bohaker v. Travelers' Ins. Co. 46:543, 102 N. E. 342, 215 Mass. 32. 1226 EVIDENCE, XII. c. 2079. The injuries which caused the death of a person may be found to have resulted in part from the burning of a building, within the meaning of a policy of accident insurance, where he went into it to perform some work, and was found a short time afterward unconscious in it, badly burned, and having inhaled smoke and flame, and at the time he was found the floor and roof of the room where he was were more or less burned. Wilkinson v. ^Etna L. Ins. Co. 25: 1256, 88 N. E. 550, 240 111. 205. 2080. The facts and circumstanced of a drowning accident are sufficient!}* estab- lished, within the meaning of an accident-in- surance policy limiting the amount of re- covery in case they are not so established, where witnesses testify to having seen de- ceased in a cranky canoe, with a companion, within three or four minutes of the time of accident, and to having seen the over- turned canoe and evidence of its having re- cently capsized, within a few minutes after it, although they did not actually see the craft overturn. Lewis v. Brotherhood Acci- dent Co. 17: 714, 79 N. E. 802, 194 liass. 1. c. Fraud or good -faith; malice; undue influence. (See also same heading in Digest LJI.A. 1-10.) Fraud or good faith. Presumption and burden of proof as to, see supra, II. e, 7. Sufficiency of evidence to take question to jury, see TRIAL, 104, 113-120. See also infra, 2099, 2103, 2219. 2081. The discharge, of one guilty of felony and arrested without a warrant is not con- clusive proof, in an action for false impris- onment, that the prosecution was not begun in jrood faith. Atchison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 2082. To establish fraud which will permit the controlling of a written contract by a contemporaneous parol agreement, the evi- dence must be clear and satisfactory. Lep- ley v. Andersen, 33: 836, 125 N. W. 433, 142 Wis. 668. (Annotated) 2083. One seeking an accounting of profits for infringement of his trademark is not barred from claiming that he had not been guilty of fraud which would prevent his re- covery by isolated facts brought out on the hearing before the master, avowedly for an- other purpose, and with no view to raising that issue. Nelson v. J. H. Winchell & Co. 23: 1150, 89 N. E. 180, 203 Mass. 75. 2084. Testimony as to the income of a busi- ness for a certain year will not be credited as a basis for defeating a recovery for false representations concerning it in effecting a sale of the business in the absence of the books, which are missing through no fault of the purchaser. Smith v. Werkheiser, 15: 1092, 115 N. W. 964, 152 Mich. 177. 2085. An architect's certificate for work nay be found not to h.ve been withheld in good faith, where the work was accepted Digest 1-5* L.R.A.(N.S.) and used for several years without objec- tion, until an attempt was made to enforce a mechanics' lien ypon the property to seen e- compensation for it. Thaler v. Wilhelm Greisser Constr. Co. 33: 345, 79 Atk 147, 229 Fa. 512. 2086. In a suit by a grantor to set aside a deed as fraudulently procured, where the oral evidence of the parties relating direct- ly to the execution of the instrument is- flatly contradictory and wholly irreconcil- able, circumstances bearing on the issue must be allowed unusual prominence and effect, and their controlling force be made to depend more upon their character and power to create mental impression than upon their number and variety. Hale v. Hale, 14: 221, 59 S. E. 1056, 62 W. Va. 609. In procuring release. Admissibility of evidence, see supra, 16G9, 1670. 2087. That a release of liability for negli- gently killing a person was induced by fraud may be found from the fact that the responsible person represented that his at- torney, having full knowledge of the cir- cumstances and cause of action, said that there was no liability for the death, and that the person signing the release need not go to the expense of looking up the facts and seeking advice, but migut settle the case upon the opinion of such attorney- Olston v. Oregon Water Power & R. Co. 20: 915, 96 Pac. 1095, 97 Pac. 538, 52 Or. 343. 2088. Evidence that on the day following that on which a railway passe. .ger was in- jured, while in the railway company's hospi- tal, away from friends and while still suffer- ing from the effects of the injuries, the ex- tent of which she did not know and was ap- parently not in a position to ascertain, she- was visited by a claim agent and physician of the railway company, who, desiring to effect a settlement and to induce plaintiff to sign a release for a grossly inadequate sum, represented that her injuries were slight and temporary, when in fact they were serious and dangerous, as the physician knew, or should have known in the exercise of proper care, which representations, being believed, induced the signing of the release, which would not have been done had the true con- dition been known to plaintiff, sufficiently sustained a finding that the release was pro- cured by fraud. St. Louis & S. F. R. Co. v. Richards, 23: 1032, 102 Pac. 92, 23 Okla. 256. Fraud of creditors. 2089. Compliance, by the grantee, with a request by a grantor of property to with- hold the deed from record, does not estab- lish fraud on the part of the grantee, where there is nothing in the circumstances to ex- cite suspicion on his part. Beechley v. TVechley, 9: 955, 108 N. W. 762, 134 Iowa, 75. 2090. A jury is warranted in finding that a sale of hay to he stored in the seller's barn was ma^e in good faith, where the buyers, who employed a number of horses in different localities, moving from place to place, did not need the hay immediately,. EVIDENCE, XII. c. 1227 the place was convenient for storage, the price paid was fair, and the method of es- timating the quantity by measurement was convenient and approximately correct. Barber v. Andrews, 26: i, 69 Atl. 1, 29 R. I. 51. 2091. Collusion in the payment of a check on an insolvent bank is not shown by the fact that the cashier refused to pay it when presented, but put the funds aside for future payment, and that the president of the bank went with the depositor in the night to secure the fund, but failed, so that it was not paid until in the usual course of busi- ness after the bank had opened the follow- ing morning. Wilson v. Baker Clothing Co. 50:239. 137 Pac. 896, 25 Idaho, 378. 2092. Evidence that an officer of an insol- vent corporation overdrew his account with the corporation, and paid the amount in discharge of an alleged indebtedness to his son, who, knowing the source' from whence the money came, deposited it in a bank, is sufhcient to support a finding, in an action by the trustee in bankruptcy of the corpora- tini, that the money on deposit is the prop- erty of the bankrupt corporation. Drew v. Myers, 17: 350, 116 N. W. 781, 81 Neb. 750. 2093. A finding that property of a corpo- ration organized to brew and sell beer was conveyed to the secretary of the corpora- tion to evade responsibility for previous infractions of the laws of the state where the property was located is supported by proof that the secretary advised the sale to avoid "trouble and complications," that the property was used for the sale of the corpo- ration's beer after the conveyance precise- ly as it had been used before, that the cor- poration furnished bar fixtures for such property, both before and after the convey- ance, upon which it paid taxes, and that the property was looked after and the rents col- lected by the same agent, the only differ- ence being that he accounted therefor to the secretary instead of to the corporation. State ex rel. Jackson v. Wm. J. Lemp Brew. Co. 29: 44, 102 Pac. 504, 79 Kan. 705. 2094. An agreement for a payment to an inspector of an insolvent estate, to influence his consent to an arrangement which is not for the general benefit of the creditors, is of itself sufficient reason for adjudging the transaction to induce which it was made, to be corrupt, fraudulent and void. Brigham v. La Banque Jacques Cartier, 2 B. R. C. 449, 30 Can. S. C. 429. Malice. Presumption and burden of proof, see su- pra, II. e, 6. Sufficiency of evidence to take question to jury, see TRIAL, 104. 2095. To hold a man liable for causing his son to separate from his wife, the measure of proof of malice must be greater than is necessary in case of a mere stranger. Ickes V. Ickes* 44: ii 18, 85 Atl. 885, 237 Pa. 582. 2096. A servant of a railroad company may be found not to have been free from malice in cutting telephone wires across the tracks, so as to be absolved from criminal liability, although he acted under direction Digest 1-52 L.R.A.(N.S.) of his employer, where the wires did not interfere with the movement of trains or endanger employees, and he had been told by the telephone company not to touch the wires, and warned of the consequence. Alt v. State, 35: 1212, 129 N. W. 432, 88 Neb. 259. 2097. Evidence that a landowner, when re- quired to raise a cement walk in front of his lot to conform with the grade of a walk erected in front of an adjoining lot, stated that he would erect a fence between the lots, and that he did so erect a high board fence, although there previously was a wire fence on the line between the lots, and a failure on his part to show any useful purpose or any other object in building the fence than to punish the adjoining owner and others for causing the raising of the walk, is sufficient to show that the fence was not built for any useful purpose, but for the sole purpose of annoying and pun- ishing the adjoining owner. Bush v. Mock- ett, 52: 736, 145 N. W. 1001, 95 Neb. 552. In making libelous or slanderous statement. 2098. Mere falsity of a statement made by one having a qualified privilege is not suffi- cient to establish malice. Trimble v. Moor- ish, 16: 1017, 116 N. W. 451, i52 Mich. 624. 2099. The good faith of a newspaper in publishing defamatory matter may be estab- lished by showing that it was furnished by a reliable reporter of long experience, and was accepted and published as a news item in reliance upon its truth. Courier- Journal Co. v. Phillips, 32: 309, 134 S. W 446, 142 Ky. 372. 2100. Statements by the president of a federation of women's clubs, upon a priv- ileged occasion of a consultation as to methods of suppressing theft at meetings of a local club, with respect to a particular person, that, although there was no posi- tive proof, she was convinced; that the suspect's husband had "paid her out be- fore," and, as a reason for the conduct, that she was "as poor as Job's turkey-," are not per se evidence of malice. Hayden v. Hasbrouck, 42: 1109, 84 Atl. 1087, 34 R. I. 556. 2101. The mere expression in a communi- cation to voters of a desire to defeat a cer- tain candidate for office is not sufficient to show a malicious motive for the publica- tion, so as to render the publisher answer- able for libel in case there are false state- ments in the publication, tending to injure the candidate, where there was probable cause for the statements. Schull v. Hop- kins, 29: 691, 127 N. W. 550, 26 S. D. 21. 2102. Probable cause for charging a candi- date for re-election to the office of state's attorney with unfitness for office because of unwillingness to prosecute gamblers exists where he was seen about gambling places, did not act upon complaints against gam- blers, and locked his doors against a com- mittee seeking to interview him upon the subject. Schull v. Hopkins, 29: &gi, 127 S. W. 550, 26 S. D. 21. 1228 EVIDENCE, XII. y testimony that he was making the deal for himself, and had a deed to the property, which he was offering, which would ennMe him to close the deal. Lucas v. Western U. Teleg. Co. 6: 1016, 109 N. W. 191, 131 Iowa, 669. 21 84. That timber which was claimed un- der certain deeds is of the requisite size to meet the demand of such deeds sufficiently appears from testimony that it was part of the timber described in the deeds. VVim- brow v. Morris, 47: 882, 84 Atl. 238, 118 Md. 91. 2185. The existence of a valid location on a mining claim at the time of a second lo- ation thereon is not established as matter of law by evidence on behalf of a relocator, after the expiration of the statutory period 'or the performance of labor thereon, to the effect that a location had been made on the property, and the statutory time for the performance of labor had not expired at the ;ime of the second location, but that no abor had been done on the claim; since it does not negative the abandonment in fact of the first location at the time the second vas made. Farrell v. Lockh*rt, 16: 162, 28 ~up. Ct. Rep. 681, 210 U. S. 142, 52 L. ed. 994. 2186. The release of a right of way cannot be presumed from the evidence of a single unfriendly witness, as to a declaration of abandonment by the owner of the way, who has since deceased, made thirty-five years EVIDENCE, XII. f. 1235 before the trial in the presence of such wit- ness, who was then only nineteen years old. Adams v. Hodgkins, 42: 741, 84 Atl. 530, 109 Me. 361. 2187. An oil and gas lease giving the lessees the right for a period of ten years to explore for oil and gas, and providing that, if a well is not completed on the leased premises within three months from the date thereof, the lessees shall pay to the lessor in advance a quarterly cash rental for each additional three months the completion of a well is delayed, is proven to have been vol- untarily abandoned by the lessees by evi- dence that they failed to make any explora- tion for oil and gas on the premises for more than a year after the date of the lease, and their failure to pay three successive quarterly rentals, when taken in connection witli the fact that they considered their rights thereunder terminated when they failed to make the third quarterly pay- ments, at which time they regarded the lease as of no value. Smith v. Root, 30: 176, 66 S. E. 1005, 66 VV. Va. 633. 2188. That lands standing in the name of a member of a partnership were partner- ship property may be shown by the fact that he permitted them to be dealt with as partnership property, and failed to list them as belonging to him in his will. Johnson v. Hogan, 37: 889, 123 N. W. 891, 158 Mich. 635. 2189. The fact that a city paved part of the land of a wharf company claimed by it as a public street without collecting the cost thereof from the wharf owner, as it had a right to do in case of the paving of a wharf, is not conclusive of an implied dedication and acceptance thereof of the land as a street. Savannah v. Standard Fuel Supply Co. 48: 469, 78 S. E. 906, 140 Ga. 353. 2190. The fact that a railroad company constructed a track over a part of wharf property under an ordinance of the munic- ipality granting permission to lay it upon a street, and exempting the city from dam- ages if laid upon private property, is too inconclusive an act on which to base dedi- cation or prescription of the wharf oc- cupied by the railroad as a part of the street. Savannah v. Standard Fuel Supply Co. 48: 469, 78 S. E. 906, 140 Ga. 353. Bv adverse possession. 2191. Intention to claim adversely up to a division fence, which will give title by adverse possession, may be found from the fact that the claimant and his grantors had been in possession, claiming title up to the fence for more than fifteen years, and that the owner of the neighboring prop- erty made no claim beyond the fence for all that time. Fdwards v. Fleming, 33: 923, 112 Pac. 836, 83 Kan. 653. 2192. Mero evidence that possession was taken of land under the mitnken belief that it was part of the publ'c domain, for the purpose of acquiring title from the state by compliance with the law providing therefor, dnps not show that it wns ad- verse to the true owner, if the title was in Digest 1-52 L.R.A.(N.S.) fact in a private citizen. Smith v. Jones, 31: 153, 132 S. W. 469, 103 Tex. 632. (Annotated) Rights of public. 2193. Although evidence of acts on the part of the public running through a long period of time is not of itself sufficient to establish a public right as against a private record title, it may be considered in connec- tion with the fact that the commonwealth maintained an adverse possession through its lessees for twenty years, as tending to establish title in the commonwealth. Ma- lone ex rel. Harbor & Land Comrs. v. Ellis, 15: 1120, 84 N. E. 430, 198 Mass. 91. Water rights. Presumption and burden of proof, see su- pra, 593, 594. 2194. Evidence of the cutting away of a river bank by the driving of logs from 6 to 10 feet along a stretch of 800 to 1,000 feet shows injury, at least to the extent of $50. Mitchell v. Lea Lumber Co. 9: 900, 86 Pac. 405, 43 Wash. 195. 2195. The mere fact that a dam in a ditch constructed to carry a portion of the water of a river tends to impede the flow of water through the ditch does not necessarily show injury to the owners of lands on the river. Stimson v. Brookline, 16: 280, 83 N. E. 893, 197 Mass. 568. 2196. A finding that the diversion of water from its bed, while it passes through ri- parian land, does not interfere with the rights of an appropriator of the underflow at a point lower down the stream, is sus- tained by evidence that the additions to the underflow where the stream passes through such land are sufficient to cause the water to flow on the surface above the point where the diverted water is returned to the bed of the stream. Mentone Irriga- tion Co. v. Redlands Electric Light & P. Co. 22: 382, 100 Pac. 1082, 155 Cal. 323. 2197. Abandonment of a right to flow lands for a millpond may be found from evidence that the principal mill had been dismantled and removed from the mill site ten years before the controversy as to the right to continue it arose, that for eight of those years occasionally grists of grain had been ground by an old building on the premises, that the public h,ad not been served by operation of the mill, that the pond had been used principally to produce ice. and that for two years the dam was permitted to remain in a demolished con- dition. Cross v. Jones, 32: 47, 122 N. W. 681, 85 Neb. 77. (Annotated) /. Matters as to persons; relation of parties. (See also same heading in Digest L.R.A. 1-10.) Innocence. 2108. A provision in a statute (Minn. Gen. S<-at. 1013, 8721) that claimants of personalty used in maintaining a bawdy- house must prove innocence to the satis- faction of the court is not subject to the 1236 EVIDENCE, XII. f. objection that it calls for more than a pre- ponderance of the evidence. State ex rel. Robertson v. Lane, 52: 932, 147 N. W. 951, 126 Minn. 78. Insolvency. Presumption and burden of proof, see supra, 129. Admissibility of evidence, see supra, 1955, 1956. 2199. The insolvency of a concern on the date when it made a payment alleged to have constituted a preference is not estab- lished by evidence of the trustee that, in his opinion, based on an examination of its books, it was at that time insolvent. Tum- lin v. Bryan, 21: 960, 165 Fed. 166, 91 C. C. A. 200. 2200. The insolvency of a concern at the time it made a payment which is sought to be set aside as a preference cannot be estab- lished by the schedules, filed several months later, showing the debts and assets at the time of the institution of bankruptcy pro- ceedings, without anything to show the amount of its property at the date of the payment. Tumlin v. Bryan, 21: 960, 165 Fed. 166, 91 C. C. A. 200. 2201. Insolvency, or inability of a vendor of realty to pay a mortgage indebtedness or to respond in damages for breach of a cove- nant against encumbrances, sufficient to warrant recovery against a recorder of deeds for his negligent failure to record such mort- gage, as required by law, is not shown where the only evidence is the testimony of a single witness, several years after the trans- action in question, that he has been unable to make collections against the covenantor, that she has left the county and has no property there, and that, in his opinion, she is insolvent at the time of trial, as such evidence does not tend to show insolvency at the time of the transaction, but several years afterward. Rising v. Dickinson, 23: 127, 121 N. W. 616, 18 N. D. 478. Marriage. Presumption and burden of proof, see su- pra, II. e, 2. Insufficiency of evidence as ground for vacat- ing divorce decree, see JUDGMENT, 340. See also infra, 2210. 2202. Record evidence is not necessary to establish a marital relation. Smith v. Fuller, 16: gk, 115 N. W. 912, 138 Iowa, 91. 2203. The marriage may be proved by the testimony of the parties thereto, in an action for criminal conversation, without the necessity of producing the marriage certificate. Stark v. Johnson, 16: 674, 95 Pac. 930, 43 Colo. 243. 2204. Testimony of both the contracting parties to a marriage ceremony, that it was not dissolved until after the death of a person with whom one of the parties went through a subsequent ceremony overcomes any presumption which the court might otherwise have indulged as to the dissolu- tion of the first marriage before the second was entered into. Sloan v. West, 17: 960, 96 Pac. 684, 50 Wash. 86. Divorce. 2205. To justify a divorce for adultery, a Digest 1-52 I,.R.A.(N.S.) preponderance of evidence of the fact is suf- ficient; it need not be clear, cogent, and convincing. Ellett v. Ellett, 39: 1135, 72 S. E. 861, 157 N. C. 161. 22U6. Though circumstantial evidence is- admissible and sufficient to prove adultery in a suit for divorce, it must, be so clear and strong as to carry conviction of the truth of the charge, and, if it does no more than raise a suspicion of chastity, it is insuf- ficient. Hull' v. Huif, 51: 282, 80 S. E. 846. 73 W. Va. 330. Necessity for corroboration. 2207. Corroboration of the testimony of plaintiff in a divorce proceeding as to the infliction upon him of grievous mental suf- fering by defendant's acts is not required by a statute providing that no divorce can be granted upon the uncorroborated testi- mony of the parties. MacDonald v. Mac- Donald, 25: 45, 102 Pac. 927, 155 Cal. 665. (Annotated) 2208. When a defendant in a divorce case pleads a counter-matrimonial offense against the petitioner in bar of the suit, the offense so pleaded is not made ou'; un- less supported by corroborating evidence the same as though it were made the basis of an application for divorce. Rogers v. Rogers (N. J. Err. & App.) 46:711, 86 Atl. 935, 81 N. J. Eq. 479. 2209. Uncorroborated evidence of a woman of nonaccess, by the man she subsequently married, and with whom prenuptial illicit relations are admitted, during the period when she became pregnant by another of a child born in wedlock, will not entitle him to the benefit of a statute authorizing a divorce in case she was, without his knowl- edge, so pregnant at the time of the mar- riage. Wallace v. Wallace, 14: 544, 114 N. W. 527, 137 Iowa, 37. Illegitimacy. 2210. That a man and woman lived to- gether as husband and wife, and called a child of the marriage their daughter, and that she called them father and mother, is sufficient prima facie evidence of their mar- riage and of her legitimacy. Re Hartman, 36: 530, 107 Pac. 105, 157 Cal. 206. 2211. Before a child begotten in lawful wedlock can be adjudged a bastard, the proof must be clear, certain, and conclusive either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child. Powell v. State ex rel. Fowler, 36: 255, 95 N. E. 660, 84 Ohio St. 165. (Annotated) Birth. 2212. Birth may be proved by general re- pute in the family. Luke v. Hill, 38: 559, 73 S. E. 345, 137 Ga. 159. Death of insured. 2213. One seeking to recover on a policy of insurance upon the life of one who dis- appeared without explanation, and has been absent from home for more than seven years, is not bound to satisfy the jury of his death beyond a reasonable doubt, a pre- ponderance of evidence being sufficient. EVIDENCE, XII. f. 1237 Kennedy v. Modern Woodmen of America, 28: 181, 90 N. E. 1084, 243 111. 560. 2214. A finding in an action on a benefit certificate, that the insured died prior to the 29th of July, 1902, is supported by evidence that he was a man of good habits and associates, that he lived harmoniously with his wife and family, that he had been in poor health for some time prior to his disappearance, which occurred on July 17, 1901, in the daytime, in a community where he was well known, that, so far as known, he had no money for traveling, and that he had not been seen or heard from for the period of seven years thereafter. Behlmer v. Grand Lodge, A. O. U. W. 26: 305, 123 N. W. 1071, 109 Minn. 305. 2215. The jury may find that death was the cause of the disappearance of a man who was under middle age, had a family to whom he was very strongly attached, where no domestic infelicity had ever ex- isted, was in reasonably good circum- stances, was respected in the community, and no possible cause could be assigned for his wilfully abandoning his home. Butler v. Supreme Court, I. 0. F. 26: 293, 101 Pac. 481, 53 Wash. 18. Change of domicil. 2216. A change of domicil as matter of fact may be established by evidence that one left the state of his birth at an early age and returned only once to visit his parents, and finding that they had left the state again departed, leaving neither property nor relatives there, while for nearly forty years his residence and place of business were at a certain place in a foreign country. Mather v. Cunningham, 29: 761, 74 Atl. 809, 105 Me. 326. Identity. In criminal case, see infra, 2373-2375. 2217. The identification of a person named in a pardon is sufficient if one bearing the name of the person so named testifies that he received and accepted it. Thompson v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. Knowledge. Presumption and burden of proof as to, see supra, II. e, 5. Admissibility of evidence, see supra, XI. e. In criminal prosecution, see infra, 2410. See also supra, 2179. 2218. Evidence that four sample trunks aggregating 800 pounds in weight, checked by a commercial traveler, were of the form and pattern of trunks used for the trans- portation of merchandise samples, and that it was the custom of the defendant railway company to check such trunks as baggage without limitation or condition, is sufficient to sustain a finding by the jury in an action to recover for the loss of the trunks, that the defendant company had notice or knowl- edge that the trunks contained merchandise when it checked them. McKibbin v. Wis- | consin C. R. Co. 8: 489, 110 N. W. 964, 100 Minn. 270. 2219. A finding that defendant, the holder of a recorded deed of certain real estate, Digest 1-52 L.R.A.(N.S.) had notice, at the time of the conveyance to him, of a prior unrecorded deed to plain- tiff, and was not a bona fide purchaser for value by reason thereof is sufficiently sus- tained, where it appears that for some years he had been familiar with the property, and that he was well acquainted with the vendor; and plaintiff's husband testified that at the time he procured the deed for his wife he expressly informed defendant of that fact, although defendant testified that he did not remember such conversa- tion; and the evidence is clear that, two days prior to the day on which defendant recorded his deed, he was again informed of the existence of plaintiff's deed ; and an- other testified that he informed defendant of such prior deed prior to such recorda- tion, and requested him not to bid against plaintiff at a tax sale then about to take place, which conversation was not denied by defendant, although he fixed the date thereof after the recording of his deed. Er- rett v. Wheeler, 26: 816, 123 N. W. 414, 109 Minn. 157. Capacity; competency. Presumption and burden of proof as to, see supra, II. e, 5. Admissibility of evidence, see supra, XI. d. Incompetency of fellow servant, see supra, 2138-2142. In criminal prosecution, see infra. 2358- 2361. Sufficiency of evidence to overcome pre- sumption of capacity, see TRIAL, 243. 2220. A jury cannot decide a person unfit for his employment on account of what they see, or suppose they see, or can read, in his face and manner while testifying be- fore them. Wilkinson v. Kanawha & H. Coal & C. Co. 20: 331, 61 S. E. 875, 64 W. Va. 93. 2221. Proof of epilepsy does not, neces- sarily, directly establish insanity, as epi- lepsy is not, as a matter of fact or law, insanity, though evidence of an epileptic condition may bear, circumstantially, on the mental condition of the afflicted person to the extent of establishing insanity. Oborn v. State, 31: 966, 126 N. W. 737, 143 Wis. 249. 2222. A finding of incapacity on the part of one executing a sale of property is sup- ported by evidence that he had been having a protracted debauch, and, before the execu- tion of the contract, he was so drunk that he fell in the street, and, three hours after executing the instrument, was so drunk that he collapsed and had to be put to bed, and recalled nothing of the transaction. Swan v. Talbot, 17:1066, 94 Pac. 238, 152 Cal. 142. Of testator. 2223. A will which disposes of testator's property in a manner consistent with, and such as naturally would be expected from, a man in testator's situation, is of itself evidence of testamentary capacity. Re Shapter, 6: 575, 85 Pac. 688, 35 Colo. 578. 2224. Evidence that, on the day a will was made, testator was physically weak, failed to recognize witness, and was unable to converse as to his condition or affairs, 1238 EVIDENCE, XII. f. which does not refer to the precise time the will was executed, is not sufficient to show lack of testamentary capacity. Speer v. Speer, 27: 294, 123 N. W. 176, 146 Iowa, 6. 2225. Evidence that a testator, who was otherwise competent, made a college, in which he had previously shown no interest, his residuary legatee, under the belief that his estate was practically exhausted by specific bequests, when in fact the residue amounted to more than two thirds of the whole, is not sufficient to warrant a finding of a want of capacity to make such provi- sion. Holmes v. Campbell College, 41: 1126, 125 Pac. 25, 87 Kan. 597. Authority. 2226. Mere rumor, or common belief, that the president of a corporation has power to borrow money in its behalf, is not of itself evidence of such authority. Thompson v. Laboringman's Mercantile & Mfg. Co. 6: 311, 53 S. E. 908, 60 W. Va. 42. 2227. Where the express authority of an agent to sign an agreement in writing for the sale of lands rests in parol, the proof must be clear and convincing, not only of such parol authority, but also that the au- thority was such as to permit the inclusion of all the material terms which are em- bodied in the instrument. Spengler v. Son- nenberg, 52: 510, 102 N. E. 737, 88 Ohio St. 192. Intent. Admissibility of evidence, see supra, XI. e. See also supra, 2191; infra, 241 5a. 2228. Under a statute making it usury knowingly to receive or charge an unlaw- ful rate of interest, the corrupt intent is established where the instrument evidenc- ing the loan shows the exaction of more than the lawful rate. MacRackan v. Bank of Columbus, 49: 1043, 80 S. E. 184, 164 N. C. 24. 2229. Intention that the beneficiary in a life insurance policy shall be a woman with whom insured is living is shown by evi- dence that he had it made in her name as his wife, if he had held her out as his wife for several years, and was estranged from the woman to whom he was legally mar- ried. Mutual L. Ins. Co. v. Cummings, 47: 252, 126 Pac. 982, 133 Pac. 1169, 66 Or. 272. 2230. Extraneous proof of mutual under- standing is not necessary to make irrevoca- ble, after the death of one party, a joint will by husband and wife, by which each gives his or her property to the other for life with remainder over to their child. Frazier v. Patterson, 27: 508, 90 N. E. 216, 243 111. 80. 2231. 2232. The surrender, by one who had acquired title to a car of wheat by paying a draft to which a bill of lading was attached, of the bill of lading, to the railroad company, with directions to set the car at the elevator of a purchaser, together with the drawing of a draft on the purchaser in such a manner, as in the course of exchange, will require two days before presentation, constitutes such evidence of an intention to give credit as will support the finding of the trial court Digest 1-52 L,.R.A.(N.S.) that the seller cannot recover the wheat from a subvendee to whom the purchaser rebilled and sold it by transfer of the bill of lading. Kemper Grain Co. v. Harbor, 47: 173, 133 Pac. 565, 89 Kan. 824. (Annotated) To defraud creditors. 2233. A fraudulent intent to withhold con- ditional sale contracts from record is not shown by the facts that they were in fact so withheld until the purchaser ftund him- self in financial difficulties, and that in prior dealings between the parties such contracts had been executed between them, but not filed when the purchaser complied with his agreement. Big Four Implemont Co. v. Wright, 47: 1223, 207 Fed. 535, 125 C. C. A. 577. To revoke will. 2234. The act of testator in tearing a will, and his declarations at the time, are nut a preferred class of evidence on the question of intent to revoke it. Managle v. Parker, 24: 180, 71 Atl. 637, 75 N. H. 139. 2235. A want of intention to revoke a will executed in duplicate, by destroying the copy in his possession, may be found from evidence that testator left the other copy, which had been executed under circum- stances which justified the belief that it would constitute his will even though the other was destroyed, in possession of its custodian for five years after the destruc- tion of his copy. Managle v. Parker, 24: 180, 71 Atl. 637, 75 N. H. 139. Age. Admissibility of evidence, see supra, 1581. 2236. The jury may be permitted to find that plaintiff was under a certain age when injured, from the facts that it is admitted that he went to work about the first of a month, and the evidence shows that he was injured on the fourth day after his employ- ment, and reached the specified age on the twelfth of the month. Leathers v. Black- well's Durham Tobacco Co. 9: 349, 57 S. E. 11, 144 N. C. 330. 2237. An affidavit to secure permission to sue as next friend of an injured child, stat- ing that he was thirteen years old, when he was in fact twelve years and eight months old, does not show that he was over twelve years old when the accident occurred about nine months before the affidavit was made. Leathers v. BlackwelPs Durham Tobacco Co. 9: 349, 57 S. E. 11, 144 N. C. 330. Intoxication; intemperateness. In criminal prosecution, see infra, 2355. 2238. Intoxication within the meaning of a statute permitting the removal of a mayor from office for intoxication is shown by the fact that the incumbent of the office drank whisky, was looking for more, and entered into an argument on the street in tones so loud as to be heard across the street, apply- ing profane and opprobrious epithets to his opponent, and, although a large crowd col- lected about him, refused to withdraw upon request to let them disperse, while his speech was impaired and he was unable to stand steadily, so that he impressed bystanders as being intoxicated. State ex rel. Cosson EVIDENCE, XII. f. 1239 v. Baughn, 50: 912, 143 N. W. 1100, 162 Iowa, 308. (Annotated) 2239. Conflicting evidence as to whether or not one who had been known to be under the influence of intoxicating liquor was in- temperate in its use does not require the application of the rule that positive is of greater weight than negative testimony. Taylor v. Securitv Life Annuity Co. 15: 583, 59 S. E. 139/145 N. C. 383. Relation of parties. 2240. A finding that a person is a stock- holder in a corporation is sustained by evi- dence to the effect that his name appears on the stock book of the corporation as a stockholder; that he was named as a di- rector in the articles of incorporation; and that he was introduced by the promoter and president of the company to its attorney as a director, and failed to resent it; that about the same time he conferred with an- other stockholder in regard to the affairs of the company; that he attended one or two meetings of the directors; and that he did not return a certificate of stock mailed to him by the company. Randall Printing Co. v. Sanitas Mineral Water Co. 43: 706, 139 N. W. 606, 120 Minn. 268. 2241. That two men called each other brothers, and their conduct and conversation indicate and are consistent with such rela- tionship, is sufficient to establish the fact of its existence. Re Hartman, 36: 530, 107 Pac. 105, 157 Cal. 206. Master and servant. 2242. A finding of employment by a prin- cipal in an action against him to recover on an alleged contract of employment is un- warranted, where the evidence shows that plaintiff was hired by an unauthorized agent, that the defendant at all times pro- tested against the performing of the work, and repeatedly notified plaintiff of that fact, and inquired as to who employed him, and at no time recognired the acts of the alleged agent in employing plaintiff. Find- lay v. Hildenbrand, 29: 400, 105 Pac. 790, 17 Maho, 403. 2243. Proof that a father owned and kept an automobile upon his premises, and that his daughter, aged nineteen, was accustomed to and did drive it, sometimes without per- mission, there being no proof that the daughter was actually employed by the father to operate the machine, is not suf- ficient to constitute the daughter the serv- ant of the master, so as to charge him with liability where the daughter, in using the machine without permission, and for her own pleasure in driving her personal friends, neg- ligently injured a person in the highway. Doran v. Thomsen (N. J. Err. & App.) 19: 335, 71 Atl. 296, 76 N. J. L. 754. 2244. To hold a railroad company liable for the negligence of a gate tender at a street crossing where the tracks are used by sev- eral companies, evidence is sufficient which will support an inference that the business is that of defendant, and the person doing it is its agent. Boucher y. New York, N. H. & H. R. Co. 13: 1177, 82 N. E. 15, 196 Mass. 355 Digest 1-52 L.R.A.(N.S.) Principal and agent. Presumption and burden of proof, see su- pra, 131, 132. In prosecution for embezzlement, see infra* 2390, 2391. See also supra, 1193; infra, 241 Oa. 2245. The fact of agency may be proved by circumstantial evidence. Martin v. Hutton, 36: 602, 132 N. W. 727, 90 Neb. 34. 2246. An alleged agency need not neces- sarily be established by direct evidence, but may be shown by circumstances, such as the relation of the parties to ^ach other and their conduct with reference t... the sub- ject-matter of the contract. Lindquist v. Dickson, 6: 729, 107 N. W. 958, 98 Minn. 369. 2247. That a railroad company selling through tickets over several other roads was the agent of a particular one of them may be shown by the fact that it honored the tickets. Brian v. Oregon Short Line R. Co. 25: 459, 105 Pac. 489, 40 Mont. 109. 2248. That a man, in negotiating for a loan, is acting for his wife as undisclosed principal, is not shown by evidence that she was carrying on a farm in her own name and that all the marketing, buying, and selling was done by. him for her. Shields- v. Coyne, 29: 472, 127 N. W. 63, 148 Iowa, 313. 2249. That the agent in charge of a railroad station was the agent of a telegraph com- pany to receive messages for transmission over its lines may be established by proof that, in the absence of the operator, he. did receive such messages. Western U. Teleg. Co. v. Lillard, 17:836, 110 S. W. 1035, 86 Ark. 208. 2250. That one in charge of an office is the agent of a foreign corporation in trans- acting the business there may be found from the facts that the name of the cor- poration appears on the office signs, that it leases the telegraph wire connecting the office with its own, that the bank deposit is kept in its name, that the contracts made at the office bear the name of the agent,. "Correspondent" of the corporation, and that settlement has been made by the cor- poration on such contracts. Mullen v. J. J. Quinlan & Co. 24: 511, 87 N. E. 1078, 195 N. Y. 109. 2251. 2252. A foreign insurance company does not establish that a person served in an action on an accident policy was not its agent, by proof that such person had no authority to solicit insurance, accept mem- bers, or receive assessments for it, where it does not deny that such person had per- formed such acts as would constitute him its agent under a statute providing under what circumstances a person acting for insurance companies shall be deemed its agent. Taylor v. Illinois Commercial Men's Asso. 24: 1174, 122 N. W. 41, 84 Neb. 799. Carrier and passenger. 2253. The jury may find the acceptance of one as a passenger on a street car from the fact that, although he boarded the car while moving between signal posts, and re- mained standing on the running board, the conductor, who saw liim, made no objection, 1240 EVIDENCE, XII. g, h. where there is nothing to show knowledge, express or implied, on the part of the pas- senger that passengers would not be received under such circumstances. Lockwood v. Boston Elevated R. Co. 22: 488, 86 N. E. 934, 200 Mass. 537. g. To overcome writing, pleading or judicial proceeding. (See also same heading in Digest L.R.A. 1-10.) 2254. The evidence to impeach a certificate of acknowledgment of an instrument regu- lar on its face must be clear and convincing, -as the presumption in favor of the truth of the certificate is strong. People's Gas Co. v. Fletcher, 41: 1161, 105 Pac. 34, 81 Kan. 76. (Annotated) 2255. The testimony of a party to a cer- tificate of acknowledgment of a deed, deny- ing both the execution of the deed and the acknowledgment, is admissible and is en- titled to as much weight as that of any other interested witness. People's Gas Co. v. Fletcher, 41: 1161, 105 Pac. 34, 81 Kan. 76. 2256. The date of adjournment of the leg- islature, as shown by its journals, is not contradicted or rendered uncertain by rec- ord evidence therein of the transaction of a large amount of business within a short pe- riod of time. Capito v. Topping, 22: 1089, 4 S. E. 845, 65 W. Va. 587. Trust; mortgage; deed. 2257. The unsupported denial of the grant- or is not sufficient to impeach a deed prop- erly signed and acknowledged. Ford v. Ford, 6: 442, 27 App. D. C. 401. (Annotated) 2258. The vendor must establish the agree- ment beyond a reasonable doubt to vary a ac. 998, 47 Or. 592. (Annotated) 2380. That one whose skeleton was found in a burning pile of logs was wrongfully killed may be found from the facts that he was a healthy man, and that, from condi- tions in the vicinity of the fire, the body had been dragged to it, leaving bloody stains along the way. State v. Barnes, 7: 181, 85 Pac. 998, 47 Or. 592. 2381. 2382. Possession shortly after hia 79 1250 EVIDENCE, XII. 1. homicidal death of articles known to have belonged to decedent, under circumstances which would justify accused's conviction of larceny, will warrant a conviction of mur- der, especially when coupled with contra- dictory statements by accused as to the whereabouts of the missing person. State v. Barnes, 7: 181, 85 Pac. 9!)8, 47 Or. 592. 2383. Evidence in a homicide trial that the accused had repeatedly threatened to kill the deceased, that a few days before the homicide he purchased a pistol and at the time of the homicide came upon the de- ceased unarmed upon the premises of the accused and rushed upon and shot him, then fled making no explanation of his at- tempted flight, is sufficient to authorize a conviction of murder in the first degree. Henry v. State, 52: 113, 136 Pac. 982, 10 Okla. Crim. Rep. 369. 2384. Testimony by persons who prepared for burial the body of a person who had been shot to death, that a wound in the front of the body was larger than those in the back, having a ragged appearance, is not sufficient to establish the fact that it was not made by a bullet fired from in front, so as to render unnecessary an ex- amination of the body for the purpose of determining that fact, where they were not experts, and their examination was merely casual, and was contradicted by other wit- nesses and by the positive testimony of the one who fired the shot, that it was against the front of the body. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep. 90. Burglary; larceny; embezzlement. 2385. The testimony of one witness, if relevant and accepted by the jury, may sus tain a conviction of burglary, even though the accused positively denies under oath that he committed the ofl'ense. Schultz v. State, 34: 243, 130 N. W. 105, 88 Neb. 613. 2386. Possession, by persons who had been seen in the yard of a burglarized house about the time the crime was committed, of the stolen property when overtaken by its owner on the road shortly after the burgla- ry, is sufficient to justify a presumption of guilt in the absence of satisfactory evidence as to how they came into possession of the property, consistent with their innocence. State v. Henderson, 17: uoo, 110 S. W. 1078, 212 Mo. 208. 2387. The proof of corpus delicti is not sufficient to support a conviction of lar- ceny, where it merely shows that certain goods, formerly part of the stock of a mer- chant, were found in possession of ac- cused, without anything to show that they were stolen, or were not sold in due course of trade. Sanders v. State, 28: 536, 52 So 417, 167 Ala. 85. (Annotated) 2388. The felonious taking of a pair of shoes may be established by evidence that accused entered and left the room where they were exhibited for sale, by an unused back way; that shortly afterwards he at- tempted to exchange them for a pair which would fit, and, upon being charged with their theft, fled. Collins v. Com. 38: 769, 143 S. W. 35, 146 Ky. 698. Dige.Mt 1-52 L.R.A.(N.S.) 2389. The rule that an indictment for larceny must be supported by proof of the taking of a specific article does not render it necessary to identify as stolen the par- ticular portion of a quantity of goods car- ried away exceeding the quantity pur- chased. Reg. v. Tideswell, ] B. R. C. 997, [1905] 2 K. B. 273. Also Reported in 74 L. J. K. B. N. S. 725, 69 J. P. 318, 03 L. T. N. S. Ill, 21 Times L. R. 531, 21 Cox, C. C. 10. (Annotated) 2390. The agency of one charged with the embezzlement of a check is sufficiently es- tablished by evidence showing that the agency related to but the single transaction of intrusting the check to the defendant, and this whether the contract of agency pro- vided for compensation or not. State v. Fraley, 42: 498, 76 S. E. 134, 71 W. Va. 100. 2391. Under a statute providing that "if any . . . agent . . . embezzle or fraudulently convert to his own use . . . property . . . which shall have come into his possession, or been placed under his care or management, by virtue of his office, place, or employment, he shall be guilty of larceny thereof," the agency of one charged with the embezzlement of a check is sufficiently established by evidence show- ing that the agency related to but the sin- gle transaction of intrusting the check to the defendant, without any previous re- lationship of principal and agent being shown. State v. Fraley, 42: 498, 76 S. E 134, 71 W. Va. 100. Arson. 2392. Evidence that a person who solicited the owner of a building to burn the same and such owner, to entrap him, consented hired men to do the burning, aided them in obtaining the necessary outfit for the burning of the building and blowing of a safe therein to conceal the origin of the fire, and was to receive a stated sum from the owner for the work, and that such agents entered the building for the pur- pose of burning it and were prevented by the interruption of officers, is sufficient to warrant the conviction of such person of the crime of attempted arson in the third degree, under a statute defining an attempt to commit a crime as an act done with in- tent to commit a crime and tending but failing to accomplish it. State v. Dumas, 41: 439, 136 N. VV-. 311, 118 Minn. 77. (Annotated) Perjury. 2393. To sustain a conviction of perjury for giving evidence which secured the ac- quittal of accused upon another charge, the falsity of the oath must be proved b\ posi- tive and direct testimony, circumstantial evidence alone not being sufficient. Allen v. United States, 39: 385, 194 Fed. 664, 114 C. C. A. 357. 2394. In a prosecution for perjury, the falsity of the defendant's evidence may be established by circumstantial evidence; but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, ' KVIDENCE, XII. 1. 1251 supported by corroborating evidence, and, taken as a whole, must be of such a con- clusive character as to exclude every other reasonable hypothesis, except that of the defendant's guilt. Metcalf v. State, 44: 513, 129 Pac. 675, 8 Okla. Criin. Rep. 605. (Annotated) 2395. In a prosecution for perjury for tes- tifying falsely, in a prior prosecution for the illegal possession of intoxicating liquors for the purpose of violating a prohibitory liquor law, that the accused did not own the restaurant where the liquor was found, that he did not clerk there, nor was he con- nected with the restaurant as an employee or otherwise, the positive testimony of a witness that he watched the accused every night for a month, and that he was the person clerking and waiting on the custom- ers, and was the only one clerking there, when corroborated by other witnesses who testified to acts of ownership by accused, together with evidence that the accused pur- chased supplies for, and paid the bills of, the restaurant, and had taken out a United States license authorizing him to conduct the business of a retail liquor dealer, is sufficient to sustain a conviction. Metcalf v. State, 44: 513, 129 Pac. 675, 8 Okla. Crim. Rep. 605. 2396. To establish subornation of perjury, the fact of the perjury may be shown by the testimony of a single uncorroborated witness. State v. Richardson, 44: 307, 154 S. W. 735, 248 Mo. 563. Assault. 2397. The good character of one accused of assault has weight in determining the ques- tion of his guilt, when the evidence to prove the main fact or the connection of accused with it is closely balanced. State v. Mc- Guire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 2398. A conviction of an attempt to dis- charge a revolver at the prosecutor with in- tent to do him grievous bodily harm is war- ranted by evidence that the prisoner had a loaded revolver in his pocket; that he put his hand in his pocket and commenced to pull it out; that the prosecutor seized him and a struggle then took place between them; and that the prisoner got the re- volver out of his pocket and endeavored to get his arm free, at the same time using language which clearly indicated that his intention was to use the revolver if he could. Rex v. Linneker, 3 B. R. C. 237, [1906] 2 K. B. 99. Also Reported in 75 L. J. K. B. N. S. 385, 70 J. P. 293, 54 Week. Rep. 494, 94 L. T. N. S. 856, 22 Times L. R. 495, 21 Cox, C. C. 196. (Annotated) Disfigurement; wounding. 2399. A conviction of disfigurement is sustained by evidence that accused threw acid on the face and arms of his vic- tim, which brought about a disfigurement and kept the victim under the treatment of a doctor for some time, although the extent of the injury is not shown. Lee v. State, 40: 1132, 148 S. W. 567, Tex. Crim. Rep. . 2400. The presence of blood in the urine does not constitute sufficient evidence of a Digest 1-52 L.R.A.(N.S.) complete parting or solution of the cover- ing or skin of the kidney to sustain a con- viction of statutory wounding. State v. Gibson, 28: 965, 68 S. E. 295, 67 W. Va. 548. Adultery. In action for divorce, see supra, 2205, 2206. 2401. The crime of adultery may be proved by facts and circumstances such as lead the guarded discretion of a reasonable and just man to a conclusion of guilt, without any direct testimony of the crime charged. Woody v. State, 49: 479, 136 Pac. 430, 10 Okla. Crim. Rep. 322. Bigamy. 2402. The state does not, in a prosecution for bigamy, sustain its burden of proving that the first wife was alive when the sec- ond marriage was contracted by showing that she was alive four and a half yeart before the second marriage, since the pre- sumption of continued life cannot take the place of proof of the fact. Dunlap v. State, 41: 1061, 150 S. W. 86, 126 Tenn. 415. Rape. 2403. The uncorroborated testimony of the prosecutrix that she had been ravished is insufficient to sustain a conviction of rape, where the defendant testifies that the act was with her consent. Henderson v. State, 26: 1149, 123 N. W. 459, 85 Neb. 444. Illegal transactions in liquors. 2404. The mere fact that "beer" was pur- chased in a near beer saloon is not sufficient to overcome the presumption that it was in- toxicating. State v. Billups, 48: 308, 127 Pac. 686, 63 Or. 277. (Annotated) 2405. To establish that a beverage is in- toxicating, it is sufficient to show that some person who uses it in the largest practi- cable quantity will become intoxicated. Gourley v. Com. 48: 315, 131 S. W. 34, 140 Ky. 221. 2406. That one is found on the street early in the morning with a suit case in which is found 57 half-pint bottles of whisky, with a corkscrew attached to each one, and ap pears frightened and attempts to get away when approached by an officer, does not warrant a conviction of having in posses- sion intoxicating liquor with intent to sell or give it away in violation of law. Mc- Comb City v. Hill, 39: 534, 56 So. 346. 100 Miss. 193. (Annotated) 2407. An illegal sale of intoxicating liquors may be found from evidence that a rake off of chips representing money was taken at the end of every deal of a poker game at which beer was furnished upon demand to those engaged in the play, without addi- tional cost to them, although the only wit- ness for the prosecution testified that he did not pay for any beer, and that nothing was paid for the privilege of playing in de- fendant's room unless by means of such rake off, since from such facts the jury may infer that the game was a mere trick or subterfuge adopted for the purpose of sell- ing beer in violation of law. State v. Col- lins, 27: 1024, 68 S. E. 268, 67 W. Va. 530. 2408. In a prosecution for selling intoxi- cating liquors contrary to law, the evidence 1252 EVIDENCE, Xll. 1. of a sale is not insufficient merely because the witnesses to the transaction were un- able to identify, out of a dozen men who were drinking, the particular individual or individuals who furnished the money ob- served to pass. State v. Durein, 15: 908, 78 Pac. 152, 70 Kan. 1. 2409. Where the evidence leaves the ques- tion in doubt whether one who, in a local- option county, fills out an order blank to secure liquor for another, is acting for the buyer or seller, he is entitled to the benefit of the doubt. Golightly v. State, 2: 383, 90 8. W. 26, 49 Tex Crim. Rep. 44. 2410. The jury may find that an express agent receiving an unmarked package from a distillery agent at a point where nothing was shipped except the products of the dis- tillery, to be carried into local -option ter- ritory under the verbal statement that ii was paint, was not deceived as to the con- tents of the package, where similar pack- ages had been shipped to his knowledge under similar deceptive statements. Adams Exp. Co. v. Com. 18: 1182, 112 S. W. 577, 129 Ky. 420. 2410a. That one making deliveries of intoxi- cating liquor is the agent of the nonresident vendor may be found from evidence that consignments were made to him, with di- rections as to where delivery should be made, and that he made deliveries with a team belonging to a local dealer who sup- plied the consignor with orders. Merrill v. State, 44: 439, 93 N. E. 857, 175 Ind. 139. Maintaining disorderly house. 2411. Evidence of general reputation alone will not support a conviction for maintain- ing a disorderly house. King v. Com. 48: 253, 159 S. W. 593, 154 Ky. 829. 2412. Evidence of the general reputation of a house as being a house of ill fame will not alone support a verdict against a defendant for keeping such a house, but must be corroborated by some other fact or circumstance tending to prove the char- acter of the house. Putman v. State, 46: 593, 132 Pac. 916, 9 Okla. Crim. Rep. 535. . ( Annotated ) 2413. Evidence of certain men who went to a house, that they were told by tlu de- fendant in a prosecution for maintaining a bawdyhouse, who met them there, that she kept girls there, and were invited by her to go to a room where the girls were, whereupon they did so and one of the wit- nesses had sexual intercourse in a room in the house with a girl whom he found there, in connection with evidence of the reputa- tion of the house as being a house of ill fame, is sufficient to warrant a verdict finding the defendant guilty of keeping a bawdyhouse. Putman v. State, 46:593, 132 Pac. 916, 9 Okla. Crim. Rep. 535. False pretenses. See also supra, 2353. 2414. Proof of either of the false repre- sentations set out in an indictment for ob taining money by false pretenses is suffi- cient to sustain a conviction. State v. Keyes, 6: 369, 93 S. W. 801, 196 Mo. '136. 24.15. Indorsing and requesting the cashing Digest 1-52 L.R.A.(N.S.) of a check indorsed in blank, by one not its owner, accompanied by the statement that he got it from the mail, may be found by the jury to be a representation of own- ership amounting to a false pretense within the meaning of a statute providing for the punishment of one obtaining money by such means. Martins v. (State, 22: 645, 98 Pac. 709, 17 Wyo. 319. 2415a. Intent to defraud in representing a blind horse to be sound as far as he knew, to effect a trade, may be found from evi- dence that the one making the representa- tion had owned the horse ten days, knew that its eyes were defective, and forbade a test of the eyes in the presence of the wife of the other party to the transaction. State v. Stone, 49: 574, 79 S. E. 108, 95 S. C. 390. Miscellaneous crimes. 2416. A conviction of unlawfully perform- ing a marriage ceremony where the female was under the age of fifteen years cannot be sustained where the only evidence as to the age of the female was a statement read by a witness from a written memorandum, the use of which was not lawfully permissi- ble because the correctness thereof when made had not been first established. Terri- tory v. Harwood, 29: 504, 110 Pac. 556, 15 N. M. 424. 2417. Xo conviction can be had upon an information charging violation of a quaran- tine order based on belief that one was in- fected with a contagious disease where the proof shows that accused was not infected with the disease, and that the health officer had no ground to believe that he was so infected, but that he had merely been ex- posed to the disease. State v. Racskowski, 45:580, 86 Atl. 606, 86 Conn. 677. 2418. That oleomargarin is made and sold in imitation of yellow butter may be shown by resemblance produced solely by the in- gredients of the manufactured compound, if they were selected to produce the color when others were available. State v. Meyer. 14: 1061, 114 N. W. 501, 134 Wis. 156. (Annotated) 2419. A prima facie case of soiling and shipping oleomargarin in imitation of yel- low butter is made out by evidence from which conscious imitation may be inferred, together with evidence tending to show that the accused knew that the compound shown to have been sold, etc., by him, was oleo margarin, and that it resembled yellow but ter. State v. Meyer, 14: 1061, 114 N. W. 501, 134 Wis. 156. 2420. To sustain a conviction under a stat- ute forbidding the owner, keeper, or man ager, whether in whole or in part, of a dance house, to permit any person under twenty-one years of age to be or remain therein, it is not necessary that a part owner who personally assisted in conduct- ing a public dance hall should have been present at the dance on the night alleged in a complaint for permitting a minor to remain therein in violation of the statute, where it appears that such part pro- prietor had frequently been in charge when EVIDENCE, XIII. a. 1253 the minor named in the complaint had been present. State v. Rosen field, 29: 331, 120 N. W. 1068, 111 Minn. 301. 2421. Evidence of short weight in a sale made by a servant in his master's absence warrants conviction of the latter under a statute providing punishment for anyone who himself or by his servants is guilty of giving false or insufficient weight or meas- ure. Com. v. Sacks, 43: i, 100" N. E. 1019, 214 Mass. 72. (Annotated) 2422. Conviction for enticing a minor away from its parents is not supported by evi- dence that a young woman advised her cousin about her own age that she would not stand corporal punishment from her father for attending parties, and upon re- quest of the coiisin accompanied her to the home of an uncle, when the cousin fled from home for fear of further punishment. Cockrell v. State, 48: 1001, 160 S. W. 343, Tex. Crim. Rep. . (Annotated) 2423. A prisoner may be found to have at- tempted by force to escape from his im- prisonment, on the evidence that he at- tempted to prevent entry to the cell by a stranger while his cell mate was at work on a grating bolt with a blowpipe, and that saws found in his possession fitted a cut in another bolt, the removal of which bolts would aid escape. State v. Hatfield, 38: 609, 118 Pac. 893, 66 Wash. 9. XIII. Admissibility under pleadings; variance. a. Under particular pleadings. (See also same heading in Digest L.R.A. 1-10.) Review of discretion in striking amend- ment to make pleading conform to proof, see APPEAL AND EBROB, 594. See also PLEADING, 488. 2424. The issues of a case are defined by and confined to the pleadings. Palmer v. Humiston, 45:640, 101 N. E. 283, 87 Ohio St. 401. 2425. Negligence in scattering over adjoin- ing land material removed from a ditch, the right to deepen which has been secured by a railroad company, cannot be proved under a complaint seeking damages on the theory that there was no right to deposit the ma- terial on such adjoining land. Cleveland, C.'C. & St. L. R. Co. 45:796, 101 N. E. 473, 179 Ind. 429. 2426. Upon the question of the value of goods sold and delivered, the contract price is admissible in evidence under the common counts, and is prima facie evidence of value. Holloway v. White-Dunham Shoe Co. ia: 704, 151' Fed. 216, 80 C. C. A. 568. 2427. An answer in a judicial proceeding is not inadmissible in evidence in support of a charge of libel because the petition in charging the libel used only extracts from it, without showing that it was a pleading, where the allegations of the petition and the gist of the publication do not so radical- Digest 1-52 L.R.A.CN.S.) I ly vary as materially to alter the sense of j the part said to be Hbelous. Meriwether v. George Knapp & Co. 16: 953, 109 S. W. 750, 211 Mo. 199. 2428. Proof of affliction with bronchitis is admissible in support of an allegation of breach of warranty of freedom from bodily infirmities and soundness of physical con- dition, in defense of an action on an in- surance policy, and does not raise a new and distinct issue as to breach of a warranty, against that disease which is not pleaded. French v. Fidelity & C. Co. 17: ion, 115 N. W. 869, 135 Wis. 259. 2429. In an action on an insurance policy which required arbitration of loss in ca* of dispute as a condition precedent to suit thereon, the insured, under a petition al- leging due performance of the conditions of the policy on his part, and a general denial by way of reply to an answer al- leging that a dispute arose as to the amount of loss and that the same had never been appraised as provided by the policy, may prove that he appointed an appraiser irt good faith, and that the two appraisers were unable to agree upon an umpire, for which reason no appraisement was made. German-American Ins. Co. v. Jerrils, 28: 104, 108 Pac. 114, 82 Kan. 320. 2430. A reply in an action on a debt to which a release is pleaded, to the effect that the release was intrusted to defend- ant, with the understanding that it was not to have a legal inception as a release, and was to be returned upon demand, is not sufficient to admit evidence that it was de- livered upon condition that it should be returned if defendant was not forced into bankruptcy. Stiebel v. Grosberg, 36: 1147, 95 N. E. 692, 202 N. Y. 266. Without allegations. See also infra, 2458. 2431. In a suit for breach of promise of marriage, it is erroneous to permit the plaintiff to introduce evidence of her seduc- tion and subsequent delivery of a bastard child, unless there is a special averment of these facts, and that the seduction and fiexual intercourse were brought about and accomplished by the defendant under and by virtue of the contract of marriage. Hendry v. Ellis, 33: 702, 54 So. 797, 61 Fla. 277. (Annotated) 2432. Charter provisions of a city and or- dinances of the city may be introduced in evidence without being specially pleaded, where such charter provisions and ordi- nances are not the basis of the action. Jackson v. Grand Forks, 45:75, 140 N. W. 718, 24 N. D. 601. 2433. In actions not founded on ordinance, the ordinance may be admitted in evidence, like any other fact or circumstance ma- terial to the subject-matter of the action, although it is not pleaded. Jaqnith v. Worden, 48: 827, 132 Pac. 33, 73 W T ash. 340. 2434. Matter in estoppel cannot be" given in evidence under a traverse. Brackett v. Modern Brotherhood of America, 45:1144, 157 S. W. 690, 154 Ky. 340. 2435. Proof of the fraudulent procurement 1254 EVIDENCE, XIII. a. of a lease, set up by the answer in an ac- tion of unlawful detainer, may be given, al- though it is not pleaded, where, by stat- ute, the only matter allowed in a reply is set-off and counterclaim. Sass v. Thomas, ii : 260, 89 S. W. 656, 6 Ind. Terr. 60. (Annotated) As to damages. 2436. Evidence that one injured by an- other's negligence was affected by diabetes because of the injury is admissible under a declaration alleging that the injuries were permanent. B. Shoninger Co. v. Mann, 3: 1097, 76 N. E. 354, 219 111. 242. 2437. A general allegation of incapacity to perform one's daily work as the result of negligent injuries is not sufficient to admit evidence of loss of sight, where the particu- lar injuries received are specified in the complaint, but no mention is made of any injury to the eyes. Pugmire v. Oregon Short Line R. Co. 13: 565, 92 Pac. 762, 33 Utah, 27. 2438. The cost of repairs to an automobile made necessary by the defendant's want of care may be proved, although the declara- tion averred that the automobile was wholly lost to the owner, since a smaller amount of damage or injury than that laid in the declaration may be proved. McLain v. West Virginia Automobile Co. 48: 561, 79 8. E. 731, 72 W. Va. 738. As to negligence. Evidence as to damages caused by negli- gence, see supra, 2436-2438. 2439. That the wrongful removal of sur- face support in mining operations is desig- nated "negligent" in a complaint to recov- er damages therefor will not prevent a re- covery, although actual negligence in carry- big on the operations is not shown. Collins v. Gleason Coal Co. 18: 736, 115 N. W. 497, 140 Iowa, 114. 2440. A complaint in an action to hold a gas company liable to a customer for injury to her clothing by ink dripping from the counter, which alleged that it negligently allowed and suffered the ink to remain upon the counter, is sufficient to admit evidence that it had, or should have had, notice of the presence of the ink, and the allegation of notice is not necessary. Quinn v. Utah Gas & Coke Co. 43: 328, 129 Pac. 362, 42 Utah, 113. 2441. An averment in a complaint seeking damages for injuries by the use of a stove- pipe enamel that, when used on hot sub- stances, it became dangerous in "that it was liable to ignite with a fierce blaze in the nature of an explosion," in connection with one that the person for whose injury dam- ages were sought was injured when using it upon her stove, is sufficient to permit evi- dence that it was dangerous to be used on a hot stove, because when hot the flames from the benzin which it contained uniting with the air formed a dangerous mixture liable, when coming in contact with a flame, to cause explosion. Wolcho v. A. J. Rosen- bluth & Co. 21 : 571, 71 Atl. 566, 81 Conn. S58. 2442. The omission from a notice to a city Digest 1-52 L.R.A.(N.S.) of an accident caused by a slippery cover- ing to an excavation under the sidewalk of reference to a projecting handle will not re- quire the exclusion of evidence at the trial that the injured person, in falling because j of such slippery condition, caught his foot in the handle. Smith v. Tacoma, az: 1018, 98 Pac. 91, 51 Wash. 101. 2443. Upon the question of the negligence of a property owner in constructing a foun- dation wall out of improper material by rea- son of which it falls to the injury of one working on the superstructure, evidence is not admissible to the effect that the wall was constructed in a negligent manner. Ha- gen v. Schleuter, 22: 856, 86 N. E. 112, 236 111. 467. Of master. 2444. There is no error in the exclusion of evidence, in an action by an employee to hold a railroad company liable for per- sonal injuries to him, that the injury was received in the transaction of interstate commerce, where there is nothing in the pleadings to indicate that such was the fact. Bradbury v. Chicago, R. I. & P. R. Co. 40: 684, 128 N. W. 1, 149 Towa, 51. 2445. An allegation in a complaint by a servant against his master for personal in juries, of failure to provide a safe place in which to work, which is a mere deduction from specific acts of negligence alleged, does 'not widen the scope of the inquiry so as to admit evidence of negligence not covered in the specific allegations. La Bee v. Sultan Logging Co. 20: 405, 91 Pac. 560, 47 Wash. 57. 2446. Evidence of the promise of the mas- ter to remedy a defect in an instrumental- ity is admissible in evidence for the serv- ant, under a declaration averring that the master set the servant to work with an in- strumentality that he had negligently per- mitted to become defective and to so re- main, without proper repair and inspection, although no averment of such promise is contained in the declaration, as the action is based upon the negligence of the defend ant, and not upon the nonperformance of the promise. Comer v. Meyer ( N. J. Err. & App.) 29: 597, 74 Atl. 497, 78 N. J. L. 464. As to crime. 2447. The method and manner of the un- lawful taking and carrying away need not be set out in an indictment for larceny to permit the introduction of evidence there- of. State v. Dobbins, 42: 735, 132 N. W. 805, 152 Iowa, 632. 2448. Under a count for simple larceny, it is admissible to prove that the property was obtained by false pretense with intent to defraud. State v. Williams, 32: 420. 69 S. E. 474, 68 W. Va. 86. 2449. A plea of nolo contenders will not authorize a hearing of evidence tending to show guilt on the part of accused, where an offense punishable by imprisonment is charged, nor support a judgment imposing such imprisonment. Tucker v. United States, 41: 70, 196 Fed. 260, 116 C. C. A. 62. 2450. One who has pleaded not guilty to EVIDENCE, XIII. a. 1255 a charge of assaulting another with a dead- ly weapon cannot prevent the admission of evidence as to the character of the wounds inflicted by admitting the assault and pleading justification State v. Young, 18: 688, 96 Pac. 1067, 52 Or. 227. 2451. An order prohibiting the sale of in- toxicants in a specified county is not inad- missible in evidence under an indictment charging that it absolutely prohibited the sale of liquors for beverage purposes, although the order contained an exception of purposes for which the statute permits sales, if the sale for beverage purposes is prohibited by statute. State v. Billups, 48: 308, 127 Pac. 686, 63 Or. 277. Defendants' pleadings generally. 2452. Evidence is not admissible to show that one sued on a promissory note did not execute it, if no affidavit was filed to put that matter in issue, as required by statute. Chestnut v. Chestnut, 2: 879, 52 S. E. 348, 104 Va. 539. 2453. In a suit by a payee of a bank check to recover from the drawer the debt evi- denced thereby, it cannot be proved, under the plea that the money was advanced for gambling purposes with knowledge on the part of the plaintiff of the use to which such money was to be applied, that the de- fendant was intoxicated at the time the check was cashed. Camas Prairie State Bank v. Newman, ai: 703, 99 Pac. 833, 15 Idaho, 719. 2454. A statement of special grounds of defense, which gives plaintiff no more notice of the defense relied on than would a plea of non assumpsit, is not sufficient to admit proof of such defense in evidence, under a statute requiring a statement of the grounds of defense sufficient to give plaintiff notice of their character. Chestnut v. Chestnut, 2: 879, 52 S. E. 348, 104 Va. 539. 2455. In a suit against a railroad com- pany, a denial by such company upon infor- mation and belief, that it was operating a railroad at the time and place alleged, be- ing a matter necessarily within defendant's knowledge raises no such issue upon the pleadings as will admit testimony that it was not operating such railroad over an ob- jection that such testimony was not admis- sible under the pleadings. Chicago, R. I. A E. P. R. Co. v. Wertheim, 30: 771, 110 Pac. 573, 15 N. M. 505. 2456. In an action by the hirer of a taxi- cab for injuries, it is error to reject the testimony of the defendant taxicab com- pany that it was not the owner of the car, where the plaintiff was allowed to intro- duce evidence going to show that it had held itself out to the public as the owners of the car, and where it had denied in its answer "all and singular, the allegations contained in plaintiff's petition, and espe- cially that any act of any person represent- ing your respondent contributed in any way to the accident." Shield v. F. Johnson k Son Co. 47: 1080, 61 So. 787, 132 La. 773. 2457. To render admissible in evidence, in an action to hold one liable for the negli- Digest 1-52 L.R.A.(N.S.) I gence of his alleged servant, a contract con- ' stituting the actual employei of the servant an independent contractor for whose acts de- fendant is not answerable, it is not neces- sary to set it up in the answer. Young v. Fosburg Lumber Co. 16: 255, 60 S. E. 654, 147 N. C. 26. 2458. In the absence of any averment in the answer, specially pleading a profes- sional usage or custom as to the care and accounting of sponges by a nurse or other attendant, evidence for the purpose of show- ing such professional usage or custom is incompetent and inadmissible in an action against a physician for negligent failure to remove a sponge used in performing an operation. Palmer v. Humiston, 45:640, 101 N. E. 283, 87 Ohio St. 401. Under general denial. In criminal case, see supra, 2450. See also supra, 2429, 2456. 2459. A general denial is sufficient to ren- der admissible in evidence the fact that the husband was the active and aggressive party, in an action by one woman against another for alienating the affections of the former's husband from her. Scott v. O'Brien, 16: 742, 110 S. W. 260, 129 Ky. 1. 2460. A general denial in an action for so negligently driving a team under control of defendant as to collide with a vehicle on the highway will admit evidence on the part of defendant that the team was not under his control, but was running away. Kimble v. Stackpole, 35: 148, 110 Pac. 677, 60 Wash. 35. 2461. Matters in mitigation of damages may be given in evidence under a plea of general issue. Yazoo & M. V. R. Co. v. Sultan, 49: 760, 63 So. 672, Miss. . 2462. A carrier charged with conversion of live stock injured by a wreck while in its possession for transportation may prove a tender under a general denial. Cincinnati. N. 0. & T. P. R. Co. v. Rankin, 45: 529, 156 S. W. 400 ? 153 Ky. 730. 2463. An ordinance authorizing the con- struction of a bridge approach in a public street is admissible under the general issue in an action to hold the municipality and the railroad company constructing the bridge liable for injuries thereby caused to the property of an abutting owner. Wai ters v. Baltimore & 0. R. Co. 46:1128, 88 Atl. 47, 120 Md. 644. 2464. In a suit to enjoin the use of a pub lie road for the purpose of conveying natur- al gas by means of pipes laid underground in accordance with permission granted by the county court, on the ground that the pipes are not maintained and the gas con- veyed for public consumption, the defend- ant may introduce evidence that the pipes are maintained and the gas conveyed for public use, without any affirmative allega- tion to that effect, under his denial of the allegation of the bill. Hardman v. Cabot, 7: 506, 55 S. E. 756, 60 W. Va. 664. 2465. Where the complaint alleges that defendant acted maliciously, and states a case for the recovery of punitive damages, defendant may, under a general denial, 1256 KVIIJKNOK, XIII. b. prove facts tending to show good faith and absence of malice on his part. Dodge v. Oilman, 47: 1098, 142 N. W. 147, 122 Minn. 177. 2466. In an action for defamation, where the complaint claims more than nominal damages to the reputation of plaintiff, de- fendant may, under a general denial, prove the bad reputation of plaintiff at and prior to the time of 'the slander or libel, though the complaint does not specifically allege plaintiff's good reputation. Dodge v. Gil- man, 47: 1098, 142 N. W. 147, 122 Minn. 177. Z>. Variance. (See also same heading in Digest L.R.A. 1-10.) Civil cases generally. First objecting to, on appeal, see APPEAL AND ERROR, 784-789. Prejudicial error as to, see APPEAL AND ERROR, 1271. In action for damages for trespass, see TRES- PASS, 12. 2467. While, in equity, the allegata and probata must correspond, the rules for the enforcement of this principle in courts of equity are more liberal than those applied in actions at law, and an agreement in matters of substance only is required, it being suffi- cient that the cause of action made out by the bill and the evidence is substantially the same. Floyd v. Duffy, 33: 883, 69 S. E. 993, 68 W. Va. 339. 2468. That a note sued on is alleged to have been delivered to the holder by the first indorser, while the evidence shows that the indorsement was in blank, and the note was actually delivered to plaintiff by one who received it after the indorsement, does not constitute a fatal variance. Lilly v. Hamilton Bank, 29: 558, 178 Fed. 53, 102 C. C. A. 1. 2469. Failure of one suing to restrain another from breaking his contract not to engage in business in opposition to com- plainant, to establish an incidental fea- ture of his bill asking for damages for failure to turn over property sold in connection with the business, does not de- feat the right to injunctive relief. Smith v. Webb, 40: 1191, 58 So. 913, 176 Ala. 596. 2470. In an action upon a benefit certificate issued by a fraternal insurance society where the answer sets up as a defense a rul- ing of the clerk of the local camp refusing an assessment on certain grounds, and that no appeal, as provided by the by-laws of the society, was taken; and upon, the trial the evidence shows a refusal of the clerk to re- ceive the assessment on the ground that the beneficiary had been suspended by the camp for another and different reason, there is a fatal variance between the answer and the proof as to this defense. Taylor v. Modern Woodmen, 5: 283, 83 Pac. 1090, 72 Kan. 443. Parties. 2471. A plea of former action pending in favor of Albert Milbra, administrator of Digest 1-52 L.R.A. (N.S.) Edward Milbra, deceased, is not supported by a record showing an action in favor of Albert Milburn, administrator of Edward Milburn, deceased, even though it is at- tempted to show by parol that the parties arc in fact the same. Milbra v. Sloss- Sheffield Steel & Iron Co. 46:274, 6_ So. 176, 182 Ala. 622. Title; ownership. In criminal prosecution, see infra, 2511, 2512. 2472. Proof of the legal title to checks by an indorsee for collection is sufficient to sustain an allegation of ownership in the complaint. Citizens' State Bank v. E. A. Tessman & Co. 45:606, 140 N. W. 178, 121 Minn. 34. 2473. In trover by a finder of property to recover damages from one to whom he de- livered it for safe-keeping, because of his failure to return it on demand, the fact that plaintiff pleads his title as a finder of lost property will not prevent his es- tablishing his title on the theory that the property had been abandoned. Eoberson v. Ellis, 35:979, H4 Pac. 100, 58 Or. 219. 2474. JS'o variance exists where one claim- ing title to real estate under a chain of title showing a fee, to meet defendant's claim that the title of plaintiff's remote grantor was a leasehold to which defendant had succeeded, sets up possession adverse to the lease, and the presumption of a grant in ex- tinguishment of it. Townsend v. Boyd, 12: 1148, 66 Atl. 1099, 217 Pa. 386. Contracts. 2475. Proof of a contract by ratification of an agent's act is not a departure from the theory of a complaint seeking recovery on a direct contract. Shuman v. Steinel. 7: 1048, 109 N. W. 74, 129 Wis. 422. 2476. The fact that, to link one with an unlawful transaction, a contract is pleaded between him and two other persons, while the evidence shows a contract merely be- tween him and one of the others, does not constitute a failure of proof, but merely a variance. Mount v. Montgomery County, 14: 483, 80 N. E. 629, 168 Ind. 661. 2477. A variance between the declaration and proof as to the county in which the contract sued upon was made does not re- quire a dismissal of the case, where the place of contract is not material. Mankin v. Jones, 15: 214, 60 S. E. 248, 63 W. Va. 373. 2478. A written contract which names as individuals, at its commencement, persons who signed it under their partnership name, is not inadmissible, on the ground of va- riance, under an allegation in the declara- tion charging a contract made by them as partners. Burdett v. Hayman, 15: 1019, 60 S. E. 497, 63 W. Va. 515. 2479. Under a declaration which counts upon a special contract for carriage be- tween the plaintiff and defendant, for hire, in an action against a carrier for negligent injury to one who, being taken with a con- tagious disease, is arrested by the health authorities and placed in charge of a rail- road company with which the county court ~ EVIDENCE, XIII. b. 1257 has an arrangement for transportation of such patients to the pesthouse, no recovery can be had upon the theory of an implied contract arising out of the relation of car- rier and passenger while plaintiff was being transported, nor upon mere proof of the contract between the county court and the railroad company. Jenkins v. Chesapeake & 0. R. Co. 49: 1166, 57 S. E. 48, 61 W. Va. 597. 2480. An action against a carrier for loss of a carload of goods because of its failure to remove it promptly when loaded, as re- quired by contract, cannot be sustained merely by proof of usage or custom to re- move cars under such circumstances, where knowledge of it is not shown to have been brought home to the officers of either the shipper or the carrier who were clothed with authority to make a contract. Ameri- can Lead Pencil Co. v. Nashville, C. & St. L. R. Co. 32: 323, 134 S. W. 613, 124 Tenn. 57. Torts; negligence. Evidence admissible under pleading, see supra. 2439-2446. See also supra, 2480. 2481. An allegation that by gross negli- gence of city officers duplicate paving tax certificates were issued and placed on the market is not sustained by proof that they were never delivered by anyone having au- thority to deliver them, but that they were taken without right by one having no au- thority to deliver them. National Bank of Commerce v. Oklahoma City, 39: 444, 122 Pac. 644, 32 Okla. 432. 2482. An allegation of infringement of a label of a local trades council is not sup- ported by proof of infringement of a label of an international union. People v. Dan- tuma, 39: 1190, 96 N. E. 1087, 252 111. 561. 2483. Proof of the charge substantially as laid is necessary to recover in an action for libel or slander. Miller v. Nuckolls, 4: 149, 91 S. W. 759, 77 Ark. 64. 2484. A complaint charging a gas company with liability in damages for injuries due to negligence in failing to repair its pipes will authorize a recovery in case the negli- gence is with respect to pipes which, in the operation of its business, it uses and as- sumes the duty of repairing, although they may belong to another. Consolidated Gas Co. v. Connor, 32: 809, 78 Atl. 725, 114 Md. 140. 2485. The statement in a complaint seek- ing damages because of a sheriff's negligent performance of his duties in arresting one guilty of a misdemeanor, which results in the death of the latter, that the sheriff fbed his pistol at and toward the lawbreaker so that the bullet struck and killed him, does not require proof of deliberate aim toward him. State use of Johnston v. Cunningham, 51: 1179, 65 So. 115, Miss. . 2486. Proof that the defendant's negli- gence caused the death of plaintiti's colt is not a material variance from an allegation that, by reason of that negligence, the plaintiff lost a horse. Hawkins v. Collins, 36: 194, 131 N. W 187, 89 Neb. 140. Digest 1-52 I*R.A.(N.S.) 2487. A recovery in an action for negli- gent injuries in which several acts or grounds of negligence are sufficiently al- leged in the complaint, will be justified if the injury complained of is proven to have been the result of one or more of such acts. Ft. Wayne & W. V. Traction Co. v. Crosbie, 13: 1214, 81 N. E. 474, 169 Ind. 281. Negligence causing personal in- juries generally. 2488. In an action for damages resulting from injury by negligence, a variance of the evidence from the declaration in respect to specification of mere matters of detail con- cerning the matter, not the time or place at which, or the instrumentalities by which, the injury was inflicted, is immaterial. Knicely v. West Virginia M. R. Co. 17: 370, 61 S. E. 811, 64 W. Va. 278. 2489. The time of the injury must be proved strictly as alleged, even though the allegation is under a videlicet, in an action to hold a railroad company liable for in- juries to property by fire set 'out by its locomotive, where the statute relieves the company from liability in case its locomo- tives are in good order and properly man- aged. Hewitt v. Pere Marquette R. Co. 41: 635, 137 N. W 7 . 66, 171 Mich. 211. (Annotated) 2490. An allegation of an obstruction of a sidewalk is sustained by evidence that the obstruction was on the parking between the pavement and the curbing. Woodson v. Metropolitan Street R. Co. 30: 931, 123 S. W. 820, 224 Mo. 685. 2491. There is no variance between a dec- laration charging a city for negligent injury by the act of its bridge tender, and evidence showing that the injury was caused by per- sons who, to the knowledge of the city, were employed by its appointee to do the actual work of operating the bridge. Gathman v. Chicago, 19: 1178, 86 N. E. 152, 236 111. 9. 2492. Failure to establish the statutory duty to sound a warning when a railroad train approached a highway crossing, as set out in a complaint to recover for "the negligent killing of a person at the cross- ing, will not defeat the action, if tlie com- plaint also charges failure to equip the engine with a proper whistle as required by the common law. Lepard v. Michigan C. R. Co. 40: 1105, 130 N. W. 668, 166 Mich. 373. 2493. Proof that electric wires which killed plaintiff's intestate were owned and con- trolled by one company, whereas it was al- leged that they were owned and controlled by another company against which recovery was being sought, did not constitute a vari ance calling for dismissal, but was merely failure of proof of matter material to re- covery Fiokeisen v. Wheeling Electrical Co. 27: 893, 67 S. E. 788, 67 W. Va. 335. 2494. An invitee injured by a fall into an unguarded pit on another's premises is not, by alleging in his petition to hold the lat- ter liable for the injuries, that the base- ment was without light of any kind, bound to prove that fa.ct, but merely that the light was inadequate; and therefore mere failure 1258 i:\ IDKXCK, Kill. b. to prove the entire absence of light does not require a findiiig in defendant's favor. Ola- ser v. Rothschild, 22: 1045, 120 S. W. 1, 221 /Mo. 180. Negligence of master. 2495. A master cannot be held liable to punitive damages for negligently injuring a servant, in the absence of wantonness, where it is made the basis for such damages in the complaint. Hippy v. Southern R. Co. 21 : 601, Gl S. E. 1010, 80 S. C. 539. 2496. Recovery cannot be had against a master for injury to an employee under a paragraph in a complaint charging negli- gence in knowingly permitting an empty truck to remain in a position imperiling em- jployees, where the evidence does not show when and by whom the truck was placed in that position. Haskell & B. Car Co. v. Przezdziankowski, 14: 972, 83 N. E. 626, 170 Ind. 1. 2497. There is no material variance be- tween the pleading and proof in an action for the death of an employee in a mine, caused by the negligence of one employed to assist in lowering cars from the mine to a tipple at a railroad below, where the declaration charged that it was defendant's duty to have a careful and competent per- son to operate the knuckle where the cars were let down from the mine entry to the tipple, but that, not regarding that duty, it employed an irresponsible boy of the age of fifteen years to operate the knuckle and levers necessary to operate the knuckle in letting down the cars, while the evidence showed that the word "knuckle" was some- times used as an inclusive term, to em- brace the drum house and all the appur- tenances at the head of the incline, but that the boy was employed simply to operate the chock blocks immediately at the knuckle, and also that he was fifteen years and four months old. Wilkinson v. Kanawha & H. Coal & C. Co. 20: 331, 61 S. E. 875, 64 W. Va. 93. Negligence towards passengers and persons accompanying them. 2498. There is no material variance be- tween allegations that plaintiff, who was injured in defendant's automobile, -was a passenger and that the injury was caused by the car turning over, and proof that he was a licensee and that the injury was caused by the machine's colliding with an obstruction, tilting on one side, and stop- ping suddenly. Beard v. Klusmeier, 50: 1 100, 164 S. W. 319, 158 Ky. 153. 2499. The disclosure, by the evidence, of a written contract for transportation, in an action for negligent injuries to a passenger sounding in tort, which merely charges the acceptance of plaintiff as a passenger, does not create a fatal variance: Lake Shore & M. S. R. Co. v. Teeters, 5: 425, 77 N. E. 599, 166 Ind. 335. 2500. That a passenger injured in a col- lision of street cars alleges, in his complaint to hold the company liable for his injuries, the particular cause of the accident, does not deprive him of the benefit of the pre- sumption of negligence flowing from the Digest 1-52 L.R.A.Ctf.S.) accident, and require him to prove the cause alleged, since the particular cause of the ac- cident is not of the substance of the issue. Walters v. Seattle, R. & S. R. Co. 24: 788, 93 Pac. 419, 48 Wash. 233. (Annotated) 2501. There is a fatal variance between a complaint charging injury to one who ac- companied a passenger onto a train to as- sist her, and evidence that the purpose of the injured person in entering the train was to visit, not to render assistance. Whaley v. Louisville & N. R. Co. 52: 179, 65 So. 140, 186 Ala. 72. Criminal cases. Evidence admissible under allegations, see supra, 2447-2451. Presumption on appeal as to variance, see APPEAL AND ERROR, 478. 2502. The variance between purported lan- guage of a letter alleged to have been un- lawfully deposited in the mail, set out in the indictment as "and have to say here one week," and the letter itself as offered in evidence, "& would have to stay here one week," is immaterial. Kemp v. United States, 51: 825, 41 App. D. C. 539. 2503. A variance between the allegation, in an indictment under the white slave act of June 25, 1910, for obtaining, aiding, or in- ducing the interstate transportation of wom- en for immoral purposes, that such women were transported over the Texas & New Orleans Railroad, and the proof which failed to show that such railroad extended from the beginning to the end of the transporta- tion, but did show that the tickets were purchased over the Southern Pacific Rail- road, if error at all, where the indictment alleged that the former railroad was a part of the Southern Pacific system, and there was through transportation, is not fatal, being not much more than verbal, and not even embarrassing the defense. Hoke v. United States, 43: 906, 33 Sup. Ct. Rep, 281, 227 U. S. 308, 57 L. ed. 523. 2504. An indictment for killing by striking, wounding, and throwing the victim into a well is not supported by evidence of fright- ening him into insanity by an attempted burglary, so that he jumped into the well. Gipe v. State, i: 419, 75 N. E. 881, 165 Ind. 433. 2504a. Where an accused is charged with having assaulted and killed one "P. S., alias F. M.," evidence that the defendant as- saulted and killed a person commonly known as F. M. will not sustain a verdict of guilty, unless it is shown that the F. M. so killed and P. S. were one and the same person ; since the name of the person in- jured must be proved as laid, where such proof is not excused by statute. Goodlove v. State, 30: 134, 92 N. E. 491, 82 Ohio St. 365. 2505. There in no fatal variance between an indictment for forgery which omits, de- fendant's indorsement from the instrument and the instrument containing such indorse- ment, in the absence of A finding that the variance is material, where the statute pro- vides that, in case of variance in description, it shall not be deemed ground for acquittal, EXAMINATION EXCHANGES. 1259 unless the trial court sliall find it to be ma- terial and prejudicial. State v. Carragin, 16: 561, 109 S. W. 553, 210 Mo. 351. 2506. No variance is created between an indictment charging robbery of $10 and the proof, by the fact that the evidence shows that accused compelled prosecutor to throw the money on the floor, whence it was taken by a stranger at the command of accused. Fanin v. State, 10: 744, 100 S. W. 916, 51 Tex. Crim. Rep. 41. Time. 2507. Time is not an essential element of the offense of keeping a disorderly house, and it is not necessary to prove the com- mission of the offense within the time laid in the indictment. State v. Dufour, 49: 792, 143 N. W. 1126, 123 Minn. 451. (Annotated) Amount. 2508. There is no fatal variance in a prose- cution for selling liquor to Indians in the fact that the information charges sale of a quart, while the evidence shows sale of a pint. State v. Rackich, 37: 760, 119 Pac. 843, 66 Wash. 390. 2509. An accusation which charged that the accused procured from the hirer, "money, shoes, and clothes of the value of $13, with intent not to perform such serv- ice, to the loss and damage of the hirer in the sum of $4," was not sufficiently sus- tained to authorize a conviction by evidence that the hirer advanced to the accused "in money, clothes, etc., $13.50," and that the accused owed the hirer $4 on account of ad- vancements. Banks T. State, 2: 1007, 52 S E. 74, 124 Ga. 15. 2510. No variance is created between an indictment charging robbery of $10 and the proof, by the fact that accused ia shown to have secured a $10 bill and returned $2. Fanin v. State, 10: 744, 100 S. W. 91, 51 Tex. Crim. Rep. 41. Ownership. 2511. Failure to prove the ownership as charged of the property to secure which a burglary is alleged to have been committed is not a fatal variance, since the allegation as to ownership is unnecessary. State v. Riddle, 43: 150, 150 S. W. 1044, 245 Mo. 451. 2512. Proof of ownership of money by a principal will not support a conviction for obtaining money from the owner by means of false pretenses, under an information which lays the ownership of the money in the one who had the custody of it, but who was in fact the agent of the owner. Martins v. State, 22: 645, 98 Pac. 709, 17 Wyo. 319. (Annotated) EXAMINATION. Of bankrupt, see BANKRUPTCY, 10, 11. Of person of witness, see DISCOVERY AND IN- SPECTION, II.; EVIDENCE, 879-881. Of jurors, see JURY, II. c. Of witnesses, see WITNESSES, IL Digest 1-52 L.R.A.(N.S.) EXCAVATIONS. Duty of carrier to light or guard excavation on right of way, see CARRIERS, 599. Construction of contract for, see CONTRACTS, 402-404. In street or highway, see HIGHWAYS, 45, 228, 285, 332, 371. Landlord's duty to protect building against danger resulting from, see LANDLORD AND TENANT, 105, 160-162. Liability of landlord for injury resulting from, see LANDLORD AND TENANT, 133. Injuring support to land, see LATERAL SUP- PORT. Assumption of risk by servant working in, see MASTER AND SERVANT, 513-516. Negligence as to, generally, see NEGLIGENCE, 97, 109-111. For purposes of construction, as to quarry, see QUARRY. EXCEPTIONS. Bill of, see APPEAL AND ERROR, IV. o. Generally, see APPEAL AND ERROR, V.; TRIAL, I. f. Right of appellate court to consider excep- tions not discussed in brief, see APPEAL AND ERROR, 291. To executor's account, see EXECUTORS ANB ADMINISTRATORS, 128-133. By petitioner in mandamus proceedings, .see MANDAMUS, 119. Before referee, see REFERENCE, 20. Burden of proving, see EVIDENCE, II. d. Negation of, in indictment, see INDICTMENT, ETC., II. c. Pleading of, see PLEADING, II. e, In deeds, see DEEDS, II. d, 2. Creation of easements by, see EASEMENTS, 5, 6, 36, 40, 41, 43, 56, 58, 60, 86. EXCESSIVE FINES. See CRIMINAL LAW, 249. EXCESSIVE VERDICT. As ground for new trial, see NEW TRIAL, 31- 35. EXCHANGE OF PROPERTY. Fraud in misrepresenting value of property exchanged, see FRAUD AND DECEIT, 13. Of liquor as a loan, see INTOXICATING LI- QUORS, 95. EXCHANGES. President's right to appeal, see APPEAL AND ERROR, 83. 1260 EXCISE EXCUSABLE NEGLIGENCE. A* to rights, duties, and liabilities of brok- ers, see BROKERS, 1. Validity of contract not to supply quota- tions to bucket shop, see CONTRACTS, 454. Sales on stock exchange as measure of value f of cotton destroyed by fire, see INSUR- ANCE, 783. Compelling telegraph company to furnish quotations of, see TELEGRAPHS, 2. 1. One who purchases in the name of his partner a seal, in a stock exchange haa, notwithstanding knowledge on the part of the officers of the exchange of the facts, no equity to prevent the enforcement of a rule of the exchange that a seat may be sold for the debts of the member holding it in favor of other members. Zell v. Baltimore Stock Exchange, 4: 435, 62 Atl. 808, 102 Md. 489. (Annotated) 2. A board of trade, which has a right of property in market quotations collected in its exchange, does not surrender or dedi- cate them to the public by permitting sub- scribers, to whom they are communicated upon condition that they shall not be made public, to post them upon blackboards in their places of business, where the posting is done for the advantage of the subscribers, and not of the public, and does not make knowledge of the quotations, general, or make them accessible to the public as of right, or render them of no further value. McDearmott Commission Co. v. Chicago Bd. of Trade, 7: 889, 146 Fed. 961, 77 C. C. A. 479. ( Annotated ) 3. It need not be shown that one who orders grain through a broker has knowl- edge of the rules of the exchange in which they are executed, to make such rules bind- ing upon him. Hallet v. Aggergaard, 14: 1251, 114 N. W. 696, 21 S. D. 554. Membership; by-laws. Right of bankruptcy trustee of member of stock exchange to funds arising from transactions upon floor of, see BANK- RUPTCY, 136. See also infra, 5. Transactions on margin. Validity of sale on margins, see CONTRACTS, 531-534. Injunction to restrain payment by bank of margins on option futures, see IN- JUNCTION, 55. 4. A rule of a board of trade, that if the parties to a transaction cannot, after it has closed, agree to whom the margin shall be paid by the depositary, a com- mittee shall be appointed, who shall deter- mine the question, is valid and binding upon the members. Pacand v. Waite, 2: 672, 75 N. E. 779, 218 111. 138. (Annotated) 5. The power of a board of trade to pass a by-law providing for the compulsory arbitration of the right to the deposited margins upon the close of a transaction, under a provision of the charter permitting it to establish such by-laws for the manage- ment of the business and its mode of trans- action as it may think proper, is not affected by another provision of the charter, Digest 1-52 L.R.A.(N.S.) authorizing the appointment of committees of reference for the settlement of such mat ters of difference as may be voluntarily submitted to them. Pacaud v. Waite, 2: 672, 75 N. E. 779, 218 111. 138. EXCISE. Tax for, see INTOXICATING LIQUORS, II. Discretion of board as to number of licenses to be granted in city, see INTOXICATING LIQLOKS, G9. Excise tax on business, see LICENSE, II. Transfer tax as excise tax, see TAXES, 282, 297. EXCLUSIVE PRIVILEGES. Grant of, by carrier to hacks, etc., see CAR- RIERS, 1007-1013; INJUNCTION, 111. Constitutionality of, see CONSTITUTIONAL LAW, II. a. In general, see MONOPOLY AND COMBINA- TIONS. To operate ferry, see FERRIES, 2, 3. To water company, see WATEKS, III. a. EXCLUSIVE REMEDY. See ELECTION OF REMEDIES, 7-12. EXCOMMUNICATION. Review by courts of judgment of, see COURTS, 193. Of priest, see RELIGIOUS SOCIETIES, 12. Of church member, see RELIGIOUS SOCIETIES, VI. b. EXCURSIONS. Refusal to accept person as passenger on excursion boat, see CARRIERS, 38. Owner of excursion boat, as common car- rier, see CARIUEKS, 11. Excursion ticket, see CARRIERS, II. m. 2. EXCUSABLE HOMICIDE. See HOMICIDE, III. EXCUSABLE NEGLIGENCE. As ground for vacation of judgment, se JUDGMENT, 348, 350, 356, 388. As ground for opening judgment, see JUDG- MENT, 51, 350. EX DELICTO EXECUTION, I. 1261 EX DELICTO. Right of corporation to bring action c delicto, see CORPORATIONS, 49. Effect of subsequent promise to remove bar of limitations against actions ex de- licto, see LIMITATION OF ATIONS, 344. Allegation of action ex delicto, see PLEAD- ING, II. 1. EXECUTED TRUST. See TRUSTS, 28, 30. EXECUTION. 7. In general, 11O. II. Supplemental^ proceedings, 11 13. Of writing required by statute of frauds, see CONTRACTS, I. e, 5, b. Of contract by city, see MUNICIPAL CORPO- RATIONS, 241-243. Of will, see WILLS, I. b. Of insured person for crime, see INSURANCE, 702-704. Review of refusal of trial by jury of- amount for which execution shall issue, see AP- PEAL AND ERROR, 644. As prerequisite to creditor's bill, see CRED- ITOR'S BILL, II. Obtaining judgment in execution to enforce lien as bar to maintenance of replevin suit, see ELECTION OF REMEDIES, 22. Exemption from, see EXEMPTIONS. Question whether clerk or judge should is- sue, see JUDGES, 2. Enforcement of judgment against bankrupt by special execution, see JUDGMENT, 319. Sale under, see JUDICIAL SALE. Levy on, see LEVY AND SEIZURE. Effect of expiration of limitation period for enforcement of judgment on right to issue execution thereon, see LIMITATION OF ACTIONS, 84. Extension of lien of execution by grant of injunction restraining sale, see LIMI- TATION OF ACTIONS, 276. Mandamus to compel issuance of, see MAN- DAMUS, 18. Making sheriff charged with execution of writ party to proceeding to annul an execution, see PARTIES, 194. Prohibition against, see PROHIBITION, 6. Appointment of receiver in aid of, see RE- CEIVERS, 25-28, 42; REFERENCE, 7. Amercement of sheriff for failure to levy and return, see PARTIES, 98; SHERIFF, 4, 5. Amount of execution which surety paying judgment against principal may issue, see SUBROGATION, 28. Digest 1-52 L.R.A.(N.S.) I. In general. (See also same heading in Digest L.R.A 1-10.) 1. An execution issued on a void judg- ment will be quashed on motion. A. B. Farquhar Co. v. Dehaven, 40: 956, 75 S. E. 65, 70 W. Va. 738. 2. The clerk cannot issue an execution on a judgment which has been set aside by the court. State ex rel. Spratlin v. Thomp- son, 20: i, 102 S. W. 349, 118 Tenn. 571. 3. An obligor on a bond, against whom a co-obligor, after paying the judgment and procuring an assignment to himself as au- thorized by statute, issues execution, cannot, after allowing the execution to issue for the whole amount as though he were the prin- cipal debtor, assert that the execution was void, but he must attack it directly, or make equitable defenses to proceedings based on a return of no property found. Sanders v. Herndon, 5: 1072, 93 S. W. 14, 122 Ky. 760. 4. A statutory provision that an execu- tion on a joint judgment must be joint has no application to an execution under a stat- ute permitting a surety who has paid the judgment to take an assignment and have execution issued in his favor against the principal obligor. Sanders v. Herndon, 5: 1072, 93 S. W. 14, 122 Ky. 760. 5. Execution cannot be issued in favor of an attorney to whom a cause of action for personal tort was assigned before judg- ment, to secure his fees for services, where, before the judgment was entered, the client settled the suit and released defendant from further liability. Tyler v. Superior Court, 23: 1045, 73 Atl. 467, 30 R. I. 107. Against what. Issuance of, on exempt property subject to payment of particular debt, see ELEC- TION OF REMEDIES, 3. What property exempt, see EXEMPTIONS. Homestead exemption, see HOMESTEAD. What property subject to, see LEVY AND SEIZURE, I. Return. Against corporation as condition precedent to enforcing stockholder's liability, see CORPORATIONS, 369. Lien of. 6. The lien of an execution extends only to property located in the county to which the execution is directed. Smith v. Johns, 45: 266, 150 S. W. 97, 126 Tenn. 435. ( Annotated ) 7. An execution issued upon a judg- ment rendered in a justke of the peace court, although not a court of record, has the same effect as a lien as one issued from a court of record, notwithstanding a stat ute expressly controlling justices' courts; and a contrary intent is not shown by a statute providing for the filing in a speci- fied court of record of a transcript of the justice's docket, and the issuing of execu- tion thereon with like effect as of a judg- ment of that court, since such statute mere- ly provides a discretionary method of issu- EXECUTION, II. EXECUTORS AND ADMINISTRATORS. ing execution. Park v. McCauley, 28: 1036, 67 S. E. 174, 67 W. Va. 104. 8. A writ of fieri facias in the hands of an officer for execution is, under a stat- ute providing that an execution shall be a lien ''upon all the personal estate of which the judgment debtor is possessed, or to which he is entitled," a lien upon a leg- acy given to the debtor, although it is in the hands of the executor. Park v. Mc- Cauley, 28: 1036, 67 S. E. 174, 67 W. Va. 104. 9. W. Va. Code 1906, chap. 141, 2, providing that notice of the issuance and placing in the hands of an officer of an exe- cution is sufficient to fix liability on one owing money to a judgment debtor, is not modified by 11 thereof, providing that, if such third person is liable at the time of the service on him of a summons to answer a suggestion to enforce the execu- tion lien, he shall be required to pay, so as to relieve from liability one who, with notice of the issuance and placing in the hands of the officer of an execution against a judgment debtor, paid the judgment debt- or before issuance of the suggestion and summons to answer it, since the latter sec- tion does not create a lien, but merely pro- vides a method of enforcing the antecedent lien of the execution. Park v. McCauley, 8: 1036, 67 S. E. 174, 67 W. Va. 104. Satisfaction and discharge. 10. That a plaintiff would be entitled to hold the proceeds of his judgment free from execution under the exemption laws does not prevent the application to it of a statute directing the sheriff, in case executions in favor of both parties come to his hands, to set off one against the other, with certain specified exceptions, among which is not found that claimed by plaintiff. Caldwell Y. Ryan, 16: 494, 108 S. W. 533, 210 Mo. 17. ' (Annotated) Stay. Injunction to restrain enforcement of judg- ment where law court refuses stay pending appeal, see INJUNCTION, 277. Effect of agreement for stay of, see PRIN- CIPAL AND SURETY, 61. //. Supplementary proceedings. (See also same heading in Digest L.R.A. 1-10.) Appeal to judge of trial court from action of clerk in taking jurisdiction of, see APPEAL AND EBROB, 24. Effect of pending appeal by one party, to bar further proceedings, see APPEAL AND EBROB, 99. Requiring defendant to give security for appearance, see BAH. AND RECOGNI- ZANCE, 6. Order in, see MOTIONS AND ORDERS, 7. 11. Property cannot be applied in satis- faction of a judgment by a proceeding in aid of execution, unless the title of the judgment debtor thereto is clear :ind un- disputed. First Nat. Bank v. Cook, 2: 1012, 76 Pac. 674, 12 Wyo. 492. Digest 1-52 L.R.A.(N.S.) 12. The statutory proceeding in aid of execution cannot accomplish in all respects the results secured by a creditor's bill, since, if property is alleged to have been fraudu lently conveyed, or if it is subject to claims or liens of third persons, there is a lack of proper parties to permit of a proper adjust- ment of all interests, and the rendition of a decree that will be effectual from a juris- dictional standpoint. First Nat. Bank v. Cook, 2: 1012, 76 Pac. 674, 12 Wyo. 492. 13. The service upon a judgment defend- ant of a notice requiring him to appear and answer questions regarding his assets, un- der the statute relating to supplementary proceedings in aid of execution, no order being made forbidding the transfer or other disposition of his property, does not give plaintiff a lien upon funds held by the de- fendant, nor prevent the defendant from withdrawing such funds from the reach of his creditors by investing them in a home- stead. McConnell v. Wolcott, 3: 122, 78 Pac. 848, 70 Kan. 375. (Annotated) EXECUTION DEBTOR. Aa necessary party to mandamus proceed- ing to compel issuance of execution, see MANDAMUS, 107. EXECUTIVE DEPARTMENT. Attorney general, see ATTORNEY GENERAL. Governor, see GOVERNOR. Relation of, to courts, see COURTS, 53-70. Disposal of public lands by Department of Interior, see PUBLIC LANDS, I. b. EXECUTORS AND ADMINISTRA- TORS. /. Appointment; resignation; re- moval, 139. II. Powers and liabilities; conduct of estate; assets, 4086. a. Rights, powers, and duties, 40-58. 1. In general, 4O5O. 2. Possession or disposal of property, 5158. a. Personal property; choses in action, SI. b. Real property, 5258. ft. Liabilities, 5979. c. Assets, SO 86. III. Suits affecting estate, 87 95. a. On behalf of, 8792. b. Suits and judgments against, 93-95. IV. Indebtedness; distribution; ac- counting and settlement, 96 133. a. Debts and obligations, 96 113. 1. In general, 961O2. ...K.Vl),A.H..I Sfi-J EXECJUTOKS AND ADMINISTRATORS. 1263 IV. a continued. 2. Presentation and proof of claims, 1O310G. 3. Payment and priority, 1O7-1O9, 4. Burial expenses, 11O 113. 5. Instructions and control by court. c. Distribution; accounting; set- tlement; discharge, 114 133. 1. In general, 114, -117. 2. Commissions; reimburse- ment, 1 IS 121. 3. Retainer; deduction or set-off, 122-124. 4:. Effect of accounting; im- peachment; reopening, 125-133. F. Creditor's rights against land; sale of land for debts. Yt. Foreign and ancillary administra- tion, 134141. Contract by devisee to share real estate with heir, see ACTION OR SUIT, 12; COURTS, 203. Substitution of legal representative on death of party before appeal, see AP- PEAL AND EBBOB, 112. Recovery by executor of probate fee paid under duress, see ASSUMPSIT, 64. Claim by, for moneys paid attorney in suit by administrator of child for its neg- ligent killing, see ATTOBNEYS, 39. Liability of bank whose cashier through its machinery misappropriates funds of es- tate of which he is executor, see BANKS, 34-37. Special deposit by administrator, see BANKS, 218. Compromise agreement in action by one who has wrongfully secured letters of ad- ministration, see COMPBOMISE AND SET- TLEMENT, 4. Administration on estates of absentee, see CONSTITUTIONAL LAW, 396, 397, 593, 778; COUBTS, 242; STATUTES, 314. Administration on estate of soldier dying in soldier's home, see COUBTS, 244. Postponing suit on promise of debtor to pay, as raising new obligation for bene- fit of estate of payee, see CONTRACTS, 60. Agreement of, to defeat probate of will, see CONTRACTS, 485. Effect of administration in county court, on jurisdiction of Federal court to en- force judgment rendered against de- ceased judgment debtor, see COURTS, 268-271. Testamentary direction as to crops, see CROPS, 1. Measure of recovery by administrators for causing intestate's death, see DAMAGES, 389. Contract to convey by good and sufficient deed, see DEEDS, 2. Equitable jurisdiction of suit to charge es- tate of life tenant, see EQUITY, 5. Digest 1-52 LR.A.(N.S.) Against whom should bill to declare escheat of property sold in course of adminis- tration under alleged invalid will be instituted, see ESCHEAT, 7. Estoppel of, see ESTOPPEL, 28, 33, 59, 80, 91, 104; PARTNERSHIP, 86. Estoppel of child receiving from father's executor proceeds of property sold by father to assert title as against pur- chaser from him, see ESTOPPEL, 240. Attaching creditor of administrator as bound by estoppel upon him, see ES- TOPPEL, 257. Right of executor to assert estoppel of stranger to make claim against estate of legatee, see ESTOPPEL, 264. Duty of one entitled to accounting from heir for money received from father's executor, to show amount received, see EVIDENCE, 655. Admissibility of ancient deed signed by executrix, see EVIDENCE, 744. Evidence of declarations of, see EVIDENCE, 1256. Execution as lien upon legacy in hands of executor, see EXECUTION, 8. Fraud of executor toward legatee, see FRAUD AND DECEIT, 23. Injunction against publication or multipli- cation of testator's private letters, see INJUNCTION, 95. Effect of administrator's sale of insured property to work change of title, see INSURANCE, 229. Administrator of keeper of saloon who con- tinues business as a person engaged in liquor business within meaning of in- surance policy, see INSURANCE, 353. Collateral attack on judgment in adminis- tration proceedings, see JUDGMENT, 119, 120, 127, 137, 138. Effect of order to administrator to deliver property to trustee on rights of cestui que trust thereto, see JUDGMENT, 183. Libel by, see LIBEL AND SLANDER, 131, 132. Lien of creditor of decedent's estate on por- tion of estate which has passed into hands of bona fide purchaser, see LIENS, 9. Effect of delay to prevent heirs from assert- ing that estate has not been fully ad- ministered, see LIMITATION OF ACTIONS, 60. Payment of mortgage to administrator of mortgagee where will is afterward dis- covered and executor appointed, see MORTGAGE, 63. Foreclosure of mortgage given by, see MOBT- GAGE, 92. Administrator of mortgagor as party de- fendant in suit to foreclose mortgage, see MOBTGAGE, 102. Right of surviving partner to require exec- utor of managing partner to turn over firm assets, see PABTNEBSHIP, 74. Appointment of receiver for estate in hand* of, see RECEIVERS, 10. Specific performance, as against estate, of promise of former owner, see SPECIFIC PERFORMANCE, 78. 12C4 EXECUTORS AND ADMINISTRATORS, I. Subrogation of one advancing money to executor to pay mortgage to rights of mortgagee, see SUBROGATION, 15. Validity of probate tax or fee, see CONSTI- TUTIONAL LAW, 407; TAXES, 281, 292. Title of statute imposing probate tax or fee, see STATUTES, 140. 141. Statute imposing probate tax or fee as spe- cial legislation, see STATUTES, 179. Taxation of stocks in foreign corporation owned by foreign testator in possession of resident executor, see TAXES, 134. Assessing land devised to be sold to dece- dent instead of to his estate, see TAXES, 170. Executors as "assigns" within meaning of tax laws, see TAXES, 218. Right of state to fix time for settling of decedent's estate, see TAXES, 280. Inheritance tax on money lost through mis- appropriation of, by executor, see TAXES, 359. Fraud in use of name of decedent by execu- tor in carrying on business, see TRADE- NAMES, 21. Compelling administrator of insolvent trus- tee to redeem, see TRUSTS, 118. As to legacies, generally, see WILLS, III. Competency of executor as witness on pro- bate of will, see WILLS, 97, 98. Right of widow's executor to legacy left to her, see WILLS, 351. Effect of admissions of, to bind estate, see WITNESSES, 145. Competency of witness in action by or against, see WITNESSES, I. c. /. Appointment; resignation; removal. (See also same heading in Digest L.R.A. 1-10.) Conclusiveness of findings of probate court upon which letters of administration are granted, see JUDGMENT, 119. Effect of appointment to terminate prior contract for care of property, see MAS- TER AND SERVAN.T, 99. Appointment of trustees, generally, see TRUSTS, II. a. 1. A statutory authorization of testa- mentary executors and guardians applies only to such as are named in a will dis- posing of property. Blacksher Co. v. Northrop, 42: 454, 57 So. 743, 176 Ala. 190. 2. A right of action for negligent killing of a person is an asset of his estate, suffi- cient to warrant the appointment of an ad- ministrator. Jordan v. Chicago & N. W. R. Co. i: 885, 104 N. W. 803, 125 Wis. 581. (Annotated) Jurisdiction to appoint. See also infra, 30. 3. The courts of a county in which a corporation against which an estate has a claim for wrongful death has its habitat have jurisdiction to appoint an administra- tor, although the death occurred in another state, since the demand against the com- pany is property of the decedent's eytate. Digest 1-52 L.R.A.(N.S.) Fickoisen v. Wheeling Electrical Co. 27: 893, 67 S. E. 788, 67 W. Va. 335. 4. The appointment by a probate court of Alabama of a personal representative of a deceased resident of that state other than one of the preferred classes mentioned in the statute, and before the expiration of time within which a person in such pre- ferred class may make application there- for, upon a contract of one purporting to be the widow of the decedent, is not void for lack of jurisdiction of the court over the subject-matter, although the person con- senting \vas neither the widow nor one au- thorized to give such consent, where none of the persons in the preferred classes make application within the statutory period for appointment. Alabama G. S. R. Co. v. Hill, 43: 236, 70 S. E. 1001, 139 Ga. 224. 5. Upon death within the state of a nonresident who has brought action to re- cover damages for wrongful ejection from a railroad train upon which he was a pas- senger, the pending action is a suffificnt asset to support the appointment of an ad- ministrator in the county 'where it was pending. Forrester v. Southern P. Co. 48: i, 134 Pac. 753, 136 Pac. 705, 36 Nev. 247. 6. The appointment of an administrator upon a finding of decedent's death and pos- session of property within the county is conclusive of the authority of the court to make the appointment until set aside on direct attack, although a will is found and subsequently probated in another county. Zeigler v. Storey, 17: 878, 69 Atl. 894, 220 Pa. 471. Who may be appointed. See also infra, 35. 7. The right to act as executor is not a privilege or immunity within the protection of the Federal Constitution. Re Mulford, i: 341, 75 N. E. 345 ? 217 111. 242. 8. Nonresidents may be denied permis- sion to act as executors of local estates. Re Mulford, i: 341, 75 N. E. 345, 217 111. 242. (Annotated) 9. A nonresident alien is not an incom- petent executor under a statute which pro- vides that if any executor shall reside out of the state, the court may remove him. Re Breen, i: 349, 105 N. W. 28, 142 Mich. f>8. (Annotated) 10. There is no provision of law vesting the administration of an estate in the guardian of the property of an insane ad- ministrator, and as between such person and the son of the intestate, the latter is entitled to letters of administration. Me- Cranie v. Hutchinson, 45: 1073, 77 S. E. 1064, 139 Ga. 792. 11. Indebtedness to the estate does not disqualify one from acting as executor. Re Breen, i: 349, 105 N. W. 28, 142 Mich. 58. 12. The right of a creditor of an estate I to administer upon such estate is based upon I his supposed interest therein; and when the status cf creditor ceased, his right to ad- minister upon the estate ceased. Re Engle- hart, 45: 237, 128 Pac. 67, 17 N. M. 299. (Annotated ) 13. A brother of an intestate is not his EXECUTORS AND ADMINISTRATORS, I. 1265 next of kin, within the meaning of a stat- ute permitting letters of administration to be granted to the next of kin, if deceased left a child surviving him, although the child uocs not apply for administration in his own behalf, where, under the statute, the distribution of the estate will be solely to the child. Re Weaver, 22: 1161, 119 N. W. 69, 140 Iowa, 615. 14. Under a statute permitting letters of administration to be granted on the estate of an absentee if the person applying would be entitled to administer were the sup- posed decedent actually dead, a right to ad- minister sufficiently appears in the absence of relatives or creditors, where the law provides that, in such cases, the estate shall go to the use of the school commissioners, which is a department of the mayor and council of the city, and the applicant al- leges that he applies as agent of the mayor and city council. Savings Bank v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. 15. A statute permitting administration upon the estates of absentees if the person applying would be entitled to administer if the supposed decedent was actually dead requires resort to the general testamen- tary law to ascertain the persons entitled, and, in the absence of application by a creditor or next of kin, administration may be granted to a representative of the pub- lic, who are entitled to the estate by es- cheat. Savings Bank v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. 16. The foreign consul is not entitled to administer upon the estate of a citizen of his country dying within one of the United States, in preference to the public adminis- trator of such state, under a treaty provi- sion that if any citizen of either country shall die in the territory of the other, the consul of the nation to which he belonged shall have the right to intervene in the pos- se=sion, administration, and judicial liquida- tion of the estate of the deceased, conform- ably with the laws of the country, for the benefit of the creditors and legal heirs. Re Ghio, 37: 549, 108 Pac. 516, 157 Cal. 552. Administrator de bonis non. 17. An administrator who has been ad- judged to be insane is disqualified further ito act, and the estate is unrepresented, so as to authorize the appointment of an ad- ministrator de bonis non to complete the administration. McCranie v. Hutchinson, 45: 1073, 77 S. E. 1064, 139 Ga. 792. (Annotated) 18. Where an intestate was in posses- sion of land at his death, and subsequently his administratrix paid a balance on the purchase money out of the proceeds of the sale of personal property belonging to the estate, and, after taking the deed to herself in such a way as to vest the title in herself individually, caused her dower to be laid off in the land, and procured a deed to the non. McCranie v. Hutchinson, 45:1073, 77 S. E. 1064, 139 Ga. 792. 19. The appointment of an administra- tor de bonis non and the distribution by him to the remainderman are not necessary to vest in him title to a leasehold bequeathed to the executor for life with remainder over, where the executor distributes the life estate to himself, in his accounts, which are approved by the probate court, and dies without actually distributing the re- mainder. Crean v. McMahon, 14: 798, Atl. 265, 106 Md. 507. Notice; procedure. (Annotated) 20. The giving of proper notice for the appointment of an administrator brings into court all persons having an interest in tne estate, for all purposes necessary for the set- tlement of the estate, including its distri- bution among the heirs of decedent. Bar- rette v. Whitney, 37: 368, 106 Pac. 522, 36 Utah, 574. 21. Application for letters of adminis- tration upon the estate of an absentee may be applied for orally unless the statute re- quires it to be done in writing. Savings Bank v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. 22. A representative of the public, apply- ing for letters of administration upon the estate of an absentee, for the purpose of claiming an escheat, need not allege ab- sence of relatives or creditors, where the statute requires the court to be satisfied, before granting the letters, that the per- son applying would be entitled to admin- ister if the supposed decedent were actu- ally dead. Savings Bank v. Weeks, 22: 221, 72 Atl. 475, 110 Md. 78. 23. An oath faithfully to perform his duties is not necessary to the qualification of an executor, unless made so by statute. Leahy v. Haworth, 4: 657, 141 Fed. 850, 73 C. C. A. 84. Validity; collateral attack. 24. The grant by the probate court of one county, of letters of administration upon an estate, while an unrevoked grant of letters exists in another county, is of no avail, although the letters first issued were fraudulently obtained. Carr v. Illinois C. R. Co. 43: 634, 60 So. 277, 180 Ala. 159. 25. That one nominated by a will to execute it is designated as "executor and administrator" does not render the pro- vision void. Conoway v. Fulmer, 34: 963, 54 So. 624, 172 Ala. 283. 26. When an application is presented to the probate court for the appointment of an administrator of a surviving partnership, and the court finds the existence of the facts authorizing it to exercise jurisdic- tion, the action of the court in making the appointment is not subject to collateral at- tack. Parnell v. Thompson, 33: 658, 105 Pac. 502, 81 Kan. 119. 27. The appointment, by a court of com- "- j (if. J.HC HiiuuuiuiiBiibi uy a, courL 01 coin- land to herself from some of the heirs of the I petent jurisdiction, of an administrator, is intestate, and afterwards was adjudged in- I not open to collateral attack in a suit by sane, a prima facie case of an unadminis- . the administrator to collect assets, on the tercd asset is made, such as to authorize the | ground that it was void because of lack of appointment of an administrator de bonis assets in the state. Jordan v. Chicago & Digest 1-52 L.R.A.(N.S.) 80 12C6 EXECUTORS AND ADMINISTRATORS, II. a, 1. N. W. R. Co. x: 885, 104 N. W. 803, 125 Wia. 581. 28. A judgment of a court of probate of the state of Alabama, granting letters of administration, rendered by a court hav- ing jurisdiction of the subject-matter, and apparently legal on its face, when offered as evidence in a cause pending in this state, cannot be collaterally impeached for fraud. Alabama, G. S. R. Co. v. Hill, 43: 236, 76 S. E. 1001, 139 Ga. 224. 29. A probate court which has appoint- ed an administrator for an estate as that of a person designated by the wrong name may ignore such appointment and appoint another administrator for the estate under the proper name, without subjecting its action to collateral attack. Milbra v. Sloss-Sheffield Steel & Iron Co. 46:274, 62 So. 176, 182 Ala. 622. (Annotated) 30. Lack of jurisdiction does not appear on the face of an order appointing an ad- ministrator, by a court of general juris- diction over the appointment, so as to ren- der it subject to collateral attack, by a re- cital that the court "was opened and held" on a certain day, whereas the statute re- quired the regular term to begin on the preceding day, the court to sit from day to day so long as business should require, since it will be assumed that the court regu- larly convened on the day required by stat- ute, and that the recital in the order re- ferred merely to the opening of the court for the transaction of business on the day when it was entered. Dayton Coal & Iron Co. v. Dodd, 37: 456, 188 Fed. 597, 110 C. C. A. 395. 31. The question of the validity of the appointment of an administrator " for the estate of one killed by another's negligence cannot be raised by motion to dismiss a pe- tition filed by him against the wrongdoer to recover damages for the death. Louisville v. Schneider, 35: 207, 136 S. W. 212, 143 Ky. 171. 32. The competency of an administrator duly appointed cannot be contested in an action brought by him to recover for the wrongful death of his intestate. Fickeisen v. Wheeling Electrical Co. 27: 893, 67 S. E. 788, 67 W. Va. 335. Revocation; nullification. Removal of trustees, generally, see TBTJSTS, 75, 76. 33. The reversal of a decree admitting to probate a will which does not nominate an executor authorizes .the revocation of the authority of one who has been appointed ad- ministrator with the will annexed, and the appointment of an administrator under the general administration statutes. Hamilton v. Williams, 21: 975, 118 S. W. 358, 133 Ky. 558. (Annotated) 34. The presentation of a will to the register of one county, and its proof by the attesting witnesses, does not nullify the act of a register in another county in granting letters of administration upon testator's es- tate without notice of the will and before the entry of a decree admitting it to pro- bate. Zeigler v. Storey, 17: 7, 69 Atl. 894, 220 Pa. 471. Digest 1-52 L.R.A.CN.S.) 35. The authority of a creditor of an ia- testate, who, without citation of his next of kin, secures letters of administration upon his estate, will be revoked upon the motion of a nonresident brother, who is, by stat- ute, entitled to administer upon the estate, and who mo\*es promptly upon learning the facts, although by the statute the issu- ance of citations to nonresidents rests in the discretion of the surrogate. Re Camp- bell, 18: 606, 85 N. ?Z. 392, 192 N. Y. :312. 36. An administrator appointed on the nomination of the sole surviving child of an intestate, who is, under the statute, the sole distributee of the estate, should not be removed at the instance of a brother of the intestate, in the absence of anything to show that the appointment was improper, or that the change was required by the interests of the estate as a whole, or by the interest or right of some beneficiary of the estate. Weaver v. Lamb, 22: 1161, 119 N. W. 69, 140 Iowa, 615. (Annotated) 37. Letters of administration will be re- voked upon the discovery, and offer for probate, of a will, although creditors and legatees would probably not be prejudiced by the refusal of letters testamentary to the executors, and the continuance in office of the administrator would facilitate set- tlement of the estate; and notwithstanding the residuary legatees have agreed that the administrators shall continue to settle the estate and make distribution thereof in ac- cordance with the terms of the will. Re Nelson, 49: 894, 88 Atl. 974, 242 Pa. 167. ( Annotated ) Resignation. 38. In the absence of express statutory authority, an executor and testamentary trustee who has qualified cannot be permit- ted to resign in order to place the trust es- tate in possession of a member of testator's family for greater economy in its adminis tration. Mclntvre v. Proctor, 13: 438, 59 S. E. 39, 145 N-. C. 288. (Annotated) 39. The status of one of two or more co- executors who has given a new bond and re- tained his position after the resignation of the others as an administrator de bonis non, and the limitations upon the rights and power of administrators de bonis non have not been abrogated nor changed by i of chapter 118 of the West Va. Code, which deals merely with the matter ot resignation and conditions requisite thereto, nor by 25 and 32 of chapter 87, which deal with the settlements of fiduciaries. Brown v. Brown, 47: 995, 78 S. E. 1040, 72 W. Va. 648. II. Powers and liabilities; conduct of estate ; assets. a. Rights, powers, and duties. 1. In general. (See also .tame heading in Digest L.R.A.. 1-70.) Of foreign or ancillary administrator, tee infra, VT. EXECUTORS AJXD ADMINISTRATORS, II. a, 1. Right to appeal irom decree as to construc- tion of will, see APPEAL AND EBBOB, 84. Duty of bank paying check of depositor after his death to account to personal representative, see BANKS, 92. Empowering executor to distribute estate among such charities as he may select, see CHARITIES, 42, 54-56. Interference by courts with discretion of executor conferred by will in distribut- ing estate among charities, see CHARI- TIES, 59. Due process in administration of estate, see CONSTITUTIONAL LAW, 591-593. Binding effect on administrator, of contract by intestate, see CONTRACTS, 723, 724. Right of legal representative of author to copyright in unpublished letters or books, see COPYRIGHT, 2-4. Estoppel of one executing deed as, to set up existing title in himself, see ES- TOPPEL, 28. Right of administrator to exercise rights of guardian, see GUARDIAN AND WARD, 1. Mechanics' lien for material furnished un- der contract with administrator, see MECHANICS' LIENS, 3. Authority of administrator to extend time on note by intestate so as to release sureties thereon, see PRINCIPAL AND SURETY, 55. 40. In case a testator sets apart a certain um for the erection of a suitable monu- ment to his memory, the executors may spend all or any part of the sum for a monument in their discretion. Fancher v. Fancher, 23: 944, 103 Pac. 206, 156 Cal. 13. 41. Discretion vested in an executrix by a testator, to decide when his son shall be morally fit to have control of property be- queathed him, will be controlled by the court where she refuses to act although moral character on the part of the son suffi- cient to enable him to accumulate and pro- tect property is shown, where she is hostile to the son and would profit should the prop- erty be kept intact and he die without issue. Re Buchar, 25: 421, 74 Atl. 237, 225 Pa. 427. ( Annotated ) 42. The statute (executors' act, 1830) which provides that an executor shall be a trustee for the person or persons who would be entitled to the estate under the statute of distributions in respect of any residue not expressly disposed of, unless it shall appear by the will that the executor is to take the residue beneficially, applies only in cases where there is a bare appointment of executors, so that the implication of law has to be resorted to in order to see wheth- er the estate of the testator not other- wise disposed of vests in them benefi- cially virtute officii. Re Roby, 4 B. R. C. 256, [1908] 1 Ch. 71. Also Reported in 77 L. J. Ch. N. S. 169, 97 L. T. N. S. 773. Coexe enters and administrators. Liability for acts of coexecutors, see infra, 72-75. . One of two joint executors having 1-52 L.R.A.(N.S.) power to sell real estate cannot bind the other by attempting to change the terms of the option, or by giving a new one. Trog- don v. Williams, 10: 867, 56 S. E. 865, 144 N. C. 192. 44. One of two executors with power to sell real estate cannot ratify the act of his coexecutor in waiving compliance with the terms of an option, after it has terminated and he has been notified of the election of the devisees to take the land in its un- converted form. Trogdon v. Williams, 10 : 867, 56 S. E. 865, 144 N. C. 192. As to inventory. Jurisdiction of appeal from order requiring administratrix to inventory property of estate, see APPEAL AND ERROR, 73. Estoppel of widow to assert title to prop- erty by attempting to inventory it as belonging to the estate, see ESTOPPEL, 62. Admissibility of inventory, see EVIDENCE, 850. Use of funds. 45, 46. Executors have no power to com- plete a building devised in an unfurnished condition, out of the funds of the estate, except so far as contracts have been let by the testator. Re Hincheon, 36: 303, 116 Pac. 47, 159 Cal. 755. To make compromise. For death of ancestor, see DEATH, 50. Compromise by beneficiary of claim for wrongful death, see DEATH, 51-53. Authority to compromise claim for death, see DEATH, 53a. Creating debt. 47. An executor who is empowered by the will to do anything concerning testator's estate which he himself would do if living, leaving it to his judgment how he shall manage "my business," has power, where testator's business is the management of a corporation of which he is practically the sole stockholder, to borrow money, if neces- sary, to carry on the business, and bind the entire estate for its repayment. Schlick- man v. Citizens' Nat. Bank, 29: 264, 128 S. W. 823, 139 Ky. 268. Carrying on business. See also supra, 47; infra, 67, 68. 48. Authority conferred upon an execu- tor to carry on testator's business without bond will not, upon his resignation, pass to an administrator de bonis non with the will annexed. Schlickman v. Citizens' Nat. Bank, 29: 264, 129 S. W. 823, 139 Ky. 26S. 49. The power conferred upon an execu- tor to carry on testator's business does not pass to an administrator de bonis non because of a clause to the effect that the de- vise to testator's children is subject to the power conferred on the executor, and shall in no case be construed as a limitation up- on his power to carry on the business. Schlickman v. Citizens' Nat. Bank, 29: 264, 129 S. W. 823, 139 Ky. 268. 50. A statute providing that an admin- istrator with the will annexed shall exercise all the powers and authority, and possess the same rights and interest, as the execu- tor* named therein, does not confer upon 1268 EXECUTORS AND ADMINISTRATORS, II. a, 2. such administrator a power conferred by the will upon the executor, to carry on tes- tator's business without bond. Schlickman v. Citizens' Nat. Bank, 29: 264, 129 S. W. 823, 139 Ky. 268. (Annotated) 2. Possession or disposal of property. a. Personal property; choses in action. (See also same heading in Digest L.R.A. 1-10.) Requiring bond of administrator as con- dition of paying over to him deposit of intestate, see BANKS, 234. Requiring bond of administrator of de- positor as condition of paying deposit to him, see BANKS, 234. Replevin against, by mortgagee for mort- gaged goods of which mortgagor died possessed, see REPLEVIN, 6. 51. An administrator cannot assign to the widow without consideration a right of action for death of his intestate, constitut- ing part of the assets of the estate, where there are surviving children and under the statute, any recovery is for the benefit of both widow and children. Flynn v. Chi- cago G. W. R. Co. 45:1098, 141 N. W. 401, 159 Iowa, 571. (Annotated) b. Real property. (See also same heading in Digest L.R.A 1-10.) Adverse possession by executor, see AD- VERSE POSSESSION, 25. Sufficiency of evidence to show that pur- chase price of decedent's land so.'d went j to satisfy debts which were en cum- brance on title of heir, see EVIDENCE, 2308. Injunction to restrain sale of real estate, see INJUNCTION, 413. Liability for interest of heirs required to refund purchase money of land ille- gally sold by administrator, see IN- TEBEST, 46. Executor's right to possession as terminat- ing contract for care of property and doing work thereon, see MASTER AND SEKVANT, 99. When power of sale given executors by will is coupled with an interest, se POWERS, 9. By trustee, see TUUSTS, 93-10]. Sale by administrator of property under mistaken belief that it is subject to dower, see VENDOR AND PURCHASER, 8. Executor's title to realty directed to be sold and proceeds divided, see WILLS, 379. See also supra, 43, 44. 52. An administrator is not entitled to the possession of property of which the decedent whose estate he represents died possessed, as against a defendant who shows j that he is the equitable owner thereof, in Digest 1-52 L.R.A. (N.S.) the absence of proof that there are cred- itors of the estate whose equitable claim* to the property take precedence over that of the defendant. Koslowski v. Newman, 3: 704, 105 N. W. 295, 74 Neb. 704. (Annotated) 53. The executor has authority to make the sale under a power in a will directing property to be converted into money and the proceeds distributed. Haggin v. Straus, 50: 642, 146 S. W. 391, 148 Ky 140. 54. Power conferred upon executors to sell testator's real estate does not include power o give an option thereon. Trogdon v. Williams, 10: 867, 56 S. E. 805, 144 N. C . 192. (Annotated) 55. The power of an executor, under a direction in the will, to sell real estate and distribute the proceeds is not destroyed by an order of court declaring the estate set- tled, and discharging him as executor. Starr v. Willoughby, 2: 623, 75 N. E. 1029, 218 III. 485. (Annotated) 56. The taking possession by an execut- or de son tort of premises for which deced- ent had secured a lease to begin in future, paying rent from month to month, does not give iiim any rights under the lease, but makes him tenant only from month to month, since he would have no authority to take possession under the lease. Grace v. Seibnt, 22: 301, 85 N. E. 308 : 235 111. 190. , (Annotated) 57. An executor having a naked power to sell city lots has implied authority to in- sert restrictive covenants in the deeds with respect to the building line of the houses to be erected thereon, which will bind the es- tate in favor of purchasers of the first lots, and may be enforced by them against later purchasers. Simmons v. Crisfield, 26: 663, 90 N. E. 956, 197 N. Y. 365. Sale by order of court. Statute authorizing sale of property of ab- sent heir, see CONSTITUTIONAL LAW. 608. Effect of judgment on after-born children, see JUDGMENT, 222. Enforcement of purchaser's bid at admin- istrator's sale, see JUDICIAL SALE, 14. Delay in petitioning for sale to pay debts, see LIMITATION OF ACTIONS, 59. When proceeding for sale of decedent's real property is barred, see LIMITATION OF ACTIONS, 267. Rescission of purchase at administrator's sale, see VENDOR AND PURCHASER, 7C. Right of widow's administrator after elec- tion by her to take under will, see WILLS, 371. 58. A sale of real estate belonging to the estate of a testator, made by an executor to the surety on his bond under an order of the probate court, procured through the fraud of the executor, may be set aside at the suit of a devisee, although the surety was ignorant of the dishonest conduct of his principal. Fincke v. Bundriek, 4: 820, 83 Pac.-403, 72 Kan. 182. (Annotated) Purchase by executor. Personal liability of trustee on contract, se* TRIAL, 120. ' ..*T>.A.JFf.a Sa-j EXECUTORS AND ADMINISTRATORS, II. b. 12t> ( J 6. Liabilities. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence to show that exec- utor used funds of estate to pay his individual debt, see EVIDENCE, 2300. Liability to garnishment, see GARNISH- MENT, 9, 10. Liability for interest, see INTEREST, I. f. Petition in action to recover for services by attorney employed by administrator on behalf of estate, see PLEADING, 179. Assessment to personal representatives of property omitted during lifetime of taxpayer, see TAXES, 171, 172, 178. Liability of administrator for failure to collect inheritance tax, see TAXES, 360. Competency of witnesses in action against administrator in individual capacity, see WITNESSES, 43. 59. The administrator of a decedent's es- tate is not liable in an action at law for the amount expended by one nominated as ex- ecutor, in an instrument purporting to be decedent's will, in attempting to secure its probate, where the instrument is rejected in the court of first instance because of in- validity, and its decision stands unreversed. Dodd v. Anderson, 27: 336, 90 N. E. 1137, 197 N. Y. 466. 60. An executor is not personally charge- able with the amount applied in payment of unproved debts of testator against which he might have pleaded the statute of lim- itations, where the estate was devised in trust for the payment of debts. Gordon v. McDougall, 5: 355, 37 So. 298, 84 Miss. 715. 61. Executors acting under authority of a will on file are not personally liable on a warranty purporting to bind them as ex- ecutors in a deed of testator's real estate, which, although authorizing the sale, did not authorize the warranty, so that they are not liable in their representative capacity. Ivey v. Vaughn, 43: 377, 76 S. E. 464, 93 S. C. 203. (Annotated) 62. A*i administrator appointed under the provisions of a statute, for the estate of a person whose whereabouts have been un- known for a period of years, may lawfully collect the insurance upon his life, although he is not dead; and is therefore not per- sonally liable to return the amount col- lected upon the reappearance of the insured. New York L. Ins. Co. v. Chittonden, n: 233, 112 N.W. 96, 134 Iowa, 613. 63. A donee of a life insurance policy payable to the administrator of the insured, who delivers the policy to the administrator for collection, may maintain an action against him in his individual capacity, to recover the proceeds. Gledhill v. Mc- Coombs, 45: 26, 8$ Atl. 247, 110 Me. 341. 64. An executor in charge of a building belonging to the estate is not liable for in- jury to a servant by the incompetence of a coservant which a competent superintend- ent whom he had placed in charge of the building intrusted with the operation of the Digest 1-52 L.R.A.(N.S.) elevator, where he is to receive no benefit whatever from the running of the building, so that he does not bear the relation of master to such superintendent. Petting v. Winch, 38: 379, 104 Pac. 722, 54 Or. 600. ( Annotated ) 65. A personal judgment against the ad- ministrator for a claim against the estate is not warranted by a statute providing that the judgment must be that the ad- ministrator pay in due course of adminis- tration. Smith v. Hanson, 18:520, 96 Pac. 1087, 34 Utah, 171. For attorneys' fees. 66. An administrator is individually lia- ble to an attorney employed by him to prose- cute an action in his official capacity, and is entitled to reimbursement therefor out of the estate. Brown v. Quinton, 25: 71, 102 Pac. 242, 80 Kan. 44. Carrying on business. 67. Consent by all interested in a de- cedent's estate, that his business shall be continued by the administrator, will re- lieve the administrator from liability for losses resulting therefrom, although he failed to inform them that his operations were not profitable. Swaine v. Hemphill, 40: 201, 131 N. W. 68, 165 Mich. 561. (Annotated) 68. In the absence of a testamentary di- rection an administrator of the estate of a deceased person cannot carry on the business of the decedent, and if he does so with- out authority he will be individually bound for the contracts of the business. Campbell v. Faxon, 5: 1002, 85 Pac. 760, 73 Kan. 675. Deposits in bank. 69. An administrator who deposits funds in a bank .in good standing in the communi- ty, and promptly distributes the interest to the next of kin, is not liable for losses caused by the failure of the bank, no negli- gence on his part being shown, and the exi- gencies of administration requiring the fund to be kept on hand. Knapp v. Jessup, 7: 617, 109 N. W. 666, 146 Mich. 348. (Annotated) 70. The retaining in a bank, by an ad- ministrator, for three months, of money re- ceived by him, instead of distributing it, does not make him liable for its loss through failure of the bank, where he had a right to retain money for the use of testator's widow, which might be called for at any time. Knapp v. Jessup, 7: 617, 109 N. W. 666, 146 Mich. 348. 71. That an administrator directs the bank* to credit a fund deposited by him to his account as administrator will not relieve him from liability in case the fund is lost ' through failure of the bank, if the fund is in fact credited to him individually, and lie accepts a pass book showing that fact. Chancellor v. Chancellor, 45:1, 58 So. 423, 177 Ala. 44. (Annotated) Coexecutors and coadministrators. As to powers of coexecutor, see supra, 43 44. See also infra, 90. 72. One executor will not, in an account- ing between themselves, be charged for loss- es caused by the negligent management by 1270 EXECUTORS AND ADMINISTRATORS, 11. c. his coexecutor of a portion of the estate which was turned over to him to care for. Cheever v. Ellis, i-i : 296, 108 N. W. 390, 144 Mich. 477. (Annotated) 73. Neither of two joint executors is es- topped, as between themselves, by the fil- ing of a joint inventory and the filing of joint accounts, to set up freedom from lia- bility for losses caused by the other's negli- gent management of the estate, where the exact relations of the parties to the trust fund is shown by the record. Cheever v. Ellis, ii : 296, 108 N. W. 390, 144 Mich. 477. 74. That an executor is also a legatee does not change the rule that one will not, as between themselves, be charged with losses caused by the negligent management by a coexecutor of a portion of the estate turned over to him to care for. Cheever v. Ellis, ii : 296, 108 N. W. 390, 144 Mich. 477. 75. The liability of a surviving adminis- trator who has charged and has been allowed full commissions for services of both himself and his deceased coadministrator, to the es- tate of such deceased coadministrator for such of the commissions as may be due that estate for services rendered by the deceased coadministrator, is personal only. Groover v. Ash, 22: 1119, 64 S. E. 323, 132 Ga. 371. Liability on bond. Venue of action on administrator's bond, see VENUE, 3. Jurisdiction of suit on bond, see COURTS, 15. Collusiveness on surety of judgment against principal, see JUDGMENT, 253. Contribution between sureties, see PRIN- CIPAL AND SURETY, 71. See also infra, 131. 76. A surety on the fiduciary bond of a personal representative is not liable thereon for obligations of the fiduciary contracted after the death of the decedent, although in the interest and for the benefit of the estate. Thompson v. Mann, 22: 1094, 64 S. E. 920, 65 W. Va. 648. (Annotated) 77. The bond of a personal representa- tive, taken by an officer without authority, and voluntarily given, is valid as a com- mon-law obligation, and enforceable as such, in the absence of a statutory prohibition of uch construction. Central Bkg. & S. Co. v. United States Fidelity & G. Co. 51 : 797, 80 S. E. 121, 73 W. Va. 197. 78. A surety on an administrator's bond is not liable thereon for the administrator's obligation to pay .money illegally borrowed after the death of the decedent, or for money tortiously obtained by the adminis- trator, although the money procured by the administrator is used for the benefit of the estate. Bank of Newton County v. Ameri- can Bonding Co. 50: 1089, 80 S. E. 1003, 141 Ga. 326. 79. A mere decree directing an executot to pay funds of the estate to himself as executor of a legatee does not, without more, work a transference of the funds, so as to relieve the sureties on his bond as executor of the former estate from Digest 1-52 L.R.A.(N.S.) liability for a devastavit. Davis v. Hall, 40: 1136, 83 Atl. 653, 86 Vt. 31. (Annotated) c. Assets. (See also .tame heading in Digest LJt.A. 1-70.) What are assets justifying appointment of executor or administrator, see supra, I. Right of administrator to recover accrued amount of annuities in case of death be- tween two quarterly periods, sec AN- NUITIES, 3. Duty of bank to pay to administrators money deposited, see BANKS, 148. Right of administrator of insurance igent granting rebate on premium to com- pel payment of unpaid portion, see CONTRACTS, 580. Estoppel of administrator to assert title to proceeds of insurance on decedent'i life, see ESTOPPEL, 91. Right to insurance policy, see INSURANCE, 458, 826, 848. Right to insurance money, see INSURANCE, 833, 834. Attachment of funds of estate in hands of, see MONET IN COURT, 3. See also infra, 88. 80. Upon the appointment as adminis- trator of an estate of one of its solvent debtors, the debt is considered paid, and the administrator is chargeable with the amount thereof in his accounts, regardless of his subsequent financial condition. Wachsmuth v. Penn Mut. L. Ins. Co. 26: 411, 89 N. E. 787, 241 111. 409. ( Annotated ) 81. The death between regular distribu- tion periods, of one to whom a portion of the income of an estate is given for life with direction that payments shall be made quar- terly or oftener, at the convenience of the trustees, does not defeat the right of his ad ministrator to all of the income which ac- crued since the last distribution; but the income should be apportioned as of the time of the death, and that accruing prior thereto paid to the administrator, and that subsequently to the next taker. Welch v. Apthorp, 27: 449, 89 N. E. 432, 203 Mass. 249. (Annotated) 82. Crops on the land at the time of the owner's death are assets for payment of debts, under a statute directing the executor to sell for cash such crops, and account for the proceeds as assets, notwithstanding his will may imply that they shall belong to the devisee; nothing short of an express direction will avoid the application of the statute. Gordon v. Jamee, i : 461, 39 So. 18, 86 Miss. 719. 83. Dividends on stocks and bonds, de- clared after the death of the owner, belong to the specific devisee of the stocks and bonds, and are not assets for the payment of the debts of the estate, in the absence of EXECUTORS AND ADMINISTRATORS, III. a. 1271 statutory direction to the contrary. Gordon T. James, i: 461, 39 So. 18, 86 Miss. 719. S4. The interest of the grantee of a con- tract for the sale of growing timber to be removed within a certain period of years is a determinable fee in real estate, and will pass to his heirs, and not to his administra- tor. Midyette v. Grubbs. 13: 278, 58 S. E. 795, 145 N. C. 85. (Annotated) 85. The increase in value of a home- stead set apart to a widow and child above the limit fixed by statute does not consti- tute assets which will warrant further ad- ministration of decedent's estate, where the statute provides that the homestead set persons to whom it is set apart. Re Bed- ford, 16: 728, 95 Pac. 518, 34 Utah, 24. (Annotated) 86. Money recovered in an action by an administrator pursuant to a statute allow- ing recovery for the death of a deceased by wrongful act or omission, for the benefit of the widow, children, or next of kin, does not constitute general assets to be administered, which are liable for decedent's debts, but such money belongs to the particular persons for whose benefit the action is given, against which a demand at law against the adminis- trator de bonis testatoris constitutes no lien or charge. Thompson v. Mann, 22: 1094, 64 S. E. 920, 65 W. Va. 648. ///. Suits affecting estate. a. On behalf of. (See also same heading in Digest LJt.A. 1-10.) Survivability of action, see ABATEMENT AND REVIVAL, II. Review of discretion as to amendment of complaint in action on behalf of de- cedent's estate, see APPEAL AND ERROR, 591. Prejudicial error in admission of evidence in action by personal representative, see APPEAL AND ERROR, 1144. Right to maintain action for death, see CONFLICT OF LAWS, 99. Right to sue executor or administrator on his bond in state other than that of his appointment, see COURTS, 15. Jurisdiction of suits affecting, see COURTS, 240-244. Right of action DEATH. for causing death, see Action by, for negligent killing, see ELEC- TION OF REMEDIES, 10. Admissibility, in action by administrator to recover purchase price of property, of dying declarations of vendor, see EVIDENCE, 1508. Variance as to name between pleading and proof where plea of former action pend- ing is set up, see EVIDENCE, 2471. Right of administrator of insolvent to set aside conveyance made in fraud of cred- itors, see FRAUDULENT CONVEYANCES, 53. Digest 1-52 L.R.A.(N.SO Effect of judgment on after-born children, see JUDGMENT, 222. Suing out execution upon judgment of fore- closure in favor of intestate, see LEVY AND SEIZURE, 28. When right of action is barred, see LIMI- TATION OF ACTIONS, 253, 266, 267, 277. Running of limitations against right of ac- tion, see LIMITATION OF ACTIONS, II. j. As proper party to sue, see PARTIES, 74, 139-142. Parties defendant, see PARTIES, II. a, 4, Pleading in generally, see PLEADING, II. n. Description of, as parties, see PLEADING, 178. Disregarding official title in action which administrator has right to maintain in his own name, see PLEADING, 178. Sufficiency of complaint in action by ad- ministratrix for conversion, see PLEAD- ING, 379. Action by personal representative to re- cover damages for death, see RELEASE, 11. Right of executrix of beneficiary under will to maintain bill to review decree in ac- tion for construction, see REVIEW, 1. Competency of witnesses in action by, see WITNESSES, I. c. 87. An executor may prosecute a suit to set aside, for failure of consideration, a deed conveying land he is authorized by the will to sell. White v. Bailey, 23 : 232, 64 S. E. 1019, 65 W. Va. 573. 88. One appointed by a state court to administer the estate of one who died in a soldiers' home, land for which had been ceded by the state to the Federal govern- ment, may maintain an action against the officers of the home to recover possession of securities left by decedent. Divine v. Unaka Nat. Bank, 39: 586, 140 S. W. 747, 125 Tenn. 98. Administrator de bonis noii. 89. Property converted or altered by an executor or administrator from the stata or condition in which the testate or in- testate left it is regarded in law and equity as having been administered, and therefore not recoverable by an administrator de bonis non, even though such conversion or alteration be an appropriation of the prop- erty by the personal representative to his own use, or amount to a devastavit. Brown v. Brown, 47: 995, 78 S. E. 1040, 72 W. Va. 648. 90. One of two or more coexecutors, who has given a new bond and retained his posi- tion after the resignation of the others, has the status of an administrator de bonis non a.dministratis, and can sue his former as- sociate only for legally unadministered as- sets remaining in his hand , or in respect to transactions between themselves, but can- not maintain a bill to surcharge and falsify ex parte settlements made by the retired executor, nor charge him as for a devas- tavit. Brown v. Brown, 47: 995, 78 S. E. 1040, 72 W. Va. 648. (Annotated) Foreign representatives. 91. A judgment obtained by a domicil- 1272 EXECUTORS AND ADMINISTRATORS, III. b; IV. a, 1. iary executor, at the place of his residence, is an asset located within tliat state; and he, in his individual capacity, and not an ancillary administrator appointed at the debtor's residence, in another state, has the right to sue in the courts of the latter state, to enforce the judgment. Hare v. O'Brien, 39: 430, 82 Atl. 475, 233 Pa. 330. 92. A statute declaring that foreign let- ters of administration shall not confer any of the powers or authority conferred by domestic letters does not prevent a domi- ciliary administrator who has obtained a judgment in the state of his residence from maintaining an action on it in the local courts. Hare v. O'Brien, 39: 430, 82 Atl. 475, 233 Pa. 330. (Annotated) Z. Suits and judgments against. (See also same heading in Digest L.R.A. 1-10.) Survivability of action, see ABATEMENT AND REVIVAL, II. Presumption and burden of proof in action against administrator, see EVIDENCE, 207. Evidence in action against administrator, see EVIDENCE, 845, 846. Evidence in garnishment proceeding against, see EVIDENCE, 1917. Garnishment of, see GARNISHMENT, 9, 10. Injunction against enforcement of judg- ment, see INJUNCTION, 279, 280. Judgment against executors in representa- tive capacity where statute makes them personally liable, see JUDGMENT, 31. Conclusiveness of judgment, see JUDGMENT, 216. Survival to administrator of right to ap- ply for new trial, see JUDGMENT, 329. Running of statute of limitations against, see LIMITATION OF ACTIONS, II. j. Laches in bringing suit for enforcement of agreement by decedent to adopt child, see LIMITATION OF ACTIONS, 55. Limitation of time for action by heirs to recover property sold by, see LIMITA- TION OF ACTIONS, 105. When cause of action for breach of cove- nant against encumbrances arises, see LIMITATION OF ACTIONS, ]92. Intervention of parties in action, see PAR- TIES, 211. Joinder of parties in action to recover for repairs from estate of life tenant, see PARTIES, 143. Parties defendant, see PARTIES, II. a, 4. Description of administrator as party, see PLEADING, 179. Allegations as to ownership of sum loaned by administrator, see PLEADING, 224. Suit against administrator for specific per- formance of intestate's contract, see SPECIFIC PERFORMANCE, 29. Question for court or jury in action on as- signed claim against executor, see TRI- AL, 268. Competency of witness in action against, see WITNESSES, I. c. Digest 1-52 I*R.A.(N.S.) 93. An action lies against the executor as such for the probate of a will charging another with illegitimacy. Harris v. Nash- ville Trust Co. 49: 897, 162 S. W. 584, 128 Tenn. 573. (Annotated) 94. An equitable action against the ad- ministrators of a decedent to enforce a parol agreement by the decedent for the adoption of a child is not within the prohibition of a statute exempting administrators from suits for twelve months after their appoint- ment, on debts due by the decedent. Craw- ford v. Wilson. 44: 773, 78 S. E. 30, 139 Ga. 654. 95. Presentation of a claim as a creditor of the estate is not a condition to the main- tenance of an action to compel a convey- ance by the executor of one holding a legal title of land, the title to which, in equity and good conscience, should be conveyed to complainant. Brown v. Sebastopol, 19: 178, 96 Pac. 363, 153 Cal. 704. Foreign representatives. Conclusiveness on domiciliary executor of decree in action against foreign admin- istrator, see JUDGMENT, 208. IV. Indebtedness; distribution; ac- counting and settlement, a. Debts and obligations. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Review of facts upon appeal from allowance of claim against decedent's estate, see APPEAL AND ERROR, 1004. Agreement by one having claim against es- tate to aid heirs in recovering estate in consideration of payment of his claim, see CHAMPERTY, 2; CONTRACTS, 491. Liability of estate to pay for services by adopted child of deceased, see CON- TRACTS, 32. Presumption in suit aj.ain.st estate by foster child for services, see EVIDENCE, 537. Right of woman caring for brother during last illness to allowance out of estate, see CONTRACTS, 33. Liability of estate to compensate adult child for services to parent, see Co NTRACTS, 38. Liability of estate of deceased for services rendered under contract made by him, see CONTRACTS, 723, 724. Allowance against, of alimony accruing between divorce and remarriage of de- cedent's wife, see COURTS, 242. Use of depositions in consideration of claims against decedent's estate, see DEPOSI- TIONS, 14. Effect of death of father on obligation to support child after divorce, see DI- VORCE AND SEPARATION, 155-157. Allowance of claim against estate by court as prima facie evidence of debt and ita due presentment, see EVIDENCE, 502. EXECUTORS AND ADMINISTRATORS, IV. a, 2. Evidence of admissions in action to enforce note against estate, see EVIDENCE, 1257. Right of husband to allowance for services to wife out of her estate, see HUSBAND AND WIFE, 2. Right of husband to reimbursement from wife's estate of money expended for im- provements on her property, see HUS- BAND AND WIFE, 56. Liability of estate of insane person for cost of maintenance in asylum, see INCOMPE- TENT PERSONS, IV. Interpleader to determine respective rights of judgment creditor and attorney claiming lien on judgment for claim against decedent's estate, see INTER- PLEADER, 7. Leaving liability of estate for mortgage in- debtedness unadjudicated, see JUDG- MENT, 174. Effect of judgment denying claim to share in estate as widow of decedent on claim against estate for services, see JUDG- MENT, 186. Effect of judgment to bar claim against es- tate for services, see JUDGMENT, 186. Liability of estate of life tenant for repairs, see LIFE TENANTS, 31. Pleading in action by administrator, sec PLEADING, 416. Assessment to personal representatives of property omitted during lifetime of tax- payer, see TAXES, 171, 172, 178. See also supra, 86. 96. After the death of one who had as- serted a claim against an estate, but who had in his hands for collection an amount in notes owing to the estate larger than the amount of his claim, which he had been au- thorized by the court to pay out of the funds in his hands when collected, the court may decree to his personal representatives, on an answer filed for that purpose, the amount of the claim asserted, there being no proof that decedent in his lifetime col- lected and retained the amount, nor any con- tention that the claim is not a just charge against the estate. Brown v. Cresap. 9: 997, 56 S. E. 603, 61 W. Va. 315. 07. Failure of the trustee to pay an as- sessment for benefits to the trust property by a public improvement, as required by statute, will render his estate liable there- for, although the trust ends at his death, so that there is no trust estate from whicli his estate can be reimbursed for the amount paid. Bansror v. Peirce, 29: 770, 70 Atl. 945, 106 Me. 527. 98. Under the New Jersey "act for the relief of creditors against heirs and de- visees," which gives a right of action against the heirs or devisees of a deceased debtor, the personal representative of a deceased devisee, who is also a devisee of such de- visee, is not liable, in her representative capacity, for the debts of the ancestor, where her decedent dies without selling or aliening the lands devised; and, in the ab- sence of a showing that lands originally belonging to the debtor were devised to her, he is not liable as devisee. McCarthy v. Digest 1-52 L.R.A.(N.S.) Mullen (N. J. Err. & App.) 39: 688, 82 Atl. 51, 82 N. J. L. 379. (Annotated) 99. The devisee of an unfinished house- who, upon refusal of the executor to make necessary expenditures to put cut lumber in place, and thereby protect the property, does so himself, acts voluntarily, and can- not recover the expenditure from the estate. Re Hincheon, 36: 303, 116 Pac. 47, 159 Cal. 755. (Annotated) 100. One who complys with the request of a testator to remove the remains of rela- tives to his burial lot, and erect a monu- ment thereon, cannot recover the expenses from the estate, if there i.re no directions in the will with respect to the matter. Re Hincheon, 36: 303, 116 Pac. 47, 159 Cal. 755. For employment of attorney. See also supra, 66; infra, 119-121, 128, 129, 131. 101. An estate is not chargeable with fees to attorneys who appeared for one setting up a claim in hostility to the estate. Brown v. Cresap, 9: 997, 56 S. E. 603, 61 W. Va. 315. 102. Attorneys, employed by an adminis- trator to assist him in administering his trust, or to prosecute or defend an action for or against him in his official capacity, have no claim they can enforce directly against the estate. Brown v. Quinton, 25: 71, 102 Pac. 242, 80 Kan. 44. (Annotated) 2, Presentation and proof of claims. (See also same heading in Digest L.R.A. 1-10.) Error in refusing to allow claim against es- tate, see APPEAL AND ERROR, 1661. Presentation of claim against estate as bar of other remedy, see ELECTION OF REME- DIES, 27, 28. Effect on right of holder of note to recover from surety of bar of claim as against estate of deceased cosurety, see LIMITA- TION OF ACTIONS, 82. Effect of failure of creditor to file note exe- cuted by husband with wife as surety against estate of deceased husband on wife's liability, see PRINCIPAL AND SURETY, 31. See also infra, 139-141. 103. In order that the report of a commis- sioner allowing a claim against an estate shall be sustained, it is essential that the claim so allowed shall have been proven before him by competent testimony. Brown v. Cresap, 9: 997, 56 S. E. 603, 61 W. Va. 315. Time to present. Effect of bar of principal debt to bar fore- closure suit upon mortgage securing it, see LIMITATION OF ACTIONS, 88. 104. To collect against personal repre- sentatives taxes which were omitted during the lifetime of the taxpayer, it is not necea- sary to present them as claims against the estate, within the statutory time for 1274 EXECUTORS AND ADMINISTRATORS, IV. a, 3 c, 1. presenting such claims, but they may be collected under statutes providing for the assessment of property in the hands of personal representatives. Bogue v. Laugli- lin, 40: 927, 136 N. W. 60t>, 149 Wis. 271. 105. An equitable excuse for failure to file a claim for services against a decedent's estate within the time required by statute is shown where claimant was to within a reasonable time before presenting her claim prosecuting before the courts a claim to share in the estate as decedent's widow. Asher v. Pegg, 30: 890, 123 N. W. 739, 140 Iowa, 541. 106. One performing labor on a building in process of construction, Bunder contract with the owner, loses his 'right to com- pensation by failure to present the claim against the owner's estate within the time prescribed by statute, and a devisee of the property cannot make the claim enforce- able after that time, by assuming the obli- gation and presenting the claim against the estate. Re Hincheon, 36: 303, 116 Pac. 47, 159 Cal. 755. 3. Payment and priority. (See also same heading in Digest L.R.A.. 1-10.) Husband's right to reimbursement from wife's estate, see HUSBAND AND WIFE, 14. Payment. 107. Next of kin cannot complain of the payment of an item by the administrator without its allowance by the court, where it is less in amount than the balance due the administrator for overpayment in the distribution of the estate. Knapp v. Jessup, 7: 617, 109 N. W. 666, 146 Mich. 348. 108. An executor who, under the mistaken belief that the estate is solvent, pays a claim in full, may, upon ascertaining the fact of its insolvency, recover the excess over the portion equitably due the claim- ant. Woodruff v. H. B. Clafiin Co. 28: 440, 91 N. E. 1103, 198 N. Y. 470. (Annotated) 109. That the executor, after paying a claim against the estate in full, carries on decedent's business for a time at a loss, does not prevent his recovering the over- payment in case the estate proves to be insolvent, if it is not made to appear that such conduct in any manner affected the, respective rights or relations of the execu- tor and claimant. Woodruff v. H. B. Claf- iin Co. 28: 440, 91 N. E. 1103, 198 N. Y. 470. Priority. Effect of appointment by mortgagee of mortgagor as executor of estate on pri- ority of mortgage, see MORTGAGE, 37. Priority of United States as creditor, see UNITED STATES, V. Digest 1-52 L.R.A.(N.S.) 4. Burial expenses. (See also same heading in Digest LM.A. 1-10.) Review on appeal of allowance for funeral expenses, see APPEAL AND ERROR, 565, 1598. Reducing allowance for, on appeal, see AP- PEAL AND LRROR, 1598. Liability for funeral expenses of married woman, see HUSBAND AND WIFE, 96-98. Liability of separate estate of married wom- an for, see HUSBAND AND WIFE, 96-98. 110. The recovery for services rendered in the burial of a decedent must be limited to such sum as, upon consideration of all the circumstances, including his station in life and the value of his estate, may be found to be proper and reasonable. Golden Gate Undertaking Co. v. Taylor, 52: 1152, 141 Pac. 922, 168 Cal. 94. 111. A complaint seeking compensation for services rendered in conducting a funeral must show that the amount sought is a reasonable and proper charge against the es- tate in view of all the circumstances, so far as they could with reasonable diligence be ascertained at the time of burial. Gold- en Gate Undertaking Co. v. Taylor, 52: 1152, 141 Pac. 922, 168 Cal. 94. 112. An actipn for services in conducting a funeral of testator lies against the ex- ecutor in his representative capacity, where the statute requires him to pay such ex- penses as soon as he receives funds, and the remedy is not limited to a suit against the one who contracted for the services, un- less they were furnished on his individual credit, nor to filing a claim in the probate court, although another statute makes it a preferred claim against the assets of the estate. Golden Gate Undertaking Co. v. Taylor, 52: 1152, 141 Pac. 922, 168 Cal. 94. (Annotated) 113. A relative who pays the necessary and reasonable funeral expenses of a tes- tator, in accordance with an agreement to do so in case of the devise to him of a completed building, will not be held to be a volunteer, and prevented from recover- ing his expenditures from the estate in case the building proves to be unfinished, if he did not know that such was the fact when the expenditures were made. Re Hincheon. 36: 303, 116 Pac. 47, 159 Cal. 755. b. Instructions and control by court. (See same heading in Digest L.R.A. 1-70.) c. Distribution; accounting; settle- ment; discharge. 1. In general. (See also same heading in Digest L.R.A. 1-70.) Suit over administered assets, see supra. 89, 90. EXECUTORS AND ADMINISTRATORS, IV. c 2, 3. 1275 Presumption as to service of notice to up- hold decree of distribution, see Evi- DEXCE, 679. Proof of decedent's domicil in foreign coun- try prerequisite to distribution of es- tate according to laws of such country, see EVIDENCE, 128. Best evidence of administrator's accounts, see EVIDENCE, 715. Collateral attack on decree of distribution, see JUDGMENT, 127, 138. Conclusiveness of judgment on petition for distribution of estate, see JUDGMENT, 185. Set-off against distributive share, see SET- OFF AND COUNTERCLAIM, 32. Distribution to next of kin not within oper- ation of law imposing succession tax, for purpose of escaping payment, see TAXES, 273. Sufficiency of title depending on probate de- cree distributing decedent's estate, see VENDOB AND PURCHASER, 42. Time for payment of legacy, see WILLS, III. h. 114. That a statute against perpetuities is limited to estates created by deed or will does not render an attempted distribution, by the probate court, of void remainders, to "heirs" of living life tenants, effectual to vest the remainders in their children, as a distribution of intestate estate, although no appeal is taken therefrom, since, the chil- dron not yet being heirs, there is no such definite ascertainment of persons entitled to take as is requisite to the distribution of intestate estate. Gerard v. Beecher, 15: 900, 68 Atl. 438, 80 Conn. 3G3. ( Annotated ) 115. An administrator is entitled to credit for an item for the construction and repair, at reasonable expense, of a vault for the re mains of the dead, according to the ex- pressed wish of intestate. Knapp v. Jessup, 7: 617, 109 N. W. 666, 146 Mich. 348. Allowance to widow. Finality of order as to allowance, see AP- PEAL AND ERROR, 45. Allowing alimony accruing between divorce and remarriage of decedent's wife, see COURTS, 242. Widow's right to year's support under ante- nuptial agreement, see HUSBAND AND WIFE, 134. Inheritance tax on widow's statutory year's support, see Taxes, 312. 116. A widow is not entitled to her year's support out of a recovery for the wrongful death of her husband, under statutes pro- viding for such support out of the crop, stock, and provisions, the balance to be made up from the personal estate of the de- ceased, and requiring the distribution of uch recoveries as of personal property in case of intestacy. Broadnax v. Broadnax, 42: 725, 76 S. E. 216, 160 N. C. 423. (Annotated) 117. Under a statute making life insur- ance distributable according to the law of distribution, free from the claims of credit- ors, it cannot be subjected to the year's Digest 1-52 L.R.A.(N.S-) support of the widow, which, by statute, is to be sot apart out of the money on hand i or due, or other assets. Agee v. Saunders, 46:788, 157 S. W. 64, 127 Tenn. 680. ( Annotated ) Discharge. Demurrer to bill to enjoin discharge, see PLEADING, 599. See also supra, 55. 2. Commissions; reimbursement. (See also same heading in Digest LM.A. 1-10.) See also infra, 132. Commissions. Action by representative of deceased coad- ministrator to recover his share of com- missions from surviving administrator, see PLEADING, 599. Compensation of trustee, see TRIAL, 125. 118. No fault can be found with the al- lowance of statutory fees to an adminis- trator, where he collected the funds of the estate, cared for the real estate, looked aft- er the widow, and promptly divided to each heir his share of the estate. Knapp v. Jes- sup, 7: 617, 109 N. W. 666, 146 Mich. 348. Reimbursement. Reimbursement of receivers, see RECEIVERS, 46. See also supra, 66. 119. An executor who in good faith insti- tutes proceedings to probate the will of his testator is entitled to credit, in his final account with the estate, for reasonable at- torneys' fees paid by him in such proceed- ings. Re Hentges, 26: 757, 124 N. W. 929, 86 Neb. 75. (Annotated) 120. An administrator is entitled to cred- it on his account as such for reasonable attorneys' fees and expenses incurred in defending an action brought while the es- tate is in process of settlement in the state courts, against him in the Federal courts without just cause by the heirs and dis- tributees. Re Bullion, 31: 350, 128 N. W. 32, 87 Neb. 700. 121. An administrator is not entitled to attorneys' fees and funds expended in do- fending a suit to which there was m fact no meritorious defense, although advised by counsel that he had a defense, unless he affirmatively shows facts and circumstances sufficient to show that he acted reasonably in making the defense. Re Bullion, y. 350, 128 N. W. 32, 87 Neb. 700. 3. Retainer; deduction or set-off. (See also same heading in Digest L.R.A, 1-10.) Set-off by or against estate, see SET-OFF AND COUNTERCLAIM, I. e. 122. Uncollectable debts due by a son who died in the lifetime of his father, to the latter, must be deducted in determining the amount which the son's children are en- 1276 EXECUTORS AND ADMINISTRATORS, IV. c, 4, V. titled to take in the father's estate as repre- sentatives of the son. Adams v. Yancey, 47: 1026, 62 So. 229, 105 Miss. 233. (Annotated) 123. The doctrine that where a legatee of a general legacy or share of residue, or the distributee of an intestate's estate, is a debt- or to the estate, he is not entitled to receive his legacy without bringing the debt into ac- count, does not require the sole residuary legatee of the debtor to bring a statute- barred debt into account before participat- ing in the estate of the creditor. Re Bruce, 4 'B. R. C. 713, [1908] 2 Ch. 682. Also Reported in 78 L. J. Ch. N. S. 56, 99 L. T. N. S. 704. (Annotated) 124. The doctrine that where a legatee of a general legacy or share of residue, or the distributee of an intestate's estate, is a debt- or to the estate, he is not entitled to receive his legacy without bringing the debt into ac- count, does not require the sole residuary legatee of the debtor to bring a statute- barred debt into account before participat- ing in the estate of the creditor. Re Bruce, 4 B. R. C. 713, [1908] 2 Ch. 682. Also Re- ported in 78 L. J. Ch. N. S. 56, 99 L. T. N. S. 704. (Annotated) 4. Effect of accounting; impeachment; reopening. (See also same heading in Digest L.R.A.. 1-10.) Binding effect on persons not parties of decree settling executor's accounts, see JUDGMENT, 239. 125. A settlement of an executor's ac- count cannot be impeached in a separate suit by parties having notice of the pro- ceeding, because of fraud in an item which was a matter of consideration by the pro- bate court. Bradbury v. Wells, 16: 240, 115 N. W. 880, 138 Iowa, 673. 126. Failure of executors to list in their account shares of corporate stock will not sustain a suit to open the judgment ap- proving their account, where they claimed that the failure was due to the fact that the shares were of no value, and there is nothing to show that any substantial right of the objectors has been sacrificed by the omission. Bradbury v. Wells, 16: 240, 115 N. W. 880, 138 Iowa, 673. 127. Omission from an executor's account of any reference to testator's real estate will not sustain a bill on beaalf of legatees to open the settlement of their accounts, if no power was given them over the real estate except so far as necessary to pay debts. Bradbury v. Wells, 16: 240, 115 N. W. 880, 138 Iowa, 673. Surcharging or excepting to account. 128. The court cannot surcharge an ex- ecutor's account for overpayment of coun- sel fees without an exception by some in- terested person before it. Re Stitzel, 18: 284, 70 Atl. 749, 221 Pa. 227. (Annotated) 129. The court cannot appoint an amicus curice to except to an executor's account Digest 1-52 -L.R.A.(N.S.) for overpayment of counsel fees, although the residuary legatees are trustees of a charitable trust. Re Stitzel, 18: 284, 70 Atl. 749, 221 Pa. 227. 130. An executor's account cannot be sur- charged without notice to him and an op- portunity to be heard. Re Stitzel, 18: 284, 70 Atl. 749, 221 Pa. 227. 131. Where an administrator has recov- ered and collected money in an action for causing the death of his decedent, and, be- fore an order has been made making allow- ance to the attorney employed in such ac- tion for fees, and appropriating and charging thereon a sufficient portion of such fund to pay the same, such administrator has set- tled his accounts, and been allowed and credited therein with a sufficient sum re- tained for attorneys' fees to cover the fees of such attorney, but not paid to him, a court of equity, in a suit by such attorney against the administrator and the surety on his fiduciary bond, brought for that purpose, will not surcharge and falsify such settle- ment, respecting the item credited therein for attorneys' fees, so as to create a devasta- vit, and render the surety in such fiduciary bond liable for, and give decree against him for, the amount of such f.vs. Thompson v. Mann, 22: 1094, 64 S. E. 920, 65 W. Va. 648. 132. The representative of the estate of a deceased coadministrator cannot maintain a caveat to the application for discharge of the surviving coadministrator, who haa made final returns in which full commis- sions have been charged and allowed lor services of both the surviving administrator and his deceased coadministrator, which final returns have been approved by the ordinary, on the ground that the surviving administrator has not paid to the estate of the deceased coadministrator the proper amount of such commissions for services rendered by the latter. Groover v. Ash, 22: 1 1 19, 64 S. E. 323, 132 Ga. 371. (Annotated) 133. An administratrix of the surviving member of an inactive partnership whose affairs are under process of settlement, who permits representatives of the deceased part- ner to act without bond under her power of attorney in the settlement of the partner- ship affairs, for a period of nine years without accounting, when the surviving at- torney proves bankrupt and largely in- debted to the estate, will be surcharged with the amount lost by his defalcation. Re Skeer, 42: 170, 84 Atl. 787, 236 Pa. 404. V. Creditor's rights against land; sale of land for debts. (See also same heading in Digest L.R.A. 1-10.) Delay by foreign executor in petitioning for sale of real estate to pay debts, see LIM- ITATION OF ACTIONS. 59. ! ^." ).A.'H.^I V: ' EXECUTORS AND ADMINISTRATORS, VI. EXEMPTIONS. 127 VI. Foreign and ancillary administra- tion. (Sec also same heading in Digest L.R.A. 1-10.) Action by foreign representative, see supra, -91, 92. Right of foreign administratrix appointed to maintain action for death, see CON- FLICT OF LAWS, 99. Effect of judgment in action by administra- tor illegally appointed to bar action for same wrong by other administrator appointed in other state, see JUDGMENT, 216. Delay of foreign executor in petitioning for sale, see LIMITATION OF ACTIONS, 59. Effect of resort to ancillary administration to remove property from operation of succession tax imposed by law of testa- tor's domicil, see TAXES, 337. Ancillary administration in case of foreign will, see WILLS, 112. 134. That a foreign executor has not se- cured an appointmant from the local courts at the time lie files a bill to foreclose a mort- gage belonging to the estate is not fatal to the action, if he secures such appointment before trial. Leahy v. Ha worth, 4: 657, 141 Fed. 850, 73 C. C. A. 84. (Annotated) 13"). Ihe nonresident executor named in a foreign will has no authority to nominate an administrator with the will annexed, which nomination will be recognized by the court in preference to the nomination of persons having prior claims, under the statute governing cases of intestacy, which is held to govern the appointment of an administrator with the will annexed in case of a foreign will. Re Meier, 48: 858, 132 Pac. 764, 165 Cal. 450. (Annotated) 136. Estoppels in favor of or against the administrators of a will appointed in one state, by judgments or by the statutes of limitation of that state, do not bind or af- fect the administrator with th- will annexed, or an administrator of an intestate, ap- pointed in another state, or a claimant against such representatives. Wilson v. Hartford F. Ins. Co. 19: 553, 164 Fed. 817, 90 C. C. A. 593. 137. No privity exists between the execu- tors of the will of a deceased appointed in one state and an administrator with the same will annexed appointed in another state, nor between the administrators of the estate of an intestate appointed in different states. Wilson v. Hartford F. Ins. Co. 19: 553, 164 Fed. 817, 90 C. C. A. 593. 138. Administration in the state of the domicil of the decedent does not govern the administration of the property of a decedent in any other state. Wilson v. Hartford F. Ins. Co. 19: 553, 164 Fed. 817, 90 C. C. A. 593. Presentation and proof of claims. 139. A claim against the estate of a de- cedent in the hands of an administrator with the will annexed in one state is not barred because it was not presented to the domieil- Digest 1-52 L.R.A.(N.S.) iary executors of the same will in another state, and has become barred in that state. Wilson v. Hartford F. Ins. Co. 19: 553, 164 Fed. 817, 90 C. C. A. 593. (Annotated) 140. A claim against a decedent's estate should be entertained in favor of a citizen of another state on the ground of comity, although the administration is only ancil- lary, if there is no statute forbidding it. McKee v. Dodd, 14: 780, 93 Pac. 854, 152 Cal. 637. 141. One holding a claim against a dece dent's estate, which arises in the state where ancillary administration is granted is not bound to seek the forum of the prin- cipal administration, but may have his claim settled in the ancillary proceedings. More v. Luther, 18: 149, 116 N. W. 986, 153 Mich. 206. EXECUTORY CONTRACTS. For sale of goods to be delivered at future day, see CONTRACTS, 531, 532. In fraud of creditors, see CONTRACTS, 568. To give deed, see DEEDS, 1. Vendee under executory contract as real owner for purpose of taxation, see TAX- ES, 79. EXECUTORY DEVISE. See DEEDS, 94; PERPETUITIES, 12; WILLS, III. g, 6. EXECUTORY TRUSTS. See TRUSTS, 29, 31. EXEMPLARY DAMAGES. See DAMAGES, II. EXEMPTIONS. I. In general, 16. II. Property and rights exempt, 719. a. In general, 712. b. Tools, implements, etc., 13 19. III. Who may claim, 2O24. From special assessments, see PUBLIC IM- PROVEMENTS, III. c. From taxation, see TAXES, I. f. From process or arrest, see WRIT AND PRO- CESS, II. d. Statutory exemption from arrest for debt, see ARREST, 18, 19. Effect of discharge of bankrupt on judgment against exempt property, see BANK- RUPTCY, 170. 1278 EXEMPTIONS, I., II. a. Civil action for violating penal statute for- bidding assignment of claim outside state to avoid exemption law, see CASE, 5. Enforcing law as to, in other state, see CON- FLICT OF LAWS, 158. Equal protection as to, see CONSTITUTIONAL LAW, 182. Validity of statute forbidding assignment of claim to evade exemption laws, see CONSTITUTIONAL LAW, 537. Validity of contract to exempt from local assessment, see CONTRACTS, 452. Compelling courts of other state to observe exemption laws, see COURTS, 290. Duty of court in settling property rights of divorced parties to preserve statutory exemptions, see DIVORCE AND SEPARA- TION, 129, 131. Creditor's election of remedies where exempt property is subject to payment of par- ticular debt, see ELECTION OF REMEDIES, 3. Presumption of intent to evade local exemp- tion laws, see EVIDENCE, 225. Evidence that persons levying on exempt property acted under advice of counsel, see EVIDENCE, 2005. Effect of fact that proceeds of judgment are /'exempt from execution on right to set off other judgment against it, see EX- ECUTION, 10. Application of bulk sales law to exempt property, see FRAUDULENT CON- VEYANCES, 13. Necessity of wife joining husband in mort- gage of exempt personalty, see HUS- BAND AND WIFE, 108. Lien of judgment against bankrupt on exempt property, see JUDGMENT, 272, 319. Mortgage of, see BANKRUPTCY, 106; CHAT- TEL MORTGAGE, 7; CONTRACTS, 430. Construction of exemption statute, see STAT- UTES, 221, 274, 275. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. Exemption privileges allowed by statute are to be liberally construed, and a debtor should not be deprived thereof through a technical following of statutes pertaining to pleading. Bradley v. Earle, 42: 575, 132 N. W. 660, 22 N. D. 139. 2. An order of attachment is "process" within the meaning of W. Va. Code 1899, chap. 41, 23, 24, against which the right to exempt personal property may be exer- cised. Brown v. Beckwith, i: 778, 51 S. E. 977, 58 W. Va. 140. 3. An affidavit claiming an exemption which establishes the claimant's character as a female parent and resident of the state, sufficiently specifies the character in which she claims, notwithstanding another alle- gation in the affidavit that she "is entitled to have and claims all the above-listed prop- erty claimed by her as husband and parent, exempt from execution or other process" Digest 1-52 L.R.A.(N.S.) in the cause. Brown T. Beckwith, i: 778, 51 S. E. 977, 58 W. Va. 140. 4. Under the Iowa statutes a debtor claiming property levied on under the exe- cution to be exempt need not state tht extent of his interest in the property, from whom acquired, the consideration paid, and the nature of the interest claimed by the execution creditor. Sterman v. Hann, 46: 287, 141 N.-W. 934, 160 Iowa, 356. 5. Where a plaintiff brings an action for wages due from the defendant, and such wages are exempt to the plaintiff, the de- fendant cannot counterclaim a debt due from the plaintiff to him, although the counterclaim comes within the letter of the statute. Bradley v. Earle, 42: 575, 132 N. W. 660, 22 N. D. 139. (Annotated) Selection of exempt property. 6. The provision of the bankruptcy act empowering courts to set off to bankrupts their exemptions does not prevent the en- forcement of a mortgage of such exemp- tions, which confers upon the mortgagee the right to select them. Re National Grocery Co. 30: 982, 181 Fed. 33, 104 C. C. A. 47. //. Property and rights exempt, a. In general. (See also same heading in Digest L.R.A. 1-10.) What property subject to garnishment, see GARNISHMENT, I. c. Of homestead, see EXECUTION, 13; HOME- STEAD. What property subject to levy, see LEVY AND SEIZURE, I. Right to set up in pleading that judgment sought to be obtained would be exempt from execution, see PLEADING, 504. 7. A piano comes within the term of "household and kitchen furniture," as the same is used in the Oklahoma personalty exemption statute (Okla. Comp. Laws 1909, 3346, Session Laws 1905, p. 255). Cook v. Fuller, 44: 76, 130 Pac. 140, 35 Okla. 339. (Annotated) Pensions and proceeds. 8. A homestead purchased with pension money belonging to a man, and, by his direction, conveyed to his wife, is not sub- ject to execution upon a judgment against her, although it is based on a claim an- tedating the acquisition of the homestead, if the purchase was made without the in- tention of making her the real owner of the property. Ratliff v. Elwell, 20: 223, 119 N. W. 740, 141 Iowa, 312. Insurance on life. Exemption of insurance under bankruptcy act, see BANKRUPTCY, 37, 38. 9. Money which has reached the bene- ficiary is not exempted from legal process by a statute providing that the benefit to be paid by any benefit society shall not be lia- ble to attachment by trustee, garnishee, or other process, and shall not be seized by legal or equitable process or any operatic* EXEMPTIONS, II. b; III. 1279 of law, to pay any debt or liability of a cer- tificate holder, or of a beneficiary named in the certificate. Recor v. Recor, 5: 472, 106 N. W. 82, 142 Mich. 479. (Annotated) 10. Statutory exemption from execution against the beneficiary, of the proceeds of a certificate or policy in a mutual benefit society, does not extend to property pur- chased therewith. J. S. Merrell Drug Co. v. Dixon, 24: 1018, 115 S. W. 179, 131 Ky. 212. (Annotated) Wages. See also supra, 5; infra, 24. 11. A statute permitting the issuance of an execution against wages applies to judg- ments existing at the time of its passage, since it affects only the remedy of the judg- ment creditor, and not the vested rights of the debtor. Laird v. Carton, 25: 189, 89 N. E. 822, 196 N. Y. 169. (Annotated) 12. Monthly advances made a salesman who works on a commission basis, and with whom a settlement is made at the end of the year, when he is paid the balance of com- missions due him, or debited with overpay- ments, are wages, earnings, or salary within the meaning of those terms in a statute permitting execution to issue against them. Laird v. Carton, 25: 189, 89 N. E. 822, 1UU N. Y. 169. 6. Tools, implements, etc. (See also same heading in Digest L.R.A. 1-10.) 13. A cab, at the time in the possession of and being used to gain a livelihood by its driver, is protected from seizure by a statute exempting "implements of trade." Lavell v. Richings, 4 B. R. C. 475, [1906] 1 K. B. 480. Also Reported in 75 L. J. K. B. N. S. 287, 54 Week. Rep. 394, 94 L. T. N. S. 515, 22 Times L. R. 316. (Annotated) 14. The fact that a man's sole "imple- ment of trade" is of greater value than the sum to the extent of which tools and imple- ments of trade are exempted by statute from seizure will not exclude it from the protection of the statute. Lavell v. Rich- ings, 4 B. R. C. 475, [1906] 1 K. B. 48C. Also Reported in 75 L. J. K. B. N. S. 287, 54 Week. Rep. 394, 94 L. T. N. S. 515, 22 Times L. R. 316. Horses; automobiles. 15. A statutory exemption of work horses from execution will not include high-bred horses used by a man in driving to and from business, and in taking his family riding. Tishomingo Sav. Inst. v. Young, 3: 693, 40 So. 9, 87 Miss. 473. (Annotated) 16. An automobile is a vehicle within a statute exempting to certain classes of per- sons a team and wagon or other vehicle used in earning a living. Lames v. Armstrong, 49: 691, 144 N. W. 1, 162 Iowa, 327. (Annotated) 17. A general agent for life insurance who requires the use of a vehicle in visit- ing the local agencies in his territory is within the purview of a statute exempting, in the case of "a physician, public officer. Digest 1-52 L.R.A.(N.S.) farmer, teamster, or other laborer," the team and wagon or other vehicle "by the use of which he habitually earns his living." Lames v. Armstrong, 49:691, 144 N. W. 1, 162 Iowa, 327. Safe. 18. A safe used by a physician in his business for the keeping of his instruments and books and medicines is exempt from execution. Sterman v. Hann, 46:287, 141 N. W. 934, 160 Iowa, 356. (Annotated) 19. That a physician owns only a half interest in a safe of which he is in pos- session, which he uses in his business, does not prevent his claiming it to be exempt from execution. Sterman v. Hann, 46: 287, 141 N. W. 934, 160 Iowa, 356. ///. Who may claim. (See also same heading in Digest L.R.A. 1-10J 20. Where a decree of divorce and for the payment of alimony is granted the wife, the derelict husband cannot defeat the collec- tion of alimony by remarrying and claim- ing the benefit of the exemption law. Win- ter v. Winter, 50: 697, 145 N. W. 709, 95 Neb. 335. (Annotated) 21 . One who has mortgaged his statutory exemptions from execution cannot, by fail- ing to claim them in bankruptcy proceed- ings, effect a waiver of the claim, which will prevent their enforcement by the mort- fagee. Re National Grocery Co. 30: 982, 181 'ed. 33, 104 C. C. A. 47. Nonresident; who is. 22. One who has acquired, under the pro- visions of W. Va. Code 1899, chap. 41, the right to have personal property exempted from forced sale, does not forfeit it on the ground of nonresidence until he begins to remove his person from his place of abode within the state to another state or coun- try with intent to fix his residence in such other state or country, although he may in- tend to leave the state permanently, and has made complete preparation to do so, and has delivered his personal property and ef- fects for shipment to a point outside the state. Brown v. Beckwith, i: 778, 51 S. E. 977, 58 W. Va. 140. (Annotated) 23. A debtor who has sold all his nonex- empt property, and started to remove to another state, with the intention of estab- lishing a residence there, is a "resident of the state" within the meaning of the exemp- tion law, and entitled to claim his exemp- tions, where, while yet within the state, an attachment is levied on his horse. Grime- stad v. Lofgren, 17: 990, 117 N. W. 515, 105 Minn. 286. 24. A laborer who removes from a state in whose courts -,e has instituted proceed- ings to enjoin his local creditor from pro- ceeding in the courts of another state to subject his wages to the payment of a debt, at any time before they are applicable there- to, loses the benefit of the general exemption laws oft;.,- state where the suit was brought. 1280 EXEMPT LIST EXPELTA.N C1ES. Wierse v. Thomas, 15: 1008, 59 S. E. 58, 145 N. C. X 261. EXEMPT LIST. Power of civil service commission to extend, see CIVIL SERVICE, 1. EXHIBITION. In general, see AMUSEMENTS, 13. Refusal to serve negro at food show, see CIVIL RIGHTS, 1. Of human anatomy, see CONSTITUTIONAL LAW, 417 ; COURTS, 158 ; MUNICIPAL CORPORATIONS, 145. Damages for breach of contract to exhibit machine at exposition, see DAMAGES, 687. Of person to jury, see DISCOVERY AND IN- SPECTION, II.; EVIDENCE, 879-881. In highway, see HIGHWAYS, 216-218. 1. A student association of a university, which erects through one of its directors a stand upon the athletic field to accom- modate patrons of athletic exhibitions given thereon, is liable for injuries to a patron through the collapse of the stand due to its negligent construction, although it could not have been constructed without consent of the authorities of the university, and the direct- or who supervised its erection was employed and paid by the university as adviser of the athletic policy of the association. Scott v. University of Mich. Athletic Asso. 17: 234, 116 N. W. 624, 152 Mich. 684. 2. The mere employment, by persons about to give an athletic exhibition to which the public is invited upon payment of an ad- mission fee, of competent persons to build and inspect a stand for the accommodation of patrons, will not absolve them from li ability for injuries to a patron from the collapse of the stand through a patent de- fect discoverable by the exercise of proper care. Scott v. University of Mich. Athletic Asso. 17: 234, 116 N. W. 624, 152 Mich. 684. EXHIBITS. As part of record on appeal, see APPEAL AND ERROR, 193, 194. Effect of omission of, from record on appeal, see APPEAL AND ERROR, 242. With pleading, see PLEADING, I. h. Taking of, into jury room, see APPEAL AND ERROR, 1476, 1477, 1504; TRIAL, 13-15. EX MALEFICIO. Trust eac malefivio, see LIMITATION OF AC- TIONS, 251; TRUSTS, 58, 59. Digest 1-52 L,.R.A.(N.S.) EXORBITANT RATES. Charge of exacting, see LIBEL AND SLANDKR, 50. EX PARTE ORDER. For appointment of receiver, see RECEIV- ERS, 6. EXPECTANCIES. Effect of discharge in bankruptcy of one who had assigned expectancy to secure loan on lien of assignee, see BANK- RUPTCY, 139. Rights of heirs and distributees in dece- dents' estates generally, see DESCENT AND DISTRIBUTION. Validity of conveyance of. Validity of assignment of, to secure loan with exorbitant interest, see CON- TRACTS, 609. Warranty of title by heirs conveying their interest, see COVENANTS AND CONDI- TIONS, 21. Power of feme covert to convey expectant interest in father's estate, see HUS- BAND AND WIFE, 32. 1. A quitclaim deed to real estate owned by the maternal grandmother of the grantor (the mother of the latter being deceased), who expects to inherit from her a share thereof, conveys nothing, and does not preclude the grantor from subsequent- ly claiming the share devised by the grand- mother to the deceased mother of the grant- or. Hosier v. Carter, 35: 1182, 114 Pac. 226, 84 Kan. 361. (Annotated) 2. An attempted conveyance by heirs apparent, of their interest in the property of the ancestor, even with the latter's con- sent, is void. Spears v. Spaw, 25: 436, 118 S. W. 275, Ky. . (Annotated) 3. An expectant interest in an estate may be assigned in equity notwithstanding the statutes provide such expectancy is not to be deemed an interest of any kind, and that a mere possibility not coupled with an interest cannot be transferred. Bridge v. Kedon, 43: 404, 126 Pac. 149, 163 Cal. 493. 4. An assignment of an expectancy need not be to one interested in the estate, but is valid if made to an entire stranger. Bridge v. Kedon, 43: 404, 126 Pac. 149, 163 Cal. 493. 5. Approval of the ancestor is not neces- sary to uphold an assignment by an heir of his expectancy. Bridge v. Kedon, 43: 404, 126 Pac. 149, 163 Cal. 493. ' ~ ' EXPECTATION OF LIFE EXPLOSIONS AND EXPLOSIVES, II. a. EXPECTATION OF LIFE. Evidence as to, see EVIDENCE, 851-854. EXPENDITURES. Estoppel by permitting, see ESTOPPEL, III. g, 2, b. EXPERIMENTS. Review of discretion as to, on appeal, see APPEAL AND EBROB, 605. Evidence of, see EVIDENCE, XI. y. EXPERTS. Expert accountants, see ACCOUNTANTS. Error in excluding from court room, see APPEAL AND ERKOE, 1484. Statute giving courts power to appoint ex- perts, see CONSTITUTIONAL LAW, 618. Expert evidence in general, see EVIDENCE, VII. Weight of expert testimony, see EVIDENCE, 2055-2057. Fees of, generally, see WITNESSES, 211-213. Payment of fees of, on discontinuing emi- nent domain proceedings, see EMINENT DOMAIN, 150. EXPIRATION. Of copyright, see COPTBIGHT, 25. EXPLANATION. Parol evidence in, see EVIDENCE, VI. e. Evidence in, generally, see EVIDENCE, XI. 1. EXPLOSIONS AND EXPLOSIVES. I. Regulation of explosives. II. Injuries from accidental explosions, 1-4. a. In general, 1, 2. b. Illegal or negligent storage or Keeping, 3, 4. c. Illegal or negligent consign- ment. d. Illegal or negligent use. As to blasting, see BLASTING. As burglar's tool within meaning of stat- ute, see BURGLARY, 1. Lien for explosives, see MECHANICS' LIENS, 36. Storage of explosive near residence as nui- sance, see NUISANCES, 51, 52. Digest 1-52 L.R.A.(N.S.) 1281 Question for jury as to nature of explosive substance, see TRIAL, 624. /. Regulation of explosives. (See same heading in Digest L.R.A. 1-10.) II. Injuries from accidental explosions. a. In general. (See also same heading in Digest L.R.A. 1-10.) Explosion of fire works, see CARRIERS, 235; MUNICIPAL CORPORATIONS, 349, 350; TRIAL, 573. Of emery wheels, see EVIDENCE, 1157. Of stove pipe enamel, see EVIDENCE, 1773, 2116, 2117, 2441. Of gas, see GAS, 59, 60; TBIAL, 574, 575. Of controller of street car, see MASTEB AND SEBVANT, 382. Of peanut roaster, see MUNICIPAL COBPOBA- TIONS, 328. Of bottle of carbonated beverage, see TBIAL, 125, 126. Of bottle of aerated water, see TBIAL, 541. Jurisdiction of action to recover for injury done by, see COURTS, 37. Judicial notice as to, see EVIDENCE, 28. Presumption of servant's knowledge of dan- ger of, see EVIDENCE, 202. Presumption and burden of proof as to cause of explosion, see EVIDENCE, 323, 326. Presumption that explosion was the cause of death, see EVIDENCE, 329. Presumption and burden of proof as to neg- ligence, see EVIDENCE, 433, 462, 463. Hypothetical questions as to cause of ex- plosion, see EVIDENCE, 1064. Evidence on question of negligence causing explosion, see EVIDENCE, 1765. Evidence of wantonness in leaving bomb in alley, see EVIDENCE, 1527. Sufficiency of evidence in action for death caused by, see EVIDENCE, 2125, 2126. Variance between pleading and proof in ac- tion for injuries by explosion of gas, see EVIDENCE, 2484. As cause of loss insured against, see INSUR- ANCE, 685-687. Assumption of risk from, see MASTER AND SERVANT, 65, 511, 516, 563-565. Duty to warn servant of danger of explo- sion, see MASTER AND SERVANT, 229- 232. Injury to servant by explosion, see MASTER AND SERVANT, 210, 271, 276, 277, 408, 434, 676, 865; PLEADING, 301; TRIAL, 472, 529. Contributory negligence of servant as to, explosives, see MASTER AND SEBVANT, 640. Municipal liability for injury by bl"sting, see MUNICIPAL CORPORATIONS, 345-348. Liability of seller, manufacturer or other third person, see NEGLIGENCE, IV. 2. Liability for injury to trespassing child by, see NEGLIGENCE, 143-153. 81 1282 EXPLOSIONS AND EXPLOSIVES, II. b EXPRESS COMPANIES. Contributory negligence of one injured by, see NEGLIGENCE, 206-208, 225, 226, 250. Imputing to owner of building injured by explosion negligence of tenant, see NEG- LIGENCE, 273. Duplicity in pleading in action to recover for injury, see PLEADING, 161. Proximate cause of injury by, see PBOXI- MATE CAUSE, II. d. Proximate cause of injury from fright caused by, see PROXIMATE CAUSE, 160. Sufficiency of evidence to take question of negligence to jury, see TKIAL, 125-127. Question for jury as to, see TRIAL, 139, 573-575, 600. Injury to street car passengers by explo- sion, see TRIAL, 139. Venue of action for damages from explo- sion of paint drier, see VENUE, 16. 1. The law implies a duty not to place or cause to remain in a public highway a bomb capable of inflicting injury by being exploded. Wells v. Gallagher, 3: 759, 39 So. 747, 144 Ala. 363. (Annotated) 2. That a boy carried a bomb found in a public highway to an adjacent yard and there exploded it, to his injury, will not relieve from liability the one responsible for the bomb being where it was. Wells v. Gal- lagher, 3: 759, 39 So. 747, 144 Ala. 363. b. Illegal or negligent storage or keep- ing. (See also same heading in Digest L.R.A. 1-10.) 3. That one who maintains a large quantity of dynamite in a shed near a highway and railroad track, without notice to the public, is guilty of maintaining a pub- lic nuisance, does not render him liable for injury to a person who, without right, uses the building as a target for gun practice, thereby causing an explosion, where there is nothing to cause the owner to believe that the building will be used for such pur- poses, since he is not bound to foresee that it will be so used and that injury will re- sult; and he therefore owes no duty to no- tify such trespasser of the danger. McGe- hee v. Norfolk & S. R. Co. 24: 119, 60 S. E. 912, 147 N. C. 142. 4. Violation by one who has licensed jthers to use his shop for shelter and warmth, and to build a fire in a stove there- in, of a statute requiring gaslene to be kept in a properly labeled can, does not render him liable in damages to one of the licensees through explosion of the stove be- cause of an attempt to use fluid from an unlabeled can to start the fire on the sup- position that it was kerosene, if there was no custom or practice in the locality ot starting fire with oil, by reason of which the property owner should have anticipated an attempt to use fluid from the can to start a fire. Molin v. Wisconsin Land & Lumber Co. 48: 876, 143 N. W. 624. 177 Mich. 524! (Annotated) Digest 1-52 L.R.A.vIi.3.) c. Illegal or negligent consignment. (See same heading in Digest L.R.A. 1-10.) d. Illegal or negligent use. (See same heading in Digest L.R.A. 1-70.) EXPLOSIVES. See EXPLOSIONS AND EXPLOSIVES. EXPORTATION. Of Philippine coin, validity of statute as to, see CONSTITUTIONAL LAW, 521. EXPOSITION. See EXHIBITION. EX POST FACTO LAWS. See CONSTITUTIONAL LAW, I. b, 1. EXPOSURE. Of passenger to cold, see CARRIERS, 207-209. Question for jury as to liability for per- sonal injuries due to, see TRIAL, 547. EXPRESS COMPANIES. Prematurity of suit to enjoin rights of, see ACTION OR SUIT, 18. Prejudicial error in admission of evidence in action against, see APPEAL AND ERROR. 1148. As carriers generally, see CARRIERS. Contract of railroad company with, see CAR- RIERS, 8. Injury to passenger by negligence of, in leaving truck on depot platform, see CARRIERS, 613. As agent of owner of goods in delivering them to carrier, see CARRIERS, 747. Duty to make free delivery, see CARRIERS, 766, 991. Rule as to time of delivery of packages of money to, for transportation, see CAR- RIERS, 777. Requiring acceptance of all money tendered for transportation at specified time and place, see COURTS, 261. Termination of liability as carrier, see CAR- RIERS, 837-839, 851-854. I Liability as warehouseman, see CARRIERS, 790, 837-839, 851-853. EXPRESSMEN EXTERNAL, VIOLENT, AND ACCIDENTAL MEANS. 1283 Refusal to deliver package without payment of charges, see CARRIERS, 830. Necessity of notice to consignee of arrival of goods, see CARRIERS, 850-854. Shipment of animal by express, see CAR- RIERS, 892. Governmental regulation of, see CARRIERS, 990, 991. Discrimination by, see CARRIERS, 1058. Contract giving exclusive facilities on rail- road, see MONOPOLY AND COMBINA- TIONS, 70. Regulation of, as affecting commerce, see COMMERCE, 32-34. Transportation of intoxicating liquors by, see CARRIERS, 778; COMMERCE, 119; CRIMINAL LAW, 1. Delivery of liquor sent C. 0. D. as unlawful sale by agent, see INTOXICATING LIQ- UORS, 119. Delivery of liquor to, as a sale, see INTOXI- CATING LIQUORS, 167, 177, 178. Right of carrier held liable for death of passenger to contribution from express company primarily liable therefor, see CONTRIBUTION AND INDEMNITY, 17. Burden of proving negligence of, see EVI- DENCE, 389. Evidence admissible in action to hold in- demnitor liable for loss through rob- bery of messenger, see EVIDENCE, 1758. Injunction against intentionally omitting name of company from business direc- tory of express companies, see INJUNC- TION, 8, 126. License of, see LICENSE, 58-60. Mandamus to compel acceptance and trans- portation of goods by, see MANDAMUS, 62. Liability for criminal act of agent, see MASTER AND SERVANT, 893. Right of consignee to sue for money in- trusted to, for transportation, see PAR- TIES, 32. Forbidding establishment of, in competition with United States mail, see PARTIES, 108; POSTOFFICE, 5. Taxation of, see TAXES, 12, 46, 175, 189. State taxation of gross earnings of inter- state express company, see COMMERCE, 145. Reasonableness of express rates fixed by legislature, see CARRIERS, 1033. Judicial power to review reasonableness of rates fixed by statute, see COURTS, 134. Presumption as to validity of statute fixing express rates, see EVIDENCE, 85. Injunction against enforcement of rates fixed by statute, see INJUNCTION, 353. Findings of referee in hearing as to validity of rates, see REFERENCE, 17. See also EXPRESSMEN ; EXPRESS MESSENGER. EXPRESSMEN. EXPRESS MESSENGER. As passenger, see CARRIERS, 86, 87. Duty of express company to see that car in which messenger is carried by railroad company is safe, see MASTER AND SERV- ANT, 310. Notice to, that contractor under which he is carried absolves railroad company from liability for injuring him, see NOTICE, 19. Release by, of express company from lia- bility for injury caused by negligence of carrier, see RELEASE, 9. EXPRESS TRUST. See TRUSTS, I. b. EXPULSION. From association, see ASSOCIATIONS, II. b. From benevolent society, see BENEVOLENT SOCIETIES, IV.; COURTS, 177, 178. Of passenger or trespasser, see CARRIERS, IL h. From religious society, see COURTS, 192 193; MANDAMUS, 12; RELIGIOUS SOCIE- TIES, VI. b. Of pupil, see MANDAMUS, 90, 91, 126 i SCHOOLS, I. d. EXTENDED INSURANCE. See INSURANCE, 167-174. EXTENSION OF TIME. For payment of note, see BILLS AND NOTES, VI. b. As consideration for promise, see CON- TRACTS, 122. For redemption from mortgage foreclosure, see CONTRACTS, 156. Discharge of surety by, see PRINCIPAL AND SURETY, 43-56. EXTERNAL OR VISIBLE MARK. On insured, see INSURANCE, VI. b, 3, d. EXTERNAL, VIOLENT, AND ACCI- DENTAL MEANS. Grant of special privilege to, at depots, see j Injury or death of insured by, see INSUB- CARRIERS, 1007-1013. ANCE, VI. b, 3, b. Digest 1-52 L.R.A.(N.S.) 1284 EXTINGUISHMENT EXTRADITION, I. EXTINGUISHMENT. Of contract, see CONTRACTS, V. Of covenant, see COVENANTS AND CON- DITIONS, V. Of pledge, see PLEDGE AND COLLATERAL SE- CUBITY, 11-14. EXTORTION. By abuse of process, see ABUSE OF PBOCESS, 1,2. Recovery back of money obtained by, see ASSUMPSIT, 48. Compelling by threats payment of money justly due as extortion, see ATTOBNEYS, 24. Disbarment of attorney for, see ATTOBNEYS, 24. Indictment for, see INDICTMENT, ETC. 28. Repeated posting on debtor's door of cards requesting him to call and pay debt as, see MAJLICIOUS PBOSECUTION, 24. 1. The injury threatened must be un- lawful to constitute extortion, irrespective of whether the threat was made for the pur- pose of wrongfully obtaining money, where the statute provides that the threat must be one "to do an unlawful injury to the per- son or property of the individual threat- ened," etc. People v. Schmitz, 15: 717, 94 Pac. 419, 7 Cal. App. 369. (Annotated) 2. A threatened injury is not unlawful unless it is of such a character that, if com- mitted, it would constitute an actionable wrong, or, if merely threatened, could be enjoined. People v. Schmitz, 15: 717, 94 Pac. 419, 7 Cal. App. 369. EXTRA ALLOWANCE. Of costs, see COSTS AND FEES, 21. EXTRA COMPENSATION. To employee, see MASTER AND SERVANT, 80- 82. See also EXTRA WORK. EXTRADITION. /. International, 14:. II. Interstate, 513. Right to require bail from fugitive from justice, see BAIL AND RECOGNIZANCE, 5. Right of fugitive to release on bail, see BAIL AND RECOGNIZANCE, 7, 8. Digest 1-52 L.R.A.(N.S.) | /. International. i , (See also same heading in Digest L.R.A. 1-10.) Persons subject to. Power of courts as to extradition treaty, see COURTS, 79. 1. There is no principle of interna- tional law by which citizens of the country of the asylum are excepted out of an extra- dition convention for the surrender of "persons," where no such exception was made in the treaty itself. Charlton v. Kelly, 46: 397, 33 Sup. Ct. Rep. 945, 229 U. S. 447, 57 L. ed. 1274. 2. Citizens of the country of asylum are "persons" within the meaning of the extradition treaty of 1868 witli Italy, by which the two governments mutually agree to deliver up all persons who, having been convicted of or charged with any of the crimes specified, committed within the juris- diction of one of the contracting parties, shall seek an asylum in the other. Charl- ton v. Kelly, 46: 397, 33 Sup. Ct. Rep. 945, 229 U. S. 447, 57 L. ed. 1274. Proceedings. 3. The requirement in the supplemen- tal extradition treaty of 1884 with Italy, following provisions for arrest upon the exhibition of a certificate from the Secre- tary of State, attesting that a requisition has been made, and for the remand o the accused to prison until a formal demand for extradition shall be made and' supported by evidence, that if "the requisition, to- gether with the documents above provided for," shall not be made within forty days from the date of arrest, the accused sliall be set at liberty, cannot be deemed to mean that "formal demand" must be proved in the preliminary proceedings within forty days after arrest, in view of the provisions of U. S. Rev. Stat. 5270, applicable to a foreign extradition proceeding, authorizing the committing magistrate, upon com- plaint charging one of the crimes named in an extradition treaty, to issue his war- rant of arrest, to hear the evidence of criminality, to commit the accused to jail, and to certify his conclusions to the Secre- tary of State, who, under 5272. 5273, may issue his warrant for the surrender of the accused upon requisition of the proper authorities. Charlton v. Kelly, 46: 397, 33 Sup. Ct. Rep. 945, 229 U. S. 447, 57 L. ed. 1274. 4. The right to introduce evidence of the insanity of the accused in proceedings for the extradition, conformably with the treaty with Italy of 1868 (15 Stat. at L. 629), of a fugitive from justice, was not given by the act of 1882 (22 Stat. at L. 215, chap. 378), 3, providing the means, in foreign extradition proceedings, for ob- taining the testimony and for the payment of the fees of witnesses whose evidence is material to the defense, and without which the accused cannot safely go to trial, since Congress cannot be deemed to have intended EXTRADITION, II. EXTRA WORK. 1285- by this statute to depart from the pro- vision of the first article of the treaty which requires that a surrender shall be made upon such evidence of criminality aa, according to the laws of the place where the fugitive shall be found, would justify his arrest and commitment if the crime had been there committed. Charlton v. Kelly, 46: 397, 33 Sup. Ct. Rep. 945, 229 U. S. 447, 57 L. ed. 1274. (Annotated) //. Interstate. (See also same heading in Digest L.R.A. 1-10.) Evidence in extradition case, see EVIDENCE, 784, 817. 5. A legal charge of crime, made in the state from which a criminal has fled, is necessary to the issuance of a warrant for his arrest in the state in which he is found. State ex rel. Grass v. White, 2: 563, 82 Pac. 907, 40 Wash. 560. 6. The executive of a state in which an alleged fugitive from justice is found is bound to deliver him to the executive of the state where the offense was committed only when he is legally charged with crime within the demanding state. Re Waterman, n: 424, 89 Pac. 291, 29 Nev. 288. 7. In interstate extradition, the prison- er is only held under the extradition proc- ess until such time as he reaches the juris- diction of the demanding state, and is thence- forth held under the process issued out of the courts of that state; and it necessarily follows that there is no longer a Federal question involved in his detention. Re Moy- er, 12: 227, 85 Pac. 897, 12 Idaho, 250. 8. The governor of one state cannot, upon requisition of the governor of another state, take from prison where he is con- fined under conviction for violating the laws of the former state, a person whom the lat- ter governor demands as a fugitive from the justice of his state. Re Opinion of Jus- uces, 24: 799, 89 N. E. 174, 201 Mass. 609. (Annotated) Who are fugitives. 9. To be a fugitive from justice under the laws of the United States, it is not necessary that the person charged with having left the state in which the crime was alleged to have been committed should have done so for the purpose of avoiding prosecution, anticipated or begun, but sim- ply that, having committed a crime within the state, he leaves such state, and when he is sought to be subjected to its criminal process to answer for his offense, he is found within the territory of another state. Ex parte Williams, 51: 668, 136 Pac. 597, 10 Okla. Crim. Rep. 344. 10. A convicted prisoner who has a parole and goes into another state is a fugitive from justice within the provisions of the United States Constitution and laws, and as such is subject to extradition if his parole is revoked. Ex parte Williams, Digest 1-52 L.R.A.(N.S.) 51:668, 136 Pac. 597, 10 Okla. Crim. Rep. 344. (Annotated) 11. One not in arrears under his agree- ment to support his wife, from whom he has separated at the time he leaves the state, is not subject to extradition as a fugitive from justice for failure to support her, in case he subsequently becomes delin- quent in his payments. Ex parte Kuhns, 50: 507, 137 Pac. 83, 36 Nev. 487. Requisition. Impeaching requisition by affidavits of strangers, see EVIDENCE, 784. Review of proceedings. Review on habeas corpus, see HABEAS COB- PDS, 10, 23, 57-66, 69; JUDGMENT, 93. 12. The legality of the revocation of a parole in a foreign state is a question for the courts of that state, for they alone have the right to construe the Constitution and laws of that state. Ex parte Williams, 51:668, 136 Pac. 597, 10 Okla. Crim. Rep. 344. Immunity from prosecution for dif- ferent offense. 13. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, and who, on demand of the executive authority of the state fro,m which he fled, shall be delivered up and removed to the state having jurisdiction of the crime, may there be prosecuted for crimes other than the one specified in the demand for his de- livery, without first giving him a reason- able opportunity to return to the state which surrendered him. Re Flack, 47:807, 129 Pac. 541, 88 Kan. 616. (Annotated) Rights of persons illegally brought within jurisdiction. Habeas corpus to release one held under extradition proceedings, see HABEAS CORPUS, 23, 24, 66. EXTRA FARE. From passenger, see CAREIEBS, II. m, 4. EXTRAORDINARY COSTS. See COSTS, 21. EXTRATERRITORIAL EFFECT. Of statute, see STATUTES, 213. EXTRA WORK. Recovery for, see CONTRACTS, 622-625. 128U EXTRINSIC DOCUMENT FALLING OBJECTS. EXTRINSIC DOCUMENT. Incorporating into contract, see CONTRACTS, I. f. Incorporating into will, see WILLS, 37. EYESIGHT. Contributory negligence of person whose eyesight is defective, see HIGHWAYS, 370, 371. F FACTORIES. Injunction to restrain operation of, see AP- PEAL AND ERROR, 110. Fire escapes on, see BUILDINGS, 36. Limiting hours of women's labor in, see CONSTITUTIONAL LAW, 310, 311. Measure of damages for nuisance resulting from, see DAMAGES, 506. Assumption of risk by minor employed in, see MASTER AND SERVANT, II. b, 7. Employment in contravention of factory act as evidence of negligence, see MAS- TER AND SERVANT, 161-163. FACTORS. Application of deposit by, see BANKS, 73- 76. Measure of damages for delay in message from factor to principal, see DAMAGES, 251. Right of commission merchant to whom property is consigned for sale to main- tain action for injury thereto, see PAR- TIES, 29. Conversion by, see TEOVER, 20. 1. One who negotiates a sale of an- other's property without having either ac- tual or constructive possession of it is a broker as distinguished from a factor. J. M. Robinson, Norton & Co. v. Corsicana Cotton Factory, 8: 474, 99 S. W. 305, 124 Ky. 435. '2. An agreement by which goods are consigned for sale to persons who are to make advances on the consignment and hold the goods as collateral against the advances does not render the consignor a debtor for the amount of the advances before sale of the goods, but only for the balance unpaid from the proceeds of the sale. Re Joseph P. Murphy Co. 5: 1147, 63 Atl. 745, 214 Pa. 258. 3. A factor who has made advances on the consignment can claim against the as- signed estate of, the consignor, not for the full amount of the advances, but only for the amount unpaid after applying the pro- ceeds of the sale in satisfaction of the ad- vancement. Re Joseph P. Murphy Co. 5: 1147, 63 Atl. 745, 214 Pa. 258. (Annotated) 4. The loss falls upon one who, upon purchasing goods through a known broker, pays him therefor prior to delivery, and not upon the owner, who ships the goods to his Ligest 1-52 L.R.A.(N.S.) own order and draws upon the broker for the price with bills of lading attached, the draft remaining unpaid because the broker becomes insolvent. J. M. Robinson, Norton & Co. v. Corsicana Cotton Factory, 8: 474, 99 S. W. 305, 124 Ky. 435. (Annotated) FACTS. Review of, on appeal, see APPEAL AND ERROR, VII. 1. Review of, on certiorari, see CERTIORARI, 8, 9. FAILURE TO COMPLAIN. Effect of, on assumption of risk, see MAS- TER AND SERVANT, 576. FAIR COMMENT. On literary work as libel, see LIBEL AND SLANDER, 21. Of officer or candidate, see LIBEL AND SLAN- DER, II. e. FAIRS. Liability of fair association for injury to participant in race, see AMUSEMENTS, 16; HORSE RACE. Liability for injury resulting from street fairs, see HIGHWAYS, 216-218. Contributory negligence of person injured at street fair, see HIGHWAYS, 349. See also AMUSEMENTS, 11. FAITH AND CREDIT. To be given judgment of other etate, see JUDGMENT, IV. b. FALLING OBJECTS. Injury by fall of object from card stand, see AMUSEMENTS, 5, 6. Injury to passenger by, see CARRIERS, 204, 205, 215, 216, 332, 333, 615. FALSE ANSWERS; FALSE IMPRISONMENT, 1. 1287 Presumption of negligence from, see EVI- DENCE, 420, 421, 438, 456-458. Evidence in action for injury by, see EVI- DENCE, 1872. Injury to person in street by, see HIGH- WAYS, 208, 209, 223, 224, 269, 27.0, 291- 295, 310, 314-316, 382, 385. Injury to servant by, see MASTER AND SERV- ANT, 317-319. Liability for independent contractor's neg- ligence in permitting fall, see MASTER AND SERVANT, 1002, 1010. Requiring roof over sidewalk while build- ing is being erected, to protect pedes- trians from, see MUNICIPAL COUPORA- TIONS, 47. Injury in attempting to avoid, see NEGLI- GENCE, 18; TRIAL, 173. Injury by fall of ballast from basket used by electric light employees, see NEGLI- GENCE, 35. Injury to child by fall of derrick, see NEGLI- GENCE, 131. Injury to children by fall of chimney, see NEGLIGENCE, 133. Injury to child by fall of material from railroad car, see NEGLIGENCE, 137. Injury by falling walls or buildings, see NEGLIGENCE, 96. Injury by fall of lumber pile, see NEGLI- GENCE, 157-159, 228. Proximate cause of injury by, see PROXI- MATE CAUSE, VI. FALSE ANSWERS. In application for insurance, see INSUR- ANCE, III. e. FALSE IMPRISONMENT. I. In general, 113. II. Who liable, 1439. a. In general, 1425. b. Officer, 2639. III. Defenses; justification, 4O47. IV. In civil case. Error in instruction defining probable cause for arrest, see APPEAL AND ERROR, 1318. Effect on judgment for, of discharge in bankruptcy, see BANKRUPTCY, 164. Assignment of right of action for, see CON- TRACTS, 449. Punitive damages for, see DAMAGES, 59, 60, 82. Measure of damages for, see DAMAGES, 338, 339. Recovery for mental suffering because of, see DAMAGES, 620. Burden of proof in action for, see EVIDENCE, 672, 673. Evidence in action for, see EVIDENCE, 2018. Effect of discharge as conclusive proof of want of good faith, see EVIDENCE, 2081. Wife's right to sue husband for, see HUS- BAND AND WIBE, 206. Digest 1-52 L.R.A.(N.S.) Of insane person, guardian's right of ac- tion for, see INCOMPETENT PERSONS, 36. When statute of limitations begins to run, see LIMITATION or ACTIONS, 182. Setting aside judgment as to one only of two defendants, see NEW TRIAL, 25. Sufficiency of pleading, see PLEADING, 380. Joint demurrer to complaint for, see PLEAD- ING, 569. Demurrer to petition in action for, not brought within period limited by stat- ute, see PLEADING, 617. Question for jury whether imprisonment was voluntary or by force, see TRIAL, 626. Instruction in action for, see TRIAL, 871, 1027. See also MALICIOUS PROSECUTION, 25. /. In general. (See also same heading in Digest L.R.A. 1-10.) 1. Any deprivation of the liberty of an- other without liis consent, whether by vio- lence, threats, or otherwise, constitutes an imprisonment within the meaning of the law relating to false imprisonment. Bern- heimer v. Becker, 3: 221, 62 Atl. 526, 102 Md. 250. 2. The essential thing to constitute an imprisonment is constraint of the person, which may be by threats as well as by actual force. Hebrew v. Pulis (N. J. Err. & App.) 7: 580, 64 Atl. 121, 73 N. J. L. 621. 3. Words are sufficient to constitute an imprisonment, if they impose a restraint up- on a person, and he is actually restrained. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N". C. 317. (Annotated) 4. False imprisonment may be effected if one is ordered to do or not to do a cer- tain thing, to move or not to move against his own free will, and force is offered, or there is reasonable ground to apprehend that coercive measures will be used if he does not yield. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N. C. 317. 5. A formal declaration of arrest is not requisite to constitute an imprisonment, if the person imprisoned understands that he is in the power of the one making the ar- rest, and submits in consequence thereof. Martin v. Houck, 7: 576, 54 S. E. 291, 141 N. C. 317. 6. An arrest and imprisonment under valid process furnish no cause of action for false imprisonment. Gordon v. West, 13: 549, 59 S. E. 232, 129 Ga. 532. 7. The arrest without warrant, by one clothed with the authority of a police offi- cer, of a person found by him in a public place in a state of intoxication and acting in a disorderly manner, is not a false ar- rest; nor is his detention for the action of the proper police authorities a false im- prisonment. Erie R. Co. v. Reicherd, 20: 295, 166 Fed. 247, 92 C. C. A. 590. 1288 FALSE IMPRISONMENT, II. a. 8. If an arrest IB lawful, the motive for it is immaterial. Atchison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 9. The discharge of one guilty of fel- ony and lawmlly arrested therefor by an officer without a warrant, before his deten- tion has become unlawful through an un- reasonable delay to procure the warrant or to present him before a magistrate, does not make the original arrest unlawful. Atchi- son, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 10. The detention of one arrested for fel- ony, without a warrant, from the after- noon of Saturday until the following morn- ing, cannot be said, as matter of law, to have been for an unreasonable time. Atch- ison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 11. That the agent of a carrier in caus- ing the arrest of one who .had committed grand larceny by fraudulently taking goods of which he was the general owner from the possession of the carrier, which had a lien thereon for freight charges, described the offense as running a\vaj r without paying his bill, and said that all the carrier wanted was its money, does not establish the right of the accused, who was discharged without being brought before a magistrate, to re- cover in an action for false imprisonment against the carrier. Atchison, T. & S. F. R. Co. v. Hinsdell, 12: 94, 90 Pac. 800, 76 Kan. 74. 12. The wrongful detention of a woman in an office for three quarters of an hour by closing the door and telling her that she cannot leave until she gives up a deed in her possession, and by threatening to call the sheriff, constitutes a false imprison- ment. Kroeger v. Passmore, 14: 988, 93 Pac. 805, 30 Mont. 504. 13. A person who enters upon grounds lawfully in possession of boys giving a free picnic, notice having been given in advance that later in the day a baseball game would be played, to which admission would be charged, and who, when the game was about to commence, refused to pay the fee or go out, and was thereupon taken by the arm by a citizen, one of the assembled patrons, acting in behalf of the boys, though with- out special authority, and led in the direc- tion of the gate, always with the privilege of paying and staying, and the alternative of not paying and going, and who, before reaching the gate, did pay, and thereafter stay, is thereby afforded, as against such citizen, no ground for an action in damages for false imprisonment, since the restraint imposed was not total, and was imposed merely as a means of his ejectment until he elected to pay the lawfully charged fee, and was therefore the result of his volun- tary persistence in an Tinlawful act. Cros- sett v. Campbell, 20: 967, 48 So. 141, 122 La. 659. (Annotated) Digest 1-52 L.R.A.(N.S.) II. Who liable. a. In general. (See also same heading in Digest L.R.A. 1-70.) Liability of carrier for arrest of passenger, see CARRIERS, II. f. Municipality, see MUNICIPAL CORPORATIONS,. 423, 424. Partner, see PARTNERSHIP, 33, 34. Instructions, see TRIAL, 871, 1027. 14. One may be liable for an arrest if it is made at his instance and with his knowl- edge and consent, although he does not ex- pressly direct the officers to make it. Mc- Aleer v. Good, 10: 303, 65 Atl. 934, 216 Pa. 473. 15. Persons who go to another's house and induce him to accompany them to the police office, where* he is searched and im- prisoned, may be held liable as parties to the arrest. McAleer v. Good, 10: 303, 65 Atl. 934, 216 Pa. 473. Liability of complainant. 16. Plaintiff in a civil suit, who procures the arrest of defendant on mesne process, is a trespasser ab initio where, by direction of his attorney, the officer removes defend- ant to another county for safe-keeping, con- trary to the provisions of the statute. Gib- son v. Holmes, 4: 451, 62 Atl. 11, 78 Vt. 110. 17. Merely making and verifying a com- plaint before a justice of the peace, which does not charge a public offense or justify an arrest, will not render one liable for false imprisonment if an arrest is made un- der a warrant issued thereon. Smith v. Clark, 26: 953, 106 Pac. 653, 37 Utah, 116. 18. One who merely makes and verities a complaint upon which an arrest is made cannot be required to justify the arrest in an action for false imprisonment, although the complaint states no offense, and there- fore does not justify the arrest, if there is nothing to show tnat he participated in the issuance or execution of the warrant or di- rected the arrest or imprisonment. Smith v. Clark, 26: 953, 106 Pac. 653, 37 Utah, 116. Principal or master. Liability of carrier for arrest of passenger, see CARRIERS, 150-158. Measure of damages, see DAMAGES, 339. Liability of innkeeper, see INNKEEPERS, 30. See also supra, 11. 19. The general authority of a manager of a department in a store does not extend to detaining and searching a person upon suspicion of having stolen the employer's goods, so as to render the employer liable therefor. Bernheimer v. Becker, 3: 221, 62 Atl. 526, 102 Md. 250. 20. A corporation is liable for the act of its bookkeeper in causing the wrongful ar- rest of its tenant if he acts in the discharge of his duties, or his acts are subsequently ratified. White v. Apsley Rubber Co. 8: 484, 80 N. E. 500, 194 Mass. 97. 21. A railroad company is not respon- FALSE IMPRISONMENT, II. b. 1289 sihle for the act of its station agent in using its telegraph line and his official position as agent, to secure the arrest of .a person who was eloping with the daughter of a friend, under a false charge that he had stolen property which had been com- mitted to the charge of the agent, since it is not within the express or implied au- thority of a station agent to secure arrests for such causes. Mayfield v. St. Louis, I. M. & S. R. Co. 32: 525, 133 S. W. 168, 97 Ark. 24. 22. The employment of a detective to ascertain and report the facts a, r to who was concerned in a robbery does not render the employer liable for an arrest made b;' him for the purpose of ascertaining whether or not the person arrested was concerned in the robbery. Milton v. Missouri P. R. Co. 4:282, 91 S. W. 949, 193 Mo. 46. (Annotated) 23. A storekeeper is not responsible for an arrest, by a special officer appointed at his request and paid by him, of a person who, under suspicious circumstances, has possession of a satchel stolen from a coun- ter, where it had been placed by a customer. Tyson v. Joseph H. Bauland Co. 9: 267, 79 N. E. 3, 186 N. Y. 397. 24. A railway company is responsible for the act of one commissioned at its instance by the governor as a policeman to protect its property, whose salary is paid by it, in arresting a person upon its premises whom he charges with having in possession prop- erty stolen from it. Baltimore, C. & A. R. Co. v. Ennalls, 16: uoo, 69 Atl. 638, 108 Md. 75. 25. A railroad company is liable for the act of a policeman in its employ who, under the state statutes, has the power of a public officer in criminal matters, in arresting a citizen in excess of authority conferred by an execution which had been issued in favor of the corporation in a civil action, and compelled to answer in damages for false imprisonment. Tavlor v. New York & L. B. R. Co. (N. J. Err. & App.) 39: 122, 78 Atl. 169, 80 N. J. L. 282. (Annotated) b. Officer. (See also same heading in Digest L.R.A. 1-10.) 26. Officers in charge of a patrol wagon who assist in conveying to the station house a. person illegally arrested without warrant, are equally liable with the person making the arrest for the damages caused thereby. Cook v. Hastings, 14: 1123, 114 N. W. 71, 150 Mich. 289. (Annotated) Officer making arrest. Effect of finding of nonliability on part of municipality on appeal from joint ver- dict against municipality and police- man for wrongful arrest, see APPEAL AND ERROR, 1623. Officer removing person arrested to another county, see WRIT AND PROCESS, 88. 13ee also infra, 40-42. 27. The failure of an officer to exercise Digest 1-52 L.R.A.(N.S.) reasonable diligence in taking a person ar- rested before a committing magistrate ren- ders him liable to the person arrested, un- less the delay is occasioned by the conduct of the latter. Blocker v. Clark, 7: 268, 54 S. E. 1022, 126 Ga. 484. 28. One who, upon being arrested for in- toxication and disorderly conduct, to se- cure his release, enters a plea of guilty and waives the reading of the affidavit and the right to be present in court upon trial, waives any claim he may have against the officer who arrested him, for false arrest or imprisonment. F.rie R. Co, v. Reicherd, 20: 295, 166 Fed. 247, 92 C. C. A. 590. (Annotated) 29. A police officer is liable for arresting, without warrant, a man who he believes, and has reason to believe, has been guilty' of indecent exposure of his person, and who refuses to state his name or business to the officer, since such arrest is justified only for felony or breach of the peace committed in the presence of the officer. Cook v. Has- tings, 14: 1123, 114 N. W. 71, 150 Mich. 289. 30. A police officer who arrests one who has stopped on the sidewalk to converse with friends casually met, upon his failure immediately to move on upon command, is liable in damages for false arrest, where his only authority is to arrest without war- rant an offender taken in the act, and the offense of which the person arrested was assumed to be guilty was "failure to dis- perse when commanded to do so" by the officer. Price v. Tehan, 34: 1182, 79 Atl. 68, 84 Conn. 164. (Annotated) 31. A police superintendent who detains one who has been arrested by an officer without authority is liable in damages for the unlawful restraint, and it is no defense that he liberated him upon the interven- tion of friends who left a deposit for his reappearance, which the superintendent had no authority to exact. Price v. Tehan, 34: 1182, 79 Atl. 68, 84 Conn. 164. 32. Where a town ordinance prohibits cursing, swearing, and the use of boisterous and indecent language within the corporate limits, a town marshal is within hia rights in entering a building from which such language may be heard through a window opening upon an alley, used as a thorough- fare, in order to suppress the disturbance; and, under an ordinance imposing a penalty therefor, he may arrest the proprietor of the place, or other persons who resist or interfere with him in the discharge of that function. Stoehr v. Payne, 44: 604, 61 So. 206, 132 La. 213. Magistrate. Burden of showing absence of good faith on part of magistrate, see EVIDENCE, 275. 33. A statute requiring the disposition of a case brought before a magistrate "forth- with" is not violated by the detention of the person charged with interfering with an officer in the discharge of his duties for an hour, during which time he refuses to sub- mit to the magistrate, and, by his angry manner and language, contributes to the de- 1290 FALSE IMPRISONMENT, III. lay. Myers v. Dunn, 13: 881, 104 S. W. 352, 126 Ky. 548. 34. A justice of the peace in whose cus- tody a person has been left by an officer with the discharge of whose official duties such person was interfering, until a dispo- sition can be made of the case, is not liable in damages for preventing, by the use of reasonable means and without unnecessary force, such person from leaving his custody. Myers v. Dunn, 13: 881, 104 S. VV. 352, 126 Ky. 548. 35. A justice of the peace is not liable in damages for maliciously entertaining a false accusation against, and causing the imprisonment for want of excessive cash bail of, one duly charged with an offense within his jurisdiction. Gordon v. District Ct'. 44: 1078, 131 Pac. 134, 36 Nev. 1. 36. A justice of the peace is not liable in damages for imprisoning a witness for con- tempt as authorized by statute in a pro- ceeding, within his jurisdiction, although he acts corruptly or maliciously in so doing. McBurnie v. Sullivan, 44: 186, 153 S. W. 945. 152 Ky. 686. 37. A judge of limited jurisdiction is not personally liable for issuing a warrant of arrest which he had no authority to do, in a case of which he had jurisdiction of the subject-matter, if someone apparently qualified to do so appeared before him and made the requisite complaint, stating some facts which enter into and may under some conditions, or in co-operation with unstated facts, constitute a criminal offense, or stat- ing some fact or facts which bear general similitude to a fact or facts designated by law as constituting an offense. Brown v. Douglass, 44: 164, 57 So. 860, 175 Ala. 268. 38. A police magistrate with statutory authority to order the confinement until sober of drunken persons brought before him is not personally liable in damages to a per- son whom lie orders to be imprisoned until sober, under the mistaken belief that he is intoxicated. Reeves v. Stewart, 44: 185, 150 S. W. 26, 150 Ky. 124. 39. A justice of the peace is not person- ally liable for issuing in good faith a war- rant which results in arrest, upon an affi- davit which charges merely a threatened civil trespass, for which a warrant of ar- rest will not lie, if he has general jurisdic- tion of the subject-matter and the affidavit was clearly an attempt to charge a threat- ened criminal trespass, so that his judgment as to its sufficiency was invoked. Broom v. Douglass, 44: 164, 57 So. 860, 175 Ala. 268. (Annotated) III. Defenses; Justification. (See also same heading in Digest L.R.A. 1-10.) Burden of showing authority of law, see EVIDENCE, 673. See also supra, 6, 31. 40. An arrest made by one acting as a conservator of the peace is justifiable if Digest 1-52 L.R.A.(N.S.) probable cause exists therefor, and there need not be just cause in the sense of ac- tual cause. Davis v. Chesapeake & 0. R. Co. 9: 993, 56 S. E. 400, 61 W. Va. 246. 41. The good faith which will protect an officer in arresting one bearing the name stated in the warrant, but vvlio is not the person intended, may be negatived by such want of ordinary care as is inconsistent with good faith; and it is not necessary to the maintenance of an action for false imprison- ment that he should have made the arrest out of spite or a reckless disregard for the rights and liberties of the citizen. Blocker v. Clark, 7: 268, 54 S. E. 1022, 126 Ga. 484. 42. An officer who, in good faith and aft- er diligent inquiry, arrests a person bear- ing the same name as that contained in the warrant, but who is not the person in- tended thereby, is not liable in an action for false imprisonment founded on the mere fact of arrest; but if he detains such person in custody after information reaches him that the mistake has been made, he will be li- able in an action for false imprisonment for such detention. Blocker v. Clark, 7: 268, 54 S. E. 1022, 126 Ga. 484. (Annotated) 43. The fact that an arrest may be made by a private citizen will not justify one in detaining a woman for three quarters of an hour in an office against her will, on the ground that she has taken property from him which she refuses to give up and which he is trying to recover; the statute relating to arrests by private citizens requiring the prisoner to be taken before a magistrate without unreasonable delay, or to be de- livered to a peace officer. Kroeger v. Pass- more, 14: 988, 93 Pac. 805, 36 Mont. 504. 44. That one arrested under an illegal warrant is allowed to depart on his own recognizance pending an adjournment does not free him from custody, so that he can- not hold the one responsible for his arrest for expenses thereafter incurred in getting the warrant set aside. Worden v. Davis, 22: 1196, 88 N. E. 745, 195 N. Y. 391. (Annotated) 45. A plaintiff who abandons a suit in which defendant has been arrested on mesne process, before it is entered in court, can- not justify under the writ in an action by defendant for false imprisonment. Gibson v. Holmes, 4: 451, 62 Atl. 11, 78 Vt. 110. ( Annotated ) Advice of attorney. 46. Advice by an attorney to his client during a trial, that an adverse witness is guilty of false swearing, is not so unbiased as to justify the client in acting upon it in procuring the arrest of the witness for such offense. Smith v. Fields, 30: 870, 129 S. W. 325, 139 Ky. 60. , 47. Advice by a reputable attorney that a witness was guilty of false swearing will not constitute probable cause to justify the securing of a warrant for his arrest, if all the facts bearing upon the question were not stated to the attorney. Smith v. Fields, 30:870, 129 S. W. 325, 139 Ky. 60. FALSE IMPRISONMENT, IV.; FALSE PRETENSES. 1291 IV. In civil case. (See same heading in Digest L.B.A. 1-10.) FALSE PRETENSES. Evidence in prosecution for, see APPEAL AND ERROR, 1149; EVIDENCE, 1633, 1649, 1889, 1895, 1912, 1913. Instruction in prosecution for, see APPEAL AND ERROR, 1329; TRIAL, 886. Review of conviction for obtaining money by, see APPEAL AND ERROR, 1456 Effect on liability, of discharge in bank- ruptcy, see BANKRUPTCY, 161. Liability of corporation for, see CORPORA- TIONS, 127. Arrest of judgment on conviction for, see CRIMINAL LAW, 166. Variance between pleading and proof, see EVIDENCE, 2512. Sufficiency of proof, see EVIDENCE, 2353, 2414-2415a. Indictment for, see INDICTMENT, ETC. 41, 82-86, 109. Question for jury as to, see TRIAL, 198, 270. Direction of acquittal in action for, see TRIAL, 783. Venue of prosecution for, see VENUE, 17, 19. Nature of offense generally. Fraudulent representations in civil cases, see FRAUD AND DECEIT. 1. One who makes a representation of value as an existing fact, knowing it to be false and intending it to influence another to part with money or property, and in reliance upon which such other person is induced to part with money or property to the one making the false representation of value, is liable to a prosecution for obtain- ing money or property by false pretenses. Williams v. State, 14: 1197, 83 N. E. 802, 77 Ohio St. 468. (Annotated) 2. A representation that a person is in a business or situation in which he is not, made for the purpose of defrauding another and by which money or property is fraudu- lently obtained, is a false pretense. State v. Briggs, 7: 278, 86 Pac. 447, 74 Kan. 377. 3. The coupling of a future promise with a false pretense does not relieve the false pretense of its criminal character. State v. Briggs, 7: 278, 86 Pac. 447, 74 Kan. 377. (Annotated) 4. The mere fact that one, in order to secure property from another which lie could not otherwise have secured, makes a promise to do something in the future, which at the time he deliberately intends not to do, does not render him guilty of obtaining property by false pretenses. Com. v. Althause, 31:999, 93 N. E. 202, 207 Mass. 32. 5. To render one guilty under a stat- ute providing for the punishment of anyone who shall, by false statement, pretense, or token, with intention to commit fraiid, ob- Digest 1-52 L.R.A.(N.S-) tain from another money, property, or other thing which may be the subject of larceny, it is not necessary that the defrauded per- son shall ultimately suffer loss. Com. v. Ferguson, 24: 1101, 121 S. W. 967, 135 Ky. 32. 6. A knowingly false statement by a minor that he is over twenty-one years of age, made for the fraudulent purpose of inducing another to enter into a contract that he would not have entered into had he known the truth, and upon the faith of which such other parts with money or prop- erty, is within a statute providing punish- ment for one who, by false statement, with intention to commit a fraud, obtains from another money or property. Com. v. Fer- guson, 24: 1101, 121 S. W. 967, 135 Ky. 32. (Annotated) 7. Obtaining money as a charity upon false representations as to having sustained a loss is within a statute providing punish- ment for one obtaining money by false pre- tenses. State v. Swan, 24: 575, 104 Pac. 145, 55 Wash. 97. (Annotated) 8. Deception of the officer who issues the warrant is not necessary to render one who secures money from a county by means of a fictitious account guilty of violating a statute making guilty of a misdemeanor any person who shall, by false pretenses or rep- resentations, obtain from any other person any chattel, money, or valuable security, or other property, with intent to cheat and de- fraud any person of the same. State v. Talley, n: 938, 57 S. E. 618, 77 S. C. 99. (Annotated) 9. The account by means of which one obtains money from a county by false repre- sentations is not inadmissible upon his trial for that offense because it was not in legal form, not having been sworn to, or ap- proved by the county board, as required by statute. State v. Talley, 11:938, 57 S. E. 618, 77 S. C. 99. 10. Securing property for a check which the maker represents is good and will be paid, when he in fact intends to stop pay- ment upon it, does not render him guilty of obtaining property by false pretenses, within a statute making punishable any person who, by any false pretense, obtains from any other person any valuable thing with intent to cheat or defraud. People v. Orris, 41: 170, 121 Pac. 163, 52 Colo. 244. (Annotated) 11. Obtaining property in exchange for a post-dated check which the maker prom- ises to make good when the date of payment arrives does not render him guilty of ob- taining property by means of false pretenses, although he fails to do so, since such ac- tion cannot be predicated upon breach of a promise. State v. Ferris, 41: 173, 86 N. E. 993, 171 Ind. 562. (Annotated) 12. Representation that the check is against funds, or will be paid, is not neces- sary to bring within a statute providing for the punishment of any person who design- edly and by false pretense, or by any privy or false token, and with intent to defraud, obtains money from another, one who se- 1292 FALSE REPRESENTATIONS FAMILY EXPENSES. cures an indorsement of his check drawn to the indorser's order, to obtain funds from a strange bank, with no credit to meet it, or reasonable ground to believe that it will be honored so that the indorser, in whose presence the funds are paid to the drawer, is obliged to make good the amount to the bank cashing it, because the bank on which it is drawn refuses to honor it. State v. Foxton, 52: gig, 147 N. W. 347, Iowa, . ( Annotated ) 13. That one drawing a check which he induces another to cash does not state that he has funds in bank, or that it will be paid, will not prevent his conviction for obtaining money by false pretenses, if he knows that it will not be paid, and draws it with intent to defraud. State v. Ham- melsy, 17: 244, 96 Pac. 865, 52 Or. 156. (Annotated) 14. Obtaining money on a check upon a bank in which the drawer never had funds, or which he had no reason to believe would honor his check, is within the statute making it a felony to obtain money by the use of any false or bogus check. Williams v. Ter- ritory, 27: 1032, 108 Pac. 243, 13 Ariz. 27. (Annotated) 15. The procuring of the payment of a just debt already due, by false pretenses, is not an indictable offense. State v. Wil- liams, 32: 420, 69 S. E. 474, 68 W. Va. 86. 16. One who obtains possession of prop- erty upon the pretense of buying it for cash, at an agreed price, for the purpose of the payment of a just debt then due by the owner, equal to, or greater in amount than, the price of the property, is not guilty of a statutory crime. State v. Williams, 32: 420, 69 S. E. 474, 68 W. Va. 86. ( Annotated ) 17. One who trades to another proper- ties at fictitious and greatly exaggerated value, as to which there is no evidence that he had title, is not within the protection of a statute against obtaining property by means of the confidence game, so as to ren- der one guilty who trades to him, in re- turn for his property, worthless securities. People v. Turpin, 17: 276, 84 N. E. 679, 233 111. 452. (Annotated) 18. Effecting a horse trade by declar- ing the soundness of the horse to be traded with knowledge of the falsity of the state- ment, with intent to cheat and defraud, brings one within the operation of a stat- ute making guilty of a misdemeanor one who, by false pretenses or representations, obtains from another person any chattel or other property with intent to cheat or defraud any person of the same. State v. Stone, 49: 574, 79 S. E. 108, 95 S. C. 390. ( Annotated ) 19. One who delivers short weight for a full price is guilty of obtaining property by false pretenses, although the purchaser suspects that the seller gives short weight and makes the purchase to verify his suspi- cion, if he cannot determine the fact with- out weighing the commodity sold. State v. Ice & Fuel Co. 52: 216, 81 S. E. 737, 166 N. C. 366. Digest 1-52 L.R.A.(N.S.) What constitutes a false token. 20. A bank cashier is not guilty of ob- taining property by means of a privy or false token by drawing and certifying a check on the bank, which he exchanges for the property, if at the time he states to the seller that the check is not collectible because the bank has not funds enougli on hand to pay it, since the seller cannot be regarded as having relied on the token as valid. State v. Miller, 6: 365, 85 Pac. 81, 47 Or. 562. (Annotated) Defenses. 21. It is no defense to an indictment for obtaining money by false pretenses that the transaction in which the money was ob- tained was a pretended sale of counterfeit money. Horton v. State, 39: 423, 96 N. E. 797, 85 Ohio St. 13. (Annotated) 22. Failure of one solicited to purchase stock in a corporation to investigate the truth of representations as to its standing will not protect the one who effects the sale by false and frauduk t representations concerning it from a prosecut'in for ob- taining money by false pretenses, provided the representations are not absurd or irra- tional, or such as are not calculated to de- ceive the party to whom they are made. State v. Keyes, 6: 369, 93 S. W. 801, 196 Mo. 136. (Annotated) FALSE REPRESENTATIONS. See FBATJD AND DECEIT. FALSE TOKEN. What constitutes, see FALSE PBETENSES, 20. FAMILY. Past services by member of family as con- sideration for note, see BILLS AND NOTES, 31. Within meaning of homestead laws, see HOMESTEAD, 9. Stepfather as member of, see INSUBANCE, 79. Specific performance of promise to compen- sate member of family for past serv- ices, see SPECIFIC PEBFOBMANCE, 78. FAMILY CIRCUMSTANCES. Evidence as to, see EVIDENCE, XI. q. FAMILY EXPENSES. See HUSBAND AND WIFE, I. c. FARE. FARE FEDERAL QUESTION. FAST WRIT. 1293 Of passenger, see CAEKIEBS, II. m. FARM. Liability for injury to person on farm oper- ated by city, see MUNICIPAL COHPOKA- TIONS, 338. FARM ASSOCIATIONS. Injunction to restrain monopolistic agree- ment by, see INJUNCTION, 127. Legality of, see MONOPOLY AND COMBINA- TIONS, 41. FARM CROSSING. Duty of railroad company as to, see RAIL- BOADS, 141. FARMERS. Exemption of, from involuntary proceed- ings in bankruptcy, see BANKRUPTCY, 6, 7. FARMHOUSE. Power of municipality to own and control, see MUNICIPAL CORPORATIONS, 301. FARMING. Of office, see CONTRACTS, 524. FARM LABORERS. Imprisonment for breach of farm labor con- tract, see CONSTITUTIONAL LAW, 335; IMPRISONMENT FOB DEBT, 7, 8; PEON- AGE. Lien on crops for wages of, see LIENS, 10. What constitutes, see APPEAL AND EBBOB,. 42. FATHER-IN-LAW. Gift by, to son-in-law as advancement to daughter, see ADVANCEMENT, 3. FAULT FINDING. As ground for divorce, see DIVOBOE AND- SEPABATION, 35. FAVORITISM. By officer, actionability of charge of, see LIBEL AND SLANDEB, 68, 69. FARM LANDS. Municipal taxation of, see MUNICIPAL COR- POBATIONS, 497. FAST DRIVING. On highway, see HIGHWAYS, 372, 373. Digest 1-52 L.R.A.(N.S.) FEDERAL COURTS. In general, see COUBTS, III.; IV. Assignment of cross errors in, see APPEAL- AND EBROB, 284. State courts following decisions of, see COUBTS, V. d. Following state decisions, see COURTS, V. f. Habeas corpus in, see HABEAS CORPUS, II. Removal of cause to, see REMOVAL OP CAUSES. FEDERAL DECISIONS. Effect of, in state courts, see COUBTS, V. dL FEDERAL EMPLOYERS' LIABILITY ACT. As proper exercise of power to regulate commerce, see COMMERCE, 57-62. Constitutionality of, see CONSTITUTIONAL LAW, 470, 471. Liability under generally, see MASTEB AND SEBVANT, 192-197. FEDERAL QUESTION. Jurisdiction of, see COURTS, III. c. In extradition proceedings, see EXTRADI- TION, 7. As giving right to remove cause to Federal court, see REMOVAL OF CAUSES, 2. 1294 FEE. Creation of, by deed, see DEEDS, II. e, 2. In highway, see HIGHWAYS, II. FEE FENCES, I. FEME COVERT. See HUSBAND AND WIFE. FEED. Injury to cattle by mill feed, seller's liabil- ity, see NEGLIGENCE, 58. FEELINGS. Damages for injury to, see DAMAGES, III. o. FEES. In general, see COSTS AND FEES. Of clerk, see CLERKS. Of officers, see OFFICERS, II. b. Of witness, see WITNESSES, V. <0n property coming before probate court, see TAXES, 10. FEE SIMPLE. Creation of, by deed, see DEEDS, II. e, 2. rea.tion of, by will, see WILLS, III. g, 2, 3. FELLOW SERVANTS. Generally, see MASTER AND SERVANT, II. e. Assumption of risk of negligence of, see MASTER AND SERVANT, II. b, 8. Who are, see MASTER AND SERVANT, II. e, 5. Master's liability for assault on, see MAS- TER AND SERVANT, 953-955. Liability of, for injury to fellow servant, see MASTER AND SERVANT, 1049-1056. FELON. Recovery for, under insurance policy, see INSURANCE, 736. FELONY. Compounding, see COMPOUNDING CRIME. Civil liability for killing in effecting arrest for, see DEATH, 38. Exclusion from franchise of person con- victed of, see ELECTIONS, 7, 8. What constitutes gaming within meaning of statute making gaming a felony, see GAMING, 5. Digest 1-52 L.R.A.(N.S.) FENCE. Injunction against operation of assay office which is merely a fence for handling stolen ore, see INJUNCTION, 12. FENCES. /. In general, 1, 2. II. Division or line fence, 3. III. Malicious erection of, 46. Boundary fences, see BOUNDARIES, II. Liability of railroad which has cut gap in fence, for injury to crops by tres- passing cattle, see CHOPS, 2. Jurisdiction of action to recover for in- jury to, or destruction of, see Couius, 40. Landlord's covenant to fence, see COVE- NANTS AND CONDITIONS, 12. Billboard as violative of covenant fixing character of fence to be efected, see COVENANTS AND CONDITIONS, 83. Leaving bars or gates for convenience of neighbor when fencing land as affect- ing acquisition of easement by pre- scription, see EASEMENTS, 25. Presumption as to matters determined in suit to enjoin interference with, see EVIDENCE, 505. Injunction against, see INJUNCTION, 102, 189. Dismissal of suit to enjoin interference with, as bar to action to establish boundary, see JUDGMENT, 115-117. Duty of railroad company to fence sides of approach to trestle for protection of servants, see MASTER AND SERVANT, 404. Liability of railroad company for wrong- fully placing snow fence upon abutting property, see MASTER AND SERVANT, 886. As nuisance, see NUISANCES, 15. On railroad right of way, see RAILROADS, II. c. Injury to child on railroad track due to lack of, see RAILROADS, 115. Injury to animals by failure of railroad to fence, see RAILROADS, -184-186. City's duty to fence ditch through which water supply derived, see WATERS, 333. J. In general. (See also same heading in Digest L.R.A.. 1-10.) 1. A landowner cannot be enjoined from erecting a fence along one side of his land for the purpose of preventing his neighbor's cattle from crossing it to reach uninclosed public land upon which they have FENCES, II. FERRIES. 1295 been in the habit of grazing. Anthony Wilk- inson Live Stock Co. v. Mcllquham, 3: 733, 83 Pac. 364, 14 VVyo. 209. (Annotated) Necessity of; effect of failure to fence. Duty to construct to exclude cattle, see ANIMALS, 24, 28. Injury to animals getting upon land through failure to fence or repair fence, see ANIMALS, 6, 7. 2. An owner of land not adjoining a highway may recover his damages from tres- passes by cattle, which, while being driven along the highway with due care, escaped from the control of their custodians, and, crossing the intervening land, which was un- fenced, entered upon his land, which was also unfenced, even though division fences were required by statute or prescription; since^ he is not required to fence against cattle not rightfully upon the adjoining lands. Wood v. Snider, 12: 912, 79 N. E. 858, 187 N. Y. 28. II. Division or line fence. (See also same heading in Digest L.R.A. 1-10.) Right of one failing to maintain division fence to recover for trespass by neigh- bor's cattle, see ANIMALS, 24. Oral agreement of occupants of adjoining land to maintain, see CONTRACTS, 248. Who bound by covenant perpetually to maintain division fence, see COVENANTS AND CONDITIONS, 116, 119. 3. A statute providing that the owners of adjacent lands shall build and maintain the partition fences between them in equal shares unless otherwise agreed upon, and that, if any party neglects to build or repair a partition fence, or the portion thereof which he ought to build, the aggrieved par- ty may complain to the township trustees, who, if, upon notice, he fails to construct, may order it built, and the costs collected as other taxes, cannot be so construed and administered as to charge the owner of lands which are, and are to remain, unin- closed, with any part of the expense of con- structing and maintaining such a line fence for the sole benefit of the adjoining pro- prietor. Alma Coal Co. v. Cozad, 20: 1092, 87 N. E. 172, 79 Ohio St. 348. (Annotated) III. Malicious erection of. (See also same heading in Digest L.R.A. 1-10.) .OISITHOII Sufficiency of evidence of malice, see EVI- DENCE, 2097. Injunction against maintenance of spite fence, see INJUNCTION, 115. Necessity of making landlord a party in action to compel tenant to remove spite fence, see PARTIES, 190. Pleading in suit for injunction against spite fence, see PLEADING, 431. Digest 1-52 L.R.A.(N.S.) 4. Maliciously to construct a fence on one's property to cut off the light and air from his neighbor's windows is actionable. Barger v. Barringer, 25: 831, 06 S. E. 439, 151 JST. C. 433. (Annotated) 5. A landowner will be enjoined from erecting a fence on his land to the great damage of his neighbor, and without any useful purpose on his part, but for the sole purpose to annoy and punish the party in- jured. Bush v. Mockett, 52: 730, 145 N. W. 1001, 95 Neb. 552. (Annotated) 6. The court will order the removal of a spite fence erected to compel an adjoin- ing property owner to abandon a suit in- stituted to enjoin the maintenance of a nui- sance on the property of the one who erected it. Wilson v. Irwin, 42: 722, 138 S. W. 373, 144 Ky. 311. (Annotated) FENDER. Injury to person falling over, see CARRIERS, 99, 335; STREET RAILWAYS, 23, 40, 62. Requiring street railways to use particular kind of, see MUNICIPAL CORPORATIONS, 129. FERRIES. Ferry company as common carrier, see CAR- RIERS, 12. Authority of ferry ticket collector, see CAR- RIERS, 34. Ejection of passenger from, see CARRIERS, 434. Requiring license for ferry between state and Canada as interference, see COM- MERCE, 14. Right of grantee of ferry franchise to ac- quire landings under power of eminent domain, see EMINENT DOMAIN, 81. License to keep bar on ferry boat, see IN- TOXICATING LIQUORS, 22. Interference with booms by operation of, see WATERS, 110. 1. One employing a flat boat or other means of transporting his employees and teams across a stream to and from his saw- mill, who does not transport any part of the public for hire or compensation, is not engaged in operating a ferry. Futch v. Bohannon, 30: 462, 67 S. E. 814, 134 da. 313. Exclusive right; subsequent ferry. 2. The use of a flatboat or other ves- sel, solely for the purpose of carrying the owner's employees and teams across a stream to and from his sawmill, does not infringe the rights of the owner of a pub- lic ferry, although such rights are exclusive and territorially extend beyond the point at which the former keeps and maintains his personal conveyance. Futch v. Bohan- non, 30: 462, 67 S. E. 814, 134 Ga. 313. (Annotated) 3. The franchise of a ferry is not a grant of an exclusive right to carry across 1296 ] KK 1 1LIZER FILING. a stream by any means whatever, but only a grant of the exclusive right to carry across by means of a ferry : therefore a bridge connecting the same highways as the ferry, whereby the ferry owner loses all the income he used to receive from tolls, is not a disturbance of his franchise es- pecially where the ferry did not accomo- date vehicular traffic. Dibden v. Skirrow, 1 B. R. C. 333, [1908] 1 Ch. 41. Also Re- ported in 77 L. J. Ch. N. S. 107, 71 J. P. 555, 97 L. T. N. S. 658, 24 Times L. R. 70, 6 Local G. R. 108. (Annotated) FERTILIZER. Recovery of price of fertilizer sold in vio- lation of statute, see BILLS AND NOTES, 222. Validity of ordinance as to manufacture of, see CONSTITUTIONAL LAW, 195. Ordinance of board of health as to, see HEALTH, 7. Imposing license on business of dealing in, see LICENSE, 47. Imposing tax upon nonresident dealer in, see MUNICIPAL CORPORATIONS, 434. FIANCEE. Insurable interest of, see INSURANCE, 67, 80. /Damages for delay in delivering baggage of, see DAMAGES, 621. Nondelivery of telegram in time to enable sendee to attend funeral, see DAMAGES, 659. Interest of, in benefit certificate, see IN- SURANCE, 849. Larceny from, see LARCENY, 37. Right of action for seduction of, see SE- DUCTION, 3. FICTITIOUS PAYEE. Check in favor of, see BANKS, 130-132, 139, 140, 143; BILLS AND NOTES, 9; FOR- GERY, 13. Issue of refunding tax warrants to, see BONDS, 48. Issue of refunding tax warrants to, BONDS, 48. FICTITIOUS PAYMENT. Indorsement of, upon note, see ALTERATION OF INSTRUMENTS, 15; BILLS AND NOTES, 3. " *-- FICTITIOUS PERSON. Check payable to, see BANKS, 130-132, 139, 140, 143; BILLS AND NOTES, 9; FOR- GERY, 13. digest 1-52 FICTITIOUS RACE. Inducing person to make bid on, see PLEAIX ING, 385. FIDELITY INSURANCE. See BONDS, II. b. FIDUCIARY RELATIONS. Between attorney and client, see ATTOR- NEYS, II. Of real estate agent, see BROKERS, II. Of physician toward . patient, see CON- TRACTS, 285. Between corporation and officers, see COR- PORATIONS, IV. g, 4. Of agent, see PRINCIPAL AND AGENT, 99- 107. What is debt created by default in fiduciary capacity, see BANKRUPTCY, 173. Jurisdiction of equity where fiduciary re- lation exists, see EQUITY, 76. Estoppel of city to claim secret profits made by member of committee purchasing real estate for city, see ESTOPPEL, 13. Presumption and burden of proof as to, see EVIDENCE, 115, 116, 268. Fraud in abuse of, see FRAUD AND DECEIT, 3. Giving priority in funds in receiver's hands, see RECEIVERS, 36. FIELD NOTES. Failure of, to mention island as creating presumption as to noncxistence, see EVIDENCE, 520. Of deceased surveyor as evidence, see EVI- DENCE, 1856. FIERI FACIAS. See EXECUTION; JUDGMENT, 168; LEVY AND* SEIZURE. FIGHTING. See ASSAULT AND BATTERY. FILING. Of schedule by carrier, see CARRIERS, 726, 1017, 1019-1024. FILMS FINDINGS. 1297 Of chattel mortgage, see CHATTEL MORT- GAGE, III. Of articles of incorporation, see CORPORA- TIONS, 15, 322, 323. Of reports by corporate officers, see CORPO- RATIONS, 167. Of mechanics' lien, see MECHANICS' LIENS, 92, 100-107. Of pleading, see PLEADING, I. p. Of notice of amendment of pleading, see PLEADING, 117. FILMS. Mental anguish as element of damages in case of loss of undeveloped films, see DAMAGES, 625. FILTER. Duty of water supply company to filter water, see WATERS, 373. FILTH. On street car steps, see CABBIERS, 302. FINALITY OF DECISION. For purpose of appeal, see APPEAL AND ERROR, I. b. FINANCIAL ADVICE. Offer of, by newspaper to reader, see CON- TRACTS, 18, 19, 57; DAMAGES, 100. FINANCIAL CIRCUMSTANCES. Right to consider in estimating damages for breach of promise, see DAMAGES, 320. Right to consider, in estimating damages for seduction, see DAMAGES, 334. Evidence on question of, see EVIDENCE, 758. Evidence of change in, in criminal prosecu- tion, see EVIDENCE, 1838, 1839. FINANCIAL STANDING. Actionability of communication as to, see LIBEL AND SLANDER, 105. FINDER. Evidence in action by finder against one to whom property was delivered for safe keeping, see EVIDENCE, 1445. Digest 1-52 L.R.A.(N.S.) 82 Variance between pleading and proof in ac- tion by finder to recover property found, see EVIDENCE, 2473. Larceny by one finding lost property, see INDICTMENT, ETC., 90; LARCENY, 8, 38- 40. Running of limitations against right to recover lost property, see LIMITATION OF ACTIONS, 183. Right of one losing lottery ticket to re- cover against finder thereof to whom prize is awarded, see LOTTERY, 2. Refusal of instructions in contest between finder and alleged owner, see TRIAL, 813. Trover against cofmder, see TROVER, 4. As to treasure trove, see TREASURE TROVE. 1. Money or property is not lost, in the sense that a finder may, by his discovery and possession thereof, obtain absolute title thereto unless it has been voluntarily aban- doned or cast away by the owner. Kuy- kendall v. Fisher, 8: 94, 56 S. E. 48, 61 VV. Va. 87. 2. Property is usually considered lost in a legal sense when the possession has been casually and involuntarily parted with, as in the case of an article accidentally dropped by the owner. Kuykendall v. Fisher, 8: 94, 56 S. E. 48, 61 W. Va. 87. 3. The finder of lost property or treas- ure-trove acquires, by the act of finding, no right of property therein as against the owner; but as against all other persons he is entitled to the possession thereof as a quasi depositary, holding for the owner. Kuykendall v. Fisher, 8: 94, 56 S. E. 48, 61 W. Va. 87. (Annotated) 4. Mere employment of one to remove property from the warehouse of the em- ployer does not give the latter title to money which the employee finds in the warehouse during the performance of the work. Roberson v. Ellis, 35: 979, 114 Pac. 100, 58 Or. 219. 5. The owner of a private warehouse to which only himself and his brother have access has no qualified title to money found there by an employee which does not be- long to either himself or his brother, which will give him a right to its custody as against the employee. Roberson v. Ellis, 35: 979, 114 Pac. 100, 58 Or. 219. (Annotated) FINDINGS. Sufficiency of exception to, see APPEAL AND ERROR, 304-307. Presumption as to, on appeal, see APPEAL AND ERROR, 451-465. Estoppel to except to, see APPEAL AND ERROR, 530. As part of record on appeal, see APPEAL AND ERROR, IV. i. Review of, on appeal, see APPEAL AND ERROR, VII. 1, 3. Review of discretion in refusing to modify, see APPEAL AND ERROR, 561. 1298 FINES FIRE DEPARTMENT. Discretion of trial court as to giving or re- fusing special findings, see APPEAL AND ERROR, 645. Failure to find as ground for reversal, see APPEAL AND ERROR, 1539. Prejudicial error as to, see APPEAL AND ERROR, VII. m, 8. By legislature, review of, by courts, see COURTS, 104-107. Conformity of judgment to, see JUDGMENT, I. e, 2. Conclusiveness of decision on demurrer, see JUDGMENT, 100-102. Review of findings of state board of health in proceeding to revoke physician's li- cense, see PHYSICIANS AND' S 13. By court generally, see TRIAL, IV. By jury, see TRIAL, V. FINES. For keeping dog which does not wear a collar, see ANIMALS, 3. For violation of liqubr law, see APPEAL AND ERROR, 80. For ignoring rulings of court, see ATTOR- NEYS, 31. For contempt, see CONTEMPT, 108, 109. Against corporation for violating injunc- tion, see CORPORATIONS, 116. Against corporation guilty of illegal combi- nation, see MONOPOLY AND COMBINA- TIONS, 22. By labor union to coerce members to join strike, see LABOR ORGANIZATIONS, 6. Due process of law as to, see CONSTITUTION- AL LAW, 564. Excessive fines, generally, see CRIMINAL LAW, 249. Expulsion of member of labor union for re- fusal to pay, see EQUITY, 15. Statute requiring fines for violation of game laws to be paid to warden of county, see GAME LAWS, 8. Diversion of, from support of common school, see HUSBAND AND WIFE, 214. Imprisonment for nonpayment of, see IM- PRISONMENT FOR DEBT, 5. Enforcing payment of license and occupa- tion taxes by, see LICENSE, 130. Power of municipality to impose, see MU- NICIPAL CORPORATIONS, 179. Right to consider in determining whether city has exceeded debt limit, see MU- NICIPAL CORPORATIONS, 268. Who may maintain action to recover, see PARTIES, 6. Liability of principal to reimburse agent for fines paid for violation of law in principal's interest, see PRINCIPAL AND AGENT, 97. Paying to wife fine imposed upon husband for abandoning her, see PUBLIC MON- EYS, 15. Sufficiency of tender of, see TENDER, 7. As to penalties generally, see PENALTIES. Digest 1-52 L.R.A.(N.S.) FINGER PRINTS. Opinion evidence as to, see EVIDENCE, 1176- 1179. Resemblance of, as sufficient to support conviction for crime, see EVIDENCE, 2374. FINGERS. Damages for loss of, see DAMAGES, 427. FIREARMS. Assault by pointing gun, see ASSAULT AND BATTERY, 10-13, 25, 37. Sheriff's liability for injury to bystander by discharge of revolver dropped by deputy, see BONDS, 62. Sufficiency of evidence to support convic- tion of attempt to discharge, see EVI- DENCE, 2398. Insurance against injury by, see INSUR- ANCE, 723. Negligence in sale of, see NEGLIGENCE, 63. Negligence in use of, see NEGLIGENCE, 42- 44; TRIAL, 124. FIRE CLAY. Combination to control production of, see MONOPOLY AND COMBINATIONS, 38. FIRE DEPARTMENT. Exemption of board of fire commissioners from furnishing bond on appeal, see APPEAL AND ERROR, 141. Fireman as public officer who cannot as- sign salary, see ASSIGNMENT, 10. Issue of city bonds for fire department im- provements, see BONDS, 88. Fireman riding free on street car as pas- senger, see CARRIERS, 72. Injury to fireman on running board of street car, see CARRIERS, 362. Requiring street railway company to carry firemen free, see CARRIERS, 1031, 1032; CONTRACTS, 511. Vested right of fireman in exemption from jury duty, see CONSTITUTIONAL LAW, 66, 67. Local self-government as to, see CONSTITU- TIONAL LAW, 148. Regulating hours of labor of firemen, see CONSTITUTIONAL LAW, 306, 307, 479. Placing fire house on city lot in violation of building restrictions, see CONSTITU- TIONAL LAW, 643. Measure of damages for injury to one run down by, see DAMAGES, 408. />..H . i. i ;">; Id FIRE ESCAPES FIRE INSURANCE. 1291) Injury to driver of fire wagon by collision with street car, see DAMAGES, 414; EVIDENCE, 1789; STREET RAILWAYS, 18, 19. Injury to firemen by electric shock while attempting to put out fire, see ELEC- TRICITY, 03-65; EVIDENCE, 1791. Contributory negligence of firemen, see ELECTRICITY, 81. Interfering with extinguishment of fire by, see EVIDENCE, 2058, 2157 ; FIRES, 18- 24: PLEADING, 326, 344; PROXIMATE CAUSE, 47, 52, 53. Injury to member of, by fire insurance pa- trol, see FIRE INSURANCE PATROL, 1. Superior rights of, in streets over fire in- surance patrol, see FIRE INSURANCE PATROL, 2. Members of, as servants of person whose property they attempt to save from fire, see FIRES, 24. Mandamus to mayor to compel suspension of chief of, see MANDAMUS, 54, 55. Mandamus to compel payment of salary to fireman, see MANDAMUS, 59. City's liability for injury to fireman, see MASTER AND SERVANT, 642; MUNICIPAL CORPORATIONS, 408. Requiring attendance of firemen at the theater during performance, see MUNIC- IPAL CORPORATIONS, 186-188; PAB- TIES, 7. Municipal liability for negligence of fire- men, see MUNICIPAL CORPORATIONS, 402-410. Liability of city for injury to person in fire house, see MUNICIPAL CORPORA- TIONS, 465. Liability of one summoning, for injury to member of, see NEGLIGENCE, 24, 113- 115; NUISANCES, 10. Liability of railroad for destruction of fire engine, see NEGLIGENCE, 54. Right of firemen to accept free passes, see OFFICERS, 83. Injury by, to person waiting for street car, see PROXIMATE CAUSE, 79. Proximate cause of injury to fireman, see PROXIMATE CAUSE, 28\ Liability of telephone company failing to connect subscriber with fire depart- ment, see PROXIMATE CAUSE, 48, 49. Implied repeal of statute authorizing pur- chase of land for, see STATUTES, 337. Liability for failure to furnish water for, see WATERS, 357-359, 370-372, 377- 398. Pensions to firemen. Vested right in pension, see CONSTITUTION- AL LAW, 58. Review of determination of fire department relief association as to pensions, see Cou:.s, 175, 176. Power of legislature to require cities to pension firemen, see MUNICIPAL CORPO- RATIONS, 40, 41. Pensions to firemen as wrongful use of pub- lic money, see PUBLIC MONEY, 18. Requiring insurance companies to contrib- ute to firemen's relief fund, see CON- STITUTIONAL LAW, 699; TAXES, 16, 39. Digest 1-52 L.R.A.(N.S.) 1. The creation of a fund by assess- ments upon fire insurance companies doing business in cities, to pension firemen, vio- lates a constitutional provision limiting the granting of pensions to those rendering mili- tary or naval services. /Etna F. Ins. Co. v. Jones, 13: 1147, 59 S. E. 148, 78 S. C. 445. 2. A fireman entitled to a service pen- sion, no part of which is paid for injuries inflicted while in that vocation and as a result thereof, may only receive the pen- sion provided by law at the time of his retirement. State ex rel. Haberlan v. Love, 34: 607, 131 N. W. 196, 89 Neb. 149. 3. A statutory provision requiring mu- nicipalities to pension firemen does not con- travene a constitutional provision that the legislature shall never grant any extra com- pensation to any public officer, agent, serv- ant, or contractor after the services shall have been rendered or the contract entered into. State ex rel. Haberlan v. Love, 34: 607, 131 N. W. 196, 89 Neb. 149. 4. Firemen who have served the re- quired length of time, although it has not all been after the passage of the statute, are entitled to the benefit of a statute allowing pensions to all firemen whenever they shall have served in the fire depart- ment for a certain length of time. State ex rel. Haberlan v. Love, 34: 607, 131 N. W. 196, 89 Neb. 149. FIRE ESCAPES. In general, see BUILDINGS, I. b. Liability of charitable corporation for in- jury by fall of, see CHARITIES, 69. Liability of charitable corporation for fail- ure to provide, see CHARITIES, 73. Right of owner of easement to construct, overhanging lane, as against fee owner, see EASEMENTS, 75. Effect of absence of, on right to recover rent, see LANDLORD AND TENANT, 180, 181. Assumption of risk resulting from absence of, see MASTER AND SERVANT, 610. Negligence of independent contractor erect- ing, see MASTER AND SERVANT, 1024, 1025. Absence of, as proximate cause of injury, see PROXIMATE CAUSE, 28. Master's duty to inspect fire escapes erect- ed by independent contractor, nee TRIAL, 602. . , FIRE HOUSE. Liability of city for injury to person in, see MUNICIPAL CORPORATIONS, 465. FIRE INSURANCE. See INSURANCE. 1300 FIRE INSURANCE PATROL FIRES. FIRE INSURANCE PATROL. As charitable organization, see CHARITIES, 15. 1. An insurance patrol association com- posed of insurance companies doing busi- ness in a certain city, and having power to provide for and assist in the saving of life and property, and which is supported by as- sessments levied on all persons or companies engaged in the insurance business in such city, is liable in damages for injuries re- sulting to a member of the city fire depart- ment, received, while engaged in the dis- charge of his duties, through the act of its servant in negligently driving through the streets, since such an association is a pri- vate corporation, organized to promote the pecuniary interests of its members, not- withstanding that the statute under which the association is organized prohibits it from charging for its services, or from dis- tinguishing between insured and uninsured property. Coleman v. Fire Ins. Patrol, 21: 810, 48 So. 130, 122 La. 626. (Annotated) 2. The right of way through the streets of New Orleans, granted to its fire depart- ment by La. act No. 83, p. 114, of 1894, is paramount to, and wholly unaffected by, a similar right granted to the fire insurance patrol of that city by 5, act No. 115, p. 186, 1902, as such act is qualified by 4 thereof, providing that nothing therein shall be so construed as to lessen in any way the authority of the fire department. Coleman v. Fire Ins. Patrol, 21: 810, 48 So. 130, 122 La. 626. FIRE LIMITS. See also BUILDINGS, 13-28. Regulations as to, as interference with prop- erty rights, see CONSTITUTIONAL LAW, 380, 381. Review of municipal action in establishing, see COURTS, 166. Estoppel to question city's authority to grant permission to erect building within fire limits, see ESTOPPEL, 241. Enjoining prevention of erection of wooden building within, see INJUNCTION, 346. Injunction to restrain municipality from removing wooden building erected with- in, see INJUNCTION, 313. Injunction against erection of wooden building within, see NUISANCES, 141'. Summary abatement of wooden building within, see NUISANCES, 168. FIREMEN. See FIRE DEPARTMENT. Digest 1-52 L.R.A.(N.S.) FIRES. Loss by, of property bailed, see ACTION OB SUIT, 108; BAILMENT, 23; EVIDENCE, 450. Injury to growing plants from frost because of negligent burning of protecting cover, see ACT OF GOD, 2. As to fire escapes on buildings, see BUILD- INGS, I. b. Limiting height of buildings as protection against fire, see BUILDINGS, 7. Establishing fire limits for buildings, see FIRE LIMITS. Carriers liability for loss by, see CARRIERS, 754, 804, 805, 847-849, 858, 859. Giving fire protective association grant of right of way in public streets, see CON- STITUTIONAL LAW, ICO. Constitutionality of regulations to prevent, see CONSTITUTIONAL LAW, 197. Subrogation of railroad company to re- sponsibility for loss by fire to insur- ance thereon, see CONSTITUTIONAL LAW, 465. Validity of agreement by lessee of railroad property to assume risk of, see CON- TRACTS, 498. Rates for water for fire purposes, see CORPO- RATIONS, 146, 147. Judicial review of municipal ordinance, see COURTS, 166. Measure of damages for destruction of meadow by, see DAMAGES, 460. Damages for injury to trees by, see DAM- AGES, 473, 474. Destruction of poll books by, see ELEC- TIONS, 17. Taking private property in providing for fire lines along railroad right of way, see EMINENT DOMAIN, 213. Presumption of negligence as to, see EVI- DENCE, 398-403, 464. Evidence generally in action for loss re- sulting from, see EVIDENCE. 717, 764. Evidence of other fires, see EVIDENCE, 1860- 1862. Admissibility of report by railroad station agent as to cause of fire, see EVIDENCE, 827. Opinion evidence as to cause of, see EVI- DENCE, 1198. Sufficiency of evidence as to cause of, see EVIDENCE, 2063-2066. Weight of opinion evidence as to danger of, see EVIDENCE, 2114. Sufficiency of evidence to show time of, see EVIDENCE, 2334. Liability for injury to infant by, see EVI- DENCE, 1414; NEGLIGENCE, 139-141. Matters as to fire department, see FIRE DE- PARTMENT. Liability of gas company for failure to shut off gas from premises during, see GAS, 55. Caused by explosion of gas, see GAS, 59. Mandatory injunction to compel extinguish- ment of fire in mine, see INJUNCTION, 31, 32. Loss of property of guest at hotel through fire, see INNKEEPERS, 18. Insurance against loss by, see INSURANCE. FIRES. 1301 Violation of Sunday closing law by enter- ing saloon to replenish fire, see INTOXI- CATING LIQUORS, 163. Saloon keeper's liability for bar tender's act in setting, see MASTER AND SERV- ANT, 941, 942. Master's liability for damages by fire set by servant, see MASTER AND SERVANT, 891, 903, 904. Liability of master for injury from fire set out by independent contractor, see MAS- TER AND SERVANT, 997, 1017-1023. 'Servant's liability for negligence as to, see MASTER AND SERVANT, 1045, 1046. Ordinance designed to prevent, see MUNICI- PAL CORPORATIONS, 198, 207-209, 211, 294. Municipal liability for, see MUNICIPAI COR- PORATIONS, 330-332. Liability of city for injury by, because of negligence of waterworks employees, see MUNICIPAL CORPORATIONS, 414. Manufacturer's liability to purchaser of substance igniting in process of manu- facture, see NEGLIGENCE, 56. Effect of destruction of building by, on easement of adjoining owner in party wall, see PARTY WALL, 22, 23. Demurrer to allegation that owner of building had failed to provide means for extinguishing, see PLEADING, 584. Proximate cause of loss or injury by, see PROXIMATE CAUSE, II. a. Liability of railroad for, see RAILROADS, 11. d, 7; II. e, 5. Burning of warehouse by railroad's use of fire to destroy weeds, see RAILROADS, 21. Destruction by, of property preventing com- pletion of sale, see SALE, 14. Effect of injury to property by fire on right to specific performance of contract, see SPECIFIC PERFORMANCE, 98. Question for jury as to negligence in set- ting, see TRIAL, 130, 570-572. Destruction of goods in warehouse by ; see TRIAL, 559; WAREHOUSEMAN, 8-10. Destruction of timber by, see TRIAL, 991. Who must bear loss by, as between vendor and purchaser, see VENDOR AND PUR- CHASER, 21-25. Duty of water company to furnish water for extinguishment of, see WATERS, 357-359, 370-372, 377-398 1. To maintain an action for damages sustained by fire which originated on the premises of another, it is necessary, as a general rule, to show that the fire was un- lawfully kindled or negligently started or guarded by the latter. Beckham v. Sea- board Air Line R. Co. 12: 476, 56 S. E. 638, 127 Ga. 550. 2. One who sets out a fire on his own premises, without taking such precaution as a reasonable man should to prevent it from spreading to his neighbor's premises, is negligent; and the fact that rorty-eight hours intervened between the setting out of the fire and the time it spread to those premises does not in itself necessarily ac- Digest 1-52 L.R.A.(N.S.) quit him of negligence. Hawkins v. Collins, 36: 194, 131 N. W. 187, 89 Neb. 140. (Annotated) 3. One who failed to exercise ordinary skill and care in controlling a fire originat- ing upon his premises cannot avoid liability for damages suffered by another to whose lands the fire spread, upon the ground that the latter did not attempt to prevent the fire from crossing the boundaries and reach- ing his land. Mahaffey v. J. L. Rumbarger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 4. One setting fire upon his premises is charged with the duty of exercising ordi- nary care and skill in preventing it from spreading and being communicated to the property of another; and if he fails to ex- ercise such care he is liable for the dam- ages inflicted upon property of another to whose premises the fire is communicated. Mahaffey v. J. L. Rumbarger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 5. In an action to recover the value of property destroyed by fire alleged to have been negligently permitted to escape from the lands of the defendant, a defense that the loss was occasioned by a sudden shift of the wind is not available, unless the change of the wind was unusual and ex- traordinary and such as in its nature could not haxe been reasonably expected. Mahaf- fey v. J. L. Rumbarger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 6. An owner of premises, who discov- ers a fire in progress thereon, for the kin- dling of which he is not responsible, is not bound to exercise more than ordinary care and diligence to prevent it from spreading. Baird v. Chambers, 6: 882, 109 N. W. 61, 15 N. D. 618. (Annotated) 7. One upon whose lands a fire is started by a trespasser, or by some person with whom he is in no wise connected, is under no duty to the adjoining owners to extin- guish or control it. Mahaffey v. J. L. Rum- barger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 8. A landowner who negligently allows a fire started by him or his agents, to es- cape to the lands of another on which it de- stroys property, is liable therefor, although, after leaving his premises, the fire passes over intervening lands before inflicting the damage complained of. Mahaffey v. J. L. Rumbarger Lumber Co. 8: 1263, 56 S. E. 893, 61 W. Va. 571. 9. A statute forbidding the setting fire to any woods, prairies, or other grounds does not prevent a railroad company, whose statutory duty is to keep its right of way clear from dead grass, dry weeds, or other dangerous, combustible material, from us- ing fire to accomplish that result. Check- ley v. Illinois C. R. Co. 44: 1127, 100 N. E. 942, 257 111. 491. 10. Under a statute making the owner of land liable for injury to neighboring property by fire wilfully or negligently per- mitted to escape therefrom, the owner is not answerable for fire escaping from prop- erty in possession of a tenant unless he 1302 FIRES. knew of the existence of a fire thereon, or had knowledge of facts which would charge him with notice that the danger of such fire breaking out thereon was imminent. Rogers v. Parker, 34:955, 123 N. W. 1109, 159 Mich. 278. 11. A railroad company is not liable for the loss of property destroyed by fire com- municated to it from a burning wooden building on the company's premises, because it refused to attempt to remove its ignited building by the aid of a locomotive standing near by, where it does not appear that this was possible. Beckham v. Seaboard Air Line R. Co. 12: 476, 56 S. E. 638, 127 Ga. 550. Liability in case of joint fires. See also RAILKOADS, 198. 12. One who negligently seta a fire is responsible for the injury done by it al- though it is joined by a fire set by anothei person and the two concurrently do the injury, if it appears that the first one would have caused the injury without the assist- ance of the second; at least if it does not appear that the second fire would have caused the loss without the aid of the first. Miller v. Northern P. R. Co. 48: 700, 135 Pac. 845, 24 Idaho, 567. (Annotated) 13. The owner of a smokestack is not liable for fire set by a spark from it un- less he is shown to have failed to exercise ordinary care in the construction, mainte- nance, or operation of the plant, in view of the conditions of the surrounding property. American Ice Co. v. South Gardiner Lum- ber Co. 32: 1003, 79 Atl. 6, 107 Me. 494. (Annotated) 14. The owner of a lumber yard cannot be held negligent in the construction of a smokestack of a certain height without a spark arrester, so as to be liable for fire set by a spark from it, where the stack and furnace were constructed on approved plans, and, for a period of seventeen years, no live spark was known to have come from, or fire to have been set by, it, al- though it was surrounded by a large amount of highly inflammable material, and in the opinion of an expert, it should have been higher and had a spark arrester. American Ice Co. v. South Gardiner Lumber Co. 32: 1003, 79 Atl. 6, 107 Me. 494. From threshing engine. 15. The owner of a threshing-machine en- gine does not fulfil his duty in regard to pre- cautions to avoid setting fires by merely adopting a spark arrester in general use, and showing that the engine did not emit sparks any more copiously than was natural for an engine of similar kind and construction, where he had been in the habit of making use of an additional spark arrester when working near material of the kind of which fire was set, and which was allowed to be- come out of order at the time the fire oc- curred. Martin v. McCrary, i : 530, 89 S. W. 324, 115 Tenn. 316. (Annotated) 16. The owner of a threshing-machine en- gine must make at least daily inspection of his spark arresters when he is working near combustible material. Martin v. Me- ' Digest 1-52 L.R.A.CN.S.) Crary, i: 530, 89 S. W. 324, 115 Tenn. 316. 17. One who has contracted to thresh grain with a steam thresher must, to avoid setting fires, use care commensurate with the risk or haxard. Martin v. McCrary. i: 530, 89 S. W. 324, 115 Tenn. 316. Interfering with extinguishment of. Sulficiency of evidence in action for, see EVI- DENCE, 2058, 2157. Demurrer to complaint in action for, see PLEADING, 326. Negation of contributory negligence in ac- tion for, see PLEADING, 344. 18. The violation by a railroad company of a statute forbidding the obstruction of street crossings in cities is negligence, as matter of law, as against the owner of a house destroyed by fire, because of failure of the fire department, whose progress was interfered with by the obstruction, to reach it in time to extinguish the fire. Houren v. Chicago, M. & St. P. R. Co. 20: mo, 86 N. E. 611, 236 111. 620. (Annotated) 19. A railroad company cannot avoid lia- bility for loss of a building by fire on ac- count of its delaying the fire department by maintaining a train across the street be- cause the policeman might have cleared the crossing. Houren v. Chicago, M. & St. P. R. Co. 20: 1 1 10, 86 N. E. 611, 236 111. 620. 20. A railroad company which permits a train to stand on a street crossing in violation of statute is liable for injury done to private property through the inability of the city fire apparatus to reach it because of such obstruction. Cleveland, C. C. & St. L. R. Co. v. Tauer,- 39: 20, 96 N. E. 758, 176 Ind. 621. (Annotated) 21. The refusal of the engineer of a train, who, after stopping on signal, is in- formed that a fire is in progress, with the extinguishment of which the operation of his train will interfere, to cut or back the train, which is being closely followed by an- other, and his decision to pull ahead out of the way as rapidly as possible, will not ren- der the railroad company liable for loss caused by delay in the efforts to extinguish the fire. American Sheet & Tin Plate Co. v. Pittsburgh & L. E. R. Co. 12: 382, 143 Fed. 789, 75 C. C. A. 47. (Annotated) 22. Actual knowledge, or facts from which it can be imputed, must exist on the part of those in charge of a railroad train, of a fire with the extinguishment of which the operation of the train will interfere, to charge the railroad company with liability for interference with the extinguishment by such operation. American Sheet & Tin Plate Co. v. Pittsburgh & L. E. R. Co. 12: 382, 143 Fed. 789, 75 C. C. A. 47. 23. A railroad company which, in the or- dinary course of its business, stops a train I tween a hydrant and a burning building, without notice of any intention on the part of anyone to run a hose from the hydrant to the fire, owes no duty to the owner of the burning building to move the train before the conducto 1 " has received his proper clear- ance card, for which he stopped, and can- not therefore be held liable for injury to the building because of its failure so to do. FIREWORKS FISHERIES, I. b. 1303 Louisville & N. R. Co. v. Scruggs, 23: 184, 49 So. 399, 161 Ala. 97. 24. The firemen of a fire department in a city are not the servants or agents of the person whose property they attempt to save from fire, so that their negligence in failing to take the proper course in the extinguish- ment of the fire avails one who, by a negli- ge t act, cut off the water supply by which the fire was being successfully subdued, and thereby proximately caused the destruction of the property. Erickson v. Great North- ern R. Co. 39: 237, 135 N. W. 1129, 117 Minn. 348. (Annotated) Contributory negligence. 25. One owning property abutting on a public street who knows that inflammable material has been deposited in the street in such manner as to endanger his prop- erty, must make all reasonable efforts to protect his property from the impending danger. Charles Eneu Johnson Co. v. Phil- adelphia, 42: 512, 84 Atl. 1014, 236 Pa. 510. FIREWORKS. Killing of passenger by explosion of, see CARRIERS, 235. Liability of municipality for negligence in discharge of, see HIGHWAYS, 204; MU- NICIPAL CORPORATIONS, 349, 350, 360. Liability for negligence of independent con- tractor in setting off, see MASTER AND SERVANT, 1009. Display of, as nuisance, see NUISANCES, 54. Proximate cause of injtiry resulting from explosion of, see PROXIMATE CAUSE, 66. Question for jury as to negligence ill dis- play of, see TRIAL, 573. The proprietor of a pleasure resort is not negligent in fixing the place from which patrons are to view a display of fire- works at 300 to 400 feet from where the display is given. Reisman v. Public Service Corp. (N. J. Err. & App.) 38: 922, 81 Atl. 838, 82 N. J. L. 464. FIRM. See PARTNERSHIP. FISHERIES. I. Public fisheries generally, 18. a. In general, 1. 6. Regulation and protection, 2 S. II. Private rights, 917. III. Shell fish, oysters, and clams, 18 2O. Appropriation to pay salary of state game and fish warden, see APPROPRIATIONS, 3, 4. Digest 1-52 L.R.A.(N.S.) Confiscation of net, see CONSTITUTIONAL LAW, 610. Right of owner to cut new channel for stream across property and convert old channel into fish ponds, see WATERS, 33. Application of statute entitling shore own- er to control fishing opposite his land, see WATERS, 143. Destruction of fishing by pollution of water, see WATERS, 213. /. Public fisheries generally, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. A constitutional declaration that un- appropriated water in natural streams is public property subject to appropriation does not confer a public right of fishery in 'treams flowing through private property. Hartman v. Tresise, 4: 872, 84 Pac. 685, 36 Colo. 146. ft. Regulation and protection. (See also same heading in Digest LJi.A. 1-10.) Jurisdiction to punish for fishing without license, see BOUNDARIES, 3. Review by court of statute for protection of fish, see COURTS, 105. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 185, 186, 199, 287, 288. Discrimination against nonresidents of county in regulations as to, see CON- STITUTIONAL LAW, 199. Requiring license for privilege of fishing for profit, see CONSTITUTIONAL LAW, 288; LICENSE, 88. Due process in regulations, see CONSTITU- TIONAL LAW, 527. Protection of fish in exercise of police power, see CONSTITUTIONAL LAW, 656-658. Legislative power to create public right of fishing in stream, see EMINENT DO- MAIN, 234, 235. 2. No constitutional privilege or im- munity or property rights of the citizen are interfered with by prohibiting fishing in the public waters of the state. State v. Tice, 41:469, 125 Pac. 168, 69 Wash. 403. 3. Fishery in the tidal waters of a state is subject to public regulation, and can be exercised only at such times and by such methods as the legislature may see fit to permit. Daniels v. Homer, 3: 997, 51 S. E. 992, 139 N. C. 219. Pollution of waters. Indictment for pollution of waters, see IN- DICTMENT, INFORMATION AND COM- PLAINT, 62. See also COMMISSIONERS, 1; CONSTITUTION- AL LAW, 96, 584; WATERS, 8. 1304 FISHERIES, II., III. 4. The legislature may forbid the cast- ing of sawdust into streams, for the preser- vation of the edible fish. Com. v. Sisson, 1:752, 75 N. E. 619, 189 Mass. 247. (Annotated) 5. The unrestrained exercise for thirty years of the right to cast sawdust into a stream gives no prescriptive rights which will interfere with the public right to regu- latfe such use for the preservation of food fishes. Com. v. Sisson, i: 752, 75 N. E. 619, 189 Mass. 247. 6. Under a statute making it unlawful to throw "sawdust or any other matter del- eterious to the propagation of fish," into a stream, the deleterious matter referred to is not limited to such as possesses the same hurtful qualities as sawdust, but includes sulphur or mine water drained from a mine. State v. Southern Coal & Transp. Co. 43: 401, 76 S. E. 970, 71 W. Va. 470. 7. The fact that a statute requires the drainage of mines does not authorize the mine owner to dispose of the copperas and sulphur water therein by emptying it into a stream in violation of another statute which prohibits the emptying into streams of matter deleterious to fish. State v. Southern Coal & Transp. Co. 43: 401, 76 S. E. 970, 71 W. Va. 470. Mode of fishing. 8. A municipal corporation has no power to forbid the taking of fish with a net from tide water within its limits within a certain distance from wharves, for the purpose of making them more advantageous places from which to fish. Ex parte Bailey, 31: 534, 101 Pac. 441, 155 Cal. 472. II. Private rights. (See also same heading in Digest L.R.A. 1-10.) Validity of grant of exclusive right of fish- ery to shore owner, see CONSTITUTIONAL LAW, 185. 9. The owner of the bed of a natural fresh-water, nontidal stream has the ex- clusive right of fishery therein. Hartman v. Tresise, 4: 872, 84 Pac. 685, 36 Colo. 14(5. 10. The owner of land covered by water has the exclusive right to hunt and fish over it. Schulte v. Warren, 13: 745, 75 N. E. 783, 218 III. 108. 11. The mere fact that a right of naviga- tion arises in the public by the raising of water over private property by the improve- ment of an adjoining river does not carry with it the right to hunt and fish upon the property. Schulte v. Warren, 13: 745, 75 N. E. 783, 218 111. 108. 12. That principle of the common law of England which vested the title to ponds, and the right of fishing and fowling there- on, in the riparian owner, was never hi force in Maine so far as ponds of more than 10 acres in extent were concerned, but in that state the right to free fishing and fowling on such ponds has always l>elonged to the public, or if it has not always ex- Digest 1-52 L.R.A.(N.S.) isted, it has become vested in the public by the acquiescence of the riparian owners. Conant v. Jordan, 31: 434, 77 Atl. 938, 107 Me. 227. (Annotated) 13. A shore owner cannot acquire a sev- eral fishery in tide water as against the public, by a custom among fishermen that the shore owner who shall clear out a fish- ing place in front of his property shall have the exclusive right of fishing tlieiv. Hume v. Rogue River Packing Co. 31: 396, 92 Pac. 1065, 96 Pac. 865, 51 Or. 237. 14. The state does not, by reserving by statute the right to regulate the building of wharves or the taking of shellfish when granting lands covered by tide water to an individual, convey to him the exclusive right to take floating fish over such land, although his deed contains a warranty clause. Hume v. Rogue River Packing Co. 31: 396, 92 Pac. 1065, 96 Pac. 865, 51 Or. 237. 15. Where the owner of land bordering on waters which are navigable in fact has no title to the soil under them, the right of fishery as well as that of navigation is in the public, and not in him. Hume v. Rogue River Packing Co. 31: 396, 92 Pae. 1065, 96 Pac. 865, 51 Or. 237. (Annotated) Prescriptive rights. Prescriptive right to cast sawdust into stream, see supra, 5. 16. Where the state has never author- ized the grant of an exclusive right of fish- ery in tide waters, no prescriptive right thereto can be acquired, since the presump- tion of grant which is the basis thereof cannot exist. Hume v. Rogue River Pack- ing Co. 31: 396, 92 Pac. 1065, 96 Pac. 865, 51 Or. 237. 17. The exercise of a fishing right by means of nets, not affixed to the soil in front of his property, by the owner of land bordering on tide water, is not adverse to the public and the state, since he is merely exercising a right to which he is entitled as one of the public, and it is immaterial that he warns intending fishermen away. Hume v. Rogue River Packing Co. 31: 396, 92 Pac. 1065, 96 Pac. 865, 51 Or. 237. III. Shell fish, oysters, and clams. (See also same heading in Digest L.R.A. 1-70.) Equal protection and privileges as to, see CONSTITUTIONAL LAW, 287. Right to enjoin sailing over oyster beds, see INJUNCTION, 218. Construction of statute giving right to plant oysters in public waters, see WA- TERS, 88. Interference with, by improvement of navi- gation, see WATERS, 100. Rights and duties of person planting oys- ters, see WATERS, 137. 18. One who, under an oyster law pro- viding for the granting of rights to plant oysters subject to those already existing, secures from the state a lease of land to be planted with oysters aljoining property FITNESS FIXTURES, II. 1305 which has been devoted by a corporation, under its charter authority, to shipbuilding purposes, takes subject to the right of the corporation to do the dredging necessary to render its property available for its charter purposes. Newport News Shipbuilding & Dry Dock Co. v. Jones, 6: 247, 54 S. E. 314, 105 Va. 503. (Annotated) Regulation and protection. Due process of law as to, see CONSTITUTION- AL LAW, 527. 19. A provision of a statute making it a misdemeanor to have in possession oysters of less than a certain size is not inapplica- ble to oysters taken from private beds be- cause a pi'ior provision relating to culling requires a return of unmerchantable oysters to their natural beds or bar, where it is com- mon knowledge that almost the entire catch of oysters in the market is taken from natural beds, and almost all private lots which have been located have been planted for private use. Windsor v. State, 12: 869, 64 Atl. 288, 103 Md. 611. 20. A statute relating to the culling of oysters, which requires a return of unmer- chantable ones "to the ground or rocks whence taken," cannot, in using those words, be presumed to refer only to beds belonging to the public, on the theory that the state would have no interest in returning unmer- chantable oysters to private beds, where the oysters may be inspected under circum- stances such that it would be impossible to determine where they were taken. Windsor v. State, 12: 869, 64 Atl. 288, 103 Md. 611. FITNESS. Presumption as to father's unfitness for custody of child, see EVIDENCE, 123. Warranty of, see SALE, II. c. FIXED LIABILITY. What constitutes fixed liability against bankrupt, see BANKRUPTCY, " 119-122. FIXTURES. I. General rules. II. What are, generally, 113. III. Between vendor and purcJiaser, 14. IV. Between landlord and tenant, 15 18. V. Effect of mortgage, 1926. VI. Remedy. Right of third person to remove as breach of covenant in deed of real property, see COVENANTS AND CONDITIONS, 36, 55. Injunction against removal of, see INJUNC- TION, 205-207. Mechanics' lien for, see MECHANICS' LIENS, 46. Digest 1-52 L.R.A.(N,S.) To whom cottages placed on posts should be listed for taxation, see TAXES, 168. Question for jury as to, see TRIAL, 260, 261. I. General miles. (See same heading in Digest L.R.A. 1-10.) II. What are, generally. (See also same heading in Digest L.R.A. 1-10.) What constitutes fixtures within meaning of bulk sales law, see FRAUDULENT CON- VEYANCES, 19. 1. Building material, finishing lumber, doors, and transoms belonging to the owner of an unfinished building, and left therein for the purpose of completing it, pass with a deed of the realty, although not yet fas- tened thereto. Rahm v. Domayer, 15: 727, 114 N. W. 546, 137 Iowa, 18. (Annotated) 2. Brick manufacturing machinery, sold under a conditional-sale contract which is duly recorded, and which reserves title in the vendor until the purchase price is fully paid, and provides that the title there- to shall not be affected by the delivery and erection thereof, and that, in default of payment, the vendor shall have the right to enter and take possession, does not be- come a part of the real estate by being placed in a building, and annexed in such a manner as to be removable without in- juring the support of such building, the foundation, walls, or other part of the real estate to which it is attached, so as to pass to a subsequent purchaser of the real estate. Lawton Pressed Brick & Tile Co. v. Ross-Kellar Triple Pressure Brick Mach. Co. 49: 395, 124 Pac. 43, 33 Okla. 59. ( Annotated ) 3. One furnishing appliances to a con- tractor to become a part of an electric light plant which he is constructing for a munici- pality, with knowledge of the use to which they are to be put, is bound to give the mu- nicipality actual notice of his intention to reserve the title until the purchase price is paid in order to enforce it against the mu- nicipality after the appliance has been at- tached to the realty, and the question of what has been paid the contractor by the municipality is immaterial. Allis-Chalmers Co. v. Atlantic, 52: 561, 144 N. W. 346, 164 Iowa, 8. (Annotated) Shelving, show cases, etc. 4. Shelving nailed and fastened to the walls of a store house, and large counters, tables, and a meat box placed therein, to carry out the purpose for which the build- ing was erected, and designed to be per- manently used in connection with it, become a part of the realty, although they might be removed without being injured and with- out injury to the building. Brigham v. Overstreet, 10: 452, 57 S. E. 484, 128 Ga. 447. 5. A sale for partition will pass title to show cases, racks, and hangers attached by 1300 FIXTURES, III., IV. the owner to the building to aid in the prosecution of his business, with the in- tention that they shall become permanently a part of the building. Owings v. Estes, 43: 675, 100 N. E. 205, 256 111. 553. ( Annotated ) Buildings. Necessity of pleading estoppel of true owner to assert claim to house attached to real estate, see PLEADING, 478. See also infra, 18. 6. A sugar-cane mill erected upon a farm by the owner, by placing four large lightwood posts firmly in the ground, and fastening the mill to them by spikes driven through holes in the mill and into the posts; and a sugar-cane boiler placed in a brick furnace which is on the ground, but the chimney of which runs up through and above the roof of the sugar-mill house, become a part of the realty. Brigham v. Overstreet, 10: 452, 57 S. E. 484, 128 Ga. 447. 7. The presumption is that a frame fac- tory building placed upon the land of an- other, with the landowner's license, with no agreement respecting its subsequent ownership, remains the property of the party annexing it; and it is removable by him. King v. Morris (N. J. Err. & App.) 14: 439, 68 Atl. 162, 74 N. J. L. 810. (Annotated) 8. No title, as against the true owner, can be conferred by the owner of real es- tate upon a bona fide purchaser thereof to a building which the owner of the realty had wrongfully seized, and moved upon and attached to his property. Eisenhauer v. Quinn, 14: 435, 93 Pac. 38, 36 Mont. 368. (Annotated) Machinery. Effect of mortgage, see infra, 24-26. Machinery attached to property under con- ditional sale, see SALE, 46, 156-158. See also supra, 6. 9. An old, partially broken sugar-cane boiler placed under a building in a large horse stable, and supplied with water from a well, and used as a watering place for farm stock, becomes a part of the realty. Brigham v. Overstreet, 10: 452, 57 S. E. 484, 128 Ga. 447. 10. The attachment to the realty of an engine merely by bolts and the necessary fittings is not such that its character as personalty cannot be protected by agree- ment. Davis v. Bliss, 10: 458, 79 N. E. 851, 187 N. Y. 77. 11. A gasolene engine placed on a stone foundation in a permanent building on a farm for operating machinery and grinding feed for stock is part of the realty, and will pass under a deed thereof, rather than un- der a conveyance of live stock, plows, and all other machinery and tools on the prem- ises, in the absence of any agreement that it shall be personalty. State Security Bank v. Hoskins, 8: 376, 106 N. W. 764, 130 Iowa, 339. (Annotated) 12. An agreement between landlord and tenant permitting the latter to remove ma- chinery from the building at the termina- Digest 1-52 L.R.A.(N.S.) tion of the lease does not prevent its be- coming part of tae building so as to be subject to a mechanics' lien. Horn v Clark Hardware Co. 45: 100, 131 Pac. 405, 54 Colo. 522. (Annotated) 13. Machinery placed in a mill and at- tached to the structure, or to the ground therein, by a tenant, with intent that it should become a part of a plant intended as a whole to effect a certain result, be- comes a part of the leasehold so as to be subject to a mechanics' lien for the im- provement. Horn v. Clark Hardware Co. 45: 100, 131 Pac. 405, 54 Colo. 522. ///. Between vendor and purchaser. (See also same heading in Digest L.R.A. 1-10.) See also supra, 2. 14. Fixtures so attached to the realty as to become a part of it pass to a grantee of the land, unless excepted from the opera- tion of the deed. Brigham v. Overstreet, 10 : 452, 57 S. E. 484, 128 Ga. 447. IF. Between landlord and tenant. (See also same heading in Digest L.R.A. 1-10.) Tenant's rights as to fixtures, see LANDLORD AND TENANT, III. b. Parol evidence that building erected by ten- ant was to belong to him, see EVIDENCE, 939. Right of lessee in oil and gas lease to re- move, see MINES, 55. 15. Fixtures consisting of electric devices, annexed to a rented structure by a tenant for his personal comfort and convenience, without any view of their becoming perma- nently attached thereto as a part of the real- ty, do not lose their identity as chattels; and a possessory warrant will lie to recover them from the landlord, who wrongfully with- holds possession of them from the tenant. Raymond v. Strickland, 3: 69, 52 S. E. 619. 124 Ga. 504. 16. A front of plate glass and marble placed on a store by a tenant is not a trade fixture which can be removed at the end of the term, although it was attached by screws so that it could be removed with- out weakening the building, if it cannot be done without opening the store to in- truders and the elements. Alden v. May- field, 41: 1022, 127 Pac. 44, 163 Cal. 793. ( Annotated) 17. A frame building covering 30 by 50 feet of space, erected by a tenant on the leased property, which is placed on a cement foundation and is connected by a shed with the building on the lot when the lease was taken, and which is used as a garage and repair shop, may be removed at the end of the term as a trade fixture if it can be done without injury to the piemises. Ray v. FIXTURES, V. FLAG. 1307 Young. 45: 947, 142 1ST. W. 393, 160 Iowa, 613. 18. A brick building erected on leased premises, to be tbe property of the tenant, with the privilege of removal, upon certain conditions, before the expiration of the lease, is personal property during the life of the lease, and becomes real estate upon the ex- piration or surrender thereof without re- moval. Hughes v. Kershow, 15: 723, 93 Pac. 1116, 42 Colo. 210. V. Effect of mortgage. (See also same heading in Digest L.R.A. 1-10.) Question for jury as to, see TRIAL, 260. 19. A gas stove and windsw shades run- ning on rollers, attached by the owner to his dwelling house designed for a single family, are not fixtures which will pass with a mortgage of the realtyt Hook v. Bolton, 17: 699, 85 N. E. 175, 199 Mass. 244. (Annotated) 20. Storm doors and windows made to fit a house and fastened in place by screws are fixtures which will pass with a mort- gage and subsequent deed to the mortgagee, although during certain periods of the year they are removed from their places and stored on the premises. Roderick v. San- born, 30: 1189, 76 Atl. 263, 106 Me. 159. (Annotated) 21. Persons undertaking to erect a stand- pipe as part of a waterworks system, which is to be attached to the foundation by bolts embedded in it, cannot, by contract to which the mortgagee is not a party, reserve a right to remove it in case of failure to pay the purchase price, as against rights under a mortgage covering after-acquired property of the water company, and which embraces its entire working plant, including fran- chises. Tippett & Wood v. Barbara, 37: 119, 180 Fed. 76, 103 C. C. A. 430. 22. "Dog grates" of considerable weight but not physically attached to the structure of the house in any way, substituted by the mortgagor, subsequently to the mortgage, for ordinary fixed grates, are, under the circumstances, to be considered as intended to become part of the freehold, and are therefore fixtures which pass to the mort- gagee. Monti v. Barnes, 1 B. R. C. 966, [1901] 1 Q. B. 205. Also Reported in 70 L. J. Q. B. N. S. 225, 47 Week. Rep. 147, 83 L. T. N. S. 619, 17 Times L. R. 88. (Annotated) 23. In the absence of express stipula- tion to the contrary a mortgagor in posses- sion has the right to permit trade fixtures to be put up and removed from the mort- gaged premises providing they are removed before the mortgagee takes possession, but this right of removal ceases when posses- sion is taken by the mortgagee. Ellis v. Glover & Hobson, Ltd., 1 B. R. C. 692, [1908] 1 K. B. 388. Also Reported in 77 L. J. K. B. N. S. 251, 98 L. T. N. S. 110. Digest 1-52 L.R.A.(N.S.) Machinery. 24. The agreement between a seller and purchaser of machinery to be affixed to the realty, that the title shall remain in the seller until the price is paid, is binding on the existing mortgagee of the realty, al- though the contract is not recorded so as to be effective against subsequent purchasers without notice. Blanchard v. Eureka Plan- ing Mill Co. 37: 133, 113 Pac. 55, 58 Or. 37. 25. Machines supplied under a hire-pur- chase agreement for the equipment of a factory and which had been affixed to con- crete beds in the floor of the factory by bolts and nuts, though removable without injury to the building cannot be, upon a default in payment, reclaimed by the vendor from a mortgagee of the realty in posses- sion, especially where the owner knew that such machines were to become a part of the factory, and that the factory was mort- gaged. Reynolds v. Ashby & Son, 1 B. R. C. 653, [1904] A. C. 466. Also Reported in 73 L. J. K. B. N. S. 946, 20 Times L. R. 766, 53 Week. Rep. 129, 91 L. T. N. S. 607. (Annotated) 26. Trade machinery installed under a hire and purchase agreement which pro- vided that it should not become the proper- ty of the hirer until all instalments had been paid, and should be removable by the owner on the failure of the hirer to pay any instalment, nevertheless passes to the mortgagee of the realty as a part of the freehold; and cannot be removed upon a default in payment of an instalment, al- though the mortgagor is still in possession, where the circumstances are such that no inference of a consent on the part of the mortgagee to the unfixing and removal of the trade fixtures may be drawn. Ellis v. Glover & Hobson, Ltd. 1 B. R. C. 692, [1908] 1 K. B. 388. Also Reported in 77 L. J. K. B. N. S. 251, 98 L. T. N. S. 110. (Annotated) VI. Remedy. (See same heading in Digest L.R.A. 1-10.) *-- FLAG. Carrying red flag in parade, see BREACH OF PEACE, 2 ; EVIDENCE. 1970. Forbidding use of, for advertising, see CON- STITUTIONAL LAW, 251, 252, 523, 524, 675. Police power as to use of, see CONSTITUTION- AL LAW, 675. Relative rights of state and Congress as to protection of, see STATE, 1. 1. That a representation of the United States flag forms part of the trademark of a brewing company, and is, as such, a prop- erty right, does not justify its use on labels attached to bottles containing beer and used to advertise the company's product, in vio- lation of a statute enacted in the exercise of the police power of the state, and forbid- 1308 FLAGMAN FLO WAGE. ding the use of the flag for advertising pur- poses. Halter v. State, 7: 1079, 105 N. W. 298, 74 Neb. 757. FLAGMAN. Negligence of flagman at railroad crossing, see MASTER AND SERVANT, 31, 32, 1003. Duty as to, at crossing, see RAILROADS, II. d, 3, c. Reliance on flagman at railroad crossing, see RAILROADS, 270-273. FLAG STATION. Duty to stop train at, see CARRIERS, 37a, 37b, 449-452; DAMAGES, 96, 261; PLEADING, 601, 611, 631. Carrier's duty as to safety of, see CARRIERS, 606. Contributory negligence of passenger at, see CARRIERS, 301, 611, 612. FLATS. Erection of flat building as violation of cove- nant, see COVENANTS AND CONDITIONS, 74, 82. FLAX. Liability of carrier for loss of, through leakage, see CARRIERS, 795. FLIES. Requiring fruits and candies exposed for sale to be protected from, see MUNICI- PAL CORPORATIONS, 193. FLIGHT. Presumption of guilt from, see EVIDENCE, 302. Evidence of flight of accused, see EVIDENCE, 1836, 1837. FLIRTING. As ground for divorce, see DIVORCE AND SEPARATION, 57. FLOATAGE. Capacity of stream for, as test of naviga- bility, see WATERS, 10-20. Rights in stream for, see WATERS, I. c, 2. Digest 1-52 L.R.A.(N.S.) FLOOD. As act of God, see ACT OF GOD, 3-6. Review of discretionary ruling in action for injury by flooding, see APPEAL AND* ERROR, 607. Destruction by, of property in hands of carriers, see CARRIERS, 792, 814, 828: PROXIMATE CAUSE, 69, 70. Liability of one agreeing to maintain boom to protect riparian property from in- jury caused by unprecedented flood, see CONTRACTS, 384. As ground for nonperformance of contract, see CONTRACTS, 635. Damages for, see DAMAGES, 11, 492-496. Opinion as to cost of repairing damage by, see EVIDENCE, 1130. Injury to railroad employee by, see MASTER AND SERVANT, 393. Liability of municipality for causing, see MUNICIPAL CORPORATIONS, 445-448. As surface water, see RAILROADS, 297. Question for jury as to negligence causing, see TRIAL, 594. Liability for causing, generally, see WA- TERS, II. d. FLOOD WATERS. Diversion of, see ESTOPPEL, 26; WATERS. 166. Obstruction of, see WATERS, II, d. Appropriation of, see WATERS, 233, 234. Duty of builder of bridge to provide for, see TRIAL, 1015. FLOOR. Injury to servant by projections, see MAS- TER AND SERVANT, 273, 641, 721. FLOUR. Illegal attempt to control price of, sec MO- NOPOLY AND COMBINATIONS, 40. -*-- FLOUR MILLS. Exercise of right of eminent domain by, see EMINENT DOMAIN, 22, 67-70. FLOWAGE. Construction of deed conveying rights of, se^ DEEDS, 45. Question for jury as to reasonableness of use of right of, see TRIAL, 194. FLUE FOOD. FLUE. In party wall, see PARTY WALL, 6. FLUME. Drowning of child in, see MUNICIPAL COR- PORATIONS, 343. Imputing to municipality notice of danger- ous character of opening in, see NOTICE, 14. FLYING SWITCH. Injury resulting from, see MASTEB AND SERVANT, 242; RAILROAD, 66. F. O. B. Meaning of term, see CONTRACTS, 382. Admissibility of evidence of custom 10 com- pel consignee f. o. b. to pay freight, see EVIDENCE, 1522. Allegations as to sale "f. o. b. cars," see PLEADING, 257. Rights of parties on sale f. o. b. see SALE, 29, 139, 140. FOG. Collision during, see COLLISION, 1-5. Effect of failure to give fog signals, see NEG- LIGENCE, 259. FOLLOWING TRUST PROPERTY. See BANKS, 201-227; TRUSTS, V. FOOD. Ordinance providing for inspection of, see COMMERCE, 18-20. Regulations as to adulteration of food and drugs as interference with commerce, see COMMERCE, 105-110. Regulating weight of bread, see CONSTITU- TIONAL LAW, 247, 500; MUNICIPAL CORPORATIONS, 190-192. Constitutionality of statute as to labeling, of, see CONSTITUTIONAL LAW, 248. Monopoly in food product, see CONSTITU- TIONAL LAW, 344. Requiring marking of weight on packages of butter, see CONSTITUTIONAL LAW, 501. Requiring marking of fruit packed for ship- ment, see CONSTITUTIONAL LAW, 665. Police power as to, see CONSTITUTIONAL LAW, 729-738. Injunction against pure food commissioner, see INJUNCTION, 322-324; PROHIBI- TION, 20. Digest 1-52 L.R.A.(N.S.) Injunction to restrain enforcement oi stat- ute regulating shipment of cream, see INJUNCTION, 354. Charging sale of rotten goods, see LIBEL AND SLANDER, 51. Mechanics' lien for food furnished em- ployees, see MECHANICS' LIEN, 32, 41. Illegal combination to control, see MONOPO- LY AND COMBINATIONS, 39-44. Requiring fruit and candies exposed for sale to be protected from flies and dust, see MUNICIPAL CORPORATIONS, 193. Partial invalidity of statute as to sale of meat, ses STATUTES, 63. Partial invalidity of pure food act, see STATUTES, 67. Title of pure food act, see STATUTES, 118. Sale of meat and ice on Sunday as work of necessity, see SUNDAY, 19. Imposing inspection fee on meat imported from other state, see TAXES, 20. 1. In view of the evident purpose to protect the retail purchaser or consumer, the provisions of 11 of the Illinois pure food act, that all vinegar made wholly or in part from distilled liquor shall be brand- ed "distilled vinegar," and shall not be colored in imitation of cider vinegar, and that any vinegar made or manufactured contrary to the provisions of this section shall be deemed to be adulterated, are to be considered as prohibiting the compounding of white distilled vinegar and sugar, or molasses, vinegar, in such a manner as to give the mixture a color closely resembling that of cider vinegar, even though the mix- ture is properly labeled, and notwithstand- ing that 9 of the same act provides that an article of food which does not contain any added poisonous or deleterious in- gredients shall not be deemed to be adul- terated or misbranded, where, if a com- pound, imitation, or blend, such fact is plainly stated on the package in which it is offered for sale. People v. William Hen- ning Co. 49: 1206, 103 N. E. 530, 260 111. 554, 2. The word "package," or its equiva- lent expression, as used by Congress in the food and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915), 7 and 8, in denning what shall constitute adultera- tion and what misbranding within the meaning of the act, refers to the immediate container of the article which is intended for consumption by the public, and not simply to the outside wrapping or box con- taining the package intended to be pur- chased by the consumer. McDermott v. State, 47: 984, 33 Sup. Ct. Rep. 431, 228 U. S. 115, 54 L. ed. 754. 3. That a manufacturer whose prin- cipal trade is at wholesale maintains a re- tail store at his factory, at which goods are sold to consumers, does not make him a retailer within the meaning of a statute providing that a provision requiring the weight or measure of package goods to be stamped on the package shall not apply to packages put up by the retailer. Freadrich 1310 FOOD. v. State, 34: 650, 131 N. W. 618, 89 Neb. 343. 4. In determining whether or not an article of food is a mixture or compound within the provisions of a statute requir- ing labels to show that fact, the popular or common understanding of the name un- der which it is sold, and not its trade or commercial meaning, is to be considered. Armour & Co. v. Bird, 25: 616, 123 N. W. 580, 159 Mich. 1. 5. A label-for a food compounded of meat and cereal is sufficient which states that it is sausage and cereal, without stating the addition of water, although water is also an ingredient of the mixture, under a statute requiring labels on foods which are mixtures or compounds to show that fact. Armour & Co. v. Bird, 25: 616, 123 N. W. 580, 159 Mich. 1. 6. The packages of sausages composed of meat and cereals sold to consumers from a large package must be labeled so as to show the fact of the combination, under a statute requiring mixtures and compounds recognized as ordinary articles of food to be labeled in a manner plainly and correctly, to show that it is a mixture or compound. Armour & Co. v. Bird, 25:616, 123 N. W. 580, 159 Mich. 1. Milk. Limiting time for argument of counsel to jury in prosecution for sale of watered milk, see APPEAL AND ERKOB, 640. Equal protection and privileges of dealers in, see CONSTITUTIONAL LAW, 258, 259. Due process in regulations as to, see CON- STITUTIONAL LAW, 449, 612, 613. Police power as to, see CONSTITUTIONAL LAW, 731-738. Regulating size and character of milk jars, see CONSTITUTIONAL LAW, 258, 449, 738. Ordinance authorizing summary destruc- tion of milk, see CONSTITUTIONAL LAW, 612, 613. Court's power to review ordinance as to, see COURTS, 163, 164. Adulteration of, by servant, see DAMAGES, 306; MASTEB AND SERVANT, 938. License to sell, see LICENSE, 21, 33, 34, 40, 48, 68, 69, 89, 126, 127. Right of holder of permit to sell milk to mandamus to board of health revoking license, see MANDAMUS, 56. Illegal combinations by dealers in milk and cream, see MONOPOLY AND COMBINA- TIONS, 39. Power of municipality as to, see MUNICIPAL CORPORATIONS, 67, 84, 162, 194-197. Requiring registration of milk dealers, see MUNICIPAL CORPORATIONS, 67, 84, 194. Destruction of diseased dairy cows, see MU- NICIPAL CORPORATIONS, 162. Ordinance as to inspection of dairies and cows, see MUNICIPAL CORPORATIONS, 162. Prohibitory sale of milk containing less than 3 per cent of butter fat, see MU- NICIPAL CORPORATIONS, 195. Prohibitory sale of milk containing less than ^y per cent of ash, see MUNICIPAL CORPORATIONS, 196. Digest 1-52 L.R.A.(N.S.) Question for jury as to whether milk was watered or skimmed, see TRIAL, 669. 7. Where a pure food statute provides that in testing milk or cream for com- mercial purposes the same shall be done in accordance with the rules and regulations prescribed by the pure food commission, a criminal prosecution cannot be sustained a> inst one for violation of a rule pre- scribed by the pure food commissioner in accordance with said statute, that payment for cream purchased for commercial pur- poses should be suspended until the day fol- lowing the testing or the time of the next delivery. State v. Elam, 39: 686, 130 X. W. 59, 91 Neb. 460. (Annotated) 8. Statutory authority to examine into nuisances, sources of filth, and causes of sickness, and remove or prevent the same, and make regulations for the public health relative thereto, and relative to articles which are capable of containing or convey- ing infection or contagion, or of creating sickness, which are brought into or conveyed from the town, does not empower a board of health to require the selling of milk only in tightly closed bottles or receptacles, to the exclusion of sales in small quantities from a wholesome receptacle kept under hygienic conditions. Com. v. Drew, 33: 401, 94 N. E. 682, 208 Mass. 493. (Annotated) 9. A regulation of a local board of health requiring milk to be handled only in transparent glass bottles or other approved receptacles of similar character, thorough- ly clean and sterile, and filled and sealed in a milk house or creamery of approved sanitary condition, is within the powers conferred by statutes empowering such boards to inaugurate and execute such sani- tary regulations as they may consider ex- pedient to prevent the outbreak of cholera, smallpox, yellow fever, scarlet fever, diph- theria, and other epidemic and communica- ble diseases, and to examine into all nui- sances, sources of filth, or causes of sick- ness that, in their opinion, may be injuri- ous to the public health. Board of Health v. Kollman, 49: 354, 160 S. W. 1052, 156 Ky. 351. 10. Designating only one officer to deter- mine whether milk reaches the required standard does not deprive the dealer of any consticutional right. St. Louis v. Liessing, i: 918, 89 S. W. 611, 190 Mo. 464. 11. One having in possession for use glass jars for the sale of milk of less capac- ity than is indicated upon them cannot es- cape the penalty imposed by ordinance therefor, by showing that he had not in- formed himself as to their capacity. Chi- cago v. Bowman Dairy Co. 17: 684, 84 N. Et 913, 234 111. 294. Oleomargarin. Police power as to, see CONSTITUTIONAL LAW, 729. Criminal liability for furnishing oleomar- garine in place of butter, see CRIMINAL LAW, 18. Right to a?k witness how sample of oleo- margarin compares in color with but- ter, see EVIDENCE, 2045. FOOD SHOW FOOT BALL. 1311 Sufficiency of evidence to show that oleo- margarin was made in imitation of butter, see EVIDENCE, 2418, 2419. Construction of statute forbidding sale of oleomargarin in imitation of yellow butter, see STATUTES, 237, 250. 12. A statute prohibiting the manufac- ture or sale of oleomargarin "which shall be in imitation of butter of any shade or tint of yellow, unless such oleomargarin shall be made and kept free from all color- ation or ingredients causing it to look like butter of any shade or tint of yellow," is violated by a sale of oleomargarin purpose- ly made of any shade or tint of yellow by a judicious selection and combination of fat, oil, and other necessary ingredients, though no artificial coloring matter is used. State v. Hanson, 40: 865, 136 N. W. 412, 118 Minn. 8,5. 13. A waiter in charge of a lunch coun- ter who makes requisition for supplies needed, and fills the orders of patrons from materials received, furnishes such material to them within the meaning of a statute providing for the punishment of one who furnishes oleomargarin instead of butter, State v. Welch, 32: 746, 129 N. W. 656, 145 Wis. 86. Liability tov injury by unwholesome food. Damages for personal injuries resulting from eating of unfit food, see DAM- AGES, 199. Measure of damages for serving unfit food to guests, see DAMAGES, 356, 407. Sufficiency of indictment for keeping un- wholesome meat for sale, see INDICT- MENT, ETC., 26. Master's duty to inspect animals slaugh- tered for, see MASTER AND SERVANT, 446. Sufficiency of declaration against manufac- turer of unwholesome canned meats, see PLEADING, 317. Allegations of negligence iu sale, see PLEAD- ING, 317. 14. A victualer cannot be held liable for injury caused by consumption of all un- sound fowl purchased from him for food, on the theory that he knew of its unfitness, in the absence of any allegation that he represented that it was fit and that the pur- chaser relied on such representation. Far- rell v. Manhattan Market Co. 15: 884, 84 N. E. 481, 198 Mass. 271. (Annotated) 15. A victualer is not liable for injury to a customer through the consumption of un- sound food sold by him, but selected by the customer, merely because he was negligent in not discovering its unfitness. Farrell v. Manhattan Market Co. 15: 884, 84 N. E. 481, 198 Mass. 271. 16. To hold a merchant liable for injury through consumption of an unsound fowl purchased from him for food, on the theory that there was an implied warranty of fit- ness, the purchaser must show that reliance was placed on his skill and judgment in se- lecting it. Farrell v. Manhattan Market Co. 15: 884, 84 N. E. 481, 198 Mass. 271. (Annotated) Digest 1-52 L.R.A.(N.S.) 17. An implied warranty of food prod- ucts dispensed in original packages exists in the absence of express warranty, in favor of anyone injured by reason of their use in the legitimate channels of trade. Mazetti v. Armour & Co. 48: 213, 135 Pac. 633, 75 Wash. 622. 18. A manufacturer of canned goods is under a duty to him who, in the ordinary course of trade, becomes the ultimate con- sumer, to exercise care that the goods which he puts into cans and sells to retail dealers, to the end that such dealers may sell the same to customers as food, are not tainted with poison, irrespective of the presence or absence of contractual obligations arising out of the dealings between manufacturer and dealer and between retailer and con- sumer. Tomlinson v. Armour & Co. (N. J. Err. & App.) 19: 923, 70 Atl. 314, 75 N. J. L. 748. (Annotated) 19. The keeper of a restaurant nu,y re- cover damages from the packer of food, owing to the unwholesome condition of which when served to customers he is in- jured in business and reputation, although he did not purchase the food directly from the packer. Mazetti v. Armour & Co. 48: 213, 135 Pac. 633, 75 Wash. 622. (Annotated) 20. The keeper of a public place where food is served is bound to know that the articles sold are fresh and fit for human consumption, and is liable in damages for injury due to their vitiated and deleteri- ous character. Doyle v. Fuerst & Kraemer, 40: 480, 56 So. 906, 129 La. 838. (Annotated) 21. A railroad company operating its own dining cars is not liable for injury to a patron by partaking of canned food served in regular course upon the car, where the food was purchased of a reputable dealer bore a well-known brand, was of the high- est grade, and was guaranteed under the pure food and drug act, while it was pre- pared for service with due care by an ex- perienced chef, and there was nothing to indicate that it was not fit for food. Bige- low v. Maine C. R. Co. 43: 627, 85 Atl. 396, 110 Me. 105. (Annotated) FOOD SHOW. Refusal to serve negro at, see CIVIL RIGHTS, 1. FOOT. Damages for loss of, see DAMAGES, 431, 432. FOOT BALL. Rule of school board as to, see SCHOOLS, 21. 1312 FOOT PATH FORCIBLE ENTRY AND DETAINER. FOOT PATH. Prescriptive right to use, see EASEMENTS, 19. Duty of master to keep safe, see MASTER AND SEBVANT, 330. FOOT PRINTS. Comparing shoes of accused with, see CRIM- INAL LAW, 107, 131; EVIDENCE, 885. FORBEARANCE. To enforce claim as consideration for prom ise, see CONTRACTS, 59, CO, 98. FORCE. In entering or detaining property, see FORCI- BLE ENTRY AND DETAINER. Sufficiency of force to constitute robbery, see ROBBERY, 2, 4, 5. FORCED MARRIAGE. Ratification of, see MARRIAGE, 23. FORCED SALE. As peril wifhin marine policy, see INSUR- ANCE, 792. Of homestead, see PARTITION, 15. FORCIBLE ENTRY AND DETAINER. Assault in attempting to enter on one's own property in possession of wrongdoer, see APPEAL AND ERROR, 1033; ASSAULT AND BATTERY, 39, 40; EVIDENCE, 1666, 1743, 2001. Exclusiveness of remedy afforded by statute, see ELECTION OF REMEDIES, 9. Effect of right of action for, on jurisdiction of equity, see EQUITY, 47. Estoppel to set up title in action for un- lawful detainer, see ESTOPPEL, 66. Right to ask witness in action of, who was in possession of property, see EVIDENCE, 1206. Jurisdiction of justice of the peace in action of, see JUSTICE OF THE PEACE, 3. Liability to, of executor who has sued out execution upon judgment of foreclosure in favor of his intestate, see LEVY AND SEIZURE, 28. Amendment of complaint in action of, see PLEADING, 95. Direction of verdict, sne TRIAL, 732. Digest 1-52 L.R.A.(N.S.) When summons in, is returnable, see WBIT AND PROCESS, 90. 1. The owner in fee of land subject to a life estate which has boon terminated by the death of the life tenant is entitled to recover possession of the entire premises in an action of forcible entry and detainer brought against the life tenant's sublessee, although the latter has planted crops upon a portion of the land and is entitled to re- enter for the purpose of cultivating, har- vesting and removing them. Edghill v. Mankhey, n: 688, 112 N. W. 570, 79 Neb. 347. 2. A house upon land to which its owner has no title but in which he claims and enjoys the right of peaceable posses- sion, which house is occupied by one leasing. from such owner, is a "tenement" within a statute authorizing proceedings to try ques- tions concerning unlawful detention of lands or tenements and providing that, if the same be held unlawfully, restitution be had. Poison v. Parsons, 25: 104, 104 Pac. 330, 23 Okla. 778. 3. In an action of forcible detainer to recover possession of a tenement, service of a notice to quit for failure to pay rent is waived by denial by defendant of the exist- ence of the relation of landlord and tenant. Poison v. Parsons, 25: 104, 104 Pac. 336, 23 Okla. 778. (Annotated) What constitutes. 4. The acts of the owner of a building who invaded the premises during the tem- porary absence of one ia peaceable posses- sion, unlocked the doors, detached and re- moved the articles with which the build- ing was furnished, carried them to and stored them in another building, and then forcibly maintained the possession so gained, constitute a forcible entry. Wil- son v. Campbell, 8: 426, 88 Pac. 548, 75 Kan. 159. 5. One is not guilty of forcible entry upon real property, who, under color of a warrant which is not valid against the one in possession, enters the premises without force, or the display or threat of force, of any kind, and is left in possession by the occupant departing to secure legal advice, although the one in possession of the war- rant states that he has come to put the oc- cupant out and is going to do so. Fults v. Munro, 37:600, 95 N. E. 23, 202 N. Y. 34. 6. The one responsible for the conduct of an officer is guilty of forcible detainer, where he, after securing possession of the property peaceably, but wrongfully, paces back and forth before it, carrying a gun, which he occasionally discharges, and or- ders the person dispossessed, who has re- mained in the vicinity, to keep off the property. Fults v. Munro, 37: 600, 95 N. E. 23, 202 N. Y. 34. Who may maintain action for. 7. An owner entitled to the possession of real property has no right forcibly co turn out a tenant holding over after the FORD FOREIGN RECEIVERS. 1313 expiration of his term, and if he does so the tenant may maintain an action for forci- ble entry and detainer against him. Wil- son v. Campbell, 8: 426, 88 Pac. 548, 75 Kan. 159. (Annotated) 8. The right to recover possession of real estate by an action of forcible entry and detainer is not necessarily limited to cases in which the relation of landlord and tenant exists. Knapp v. Reed, 32: 869, 130 N. W. 430, 88 Neb. 754. 9. If partners have been conducting a general real estate, brokerage, and in- surance business as copartners in leased premises, and one of the partners secures a renewal of the lease in his own name without the consent of the other, he cannot maintain an action of forcible entry and de- tainer to put the other partner out of the premises. Knapp v. Reed, 32: 869, 130 N. W. 430, 88 Neb. 754. 10. Mere occupancy or personal presence of the complainant upon the ground does not of itself constitute such possession as will sustain an action of forcible entry. Schwinn v. Perkins (N. J. Err. & App.) 32: 51, 78 Atl. 19, 79 N. J. L. 515. 11. Where the rightful owner gains pos- session of lands by a forcible entry, he may, as punishment for his violence, be deprived of it by the statutory proceeding in favor of one in actual peaceable posses- sion, although not rightfully entitled there- to. Schwinn v. Perkins (N. J. Err. & App.) 32: 51, 78 Atl. 19, 79 N. J. L. 515. (Annotated) 12. A mere trespasser cannot by the very act of trespass, immediately and with- out excuse, give himself what the law under- stands by "possession" against the person whom he ejects, so as to be entitled to the aid of the law in protecting his possession. Schwinn v. Perkins (N. J. Err. & App.) 32: 51, 78 Atl. 19, 79 N. J. L. 515. FORD. Liability for drowning of traveler at, see HIGHWAYS, 240. Proximate cause of death of person attempt- ing to cross, see PROXIMATE CAUSE, 2. FORECLOSURE. Of mortgage to loan association, see BUILD- ING AND LOAN ASSOCIATIONS, III. d. Of chattel mortgage, see CHATTEL MORT- GAGE, VI. Of land contract, see JUDICIAL SALE, 1. Of mechanics' liens, see MECHANICS' LIENS, VIII. Of mortgage generally, see MORTGAGE, VI. Of vendors' lien, see VENDOR AND PURCHAS- ER, 76-82. Making cestui que trust a party to, see PARTIES, 180. Digest 1-52 L.R.A.(N.S.) FOREIGN BANKRUPTCY. See BANKRUPTCY, VI. FOREIGN BUILDING AND LOAN ASSOCIATION. See BUILDING AND LOAN ASSOCIATIONS, VIII. FOREIGN CORPORATIONS. Foreign loan associations, see BUILDING AND LOAN ASSOCIATIONS, VIII. Foreign insurance company, see INSURANCE, I. b. Service of process on, see WRIT AND PROC- ESS, II. b. In general, see CORPORATIONS, VII. FOREIGNER. Negligence of person unable to understand English, see CARRIERS, 557. FOREIGN EXECUTORS AND ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS, VI. FOREIGN INSURANCE COMPANY. See INSURANCE, I. b. FOREIGN JUDGMENT. As evidence, see EVIDENCE, 770. Effect of, on garnishment proceedings, see GARNISHMENT, 230. In general, see JUDGMENTS, IV. FOREIGN LAWS. Judicial notice of, see EVIDENCE, 3, 4. Presumption as to, see EVIDENCE, 67-69. Proof of, by member of bar of foreign juris- diction, see EVIDENCE, 1135. Necessity for pleading and proving, see PLEADING, 59-63. Construction of, see STATUTES, 207. FOREIGN RECEIVERS. See RECEIVERS, VI. 1314 FOREIGN WILL FORGERY. FOREIGN WILL. XHO1 See WILLS, I. e, 3. FOREMAN. As vice principal or fallow servant, see MASTER AND SERVANT, 831-840, 847, 849-851. FORFEITURE. Of license for sale of liquors, see APPEAL AND ERROB, 80. Of street railway privilege in street, see AP- PEAL AND ERROR, 566; COURTS, 146. Of bail bond, see BAIL AND RECOGNIZANCE, 25-27. Of twenty-trip railroad tickets, see CAB- BIERS, 423. Of charter of social club, see CLUBS, 5. Of insurance policy, see CONFLICT OF LAWS, 46; INSURANCE, III. e, f ; V. b; VI. b. Of property used in connection with disor- derly house, see CONSTITUTIONAL LAW, 51, 749. Of land of corporation, see CONSTITUTIONAL LAW, 569, 570. Of building contract, see CONTRACTS, 401. Of franchise, see COBPORATIONS, VI. ; COURTS, 233, 235; FRANCHISES, 2; GAS, 3; IN- JUNCTION, 382; INSURANCE, I. c; STREET RAILWAYS, 7-10; WATERS, 376. Of stock for nonpayment of assessments, see CORPORATIONS, 239. Of lease of railway property, see CORPORA- TIONS, 275. Of rights in homestead, see HOMESTEAD, III. Of liquor license, see INTOXICATING LIQUORS, II. d. Of lease, see LANDLORD AND TENANT, II. d. Of license generally, see LICENSE, 29-36. Of life estate, see LIFE TENANTS, 3, 4. Of logs, see LOGS AND LOGGING, 4, 6-8. Of mining claim, see MINES, I. b. Of mining lease generally, see MINES, 31. Of oil or. gas lease, see MINES, II. b, 4, b. Of railroad easement, see PARTIES, 19. Of license to use patent, see PATENTS, 9. Of patent for public land, see PUBLIC LANDS, 15. Of property because of nonentry for taxa- tion, see TAXES, 174. Of right to cut or remove timber, see TIM- BER, 6, 8-15. Of land contract, see VENDOR AND PURCHAS- . ER, 5, 11, 27, 49. Of legacy by breach of condition, see WILLS, III. g, 4. Of legacy by contest of will, see WILLS, 286- 293. For breach of condition subsequent, see COVENANTS AND CONDITIONS, 8, 13, 87, 88. For nonpayment of duties, see DUTIES. For default in payment of interest on mort- gage, see LIMITATION OF ACTIONS, 136- 138 Digest 1-52 L.R.A.(N.S.) Enforcement of, in equity, see CLOUD ON TITLE, 2. Who may maintain action to enforce, see PARTIES, 19. Effect of right to claim, in validity of vend- or's contract to repurchase after default by vendee, see CONTRACTS, 78. Effect of provision against forfeiture on statute denying husband who murders wife right to inherit her estate, see DESCENT AND DISTRIBUTION, 9b. ' Seller asserting claim to payment made, on theory of, see SALE, 104. Sufficiency of tender to prevent, see TENDER, 13, 15. As to penalties, see PENALTIES. 1. Equity will not permit the enforce ment of a forfeiture in an inequitable and oppressive manner, nor a perversion there- of to purposes other than those for which the power of forfeiture has been reserved. Wheeling & E. 0. R. Co. v. Triadelphia, 4: 321, 52 S. E. 499, 58 W. Va. 487. 2. Equity will relieve from forfeitures for nonperformance of covenants other than those for the payment of money, arising out of accident, mistake, or surprise, and in the absence of wilful and deliberate re- fusal to perform, when no pecuniary injury has resulted to the covenantee and the wrong done is easily remediable; but such power of relief is discretionary, and will not be exercised unless the delinquent cove- nantor is able and willing immediately to perform the covenant. Wheeling & E. G. R. Co. v. Triadelphia, 4: 321, 52 S. E. 499, 58 W. Va. 487. 3. A forfeiture of a deposit made by a bidder for public work cannot be predicated upon a conference between him and the committee, at which he suggests a mistake in his bid, and asks leave to correct it, and the committee state a desire to change the specifications, where no demand is made upon him to comply with the terms of his bid. Cedar Rapids Lumber Co. v. Fisher, 4: 177, 105 N. W. 595, 129 Iowa, 332. 4. Conviction of the offense of carrying concealed weapons is not necessary to work a forfeiture of them under a statute pre- scribing a punishment for such offense, and providing that all concealed weapons taken from persons violating this statute shall be forfeited to the county. McCona thy v. Deck, 4: 358, 83 Pac. 135, 34 Colo. 461. (Annotated) FORGERY. Of checks, see BANKS, IV. a, 3, b; CHECKS, V.; EVIDENCE, 1621; NOTICE, 35, 30; PRINCIPAL AND AGENT, 79; SUBROGA- TION, 40, 41; TRIAL, 592. Of paper sent for collection, see BANKS, 182-186. Of deed, see BANKS, 109. Of indorsement, see BILLS AND NOTES, 75; CONFLICT OF LAWS, 32, 33; TBOVKB, 18. FORGERY. Of names of comakers on note, see BILLS AND NOTES, 148. Of bill of lading attached to draft, see BILLS OF LADING, 15, 16, 18. Of signature to transfer of stock certifi- ciite, see CONTRACTS, 20. Of corporate stock, see CORPORATIONS, V. d. Of indorsement on paving tax certificates pledged as collateral, see PLEDGE AND COLLATERAL SECURITY, 20. Of telegram, see TELEGRAPHS, II. a, 4. Of will, see WILLS, 289. By altering instrument; effect on civil lia- bility, sec ALTERATION OF INSTRU- MENTS. Presumptions on appeal in prosecution for, see APPEAL AND ERROR, 478. Review of verdict on appeal, see APPEAL AND ERROR, 931. Error in introduction of evidence in prose- cution for, see APPEAL AND ERROR, 1150. Recovery of money paid on forged obliga- tion, see ASSUMPSIT, 44, 45. As ground for disbarment of attorney after pardon, see ATTORNEYS, 29. Release on bail of one charged with, see BAIL AND RECOGNIZANCE, 4. Payment by bank of forged checks, see BANKS, IV. a, 3, b. Effect of indorsement as warranting draw- er's signature, see BILLS AND NOTES, 74. Effect on admission of evidence of manner in which it is obtained, see CRIMINAL LAW, 120. Former jeopardy, see CRIMINAL LAW, 200. Estoppel to set up forgery, see ESTOPPEL, 79, 132, 133, 185, 186, 189, 202. Effect of, on note given in renewal of forged instrument, see ESTOPPEL, 236. Negligent failure of depositor to discover, see ESTOPPEL, 185, 186; PROXIMATE CAUSE, 157, 158. Presumption and burden of proof as to, see EVIDENCE, 583, 586. Documentary evidence in prosecution for, see EVIDENCE, 836, 840. ' Evidence in prosecution for, see EVIDENCE, 1438, 1440, 1471, 1634, 1838, 1901-3905. As to variance between indictment and proof, see EVIDENCE, 2505. As evidence of insanity, see INCOMPETENT PERSONS, 1. Indictment for, see INDICTMENT, ETC., 77, 78. Notice of agent as to, as notice to principal, see NOTICE, 28. Sufficiency of pleading to permit defense of, in action on note, see PLEADING, 530. Right to show that signature to recorded deed was forged, see RECORDS AND RE- CORDING LAWS, 50. Question for jury as to, see TRIAL, 592, 665., Competency of wife as witness against hus- band, see WITNESSES, 37. 1. A forged instrument is not merely voidable, but absolutely void, and there can be no ratification of a forgery that will make the instrument valid. Shinew v. First Nat. Bank, 36: 1006, 95 N. E. 881, 84 Ohio St. 297. (Annotated) Digest 1-52 L.R.A.(N.S.) 2. The alteration of separate money or- ders at the same time, and as part of the same transaction, constitutes separate of- fenses. United States v. Carpenter, 9: 1043, 151 Fed. 214, 81 C. C. A. 194. 3. The alteration of a money order, and uttering it as altered, constitute but oup offense, under a statute providing that any person who shall alter any money order,; any person who shall utter the altered order, shall be punished. United States v. Car- penter, 9: 1043, 151 Fed. 214, 81 C. C. A. 194. 4. Although counts for forgery and ut- tering a forged instrument may be joined in the same indictment, and the state can- not be compelled to elect on which count it will go to the jury, a conviction cannot be authorized on both. State v. Carragin, 16: 561, 109 S. W. 553, 210 Mo. 351. (Annotated) Wli it constitutes. 5. One who secures the execution of a duplicate note by fraudulently representing that the original was lost or destroyed does not, by passing it for value, become guilty of forgery, under a statute making the pass- ing or uttering of a forged instrument forgery, on the theory that the note is in fact false because it is not what, on its face, it purports to be. People v. Pfeiffer, 26: 138, 90 N. E. 680, 243 111. 200. (Annotated) 6. The affixing to a note of a signa- ture which it is intended shall be regarded! as that of another person is not prevented from being forgery by the circumstance that the name is misspelled. State v. Chance, 27: 1003, 108 Pac. 789, 82 Kan. 388v (Annotated) 7. A loan agent is guilty of forgery in signing the name of a pretended borrower to a note for the purpose of deceiving his client into the belief that the money which had been furnished him had been lent to the person who signed the note. People v. Campbell, 34: 58, 125 N. W. 42, 160 Mich. 108. 8. One cannot avoid his authorized transfer of his real estate, on the theory that the paper he signed was a forgery because he was deceived into signing one of a different character than he intended to sign, where the ultimate effect of the one signed and the one intended would have been the same, the only difference being that one would not have been delivered until the price was paid, while the other was delivered without payment. Conklin v. Benson, 36: 537, 116 Pac. 34, 159 Cal. 785. (Annotated) 9. Uttering a letter with a forged signa- ture for the purpose of falsely representing the bearer to be a certain well-known per- son, friend of the writer, and giving him standing with persons to whom it may be presented, is forgery, under a statute declar- ing guilty of that offense any person who shall utter a letter purporting to have been signed by another in which the sentiments, opinions, conduct, character, prospects, inter- ests, or rights of such other person shall be 1316 FORC ETFULNESS FORMULA. misrepresented or otherwise injuriously af- fected; the latter phrase referring to charac- ter, interest, etc., and not to sentiments and opinions. People v. Abeel, i: 730, 75 N. E. 301, 182 N. Y. 415. (Annotated) 10. That a sales agent, after collect- ing money from a customer, forged his note and turned it in to enable himself to retain the money for his own accommoda- tion, sufficiently shows intent to defraud to sustain a conviction of forgery, although he also intended to take up the note when it fell due. Spears v. People, 4: 402, 77 N. E. 112, 220 111. 72. 11. A notary public who makes a certifi- cate of acknowledgment the contents of which are untrue is not indictable for for- gery under a statute making it unlawful falsely to make, alter, forge, or counterfeit any public record, or any certificate, return, or attestation which may be received as le- gal proof. Territory v. Gutierrez, 5: 375, 84 Pac. 525, 13 N. M. 312. (Annotated) 12. An offer by one in possession of a forged check, to pass it to another person as a genuine instrument, constitutes an ut- tering and publishing of the check, al- though the ofl'er was not accepted and he did not exhibit the forged instrument. Walker v. State, 8: 1175, 56 S. E. 113, 127 Ga. 48. (Annotated) 13. The indorsement upon a check of the name of a fictitious person to whom it was, by fraudulent procurement, made payable, is forgery. Harmon v. Old Detroit Nat. Bank, 17: 514, 116 N. W. 617, 153 Mich. 73. 14. An indorsement upon an instrument is within the provisions of a statute de- nouncing forgery, that every signature, and every writing purporting to be such signa- ture, shall be deemed a writing, and a writ- ten instrument, within the meaning of the statute. State v. Carragin, 16: 561) 109 S. W. 553, 210 Mo. 351. What subject of. See also supra, 9. 15. An order upon a merchant purport- ing to be signed by one having credit with him, requesting the filing of an order to a certain amount, is the subject of forgery, and one who,, without authority, signs the customer's name to such instrument, and presents it, and receives goods upon it, will be guilty of that offense, although it ia not made payable to bearer, and does not in terms obligate the customer to pay for the goods. Forcy v. State, 32: 327, 131 S. W. 585, 60 Tex. Crim. Rep. 206. (Annotated) 16. One who knowingly presents to the carrier a forged order for intoxicating liquor which had been ordered in the name of the one whose name is signed to the order is guilty of uttering a forged instrument both with respect to the carrier, who is induced to make a wrong delivery of the property, and to the consignee, where, had the order been genuine, he might have been subjected to a penalty for violation of the law regulating dealings in intoxicating li- quors. State v. Webster, 32: 337, 70 S. E. 422, 88 S. C. 56. (Annotated) Digest 1-52 L,.R.A.(N.S.) FORGETFULNESS. As negligence, see NEGLIGENCE, 245. As contributory negligence, see HIGHWAYS, 366. As ground for relief against judgment, see JUDGMENT, 389. Of attesting witnesses as to when testator's signature was affixed, see \\~ILLS, 95. FORGIVENESS. Aa defense to action for divorce, see DI- VORCE AND SEPARATION, 72-78. FORMALDEHYDE. Injury to tenant by forcing formaldehyde into his room to eject him, see APPEAL AND ERROR, 1384. FORMA PAUPERIS. Right to free transcripts of notes of evidence taken at trial, see APPEAL AND ERROR, 1641. FORMER JEOPARDY. See CRIMINAL LAW, II. g. FORMER OWNER. Admissibility of admissions by, see EVI- DENCE, 1247, 1248. Admissibility of acts or declarations of, see EVIDENCE, X. f. FORMER SUIT PENDING. As ground of abatement, see ABATEMENT AND REVIVAL, III. FORMER TESTIMONY. Admissibility of, in evidence, see EVIDENCE, 1 IV. g, X. m. FORMULA. Unpatented formulas as payment for stock, see CORPORATIONS, 2] 6. FORTHCOMING BOND FRANCHISES. FORTHCOMING BOND. FRACTION. 1317 Estoppel by, see ESTOPPEL, 220. Liability on, see LEVY AND SEIZURE, 34. FORTUNE TELLING. Constitutionality of statute forbidding prac tice of, see CONSTITUTIONAL LAW, 762. Validity of ordinance forbidding, see MU- NICIPAL CORPORATIONS, 214. 1. Fortune telling may be prohibited by the legislature even though it is based upon astrology, which is a science. State v. Neit- zel, 43: 203, 125 Pac. 939, 69 Wash. 567. (Annotated) FOUNDATION. Underground encroachment on land by foundation of building, see EJECTMENT, 2. For admissibility of X-ray photographs as evidence, see EVIDENCE, 892. For impeachment of witness, see WITNESS ES, 139, 150, 166. FOUNDLING HOSPITAL. Right to recover custody of infant, see IN- FANTS, 20. FOUNTAINS. Free water supply for drinking fountains, see WATERS, 360-362. FOURTH OF JULY. Power of city to engage in conducting Fourth of July celebration, see MUNIC- IPAL CORPORATIONS, 79. FOWLING. On ponds, rights as to, see FISHERIES, 12. Public right of, on seashore, see WATERS, 69. FOWLS. Injunction against trespass by, sec INJUNC- TION, 196. 197. Digest 1-52 L.R.A.(N.S.) Of day, see TIME, 3. FRANCHISES. Who may complain of omission to obtain, see ACTION OR SUIT, 41. Suit by attorney general to annul, see AT- TORNEY GENERAL, 6. Of corporations generally, see CORPORATIONS. Of electric light company, see ELECTRIC LIGHTS, 1-4. Of ferry, see FERRY, 3. Of gas company, see GAS, 3-9, 11, 34-52. Of water company, see MUNICIPAL CORPORA- TIONS, II. f, 2; WATERS, III. Of street railway company, see STREET RAIL- WAYS, I. Of telegraph company, see TELEGRAPHS, I. Of telephone company, see TELEPHONES. To use highway, see HIGHWAYS, II. To take tolls, see TOLLS AND TOLL ROADS. Forfeiture of, generally, see CORPORATIONS, VI. Jurisdiction of proceeding to forfeit, see COURTS, 233, 235. Injunction against forfeiture, see INJUNC- TION, 382. Assignment of corporate franchise, see COR- PORATIONS, 21-32. Quo warranto to declare franchise void, see COURTS, 233. Terms of, as imposing liability on electric railway for escape of electricity, see ELECTRICITY, 3. Franchise to gas company as monopoly, see GAS, 11. Valuation of gas franchise, see GAS, 34-52. Consent by municipality to use of streets by corporation as license, and not fran- chise, see HIGHWAYS, 14. Judicial sale of right to use of wharf fran- chise, see JUDICIAL SALE, 3. Imposition of license tax on, see LICENSE, 16-20, 45, 112, 113, 117. Sufficiency of ordinance granting lighting franchise to convey right to use streets, see MUNICIPAL CORPORATIONS, 68. Partial invalidity of ordinance granting, see MUNICIPAL CORPORATIONS, 82. Liability of municipality for repeal of, see MUNICIPAL CORPORATIONS, 392-394. Right of owner of franchise for public bene- fit which is not exclusive to injunction against its invasion without right, see NUISANCES, 100. Right of public service corporation to exer- cise, see PUBLIC SERVICE CORPORATIONS, 5. Taxation of, see MUNICIPAL CORPORATIONS, 49; TAXES, 21, 74, 78, 123, 186. Consideration of franchise in estimating val- ue of telephone plant for purpose of fixing rates, see TELEPHONES, 22. 1. A constitutional provision requiring ,he sale of public franchises to the highest idder does not prevent a municipal corpora- ion from excluding one already enjoy- 1318 FRATERNAL SOCIETIES FRAUD AND DECEIT. ing a similar franchise from competition for the right to string electric-light wires along the public streets, in order to pre- vent a monoply of the business, where other sections of the Constitution show an inten- tion to prevent monoply and afford oppor- tunity for competition in all things neces- sary to the welfare of the public. Stites v. Norton, 13: 474, 101 S. W. 1189, 125 Ky. 672. 2. Franchises granted for useful public purposes will not be withdrawn by forfeit- ure, except for abuses of such a nature as injuriously affect the public welfare, or as violate the law or contract obligations con- tained in the grant. State ex rel. Ellis v. Tampa Waterworks Co. 22: 680, 48 So. 639, 57 Fla. 533. FRATERNAL SOCIETIES. Insurance by, see INSURANCE. Libel by letter to members of, in regard to collection agent, see LIBEL AND SLAN- DEB, 111-113. See also BENEVOLENT SOCIETIES; RAILROAD RELIEF ASSOCIATIONS. FRATERNITIES. In schools, see INJUNCTION, 321; SCHOOLS, 22, 23. FRAUD AND DECEIT. I. In general, 119. II. Concealment; failure to disclose facts, 2O 29. III. Matters of opinion or of the future, 3O37. IV. Intent, Knowledge, belief, and reliance of parties, 3S6O. V. To obtain credit, 6163. VI. In respect to negotiable paper, 64-66. VII. Misinformation by third person, 67, 68. VIII. Remedies, 6975. Abatement of cause of action for, see ABATE- MENT AND REVIVAL, 8. In procuring deed to timber, see ACTION OB SUIT, 16. Conditions precedent to suit based on, see ACTION OB SUIT, 25. In inducing proposed entrymen of govern- ment land to beljeve that land has al- ready been entered, see ACTION OB SUIT, 27. Right of appellate court to pass upon merits of plea of, see APPEAL AND ERROR, 508. Review of finding of court as to, see APPEAL AND ERROR, 979, 982. Arrest for, see ARREST, 15. Assignment of right to recover damages for, see ASSIGNMENT, 3. Dicest 1-52 I*R.A.(N.S.) In assignment for creditors, see ASSIGNMENT FOB CREDITORS, 10. Right of assignee for creditors to goods pro- cured by insolvent by fraudulent repre- sentations, see ASSIGNMENT FOR CKKD- ITOHS, 12. As basis of action for money had and re- ceived, see ASSUMPSIT, 11. Disbarment of attorney for, see ATTORNEYS, 13, 23, 27, 28. Claim for deceit not reduced to judgment as provable debt, see BANKRUPTCY, 125. Giving right to preference in bankruptcy proceedings, see BANKRUPTCY, 138. Effect of discharge in bankruptcy on claim for, see BANKRUPTCY, 125. Effect of, to prevent discharge of claim in bankruptcy, see BANKRUPTCY, 16], 165, 167-169, 174, 178. As bar to right to discharge in bankruptcy, see BANKRUPTCY, 75, 77, 152, 154, 155. Scheme to defraud by means of fictitious races, see BANKS, 25, 189; CONTRACTS, 587, 588. In taking deposit while bank is insolvent, see BANKS, 201-204, 206-208, 247-254. Of savings bank in paying deposit to wrong person, see BANKS, 239. Validity of promissory note given to se- cure secret advantage to creditors, see BILLS AND NOTES, 19. In representations by real estate broker as to value of property, see BROKERS, ] 1. Effect of fraud of principal on compensation of broker negotiating sale of property, see BROKERS, 59, 60. In securing passage on train for less than regular fare, see CARRIERS, 81. Duty of carrier of property to recognize de- mand of stranger from whom it was procured by fraud, see CARRIERS, 746. False classification or description by ship- per, see CARBIEBS, 816-819. In securing contract fixing value of property transported, see CARRIERS, 933. Effect of fraud in obtaining contract, on right to sue person who induces breach thereof, see CASE, 26. Compromise agreement in action by one who has wrongfully secured letters of administration, see COMPROMISE AND SETTLEMENT, 4. Conflict of laws as to sale of goods bearing fraudulent mark of quality, see CON- FLICT OF LAWS, 115. Validity of statute creating presumption of, see CONSTITUTIONAL LAW, 140, 141, 622. Imposing license fee to prevent, see CON- STITUTIONAL LAW, 704. Statute of frauds, see CONTRACTS, I. e. Liability on oral representations as to an- other's credit, see CONTRACTS. 199. Effect of, on oral contract, see CONTRACTS, I. e, 6. Effect to prevent meeting of minds in contract, see CONTRACTS, 126-128. As defense to action on contract, see CON- TRACTS, 775-777. Of corporate promoters, see CORPORATIONS, IV. h. FRAUD AND DECEIT. 1319 In issue of stock, see CORPORATIONS, V. d. In overvaluation of property paid for by corporate stock, see CORPORATIONS, V. f, 3, b. Purchase by corporation of its own stock as, see CORPORATIONS, 81, 82. Liability of officers, of corporation issuing fraudulent prospectus, see CORPORA- TIONS, 171. Equitable relief against fraudulent reduc- tion of stock, see CORPORATIONS, 202. In issue of corporate stock, see CORPORA- TIONS, 232, 233. In inducing purchase of corporate stock, see CORPORATIONS, 203, 208, 209 ; EVIDENCE, 1689; LIMITATION OF ACTIONS, 78, 79. In overvaluation of property paid for by corporate stock, see CORPORATIONS, 354. Of corporate officers, stockholder's right of action for, see CORPORATIONS, 270, 280, 282. As basis of suit to recover unpaid stock subscription, see CORPORATIONS, 364a. As defense to enforcement of subscription to stock, see CORPORATIONS, 348, 349. Costs in action for conversion of proceeds of notes secured by, see COSTS, 1. Jurisdiction of prosecution for, see COURTS, 25, - 45. In joining party to prevent removal of cause to Federal court, see COURTS, 287; REMOVAL OF CAUSES, 11-14, 23, 26, 28. Effect of false report by girl as to age on statutory liability for harboring female for purpose of sexual intercourse, see CRIMINAL LAW, 16. Fraudulent concealment of assets of bank- rupt as continuing offense, see CRIM- INAL LAW, 20. Punitive damages for, see DAMAGES, 50. Measure of damages for, see DAMAGES, III. f. As ground for revocation of dentist's li- cense, see DENTISTS, 2. As ground for divorce, see DIVORCE AND SEPARATION, 64. In elections, see ELECTIONS, III. d. Jurisdiction of equity to determine in will contest, see EQUITY, 115. Effect of, on right to equitable enforce- ment of contract, see EQUITY, 140, 141. Estoppel by, see ESTOPPEL, III. h: III. i. Estoppel to set up, see ESTOPPEL, 68, 80, 182, 258. Presumption and burden of proof as to, see EVIDENCE, II. e, 7. Parol proof of, see EVIDENCE, VI. h. Evidence as to generally, see EVIDENCE, XI. e. Sufficiency of evidence of, ee EVIDENCE, XII. c, 2353, 2414-2415a. Admissions of attorney to show, see EVI- DENCE, 1255. Admisslbility of declarations to prove or disprove, see EVIDENCE, 1387, 1389. Proof of good character of one accused of, see EVIDENCE, 1550. Evidence as to fraudulent intent, see EVI- DENCE, 1625-1627. Digest 1-52 I*R.A.(N.S.) Other instances of fraud, see EVIDENCE 1883-1886. Proof of fraudulent procurement of lease set up by answer in action of unlawful detainer, see EVIDENCE, 2435. Effect of fraud in obtaining on credit goods deposited in warehouse on rights of transferee of warehouse receipts, see EVIDENCE, 591. In obtaining letters of administration, see EXECUTORS AND ADMINISTRATORS, 24. By executor in sale of real estate, see EX- ECUTORS AND ADMINISTRATORS, 58. Impeachment of executor's account for, see EXECUTORS AND ADMINISTRATORS, 125. Obtaining money by false pretenses, see FALSE PRETENSES. Transfers in fraud of creditors, see FBAUD- ULENT CONVEYANCES. Satisfying judgment for, out of homestead, see HOMESTEAD, 30. On marital rights, see HUSBAND AND WIFE, II. j. Of wife acting as husband's agent; effect on husband's rights, see HUSBAND AND WIFE, 22, 23. Liability of community property for hus- band's fraud, see HUSBAND AND WIFE, 84. .Action by wife for deceit in making false representations to her about her hus- band, see HUSBAND AND WIFE, 171. Existence of, as justifying imprisonment for debt, see IMPRISONMENT FOR DEBT, 2, 3, 6, 8. Disaffirmance of contract by infant because of, see INFANTS, 71. Infant's fraudulent misrepresentations as to age, see INFANTS, 92, 93; MASTER AND SERVANT, 154-156, 173-176. Necessity of showing, as condition to avoid- ance of release by infant of cause of ac- tion for injuries, see INFANTS, 109. Injunction against wholesaler who places means of fraud in hands of retailers, see INJUNCTION, 98. Jurisdiction of equity to enjoin seizure of property sale of which was secured by fraud, see INJUNCTION, 275. Judgment obtained by, see INJUNCTION, 287; JUDGMENT, 278, 329, 330, 341, 342. 353-379, 390, 391, 394, 395, 398; JUS- TICE OF THE PEACE, 2; PLEADING, 171, 434, 435, 437. In use of trademark as defense, see IN- JUNCTION, 401. By insolvent debtor in preferring creditor, see INSOLVENCY, 2. In application for insurance, see INSUR- ANCE, III. e. Waiver of fraudulent misrepresentations, see INSURANCE, V. b. Cancelation of insurance policy for, see INSURANCE, 151-153, 434-444. In padding inventory in proofs of loss, see INSURANCE, 375. Effect of, on right to recover unearned pre- mium, see INSURANCE, 434-444. As defense to action on insurance policy, see INSURANCE, 852, 856, 894. 1320 FRAUD AND DECEIT, L In securing release from beneficiary of in- surance policy, see INSURANCE, 872, 894. New trial for, see JUDGMENT, 123; NEW TRIAL, 26, 27. Proof of claim in bankruptcy as bar to action for deceit, see JUDGMENT, 155. Effect of fraudulent procurement of lease in action of unlawful detainer, see LANDLORD AND TENANT, 205. Larceny of money obtained by, see LABCENY, 25-37. Effect of, on running of limitations, see LIMITATION OF ACTIONS, II. e. Effect of, on bar of limitations, see LIMI- TATION OF ACTIONS, III. e. In location of mine, see MINES, 21. Priority of mortgage over rights of former owner of property to rescind sale for fraud, see MOBTGAGE, 41. Validity of ordinance as to fortune telling, palmistry, etc., see MUNICIPAL COBPO- KATIONS, 214. Liability of notary taking acknowledgment to fraudulent instrument, see NOTABY, Notice of fraud of grantor, see NOTICE, 2-4. Imputing to principal agent's knowledge of his own wrong, see NOTICE, 33-45. Action against copartner for, see PABTNEB- SHIP, 87. Misrepresentations as to contents of in- strument as supporting plea of non est factum, see PLEADING, 126-128. Pleading as to, see PLEADING, 198, 199. 203, 381-389, 408-410, 480, 481, 528, 551. Sufficiency of pleading to show fraud which will prevent bar of limitations, see PLEADING, 203. Departure in reply attempting to defeat defense of, see PLEADING, 556. Cancelation for, of notes held as collateral, see PLEDGE AND COLLATEBAL SECUBITY, 17. In issue of money order, see POSTOFFICE, 4. Use of mails to defraud, see POSTOFFICE, 6-11. Of agent, see PRINCIPAL AND AGENT, II. e; 103-105, 114. As defense to surety's liability, see PRINCI- PAL AND SURETY, 66. Of one contending in prize contest, see PBIZE CONTEST, 3. Cancelation of patent for public land be- cause of, see PUBLIC LANDS, 15. In measurement of property sold, see SALE, 16. In sale of animals, see SALE, 131. Attacking sealed instrument for fraud, see SEAL, 4. As ground for specific performance, see SPECIFIC PERFORMANCE, 76. Effect of, on right to specific performance of contract, see SPECIFIC PEBFOBMANCE, 114. False representations by owner of trade- mark as defense to liability for in- fringement, see TBADEMABK, 27. Necessity of fraudulent intent to constitute unfair competition, see TBADENAME, 9. Digest 1-52 L.R.A.(N.S.) Effect of, on right to protection in use of tradename, see TBADENAME, 20, 21. Question for jury as to, see TRIAL, II. c, 5. Instructions as to, see TRIAL, 945. Sufficiency of findings to show fraud requir- ing reversal of decree, see TRIAL, 1108. Constructive trust arising from, see TRUSTS. I. d. Liability of trust estate for fraud of trus- tee, see TRUSTS, 139-342. Materiality of fraud of vendor, see VENDOR AND PURCHASER, 15. In interfering with revocation of will, see WILLS, 40. Competency of witness in action to set aside deed for, see WITNESSES, 49. /. In general. (See also same heading in Digest L.R.A. 1-10.) 1. Suspicion that a statement of facts made to effect the sale of a chattel may be false is sufficient, if it proves to be so, to. sustain an action for deceit. Shackett v. Bickford, 7: 646, 65 Atl. 252, 74 X. II. 47. (Annotated) 2. One who makes a false representa- tion owes no duty of care to tell the truth to those to whom he does not communicate it, and to whom he does not anticipate that it will be conveyed, and a person of ordinary prudence and intelligence would not antici- pate that it would be conveyed; and such parties have no cause of action against him for injuries they sustain in reliance upon it. Western L'. Teleg. Co. v. Schriver, 4: 678, 141 Fed. 538, 72 C. C. A. 596. 3. Wherever two persons stand in such a relation that, while it continues, confi- dence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the in- fluence is exerted to obtain an advantage at the expense of the confiding party, or, by concealment of material facts, the same result follows, the person so availing him- self of his position will not be permitted to retain any advantage gained, although the transaction could not have been impeached if no such confidential relation had existed. Thomas v. Thomas, 35: 124, 109 Pac. 825, 113 Pac. 1058, 27 Okla. 784. 4. An action for deceit for inducing the consolidation of two corporations by false representations as to the financial con- dition of one of them will not lie, no fidu- ciary relation existing between the parties, where there was no concealment of anything, and the person injured was competent and able to have investigated, and was not kept from doing so," and it does not appear that an examination was in fact made. Pigott v. Graham, 14:1176, 93 Pac. 435, 48 Wash. 349. (Annotated) 5. An agreement made by a corporation denominated a funding company, by which it promises to pay to each investor, upon the maturity of his certificates, half as much money again as he invested, is FRAUD AND DECEIT, I. 1321 fraudulent upon its face, where it is pro- posed to take the money of one investor to pay the other, with no provision for the ultimate payment of those whose money is thus taken, and large profits are promised which are not earned or expected to be earned in the business, and there is no prop- erty or capital for such payment, but the ability of the company to perform its promises depends upon contingencies which it can neither perform nor foretell. Fi- delity Funding Co. v. Vaughn, 10: 1123, 90 Pac. 34, 18 Okla. 13. 6. A continuation of stock in the name of one person on the books of the corpora- tion, when the title is in another, does not constitute fraud. Gray v. Graham, 49: 1159, 89 Atl. 262, 87 Conn. 601. 7. A false statement of the cost of cor- porate stock which one is trying to sell to a friend to whom he makes a promise to secure for him employment with the cor- poration, as part of the inducement for the purchase, is such fraud as will justify a rescission of a purchase made in reliance thereon, and a judgment for return of the consideration, or damages in case it has passed out of the possession of the vender. Kohl v. Taylor, 35: 174, 114 Pac. 874, 62 Wash. 678. (Annotated) 8. An architect is guilty of fraud who, to secure the contract for preparing plans and supervising the construction of a build- ing, states positively that the cost of a structure of the general character desired will not exceed a specified sum, when he knows that such is not the fact. Edward Barren Estate Co. v. Woodruff Co. 42: 125, 126 Pac. 351, 163 Cal. 561. ( Annotated ) 9. The deceit of one in securing a con- tract to prepare plans for a building and supervise its construction, by false repre- sentations that he has skill as an architect, permeates the execution of the contract so as to render him liable to the owner in case he suffers loss through absence of knowledge and skill on the part of the one making the representations. Edward Bar- ron Estate Co. v. Woodruff Co. 42: 125, 126 Pac. 351, 163 Cal. 561. 10. Fraud in securing signature to a deed of standing timber by false represen- tations as to its contents is in tb.3 treaty, so that the deed is not absolutely void as against a subsequent transferee; and an ac- tion will lie against t!ie grantee for the damages caused by the fraud. Griffin v. Roanoke R. & Lumber Co. 6: 463, 53 S. E. 307, 140 N. C. 514. 11. A mine need not be shown to be worthless to entitle one defrauded into pur- chasing it to hold the seller liable for the loss thereby inflicted upon him. Tooker v. Alston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. 12. One cannot escape liability for fraud In the sale of a mining lease because a por- Cion of what the purchaser is induced to ruy belongs to another person. Tooker v. A-lston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. Digest 1-52 L.R.A.(N.S.) 13. A misrepresentation of the location, with reference to a suburban street, of platted lots, involves a material matter; and where the location of such lots is shown on the plat by the government subdivision only, their location with reference to the city limits or suburban street is not a mat- ter so readily ascertainable that a purchaser is not justified in relying on the representa- tion made in reference thereto by the seller. Ballard v. Lyons, 38: 301, 131 N. W. 320, 114 Minn. 264. (Annotated) 14. An insurer of an employer who fraudulently induces the guardian of a minor employee injured by the employer's negligence, to bring an action for the in- juries for a nominal sum, and secures entry of the judgment therein, is liable to the minor for the full amount of the actual damages caused by the injury. McGillvray v. Employers' Liability Assur. Corp. 46: no, 102 N. E. 77, 214 Mass. 484, ( Annotated ) 15. A broker who, having authority to sell real estate at a certain price, secures a higher price from the purchaser by means of a positive statement that that is the least the owner will take for the property, and that it is a bargain at that price, is liable to the purchaser in an action for deceit for the difference secured through his false representations. Hokanson v. Oat- man, 35: 423, 131 N. W. Ill, 165 Mich. 512. 16. One who lends money to an insane person with which to purchase real estate cannot, where both he and the vendor act independently and without knowledge of the insanity, compel the vendor to return the money to him on the ground of fraud. Murphree v. Clisby, 29: 933, 52 So. 907, 168 Ala. 339. 17. An action for deceit will not lie against one who, when pointing out the true boundaries of a tract of land he is about to sell, fraudulently overstates its area, there being no trust relation between the parties, if he does not dissuade full exami- nation and measurement, and the estate is not so extensive or of such character as to be reasonably incapable of inspection and estimate. Mabardy v. McHugh, 23: 487, 88 N. E. 894, 202 Mass. 148. (Annotated) Inducing marriage. Annulment of marriage for, see CONFLICT OF LAWS, 8], 82; MAKRIAGE, 32-36. Measure of damages for, see DAMAGES, 321. Pleading as to, see PLEADING, 386. 18. An action for fraud and deceit will lie against one who fraudulently induces a woman to enter into a void marriage rela- tion with him, by assurances that an exist- ing marriage into which he has entered with another is void. Sears v. Wegner, 14: 819, 114 N. W. 224, 150 Mich. 388. 19. A person who, to induce a marriage with her son, falsely represents that the son is the owner of certain specified real estate, is liable in damages to a woman who enters into a marriage with the son in reliance on the representations. Beach v. Beach, 46: 98, 141 N. W. 921, 160 Iowa, 346. ( Annotated ) 1322 FRAUD AND DECEIT, II., III. /I. Concealment; failure to disclose facts. (See also same heading in Digest L.R.A. 1-10.) By officer purchasing stock from sharehold- er, see CORPORATIONS, 157. Effect of, on running of limitations, see LIMITATION OF ACTIONS, II. e. Effect of, on bar of limitations, see LIMITA- TION OF ACTIONS, III. e. Concealment of epilepsy as, see MARRIAGE, 32. Concealing defect in automobile from pur- chaser, see NEGLIGENCE, 50. 20. The holder of a mortgage who fore- closes it by advertisement and sells the property, with knowledge that the mort- gagor has no title and that a purchaser will receive no consideration for his money, is liable for fraud to one who bids in the property on the faith of the advertisement. Dirks Trust & Title Co. v. Koch, 49: 513, 143 N. W. 952, 32 S. D. 5."!. (Annotated) 21. One who knowingly sells a house located over a cesspool which receives the drain ings from his other building, and is completely concealed from view, without notifying the purchaser of the existence of the pool, is liable in damages as for fraud to the extent of the expense and loss to which the purchaser is subjected because of it. Weikel v. Sterns, 34: 1035, 134 S. W. 908, 142 Ky. 513. (Annotated) 22. The purchase by an insolvent of goods on credit without disclosing the facts that he has given a mortgage upon his present and future property, to secure an existing indebtedness, is such fraud as to give the vendor a right to avoid the sale and sue to recover the property, or to re- cover the value of the goods from the pur- chaser in an action for fraud, with the reme- dies afforded by statute in such cases, or to proceed against him in bankruptcy. Louisville Dry Goods Co. v. Lanman, 28: 363, 121 S. W. 1042, 135 Ky. 163. 23. Mere failure of an executor to give notice to a residuary legatee, after settling the estate as insolvent, of the fact that after his discharge he had secured title to the real estate of the testator, is not fraud. Williams v. Woodruff, 5: 986, 85 Pac. 90, 35 Colo. 28. 24. The sale of a remainder at the price it was worth if the life tenant was in good health will be set aside, where the pur- chaser, with knowledge that the life tenant was on his deathbed, sought the remainder- man, and, with knowledge of his ignorance of the facts, gave a misleading answer to a question as to how the life tenant was get- ting abng, with the object of affirmatively deceiving him, and thereby secured the trade. Hays v. Meyers, 17: 284, 107 S. W. 287, 139 Ky. 440. (Annotated) 25. One who actively conceals the condi- tion of a mine, thwarts investigation, and misrepresents the significance of apparent conditions, cannot take advantage of the Digest 1-52 L.R.A. (N.S.) rule that the law will not aid a purchaser who fails to avail himself of the ordinary means of information. Tooker v. Alston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. 26. One who sells a lease of a worked- out mine which is subject to forfeiture if operations which cannot be profitably con- ducted are suspended, by concealing and disguising the physical conditions of the property, making false statements of ex- isting facts within his knowledge of which the purchaser is ignorant, made with intent that the purchaser shall rely on them, which he does, is liable to him for the difference between the price which he pays and the value of what he gets. Tooker v. Alston, 16: 818, 159 Fed. 599, 86 C. C. A. 425. 27. In case of the termination of the agency of one who has undertaken to sell another's stock, so that he id at liberty to purchase for himself, the confidential rela- tion may be found to continue so that con- cealment by him of opportunities which he has for resale, knowing that the principal is relying on him for information, may amount to fraud which will render him lia- ble for the difference between what he pays for the stock and its true value. M*c- Donough v. Williams, 8: 452, 92 S. W. 783, 77 Ark. 261. 28. Where several persons, for the pur- pose of buying a horse, mutually agree to pay a certain price for him, a secret agree- ment between the vendor and one of them, whereby he receives his share in the horse for nothing for securing the others to join with him in the purchase, is such a fraud as will entitle the purchasers to defeat re- covery on the notes evidencing their promise to pay the purchase money. Noble v. Fox, 43: 933, 128 Pac. 102, 35 Okla. 70. (Annotated) 29. A purchaser of real estate cannot hold the vendor's broker liable on the ground of fraud for the difference between what he paid for the property and what the broker actually secured it for from the vendor, be- cause the broker assured him that the price paid was the least the vendor would take for the property, where no means were taken to prevent the purchaser from making per- sonal inquiry of the vendor as to such fact. Ripy v. Cronan, 21: 305, 115 S. W. 791, 131 Ky. 631. (Annotated) ///. Matters of opinion or of the future. (See also same heading in Digest L.R.A. 1-1/O.J Of- officer purchasing stock from share- holder, see CORPORATIONS, 157. 30. A representation of intention as to future acts or events, not having been falsely made with the purpose to deceive, is not, though the act or event did not occur as represented, a sufficient ground upon which to predicate a charge of fraud, or be made the basis for the rescission of a contract induced and brought about by FRAUD AND DECEIT, IV. 1323 the representation. Bigelow v. Barnes, 45: 203, 140 N. W. 1032, 121 Minn. 148. 31. A representation made by the agent of an insurer to the effect that if the as- sured, who proposed to let her policy lapse, should continue paying premiums for four more years she would be entitled to a free or paid-up policy, is not a mere promise as to what would be done in futuro, but a statement of the company's existing practice, and consequently a representa- tion as to a present existing fact, and will therefore support an action for deceit, the measure of damages in which will be the amount of the premiums paid. Kettlewell v. Refuge Assur. Co. 3 B. R. C. 844, [1908] 1 K. B. 545. Also Reported in 77 L. J. K. B. N. S. 421, 97 L. T. N. S. 896, 24 Times L. R. 217, 52 Sol. Jo. 158. 32. That a conveyance of a half interest in the coal and minerals underlying the grantor's lands is made on the faith of a representation that the grantee will locate manufacturing plants on or near the prop erty, and secure railroad communication therewith, which promise is not intendec to be, and is not, performed, does not entitle the grantor to a cancelation of the convey ance on the ground of fraud. Miller v Sutliff, 24: 735, 89 N. E. 651, 241 111. 521. (Annotated) 33. Taking advantage of the other party to an exchange of lands by making prom ises with respect to the construction oJ buildings on the property deeded by the promisor which the promisor does not in- tend to fudfil is such fraud as will en- title the other party to a rescission of the contract. Braddy v. Elliott, 16: 1121, 60 S. E. 507, 146 N. C. 578. 34. A trade of a farm for stock in a cor- poration and a promise of a salaried posi- tion in the concern will not he rescinded for breach of the promise, on the theory of misrepresentation. Younger v. Hoge, 18: 94, 111 S. W. 20, 211 Mo. 444. 35. Puffing the mining claims, or mak- ing glowing predictions as to how they will "pan out," does not amount to such false representations as will authorize a court of equity to set aside a sale of mining stock when the parties are compos mentis and deal at arm's length. Burwash v. Ballou, 15: 409, 82 N. E. 355, 230 111. 34. Estimates and valuations. 36. One who buys an ice plant with knowledge that its operation had been aban- doned because its output did not equal its capacity, and after having full opportunity to investigate its condition, cannot avoid paying the purchase price because the vend- or stated that, with some repairs, it would turn out about a certain amount per day. Williamson v. Holt, 17: 240, 61 S. E. 384, 147 N. C. 515. 37. The secretary of a corporation who is also a stockholder cannot maintain an action against the other officers for fraudulent representations upon which he acted, and which were alleged to have been made to in- duce him to dispose of his stock to them at a loss, where they amount merely to repre- Digest 1-52 i.R.A.(N.S-) Dentations that the corporation was going down, that one had bought the other's shares and was going to run the business as a family affair, and would depose the secre- tary, and that this was his last chance to get his money out; and the fact that he was not permitted to keep the books down to date, so that he did not know the actual state of the business, is immaterial. Boulden v. Stilwell, i: 258, 60 Atl. 609, 100 Md. 543. ( Annotated > IV. Intent, knowledge, belief, and re- liance of parties. (See also same heading in Digest L.R.A. 1-10.) Of party deceiving or making state- ments. Estoppel by, see ESTOPPEL, III. h. 38. To render one liable in damages for deceit, he must have knowingly made a false representation with intent to deceive, and it must have been acted upon by an- other to his injury, without notice of the falsity. Beach v. Beach, 46: 98, 141 N. W. 921, 160 Iowa, 346. 39. One who makes representations to another of material facts, for the purpose of inducing that other to enter into con- tractual relations with him, and which are liable to accomplish the purpose without want of ordinary care on the part of such other, is bound at his peril to know whereof he speaks. Kathan v. Comstock, 28: 201, 122 N. W. 1044, 140 Wis. 427. 40. A representation by one claiming a tax title to real estate, that the title is per- fect, made for the purpose of securing a conveyance in form by the true owners, for a nominal consideration, which can only be true in case the land was vacant and unoccupied during the period necessary to perfect the title under the statute, involves a, representation that it was so in fact; and if such representation was false, the one making it is guilty of fraud in law, which will entitle the grantor to a rescission of the contract, although the one making it had no knowledge on the subject, and be- lieved it to be true. Kathan v. Comstock, 28: 201, 122 N. W. 1044, 140 Wis. 427. (Annotated) 41. A party is guilty of fraud and de- ceit where, with intent to induce another to enter into a contract, he makes a posi- tive assertion, which is material, in a man- ner not warranted by his information, or where he is not shown to have reasonable grounds for believing it true, where the assertion so made is not true, even though believed by the party making it. Garvin v. Harrell, 35: 862, 113 Pac. 186, 27 Okla. 373. 42. If a seller makes positive state- ments and representations not known by lim to be true, intending to induce a sale, and a purchase is made in reliance upon iis representations, which turn out to be 'alse, his action is fraudulent, and he is as 1324 FRAUD AND DECEIT, IV. answerable to the purchaser as if he made the representations knowing them to be false. Morrow v. Bonebrake, 34: 1147, 115 Pac. 585, 84 Kan. 724. 43. A fraudulent intent, from the re- sults of which escape cannot be had, will be imputed to a vendor who, in reconveying property, manifests a gross and culpable carelessness and negligence, which results in defeating the title of a prior vendee, and his eviction from the premises. Madden v. Caldwell Land Co. 21 : 332, 100 Pac. 358, 16 Idaho, 59. 44. A vendor of real estate, who, to the knowledge of the purchaser, has never seen the property, but asserts that representa- tions made by his agent as to its character are true, is liable to make good to the pur- chaser, in an action for fraud, the loss re- sulting from the falsity. Aldrich v. Scrib- ner, 18: 379, 117 N. W. 581, 154 Mich. 23. 45. A vendor who erroneously points out certain land as belonging to the tract sold may be liable for deceit although the state- ment was not knowingly false, if, by reason of his position, he should have known the truth or falsity of his assertion. Vincent v. Corbitt, 21 : 85, 47 So. 641, 96 Miss. 46. 46. A vendor who conveys his valid fee- simple title to real property by warranty deed, with full covenants, works a construct- ive fraud against such grantee by there- after conveying the same property to an- other bona fide purchaser for value, if the subsequent purchaser places his deed of rec- ord in advance of the recording of the first deed, thereby obtaining the paramount ti- tle, although no actual fraudulent intent existed in the mind of the grantor at the time of the execution of the subsequent con- veyance. Madden v. Caldwell Land Co. 21: 332, 100 Pac. 358, 16 Idaho, 59. 47. An agent for the sale of a city lot the boundaries of which can be readily as- certained is liable in damages to one who purchases on the faith of his representa- tions that the lot extends to an alley, which is pointed out, although he has no knowl- edge whether it does or not. Davis v. Trent, 49: 1219, 143 N. W. 1073, 162 Iowa, 269. (Annotated) 48. A purchase of personal property, with the undisclosed intent not to pay the purchase price, is a fraud upon the seller, for which he may within a reasonable time rescind the sale, and retake possession of the property sold. Ditton v. Purcell, 36: 149, 132 N. W. 347, 21 N. D. 648. 49. One employed to sell property at the best price obtainable is not guilty of fraud in stating that a named price is the lowest which the owner will take for the property, if he does not know at the time that a lower price would be acceptable, although after the sale he settles with the owner at a lower figure. Bradley v. Oviatt, 42: 828, 84 Atl. 321, 86 Conn. 63. 50. A report by the president of a cor- poration which is desirous of selling stock, to a mercantile agency, which falsely states the amount of stock subscribed and the amount of capital paid in, and makes an Digest 1-52 I,.R.A.(N.S.) unwarranted forecast as to the payment of the remainder, must be treated as hav- ing been designed fraudulently to influence the purchase of stock. Davis v. Louisville Trust Co. 30: ion, 181 Fed. 10, 104 C. C. A. 24. 51. A creditor who, to induce his debtor to secure the indebtedness by a mortgage on a stock of goods, promises that he will not permit a sale of the property under foreclosure for less than a certain sum, is guilty of actionable fraud where he makes the promise with the secret intention of not performing it, although it does not re- late to existing facts. Cerny v. Paxton & G. Co. 10: 640, 110 N. W. 882, 78 Neb. 134. {Annotated) Knowledge and rsli.uee of rty de- frauded. Presumption and burden of pr.>of as to re- liance, see EVIDENCE, 266, 267. See also supra, 42. 52. A person is justified in relying on a representation made to iim \n all cases where the representation is a positive state- ment of fact, and w3ere an investigation would be required to discover the truth. Martin v. Huttoii, 56: 5oa, 1-32 N. W. 727, 90 Neb. 34. 53. A false and fraudulent representa- tion by one who assumes to have personal knowledge, to a purchaser of real estate, that there is no encumbrance thereon, upon which representation the purchaser relies and acts to his injury, will sustain an ac- tion for the tort, although the purchaser might have discovered the fraud by search- ing the public records. Gannon v. Hausa- man, 52: 519, 140 Pac. 407, 42 Okla. 41. 54. When a false representation is of a matter presumably within the knowledge of the person making it, not made in the way of commendation or as an opinion merely, but as a positive assertion of an existing fact, to induce the other party to enter into the contract, such party, having no knowl- edge to the contrary, may, if hs act in good faith, accept the representation as true, and is not bound to make inquiries or examina- tion for himself. Westerman v. Corder, 39:. 500, 119 Pac. 868, 36 Kan. 239. 55. That books of a business are placed at the disposal of an intending purchaser does not present bis lelying upon state- ments of the seller as to the amount of business done. Smith v. Werkhoiser, 15: 1092, 115 N. W. 964, 152 Mich. 177. 56. Misrepresentation as to the amount an order for a specified number of steel bars at a specified price per pound will come to is not a ground for avoiding the sale, where there is no trust relation between the parties, and the buyer is experienced in the business and can easily ascertain for himself what the steel will weigh and there- fore what it will cost. DalhofT Constr. Co. v. Block, 17: 419, 157 Fed. 227, 85 C. C. A. 25. (Annotated) 57. A charge of fraud in exchanging cor- porate stock for real estate is not sustained by evidence that the owner of the real es- FRAUD AND DECEIT, V. VII. 1325 tate was told and believed that the stock was worth par, when, from the value of the real estate, he must have known that the stock was below its face value, or that he was getting four or five times as much for his property as it was worth. Younger v. lloge, 18: 94, 111 S. W. 20, 211 Mo. 444. 58. One who gives an order for 5,000 trees in reliance on the seller's estimate of the number needed for a certain tract of land, with his assurance that he had had experience in making such estimates and after measuring, or professing to measure, the ground, when the purchaser stated his own ignorance of the number needed and was also unable, by reason of illness, to investigate the matter at that time, is not precluded, on the ground of his own negligence, from claiming that he was de- ceived by the seller's misrepresentations. Mt. Hope Nurseries v. Jackson, 45: 243, 128 Pac. 250, 36 Okla. 273. 59. One who induces a sale of real prop- erty by fraudulent representations as to its value cannot avoid liability to reconvey, on the theory that the vendor has no right to rely on his representations. Crompton v. Beedle, 30: 748, 75 Atl. 331, 83 Vt. 287. 60. The purchaser of real estate includ- ing an orchard of such irregular shape that it is difficult to ascertain its area without a survey, who is entirely unfamiliar with the fruit business, has a right to rely on the vendor's statements as to area, and may rescind the contract in case a represented area of 70 acres of orchard proves to be less than 49. Best v. Offield, 30: 55, 110 Pac. 17, 59 Wash. 466. (Annotated) V. To obtain credit. (See also same heading in Digest L.R.A. 1-10.) Remedies in case of, see infra, 75. 61. One receiving a representation of an- ' other's financial standing as a basis of credit, under an agreement that it shall be considered as renewed on the occasion of each purchase until notice from the buyer to the contrary, may rely upon it until he has notice from some source, which would put him on his guard against relying longer upon it. Atlas Shoe Co. v. Bechard, 10: 245, 66 Atl. 390, 102 Me. 197. (Annotated) Statements by commercial agency. 62. Reports made by a corporation to the secretary of state, which, through adoption by a mercantile agency, become the basis of credit to the corporation, are presumed to have been made for the purpose of se- curing credit, and, if false, constitute a fraud which will entitle the one extending the credit to rescind the transaction. Dime Sav. Bank v. Fletcher, 35: 858, 122 N. W. 540, 358 Mich. 162. 63. One securing information as to the standing of a corporation desirous of dis- posing of some of its treasury stock, through a subscriber to a mercantile agency to which such corporation had furnished Digest 1-52 L.R.A. (N.S.) such information, may, although he himself has no contractual relations with the i agency, rely thereon in purchasing stock from the corporation, and in case the in- formation was erroneous, may rescind the contract. Davis v. Louisville Trust Co. 30: ion, 181 Fed. 10, 104 C. C. A. 24. VI. In respect to negotiable paper. (See also same heading in Digest L.R.A. 1-10.) Effect of original fraud on bank's right to dishonor check, see BANKS, 101. In securing indorsement of note, see BILLS AND NOTES, 80. As defense to note, see BILLS AND NOTES, 135, 146-150, 181, 182, 201, 202, 206- 210. Of agent in reissuing note after maturity, see BILLS AND NOTES, 200, 201. 64. A postdated check is within the op- eration of a statute providing punishment for anyone who wilfully, with intent to de- fraud, draws a check or draft on a bank for payment of money, knowing that he has no funds or credit with which to meet it on presentation. People v. Bercovitz, 43: 667, 126 Pac. 479, 163 Cal. 636. 65. The mere fact that one, is securing the exchange by a bank of the note of a third person for his own, is in such desper- ate circumstances that he can have no rea- sonable anticipation or hope of ever being able to pay his note, is not sufficient to vitiate the transaction and entitle the bank to a return of the note, if he has not formed an intention not to pay. German Nat. Bank v. Princeton State Bank, 6: 556, 107 N. W. 454, 128 Wis. 60. (Annotated) 66. The giving of a false and fraudulent check in payment of the purchase price of personal property, with the intent that, after obtaining possession of the property by such means, the notes of the seller, barred from collection by bankruptcy, would be offset against the purchase price with- out the consent of the seller, or a discount from the purchase price forced in settle- ment, is a fraud on the seller, for which he may rescind the sale and recover his property. Ditton v. Purcell, 36: 149, 132 N. W. 347, 21 N. D. 648. VII. Misinformation Ity third person. (See also same heading in Digest' L.R.A. 1-1/0.) As to fraud of agent, see PRINCIPAL AND AGENT, II. c. 67. A mere friend of the family, acting without compensation, who advises as to the investment of funds, does not sustain such confidential relations to the lender that he can be held personally liable in case the loan is lost because of his misrep- resentations as to the credit of the borrow- er. Kniaht v. Rawlings, 13: 212, 104 S. W. 38, 205 Mo. 412. 132G FRAUD AND DECEIT, VIII. 68. One who, with knowledge of the fraud, introduces to a money broker without knowledge of or means of knowing the facts, a person impersonating the owner of real estate, stating that he desires to borrow money on the property, and thereby enables him to secure a loan which cannot be re- covered because the borrower is an impostor and insolvent, is liable to make good the loss resulting to the broker from the trans- action. Raser v. Moomaw, 51: 707, 139 Pac. 622, 78 Wash. 653. (Annotated) VIII. Remedies. (See also same heading in Digest L.R.A. 1-10.) Remedy in case of fraudulent attempt to dismiss action to deprive attorney of fees, see ACTION OB SUIT, 4. Prematurity of action for, see ACTION OB SUIT, 16. Condition precedent to action based on, see ACTION OB SUIT, 27. Arrest for, see ARREST, 15. Recovery back of money obtained by, see ASSUMPSIT, 43. As ground for attachment, see ATTACH- MENT, I. d. Disbarment of attorney for, see ATTORNEYS, 12, 23, 27, 28. Recovery from purchaser's trustee in bank- ruptcy of proceeds of goods bought without intent to pay therefor, see BANKRUPTCY, 103. Annulment of marriage for fraud in procur- ing, see CONFLICT OF LAWS, 81, 82; MARRIAGE, 32-36. Statute creating presumption of, see CON- STITUTIONAL LAW, 140, 1.41. Remedies between parties to illegal contract, . - ; see CONTRACTS, III. g. Rescission of contract for, see CONTRACTS, 742-746; PLEADING, 581; SALE, 112, 121, 206-218, 229; VENDOR AND PUR- CHASER, 18, 68-72. Rights of seller as against sub-vendee in case of fraud of purchaser, see SALE, 229, 234, 236-238. Punitive damages for, see DAMAGES, 50. Measure of damages for, see DAMAGES, III. f. Effect of electing remedy, see ELECTION OF REMEDIES, 42-45. Power of equity in case of, see EQUITY, I. d. Injunction against wholesaler who places means of fraud in hands of retailers, see INJUNCTION, 98. Collateral attack on judgment for, see JUDG- MENT, 123, 142, 143. As ground for relief against judgment, see JUDGMENT, 329, 330, 341, 342, 353-379, 390, 391, 394, 395, 398; PLEADING, 171, 434, 4C5, 437. Cancelation of insurance policy for, see INSURANCE, 151-153, 434-444. Limitation of time for action based on, see LIMITATION OF ACTIONS, 76-79, 241. Digest 1-52 L.R.A.(N.S.) | Effect of new promise to remove bar of limi- tations against action based upon, see LIMITATION OK ACTIONS, 345. Who may maintain action for, see PARTIES, 1. Joinder of parties plaintiff in action for, see PARTIES, 145. Liability of partnership for fraud of one member, see PARTNERSHIP, 31. Necessity of pleading, see PLEADING, 480, 481. Cancelation for, of note held as collateral, see PLEDGE AND COLLATERAL SECURITY, 17. Cancelation of patent for public land because of, see PUBLIC LANDS, 15. Reformation of deed for, see REFORMATION OF INSTRUMENTS, 15, 16. Replevin by seller for, see REPLEVIN, 3, 11. 69. To estop one from whom property has been secured by fraud from claiming it after it has reached the hands of a third person, the latter must show that he is an innocent purchaser for value. National Bank of Commerce v. Chatfield, W. & Co. 10: 801, 101 S. W. 765, 118 Tenn. 481. 70. The rule that a person defrauded in- to purchasing property must, to secure a rescission of the contract, act with diligence and restore what he received under the contract, has no application to a proceeding for damages based on a confirmation of the contract. Smith v. Werkheiser, 15: 1092, 115 N. W. 964, 152 Mich. 177. 71. That one defrauded into purchasing stock of a corporation has parted with it does not affect his right to hold the one guilty of the fraud liable for the damaged caused thereby, or to sue upon his promise, made to avoid an action for the fraud, to see that the purchaser got his money back. McKay v. McCarthy, 34: 911, 123 N. W. 755, 146 Iowa, 546. 72. That one defrauded into purchasing corporate stock was offered more than he paid for it is not a defense to an action on a promise by the one effecting the sale that he would see that the purchaser got his money back, unless the offers were made after the promise was made. McKay v. McCarthy, 34: 911, 123 N. W. 755, 140 Iowa, 546. 73. One who has been induced by fraud and deceit to enter into an executory con- tract to sell stock cannot, if he performs his contract after discovering the fraud, maintain an action for damages therefor. McDonough v. Williams, 8: 452, 92 S. W. 783, 77 Ark. 261. (Annotated) 74. A person who has been induced through the fraud and false statements of another, to purchase property as clear, when in fact it is encumbered by a valid enforce- able lien, may recover of such person in an action for damages because of the fraud and deceit, the amount of the encumbrance, except as it may exceed the value of the property, without having suffered a fore- closure or ouster, or having paid it off. Gannon v. Hausaman, 52: 519, 140 Pac. 407, 42 Okla. 41. FRAUDULENT CONVEYANCES, I. 1327 75. That the note of a solvent maker is not yet due, and has not been paid, does not prevent his maintaining an action to re- cover damages for fraud in securing its ex- ecution, if it has passed into the hands of a bona fide holder for value; nor is it neces- sary that the maker return the note to the payee who defrauded him. Hoffman v. Toft, 52: 944, 142 Pac. 365, 70 Or. 488. (Annotated) FRAUDULENT CONVEYANCES. I. In general, 122. 11. Consideration, 2325. III. Preferences; security, 2628. IV. Notice; rights and liabilities of purchaser, 294:0. V. Reservation of interest; change of possession, 4146. VI. Transactions between relatives, 47. VII. Subsequent creditors* VIII. Remedies, 4856. Attorney's duty to comply with contract to reconvey to client property transferred in fraud of creditors, see ATTORNEY, 33. Right of trustee in bankruptcy to property conveyed in fraud of creditors, see BANKRUPTCY, 102. Right of fraudulent grantee to plead grant- or's discharge in bankruptcy as defense to creditors' suit, see BANKRUPTCY, 146. Validity of chattel mortgage, see CHATTEL MORTGAGE, II. Of assets of insolvent corporation to new corporation without consideration, see CORPORATIONS, 26. Applicability of statutory provision for res- toration of property in case of divorce to property transferred to defraud cred- itors, see DIVORCE AND SEPARATION, 141. Estoppel of real owner to assert title as against grantee of apparent owner, see ESTOPPEL, 193. Intent to defraud creditors as taking place of bad faith, see EVIDENCE, 231. Presumption and burden of proof as to, see EVIDENCE, 270-273, 360. Admissibility of grantor's statements as to reason for making deed, see EVIDENCE, 1455. Evidence as to, see EVIDENCE, 1658, 1659. Sufficiency of evidence of fraud, see EVI- DENCE, 2089-2094, 2232, 2233. In fraud of marital rights, see HUSBAND AND WIFE, II. j. Right of partnership creditors to attack, see PARTNERSHIP, 40. Sufficiency of allegations as to, see PLEAD- ING, 391, 392. Direction of verdict in case of, see TRIAL, 747. Bona fide purchasers of land conveyed in fraud of creditors, see VENDOR AND PURCHASER, 91, 92. Cross-examination of alleged fraudulent grantee, see WITNESSES, 87. Digest 1-52 L.R.A.(N.S.) /. In general. (See also same heading in Digest L.R.A. 1-10.) 1. The statute of 13 Eliz., against con- veyances in fraud of creditors, is part of the common law of Alabama. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 2. Making choses in action leviable by process in garnishment brings them within the operation of the statute of 13 Eliz.. avoiding conveyances in fraud of creditors. Hall v. Alabama Terminal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 3. Choses in action are personal prop- erty within the meaning of a statute mak- ing void conveyances of personal property to defraud creditors. Hall v. Alabama Ter- minal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 4. Fraud of a debtor in dispossessing his creditor of a chose in action held by the latter as collateral security is not a fraud- ulent transfer within the meaning of a statute giving equity jurisdiction to set aside such transfers. Hall v. Alabama Ter- minal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 5. Surrender of notes given by subscrib- ers for corporate stock is a fraudulent transfer of them as against existing credit- ors, and they may proceed in equity to com- pel payment of them in satisfaction of the creditors' claims. Hall v. Alabama Ter- minal & Improv. Co. 2: 130, 39 So. 285, 143 Ala. 464. 6. The transfer by a merchant of his stock and fixtures to another, who is to close up the business, and pay the invoice price to such creditors of the merchant as he may choose, is not a sale, but is within the provisions of a statute avoiding every transfer made with intent to delay or de- fraud creditors. Hall v. Feeney, 21: 513, 118 N. W. 1038, 22 S. D. 541. (Annotated) 7. The fact that members of an insol- vent partnership contribute the insurance money received for a destruction of its assets by fire, to the organization of a cor- poration, to continue its business, taking stock in such corporation in return, does not necessarily imply a fraudulent intent on their part to hinder and delay the credit- ors of the partnership. Byrne Hammer Dry Goods Co. v. Willis-Dunn Co. 29: 589, 121 N. W. 620, 23 S. D. 221. 8. Reliance upon ownership of a cer- tain parcel of land, sufficient to overturn a deed by the debtor to a third person, is not shown by the fact that the creditor had before him commercial reports showing that the debtor was "said" to own, or "credited" with owning, the land, or that he has good farm or town property of a certain value, without any particular reference to the land in question. Blake v. Meadows, 30: i, 123 S. W. 868, 225 Mo. 1. 9. The question of fraud in the execu- tion of a deed can be raised by a stranger only when he is in a position to claim title 1328 FRAUDULENT CONVEYANCES, I. as against the grantor. Herron v. Allen, 47: 1048, 143 N. W. 283, 32 S. D. 301. 10. It is not fraud on creditors to convey a homestead to avoid a debt. Freeman v. Funk, 46: 487, 117 Pac. 1024, 85 Kan. 473. Validity as between parties. 11. Neither law nor equity will aid a debtor, who has confederated with and conveyed land to another to defraud credit- ors, by canceling the deed or avoiding its effect. Sewell v. Norris, 13: 1118, 58 S. E. 637, 128 Ga. 824. 12. A voluntary conveyance of real estate to place it beyond the reach of a judgment in an anticipated action will not be canceled as against the heirs of the grantee, although the threatened action had no foundation in law, and the grantee, upon being notified of the conveyance, promised to reconvey on de- mand. Carson v. Bellies, x: 1007, 89 S. W. 208, 121 Ky. 294. (Annotated) Sales in bulk. Attachment of goods sold in bulk, see AT- TACHMENT, 43. Chattel mortgage as sale within meaning of a statute regulating sales in bulk, see CHATTEL MORTGAGE, 4. Constitutionality of statute regulating sale of goods in bulk, see CONSTITUTIONAL LAW, 249, 250, 747, 748. Validity of sale in bulk of stock of drugs, see CONTRACTS, 412. See also infra, 30, 38, 39; ASSIGNMENT FOR CREDITORS, 1. 13. The bulk sales law does not apply to sales of property which is exempt by law from execution. McCormick v. Kist- ler, 45: 497, 141 N. W. 593, 175 Mich. 423. ( Annotated ) 14. The word "assignment" as used in the Oklahoma "bulk sales law," 7910, Comp. Laws 1909, defining the transfers included in the act as "sales, exchanges, and assignments,"- means a transfer or setting over of property or some right or interest therein from one person to another; the term denoting not only the act of transfer, but also the instrument effecting it. Humphrey v. Coquillard Wagon Works, 49: 600, 132 Pae. 899, 37 Okla. 714. 15. A creditor who has had no notice of a pretended assignment of his debtor, and has not waived the irregularities thereof, may follow the property which has been transferred in violation of the "bulk sales law." Humphrey v. Coquillard Wagon Works, 49: 600, 132 Pac. 899, 37 Okla. 714. 16. A sale to one person of substantially all the lumber which one who operates a sawmill at which trees are manufactured into lumber, has on hand is not within the provision of a statute requiring a purchaser of goods, wares, and merchandise in bulk to give notice of the sale to the vendor's cred- itors. Cooney, E. & Co. v. Sweat, 25: 758, 66 S. E. 257, 133 Ga. 511. (Annotated) 17. The sale by a merchant of a drug store which he conducts in a separate build- ing and under a separate name from that in and under which his general business is con- ducted must comply with the statutes pro- viding for the sale by a merchant of the Digest 1-52 L.R.A.(N.S.) whole or a large part of his stock in trade, since it is to be regarded as the sale of an independent business. Young v. Lemieux, 20: 160, 65 Atl. 436, 79 Conn. 434. 18. One who purchases a retail stock of goods from a merchant who has not complied with the statutory requirement as to notice of sale is not entitled to retain against cred- itors of the merchant articles placed in the stock by him after the purchase, if they merely replace the goods sold, and are pur- chased with the avails of such sales. Young v. Lemieux, 20: 160, 65 Atl. 436, 79 Conn. 434. 19. The horses, wagons, harness, screens, shovels, baskets, chutes, desk, and safe used in transacting a coal business are not fix- tures, within the meaning of a bulk sales law forbidding the sale of a stock of mer- chandise "and the fixtures pertaining to the conduct of said business," otherwise than in the ordinary course of trade, without giving notice to creditors. Bowen v. Quiaj- ley, 34: 218, 130 N. W. 690, 165 Mich. 337. ( Annotated ) 20. A sale of his tools and stock in trade by one who buys stone in the rough and cuts and dresses it to fill orders which he may receive is not within a statute making void a sale of his stock, without certain notices to creditors by one who makes it his business to buy commodities and sell the same in small quantities for the purpose of making a profit. Connecti- cut Steam Brown Stone Co. v. Lewis, 45: 495, 85 Atl. 534, 86 Conn. 386. (Annotated) 21. If one desiring to purchase a stock of merchandise in bulk demands and re- ceives from the vendor a written state- ment under oath, purporting to contain the names and addresses of all the cred- itors of the vendor, together with the amount of the vendor's indebtedness to each of them, and within the time required by the statute due notice of the proposed sale, the price to be paid, and the terms and conditions thereof are given by the purchaser to each of the creditors whose names appear on the list so furnished, and thereafter the purchaser in good faith pays over to the vendor the purchase price agreed on, without notice or reason to sus- pect that the vendor has omitted from the sworn list the name of any of his creditors, the sale is not void, either in whole or in part, by reason of the fact that the seller omitted to name one of his creditors, and the purchaser failed to give that creditor notice of the sale, though such creditor iid not in fact have any notice of the sale, and though the seller is insolvent. Inter- national Silver Co. v. Hull, 45: 492, 78 S. E. 609, 140 Ga. 10. (Annotated) 22. A chattel mortgage covering a stock of merchandise, where the mortgagor re- mains in possession, and has the usual right of redemption, creates a lien only, and does not pass title, and is not a sale, exchange, or assignment within the meaning of the Oklahoma bulk sales law, and is therefore FRAUDULENT CONVEYANCES, II. IV. 1329 not within the inhibition of said statute against a transfer without notifying credi- tors. Noble v. Ft. Smith Wholesale Grocery Co. 46: 455, 127 Pac. 14, 34 Okla. G62. //. Consideration. creditors of the insolvent, where the rela- tives knew of the existence of other debts due by the failing debtor, who was retained as president and manager of the corporation at a specified salary. Hoppe Hardware Co. v. Bain, 17: 310, 95 Pac. 7t>5, 21 Okla. 177. (See also same head-ing in Digest L.R.A. | IV. Notice,' rights and liabilities of 1-10.) purchaser. See also infra, 27. 23. A sale for $13,000 on property rea- sonably worth $16,200 does not show such a discrepancy between price and value as to bring it within the rule which charges the purchaser, in some instances, as trustee for creditors, as to the difference between price and value, especially where the sale must be made in haste and upon a restricted market. Rosenheimer v. Krenn, 5: 395, 106 N. W. 20, 126 Wis. 617. (Annotated) 24. Sale of property in a bona fide orig- inal transaction of bargain and sale at a price known by both vendor and vendee to be below its true value would seem not to be sufficient to charge the purchaser as trus- tee for the difference between price and value, in favor of creditors of the vendor. Rosenheimer v. Krenn, 5: 395, 106 N. W. 20, 126 Wis. 617. (Annotated) 25. The issuance, by a corporation or- ganized to continue the business of an in- solvent partnership, of its stock to the members of the partnership, who contribut- ed cash received from insurance on the partnership property, is a sufficient consid- eration for the money so contributed, so that it is not liable to account for such money to the creditors of the partnership. Byrne Hammer Dry Goods Co. v. Willis- Dunn Co. 29: 589, 121 N. W. 620, 23 S. D. 221. 717. Preferences; security. (See also same heading in Digest L.R.A. 1-10.) Preferences by insolvent corporation, see CORPORATIONS, VI. f, 2. Question for jury as to, see TRIAL, 269. See also infra, 47, 50. 26. West Virginia Code 1906, chap. 74, 2, protecting preferences given to secure purchase money, does not apply to fraudu- lent conveyances. Gilbert v. Peppers, 36: 1181, 64 S. E. 361, 65 W. Va. 355. 27. An insolvent debtor cannot dispose of his property to a stranger, without con- sideration, and authorize him to select such creditors as he may deem proper as recipi- ents of the proceeds of the property in pay- ment of their debts. Hall v. Feeney, 21: 513, 118 N. W. 1038, 22 S. D. 541. 28. The transfer by an insolvent debtor of all his assets to a corporation the stock of which was issued to relatives to whom he was indebted was fraudulent and void as to a creditor not assenting thereto, although the corporation undertook to pay certain Digest 1-52 L.R.A. (N.S.) 84 (See also same heading in Digest L.R.A. 1-10.) See also supra, 18-21. 29. Notice of the rights of an unsecured creditor before full payment of the pur- chase money on a sale not intended by either party to hinder or delay creditors does not destroy the bona fides of the purchaser as to such unpaid portion, or charge him with the duty of applying it upon the debt. Rosenheimer v. Krenn, 5: 395, 106 N. W. 20, 126 Wis. 617. 30. The horses, wagons, and harness of a livery-stable keeper are not within the pro- vision of a statute requiring every person who shall purchase "any stock of goods, wares, or merchandise in bulk" to take a statement under oath of the creditors of the seller. Everett Produce Co. v. Smith, 2: 331, 82 Pac. 905, 40 Wash. 566. (Annotated) 31. That a purchase of chattels from a vendee was made to defraud his creditors will not entitle his vendor to recover from the subvendee, if the original vendee was guilty of no fraud in procuring the sale. Pelham v. Chattahoechee Grocery Co. 8: 448, 41 So. 12, 146 Ala. 216. Notice of transferrer's fraud. See also infra, 45. 32. One holding goods under a pretended sale from a fraudulent vendee in secret trust for him stands in his shoes. Pelham v. Chat- tahoochee Grocery Co. 8: 448, 41 So. 12, 146 Ala. 216. 33. A transfer of property for the pur- pose of securing it for the benefit of the transferrer and his children, in fraud < f his creditors, is not validated by the fact that the transferee is ignorant of the fraudu- lent intent. Clowe v. Seavey, 47: 284, 102 N. E. 521, 208 N. Y. 496. 34. A mortgage given to secure an ac- tual loan of money, made with the common Intent to screen the property of the insol- vent debtor from the pursuit of his creditors, may be set aside at the suit of creditors as in fraud of their rights. Bank of Berwick v. George Vinson Shingle & Mfg. Co. 26: 1068, 50 So. 823, 124 La. 1000. (Annotated) Liability of. 35. The rule that a vendee is not a bona fide purchaser for value until he has actual- ly paid the purchase price, or become irrev- ocably bound for its payment, cannot be invoked against one who has promised to give a consideration for the transfer as- sailed, unless it appears thafc the transfer will hinder or delay the vendor's creditors. 1330 FRAUDULENT CONVEYANCES, V. Everitt v. Farmers' & M. Bank, 20:996,1 117 N. W. 401, 82 Neb. 191. 36. If a debtor conveys his property to avoid the payment of his debts, and the grantee conveys it to an innocent purchaser without notice, this does not create any such relation of debtor and creditor between the fraudulent grantee and a creditor of his grantor as to authorize the creditor to bring an action of contract directly against the fraudulent grantee alone, to recover the amount of the indebtedness of the grantor, who has become a bankrupt. Graves v. Morton, 26: 545, 65 S. E. 112, 132 Ga. 786. (Annotated) 37. An action for the fraud of the de- fendant in purchasing property from a per- son who afterwards became a bankrupt, withholding the title from record, and thus permitting his grantor to obtain credit on the faith of it, and later sell the property to an innocent third party, cannot be main- tained by one who sold personalty to the grantor on credit, but who had no lien therefor. Graves v. Horton, 26: 545, 65 S. E. 112, 132 Ga. 786. 38. One who purchases a stock of goods without complying with the bulk sales law, and whose payment is turned over to pre- ferred creditors of the seller, is liable to the other creditors for their pro rata share of the contract price of the property, although he is entitled to credit for the pro rata share which was received by the preferred creditors. Fechheimer-Keiffer Co. v. Burton, 51:343, 164 S. W. 1179, 128 Tenn. 682. (Annotated) 39. Creditors of one who sells a stock of merchandise in bulk for an adequate con- sideration, without complying with the pro- visions of the bulk sales law, cannot hold the vendee liable for the value of the prop- erty, as trustee, although the statute pro- vides that such sale shall be fraudulent and void as against creditors. McGreenery v. Murphy, 39: 374, 82 Atl. 720, 76 N. H. 338. ( Annotated ) 40. Equity will require a creditor who has received, in settlement of his debt against an insolvent debtor, property ma- terially greater in value than the debt paid thereby, to account to other creditors only for the amount of the property in excess of the consideration paid therefor, where the transaction was entered into by him without intending to defraud other cred-' itors. Griswold v. Szwanek, 21: 222, 118 N. W. 1073, 82 Neb. 761. (Annotated) V. Reservation of interest; change of possession. (See also same heading in Digest L.R.A. 1-10.) Question for jury as to fraud, see TRIAL, 269. Change of possession. Effect of chattel mortgagor's retention of possession, see CHATTEL MORTGAGE, 24- 30. Digest 1-52 L,.R.A.(N.S.) Effect of chattel mortgagee taking posses- sion, see CHATTEL MORTGAGE, 31-38. Presumption of fraud, see EVIDENCE, 272. Sufficiency of evidence to show good faith in sale, see EVIDENCE, 2090. Change of possession of pledge, see PLEDGE AND COLLATERAL SECURITY, 2-10. Necessity of, to passing of title, generally, see SALE, I. b. 41. Failure to make delivery does not as against creditors of the seller, a, coten- ant, avoid the sale of an undivided interest in property which, at the time of the sale is in the possession of the other cotenant, under a statute providing that every trans- fer of personalty by one in possession or control shall be conclusively presumed to be fraudulent if not followed by actual and continued change of possession. Love v. Schmidt, 31: 1162, 110 Pac. 665, 26 Okla. 648. (.Annotated) 42. Formal delivery to the purchaser of an undivided interest in grain stacked on premises rented by the purchaser from the owner of the remainder of the grain is not necessary to render the sale valid as ajainst creditors of the vendor, as in such case formal delivery would be but a vain act. Love v. Schmidt, 31: 1162, 110 Pac. 665, 26 Okla. 648. 43. A statute making transfers of per- sonal property without immediate change of possession void as against creditors has no application to a transfer of corporate stock not entered on the books of the cor- poration, but the certificates of which were delivered to the transferee. State Banking & T. Co. v. Taylor, 29: 523, 127 N. W. 590, 25 S. D. 577. 44. The equitable principle that, where one of two innocent parties must suffer, the loss should fall on him whose act has made the loss possible, does not apply to a sale of personal property without change of possession, so as to estop the showing of good faith by the vendee, even after the rights of innocent third parties have inter- vened, where by statute the retention of a chattel by the vendor raises only a pre- sumption of fraud, as the statute is con- trolling. Wilson v. Walrath, 24: 1127, 115 N. W. 203, 103 Minn. 412. 45. A finding that the vendee of an auto- mobile acted in good faith and without in- tent to hinder, delay, or defraud the credit- ors of the vendor or subsequent purchasers from him is warranted, where the evidence shows that the vendee paid full value with- out knowledge of the vendor's insolvency, that the vendee had desired for some time to purchase an automobile, and that the vendor was a dealer in automobiles, although the machine was left in the possession of the vendor under an agreement that he should retain possession thereof for thirty days for demonstrating purposes, in consideration of its subsequent repair and storage. Wilson v. Walrath, 24: 1127, 115 N. W. 203, 103 Minn. 412. 46. One purchasing the furniture of a hotel at a place 6 miles therefrom, on Sat- urday afternoon, too late conveniently to FRAUDULENT CONVEYANCES, VI. VIII. 1331 take up the carpets that night, and who, by the terms of the sale, is not to take possession until the following Monday, ac- quires no rights as against an attachment of the property as that of his vendor, later in the afternoon of the sale. W. P. Cham- berlain Co. v. Tuttle, 25: 604, 71 Atl. 865, 75 N. II. 171. VI. Transactions between relatives. (See also same heading in Digest L.R.A. 1-10.) By husband to wife, see HUSBAND AND WIFE, 148-151. 47. A conveyance by an insolvent to his parents, for the purpose of securing a debt honestly due them, of property the value of which is not in excess of the amount due, will not be set aside as fraudulent in favor of creditors. First Nat. Bank v. Brubaker, 2: 256, 105 N. W. 116, 128 Iowa, 587. VII. Subsequent creditors. (See same heading in Digest L.R.A. 1-10.) VIII. Remedies. (See also same heading in Digest L.R.A. 1-10.) As ground of attachment, see ATTACHMENT, 43. Right of owner to recover possession of property fraudulently conveyed, see CONTRACTS, 569. By creditors' bill, see CREDITORS' BILL. Power of court, in setting aside, to devest title of remainderman and vest it in life tenants as general heirs of debtor, see JUDGMENT, 135. Limitation of time for suit to set aside, see LIMITATION OF ACTIONS, 171. 48. Where a transaction involving a transfer of property is void as to creditors of the transferrer, and equity jurisdiction is not necessary to remove a cloud on title or for some other relief within the peculiar field of equity jurisdiction, tyie creditors may proceed at law, treating such trans- action as if it never occurred, it being void as to them, and the bringing of an action inconsistent with the validity of the transfer being a sufficient election. Atlanta & W. Butter & Cheese Asso. v. Smith, 32: 137, 123 N. W. 106, 141 Wis. 377. 49. Judgment creditors of a debtor who has made a fraudulent conveyance have liens on his real estate from the dates of their respective judgments, and on his per- sonal property from the dates of the ac- quisitions thereof by execution, attachment, or otherwise, whether they be acquired be- fore or after the conveyance, if they are preserved by compliance with registration and other laws provided for the purpose. Gilbert v. Peppers, 36: 1181, 64 S. E. 361, 65 W. Va. 355. Digest 1-52 L.R.A. (N.S.) 50. The general creditor who first at- tacks a fraudulent conveyance obtains a lien on the property by the institution of his suit; and preferences among all of such creditors are determined by the dates of the commencements of their suits, if separate suits are brought, or of the commencement of the suit and the filing of petitions, if all assert their rights in the same suit. Gil- bert v. Peppers, 36: 1181, 64 S. E. 361, 65 W. Va. 355. To whom available. Who may maintain suit to set aside, see BANKRUPTCY, 93. Right of judgment creditors to maintain action to annul mortgage in fraud of their rights, see PARTIES, 26. 51. Any one who, but for a deed made to defraud creditors, would have a right to sub- ject the property to his demand is a "cred- itor," entitled to sue in equity to set it aside, under W. Va. Code 1906, 3099-3108. Carr v. Davis, 20: 58, 63 S. E. 326, 64 W. Va. 522. 52. A bail in a criminal recognizance, against whom an award of execution upon the recognizance has been made, and to whom a bond has been given to indemnify him against all loss or damage which ho might sustain on account of having signed the recognizance, may file a bill in equity, before payment of the recognizance debt, to set aside a deed made by the obligor in such indemnity bond, as made with in- tent to defraud him as a creditor. Carr v. Davis, 20: 58, 63 S. E. 326, 64 W. Va. 522. 53. The administrator of one who dies in- solvent may maintain an action to set aside a conveyance of real estate which he made in fraud of creditors. Chester Coun- ty Trust Co. v. Pugh, 50: 320, 88 Atl. 319, 241 Pa. 124. (Annotated) 54. A simple-contract creditor cannot, prior to obtaining a judgment or lien, at- tack as fraudulent his debtor's transfer of nonexempt property which may be applica- ble to the payment of his claim; nor can he sustain an action to enjoin a threatened fraudulent transfer of his debtor's property until he has obtained a specific lien upon such property. O'Day v. Ambaum, 15: 484, 92 Pac. 421, 47 Wash. 684. (Annotated) 55. A surety for the performance of a construction contract, being a simple-con- tract creditor, cannot, before obtaining a judgment or lien, maintain a suit to enjoin. as a fraud upon him, a conveyance of non- exempt property by persons who formed a partnership with the principal for the pur- pose of performing the contract, even if there is any contract relation between the plaintiff and such persons. O'Dav v. Am- baum, 15: 484, 92 Pac. 421, 47 Wash. 684. (Annotated) 56. A mortgage by an insolvent debtor to a corporation, given in return for a loan of money but with the common intent to screen his property from the pursuit of his creditors, may be impeached by such cred- itors as an ultra vires act on the part of the corporation, which had no power to loan money and take mortgages, and may be 1332 set aside as in fraud of their rights. Bank of Berwick v. George Vinson Shingle & Mfg. Co. 26: 1068, 50 So. 823, 124 La. 1000. FRAUDULENT TELEGRAM FRIG 11T. FREIGHT. FRAUDULENT TELEGRAM. Liability of telegraph company, see TELE- GBAPHS, II. a, 4. FREE DELIVERY. By express company, see CARRIERS, 766; COMMERCE, 32-34. FREEDOM, OF CONTRACT. See CONSTITUTIONAL LAW, II. b, 4, b. + * - FREEDOM OF SPEECH AND PRESS. See CONSTITUTIONAL LAW, II. d. FREEDOM OF WORSHIP. See CONSTITUTIONAL LAW, II. d. FREEHOLDERS. Carriage of, see CARRIERS, III. Right of mortgagee of ship to unpaid freight, see CHATTEL MORTGAGES, 45. Garnishment of, see GARNISHMENT, 20. Mechanics' lien for money advanced to pay freight on materials, see MECHANICS' LIENS, 49. FREIGHT ELEVATOR. Liability for injury to passenger riding on, see ELEVATORS, 14-16. As dangerous machine on which children may not be employed, see MASTER AND SERVANT, 170. FREIGHT MONEY. Right of consignee to garnish, see GARNISH- MENT, 4, 5. FREIGHT TRAIN. Passenger on, see CARRIERS, 242, 292-296, 911-914; EVIDENCE, 361. Ejection of trespasser from, see CARRIERS, 398. FRESHET. Requiring jury commissioners to be free- Municipal liability for injury during, see * o I ^r\Tnr\r* A "T-r/^ff o A A K _ holders, see OFFICERS, 8. FREE PASSENGER. See CARRIERS, II. m, 3. FREE SCHOLARSHIPS. Applying charitable devise to establishing, see CHARITIES, 64. FREE TRANSPORTATION. Of pupils, see SCHOOLS, 2-5. In general, see PASSENGERS, II. m, 3. FREEZING. Carrier's liability for loss by, see CARRIERS, 806, 908, 977. Liability of insurer against leakage from automatic sprinkler, for leakage caused by freezing, see INSURANCE, 675. Digest 1-52 L.R.A.(N.S.) MUNICIPAL CORPORATIONS, 445. FRIEND OF COURT. See AMjpus FRIGHT. Of horses, see ANIMALS, 21, 22; AUTOMO- BILES, 38-51 ; BLASTING, 3 ; BRIDGES, 8 ; EVIDENCE, 324, 1145, 1172, 1863, 1864; HIGHWAYS, 174, 199-202, 205, 277-284, 338, 353; INTERURRAN RAIL- WAY, 4; LIMITATION OF ACTIONS, 184; MUNICIPAL CORPORATIONS,. 334, 347, 359; NEGLIGENCE, 19, 20, 194, 213, 238, 293; PLEADING, 23, 329, 333- 338, 400; PROXIMATE CAUSE, 114, 117; RAILROADS, II. d r 5, 233-235, 240-242; STREET RAILWAYS, 47, 53, 69, 101; TRIAL, 413, 417, 425, 439, 806, 1128. Of passenger, see CARRIERS, 217-219, 312. Right of action for causign relapse of con- valescent woman by threatening and abusive language, see CASE, 2. Damages for mental anguish, see DAMAGES, III. o. FROGS FRONTAGE TAX. 1333 Recovery for death from fright caused by blasting, see DEATH, 41. Liability for murder of one causing death by, see HOMICIDE, 2. Liability for manslaughter of one causing death by, see HOMICIDE, 36. Proximate cause of injury by, see PROXI- MATE CAUSE, X. 1. No liability exists for acts of neg- ligence causing mere fright or shock, \mac- companied by contemporaneous physical in- jury, even though subsequent illness results, where the negligent acts complained of are neither wilful nor malicious. Miller v. Bal- timore & 0. S. W. R. Co. 18: 949, 85 N. E. 499, 78 Ohio St. 309. 2. Impairment of health, or loss of bod- ily power, through fright which is the nat- ural and direct result of the negligent act of another, is sufficient to sustain an action against the wrongdoer. Kimberly v. How- land, 7: 545, 55 S. E. 778, 145 N. C. 398. 3. Damages may be recovered for bodily injury caused by fright, although there was no physical injury at the time of the acci- dent, if the fright is followed by a series of physical ills as its natural consequence, the fright giving rise to nervous disturbances, and those in turn to physical troubles. Simone v. Rhode Island Co. 9: 740, 66 Atl. 202, 28 R. I. 186. 4. Damages may be recovered for actual physical injuries resulting from fright and nervous shock caused by wrongful blast- ing, although there is no direct physical im- pact against the body of the person injured. Green v. Shoemaker, 23 : 667, 73 Atl. 688, 111 Md. 69. 5. No recovery can be had for frighten- ing a man ill in bed, by the explosion of dynamite in front of his house, so that he died within two weeks thereafter, from the shock and attending exertion in aiding his wife, who was also ill. Huston v. Freemans- burg, 3: 49, 61 Atl. 1022, 212 Pa. 548. (Annotated) 6. One having a right to enter upon an- other's property to remove telegraph poles is liable for injury to the wife of the one in possession thereof, frightened because of the loud, profane, boisterous, and lewd lan- guage employed by his servants upon the premises and towards her while in the exe- cution of the work, and their entry of the dwelling without right. May v. Western U. Teleg. Co. 37: 912, 72 S. E. 1059, 157 N. C. 416. 7. That the extent of the injury sus- tained by one whose wagon was negligently collided with by that of another person, and which consists of an impairment of nervous power, and weakness and suffering due to the fright and shock received, is indeter- minate and was impossible of anticipation, is not a bar to a recovery of compensation by the injured party for the actual pecun- iary loss caused by the act of the negli- gent party. Armour v. Kollmeyer, 16: mo, 161 Fed. 78, 88 C. C. A. 242. Digest 1-52 L.R.A.(N.S.) 8. No damages can be recovered by a bystander for temporary blindness and ter- rible fright and nervous shock due to neg- ligence in causing an iron brace to come in' contact with a trolley wire, so as to cause a powerful electric flash of an explosive nature. Chittick v. Philadelphia Rapid Transit Co. 22: 1073, 73 Atl. 4, 224 Pa. 13. (Annotated) Causing miscarriage. 9. Miscarriage following fright or shock caused by negligence will entitle the one who suffers it to maintain an action against the one guilty of the negligence, although there was no physical contact with the person. Pankopf v. Hinkley, 24: 1159, 123 N. W. 625, 141 Wis. 146. 10. One who causes nervous excitement in a pregnant woman by his wrongful tres- pass upon her home to such an extent as to cause her miscarriage is liable to her for the bodily pain and suffering endufed in direct line of causation from the wrongful act, although no physical violence is done to her person. Engle v. Simmons, 7: 96, 41 So. 1023, 148 Ala. 92. 11. The assault by an intoxicated person upon, and his use of abusive language to- ward, another in a house where he is not shown to be a trespasser, gives no right of action against him to a pregnant woman in the house, not related to the person assault- ed, who is out of sight although within hearing of the assault, and whose presence is not known to the assailant, for injuries resulting to her from fright causing mental pain and agony, illness, threatened miscar- riage, and possibly permanent impairment of health, since, not knowing of her pres- ence, the assailant cannot reasonably have anticipated injury to her from his conduct. Reed v. Ford, 19: 225, 112 S. W. 600, 129 Ky. 471. FROGS. Negligence in failing to block frogs in switches, see MASTER AND SERVANT, 399. Assumption of risk from unblocked frogs, see MASTEB AND SERVANT, 544, 545, 571. FROLIC. Injury to actress during, see MASTEB AND SERVANT, 443, 622, 858. FRONTAGE TAX. Validity of, see CONSTITUTIONAL LAW, 414, 642a; PUBLIC IMPROVEMENTS, 40, 66- 69. 1334 FRUIT FUR. FRUIT. Liability of carrier for loss of, during transportation, see CARRIERS, 806, 810, 812. Sale of, by carrier, when rejected, see CAR- RIERS, 833. Order of police department forbidding car- rier to deliver, see CARRIERS, 835. Duty to furnish cars for transportation of. see CARRIERS, 960, 963. Damages for delay in transportation of, see DAMAGES, 287, 288. Requiring marking of fruit packed for ship- ment, see CONSTITUTIONAL LAW, 665. Cause of decay of, see EVIDENCE, 1074. Charging sale of rotten fruit, see LIBEL AND SLANDEB, 51. Requiring fruits exposed for sale to be pro- tected from flies and dust, see MUNICI- PAL CORPORATIONS, 193. Negligence causing injury to, from cold, see PLEADING, 339, 340. FRUIT TREES. Damages for injury to, or destruction of, see DAMAGES, 472, 477. Breach of warranty on sale of, see SALE, 174. FUEL. Right of municipality to engage in sale of fuel to inhabitants for cost, see CON- STITUTIONAL LAW, 385; TAXES, 38. FUGITIVE FROM JUSTICE. Release on bail, see BAIL AND RECOGNI- ZANCE, 5, 7, 8. Extradition of, see EXTRADITION. Review of extradition proceedings for, see HABEAS CORPUS, 23, 24, 57-66. FULL CREW ACT. Constitutionality of, see CONSTITUTIONAL LAW, 440. Review of, by court, see COURTS, 102. Injunction against enforcement of, see IN- JUNCTION, 355. FULL FAITH AND CREDIT. To judgment of other state, see JUDGMENT, IV. b. Digest 1-52 L.R.A.(N.S.) FUMES. Measure of damages for injury to crops by, see DAMAGES, 482, 483. As nuisance, see DAMAGES, 507 ; NUISANCES, 18, 199. Injury to property by noxious fumes, see EQUITY, 105. Injury to servant by, see MASTER AND SERV- ANT, 219, 220, 436. Liability for injury by, generally, see NEG- LIGENCE, 38. FUMIGATION. Negligent burning of insured house in at- tempting to fumigate it, see INSUB- ANCE, 694. FUNDING COMPANY. Fraud of, see FRAUD AND DECEIT, 5. FUNERAL. Absence of ceremony, see CORPSE, 9. Liability of undertaker furnishing carriages for funeral to occupants of carriages, see PARTIES, 58. Expense of, see FUNERAL EXPENSES. FUNERAL EXPENSES. Review on appear of allowance for, see AP- PEAL AND ERROR, 565, 1598. Contract to furnish burial at death, see CONTRACTS, 408; INSURANCE, 5, 64, 303, 825. As element of damages for negligent killing, see DAMAGES, 40], 402. Liability of decedent's estate for, see EXEC- UTORS AND ADMINISTRATORS, IV. a, 4. Of married woman, liability of her separate estate for, see HUSBAND AND WIFE, 96- 98. Husband's right to reimbursement from wife's estate, see HUSBAND AND WIFE, 14. Liability of father for burial expenses of child, see PARENT AND CHILD, 8. Failure to itemize in pleading, see PLEAD- ING, 633. FUR. Liability of wholesaler for injury to pur- chaser of dyed fur, see NEGLIGENCE, 57. FUTURE ACQUIRED PROPERTY GAME AND GAME LAWS. 3335 FUTURE ACQUIRED PROPERTY. Enforcement of contract to convey, see SPE- CIFIC PEBFORMANCE, 95. FUTURE EARNINGS. Mortgage on, see CHATTEL MORTGAGE, 18. Assignment of, see ASSIGNMENT, 6-10, 31, 32; CONSTITUTIONAL LAW, 458. Garnishment of, see GARNISHMENT, 25, 26. FUTURE INVENTIONS. Validity of agreement to assign, see CON- TRACTS, 446. FUTURES. Broker's right to commission on grain or- dered for future delivery, see BROK- ERS, 1. Brokerage contracts for buying and selling futures as interstate commerce, see COMMERCE, 100, 101. Validity of dealings in, generally, see CON- TRACTS, 531-534, 590-594. Dealing in, as gaming, see GAMING, 17. Injunction to restrain payment by bank of margins on option futures, see INJUNC- TION, 55. Collusiveness in other state of judgment permitting recovery of money paid, see JUDGMENT, 284. Dealing in, as violation of statute forbid- ding combination to fix prices, see MO- NOPOLY AND COMBINATIONS, 43, 44. G GAMBLING. See GAMING. GAME AND GAME LAWS. Appropriation to pay salary of state game and fish warden, see APPROPRIATIONS, 3, 4. Constitutionality of statute regulating hunt- ing, see CONSTITUTIONAL LAW, 198. Due process as to, see CONSTITUTIONAL LAW, 528. Former conviction or acquittal as bar to prosecution for violation of game laws, see CRIMINAL LAW, 184. Jurisdiction of equity to prevent wrongful interference with hunting privilege, see EQUITY, 34. As to fish, see FISHERIES. Injunction against hunting or fishing on navigable waters, or to prevent inter- ference therewith, see INJUNCTION, 49. Injunction against trespass upon game pre- serve, see INJUNCTION, 193. Right to jury trial in prosecution for vio- lation of, see JURY, 36. Hunting blind for purpose of shooting as nuisance, see NUISANCES, 75. Sufficiency of title of statute as to game, see STATUTES, 114. Special or local laws for protection of game, see STATUTES, 183. Computation of duration of "open season," see TIME, 9. Public right of fowling on seashore, see WATERS, 69. 1. Wild game is the property of the captor, and not of him on whose land it is taken. State v. Horton, i: 991, 51 S. E. 945, 139 N. C. 588. Digest 1-52 L.R.A.(N.S.) 2. The legislature may constitutionally forbid the killing of domesticated deer dur- ing the closed season, in order to prevent an evasion of the law for the protection of wild deer. Dieterich v. Fargo, 22: 696, 87 N. E. 518, 194 N, Y. 359. 3. A provision of a statute for the pro- tection of game, prescribing an open sea- son for deer, and providing that deer shall not be taken at any other time, refers to domesticated as well as wild deer. Diete- rich v. Fargo, 22: 696, 87 N. E. 518, 194 N. Y. 359. 4. A provision of a game law limiting the number of deer which can be killed by one person, and requiring venison trans- ported during the open season to be accom- panied by the owner, does not apply to that raised in captivity. Dieterich v. Fargo. 22: 696, 87 N. E. 518, 194 N. Y. 359. 5. Where the legislature has reserved title in the state to the wild game within its limits, and permitted the killing of it in limited quantities under certain condi- tions, it may, without infringing the prop- erty rights of those who have rightfully taken it, absolutely prohibit any sale of it. Blardone, Appellant, 21: 607, 115 S. W. 838. 55 Tex. Crim. Rep. 189. 6. The statute forbidding those in right- ful possession of game taken within the state from selling it is not unreasonable, nor is it void as having no real or sub- stantial relation to the object for which it was passed, to wit, the protection of game within the state; nor is it invalid as class legislation. Blardone, Appellant, 21:607, 115 S. W. 838, 55 Tex. Crim. Rep. 189. (Annotated) 7. The rights of a meat dealer are not infringed by a statute forbidding the hav- ing in possession the carcass of any deer unless the same has thereon the natural evidence of its sex, although the animals in 1336 GAME OF HAZARD GAMING. his possession are raised in captivity. State v. Weber, 10: 1155, 102 S. W. 955, 205 Mo. 36. (Annotated) 8. A statute requiring all fines collected for violation of a game law prohibiting cer- tain persons to hunt in a specified county except upon certain conditions, to be paid to the warden of such county, who shall make monthly reports to the board of coun- ty commissioners, is repugnant to a con- stitutional provision requiring fines collected within any county to be paid into the fine and forfeiture fund thereof. Harper v. Gal- loway, 26: 794, 51 So. 226, 58 Fla. 255. Possession of game killed outside of state. State power to prohibit importation of game birds, see COMMERCE, 39. 9. That an imported game bird is not of the same variety as the local birds of that species is no defense to a prosecution for having it in possession, where the stat- ute is made applicable to all birds of that family. People ex rel. Hill v. Hesterberg, 3: 163, 76 N. E. 1032, 184 N. Y. 126. Hunting privilege. 10. One who has granted the exclusive right to shoot wild fowl upon the waters upon his land is not liable in damages for clearing and draining the land, if he does so in good faith for the purpose of improving it, but may be so if he acts in bad faith in order to injure the grantee. Isherwood v. Salene, 40: 299, 123 Pac. 49, 61 Or. 572. (Annotated) GAME OF HAZARD. What constitutes, see CONTRACTS, 593. GAMES. On Sunday, see SUNDAY, II. GAMING. Effect of statement of account based on wagering transaction, see ACCOUNTS, 10. Effect of betting on race on right of partic- ipant in, to recover for injury, see AC- TION OB SUIT, 39. Note given in compromise of suit upon an- other executed in satisfaction of gamb- ling debt, see BILLS AND NOTES, 18. Check given in gambling transaction, see CHECKS, 49, 50; TRIAL, 304. Enforcement in other state of contract to pay gambling debt, see CONFLICT OF LAWS, 13-16. Slot machine as property, see CONSTITUTION- AL LAW, 370. As to gambling contracts, see CONTRACTS, III. d. Punishment by both state and municipality, see CRIMINAL LAW, 223-225. Digest 1-52 L.R.A.(N.S.) Estoppel to set up defense that note was given in gambling transaction, see ES- TOPPEL, 168, 169; PLEADING, 525. Admissibility of evidence to show that note was given for gambling debt, see EVI- DENCE, 1935. Presumption of validity of contract to pur- chase and carry stock on margin, see EVIDENCE, 522. Participant in game as accomplice of adver- sary, see EVIDENCE, 2371. Sufficiency of indictment for, see INDICT- MENT, ETC., 126, 129. Enjoining prosecution for violation of stat- ute against, see INJUNCTION, 307. Joint liability of persons engaged in busi- ness of gambling, see JOINT CREDITORS AND DEBTORS, 6. Validity of statute permitting injunction against gambling house, see JURY, 47. As to lottery, see LOTTERY. Notice to surety of broker that customer's notes taken as collateral security were executed in gaming transactions, see NOTICE, 6. As nuisance, see NUISANCES, 55-60, 162, 163, 171. Partnership in business of, see PARTNER- SHIP, 1. Sending through mails offer to sell loaded dice and marked playing cards, see POSTOFFICE, 11. Payment by agent of fines for importation by principal of gambling devices, see PRINCIPAL AND AGENT, 97. Replevin to recover gambling devices, see REPLEVIN, 20. Sufficiency of title of statute as to, see STAT- UTES, 122. See also BETTING. 'What constitutes gambling or gamb- ling device. What constitutes a "gambling device," see also CONTRACTS, 594. 1. The word "gaming" has no technical meaning, but includes every contrivance or institution which has for its object any sport, recreation, or amusement for the public upon which money or any other article of value can be won or lost by the result of such contrivance or institution, and includes bets or wagers made upon any physical contest, whether of man or beast, when practised for the purpose of deciding such bets or wagers. James v. State, 33: 827, 113 Pac. 226, Okla. Crim. Rep. 2. By the word "device" in a statute making it a misdemeanor to conduct a banking or percentage game, played with dice, cards, or any device, for money, is meant the means, instrument, contrivance, or thing by which a banking or percentage game is played. James v. State, 34: 515, 112 Pac. 944, 4 Okla. Crim. Rep. 587. 3. To be liable to punishment under a statute making one guilty of a misde- meanor who deals, plays, or carries on, opens, or conducts any of certain specified games, or any banking or percentage game played with dice, cards, or any device, for GAMING. 1337 money, one must deal, play, carry on, open, or conduct a game specified upon which money or other representative of value is wagered, or some banking or percentage game, played with dice, cards, or some other device. James v. State, 34: 515, 112 Pac. 944, 4 Okla. Crim. Rep. 587. 4. A gambling game within the general language of an ordinance prohibiting the playing of any such game is not taken out of the operation of the ordinance by the fact that the general language is preceded by an enumeration of prohibited games which does not include the particular one in question. Seattle v. MacDonald, 17: 49, 91 Pac. 952, 47 Wash. 298. 5. Playing cards for money on a blanket in a shed as an attachment of a dance does not warrant conviction under a statute pro- viding that any person who shall, for the purpose of gaming, exhibit any gaming ta- ble, bank, or device, shall be guilty of fel- ony. Hanks v. State, 17: 1210, 111 S. W. 402, 54 Tex. Crim. Rep. 1. (Annotated) 6. A slot machine known as a percent- age game of chance, in which a fund is constantly kept, against which the player plays, and to w^ich his losings are added, and from which his winnings are taken, the chances being unequal in favor of the owner of the machine, is a banking game within the inhibition of N. M. Laws 1907, chap. 64, p. 25, 1, making it unlawful to run and operate any banking games of chance such as faro, etc., or any other banking games or games of chance played with dice or cards, by whatsoever name known. Terri- tory v. Jones, 20: 239, 99 Pac. 338, 14 N. M. '579. 7. Slot machines, where the chances are unequal in favor of the machine, are ejus- dem generis with faro, monte, roulette, fan tan, poker, craps, etc., specifically enumerat- ed in, and prohibited by N. M. Laws 1907, chap. 64, p. 25, 1, and are unlawful. Ter- ritory v. Jones, 20: 239, 99 Pac. 338, 14 N. M. 579. (Annotated) 8. That a slot machine which delivers an article worth the coin deposited, and sometimes tickets for additional chances in addition thereto, indicates before each trans- action what will be delivered, does not pre- vent its being within the operation of a statute prohibiting gaming devices. Fer- guson v. State, 42: 720, 99 N. E. 806, 178 Ind. 568. (Annotated) 9. A slot machine so operated that the operator placing a coin therein and taking a chance on what will be the result of the deposit of the coin, whether to win or to lose, is a gambling device. Mueller v. Wil- liam F. Stoccker Cigar Co. 34: 573, 131 N. W. 923, 89 Neb. 438. (Annotated) 10. A pool table for the use of which the loser of the game is, to the knowledge of the keeper, to pay, is a gambling device within the meaning of statutes providing punish- ment for one who exhibits such devices. State v. Sanders, 19: 913, 111 S. W. 454, 86 Ark. 353. 11. A pool game in which a certain price per cue is charged for the use of the table, Digest 1-52 L.R.A.(N.S.) all of which is to be paid by the loser of the game, is within the statutes against gam- bling. State v. Sanders, 19: 913, 111 S. W. 454, 86 Ark. 353. (Annotated) Place where gaining committed. 12. The keeping of a common gaming house is a misdemeanor at common law, and consequently a violation of the law of this state. State v. Baker, 33: 549, 71 S. E. 186, 69 W. Va. 263. 13. The keeping of a common gaming house is unlawful, whether the gambling therein be lawful or unlawful. State v. Baker, 33: 549, 71 S. E. 186, 69 W. Va. 263. 14. It is not material that a common gaming house should be kept for lucre or profit. State v. Baker, 33: 549, 71 S. E. 186, 69 W. Va. 263. 15. It is not essential, to constitute the offense of keeping a common gaming bouse, that the gambling therein should be in view of the public, or that the public should be disturbed by noise therein. State v. Baker, 33: 549, 71 S. E. 186, 69 W. Va. 263. 16. That only those who gamble are ad- mitted to the room where the gambling is carried on, and the rest of the public are excluded therefrom, does not affect the crime. State v. Baker, 33:549, 71 S. E. 186, 69 W. Va. 263. (Annotated) 17. The keeping of a bucket shop is with- in the provisions of a statute providing for the punishment of one who shall keep any place for the purpose of gaming. Wade v. United States, 20: 347, 33 App. D. C. 29. (Annotated) 18. The business of a cigar store where slot machines are set up for the use of customers, in which the deposit of a coin may draw a prize or a blank to the ad- vantage of the proprietor, either by the winnings or the stimulation of trade, is illegal. Mueller v. William F. Stoecker Cigar Co. 34: 573, 131 N. W. 923, 89 Neb. 438. Recovery of money lost. Jurisdiction of equity in suits to recover money lost by, see EQUITY, 18. Cross bill in suit to recover money lost by, see PLEADING, 539. 19. Fraud or unfairness in the game is not essential to a right of action under 3424, Rev. Stat. 1899, permitting recovery of money lost in gambling. Hobbs v. Boat- right, 5: 906, 93 S. W. 934, 195 Mo. 693. Recovery for injury to slot machine. 20. No recovery can be had for injury to a slot machine which can be used only as a gambling device, which use is pro- hibited by statute. Miller v. Chicago & N. W. R. Co. 45: 334, 141 N. W. 263, 153 Wis. 431. (Annotated) Seizure of property, used in. Constitutionality of, see CONSTITUTIONAL LAW, 370, 609, 652. 21. A litigant will not be heard, in a court of justice, to assert the right of pos- session, as against an officer of the law, of an instrument or device, such as a gambling machine, designed and intended only for use in the commission of crime. Mullen v. Mosely, 12: 394, 90 Pac. 986, 13 Idaho, 457. 1338 GANG PLANK GARNISHMENT. In connection with horse race. | Sale of pools on horse races as breach of < peace, see BREACH OF PEACE, 4. Remedy of one obtaining license to conduct business of book making and pool sell- ing where license is revoked, see CON- TRACTS, 583. Sufficiency of indictment for, see INDICT- MENT, ETC., 126. Right of commission empowered to regulate horse racing to forbid book making, see LICENSE, 42. Revocation of license because of book mak- ing, see LICENSE, 30. Gaming house as nuisance, see NUISANCES, 56, 59, 60. 22. A statute prohibiting book making and pool selling, etc., except within the in- closure of a race track for not exceeding two weeks in any year, is not violative of either the Kansas or Federal Constitutions. Levy v. Kansas City, 22: 862, 168 Fed. 524, 93 C. C. A. 523. 23. Selling pools on horse races is not the playing of a game by a device, within the meaning of a statute punishing such act. State v. Ayers, 10: 992, 88 Pac. 653, 49 Or. 61. 24. One who offers to bet and so an- nounces to others orally, upon a horse about to engage in a race in which he lays odds is not guilty of bookmaking within the meaning of that term in a statute declaring bookmaking to be a misdemeanor. People ex rel. Lichtenstein v. Langan, 25: 479, 89 N. E. 921, 196 N. Y. 260. (Annotated) 25. One who opens or conducts a house, room, or place where the public are invited to assemble and by means of any plan, device, or scheme bet or lay wagers upon the result of horse racing, is punishable under a statute providing punishment for every person who deals, carries on, opens, and conducts any game or any device for money, checks, credit, or any representative of value. James v. State, 33: 827, 113 Pac. 226, Okla. Crim. Rep. . (Annotated) 26. A provision in an act abolishing pool rooms that it shall not apply to inclosures upon race tracks during regular race meet- ings does not legalize bookmaking, if such form of gambling is prohibited under an- other statute. State Racing Commission v. Latonia Agricultural Asso. 25: 905, 123 S. W. 681, 136 Ky. 173. GANG PLANK. Presumption of negligence from tilting of see EVIDENCE, 373. GARAGE. Liability of keeper of garage as bailee, see BAILMENT, 18-22. Effect of condition in deed to prevent erec- tion of, see COVENANTS AND CONDITIONS, 49, 78-80. Digest 1-52 L.R.A.(N.S.) Liability of proprietor for acts of servants, see MASTER AND SERVANT, 51, 877, 878, 914-918. Negligence of chauffeur generally, see AU- TOMOBILES. GARBAGE. As nuisance, see NUISANCE, 21. GARDEN TRUCK. Duty of carrier to furnish refrigerator cara *for, see CARRIERS, 961, 962. GARNISHMENT. I. When garnishment lies, 142. a. In general, 1. b. Against whom, 211. c. What subject to garnishment, 1229. 1. In general, 1226. 2. Property in custody of law, 27-29. d. Situs of debts, 3O42. II. Effect; rights, duties, and lia- bilities of garnishee, 4351. a. In general, 4346. b. Duty as to exemptions; effect of failure to set up, 47. c. Effect of judgment, 48. d. Effect of payment. e. Priorities, 4951. III. Procedure, 5257. First pleading of defense on appeal, see AP- PEAL AND ERROR, 740. Effect of appearance for purpose of quash- ing proceeding, see APPEARANCE, 19, 20. As to attachment, see ATTACHMENT. Garnishment of cash deposit, see BANKS, 62. Of proceeds of mortgaged property by cred- itor of mortgagor, see CHATTEL MORT- GAGE, 30. Right of one garnishing corporation to avail himself of rights of latter against stock- holders, see CORPORATIONS, 303. 304. Effect of remedy by, on right to creditors' bill, see CREDITORS' BILL, 4, 5. Of money in bank in name of certain person as "agent," see EVIDENCE, 614. Evidence in garnishment against executor, see EVIDENCE, 1917. Injunction against, see INJUNCTION, 253, 290-293. Matters concluded by judgment in, see JUDG- MENT, 160, 161. Conclusiveness of foreign judgment in gar- nishment proceedings, see JUDGMENT, 283. Prohibition to restrain proceedings, see PRO- HIBITION, 13, 14. GARNISHMENT, I. a c, 1. 1339 Effect of remedy by, on right to follow trust property, see TRUSTS, 147. Garnishing trustee of spendthrift trust, see TEUSTS, J36. /. When garnishment lies, a. In general. (See also same heading in Digest L.R.A. 1-10.) 1. The drawee of a draft with bill of lading attached cannot, in case the con- signment does not comply with the con- tract, attach the proceeds of the draft in the hands of the collecting bank, to make good his loss on account of the inferiority of the consignment. Haw'-'ns v. Alfalfa Products Co. 44:600, 153 L. W. 201, 152 Ky. 152. ft. Against whom. (See also same heading in Digest L.R.A. 1-10.) 2. The guardian of a person since de- ceased, being an officer of the court, cannot be garnished to reach funds to apply on judgments against the ward's heirs and dev- isees. Pugh v. Jones, u: 706, 112 N. W. 225, 134 Iowa, 746. (Annotated) 3. A soldiers' home established on land, jurisdiction over which is ceded to the Federal government, is not subject to gar- nishment in a state court for a debt due a citizen of the state,' under a statute per- mitting all corporations having a place of business or doing business within the state to be summoned as trustee. Brooks Hard- ware Co. v. Greer, 46: 301, 87 Atl. 889, 111 Me. 78. (Annotated) Plaintiff in main action. When freight money may be considered within power of carrier so as to be subject to attachment for his debt in hands of consignee's agent, see LEVY AND SEIZUKE, 18. 4. A consignee of goods cannot attach the freight money in the hands of his own agent to satisfy a claim for shortage in the consignment. Baker v. Doe, 34: 510, 70 S. E. 431, 88 S. C. 69. (Annotated) 5. Since the right of a consignee of goods to satisfy his claim for shortage in the delivery out of the freight money due is superior to the rights of an attaching creditor of the carrier, he will not be per- mitted to levy an attachment upon such freight money in his own possession. Baker v. Doe, 34: 510, 70 S. E. 431, 88 S. C. 69. Nonresident. See also infra, 15. 6. The courts of a state have jurisdic- tion to entertain garnishment proceedings against nonresident parties in all cases where the defendant and garnishee are both personally served with process while within that state. McShane v. Knox, 20: 271, 114 N. W. 955, 103 Minn. 268. Digest 1-52 L.R.A.(N.S.) Foreign corporation. Situs of debt due, see infra, 36, 41, 42. 7. A foreign insurance company author- ized to do business within the state is chargeable there as trustee for money due its agent for commissions on business done there, under a statute providing that a per- son doing business in the state and resid- ing outside may be charged as trustee, as if he were an inhabitant of the state, for any credits of the defendant by reason of contracts performed within the state. Steer v. Dow, 20: 263, 71 Atl. 217, 75 N. H. 95. 8. Railroad corporations owning and operating railroads in a state other than that by which they were chartered have the status of residents of such state, although they are not citizens of it within the mean- ing of clause 1 of 2 of article 3, and clause 1 of 2 of article 4, of the Constitution of the United States, nor domiciled in such state in the technical sense of that term; and such corporations may be proceeded against as garnishees, without reference to the jurisdiction in which debts due from them were contracted or are payable. Balti- more & 0. R. Co. v. Allen, 3: 608, 52 S. E. 465, 58 W. Va. 388. Executor or administrator. 9. An administrator may be made gar- nishee for the amount owing him for fees, in a proceeding to collect a debt against him individually. Sanders v. Herndon, 5: 1072, 93 S. W. 14, 122 Ky. 760. (Annotated) 10. The administrator cannot be gar- nished to reach funds to satisfy a judgment against intestate's heirs and legatees, if, prior to his appointment, they have as- signed their interest in the estate. Pugh v. Jones, ii : 706, 112 N. W. 225, 134 Iowa, 746. Tenant. 11. One who entered into possession, un- der a lease, of a tract of land a portion of which belonged to a stranger, is not liable to garnishment for the debt of his imme- diate lessor, although the lease has not ex- pired or been canceled, where, to avoid evic- tion, or with the consent of his lessor, he has attorned to the stranger. Nashya Light, H. & P. Co. v. Francestown Soap- stone Co. 18: 396, 69 Atl. 883, 74 N. H. 511. (Annotated) c. What subject to garnishment. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Garnishment of proceeds of draft attached to bill of lading and discounted by bank for debt of drawer, see BILLS OF LADING, 3. As to exemptions, see EXEMPTIONS. What subject to levy, see LEVY AND SEIZ- URE, I. 12. A verdict upon which no judgment has been entered is not subject to garnish- 1340 GARNISHMENT, I. c, 1. ment. Cappelli v. Wood, 4: 624, 62 Atl. 978, 27 R. I. 411. (Annotated) 13. Renewal commissions due by an in- surance company to its general agent un- der contract are subject to garnishment in the hands of the company in favor of his creditor, although they accrued partly from the efforts of subagents and, under the con- tract, were payable at his residence in an- other state. Steer v. Dow, 20: 263, 71 Atl. 217, 75 N. H. 95. (Annotated) 14. Money received from a lottery com- pany by its agent and deposited to his credit in the bank, with the intention of ultimately applying it to the payment of one of the certificate holders of the com- pany, remains the money of the company, and is subject to garnishment by one hold- ing a claim against it. Fidelity Funding Co. v. Vaughn, 10: 1123, 90 Pac. 34, 18 Okla. 13. 15. Where the nonresident general agents of a nonresident steamship line, in order to prevent its funds coming under the jurisdic- tion of the courts of a state, require its brokers in that state to deposit their checks with the general agents to cover future busi- ness, and cash them as orders for transpor- tation are received, so long as the amount of the checks exceed the amount of cash in the brokers' hands for transportation sold, there is no fund in their hands which can be reached by garnishment for the debt of the transportation company. Larsen v. Allan Line S. S. Co. 9: 1258, 88 Pac. 753, 45 Wash. 406. 16. Where a general depositor of a bank makes a deposit to his account, and after- wards demands and receives of the bank all of his deposit except a sum equal to the total of checks previously issued by him, a statement of which checks, he, at the time, furnishes the bank, but makes no arrange- ment that such balance is to be a special deposit, nor is it accepted by the bank as a special deposit, such deposit remains a gen- eral deposit and is subject to attachment. Kaesemeyer v. Smith, 43: 100, 123 Pac. 943, 22 Idaho, 1. 17. A safety deposit company may be garnished for the contents of a sealed package in the box of a customer, although it is ignorant of the contents, if the stat- ute provides a method by which the court can ascertain such contents. Tillinghast v. Johnson, 41: 764, 82 Atl. 788, 34 R. I. 136. (Annotated) 18. The contents of a safety deposit box are not exempt from garnishment in the hands of the company maintaining and rent- ing the right to use it, because it can be opened without injury only by the use of a key in the possession of the customer, if, under the statute, the court has power to direct the forcible opening of the box to secure an examination of its contents. Til- linghast v. Johnson, 41: 764, 82 Atl. 788, 34 R. I. 136. 19. A judgment creditor of a tenant in common who has deeded his share in the common property to a cotenant cannot, as against the rights of the grantee, reach by Digest 1-52 L.R.A.(N.S-) garnishment the share awarded to his debtor after a sale in partition proceedings in- stituted by another tenant in common, in which the rights under the deed were not brought to the attention of, or adjudicated by, the court. Shuler v. Murphy, 14: 333, 44 So. 810, 91 Miss. 518. 20. Sums due to a foreign railway car- rier from other carriers as the former's share of freight on interstate shipments may be garnished under the state laws, despite the provisions of the interstate commerce act and of U. S. Rev. Stat. 5258, U. S. Comp. Stat. 1901, p. 3564, securing conti- nuity of transportation. Davis v. Cleveland, C. C. & St. L. R. Co. 27: 823, 30 Sup. Ct. Rep. 463, 217 U. S. 157, 54 L. ed. 708. Insurance money. Exemption of insurance on life, see EXEMP- TIONS, 9, 10. 21. Funds arising from assessments upon the members of a mutual benefit society, to be used exclusively for the payment of claims of widows and orphans under the rules of the society, are not subject to at- tachment in the hands of a collector of a subordinate lodge for n general debt of the society; since, if they are the funds of the society, they are impressed with an express trust, and if they are the property of the subordinate lodge until transmitted, they are not subject to attachment for the debts of the general society. Brenizer v. Supreme Council of the Royal Arcanum, 6: 235, 53 S. E. 835, 141 N. C. 409. (Annotated) 22. Under a contract by which an insur- er undertakes to indemnify an employer for loss paid because of injury to an em- ployee, there is no obligation on the part of the insurer which can become the sub- ject of garnishment in proceedings by an employee to enforce a judgment which he has secured against the insured. Allen v. ^Etna L. Ins. Co. 7: 958, 145 Fed. 881, 76 C. C. A. 265. (Annotated) 23. Where, under a policy insuring against loss by reason of the operation of the assured's automobile, an action is brought against the assured by a person in- jured by such automobile, and the insurance company thereupon takes sole charge of the defense, to the exclusion of the assured, as it had the right to do under the policy, a judgment in the action against the as- sured becomes, as between plaintiff, de- fendant, and the company, a liability or debt owing unconditionally by the company to the assured, which such plaintiff may reach by garnishment. Patterson v. Adan, 48: 184, 138 N. W. 281, 119 Minn. 308. Shares of stock. See also APPEAL AND ERROR, 736. 24. A corporation which has issued shares of its stock to a purchaser cannot be said to be indebted to him, or to have in its possession property or effects belonging to him, so far as the interest represented by such shares is concerned, within the mean- ing of a statute providing for the attach- ment or garnishment of a debtor's proper- ty or credits, and therefore it cannot be summoned as a garnishee in an action GARNISHMENT, I. c, 2, d. 1341 against him. Pease v. Chicago Crayon Co. 18: 1158, 85 N. E. 619, 235 111. 391. (Annotated) Future earnings. Exempting wages of railroad employees from garnishment, see CONSTITUTIONAL LAW, 183, 184. Injunction against, see INJUNCTION, 292, 293. 25. A writ of garnishment does not reach salary unearned at the date of service there- of, as it applies only to property in esse at such date. Humphrey v. Midkiff, 20: 912, 48 So. 331, 122 La. 939. (Annotated) 26. A garnishee cannot be penalized for false answers made to interrogatories re- garding the amount of salary paid, and the amount of his indebtedness to a judg- ment debtor, by the rendering of a judgment for a larger amount than that due at the date of service thereof, since unearned sal- ary cannot be reached by anticipation through process of garnishment. Humph- rey v. Midkiff, 20: 912, 48 So. 331, 122 La. 939. 2. Property in custody of law. (See also same heading in Digest L.R.A. 1-10.) 27. A fund in the hands of special com- missioners in a chancery cause, which has been directed by decree therein to be paid over to a judgment debtor, is subject to garnishment. Boylan v. Hines, 13: 757, 59 S. E. 503, 62 W. Va. 486. (Annotated) 28. Funds in the hands of a trustee in bankruptcy which the referee has ordered him to pay to a certain person cannot be reached by a creditor of such person by a summons of garnishment issued from a state court, and directed, to and served upon the trustee. Cowart v. W. E. Cald- well Co. 30: 720, 68 S. E. 500, 134 Ga. 544. (Annotated) 29. The surplus of an execution sale left after the judgment is satisfied is subject to garnishment in the hands of the sheriff at the suit of another creditor of the judg- ment debtor, where the statute provides that such surplus shall be immediately turned over to the defendant, his agent, or attorney. Turner v. Gibson, 43: 571, 151 S. W. 793, 105 Tex. 488. (Annotated) d. Situs of debts. (See also same heading in Digest L.R.A. 1-10.) Garnishment of nonresident, generally, see supra, 6, 15. Penal statute forbidding assigning claim against wage earner outside of state for collection, see CASE, 5. Of assets of nonresident alien, see CONFLICT OF LAWS, 135. Making debt due to nonresident garnishable at residence of garnishee, see CONSTI- TUTIONAL LAW, 607. See also supra, 8. Digest 1-52 L.R.A.(N.S.) 30. One indebted to a nonresident can- not place money in a bank to his credit, in defiance of his wishes, for the purpose of conferring jurisdiction in attachment pro- ceedings upon a court where the bank is located. Saxony Mills v. Wagner & Co. 23: 834, 47 So. 899, 94 Miss. 233. 31. The situs of property, as determined by the residence of the parties, which is sought to be reached by garnishment, is im- material, where personal service is had up- on both defendant and garnishee. McShane v. Knox, 20: 271, 114 N. W. 955, 103 Minn. 268. 32. In garnishment, the place of payment of a debt is immaterial where the garnishee interposes no claim that he cannot be com- pelled to make payment at a place other than that agreed upon with the creditor. McShane v. Knox, 20: 271, 114 N. W. 955, 103 Minn. 268. 33. A debt may be attached by garnish- ment at the place of residence of the debtor, although it be expressly made payable else- where. Baltimore & O. R. Co. v. Allen, 3: 608, 52 S. E. 465, 58 W. Va. 388. (Annotated) 34. For the purposes of garnishment, a debt is annexed to the person of the debtor, and subject to garnishment where- ever he is found, unless expressly made payable elsewhere. Baltimore & O. R. Co. v. Allen, 3:608, 52 S. E. 465, 58 W. Va. 388. / (Annotated) 35. The provision of Ga. act August 13, 1904, declaring the situs of any debt due to a nonresident to be, for the purpose of at- tachment, at the residence of the garnishee within the state, is not unconstitutional as an act designed to have an extraterritorial effect. Harvey v. Thompson, 9: 765, 57 S. E. 104, 128 Ga. 147. 36. A debt due from one corporation to another, without any limitation with re- spect to payment, may be garnished in the hands of such corporation in any state where jurisdiction of the debtor can be se- cured, although neither debtor nor creditor is located therein. Wiener v. American Ins. Co. 23: 593, 73 Atl. 443, 224 Pa. 292. 37. A debt due by a resident of this state to a nonresident may be reached by garnishment proceeding sued out upon a tax execution issued by a tax collector for a special tax due the state by such non- resident, notwithstanding the debt due the nonresident may have been payable in the state where the creditor of the garnishee re- sided. A. B. Baxter & Co. v. Andrews, 20: 268, 62 S. E. 42, 131 Ga. 120. 38. The domicil of one owing a freight bill, and not that of his agent charged with the duty of paying it, is the situs of the debt for purposes of attachment. Baker v. Doe, 34: 510, 70 S. E. 431, 88 S. C. 69. 39. A judgment for personal injuries cannot be made the basis of a garnishment proceeding against the judgment debtor in another state to collect a claim against the judgment creditor. Elson v. Chicago, R. I. & P. R. Co. 43: 531, 134 N. W. 547, 154 Iowa, 96. (Annotated) GARNISHMENT, II. a- 40. Where a judgment rendered in on state is satisfied without all the indebted ness having been paid, under 'an agreemem that the defendant is to pay the balance the remaining obligation is a contract deb and is subject to garnishment in anothei state. Sutton v. Heinzle, 34: 238, 115 Pac 560, 116 Pac. 614, 84 Kan. 756. 41. A debt due a foreign railroad com pany may be garnished in a state where the garnishee, another railroad company, is doing business, to secure a claim for breach of contract which occurred in the foreign jurisdiction, although the debt was payable at the principal office of the garnishee lo- cated in another state. Southern P. R. Co v. A. J. Lyon & Co. 34: 234, 54 So. 728, 99 Miss. 186. 42. A foreign corporation doing business in a state, subject to process there, may be garnished for a debt owing to a nonresi- dent defendant, which was incurred out- side the state; and jurisdiction over the fund as against the defendant and as against a nonresident claimant of it, dis- closed by the garnishee's answer, may be obtained by publication service upon them. Sutton v. Heinzle, 34: 238, 115 Pac. 560, 116 Pac. 614, 84 Kan. 756. //. Effect; rights, duties, and liabilities of garnishee. ^a. In general. (See also same heading in Digest L.R.A. 1-10.) See also infra, 53. 43. A lien acquired by garnishment is, in the absence of some special and superior right in plaintiff, subject to all equities existing between the garnishee and the defendant. Armitage Herschel Co. v. Jacob Barnet Amusement Co. 27: 811, 124 N. W. 233, 109 Minn. 468. Set-off. 44. The equitable doctrine of set-off may be applied by a court of equity in garnishment proceedings in all cases where the plaintiff presents no superior right. Armitage Herschel Co. v. Jacob Barnet Amusement Co. 27: 811, 124 N. W. 233, 109 Minn. 468. 45. One who, after selling chattels to an insolvent, seizes and sells them to an- other, may, upon being garnished for their value by a judgment creditor of the buyer, set off against the claim his account against the buyer for the unpaid purchase price. J. J. Smith Lumber Co. v. Scott County Garbage Reducing & Fuel Co. 30: 1184, 128 N. W. 389, 149 Iowa, 272. (Annotated) 46. A bank summoned as garnishee in an action against one of its insolvent de- positors may set off against the depositor's general account unmatured notes held by it at the time of the service of the garnish- ment summons, irrespective of whether the bank knew of the insolvency at the time Digest 1-52 L.R.A. (N.S.) of such service, and notwithstanding the depositor had not at such time been formal- ly adjudged an insolvent. Armitage ller- schel Co. v. Jacob Barnet Amusement Co. 27: 811, 124 N. W. 233, 109 Minn. 468. (Annotated) 6. Duty as to exemptions; effect of failure to set up. (See also same heading in Digest L.R.A. 1-10.) 47. A mutual benefit society whose funds are attached in the hands of its col- lector may, upon return to the notice, raise the question as to the liability of the funds to attachment; and it is not required to permit the collector to raise the question when it is sought to take the funds out of his possession under the judgment, where it asserts title to the funds and the duty to hold them under an express trust. Bren- izer v. Supreme Council of the Royal Ar- canum, 6: 235, 53 S. E. 835, 141 N. C. 409. c. Effect of judgment. (See also same heading in Digest L.R.A. 1-10.) In other state. 48. The recovery of a judgment for wages exempt from garnishment before the entry of judgment in a garnishment pro- ceeding in a foreign state, where the wages were not exempt, deprives the employer of the benefit of the foreign judgment as a de- fense to his liability, although the garnish- ment proceeding was instituted before the local action, and it is immaterial that an appeal was taken from the local judgment, upon which a decision was not reached un- til after the judgment was entered in the garnishment proceeding. Becker v. Illinois C. R. Co. 35:1154, 95 N. E. 42, 250 111. 40. (Annotated) d. Effect of payment. 'See same heading in Digest LJR.A. 1-70. J e. Priorities. (See also same heading in Digest L.R.A. 1-10.) Of deposit against which check has been drawn, see CHECKS, 7. 49. Failure of the holder of a note to secure which the maker has assigned fees to >e earned by him as a public officer, to redit the fees as they accrue, will not pre- r ent his holding them against a garnishee, f they are in possession of the assignee, oesch v. W. B. Worthen Co. 31: 374, 130 S. N. 551, 95 Ark. 482. 50. An assignment by a public officer f the fees to be earned by him through the xercise of his office may become effective ,s the fees accrue, so as to take precedence f a garnishment subsequently levied. GARNISHMENT, III.; GAS. 1343 Roesch v. W. B. Worthen Co. 31:374, 130 S. W. 551, 95 Ark. 482. (Annotated) 51. As between a garnishing creditor and the holder of a check drawn by a depositor on his account to one who has advanced him the amount of money called for by the check, the holder of the check has the bet- ter right to the deposit, to the amount called for by his check. Farrington v. F. E. Fleming Commission Co. 47: 742, 142 N. W. 297, 94 Neb. 108. ///. Procedure. (See also same heading in Digest L.R.A, 1-10.) Special appearance to move to quash writ of, see APPEARANCE, 19, 20. Notice or hearing on garnishment of debt due nonresident, see CONSTITUTIONAL LAW, 607. Power of court to order breaking of sealed package and inspection of contents in garnishment proceedings, see DISCOVERY AND INSPECTION, 5. Judgment in action of garnishment, see JUDGMENT, 32. Right to jury trial in, see JURY, 38. Right of garnishee to raise question of juris- diction over principal defendant, see JUDGMENT, 326. Venue, see VENUE, 2. Change of venue, see VENUE, 21. Competency as witness in, of interested par- ty, see WITNESSES, 63. 52. That a garnishee was not made a party to the principal action, and no relief was demanded against him therein, does not prevent the court from rendering judg- ment against him where the writ of gar- nishment was served on him, if by statute it is not necessary to commence an action against the garnishee in order to authorize the court to render judgment against him. Tiger v. Rogers Cotton Cleaner & Gin. Co. 30: 694, 130 S. W. 585, 96 Ark. 1. 53. Failure to give notice of a garnish- ment proceeding to the principal does not entitle the garnishee to a discharge or dis- missal of the proceeding, under a statute providing that no judgment shall be en- tered against the garnishee until notice has been given to the principal defendant. J. J. Smith Lumber Co. v. Scott County Garbage Reducing & Fuel Co. 30: 1184, 128 N. W. 389, 149 Iowa, 272. Service. Service by publication in garnishment pro- ceeding, see WRIT AND PROCESS, 51, 52. 54. The fact that under 6982, Rev. Codes 1905, no judgment can be had against a garnishee until judgment is obtained by the plaintiff against the principal defend- ant, does not preclude valid garnishment proceedings where service against the prin- cipal defendant is had by publication as authorized by 6972, under which service personal judgment cannot be had against the principal defendant, since a judgment in rem in the action against him is author- Digest 1-52 L.R.A.(N.S.) ized by the further provision of 6982, that the court may adjudge the recovery of an indebtedness or personal property disclosed or found to be applicable to the plaintiff's demand, this provision relating to 6977, prescribing the form of judgment to be rendered against the garnishee. At- wood v. Roan, 51: 597, 145 N. W. 587, 26 N. D. 622. 55. No valid judgment can be rendered against the garnishee defendant upon a de- fault judgment against the principal debtor, based upon attempted service by publication under a void affidavit, where, as under 6982, Rev. Codes 1905, the garnishee pro- ceedings are ancillary to the suit against the principal defendant, and judgment against him is a prerequisite to judgment against the garnishee defendant. Atwood v. Roan, 51: 597, 145 N. W. 587, 26 N. D. 622. Intervention. 56. Where the seller of goods ships them and makes a draft upon the purchaser, with the bill of lading attached, which he sells to one who receives payment thereon from the drawee, and the drawee, after paying the draft to a collecting agent, seeks to hold the proceeds by a garnishment as the prop- erty of the drawer, because of the defect in quality of the goods, the owner waives no rights by intervening and asserting his title. Central Mercantile Co. v. Oklahoma State Bank, 33: 954, 112 Pac. 114, 83 Kan. 504. 57. When a garnishee answers that he has money in his hands belonging to the judgment debtor, it is proper to allow one who claims the money, and is not a party to the proceedings, to appear and contest the right of the plaintiff to apply the money on his claim. Farrington v. F. E. Fleming Commission Co. 47: 742, 142 N. W. 297, 94 Neb. 108. GAS. J. In general, 111. II. Compulsory service, 12. III. Rates; meter, 1352. a. In general, 1317. 6. Regulation of rates, 1852. IV. Injuries from; negligence as to, 53-61. a. In general, 5361. &. Cotitributory negligence. Transportation of, as interstate commerce, see COMMERCE, 36, 37. Forbidding injurious pumping of gas from common reservoir, see CONSTITUTIONAL LAW, 188; PARTIES, 136; STATE, 13; STATUTES, 55; WATERS, 283, 290. Contract by producer of, for exclusive right of way across land, see CONTRACTS, 540. Corporate rights in natural gas company, see CORPORATIONS, 6. Formation of corporation for supplying nat- ural gas to public, see CORPORATIONS, 11. 1344 GAS, I. Lease by cotenant of right to take, see CO- TENANCY, 6. Use of streets for gas mains, see COURTS, 144; EMINENT DOMAIN, 297-299; HIGH- WAYS, 32, 44-50; MUNICIPAL CORPORA- TIONS, 92, 93, 232. Liability for expense of change of pipe line caused by change of grade of highway, see HIGHWAYS, 140. Damages for acts of employees of gas com- pany in cutting connections of rival company, see DAMAGES, 71, 674. Damages for condemnation of right of way for transportation of, see DAMAGES, 514, 535. Reservation of rights as to, in deed, see DEEDS, 56, 57. Right of lessee of gas privilege to maintain ejectment, see EJECTMENT, 12. Exercise of eminent domain by gas company, see EMINENT DOMAIN, 14, 49, 114, 136- 138, 154, 155; STATUTES, 169; TRIAL, 636. Laying of gas pipes through private lands as a taking, see EMINENT DOMAIN, 185. Estoppel to assert that gas lease constitutes mere license, see ESTOPPEL, 254. Injunction to compel removal of gas pipes from property, see INJUNCTION, 35. Injunction against laying pipes for, in pri- vate property, see INJUNCTION, 155. Injunction against pumping, see INJUNC- TION, 202. Death of insured by inhalation of, see IN- SUBANCE. Larceny of, see LARCENY, 9, 16, 17. As to gas in mines, generally, see MINES, II. b. Power of city as to lighting by, see MUNIC- IPAL CORPORATIONS, II. f, 1. Power of municipal corporation to discrimi- nate against consumer, see MUNICIPAL CORPORATIONS, 94. Right of municipality to compel gas com- pany to take out franchise, see MUNIC- IPAL CORPORATIONS, 95. Breach of contract to lay gas pipes in street, see MUNICIPAL CORPORATIONS, 232. Duty of municipality to care for service pipe, see MUNICIPAL CORPORATIONS, 322. As nuisance, see NUISANCES, 17, 18, 20, 97, 150, 177. Gas factory as nuisance, see NUISANCES, 17, 18. In mine, see PROXIMATE CAUSE, 137. Taxation of gas lease, see TAXES, 54, 55, 57, 135, 160, 181. Taxation of gas franchise, see TAXES, 74, 123. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. A municipality which has granted a natural gas company an indeterminate fran- chise permitting it to lay pipes therein and supply gas to it and its inhabitants may compel the gas company to exercise its franchise therein fairly and without dis- Digest 1-52 L.R.A.(N.S.) crimination, so long as such company elects to exercise its rights thereunder. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 2. A municipality cannot prevent a natural gas company which has voluntarily forfeited its right to exercise its indetermi- nate franchise therein, and has wholly with- drawn therefrom, from removing its property, nor take possession and make use thereof itself, nor grant the right to another company to use such property, without due process of law. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. (Annotated) 3. A natural gas company supplying a city and its inhabitants with gas under an indeterminate franchise may voluntarily forfeit its right to exercise its franchise within the municipality, and wholly with- draw therefrom, at will. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 4. A franchise permitting a natural gas company to lay pipes and supply consumers in a city, which is silent as to duration, is not perpetual, but the duration thereof is indeterminate, and will exist only so long as the parties mutually agree thereto. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 5. A natural gas company whose char- ter permits it to operate in several cities in the state does not unlawfully discrim- inate as to one of such cities by entirely abandoning its franchise therein, and with- drawing its property and business there- from. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 6. A corporation formed for the pur- pose of producing and furnishing natural gas and transporting it to certain named towns and cities situated in the counties along the line of the company and between the termini thereof, and to other places in such counties, does not require fehe com- pany, in the absence of specific charter im- position of obligation in regard thereto, to conform to this purpose in all of such cities, villages, or places, but confers the privilege of producing and transporting to each or all, in the manner prescribed, at the election of the company. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 7. Where a city, by ordinance, grants permission to a natural gas company to lay pipes and furnish gas to consumers therein, upon certain terms and conditions, which are accepted by the company, the rights of the parties must be determined by the contract thus formed. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 8. A gas company is not prevented from enforcing a rule against consumers generally, by making an exception in a few cases where buildings were erected in such manner as to make the enforcement of the rule impossible, before notice of the adop- tion of the rule was given. State ex rel. Hallett v. Seattle Lighting Co. 30: 492, 110 Pac. 799, 60 Wash. 81. GAS, II. III. b. 1345 9. The requirements as to gas pressure I made by N. Y. Laws 1905, chap. 736, and ] Laws 1906, chap. 125, fixing gas rates in New York city, are confiscatory, where, to put this pressure upon the mains and other service pipes, in their present condition, is to run a great risk of explosion and conse- quent disaster, and to eliminate such dan- ger requires an expenditure of many mil- lions of dollars, from which no return can be had at the rates established by those acts. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. Meter room. 10. A rule of a gas company that, in all buildings where more than one meter shall be required, a separate meter room shall be provided, where all can be placed, is reasonable, where such arrangement would be more sanitary, less dangerous, more con- venient for finding leaks, making repairs, and making collections from prepayment meters, than would the other, while the high pressure of the mains would be con- fined to the main service pipe. State ex rel. Hallett v. Seattle Lighting Co. 30: 492, 110 Pac. 799, 60 Wash. 81. (Annotated) Monopoly. 11. A franchise granted by a city to a gas company, authorizing it to furnish gas for the city and its inhabitants, is not ren- dered contrary to public policy, as tending to destroy competition and create a mo- nopoly, by a further provision that the sums agreed to be paid the city annually, in con- sideration of the granting of the franchise, are to continue only so long as the gas com- pany enjoys its franchise without competi- tion. Richardson Gas & 0. Co. v. Altoona, 21 : 214, 100 Pac. 50, 79 Kan. 466. (Annotated) II. Compvilsory service. (See also same heading in Digest L.R.A. 1-10.) Injunction to compel furnishing, see IN- JUNCTION, 40, 47. 12. A gas company will not be permit- ted to enforce a mle requiring security from unknown or irresponsible consumers before it will undertake to serve them, against one who has always been prompt in the settlement of his accounts, but who disputed a bill and prevailed in the ac- tion to enforce it, and where it is evident that the rule was not resorted to in good faith, but from spite. Phelan v. Boone Gas Co. 31: 319, 125 N. W. 208, 147 Iowa, 626. ( Annotated ) III. Rates; meter. a. In general. (See also same heading in Digest L.R.A. 1-10.) Suit by municipality to restrain excessive charges, see PARTIES, 34. Digest 1-52 L.R.A.(N.S.) Question for jury as to which rate is appli- cable in certain case, see TBIAL, 599. See also supra, 10. 13. A city which, after the expiration of its contract, continues to use gas without entering into a new one, cannot, in an ac- tion against it to recover at the old rate, question the lawfulness of that rate on the ground that it is unreasonable, where it is less than the maximum rate fixed by stat- ute for cities of its class, as the statutory rate must, as against the consumer, be deemed reasonable. Brooklyn Union Gas Co. v. New York, 15: 763, 81 N. E. 141, 188 N. Y. 334. (Annotated) 14. A consumer is not entitled to enjoin the enforcement against him by a gas com- pany of a rate which the company is au- thorized to charge, because it grants a low- er rate to persons consuming gas for other purposes in larger amounts, where no in- jury is inflicted upon him by such rate. Boerth v. Detroit City Gas Co. 18: 1197, 116 N. W. 628, 152 Mich. 654. 15. A person who owns and conducts an automobile garage in which he uses a gas engine for the pxirpose of generating an electric current to supply light for a large building in which he carries on his busi- ness, to charge electric automobiles and storage batteries, and to use the same gen- erally in his business, is a manufacturer within the meaning of a city ordinance dividing the inhabitants of the city into three classes, viz., "domestic consumption," "public institutions," and "manufacturers," for the purpose of fixing the rate that may be charged by a gas company. Henderson v. Shreveport Gas, E. L. & P. Co. 51: 448, 63 So. 616, 134 La. 39. Meter rent. 16. A gas company whose rates are fixed by the municipality cannot charge con- sumers a meter rent when consumption does not reach a certain minimum amount per month, in order to bring the bills up to that amount. Montgomery Light & Power Co. v. Watts, 26: 1109, 5l'So. 726, 165 Ala. 370. (Annotated) Shutting off gas to enforce payment. 17. Assignees for creditors are not iden- tified with the assignor, so as to entitle a corporation which had been supplying gas to the assignor to refuse to supply it to the assignees, who desire temporarily to continue the business, until the amount due by the assignor is paid, under a statute giving it permission to shut off gas from the premises of one Avho refuses to pay the amount due therefor, but forbids it to do so merely because a bill remains unpaid by a previous occupant of the premises. Cox v. Maiden & M. Gaslight Co. 17: 1235, 85 N. E. 180, 199 Mass. 324. ;o^. b. Regulation of rates. (See also Gas, page 1^80, in Digest L.R.A. 1-70.) Delegation of power to fix rates, see CON- 85 STITUTIONAL LAW, 104. 1346 GAS, III. b. Denial of equal protection and privileges as to, see CONSTITUTIONAL LAW, 392a. Judicial power to review, see COURTS, 131, 132, 150. Jurisdiction of suit to enjoin enforcement of statute as to, see COURTS, 252. Regulation of, as a taking of property for public use, see EMINENT DOMAIN, 222. Jurisdiction of equity to fix and enforce rates, see EQUITY, 6, 7. Dismissal without prejudice of bill to en- join enforcement of statute as to, see JUDGMENT, 40. Partial invalidity of statute as to, see STAT- UTES, 81. 18. In the absence of a delegation there- of by the legislature, express or necessarily implied, a city or town has no power to regulate rates for natural gas furnished by a person or corporation for public consump- tion in such city or town, otherwise than by contract with such person or corporation, by the terms of the grant of franchise. St. Marys v. Hope Natural Gas Co. 43: 994, 76 S. E. 841, 71 W. Va. 76. (Annotated) 19. A provision in a municipal ordi- nance granting a franchise to erect and operate works to furnish natural gas for consumption in the town or city may con- tain fixed rates or charges for gas; and such limitation is valid, and, when accepted by the grantee, is a contract binding the grantee of such franchise. St. Marys v. Hope Natural Gas Co. 43:994, 76 S. E. 841, 71 W. Va. 76. 20. Where a gas company operating in a municipality under a franchise granted by such municipality to occupy the streets with pipes to convey gas for public con- sumption, and authorizing specific rates of charges for fire, changed its charge from a specific rate to a charge by meter, a change that was sustained by the courts upon a suit brought by the municipality to ques- tion it, and continued to charge this rate, with the acquiescence of the town, for thir- teen years, when it increased its rate, where- upon the municipality passed a general or- dinance allowing a charge of the meter rate first established and prohibiting a higher charge, a modification of the original ordi- nance was effected, and a new contract created establishing the rate first estab- lished; and an increase of the rate could not be effected without the consent of the municipality. St. Marys v. Hope Natural Gas Co. 43: 994, 76 S. E. 841, 71 W. Va. 76. 21. Authority to charge 80 cents per thousand cubic feet for gas is conferred upon a gas company by a municipal ordi- nance that it shall not charge or receive a higher rate than 90 cents per thousand cubic feet, and each consumer shall be entitled to a discount of 10 cents per thousand cubic feet for prompt payment. Boerth v. De- troit City Gas Co. 18: 1197, 116 N. W. 28, 152 Mich. 654. 22. A municipal corporation has authori- ty to fix by contract the rates which shall be paid by its inhabitants for gas furnished by a public-supply corporation under stat- Digest 1-52 L.R.A.(N.S.) utory authority to consent to the laying of the gas mains in its streets under such reasonable regulations as it may prescribe. Boerth v. Detroit City Gas Co. 18: 1197, 116 N. W. 628, 152 Mich. 654. (Annotated) 23. A provision in a municipal ordinance granting a natural gas company the right to lay pipes and supply consumers, that the city shall not fix, or attempt to fix, the rate at which gas shall be supplied, below a specified sum for a period of ten years, does not raise an implied contract that the city may regulate the price after the expiration of such period. East Ohio Gas Co. v. Akron, 26: 92, 90 N. E. 40, 81 Ohio St. 33. 24. Sufficient standard for the action of a commission empowered to fix the rates to be charged for gas is established by a provision that the rate shall be within the limits provided by law, whkh, in the ab- sence of statute, means that the rate must be reasonable. Saratoga Springs v. Sarato- ga Gas, E. L. & P. Co. 18; 713, 83 N. E. 693, 191 N. Y. 123. 25. The mere provision in a statute em- powering a commission to fix the rates to be charged by gas companies, that the agents of the commission shall inspect the plant and books of the corporation, does not au- thorize it to fix rates upon the report of the agents, where the statute also provides for a public hearing after notice. Saratoga Springs v. Saratoga Gas, E. L. & P. Co. 18: 713, 83 N. E. 693, 191 N. Y. 123. 26. A provision that a rate to be charged by gas companies for gas furnished consum- ers shall continue for a period of tliree years after it has been fixed by the commission is not so unreasonable as to render the stat- ute invalid. Saratoga Springs v. Saratoga Gas, E. L. & P. Co. 18: 713, 83 N. E. 693, 191 N. Y. 123. 27. Gas rates which will yield to a cor- poration having a monopoly of the gas serv- ice in New York city a return of 6 per cent upon the fair value of the property actually used by such company in its business are not confiscatory. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 28. A discrimination between the indi- vidual consumer and the city in the pro- visions of N. Y. Laws 1905, chap. 736, and Laws 1906, chap. 125, fixing gas rates in New York city, is not material to the in- quiry as to the reasonableness of such rates if the total profits from the gas supplied to all consumers is sufficient to insure the requisite return upon the property used by the gas company in its business. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. Cost of manufacturing. 29. In estimating the cost of manufac- turing gas, that consumed for the purpose of the plant should be computed at cost. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. Allowance for depreciation. 30. In fixing the rate to be charged for gas by a public service corporation, it should be allowed to provide a fund sufficient to GAS, III. b. 1347 replace the different parts of the plant when it shall become necessary. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. Promotion and collection expenses. 31. No allowance can be made for the expense of promoting and organizing the company, in fixing the value of a gas plant for the purpose of estimating rates for its product. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. (Annotated) 32. No allowance for collection expenses should be made in fixing the price of gas at a flat rate without discount for prompt payment, where the company may require secuiity or a deposit of money in advance, or otherwise render collection as certain and inexpensive as it was under the dis- count method. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. Gross receipts of company. 33. In ascertaining the gross receipts of a gas company for the purpose of fixing its rates, the annual appreciation of the value of its land should not be considered. People ex rel. Kings County Lighting Co. v. Will- cox, 51: i, 104 N. E. 911, 210 N. Y. 479. Valuation of property and franchises. 34. In ascertaining the value of the prop- erty of a gas company or the amount of capital actually expended for the purpose of fixing rates, the cost of replacing pavement now in the streets, but not there at the time the mains were laid, is not to be taken into consideration. People ex rel. Kings County Lighting Co. v. Willcox, 51: i, 104 N. E. 911, 210 N. Y. 479. (Annotated) 35. The value of a gas plant at a par- ticular time for the purpose of determin- ing the justness of rates cannot be deter- mined by mere addition of the separate value of its component parts, nor from the cost alone, nor from what it might have been formerly sold at, if such price was influenced by excessive rates, not from what it might cost to replace alone, but the value of the system as completed, earning a present income, is the criterion to be adopted. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 36. Although a gas company could not acquire title to land reclaimed from the bed of a navigable river beyond high-water mark, if it is in peaceable possession of it as part of its plant, that fact may be con- sidered in estimating the value of the plant for fixing the rates of its product. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 37. The value of land purchased and held by a gas company for the needs of pos- sible future growth cannot be considered in estimating the value of the plant for fixing rates. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 38. Discarded equipment cannot be con- sidered in estimating the value of a gas plant for the purpose of fixing rates for Digest 1-52 L.R.A.(N.S.) its product. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 96Q, 144 Iowa, 426. 39. In estimating the value of pipes of a gas plant laid under ground, for the pur- pose of determining the value of its plant to fix the rates for its product, the price of iron on the day the rates are fixed is not the criterion, but the cost, the ordinary selling price, and the present price should be considered in connection with deprecia- tion by inevitable decay. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 40. In fixing the value of a gas plant for the purpose of establishing rates for its product, the cost of a pipe laid to supply a neighboring village, which enforces the sys- tem and from which some residents of the city are supplied, should be apportioned between the two places. Cedar Rapids Gas- light Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 41. In establishing the value of gas pipes laid beneath street pavements, for the purpose of fixing the value of the plant to establish rates for its product, the entire estimated cost of opening and replacing the pavement is not the criterion of value, where there are parallel alleys and parkings in which pipes might be laid. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 N. W. 426. 42. The valuation of the franchises of the constituent gas companies as fixed by them when organizing a consolidated cor- poration pursuant to N. Y. Laws 1884, chap. 367, which valuation was included in the total sum for which the consolidated cor- poration issued its stock, must be accepted by the courts, in testing the reasonableness of legislative regulation of gas rates, as conclusive of such value at the time of consolidation, where the validity of the agreement fixing the valuation has always been recognized, and the stock has earned large dividends and has been largely dealt in for many years on the basis of the va- lidity of the valuation and of the stock. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 43. The assessed value of taxation of the franchises of a gas company furnishes no criterion by which to ascertain their value, when testing the reasonableness of gas rates as fixed by statute, where the taxes are treated by the company as part of its operating expenses, to be paid out of its earnings before the net amount ap- plicable to dividends can be ascertained. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. 44. Increase since consolidation of the tangible assets of a consolidated gas com- pany and in the amount of gas supplied by it does not justify the court, when testing the reasonableness of the rates fixed by statute, in attributing a proportional in- crease to the value of the franchises as fixed by the constituent companies at the time 1348 GAS, IV. a. of consolidation. Willcox v. Consolidated Gas Go. 48: 1134, 29 Sup. Ct. Rep. 192. 212 U. S. 19, 53 L. ed. 382. time of valuation. 45. The valuation of the property of a gas company, upon which it is entitled to a fair n'turn, must, as a general rule, be determined as of the time when the in- quiry is made regarding the reasonableness of rates fixed by statute, giving the com- pany the benefit of any increase in the value of the property since it was acquired. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. good will. 46. Good will cannot be taken into con- sideration in fixing the value of a gas plant for the purpose of establishing rates for its product, where it has been granted a monopoly in the community. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 966, 144 Iowa, 426. 47. No allowance for the value of the good will should be made in estimating the value of the property of a gas company upon which it is entitled to earn a fair re- turn, for the purpose of testing the reason- ableness of the rates fixed by statute, where such company is secure from possible com- petition. Willcox v. Consolidated Gas Co. 48: 1134, 29 Sup. Ct. Rep. 192, 212 U. S. 19, 53 L. ed. 382. (Annotated) going value. 48. "Going value" is to be considered as a distinct item in fixing the rates to be charged by a gas company. People ex rel. Kings County Lighting Co. v. Willcox, 51: i, 104 N. E. 911, 210 N. Y. 479. 49. "Going value," for the purpose of fix- ing the rates of a gas company, is an amount equal to the deficiency of net earnings be- low a fair return on the actual investment, due solely to the time and expenditures rea- sonably necessary and proper to the develop- ment of the business and property to its present stage, and not comprised in the valuation of the physical property. People ex rel. Kings County Lighting Co. v. Will- cox, 51: i, 104 N. E. 911, 210 N. Y. 479. 50. The item of going value is eliminated in fixing rates for a gas company if it has already received a fair return on its in- vestment, either by charging rates which give it a fair return from the start, or which give it more than a fair return after the business has been developed. People ex rel. Kings County Lighting Co. v. Willcox, 51: i, 104 N. E. 911, 210 N. Y. 479. 51. Where a gas company paid no divi- dends for a number of years after it began to do business, going value is to be allowed in fixing its rates where it was not due to bad management, the accumulation of sur- plus, or to betterments which have been al- lowed for in the structural valuation. People ex rel. Kings County Lighting Co. v. Will- cox, 51: i, 104 N. E. 911, 210 N. Y. 479. 52. The fact that a gas plant is in suc- cessful operation constitutes an element of value to be considered in fixing the basis upon which income may be allowed in estab- Digest 1-52 t.R.A.'(N.S.) lishing rates for its product so far as it can be done and still keep the cost reason- able. Cedar Rapids Gaslight Co. v. Cedar Rapids, 48: 1025, 120 N. W. 960, 144 Iowa, 426. IV. Injuries from; negligence as to. a. In general. (See also same heading in Digest L.R.A. 1-10.) In ejection of poisonous gas by landlord in- to leased room, see LANDLORD AND TEN- ANT, 142. Proximate cause of injury or death by, see PROXIMATE CAUSE, 25, 68. 53. The care imposed by law upon gas companies in handling their product is not ordinary care, as distinguished from extra- ordinary care, but due care, or care com- mensurate with the danger. Gould v. Winona Gas Co. 10: 889, 111 N. W. 254, 100 Minn. 258. 54. Unless commanded by statute or mu- nicipal regulation, there is no legal duty compelling a gas company to maintain and operate a cut-off for the safety of property to which it supplies gas, and as to which the owner has provided the gas appliaiu-c>. George v. Tri-State Gas Co. 52: 537, 81 S. E. 722, W. Va. . 55. A company supplying gas to premi- ses wherein the owner has his own gas ap- pliances is not liable for failure to shut on" the gas from the premises when they are on fire, unless it is requested to do so, or in some other way is put to notice that its aid in that particular is necessary to a pro- tection of the property, especially where the owner has a means of shutting off the gas. George v. Tri-State Gas Co. 52: 537, 81 S. E. 722, W. Va. . Negligence as to escape of gas. Injury to employee by escape of, from am- monia tank, see MASTER AND SERVANT, 436. See also infra, 61. 56. A gas company which has assumed the duty of keeping in repair the service pipes through which it supplies gas to street lamps belonging to the municipality cannot avoid liability for injuries to third persons from gas escaping through its neg- lect of duty, because the pipes actually belonged to the municipality. Consolidated Gas Co. v. Connor, 32: 809/78 Atl. 725, 114 Md. 140. 57. That death was caused by inhalation of gas by one disconnecting service pipes will not relieve from liability for his death a gas company which had negligently left them in a condition indicating that they were dead, when they in fact conveyed gas, unless it was done voluntarily. Pulaski Gaslight Co. v. McClintock, 32: 825, 134 S. W. 1189, 97 Ark. 576. 58. A gas company is negligent in run- ning without request from, or notice to, the occupants of the property, a new service GAS, IV. b GENUINENESS. 1349 pipe from its main to a house in which the use of gas has long been discontinued, and from which the meter has been removed, leaving the old pipe cut, and partly exposed by a change of street grade, and apparently dead, and making underground connection with the riser leading to the meter cock, the position of which is undisturbed, there- by indicating that it is still a part of the dead pipe, and that no gas reaches the meter cock. Pulaski Gaslight Co. v. Mc- Clintock, 32: 825, 134 S. W. 1189J 97 Ark. 576. Explosion. Prejudicial error as to jury in action for injury by, see APPEAL AND ERROR, 1476. Presumption and burden of proof as to neg- ligence, see EVIDENCE, 462, 463. Relevancy of evidence as to negligence, see EVIDENCE, 1765. Variance between pleading and proof in ac- tion for injuries, see EVIDENCE, 2484. As proximate cause of injury, see PROXI- MATE CAUSE, 61. Question for jury as to negligence, see TRIAL, 574, 575. Source of gas causing explosion as question for jury, see TRIAL, 600. 59. A gas company which uses ordinary care to cap a pipe leading into a dwelling, upon the removal of a stove which has been supplied by it, and to maintain it in a safe condition, is not liable for the de- struction of the house by fire due to the escape of gas therefrom. Louisville Gas Co. v. Guelat, 42: 703, 150 S. W. 656, 150 Ky. 583. 60. The turning by a gas company of gas into pipes which it has failed to keep in repair, as required by its undertaking with the municipality, as its agent in the supplying of gas for street lighting, is a misfeasance, and not merely a nonfeasance of its duty to repair, and therefore it 5s liable for injuries thereby caused to stran- gers to the undertaking. Consolidated Gas Co. v. Connor, 32: 809, 78 Atl. 725, 114 Md. 140. (Annotated) Injury to trees or plants. Presumption as to negligence, see EVIDENCE, 445. 61. The liability of a gas company to a landowner for the destruction of trees on a. boulevard in front of his premises, caused by the escape of gas from the mains of the company on the street,- is to be determined in accordance with the principles of negli- gence applicable to authorized public works, and not by the doctrine of insurance from harm by one maintaining or controlling dangerous agencies. Gould v. Winona Gas Co. 10: 889, 111 N. W. 254, 100 Minn. 258. (Annotated) b. Contributory negligence. (See also same heading in Digest L.R.A. 1-10.) Imputing to owner of building injured by explosion negligence of tenant, see NEG- LIGENCE, 273. As question for jury, see TRIAL, 576. Digest 1-52 L.R.A.(N.S.) GASOLENE. Injury by explosion of, see EXPLOSIONS AND EXPLOSIVES, 4. Use of, on insured premises, see INSURANCE, 269-274, 509, 534. Storing of large quantity of, near private dwelling as nuisance, see NUISANCES, 51. GAS STOVE. As fixture, see FIXTURES, 19. GATES. Duty of carrier to keep gates on platform closed, see CARRIERS, 287. Leaving bars or gates for convenience of neighbor when fencing land as affecting acquisition of easement by prescription, see EASEMENTS, 25. Obstruction of easement of way by, see EASEMENTS, 77, 78. Obstruction of highway by, see HIGHWAYS, 191. At railroad crossing, see RAILROADS, II. d, 3, c. Toll gates, see TOLLS AND TOLL ROADS. * GENERAL AVERAGE. See AVERAGE. GENERAL DEMURRER. See PLEADING, 559, 572, 573, 609, 635, 648. GENERAL DENIAL. Evidence admissible under, see EVIDENCE, 2429, 2459-2465. In general, see PLEADING, 451-457. GENERAL REPORT. Evidence of, see EVIDENCE, X. a. * * GENUINENESS. Of check; duty of banks and depositor as to discovery, see BANKS, IV. a, 3, b. Of drawer's signature, see BANKS, 121. 122. Of prior signatures to notes, warranty of, see BIT.LS AND NOTES, 74. Of handwriting; evidence as to, generally, see EVIDENCE, IV. p; 741, 742. 1350 Opinion evidence as to genuineness of hand writing, see EVIDENCE, VII. m. As question for jury, see TRIAL, 622. GEOGRAPHICAL MATTERS GIFT, I. I. In general. GEOGRAPHICAL MATTERS. Judicial notice as to, see EVIDENCE, I. d. GEOGRAPHICAL NAME. As tradename, see TRADEXAME, 17. GIFT. I. In general, 116. II. Causa mortis, 17, 18. III. Delivery, 1926. Acceptance of, by officer as bribery, see BRIBERY, 3. To charity, see CHARITIES. Consideration for subscription, see CON- TRACTS, 100-102. Oral promise of, as within statute of frauds, see CONTRACTS, 208, 237. In consideration of specified location of pub- lic building, see CONTRACTS, 518. Effect of divorce on gift of property by hus- band to wife, see DIVORCE AND SEPA- RATION, 133. To mistress, see EQUITY, 130; EVIDENCE, 283, 288. Presumption and burden of proof as to, see EVIDENCE, 283, 284, 288, 597-600; TRUSTS, 41, 60, 62. Presumption of advancement to child, see EVIDENCE, 567. Rebuttal of presumption of gift, see EVI- DENCE, 1921. Evidence of declarations of alleged donor, see EVIDENCE, 1454. Sufficiency of proof of, see EVIDENCE, 2282, 2283. Action against administrator of insured per- son to whom donee of policy delivers it for collection, see EXECUTORS AND AD- MINISTRATORS, 63. Validity of gift by husband to wife, see HUSBAND AND WIFE, 104. Injunction against violation by public au- thority of conditions of gift, see IN- JUNCTION, 311. To city, see MUNICIPAL CORPORATIONS, 305. Implied gift to objects of power, see POW- ERS, 5. Of public money, see PUBLIC MONEYS. Tax on gift by will, see TAXES, V. By town council to judgment debtor, see TOWNS, 3. As to creation of trusts, see TRUSTS, I. a. As to trusts, genorrlly, sro TRUSTS. By will, see WILLS, III. Of insurance policy, see WITNESSES, 43. Digest 1-52 L.R.A.(N.S.) (See also same heading in Digest L.R.A. 1-10.) 1. An absolute gift of personal property is not defeated or transformed into a testa mentary act by the fact that the grantor re- serves to himself the income thereon durin.' life. Robertson v. Robertson, 3: 774, 40 So. 104, 147 Ala. 311. 2. A gift by a woman to her brother is based on a sufficient consideration. Can dee v. Connecticut Sav. Bank, 22: 568, 71 Atl. 551, 81 Conn. 372. 3. Mere lack of independent advice will not render void a gift by a principal to his agent of the bulk of his estate, when it is shown to be the uninfluenced, deliberate, and intelligent act ctf the donor. Zimmerman v. Frushour, 16: 1087, 69 Atl. 796, 108 Md. 115. (Annotated) Failure of consideration. 4. A wife to whom property is given by her husband in ignorance of her adul- tery cannot, in case he, upon learning of it, immediately separates from her, retaining possession of the property, recover from him, since the consideration for the gift failed and it became unenforceable. Thom- as v. Thomas, 35: 124, 109 Pac. 825, 113 Pac. 1058, 27 Okla. 784. (Annotated) Revocation. 5. A gift of his accumulated property by a man to his children at a time when he is earning a good income, is not voidable at his option, although the act may be im- provident. James v. Aller (N. J. Err. & App. ) ac 285, 62 Atl. 427, 68 N. J. Eq. 666. (Annotated) Of land. Parol gift of real estate, see CONTRACTS, 329, 330; SPECIFIC PERFORMANCE, 51. 6. The whole 40-acre tract is not in- cluded in a gift of "the house and premises now occupied by you, which includes the garden and orchard back of the house and the pasture north of the house, more fully described in my last will, in the 40-acre tract with other lands," where the remainder of the tract was separated by a fence from the property occupied, and remained in the possession and control of the grantor. Barnes v. Banks, 8: 1037, 79 N. E. 117, 223 111.352. . (Annotated) 7. A present gift of a fee estate is ef- fected in equity by a writing informing an occupant of land that "I now present you the house and premises," describing them, "more fully described in my last will," al- though in the will, previously executed, they were included in a larger tract placed in trust for the donee for life, with remainder over. Barnes v. Banks, 8: 1037, 79 N. E. 117, 223 111. 352. Of note or check. Right of one executing note as a gift to recover from payee amount paid by former to bona fide purchaser, see As- SUMPSIT, 5. GIFT, II., III. 1351 Check payable after death of maker, for services, and a further sum as a gift, see CONTRACTS, 66. Delivery of, see infra, 20, 23. 8. A promissory note may be the sub- ject of a gift inter vivos from the payee to the maker. Lanham v. Meadows, 47: 592, 78 S. E. 750, 72 W. Va. 60. 9. A check delivered to the payee, but not payable until after the death of the maker, is not valid as a gift inter vivos. Foxworthy v. Adams, 27: 308, 124 S. W. 381, 136 Ky. 403. (Annotated) 10. An indorsement on a note by which the owner gives it to his wife, reserving to himself the right to the interest during life, and to the note itself should he sur- vive her, does not effect a valid gift to her inter vivos. Foxworthy v. Adams, 27: 308, 124 S. W. 381, 136 Ky. 403. Of bank deposit. Gift causa mortis, see infra, 17, 18. See also supra, 9. 11. A gift inter vivos is not established by depositing a fund in bank with the state- ment that it is intended for the donee, taking back a certificate of deposit, and placing thereon an indorsement to pay the amount to the donee, handing the certificate to the donee to read, with the statement "It is yours," and then taking and retain- ing the certificate till death, to enjoy the use of it during life. Harris Bkg. Co. v. Miller, i: 790, 89 S. W. 629, 190 Mo. 640. (Annotated) 12. The mere issuance by a savings bank at the direction of a depositor, of a pass book in the name of herself or son, "either to draw," will not constitute a present gift to the son of the fund, evidenced by the pass book, where the mother did not sur- render possession of the book or of her right to draw upon the fund. Schippers v. Kempkes (N. J. Err. & App.) 12: 355, 67 Atl. 74, N. J. . 13. That a mother who deposited money in a savings bank had the account opened in the name of herself or son, "either to draw," does not constitute a valid gift of the fund, to take effect upon the mother's death. Schippers v. Kempkes (N. J. Err. & App.) 12: 355, 67 Atl. 74, N. J. . (Annotated) 14. A valid gift of a savings-bank de- posit is not prevented by a reservation by the donor of the right to the interest dur- ing life if needed. Goodrich v. Rutland Sav. Bank, 17: 181, 69 Atl. 651, 81 Vt. 147. 15. One who, having lost his pass book, signs an order upon a savings bank to pay the fund to another, and delivers the order to the donee, with the statement that he gives him the fund "subject to his ( the donor's) use of the same during his life- time," effects a valid gift of the fund, at least, when the order has been recognized i and accepted by the bank. Candee v. Con- necticut Sav. Bank, 22: 568, 71 Atl. 551, 81 Conn. 372. (Annotated) 16. A gift is established by the de- positing in bank, through another, of mon- ey in the names of the minor children of Digest 1-52 L.R.A.(N.S.) the donor, the taking of certificates of de- posit in their names, and the retention of such certificates by the one actually mak- i ing the deposit as guardian for the donees, where the bank knew that the children were infants, and accepted the money as belonging to them. McMahon v. German- American Nat. Bank, 29: 67, 127 N. W. 7, 111 Minn. 313. II. Causa mortis. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of delivery of, see infra, 20, 23. Presumption of, see EVIDENCE, 598, 600. Validity of, as against donor's husband, see HUSBAND AND WIFE, 137. Gift in contemplation of death, within meaning of statute taxing such gifts, see TAXES, 306, 307. Gift by will, see WILLS, III. Competency of surviving party to gift causa mortis to testify as to, see WITNESSES, 50. 17. It is unnecessary that a check on a bank, delivered and intended by the drawer as a gift causa mortis, should disclose on its face that it covers the entire bank cred- it of the drawer, but such fact may be shown by proof on the trial. Varley v. Sims, 8: 828, 111 N. W. 269, 100 Minn. 331. 18. A check on a bank for the entire amount of the drawer's credit therein, de- livered to a person as a gift of the money, though unaccepted by the bank, operates as an assignment of the fund; and if so de- livered and intended by the donor, in antici- pation of death from an impending peril from which he subsequently dies, it is valid as a gift causa mortis. Varley v. Sims, 8: 828, 111 N. W. 269, 100 Minn. 331. III. Delivery. (See also same heading in Digest L.R.A. 1-10.) Necessity and sufficiency of delivery. Note payable only if collected in lifetime of payee, as attempted gift without complete delivery, see BILLS AND NOTES, 12. 19. To make a complete gift of personal property inter vivos, there must be a de- livery of the property from the donor to the donee, or to some person for him. Dew- ey v. Barnhouse, 29: 166, 109 Pac. 1081, 83 Kan. 12. 20. The surrender of a promissory note, with intent to cancel the debt, is a sufficient delivery thereof to constitute a gift inter vi- ros from the payee to the maker. Lanham v. Meadows, 47: 592, 78 S. E. 750, 72 W. Va. 610. 21. To establish a gift, by a husband to a wife, of jewelry purchased by him as an investment for their joint benefit and also for the purpose of dhiamenting the wife on suitable occasions, a delivery of the 1352 GIFT ENTERPRISE GOOD FAITH. property to her by the husband, with the intention of devesting himself of all do- minion and control of it and of vesting title in her, must be clearly shown. Far- row v. Farrow (N. J. Err. & App.) u: 389, 65 Atl. 1009, 72 N. J. Eq. 421. (Annotated) 22. Where bank stock belonging to a husband was in a box in a vault in a room adjoining that in which the husband lay on his deathbed, and both keys to such box one of which was usually carried by the husband, the other by the wife were in possession of the wife, when the husband gave such bank stock to the wife by words in prcesenti, and instructed her to take his key to the box and keep it and allow no one to have it, the mere transfer by the wife of the husband's key from his key ring to hers is not a sufficient delivery to con- stitute a valid donatio causa mortis. Apache State Bank v. Daniels, 40: 901, 121 Pac. 237, 32 Okla. 121. (Annotated) 23. The delivery of a check as a gift causa mortis, to a person other than the donee, but for his use and benefit, and with instructions to deliver the same to the donee, is a sufficient delivery to pass title, though it does not reach the hands of the donee un- til after the donor's death. Varley v. Sims, 8: 828, 111' N. W. 269, 100 Minn. 331. Retention by donor. 24. A gift of a ring, completed by deliv- ery and acceptance, is not affected by the fact that it is lent by the recipient to the donor, and retained in his possession until his death. Garrison v. Union Trust Co. 32: 219, 129 N. W. 691, 164 Mich. 345. ( Annotated ) 25. Where a donor decides to give to another a certificate of shares in a build- ing and loan association, and to make the payments thereon for the donee until ma- turity, and then causes such certificate to be issued in the name of the donee, re- taining possession thereof himself, and makes the subsequent payments thereon in the name of the donee, but at all times regards the certificate as the property of the donee, and his possession as holding in trust for such donee, the delivery to him- self as trustee of the donee will be held sufficient to complete the gift. Dewey v. JBarnhouse, 29: 166, 109 Pac. 1081, 83 Kan. 12. (Annotated) Bank deposit. Gift of bank deposit, generally, see supra, 9, 11-18, 23. 26. A delivery sufficient to pass title to a savings-bank account is shown by the de- livery to one having possession of the book as bailee for the owner of an order on the bank to pay the account to him, accom- panying a parol gift of it, followed by a holding of the book by the donee as owner. Goodrich v. Rutland Sav. Bank, 17: 181, 69 Atl. 651, 81 Vt. 147. (Annotated) GIFT ENTERPRISE. Giving of trading stamps by merchants as, see MUNICIPAL CORPORATIONS, 202, 203. Digest 1-52 L.R.A.(N.S.) Excluding letter concerning, from mails, see POSTOFFICE, 7. See also LOTTERY. GIRLS. Prohibiting interstate transportation of, for immoral purposes, see COMMERCE, 40, 41. GLANDERS. Liability of lessee placing horse afflicted with, in lessor's barn, see LANDLORD AND TENANT, 104. GOING VALUE. As item in fixing telephone rates, see TELE- PHONES, 17. Necessity for exact ascertainment of, in condemnation proceedings, see EMINENT DOMAIN, 168, 169. As item in fixing gas rates, see GAS, 48-52. GOLD. Mining of, as public purpose authorizing condemnation proceedings, see EMINENT DOMAIN, 82. GOOD BEHAVIOR. Deduction from sentence for, see CONSTITU- TIONAL LAW, 97; CRIMINAL LAW, 261- 264. Evidence of good behavior of prosecutrix on trial for incest, see EVIDENCE, 1576. GOOD FAITH. Prejudicial error in admission of evidence as to, see APPEAL AND ERROR, 1238. Of broker in receiving from bank teller, for purposes of speculation, money of bank, see ASSUMPSIT, 19. Of conductor in ejecting passenger, see CAR- RIERS, 409, 410. As defense against liability of stockholder, see CORPORATIONS, 355. Presumption and burden of proof as to, see EVIDENCE, II. e, 7, 258, 274-281. Evidence as to generally, see EVIDENCE, XI. e. Evidence of, in mitigation of damages, see EVIDENCE, 2013. Sufficiency of evidence of, see EVIDENCE, XII. c, 2081-2086, 2099. In retreat as necessary to self-defense, see HOMICIDE, 100. GOOD MERCHANTABLE GOOD WILL, III. 1353 Of seller of intoxicating liquors in viola- tion of statute, see INTOXICATING LI- QUORS, 159. As justification for procuring breach of con- tract, see LABOB ORGANIZATIONS, 10. Liability for larceny of one taking property in good faith, see LARCENY, 14, 15. Of master in employing infant under age, see MASTER AND SERVANT, 154-156, 173-176. Setting out facts in pleading to show, see PLEADING, 245, 249. Sufficiency to refute imputation of negli- gence, see RAILROADS, 119. Of officers making illegal search, see SEARCH AND SEIZURE, 12. Question for jury as to, see TRIAL, II. c, 5. GOOD MERCHANTABLE. Meaning of words in contract of sale, see SALE, 76. GOOD WILL. I. In general, II. Effect on good will of transfer of business or dissolution of firm, 1. III. Effect of sale or transfer of good will, 21O. Right of trustee for creditors to transfer, see ASSIGNMENTS FOR CREDITORS, 4. Partial failure of consideration as defense to note given for, see BILLS AND NOTES, 218. Agreements in restraint of trade on sale of, see CONTRACTS, III. e, 2. Implied agreement not to compete with pur- chaser of, see CONTRACTS, 11. Consideration for sale of, see CONTRACTS, 79. Sale of good will of agency, see CONTRACTS, 70. Breach of covenant conveying; who may maintain action for, see COVENANTS AND CONDITIONS, 90. Consideration of, in determining value of public utility plant for purpose of fix- ing rates, see GAS, 46, 47 ; TELEPHONES, 22. Right of successors to good will of corpo- rations to enjoin use of name by other corporations, see INJUNCTION, 392. Injunction to protect, see INJUNCTION, 445. Rights of partners as to, see JUSTICE OF THE PEACE, 3; PARTNERSHIP, 46, 53. Passing of, by will, see WILLS, 204. I. In general. (See same heading in Digest L.R.A. 1-70.) Digest 1-52 L.R,A.(N.S.) //. Effect on good will of transfer of business or dissolution of firm. (See also same heading in Digest L.R.A. 1-10.) 1. Upon the sale of the business and stock in trade of a partnership dissolved by death of one partner, to a corporation or- ganized to continue the business, the good will of the business passes by the sale, leav- ing nothing to be accounted for, because of it, by the surviving partner to the repre- sentative of the decedent in addition to the amount received from the sale. Didlake v. Roden Grocery Co. 22: 907, 49 So. 384, 160 Ala. 484. III. Effect of sale or transfer of good will. (See also same heading in Digest L.R.A. 1-10.) Effect of sale of good will of corporation on right of officers and stockholders to re- engage in same business, see CORPORA- TIONS, 253. Presumption of foreign law as to sale of, see EVIDENCE, 67. Assignment of, as conferring right to use tradename, see TRADENAME, 4. 2. If one who sells the good will of his dental business re-establishes himself in that business and solicits the patronage of his old patients, the purchasers are entitled to such money damages as they may sus- tain from such breach of contract. Foss v. Roby, 10: 1200, 81 N. E. 199, 195 Mass. 292. 3. One selling the good will of a dental business will not be permitted to establish himself in the same business in the same city, and solicit the patronage of his former patients. Foss v. Roby, 10: 1200, 81 N. E. 199, 195 Mass. 292. 4. One selling the good will of a dental business impliedly undertakes that he will not thereafter practise his profession so as to injure or destroy the business he has sold. Foss v. Roby, 10: 1200, 81 N. E. 199, 195 Mass. 292. (Annotated) 5. A sales agent located in a commercial center, who, upon surrendering the agency, sells to his principal the good will of the business, cannot derogate from his grant by engaging in a competing business and en- deavor to sell similar goods to his old cus- tomers. Gordon v. Knott, 19: 762, 85 N. E. 184, 199 Mass. 173. 6. Even though one selling the good will of a business cannot be restrained from en- gaging in a competing business, he will not be permitted to solicit orders from his for- mer customers. Gordon v. Knott, 19: 762, 85 N. E. 184, 199 Mass. 173. (Annotated) 7. A sale by a copartnership of the good will of an established business in connec- tion with a sale of the business binds the members thereof individually as well as co- 1354 GOVERNMENT GOVERNOR. partners. South worth v. Davison, 19: 769, 118 N. W. 363, 106 Minn. 119. (Annotated) 8. A member of a partnership is not, by voluntarily selling its good will for a valuable consideration, estopped from deal- ing with old customers of the partnership whose patronage, apart from that of the general public, he does not solicit, nor with persons mentioned in a trade list which had been compiled by the old firm and abstract- ed by him. Von Bremen v. MacMonnies, 32: 293, 93 N. E. 186, 200 N. Y. 41. 9. A member of a partnership who vol- untarily conveys the good will of the busi- ness for a valuable consideration cannot, upon establishing a competing business, solicit trade from old customers of the part- nership. Von Bremen v. MacMonnies, 32: 293, 93 N. E. 186, 200 N. Y. 41. 10. A sale of good will by members of a partnership must be deemed to be volun- tary, where they were free to sell or not at their discretion, although it occurred within a few weeks of the termination of the partnership agreement, to avoid liquida- tion. Von Bremen v. MacMonnies, 32: 293, 93 N. E. 186, 200 N. Y. 41. GOVERNMENT. Separation of powers of, see CONSTITUTION- AL LAW, I. e. Guaranty of republican form of, see CONSTI- TUTIONAL LAW, II. h. GOVERNMENTAL CONTROL. Of carrier, see CARRIERS, IV. Of corporations generally, see CORPORA- TIONS, I. e. Over public service corporations, see PUBLIC SERVICE CORPORATIONS. GOVERNMENT INSPECTION. Effect of, on master's duty to inspect, see MASTER AND SERVANT, 446. GOVERNMENT SURVEY. Bordering on water courses, see BOUNDA- RIES, 18. GOVERNOR. Power to veto appropriation bill after ad- journment of legislature, see APPROPRI- ATIONS, 15. Duty of attorney general to prosecute liquor case at request of, see ATTORNEY GEN- ERAL, 3. Digest 1-52 L.R.A.(N.S.) Review of action of, by certiorari, see CEB- TIORARI, 5. Proclamation by, as to proposed constitu- tional amendment, see CONSTITUTIONAL LAW, 6. Delegation of power to, see CONSTITUTION- AL LAW, 72, 73. Empowering governor to fix date of execu- tion of criminals, see CONSTITUTIONAL LAW, 138. Interference of court with, see COURTS, 54- 64. Right to set aside law imposing death pen- alty for crime, see CRIMINAL LAW, 248. Power to pardon, see CRIMINAL LAW, 264, 279, 292-296. Power to revoke pardon issued by lieutenant governor, see CRIMINAL LAW, 302. Conclusiveness, in habeas corpus proceeding, of recitals in governor's proclamation as to existence of insurrection, see HA- BEAS CORPUS, 18. Review of determination of, in extradition proceedings, see HABEAS CORPUS, 57- 66. Injunction against, see INJUNCTION, 314. Right to order seizure by militia of insur- rectionists, see INSURRECTION, 2. Mandamus to, see MANDAMUS, 31-36. Eligibility to office of governor, see OFFI- CERS, 15. Power to appoint officer, see OFFICERS, 21, 22. Power as to filling vacancy in office, see OFFICERS, 27-35. Power to remove officer, see OFFICERS, 66. Power to exact contract as condition of signing bill, see OFFICERS, 80. Veto of bill by, see STATUTES, 12. 1. A constitutional provision vesting the supreme executive power of a state in the governor implies that the governor is the highest in authority in the executive department, with such power as will secure a faithful execution of the laws in the manner and by the methods prescribed by the Constitution and statutes. State ex rel. Stubbs v. Dawson, 39: 993, 119 Pac. 360, 86 Kan. 160. 2. The duty imposed by statute upon the governor to issue a certificate of elec- tion to an official who has been duly de- clared elected by the proper authorities is ministerial. State ex rel. Irvine v. Brooks, 6: 750, 84 Pac. 488, 14 Wyo. 393. 3. Where it appears that a newspaper correspondent has openly charged in his paper a violation of the liquor laws of a state, the governor, in the exercise of the power of his office, may require the attorney general to proceed to examine such corre- spondent as a witness, under a statute making the examination of witnesses a dis- tinct proceeding. State ex rel. Stubbs v. Dawson, 39: 993, 119 Pac. 360, 86 Kan. 180. 4. The governor of West Virginia has I power to declare a state of war in any ' town, city, district, or county of the state 1 . in the event of an invasion thereof by a hostile military force, or an insurrection, rebellion, or riot therein, and in such case, GRACE GRAND JURY, L 1355 to place such town, city, district, or county under martial law. State ex rel. Mays v. Brown, 45: gg6, 77 S. E. 243, 71 W. Va. 519. 5. The power possessed by the governor for the removal of an officer does not in- clude, or have incidental thereto, power forcibly to install a successor. Ekern v. McGovern, 46: 796, 142 N. W. 595, 154 Wis. 157. GRAIN ELEVATORS. Judicial notice that grain entering Chicago may be switched to, see EVIDENCE, 38. GRACE. Including days of, in computing interest, see USURY, 31. GRADE. Necessity of compensation on changing, see EMINENT DOMAIN, 226, 231, 276-283. Injuries from fixing and changing street grade, see HIGHWAYS, 128-140. Of highway, negligence as to, see HIGH- WAYS, 161-163. GRADE CROSSING. Estoppel of municipality to require, see ESTOPPEL, 2. Vacation of portion of highway in order to abolish, see HIGHWAYS, 406. Joint liability for injury resulting from abolition of, see JOINT CBEDITOBS AND DEBTORS, 12. Liability for maintaining, see RAILBOADS, 126. GRAFT. Charge of, as libel, see LIBEL AND SLANDEB, 71. 1. The word "graft," in its generally accepted meaning as applied to individuals, public officials, or corporations, imputes to the person, officer, or corporation charged with grafting, dishonesty; dishonest gain by reason of public office or public or pri- vate position; irregular or unlawful means of support; the use of the office or position for personal gain without rendering fair or compensatory service; stealing; swindling. State v. Sheridan, 15:497, 93 Pac. 656, 14 Idaho, 222. GRAIN. Grain elevators, see GRAIN ELEVATORS. Storage of, see WAREHOUSEMEN. Combination to fix rate of commission for selling, see MONOPOLY AND COMBINA- TIONS, 62, 63. Digest 1-52 L.R.A.(N.S.) GRAND JURY. I. In general, 14. II. Number. III. Summoning, impaneling, and dis- charge. IV. Qualifications and exemptions, 5, 6. Presumption arising from indictment by, see BAIL AND RECOGNIZANCE, 14, 16. Statute depriving accused of right to indict- ment by grand jury, see CONSTITUTION- AL LAW, 36. Contempt by grand juror, see CONTEMPT, 11, 35. Injunction by Federal court to restrain ac- tion by grand jury under state statute, see COURTS, 286. Right to prosecute without indictment or presentment by, see CBIMINAL LAW, II. d. Failure to prove absence of knowledge by, of material facts omitted from indict- ment, see CBIMINAL LAW, 67. Right of accused to inspection of minutes of evidence before, see CRIMINAL LAW, 73, 74. Production of bankrupt's books before grand jury as infringing privilege against self-crimination, see CBIMINAL LAW, 118. Failure of record to show that grand jury was sworn, see CRIMINAL LAW, 156. Burden of proving absence of knowledge of grand jury as to facts omitted from in- dictment, see EVIDENCE, 94. Admissibility of statement made by accused before, see EVIDENCE, 1222, 1223. Disclosure of evidence before, see EVIDENCE, 1280. Presence of unauthorized person in grand jury room, see INDICTMENT, ETC., 138- 140. Special attorney to represent county attor- ney before, see INDICTMENT, ETC., 138, 140. Libel by charges in proceedings before, see LIBEL AND SLANDEB, 37, 142. Qualifications of commissioners selecting, see OFFICERS, 8. Right to detain for use before, articles of evidentiary nature, see SEARCH AND SEIZURE, 7, 8. Indorsing names of witnesses on informa- tion or indictment, see WITNESSES, 20. Grand juror as witness, see WITNESSES, 130. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. An indictment is void where a pri- vate prosecuting attorney, not summoned 1356 GRAND JURY, II. GRATE. in the case, is permitted to appear before and address the grand jury in support of the accusation upon which the indictment is founded. Collier v. State, 45: 599, 61 So. 689, 104 Miss. 602. 2. An indictment otherwise regular is not vitiated by the fact that the foreman of the grand jury was excused on account of interest, from attendance during con- sideration of the facts upon which it was founded. State v. Coulter, 44: 1142, 61 So. 706, 104 Miss. 764. (Annotated) 3. A county prosecuting attorney may be present in the grand jury room to give help and advice to the jurors, under a stat- ute providing that it shall be his duty to represent the state in all matters coming before the grand jury of his county. State v. Coulter, 44: 1142, 61 So. 706, 104 Miss. 764. Finding second indictment. 4. A grand jury may bring in a second indictment against the same person on the same state of facts, upon the first one prov- ing defective, under a statute providing that if a demurrer is sustained to an in- dictment it is a bar to another prosecution for the same offense unless the court, being of opinion that the objection to which the demurrer is allowed may be avoided in a new indictment, directs the case to be sub- mitted to the same or another grand jury. Thompson v. United States, 47: 206, 202 Fed. 401, 120 C. C. A. 575. II. Number. (See same heading in Digest L.R.A.. 1-10.) III. Summoning, impaneling, and dis- charge. (See also same heading in Digest L.R.A. 1-10.) Testing legality of drawing by prohibition, see PROHIBITION, 9. IV. Qualifications and exemptions. (See also same heading in Digest L.R.A. 1-10.) Competency. Exercise of superintending control in re- viewing decision as to competency of grand juror, see COURTS, 221. Order quashing indictment, for disqualifica- tion of grand juror, see MANDAMUS, 26. 5. The presence upon the grand jury of the man intended by the jury commission- ers is shown by the fact that although, in placing his name in the box, an initial was misplaced, and the statute did not require his residence to be designated on the paper slip, yet they substituted for the residence of the man bearing the name so written on the slip that of the one who served on the jury. State ex rel. McGovern v. Williams, 20: 941, 116 N>W. 225, 136 Wis. 1. 6. One who in his employment as a teacher, but with no intention of changing Digest 1-52 L.R.A.(N.S.) his permanent abode, has been temporarily absent with his family from the parish of his residence, in which he has voted and paid taxes, and to which lie has returned, is not disqualified from serving as a grand juror therein. State v. Wimby. 12: 98, 43 So. 984, 119 La. 139. GRAND PARENTS. Right of, to custody of infant, see INFANTS, 34-36, 38, 41-43. GRAND STAND. Duty to patrons with respect to safety of, see AMUSEMENTS, 3, 4. Fall of, see EVIDENCE, 458; EXHIBITIONS; MUNICIPAL CORPORATIONS, 401. GRANT. Presumption of, see ADVERSE POSSESSION, 67; EVIDENCE, 625-627. To alien, see ALIENS, 3, 4. Conditions in grant by state, see COVENANTS AND CONDITIONS, 26, 87. Extent of rights under, see EASEMENTS, 73. Loss of easement by, see EASEMENTS, 81, 95-97. Loss by nonuser of easement created by, see EASEMENTS, 93. Estoppel by, see ESTOPPEL, II. a. Admissibility in evidence, see EVIDENCE, 789. What included within, see GIFT, 6. Right of private citizen to sue for repeal of grant by state, see PARTIES, 111. Of public lands, see PUBLIC LANDS. Question for jury as to whether particular parcel of land was included in, see TRIAL, 619. Of land under water, see WATERS, I. c, 4, d. Of water rights, see WATERS, II. j. Exclusive grant of right to take water from artesian well, see WATERS, 287, 288. See also DEEDS. 1. Grants by implication are not fa- vored. Muscogee Mfg. Co. v. Eagle & Phe- nix Malls, 7: 1139, 54 S. E. 1028, 126 Ga. 210. 2. A statute vesting absolute title in a city to land "heretofore" held by it in trust or otherwise has no effect upon a title claimed under an unconstitutional statute. Mobile Docks Co. v. Mobile. 3: 822, 40 So. 205, 146 Ala. 198. (Annotated) GRATE. In sidewalk, see HIGHWAYS, 307-309, 317- 320, 344, 388a, 389. GRATUITOUS SERVICE GUARANTY. 1357 GRATUITOUS SERVICE. Right to recover compensation for, see As- SUMPSIT, 3. GRATUITY. See GIFT. GRAVEL. Contract by one leasing right to take gravel, to protect lateral support of adjoining property, see CONTRACTS, 64. GRAVEL PIT. Right to dower in, see DAMAGES, 308; DOWEB, 8. GRAVES. See CEMETERIES. GRAVE YARD. See CEMETERIES. GRAZING FEE. As interference with interstate commerce, see COMMERCE, 12, 16. GREAT PONDS. Rights in, generally, see WATERS, I. c, 3. GRIST MILLS. Condemnation of dam used for operation of, see EMINENT DOMAIN, 22. Exercise of right of eminent domain by, see EMINENT DOMAIN, 22, 67-70. GROCERY. Condemnation of land for grocery business, see EMINENT DOMAIN, 52. Digest 1-52 L.R.A.(N.S.) GROSS EARNINGS. State taxation of gross earnings of inter- state express company, see COMMERCE, 145. Of gas company, see GAS, 33, GROSS NEGLIGENCE. Leaving switch open when passenger train expected as, see CARRIERS, 214. Sufficiency of proof of, see EVIDENCE, 2145. Of conductor of street car, see CARRIERS, 536. Of telegraph company, see TELEGRAPHS, 19, 89. Of railroad company, see RAILROADS, 60, 85, 86, 91, 96, 210. In general, see NEGLIGENCE, 24, 25, 120. GROUND RENT. Stipulation for, in lease, see LANDLORD AND TENANT, 108. GROWING CROPS. Evidence as to value of, see EVIDENCE, 1702. Evidence as to damages to, see EVIDENCE, 1739-1742. See also CROPS. GUARANTY. J. Validity; construction; effect, 123. II. Revocation; conditions; discharge, 24-3O. Of genuineness of signature on commercial paper, see BILLS AND NOTES, 74. Of fidelity of emplovces or corporate offi- cer, see BONDS, II. b. Of maturity of loan association stock, see BUILDING AND LOAN ASSOCIATIONS, 5. Of ri;i.'?. (Annotated) HAIL. Insurance against destruction by, see IN- SURANCE, 35. HALF BLOOD. Inheritance between relatives of, see DE- SCENT AND DISTRIBUTION, 6, 7, 12. HALF BROTHER. As heir, see WILLS, 164. HALLWAYS. Easement hi, see EASEMENTS. 48. f>1. HAMMER HEAD OF FAMILY. 1371 HAMMER. Duty of master to inspect for defects, see MASTER AND SERVANT, 431. HAND. Damages for injury to, or loss of, see DAM- AGES, 427-430. Paralysis of, within insurance policy, see INSURANCE, 190. HAND CAB. Person riding on, as passenger, see CAB- BIERS, 78. In street as unlawful obstruction, see HIGHWAYS, 280. Negligence in running, see MASTEB AND SERVANT, 774-777. Section foreman as vice principal of men propelling, see MASTER AND SERVANT, 851. As dangerous agency in hands of servant, see MASTER AND SERVANT, 889. Injury to infant permitted by employees to ride on, see MASTER AND SERVANT, 910. Injury to children playing on, see NEG- LIGENCE, 160, 161. HANDHOLDS. Injury to servant by lack of handholds on wrecked engine, see MASTEB AND SERVANT, 418; NOTICE, 11. HANDWRITING. Presumption of drawee's knowledge of, see BANKS, 121, 122. Admissibility of, for purpose of compari- son, see EVIDENCE, IV. p. Evidence as to genuineness of generally, see EVIDENCE, 741, 742. Opinion evidence as to, see EVIDENCE, VII. m. Proving will by testimony as to hand writ- ing of attesting witnesses, see EVI- DENCE, 2293. HARBOR. Harbor improvement bonds, see BONDS, 78, 87. Jurisdiction to compel removal of wreck from, see COURTS, 294. Charging vessel owner with expense of re- moving vessel from, see SHIPPING, ]. Digest 1-52 L.R.A.(N.S.) HARMLESS ERROR. See APPEAL AND ERROR, VII. m. HARNESS. Master's duty to keep safe, see MASTER AND SERVANT, 328. HAWKERS. See PEDDLERS. HAY. Evidence as to quality of, see EVIDENCE, 886, 1169. Lien for storage of, see LIENS, 8. Warranty on sale of, see SALE, 76; 201. HAY PRESS. Breach of warranty on sale of, see SALE, 71, 202. HAZARD. Insured against, increase of, see INSUR- ANCE, III. e, 1, c; VI. b, 3, f. What constitutes a railroad hazard, see MASTEB AND SERVANT, 755, 757. HAZING. Injury to employee by, see MASTER AND SERVANT, 953. HEADLIGHT. Regulation of character of, as interference with commerce, see COMMERCE, (55. Requiring use of certain kind of headlights on locomotives, see CONSTITUTIONAL LAW, 209, 210, 438, 439; RAILROADS, 58, 59. Running train without, see RAILROADS, 78, 79, 104, 181. Blinding of traveler by headlight of street car, see STREET RAILWAYS, 24. HEAD OF FAMILY. Who is, within meaning of homestead law, see HOMESTEAD, 10-12. 1372 HEALTH, L III. a. HEALTH. /. Boards of health, 1, 2. II. Epidemics. III. Regulations to protect health, 3 12. a. In general, 311. b. Vaccination, 12. IV. Destruction of property to protect. V. Liability of officers, 13-2O. Allegations of injury to, in complaint for injury to realty by nuisance, see AC- TION OB SUIT, 121. Powers of board of examiners of applicants for plumbing license, see BOARDS, 2. Carrier's duty to inform passenger as to quarantine, see CARRIERS, 221. Removal of passenger from train by quar- antine or health officer, see CARRIERS, 406. County's liability for negligence of health officer, see COUNTIES, 3, 7, 8. Injury to, as element of damages in breach of promise case, see DAMAGES, 319. Removal by municipality of person afflicted with contagious disease into adjoining town, see HOSPITALS, 1. Representations as to, in insurance policy, see INSURANCE, III. e, 2, b. Burning of house in attempting to fumi- gate it, see INSURANCE, 694. Municipal liability for acts of health de- partment, see MUNICIPAL CORPORA- TIONS, 331. Municipal liability as to contagious dis- ease, see MUNICIPAL CORPORATIONS, 354. Nuisance as to health, see NUISANCES, 19- 32. Infection of building with smallpox by board of health, see WASTE, 1. 7. Boards of health. (See also same heading in Digest L.R.A. 1-1/0.) Personal liability of members of board, see infra, V. Allegations in hearing before, of charges against physician for procuring abor- tion, see ABORTION, 1. Costs in proceeding to enforce order of, see COSTS AND FEES, 5. Relation of judiciary to, see COURTS, 73-75, 97. Admissibility of rule of, see EVIDENCE, 753. Injunction to restrain board of health from sending person to pest house, see INJUNCTION, 107, 108. Proceedings before, to revoke physician's license, see JURY, 11; PHYSICIANS, 10, 11, 13; PLEADING, 442. Mandamus to, see MANDAMUS, 56. Municipal liability for acts of, see MUNICI- PAL CORPORATIONS, 415. Authority of town to remove members of, see TOWNS, 4. 1. The members of the board of health of the department of health of the city of Digest 1-52 I,.R.A.(N.S.) New York were not changed from admin- istrative to judicial officers by the provi- sion of 1173 of the Greater New York charter (3 Laws 1901, page 500, chap. 466) that the actions, proceedings, authority, and orders of such board of health shall at all times be regarded as in their nature judicial, and be treated as prima facie just and legal; the purpose of that provision be- ing merely to invest the orders and proceed- ings of the board with the presumption that they were duly authorized, and were just and legal. People ex rel. Lodes v. Health Department, 13: 894, '82 N. E. 187. 189 N. Y. 187. Powers of. Delegation of, see WATERS, 129. Delegation of power to, see CONSTITUTION- AL LAW, 116-118. As to sale of milk, see FOOD, 9. Revocation by, of permit to sell milk, see LICENSE, 33, 34. Grant to board of health of arbitrary pow- er as to licenses, see LICENSE, 40. As to license of physicians, see PHYSICIANS AND SURGEONS, 6, 7. As to vaccination of pupil, see SCHOOLS, 14, 16-18. 2. Under statutes making it a manda- tory duty of the general council of every city having a certain population to appoint a board of health, and investing such boards of health with the same powers as are con- ferred upon county local boards of health, the powers of a city board of health are not derived solely from the general council, and it may therefore enact rules and regu- lations in addition to and inconsistent with the provisions of the city ordinance under which it acts. Board of Health v. Koll- man, 49: 354, 160 S. W. 1052, 156 Ky. 351. II. Epidemics. (See same heading in Digest L.R.A. 1-70. ) III. Regulations to protect health. a. In general. (See also same heading in Digest L.R.A. 1-10.) Carrier's liability where delivery is for- bidden by health officers, see CARRIERS, 835. Interference with property rights by, see CONSTITUTIONAL LAW, 372. Requiring certificate of freedom from ven- ereal disease as condition to marry, see CONSTITUTIONAL LAW, 190; MARRIAGE, 8. Statute regulating business of plumbing, see CONSTITUTIONAL LAW, 284; LI- CENSE, 71. Forbidding use of polluted water supply for drinking purposes, see CONSTITU- TIONAL LAW, 350. Validity of burial regulations, see CON- STITUTIONAL LAW, 352; CORPSE, 1. HEALTH, III. b, IV. 3373 Forbidding further interments in cemetery, see CONSTITUTIONAL LAW, 517, 668; ESTOPPEL, 26. Drainage and filling of land at expense of property benefited, see CONSTITUTION- AL LAW, 607. Requiring paving of surface of private pas- sageways, see CONSTITUTIONAL LAW, 372. Permitting occupant of lower berth in sleeping car to control upper berth when not in use, see CONSTITUTIONAL LAW, 670. Regulation of bakery, see CONSTITUTIONAL LAW, 691. Health regulations as a taking of property for public use, see EMINENT DOMAIN, 202. Burden of proving pollution of water by sewage, see EVIDENCE, 496. Pure food laws generally, see FOOD. Power of municipality with respect to dust raised by operation of street cars, see MUNICIPAL CORPORATIONS, 130-134. Requiring permit from health commission- er for hospital, see MUNICIPAL CORPO- RATIONS, 215; PARTIES, 163, 165, 166. Statute as to inspection of animals brought into state, see PROXIMATE CAUSE, 24. In matters affecting schools, see SCHOOLS, I. c. Title of statute conferring powers on city in "interest of, see STATUTES, 92, 161. Provision for protection of public water supply, see WATERS, 119-129. ' 3. The police jury is without authority to amend, modify, or nullify an ordinance adopted by a parish board of health. Nac- cari v. Rappelet, 13: 640, 44 So. 13, 119 La. 272. 4. That no method is provided for en- forcing an order ^.f a state board of health will not prevent its enforcement by the court, if its order might be of such a char- acter that enforcement of it would result in the enforcement of that of the state board. State Bd. of Health v. St. Johns- bury, 23: 766, 73 Atl. 581, 82 Vt. 276. 5. That the conditions in an isolated case are such as to make unnecessary the enforcement of a health ordinance will not prevent its enforcement, if it is within a general clause to which the ordinance is ap- plicable. Benz v. Kremer, 26: 842, 125 N. W. 99, 142 Wis. 1. 6. Municipal authorities have power to provide that no person dying in the city shall be interred without a burial permit from the board of health, under charter power to enforce regulations to prevent the spread of contagious diseases in the city, and to secure the general health of the in- habitants. Mevers v. Duddenhauser, 5: 727. 90 S. W. 1049, 122 Ky. 866. 7. The adoption by a board of health of an ordinance declaring the use of fish and shrimp-shell refuse as a fertilizer to be a nuisance dangerous to public health con- cludes the question whether such fertilizers can be safely used during the winter months, Digest 1-52 Ii,R.A.(N.S.) where it does not clearly appear that the action of the board is arbitrary. Naccari v. Rappelet, 13: 640, 44 So. 13, 119 La. 272. 8. A board of health need not hear tes- timony before forbidding a municipality to discharge sewage into a stream which is a source of water supply, where the statute authorizes it to make a thorough investiga- tion in such cases, and, if in its judgment the public health so requires, forbid the dis- charge of sewage into the stream. Miles City v. Board of Health, 25: 589, 102 Pac. 696, 39 Mont. 405. Quarantine. Liability of members of health board in respect to, see infra, 13, 18, 19. Quarantine and inspection laws as regula- tion of commerce, see COMMERCE, 16- 20. Knowledge of mother as to violation of quarantine by children, see EVIDENCE, 203. Sufficiency of proof of violation of quaran- tine, see EVIDENCE, 2417. 9. Requiring a person exposed to a contagious disease to remain in quarantine during the duration of the danger from the disease, to be determined by a health offi- cer, is reasonable. State v. Racskowski, 45: 580, 86 Atl. 606, 86 Conn. 677. 10. Power to quarantine persons ex- posed to contagious diseases is included in a statute conferring all power necessary and proper for preserving the public health and preventing the spread of disease. State v. Racskowski, 45: 580, 86 Atl. 606, 86 Conn. 677. 11. A mother who knowingly permits her children to violate a valid quarantine order may be subject to the statutory pen- alty for violating quarantine. State v. Racskowski, 45: 580, 86 Atl. 606, 86 Conn. 677. ft. Vaccination. (See also same heading in Digest L.R.A. 1-10.) Vaccination of pupils, see SCHOOLS, 14, 16- 18. 12. The occasional recurrence of small- pox in a city does not present an emergency for which the health commissioner may make and enforce rules not prescribed or approved by the legislative authority of the city. People ex rel. Jenkins v. Board of Educa- tion, 17: 709, 84 N. E. 1046, 234 111. 422. IV. Destruction of property to protect. (See also same heading in Digest L.R.A. 1-10.) Power to require destruction of diseased cows, see CONSTITUTIONAL LAW, 653; MUNICIPAL CORPORATIONS, 162. 1374 HEALTH, V. HEAT. F. Liability of officers. (See also same heading in Digest L.R.A. 1-10.) Liability for costs of proceeding to enforce order, see COSTS AND FEES, 5. Liability of board of health for injury from rope barrier placed by them in street, see HIGHWAYS, 175. Suits against board of health for acts in abating disease, see TRIAL, 279. 13. The members of a board of health cannot be held liable for injuries caused by their failure to comply with a provision of a statute for the protection of the communi- ty against persons afflicted with contagious disease, and the quarantine of such persons, that "they shall provide nurses," since such matter is discretionary. Rohn v. Osmun, 5: 635, 106 N. W. 697, 143 Mich. 68. ( Annotated ) 14. Members of a board of health are liable for personal misfeasance in so con- ducting a contagious disease hospital that it becomes a nuisance. Barry v. Smith, 5: 1028, 77 N. E. 1099, 191 Mass. 78. 15. Members of a board of health are not personally liable for a mistaken or negli- gent exercise of the power to locate a con- tagious disease hospital within a city. Barry v. Smith, 5: 1028, 77 N. E. 1099, 191 Mass. 78. 16. Members of a board of health who appropriate, either personally or by persona acting in their presence and under their di- rection, private property as an adjunct to a contagious disease hospital, to the exclusion of the owner and his tenants, without his consent or the proceedings prescribed by statute, are liable therefor. Barry v. Smith, 5: 1028, 77 N. E. 1099, 191 Mass. 78. 17. The mere fact that a contagious-dis- ease hospital is shown to be a nuisance while under the charge of members of the hoard of health does not of itself establish their liability therefor, but it must be shown that the condition was due to their misfea- sance. Barry v. Smith, 5: 1028, 77 N. E. 1099, 191 Mass. 78. 18. Health officers are not individually liable for the loss of crops of a person quar- antined for contagious disease, although they are mistaken as to the existence of the disease. Beeks v. Dickinson County, 6: 831, 108 N. W. 311, 131 Iowa, 244. 19. The members of a board of health, acting in performance of a public duty, un- der a public statute, to prevent the spread of an infectious or contagious disease, are not personally liable in a civil action for damages arising out of their acts in estab- lishing a quarantine, even where the dis- ease does not actually exist, provided they act in good faith. Valentine v. Engelwood, 19: 262, 71 Atl. 344 ; 76 N. J. L. 509. 20. Constitutional rights to private prop- erty and individual liberty are not infringed by a statute forbidding suits against a board of health, its officers or agents for their acts in abating a cause of disease, un- Digest 1-52 L.R.A. (N.S.) less upon proof that the board acted with- out reasonable and probable cause to be- lieve that the alleged cause of disease was, in fact, prejudicial and hazardous to the public health. Valentine v. Engelwood, 19: 262, 71 Atl. 344, 76 N. J. L. 509. HEARING. Necessity of, to constitute due process, see CONSTITUTIONAL LAW, II. b, 7, C. Right to, on condemnation of property, see EMINENT DOMAIN, 125-131. Right of executor to, before surcharging of account, see EXECUTOES AND ADMINIS- TRATORS, 130. In mandamus proceeding, see MANDAMUS, II. d. Necessity of, before declaring bowling alley a nuisance, see MUNICIPAL CORPORA- TIONS, 150; NUISANCES, 5. Right to, before destruction of property as nuisance, see NUISANCES, 169. On removal of officer, see OFFICERS, 69, 70. Right of taxpayer to, see TAXES, 195. HEARSAY. Evidence of, see EVIDENCE, X. HEAT. Carrier's duty to heat car, see CARRIERS, 257-259. Duty of carrier to heat station, see CAR- RIERS, 596, 597; DAMAGES, 612. Contract for heating system in public build- ing, see CONTRACTS, 795, 796. Exercise of eminent domain for purpose of supplying, see EMINENT DOMAIN, 4, 5, 47, 71-73, 76. Parol evidence as to mode of heating, see EVIDENCE, 905. Right to maintain electric line in highway to furnish heat, see HIGHWAYS, 53, 54. Liability of lessee for cost of heating plant, see LANDLORD AND TENANT, 34. Eviction of tenant by landlord's failure to properly heat building, see LANDLORD AND TENANT, 62. Liability of owner of building leased for boarding house -for injury to occupants of rooms by lack of, see LANDLORD AND TENANT, 134. Liability of landlord for injury by shutting off heat from tenement, see LANDLORD AND TENANT, 206. Rules adopted by corporation organized to supply, see PUBLIC SERVICE CORPORA- TIONS, 3, 4. Rules of corporation supplying heat to public, see PUBLIC SERVICE CORPORA- TIONS, 3, 4. HEATING APPARATUS HEMORRHAGE. 1375 Building owner furnishing, to others than tenant as owner of public utility, see PUBLIC SEBVICE CORPORATIONS, 12. HEATING APPARATUS. Measure of damages for injury to tenant's property through bursting of defective steam radiator, see DAMAGES, 440. Landlord's duty to keep heating apparatus in repair, see LANDLORD AND TENANT, 164, 165. HEAT OF PASSION. Presumption as to, see EVIDENCE, 309. Reducing murder to manslaughter, see HOMICIDE, 64-69. HEIGHT. Regulating height of buildings, see BUILD- INGS, 5-11; CONSTITUTIONAL LAW, 178, 179, 662; MANDAMUS, 129. Of advertising signs, ordinance as to, see CONSTITUTIONAL LAW, 659. HEIRS. Contract by devisee to share real estate with, see ACTION OB SUIT, 12. When action to enforce trust for, accrues, see ACTION OR SUIT, 13. Defense of alteration of agreement for pay- ment of money as against heir of one to whom agreement runs, see ALTERA- TION OF INSTRUMENTS, 3. Right to appeal from order refusing to ap- point guardian for incompetent person, see APPEAL AND ERROR, 85. Right to question power of benevolent so- ciety to take under will, see BENEVO- LENT SOCIETIES, 1. Right to question authority of corporation to take devise, see CHARITIES, 39. Authorizing sale of property of absent heir, see CONSTITUTIONAL LAW, 608. Meaning of word as used in deed, see DEEDS, II. b. Meaning of words "bodily heirs" in deed, see DEEDS, 71. Rule in Shelley's Case as to use of word, see DEEDS, II. e, 3; WILLS, III. g, 3. Necessity of using word, in deed, see DEEDS, 31, 54. Of living person, construction of grant to, see DEEDS, 32. As to descent and distribution to, see DE- SCENT AND DISTRIBUTION. Liability of, for debts of ancestor, see DE- SCENT AND DISTRIBUTION, III. Estoppel of, see ESTOPPEL, 33, 261, 262. Burden of proving title to land derived through deeds from, see EVIDENCE, 618. Digest 1-52 L.R.A.(N.S.) Duty of one entitled to accounting from, for money received from father's executor, to show amount received, see EVIDENCE, 655. Distribution to, see EXECUTORS AND ADMIN- ISTRATORS, IV. Expectancies of, see EXPECTANCIES. Fraudulent grantee, cancelation of convey- ance as against, see FRAUDULENT CON- VEYANCES, 12. Rights of, in homestead, see HOMESTEAD, IV. b. Enjoining interference with cemetery by, see INJUNCTION, 177. Rights of, in life insurance, see INSURANCE, VI. d, 2, b. Effect of laches to bar rights of, see LIMI- TATION OF ACTIONS, 60. Running of limitations in favor of, see LIMITATION OF ACTIONS, 354. Effect of legitimation, see PARENT AND CHILD, II. Effect of adoption, see PARENT AND CHILD, III. As parties plaintiff, see PARTIES, 140-143. As bona fide purchasers within protection of recording act, see RECORDS AND RE- CORDING LAWS, 25. Meaning of word "heirs" in treaties, see TREATIES, 4. Title derived through deeds from heirs, see VENDOR AND PURCHASES, 35. Disinheriting, see WILLS, III. c. Legacy to, see WILLS, 161-168. Lien of judgment on judgment defendant's interest in property as heir, see WILLS, 376. 1. The heirs at law of a person have no right to his property, except subject to hip pleasure, he is not bound to consult them or be influenced by their wishes, nor have they any right in the matter except that he be left free to exercise his own will. Boardman v. Lorentzen, 52: 476, 145 N. W. 750, 155 Wis. 566. HEIRSHIP. Recitals of, in deed, see EVIDENCE, 785. HELPERS. Right of labor union to strike against rec- ognition of system allowing wn-'-ors to employ helpers, see LABOR OH , -.I/A- TIOiNS, 51. HEMORRHAGE. As proximate cause of death, see PROXI- MATE CAISE, 22. 1376 HEPBU UN ACT HIGHWAYS. HEPBURN ACT. See APPEAL AND EBEOB, 515; CARRIERS, 638, 937, 938. HERNIA. Death from, as one through external, vio- lent, and accidental means, see INSUR- ANCE, 737. Loss resulting to insured person from, see INSURANCE, 804. HIDDEN PROPERTY. See TREASURE-TROVE. HIGHER LAW. See CBIMINAL LAW, 6. HIGH SCHOOL. Special legislation as to, see STATUTES, 178. Statute providing course of free high school instruction for pupils not within high school districts, see STATUTES, 342. HIGH WATER MARK. Title to land below, see WATEBS, I. c, 4, b. HIGHWAYS. /. Establishment; width, 11O. a. Establishment, 11O. ft. Width. II. Title; use; obstruction, 1112O. a. In general; title and property rights, 1131. ft. Uses; what allotted in street generally, 3273. c. Obstruction generally, 7489. d. Use and obstruction by rail- roads, 9O1O4. e. Rights as to trees or materials in street, 1O512O. 1. Trees, 1O5119. 2. Miscellaneous, 12O. III. Improvements; repairs; fixing 19. An abutting owner having the fee- of the highway may use the untraveled por- tion as a ditch to carry water to his- prem- ises for irrigation purposes so long as he- does not create a nuisance, or interfere with public use of the way. Holm v. Montgom- ery, 34: 506, 113 Pac. 1115, 62 Wash. 398. (Annotated) Easements of abutting owner. Prohibiting lot owner from exercising right of access to, see CONSTITUTIONAL LAW,. 363. Damages for condemnation of, see DAMAGES^. III. 1, 4. What constitutes a taking or damaging of, see EMINENT DOMAIN, III. b, 2. Compensation for taking or damaging, see EMINENT DOMAIN, 225-232. Right to compensation for consequential in- juries to, see EMINENT DOMAIN, III. e, 4. Compensation for obstructing access, see EMINENT DOMAIN, 198-201, 259, 260,. 264, 270. 1330 HIGHWAYS, II. b. Injunction to protect right of access, see INJUNCTION, 415. See also infra, 96-101. 20. The easement of view from every part of the public street belongs, as a valu- able right, to one owning property abutting on the street, and will be pro -cted by the courts against unlawful encroachments. Bischof v. Merchants' Nat Bank, 5: 486, 106 N. W. 996, 75 Neb. 838. (Annotated) 21. A township which, in opening a pub- lic road, leaves a pass way for cattle be- neath it for the accommodation of -owners of abutting land, which it maintains for a period of fifty years, is not liable in dam- ages in an action of trespass when, for pub- lic convenience, it decides to close the pass way. Snively v. Washington Twp. 12: 918, 67 Atl. 465, 218 Pa. 249. 22. The right of the owner of the fee of a highway to utilize it for any purpose which does not interfere with the right of the public docs not include the right to have a pass way for cattle maintained under it at public expense. Snively v. Washington Twp. 12: 918, 67 Atl. 465, 218 Pa. 249. 23. The facts that the walls of a pass way for 1 cattle under a strip of land subse- quently appropriated for a public highway had been constructed by the landowner, and that the public authorities permitted them to remain for fifty years, do not render the township liable in damages when, for pub- lic convenience, the proper authorities close the way. Snively v. Washington Twp. 12: 918, 67 Atl. 465, 218 Pa. 249. (Annotated) 24. A lot owner has a special and pecul- iar right not given to other citizens, in the particular street or highway on which his property abuts, since it affords him the means of going to and from his premises; and such right is a property right appurte- nant to his lot. Sandpoint v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. 25. The owner of a lot abutting on a street or highway has the right of ingress and egress, and may maintain an action for the protection of such right. Sandpoint v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. 26. The right of ingress to abutting property from a public street, and egress from the property to the street, is an in- cident of ownership, and constitutes a prop- erty right. Crawford v. Marion, 35: 193, 69 S. E. 763, 154 N. C. 73. 27. Since owners of property abutting on a highway have the absolute right of access thereto, a statute empowering com- missioners to make reasonable rules and regulations concerning the use of a boule- vard, and providing that no connections therewith shall be allowed without a permit from the commissioners, does not authorize the refusal of a permit. Goodfellow Tire o. v. Hurlbut, 30: 1074, 128 N. W. 410, 163 Mica. 249. (Annotated) 28. A village which has constructed a "bridge 450 feet long across a small stream 25 feet wide and the adjacent ravine or de- pression in the natural surface of the ground, and has built the bridge at a height of 20 feet from the ground at a place where Digest 1-52 L.R.A.(N.S.) it passes an abutting property owner'* lV)t r is without power and authority unqualified- ly to prohibit the property owner r;jni erecting a platform on his own lot to such a height as to enable him to go from hi* building to the bridge, and to connect s-uch platform with the bridge by proper and substantial railings, and to exercise in such manner the right of ingress and egress. Sandpoint v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. Private remedies of abutter. Remedy for obstruction, see infra, 87-89, 94, 95. Remedy for wrongful injury to trees r see infra, 106. 29. An abutting property owner cannot recover damages for the doubling of a single track electric railway in the street in front of his property, because of increased danger from collision with passing cars, since tlii* danger is common to the public generally. Birmingham R. Light & Power Co. v. Smyer, 47: 597, 61 So. 354, 181 Ala. 121. 30. The owners of land abutting upon a public street cannot maintain an action to enjoin the maintenance of a porch or wooden awning erected by an adjoining owner in front of his premises, and extending over the sidewalk located in the street, where the awning does not interfere with the plain- tiffs' access nor with their right of air, al- though the view of the sidewalk from the second story window is obstructed for some distance, but it is not shown that this af- fected the actual or rental value of the premises. Davis v. Spragg, 48: 173, 7!) S. E. 652, 72 W. Va. 672. (Annotated) 31. The right of an owner of premises abutting on a highway to use the highway for the purpose of loading and unloading goods is a right enjoyed by him as one of the public entitled to use the highway, and not a private right which entitles him to restrain a local authority, acting bona fide under statutory powers, from erecting a lamp standard in the highway adjoining his premises, which interferes with the conven- ient loading and unloading of goods. W. H. Chaplin & Co. v. Westminster, 4 B. R. C. 618, [1901] 2 Ch. 329. Also Reported in 70 L. J. Ch. N. S. 679, 65 J. P. 601, 49 Week. Rep. 586, 85 L. T. N. S. 88, 17 Times L. R. 576. 6. Uses; what allowed in street generally. (See also same heading in Digest L.R.A. 1-10.) Maintenance of cellar way in alley, see AL- LEYS, 3. Use of automobiles on, see AUTOMOBILES; CONSTITUTIONAL LAW, 158. Riding of bicycles on sidewalk, see BICY- CLES, 1. Discrimination against foreign corporations in use of, see COMMERCE, 37. Equal protection and privileges as to, see CONSTITUTIONAL LAW, 253-255. HIGHWAYS, II. b. 1381. Constitutionality of statute against loiter- ing on, see CONSTITUTIONAL, LAW, 351. Due process in regulating, see CONSTITU- TIONAL LAW, 522. Police power as to, see CONSTITUTIONAL LAW, 649. Interference by courts with decision of board of highway officers, see COURTS, 72. Lease to railroad of lands granted to mu- nicipality for street purposes, see COVE- NANTS AND CONDITIONS, 26, 87. Right of municipality to construct sewer in alley, see Drains and Sewers, 6. Additional burden on, see EMINENT DOMAIN, IV. Equity jurisdiction to review revocation of privileges in, see EQUITY, 19. Estoppel of municipality to demand com- pensation for use of area under side- walk, see ESTOPPEL, 17. Right of way of fire department on, see FIRE INSURANCE PATROL, 2. Compelling location of hydrants in highway, see INJUNCTION, 33. Injunction against excavating so as to in- terfere with conduits, see INJUNCTION, 369. License of vehicles on, see LICENSE, 26-28, 30, 76-78, 107-110, 116, 128, 129, 131. Mandamus to compel issue of permit to ex- cavate street, see MANDAMUS, 109. Municipal regulations as to, see MUNICIPAL CORPORATIONS, II. c, 4, b. Display of fireworks in, as nuisance, see MUNICIPAL CORPORATIONS, 350. Wire stretched across as nuisance, see NUI- SANCES, 8. Sale of liquor in, see PLEADING, 432. Title of statute regulating vehicles, see STATUTES, 110, 111. Prescriptive- right to conduct water through culvert in, see WATERS, 318. Grant of privileges in, to water company, see WATERS, 335, 336. 32. Individuals and corporations permit- ted by municipal ordinances to occupy the streets and public ways of a city for law- ful purposes, such as railroad tracks, poles, wires, gas and water pipes, hold such rights in subordination to the superior rights of the public, and cannot claim compensation from the city for interference with fran- chise rights or property due to the con- struction in the streets, with reasonable care and skill, of sewers demanded by the public interest; nor has the city authority voluntarily to burden itself with the pay- ment of damages caused thereby Ander- son v. Fuller, 6: 1026, 41 So. 684, 51 Fla. 380. (Annotated) By private corporations. Discrimination against foreign corporations in use of, see COMMERCE, 37. Estoppel to complain of, see ESTOPPEL, 156. 33. A contract by a board of supervisors to purchase electric power from a corpora- tion occupying a highway with its power line for purposes connected with the main- tenance of the highway cannot validate an entry by the corporation upon the highway Digest 1-52 L.RJMN.S.) for purely commercial purposes. Gurnsey v. Northern California Power Co. 36: 185,. 117 Pac. 906, 160 Cal. 699. Regulating slow-moving vehicles. 34. The legislature may require slow- moving vehicles to keep to the right side of the street at points where traffic is large or the streets are usually congested,, notwithstanding there may be times when such streets at such points are free from heavy traffic or congestion. State v. Bus- sian, 31:682, 127 N. W. 495, 111 Minn.. 488. (Annotated) 35. Under a statute requiring slow- moving vehicles to keep to the right side of the street at points where traffic is large or the streets are usually congested, a con- viction may be had for driving a heavily loaded vehicle along the center of such a street, although at the time of the com- mission of the offense no other vehicles were moving on the street, and the accused was not blocking any traffic, but merely drove on that part of the street most con- venient for him. State v. Bussian, 31: 682, 127 N. W. 495, 111 Minn. 488. 36. An ordinance requiring loaded ve- hicles carrying goods to or from premises abutting on a park way to enter on the way at the cross street nearest the premises in the direction in which the load is moving, and forbidding it to proceed thereon further than the nearest cross street thereafter, will not be construed to forbid the loaded vehi- cles from leaving the premises where the goods were delivered or received. Illinois Malleable Iron Co. v. Commissioners of Lincoln Park, 51: 1203, 105 N. E. 336, 263 111. 446. Coasting. 37. Coasting upon a public street of a city is not a nuisance per se. Lynch v. Pub- lice Service R. Co. (N. ,1. Err. & App.) 42: 865, 83 Atl. 382, 82 N. J. L. 712. Bridge over. 38. The owner of lots abutting on op- posite sides of the street may, under a li- cense or permit from the city council, rev- ocable at its pleasure, construct an over- head bridge for the purpose of transporting freight over the street and relieving the street of a serious obstruction to or inter- ference with traffic along the street; the bridge being so constructed that its sup- ports will not be in the street, and so that it will not interfere with the light and air of adjoining abutting owners. Kellogg v. Cincinnati Traction Co. 23: 158, 88 N. E. 882, 80 Ohio St. 331. (Annotated) Vault under. Duty to keep covering safe, see infra, 307- 309. Compensation for use of area underneath sidewalk, see ESTOPPEL, 6; MUNICIPAL CORPORATIONS, 96. Presumption of compliance with ordinance in making excavation, see EVIDENCE, 170. Power of municipality summarily to declare vault a nuisance, see MUNICIPAL COR- PORATIONS, 142. 39. An abutting owner receiving author- 1382 HIGHWAYS, II. b. ity from the municipality to construct a vault under the sidewalk, the fee of which is in the municipality, must so exercise his authority as not to injure pipes which have been laid by a public service corporation in the street under authority of the municipal- ity. New York Steam Co. v. Foundation Co. ai : 470, 87 N. E. 765, 195 N. Y. 43. 40. A municipal corporation which has granted a public-service corporation a right to lay a pipe in a street, the fee of which belongs to itself, cannot confer authority upon an abutting owner to injure such pipe in the construction of a vault which it per- mits him to place under the sidewalk. New York Steam Co. v. Foundation Co. 21 : 470, 87 N. E. 765, 195 N. W. 43. 41. Permission granted by a municipal corporation to construct a vault beneath its street does not impliedly authorize injury to structures lawfully in the street, by the driving of the piling necessary to perform the work. New York Steam Co. v. Founda- tion Co. 21 : 470, 87 N. E. 765, 195 N. Y. 43. 42. Under charter authority to remove obstructions from sidewalk and to regulate the building of bulkheads, cellars, and base- ment ways and other structures projecting upon and over adjoining excavations through and under the sidewalks of the city, a municipal corporation has power to grant the right to a lot owner to excavate a room under an alley adjacent to his lot, to be used as a boiler and coal room, under suitable regulation protecting the public in the free, safe, and unobstructed use of the alley. Tiernan v. Lincoln, 32: 1034, 130 N. W. 280, 88 Neb. 662. Awnings. Liability for injury bv fall of, see infra, 291-295. Injury to pedestrian by awning being re- paired by independent contractor, see MASTEB AND SERVANT, 1010. Ordinance as to, see MUNICIPAL CORPORA- TIONS, 102, 103; TRIAL, 192. See also supra, 30. 43. A porch or wooden awning erected by the owner qf a building abutting on the treet, so as to extend to the outer edge of a sidewalk in the street, without lawful authority, is a public nuisance, whether it materially interferes with the public travel or not. Davis v. Spragg, 48: 173, 79 S. E. 652, 72 W. Va. 672. Gas or water pipes. Discrimination against foreign corporation in use of, see COMMERCE, 37. Forbidding maintenance of leaky water pipes in street, see CONSTITUTIONAL LAW, 157: EVIDENCE, 1879, 1990. Exercise of right of eminent domain for pipe line, see EMINENT DOMAIN, 14, 49, 136- 138, 154, 155. Pipe line in, as additional servitude, see EMINENT DOMAIN, 297-300. Mandamus to compel alderman to permit location of pipe line in, see MANDAMUS, 42. Right of municipality to grant franchise to lay gas pipes in, see MUNICIPAL CORPO- RATIONS, 92. Digest 1-52 I*R.A.(N.S.) Municipal power over gas pipes in street, see MUNICIPAL CORPORATIONS, 93-95. Breach of contract with municipality to lay gas pipes, see MUNICIPAL CORPORATIONS, 232. Power of municipality to permit opening of streets to lay, see MUNICIPAL CORPORA- TIONS, 232. See also, supra, 30, 32. 44. The owner of the fee has a right to use the subsurface of a public street, sub- ject to the superior right of easement there- in in favor of the municipality for water, gas, and sewer mains, etc., provided he does not materially interfere with travel on tin- surface. Lynch v. North view, 52: 1038, 81 S. E. 833, 73 W. Va. 609. (Annotated) 45. In the absence of a municipal ordi- nance prescribing any rules or regulations governing the conduct of citizens in making excavations in the street, it is not unlaw- ful for the owner of the fee to dig a ditch and lay a gas pipe line therein, provided he leaves the surface in as good condition as he found it, and does not materially interrupt travel thereon. Lynch v. North- view, 52: 1038, 81 S. E. 833,73 W. Va. 609. 46. A mere license to lay gas mains in a public highway may be revoked prior to the performance of any substantial work under its terms. Elizabeth City v. Banks, 22: 925, 64 S. E. 189, 150 N. C. 407. 47. Under a statute permitting a peti- tioner for a location of a pipe line to appeal to the gas commissioners if the aldermen neglect for a period of thirty days to grant a location, petitioner has a right to treat ac- tion taken by the aldermen after the expira- tion of the thirty days as a nullity. Cheney v. Barker, 16: 436, 84 N. E. 492, 198 Mass. 356. 48. The right to convey natural gas for public use along a highway by means of pipes laid underground can be exercised only with the consent of the authorities hav- ing control of the streets and roads, and un- der such restrictions as they, in the exer- cise of their discretion, may see fit to im- pose. Hardman v. Cabot, 7: 506, 55 S. E. 756, 60 W. Va. 664. 49. Permission to lay a pipe line under the surface of a public road for the purpose of conveying natural gas for public use may be granted by the county court to a natural person. Hardman v. Cabot, 7: 506, 55 S. E. 756, 60 W. Va. 664. 50. Aldermen have no authority to re- fuse a permit to excavate a street through which a gas company has received permis- sion to locate a pipe line, although the stat- ute provides that the action of the company must be "subject to such regulations and re- strictions as to the manner and tnne of con- ducting the work" as the aldermen shall pre- scribe. Cheney v. Barker. 16: 436, 84 N. E. 492, 198 Mass. 356. 51. The owner of the fee of a city street has the right to lay a water pipe for his own use beneath the surface so far as he can do so without impeding the public use, and, for that purpose, may excavate the soil, subject to such restrictions by the mu- HIGHWAYS, II. b. 1383 nicipality as will insure the least interrup- tion to the public easement. Colegrove Water Co. v. Hollywood, 13: 904, 90 Pac. 1053, 151 Cal. 425. (Annotated) 52. One having a right to conduct water across a highway in a certain manner can- not enlarge or change the use by enlarging or changing the character of his conduits, or laying them on a new line. Colegrove Water Co. v. Hollywood, 13: 904, 90 Pac. 1053, 151 Cal. 425. Electric light wires, poles, and con- duits. Injury to trees on installing plant, see infra, 114-117. Injuries caused by trolley pole, see infra, 212, 213. Regulation of poles in street as interference with interstate commerce, see COM- MERCE, 29. Uses and dangers of electricity generally, see ELECTRICITY. As additional servitude, see EMINENT DO- MAIN, 288. Judicial notice as to, see EVIDENCE, 56. Burden of proving right to place wires in streets, see EVIDENCE, 518. Laches to bar right to compel removal of conduits, see LIMITATION OF ACTIONS, 70. Municipal regulation as to, see MUNICIPAL CORPORATIONS, 197, 98. Sufficiency of title of ordinance as to, see MUNICIPAL CORPORATIONS, 68. Trespass in attempting to prevent placing of telephone pole in highway; see TRES- PASS, 8. 53. The transmission of an electric cur- rent by wire on a highway, in order to fur- nish light, heat, and power to the inhabit- ants residing along such electric line, is a legal and proper use of the highway. State ex rel. Bartlett v. Weber, 43: 1033, 127 Pac. 536, 88 Kan. 175. 54. In the absence of statutory regula- tion, a line for the transmission of electric current by wire in order to furnish light, heat, and power to the inhabitants residing along such line, may be erected and main- tained upon a highway by a partnership without a franchise or special license from any governmental agency, providing it is done in a way that will not seriously im- pede or endanger public travel, or unneces- sarily interfere with the reasonable use of the highway by other members of the pub- lic, and so as not to invade the rights of the owners of abutting lands. State ex rel. Bartlett v. Weber, 43: 1033, 127 Pac. 536, 88 Kan. 175. (Annotated) 55. Municipal regulations as to conduits in the public streets for electric wires will not control the right of an electric company which, having acquired municipal consent to place its wires in the streets, has char- ter authority to alter its system of distribu- tion. Allegheny County Light Co. v. Booth, 9: 404, 66 Atl. 72, 216 Pa. 564. 56. Municipal authority to an electric lighting company to erect and maintain in the public streets poles and wires for con- ducting electricity does not preclude its Digest 1-52 L.R.A.(N.S.) placing the wires in conduits under the sidewalks where its charter empowers it to alter its system of distribution. Allegheny County Light Co. v. Booth, 9: 404, 66 Atl. 72, 216 Pa. 564. 57. Charter authority to an electric lighting company to enter upon any public street of a municipal corporation for the purpose of its business includes the right to lay conduits beneath the sidewalks. Al- legheny County Light Co. v. Booth, 9: 404, 66 Atl. 72, 216 Pa. 564. (Annotated) Telegraph and telephone lines. Telephone poles in alleys, see ALLEYS, 2. As additional servitude, see EMINENT DO- MAIN, 291-296. Presumption of rights in highway from lapse of time, see EVIDENCE, 521. Injunction against, see INJUNCTION, 38, 380. License tax for use of, by telephone com- pany, see LICENSE, 20. Enforcing by mandamus duty of telephone company using highway, see MANDA- MUS, 15. Respective rights of railroad and telephone company at place where wires cross tracks, see RAILROADS, 46, 47. 58. A statute granting persons engaged in generating and transmitting electric cur- rents for sale, for power or other purposes a right of way for poles and wires along, within, and across any of the public high- ways, does not apnly to companies whose operations are confined exclusively to tele- phone service. Alt v. State, 35: 1212, 129 N. W. 432, 88 Neb. 259. 59. The words "all road crossings," aa used in a statute granting telephone and telegraph companies the right of way along any public road, and providing that wires shall be placed at a height of not less than 20 feet above all road crossings, refers to private as well as public roads. Weaver v. Dawson County Mut. Teleph. Co. 22: 1189, 118 N. W. 650, 82 Neb. 696. 60. A city which by ordinance has per- mitted a telephone company to erect its poles and wires in the streets, and has thereby invited the company to make in- vestments and expenditures, which it has mude in good faith and in reliance on the ordinance, cannot arbitrarily impose upon the company by subsequent regulations, without necessity or the demands of pub- lic convenience, additional burdens which are clearly beyond the reasonable exercise of the police power. Plattsmouth v. Ne- braska Teleph. Co. 14: 654, 114 N. W. 588, 80 Neb. 460. (Annotated) 61. The authorities of a city or incor- porated town or village may grant to a telephone company the use of the streets, alleys, and public grounds of the municipal- ity, for the public purpose of constructing and maintaining a telephone system therein. Plattsmouth v. Nebraska Teleph. Co. 14: 654, 114 N. W. 588, 80 Neb. 460. 62. The moving of buildings along streets is not within the meaning of the words "other public uses," in a statute granting telephone companies the right to place their wires therein provided that they 3384 HIGHWAYS, II. c. shall not interfere with other public uses. Kibbie Teleph. Co. v. Landphere, 16: 689, 115 N. W. 244, 151 Mich. 309. (>3. The property rights of a telephone company which has placed its wires in pub- lic streets in accordance with the designa- tion and direction of the municipal authori- ties are the same as though it were acting under the terms of an ordinance. Kibbie Teleph. Co. v. Landphere, 16: 689, 115 N. W. 244, 151 Mich. 309. 64. A city ordinance extending to a tele- phone company the right to use the streets, alleys, and public grounds of the city in the construction, operation, and mainte- nance of its plant or system, and which does not, in any of its provisions, indicate an attempt to exclude other like corporations or companies from a like privilege, is not the grant of an exclusive right or privilege. Plattsmouth v. Nebraska Teleph. Co. 14: 654, 114 N. W. 588, 80 Neb. 460. 65. A telegraph company which has a right, as against the abutting owner, to maintain a line of poles along the highway in front of his property, has included there- in the right to set additional poles where necessary to strengthen the line because of the weight of additional wires. Western U. Teleg. Co. v. Polhemus, 29: 465, 178 Fed. 904, 102 C. C. A. 105. Traction engines. 66. An unlawful use of a highway by a traction engine cannot, against even one ob- jector, be made lawful by petition of a large number of persons living along the road. Covington County v. Collins, 14: 1087, 45 So. 854, 92 Miss. 330. 67. The daily use of a public highway by a traction engine drawing from two to four wagons loaded with lumber, although not an injury to the roadway itself, may be pro- hibited by the board of supervisors as dan- gerous to travel, and a nuisance. Covington County v. Collins, 14: 1087, 45 So. 854, 92 Miss. 330. Moving houses. Cutting of electric wires by one moving building along street, see INJUNCTION, 112, 438. Trimming of trees overhanging street to permit moving of house, see TREES, 2. See also supra, 62. 68. There is no right to move a building along a public street upon which an electric railway has been lawfully constructed, to the serious interference with the operation of the cars and the wires by which they are operated. Fort Madison Street R. Co. v. Hughes, 14: 448, 114 N. W. 10, 137 Iowa, 122. (Annotated) 69. A municipal corporation, having plenary powers over its streets, may author- ize the moving of a house along them, and require an electric railway company whose wires will be interfered with thereby to move them to permit the house to pass. Indiana R. Co. v. Calvert, 10: 780, 80 N. E. 961, 168 Ind. 321. 70. A permit to move a building along a street will not justify the moving of a building larger than the one described there- Digest 1-52 L.R.A.(N.S.) in. Com. v. Byard, 20: 814, 86 N. E. 285. 200 Mass. 175. Lunch wagon. 71. The board of aldermen has no power to authorize the maintenance of a lunch wagon in a public street, where, by ordi- nance enacted under statutory authority, the power to regulato wagons lias been con- ferred upon the police department. Com. v. Morrison, 14: 194, 83 N. E. 415, 197 Mass. 199. 72. A hawker's and peddler's license does not justify maintaining a lunch wagon at a fixed place in a public street for hours at a time. Com. v. Morrison, 14: 194, 83 N. E. 415, 197 Mass. 199. 73. A municipal corporation cannot au- thorize the maintenance at a fixed place in a public highway of a lunch wagon for many consecutive hours night after night in such a manner as to make, during the time it is in place, a practical appropriation of the street to the business of the owner. Com. v. Morrison, 14: 194, 83 N. E. 415, 197 Mass. 199. c. Obstruction generally. (See also same heading in Digest L.R.A. 1-10.) Liability of city for injury by obstruction, see infra, IV. a, 4. Liability of individuals for obstruction, see infra, 271-276. Equitable relief from wrongful obstruction of public street, see EQUITY, 38. Surplusage in indictment for obstructing highway, see INDICTMENT, ETC., 17. Sufficiency of indictment charging obstruc- tion of highway, see INDICTMENT, ETC., 137. Injunction against, see INJUNCTION, 378, 379; NUISANCES, 137. Requiring removal of hitching posts from, see MUNICIPAL CORPORATIONS, 108-110. By operation of turf exchange, see NUI- SANCES, 59. As proximate cause of injury, see PROXI- MATE CAUSE, 112, 114. 74. Public highways belong, from side to side and from end to end, to the public, and any permanent structure or purpresture which materially encroaches on the public street and impedes travel is a nuisance per se; but, in a proper case, such obstruc- tions may be authorized by competent au- thority. Bischof v. Merchants' Nat. Bank, 5: 486, 106 N. W. 996, 75 Neb. 838. 75. The entire width of a highway as laid out is subject to the publjc easement of passage, and, if a less width is graded and worked for travel, or if a bridge or culvert does not extend to the entire width, the public rights of passage are not there- by limited in favor of one who places an unauthorized or improper structure within the highway limits. Opdyckc v. Public Service R. Co. (N. J. Err. & App.) 29: 71, 76 Atl. 1032, 78 N. J. L. 576. 76. The unauthorized construction, by an HIGHWAYS, II. c. 1385 abutting owner, of a curb and sidewalk in the street, is not an encroachment of which the opposite owner can complain. Parsons v. Litchfield County Hospital, 16: 1038, 69 Atl. 352, 80 Conn. 525. (Annotated) Building materials. 77. A permit by a city to use part of a street for the placing of building materials for use in the construction of a building on adjacent property is a mere regulation of the right of the property owner to make such use of the street, and not a license to do an act in the street which but for such license would be illegal or a nuisance. Columbus v. Penrod, 3: 386, 76 N. E. 826, 73 Ohio St. 209. Buildings in. Injury caused by building in street, see infra, 219, 220. Injunction against, see INJUNCTION, 378. 78. Authority to locate a voting booth in the traveled part of a highway is not conferred upon the public officers by a stat- ute directing them to designate a polling place in a public, orderly, and convenient portion of the precinct, and, if no such place can be found within the precinct, then in an adjoining one. Haberlil v. Boston, 4: 571, 76 N. E. 907, 190 Mass. 358. (Annotated) Of sidewalk. Liability for injury by obstruction, see in- fra, IV. a, 4. Prescriptive right to maintain steps upon sidewalk, see ADVERSE POSSESSION, 49. Jurisdiction of equity of suit to remove structure from sidewalk, see EQUITY, 12. Estoppel of municipality to remove obstruc- tions from, see ESTOPPEL, 6. Wrongful arrest for obstructing sidewalk, see FALSE IMPKISONMENT, 30. Right of municipality to lease space on side- walks in front of business houses, see MUNICIPAL CORPORATIONS, 90. Question for jury as to reasonableness of obstruction of sidewalk, see TRIAL, 193. 79. Whatever space in a public street of a city is set apart for the use of the public as a sidewalk the public have a right to use in its entirety, free from any and all unauthorized obstructions; and it is the duty of the mayor and city council to see that it is kept in that condition. Chapman v. Lincoln, 25: 400, 121 N. W. 596, 84 Neb. 534. 80. It is no defense to a party who is being proceeded against by a city for un- lawfully obstructing a sidewalk that others not proceeded against, are obstructing the walk in like manner. Chapman v. Lincoln, 25: 400, 121 N. W. 596, 84 Neb. 534. 81. That steps to furnish access to abut- ting buildings have for a great many years been maintained on the public sidewalks of a municipal corporation is evidence that the placing of steps in front of a particular building in the town, at a place where the walk is wider than some walks on which steps are maintained, is not unreasonable. Pickrell v. Carlisle, 24: 193, 121 S. W. 1029, 135 Ky. 126. Digest 1-52 L.R.A.(N.S.) 82. A municipal corporation which owns the fee of its streets has no implied author- ity to permit the erection by an abutting owner of a solid wall of masonry extending 6 or 7 feet onto the sidewalk, for the con- venience of its building and in keeping with its architectural design, although by reason of its decorative and artistic appearance it enhances the attractiveness of the street. New York v. Rice, 28: 375, 91 N. E. 283, 198 N. Y. 124. (Annotated) 83. A demand by a municipal corpora- tion which has given an illegal permit to maintain a structure on the sidewalk, that it be removed, is sufficient notice of revoca- tion of the permit. New York v. Rice, 28: 375, 91 N. E. 283, 198 N. Y. 124. 84. The necessary use, by a merchant, of skids across a sidewalk to load and unload goods between his place of business and wagons in the street, is not unlawful of itself, and a nuisance. John A. Tolman & Co. v. Chicago, 24: 97, 88 N. E. 488, 24Q 111. 268. (Annotated) 85. A statutory provision that it is a public nuisance to obstruct or encroach upon public highways does not apply to the use of skids across a sidewalk to assist in moving goods between a place of business and wagons in the street. John A. Tol- man & Co. v. Chicago, 24: 97, 88 N. E. 488, 240 111. 268. 86. Failure instantly to obey the order of a police officer to move on does not ren- der one who has casually met friends and stopped to converse with them on the side- walk guilty of the offense of refusing to "disperse when commanded to do so by a police officer," for which a municipal ordi- nance prescribes a penalty. Price v. Te- han, 34: 1182, 79 Atl. 68, 84 Cann. 164. Private remedy for obstruction. For obstruction by railroad, see infra, 94, 95. Effect of estoppel on form of remedy, see ESTOPPEL, 156. See also NUISANCES, 84, 87. 87. An action cannot be maintained by a private person for an interference with or an obstruction in a public highway, con- stituting a public nuisance, unless he is thereby specially injured in some way not common to the public at large. McKay v. Enid, 30: 1021, 109 Pac. 520, 26 Okla. 275. 88. One cannot recover damages for ob- struction of a highway, on the theory that he thereby lost prospective customers who might have come to and stopped at his shop but for the obstruction. Liermann v. Milwaukee, 13: 253, 113 N. W. 65, 132 Wis. 628. ( Annotated ) 89. One who places an unauthorized ob- struction within the limits of the high- way as laid out is liable to an action at the suit of any person who is specially damnified thereby, and this although the obstruction is outside the traveled way. Opdycke v. Public Service R. Co. (N. J. Err. & App.) 29: 71, 76 Atl. 1032, 78 N. J. L. 576. 1386 HIGHWAYS, II. d. d. Use and obstruction by railroads. (See also same heading in Digest L.R.A 1-10.) Injury from trolley pole in street, see in- fra, 212, 213. Police power as to, see CONSTITUTIONAL LAW, 647, 648, 685. Criminal liability of railroad company for obstruction, 'see CORPORATIONS, 126. Construction of highway over railroad, see DAMAGES, 565-570; EMINENT DOMAIN, 38, 219; MUNICIPAL CORPORATIONS, 236; RAILROADS, 36-44; TRIAL, 634. Condemnation of right to construct rail- road in highway, see EMINENT DOMAIN, I. d, 2. As additional burden on highway, see EMI- NENT DOMAIN, IV. b, 2. Right to compensation for obstructing ac- cess to street, see EMINENT DOMAIN, 264. Electric railway in street, as additional servitude, see EMINENT DOMAIN, 303- 309. Jurisdiction of equity to require removal of street railway tracks, see EQUITY, 11. Injunction against excessive speed of trains in, see INJUNCTION, 385. Mandamus to compel issuance of permit to remove street car tracks, see MANDA- MUS, 50. Municipal regulations as to railroads in, see MUNICIPAL CORPORATIONS, II. c, 4, (b) (2). Municipal regulation of street railway, see MUNICIPAL CORPORATIONS, II. c, 4, b, (3). Municipal regulation of interurban rail- roads, see MUNICIPAL CORPORATIONS, II. c, 4, b, (4). Railway on city street as nuisance, see NUI- SANCES, 30, 76, 123, 132, 187, 191. Increase of trains, noise, and smoke upon railroad track and street as nuisance, see NUISANCES, 30. Allegations in pleading as to obstruction by railroad tracks, see PLEADING, 40. Averments as to maintenance of nuisance by city, permitting railroad to obstruct traffic, see PLEADING, 401. Liability to local improvement assessment, see PUBLIC IMPROVEMENTS, 48-55. Injury to person by railroad in public street, see RAILROADS, 66. Street railroads in streets, generally, see STREET RAILWAYS. Injuries to pavement by, see STREET RAII> WAYS, 11. See also supra, 32. Right to use or occupy street gener- ally. Impairment of contract obligations by re- peal of ordinance conferring rights in street, see CONSTITUTIONAL LAW, 794, 795. Estoppel of municipality to require removal of street railway tracks, see ESTOPPEL, Digest 1-52 L.R.A. (N.S.) Injunction against forfeiture of street rail- way franchise, see INJUNCTION, 382. Injunction against railway in street, see INJUNCTION, 184. Injunction against railroad in street, see INJUNCTION, 132, 3S3. Injunction against storage of cars in street, see INJUNCTION, 384. Mandamus to compel street commissioners to determine question of right to re- move street car tracks, see MAN- DAMUS, 49. City's power to prevent construction of street railway tracks in, see MUNICIPAL CORPORATIONS, 26. Liability of city for repeal of street railway franchise, see MUNICIPAL CORPORA- TIONS, 392-394. 90. The dedication of a strip of land for highway purposes by one who retains the fee does not include a right to use the property for purposes of a commercial rail- way. McCammon & L. Lumber Co. v. Trin- ity & B. V. R. Co. 36: 662, 133 S. W. 247, 104 Tex. 8. 91. A municipal corporation could, in Indiana, confer by ordinance trackage rights in city streets upon a railway com- pany whose charter provided that the rail- road might be built through any city that would give its consent. Grand Trunk W. R. Co. v. South Bend, 44: 405, 33 Sup. Ct. Rep. 303, 227 U. S. 544, 57 L. ed. 633. 92. That an ordinance permitting the placing of railroad tracks in a street has been accepted and in force for nearly forty years will not prevent the municipality from revoking it, so far as it authorizes ad- ditional tracks, where no attempt has been made to lay such tracks, or money expended upon them, and laying them would inter- fere with the public convenience. Grand Trunk W. R. Co. v. South Bend, 36: 850, 89 N. E. 885, 91 N. E. 809, 174 Ind. 203. (Annotated) 93. That a double track has been main- tained by a railroad company in a portion of a city street for a long period of time does not establish, as matter of fact, that it is not necessary for the municipality to repeal a provision in its consent to the lay- ing of tracks in the street, which permits them to be laid in other portions of the street, but which has never been acted upon. Grand Trunk W. R. Co. v. South Bend, 36: 850, 89 N. E. 885, 91 N. E. 809, 174 Ind. 203. Private remedy for obstruction. For obstruction, generally, see supra, 87-89. See also NUISANCES, 76. 94. The owner of real property cannot maintain an action for damages thereto by reason of the lawful construction of a rail- road upon a street which intersects that in front of his property, where no part of his premises is taken by the railroad right of way, and his only grievance consists in not having free and unobstructed access to his premises on that particular street in one di- rection, since his injury is the same in kind as that suffered by the community in gener- al. Scrutchfleld v. Choctaw, O. & W. R. Co. 9: 496, 88 Pac. 1048, 18 Okla. 308. (Annotated) HIGHWAYS, II. cl. 1387 95. The owner of real property cannot maintain an action for damages thereto caused by the wrongful obstruction of streets by a railway lawfully constructed thereon, where the streets obstructed were not the only means of access to such prop- erty, and were not adjacent thereto, since he has surl'ered no injury special to himself and different in kind from that suffered by the general public. McKay v. Enid, 30: 1021, 109 Pac. 520, 26 Okla. 275. Rights as against abutting owner. Measure of damages to abutting owner, see DAMAGES, III. 1, 4, a. Setting off advantages from, see DAMAGES, 581. Construction of railroad as a taking of the property of an abutting owner, see EMI- NENT DOMAIN, 190-197. Compensation for consequential injuries from construction of subway in street, see EMINENT DOMAIN, 274, 275. Additional burden on highway requiring compensation to abutting owner, see EMINENT DOMAIN, IV. b. Increase of traffic on railroad as new bur- den, see EMINENT DOMAIN, 310. Estoppel to claim compensation for opera- tion of railroad in street, see ESTOPPEL, 76. Injunction against railway in street, see IN- JUNCTION, 184. Injunction against railroad in, see INJUNC- TION, 383; LIMITATION OF ACTIONS, 68, 69. Injunction against running of trains at ex- cessive speed, see INJUNCTION, 385. Grant by abutting owner of license to main- tain railroad in street, see LICENSE, 4. Running of limitations against action for injuries to abutting property by opera- tion of railroad, see LIMITATION OF AC- TIONS, 96. Release from liability for consequential in- juries, see RELEASE, 8. 96. An abutting property owner whose means of access to his property has been materially interrupted by the building of railway tracks upon the street on one side of such property, the nearest of which is within 10 feet thereof, may recover dam- ages therefor, notwithstanding such owner has a means of access from another street. Foster Lumber Co. v. Arkansas Valley & W. R. Co. 30: 231, 95 Pac. 224, 100 Pac. 1110, 20 Okla. 583. 97. A purchaser for an adequate consid- eration of a railway in a public street, no actual or constructive fraud entering into the transaction, is not liable to abutting owners for the injuries inflicted upon their property by the construction of the road. Hannegan v. Denver & S. F. R. Co. 16: 874, 95 Pac. 343, 43 Colo. 122. (Annotated) 98. The owner of abvitting property may recover for interference with ingress and egress to and from his property and for diminution in value thereof by the construc- tion in the street of a railway under proper authority. Hannegan v. Denver & S. F. R. Co. 16: 874, 95 Pac. 343, 43 Colo. 122. Digest 1-52 L.R.A.(N.S.) 99. An abutting owner may maintain an- action against a railroad company which lays its tracks in a public street, for the injury to his easements therein, although the tracks are laid under authority of the municipality, and the fee of the street is- in the public. Staton v. Atlantic C. L. R. Co, 17: 949, 61 S. E. 455, 147 N. C. 428. 100. A street railway track laid in a public street in such manner that only 2 inches more than the width of a wagon is left between the curb and a passing car is a nuisance to abutting owners, in unlaw- fully interfering with their egress and in- gress, entitling them to damages against the company. Slaughter v. Meridian Light & R. Co. 25: 1265, 48 So. 1040, 95 Miss. 251. (Annotated) 101. An abutting owner cannot interfere to prevent the construction of a subway in the street for a car line, however seriously he may be inconvenienced thereby, where the public officers charged with the control of such matters have authorized such con- struction. State ex rel. Dawson v. Parsons Street R. & E. Co. 28: 1082, 105 Pac. 704, 81 Kan. 430. Obstruction of crossing by train. Obstruction of crossing interfering with ex- tinguishment of fire, see FIBES, 18-22. Pleading as to, see PLEADING, 326, 338, 344. Blocking of crossing by train as proximate cause of injury to patient caused by delay of his physician, see PROXIMATE. CAUSE, 31. Liability of railway company for personal injuries caused by obstructing crossing, see RAILROADS, 189, 134-139. Liability of receiver to indictment for r see RECEIVERS, 31. See also RAILROADS, 256-262. 102. A railroad company cannot escape liability under a statute providing that it shall not in any case, obstruct, use, or oc- cupy a highway with cars or engines for more than five minutes at one time, by the fact that the cars could not be moved be- cause the valves of the air brakes were maliciously opened by strangers, without defendant's knowledge. Com. v. Nev York C. & H. R. R. Co. 23: 350, 88 N. E. 764, 202 Mass. 394. (Annotated) 103. A railroad company which obstructs a highway crossing with a train a longer time than allowed by statute, thereby hin- dering a physician seeking to reach a woman in childbirth, is liable for the in- creased suffering and injury to her which result from the delay. Terry v. New Orleans G. N. R. Co. 44: 1069, 60 So. 729,. 103 Miss. 679. (Annotated) Private railroad. 104. That a railroad was constructed in a public street partly for the accommodation of a certain mill owner does not make it private, so as to constitute a public nui- sance, if it is open to all persons generally for shipping purposes. Wolfard v. Fisher,. 7: 991, 84 Pac. 850, 48 Or. 479. 1388 HIGHWAYS, II. e, 1. e. Rights as to trees or materials in street. 1. Trees. (See also same heading in Digest L.R.A. 1-10.) Tree as obstruction in street, see infra, 195- 197. Measure of damages for injury to or de- struction of trees, see DAMAGES, 476. Injunction against cutting trees in, see INJUNCTION, 208. As to trees on private property overhanging highway, see TBEES, 2. 105. A property owner whose title runs to the center of the street may maintain an action against the adjoining property owner for removing a tree between the sidewalk and the curve, which was on the boundar" line between the two lots. Blalock v. At- wood, 46: 3, 157 S. W. 694, 154 Ky. 394. ( Annotated ) 106. An abutting owner who has planted trees in a parking in a city street has sucli an equitable easement and special owner- ship in the trees as to entitle her to bring and maintain an action for wrongful in- jury to them resulting in consequential in- jury to and depreciation in value of her abutting lot, notwithstanding the fee simple title to the street is in the city and the city is also the general owner of the trees. Nor- man Milling & Grain Co. v. Bethurem, 51: 1082, 139 Pac. 830, 41 Okla. 735. 107. Municipal officers in charge of the grading and improvement of a city street who, without obtaining the consent of the city council as required by ordinance, pur- suant to an arbitrary decision not made in good ifaith, cut down as a nuisance shade trees of an abutting owner which were growing in the parking of the street, where there was no reason or public necessity for cutting the trees, which in fact were not a nuisance, are personally liable to the owner thereof for the resulting injury. Remington v. Walthall, 31: 957, 108 Pac. 112, 82 Kan. 234. Rights of municipality as to. 108. A city has power of control over its streets, including spaces occupied by trees on the parking and wires thereon, but must act in good faith, and not abuse its exercise of its power. Norman Milling & Grain Co. v. Bethurem, 51: 1082, 139 Pac. 830, 41 Okla. 735. 109. A municipal corporation may, by resolution of its council, direct the officers in charge of the grading of a street not to cut down certain shade trees thereon until such action has been authorized by the city council. Remington v. Walthall, 31 : 957, 108 Pac. 112, 82 Kan. 234. 110. A municipal corporation acting in good faith may, under its charter authority to repair the streets and remove nuisances, remove without compensation or notice the trees of an abutting owner which are with- an the limits of the highway, the loots of Digest 1-52 L.R.A.(N.S-) which interfere with the operation of a municipal sewer. Rosenthal v. Gohlsboro, 20: 809, 62 S. E. 905, 149 N. C. 128. ( Annotated ) 111. An ordinance requiring the removal of a tree which interferes with the sidewalk on a much-used portion of the main street of the town, and is unsightly, is authorized by statutes empowering the municipality to p. ss ordinances, which do not conflict with the Constitution and laws of the state, to enforce local police regulations, to order any work deemed necessary to be clone upon the sidewalks of the town, and cause to be removed any obstructions in the streets; and cannot be annulled for unreasonable- ness, although the tree has some value to the abutting property owner for purposes of shade, and poles and other trees are permitted to remain along the street. La- grange v. Overstreet, 31:951, 132 S. W. 169, 141 Ky. 43. (Annotated) 112. A city is not, under a Constitution making it liable for property damaged lor public use, liable for the diminution in value of abutting property by the removal of useful and ornamental trees from the street the fee of which is in itself, which becomes necessary in making a lawful and careful change in the grade of the street. Webber v. Salt Lake City, 37: 1115, 120 Pac. 503, 40 Utah, 221. Abutting owners right to remove. 113. Forbidding the removal of trees standing in the street without a permit does not prevent the owner of the tree from removing branches therefrom which have become dangerous to persons using the street. Dyer v. Danbury, 39: 405, 81. Atl. 958, 85 Conn. 128. On installing line for electric lights, telephones, etc. Limitation period for action for injury to trees, see LIMITATION OF ACTIONS, 194. 114. Both the owner of an abutting lot having an equitable easement in trees on a street and a public service corporation hav- ing wires thereon, may be in lawful occu- pancy of a street; and, in such case, mutual and reasonable accommodation is due from each to the other. Norman Milling & Grain Co. v. Bethurem, 51: 1082, 139 Pac. 830, 41 Okla. 735. 115. A public service corporation which has strung electric current wires within space already potentially occupied by trees grown by the abutting lot owner on a park- ing in the street, which injuriously cuts back such trees from contact with such wires, is a trespasser ab initio and liable to the abutting lot owner for all conse- quential damages to his lot. Norman Mill- ing & Grain Co. v. Bethurem, 51:1082, 139 Pac. 830, 41 Okla. 735. (Annotated) 116. A public service corporation which has strung its wires on poles above trees in a parking in a city street within space which it must at the time have anticipated would be and which was required for the perfection of the growth of the trees, is liable for injuriously trimming away the trees from its wires notwithstanding a city HIGHWAYS, II. e, 2, III. 1383 ordinance conferring a franchise upon the public service corporation attempted to give it the right to trim trees to prevent branches from coming in contact with wires. Norman Milling & Grain Co. v. Bethurem, 51: 1082, 139 P;ic. 830, 41 Okla. 735. 117. An electric light company operating under a franchise, which, without consent of, or notice to, the lot owner, trims shade trees growing in that part of the ' street contiguous to his lot, is liable to such owner for the resulting damages, in the ab- sence of a valid legislative act or municipal ordinance enacted before the lot owner planted the trees, granting authority to public-service corporations to trim shade trees growing in the streets without compen- sating the abutting owner for damages thereby inflicted, although the city has title to the street, and irrespective of whether or not the electric company acted maliciously. Slabaugh v. Omaha E. L. & P. Co. 30: 1084, 128 N. W. 505, 87 Neb. 805. (Annotated) 118. A telephone company has no right, unless it is conferred by the municipality, to mutilate shade trees planted along a side- walk by the owner of the fee. Cartwright v. Liberty Teleph. Co. 12: 1125, 103 S. W. 982, 205 Mo. 126. 119. A telephone company which does not show that it has received any authority to use the street of a municipality for its pur- poses cannot defeat an action by an abut- ting property owner for damages for the mutilation of his trees, on the theory that its use of the street is consistent with the purposes for which the street was acquired. Cartwright v. Liberty Teleph. Co. 12: 1125, 103 S. W. 982, 205 Mo. 126. (Annotated) 2. Miscellaneous, (See also same heading in Digest L.R.A. 1-10.) 120. A dealer in building materials has no right to store in the street adjoining his yard, even temporarily, lumber for which there is no room in the yard. Dougherty v. St. Louis, 46: 330, 158 S. W. 326, 251 Mo. 514. ///. Improvements; repairs; fixing and changing' grade. (See also same heading in Digest L.R.A. 1-10.) Delegation to city of power as to, see CON- STITUTIONAL 'LAW, 112. Imposing upon abutting owners duty to keep sidewalks clear of snow, see CON- STITUTIONAL LAW, 223. Requiring landowner to cut, or pay for cutting, weeds in abutting highway, see CONSTITUTIONAL LAW, 376. Implied agreement of county to pay for re- pairs to, see CONTRACTS, 42. Letting of contract for improvement, see CONTRACTS, 793, 794. Digest 1-52 L.R.A.(N.S.) Stipulation in contract for, as to use of patented material, see CONTRACTS, SOS- SOT. Right of abutting owner to reimbursement by street railway company for high- way assessment, see DAMAGES, 560. Estoppel by permitting, see ESTOPPEL, III. g, 2, b. Evidence in action for injuries resulting from negligence of street contractor, see EVIDENCE, 764. Evidence an question of damages by street improvement, see EVIDENCE, 1735. Injunction against performance of contract for street paving, see INJUNCTION, 336. Injunction against collection of assessment for worthless sidewalk, see INJUNCTION, 366. Duty of life tenant to pay expense of paving sidewalk, see LIFE TENANTS, 32. Setting aside verdict against city for in- jury caused by, see NEW TRIAL, 17. Notice to remainderman to lay sidewalk, see NOTICE, 8. Contractor as necessary party defendant to suit to set aside assessment for, see PASTIES, 157. Building and repairing of pavement, side- walk, street sprinkling and sweeping, and other public improvements gener- ally, see PUBLIC IMPROVEMENTS. 121. A municipal corporation in execut- ing plans for a street improvement must ob- serve such care to avoid injury to private- property as a reasonably careful and pru- dent man in like circumstances would use if r the responsibility for damages rested upon-j him. Giaconi v. Astoria, 37: 1150, 118 Pac. 180, 60 Or. 24. 122. Where a street is sufficiently wide- that enough will remain unobstructed for' the purpose of public travel, a municipality may maintain, or permit to be maintained, park strips between the curbing of the paved street and the pavement of the side- walk in which strip grass, flowers, and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may by proper barriers prevent travel thereon. Barnesville v. Ward, 40: 94, 96 N. E. 937 85 Ohio St. 1. 123. A public road is for use by the trav- eling public, and may be improved to ac- commodate footmen, as well as those using it for teams, wagons, or other vehicles. Hitchcock v. Zink, 13: mo, 113 N. W. 795 80 Neb. 29. 124. A municipal corporation is not re- quired to exercise as high a degree of care in grading and constructing a rural way within its limits as where improving a street in the populous portions of the city, but ordinarily more care must be used upon such a way than would be required on an ordinary country road. Neidhardt v. Minneapolis, 29: 822, 127 N. W. 484, 112 Minn. 149. (Annotated) 125. A municipal corporation in improv- ing and maintaining a rural way within its 131)0 HIGHWAYS, III. limits is not required to grade or improve to the entire width of the highway. Neid- hardt v. Minneapolis, 29: 822, 127 N. W. 484, 112 Minn. 149. 126. A city is not absolved from liability for injuries caused to abutting property by a bridge approach which was placed in a street in accordance with its contract with a private corporation, by the fact that the bridge was not erected at the height pre- scribed by the contract ordinance. Ranson v. Sault Ste. Marie, 15: 49, 107 N. W. 439, 143 Mich. 6G1. 127. In Nebraska, the owner of the fee cannot complain that a sidewalk is being constructed along a public road by private parties, where permission to build the walk has been granted by the board of county commissioners. Hitchcock v. Zink, 13: mo, 113 N. W. 795, 80 Neb. 29. (Annotated) Fixing and changing grade of street. Decision on former appeal as law of the case in action for injury of change of grade, see APPEAL AND EBKOR, 1663. Error in instruction in action for obstruc- tion of drainage by change of grade, see APPEAL AND ERROR, 1314. Judgment on appeal in action for damages resulting from, see APPEAL AND ERROR, 1569. Measure of damages for injury caused by, see DAMAGES, 6, 476, 495, 496. Measure of damages for, see DAMAGES, 571- 574. Setting off benefits from change of grade, see DAMAGES, 579, 590. Injury resulting from, as a taking of prop- erty, see EMINENT DOMAIN, 200. "Necessity of compensation on changing grade, see EMINENT DOMAIN, 226, 231, 263, 276-283. "Compensation for consequential injuries from improvement, see EMINENT DO- MAIN, 276-283. Chang* of grade to abolish grade crossing, sec ESTOPPEL, 2. Evidence in action for injury resulting from, see EVIDENCE, 2463. Interest on claim for damages, see INTER- EST, 23. , -Joint liability for injury resulting from change of grade, see JOINT CREDITORS AND DEBTORS, 15, 16. Limitation of action for injuries to abutting owner by change in street grade, see LIMITATION OF ACTIONS, 258. Municipal liability for injury to private property by sliding of soft earth there- on in bringing highway to grade, see MASTER AND SERVANT, 1005, 1006. Obstructing or diverting surface waters in ii grading street, see MUNICIPAL CORPO- RATIONS, 452, 454. "Right of action against city for giving erroneous street grade, see PARTIES, 5. Raising of street grade as proximate cause of injury by surface water, see PROXI- MATE CAUSE, 71. vQuestion for jury is as to negligence of mu- nicipality in bringing street to grade, see TRIAL, 596. Digest 1-52 L.R.A.(N.S.) Liability for flood caused by change of grade, see WATERS, 203. 128. That a highway running through suburban property has been improved by tin county authorities does not prevent the construction of a street upon another grade, when the property is taken into the city limits, from being an original construction within the rule that the municipality is not liable for injury to abutting property by the original establishment of the grade of a street. Gernert v. Louisville, 51: 363, 159 S. W. 1163, 155 Ky. 589. (Annotated) 129. A municipal corporation is not lia- ble for injury to abutting property by al- teration of the natural surface of a street in bringing it to the first established grade where the change is not unreasonable or carelessly done, even under a constitutional provision that private property shall not be damaged for public use without compensa- tion. Leiper v. Denver, 7: 108, 85 Pac. 849, 36 Colo. 110. (Annotated) 130. The grade of a street is not estab- lished at the original surface by a long failure of the municipal authorities to change it, during which abutting owners have improved their property with refer- ence to the original condition. Owensboro v. Hope, 15: 996, 108 S. W. 873, 128 Ky. 524. 131. The owner of property abutting on a city street is not entitled to damages for such consequential injuries as result to it from the original careful construction of the street grade, since he is presumed to have received compensation therefor when the right of way was originally secured Owensboro v. Hope, 15: 996, 108 S. W. 873. 128 Ky. 524. 132. The title secured by a municipal cor- poration to a strip of land for street pur- poses includes the right to bring it to grade; and therefore injury done to abutti.ig property by so doing, in removing the hiteial support, is not a taking entitling the owner to further compensation, even though it re- sults in a slipping of the abutting property into the street. Talcott Bros. v. Des Moines, 12:696, 109 N. W. 311, 134 Iowa, 113. (Annotated) 133. The rule of lateral support obtaining between adjoining landowners does not pre- vail in favor of a property owner against the municipal corporation owning the ad joining street. Talcott Bros. v. Des Moines, 12: 696, 109 N. W. 311, 134 Iowa, 113. 134. A municipality has a right to estab- lish its grades, and to fill in or bridge or plank its street and right of way, so as to raise the surface to such grade; but by do- ing so it cannot preclude the abutting prop- erty owner from employing and using such reasonable means, or making such reasona- ble improvements, as may be necessary to enable him to go from his property to the street, and exercise and enjoy the right of ingress and egress. Sand point v. Doyle, 17: 497, 95 Pac. 945, 14 Idaho, 749. I 135. A municipality owning a street in I fee is liable to an abutting lot owner for damages caused by fi lowering of the nat- HIGHWAYS, III. 1391 ural grade of the street. Stocking v. Lin- coln, 46: 107, 142 N. W. 104, 93 Neb. 798. 136. An abutting property owner must exercise such care to prevent injury to his property from the cutting down of the grade of the adjoining highway as may reasonably be expected of a person of ordi- nary prudence under like circumstances. Lexington v. Chenault, 44: 301, 152 S. W. 939, 151 Ky. 774. 137. A statute requiring compensation to be made to the owner of improved property injured by change of an established street grade authorizes a recovery by a tenant for years for injury to his interests, where the statute provides that its provisions shall be liberally construed with a view to pro- mote its objects and assist the parties in obtaining justice. Chiesa & Co. v. Des Moines, 48: 899, 138 N. W. 922, 158 Iowa. 343. (Annotated) 138. The fact that the owner of property abutting on a highway changes its surface t~ adapt it to use in connection with the street grades does not prevent his holding the city liable for injuries to it by the buckling of the surface in consequence of a fill in the street, although it might not have been affected if it had been left in its natural condition. Hinckley v. Seattle, 46: 727, 132 Pac. 855, 74 Wash. 101. 139. An award of damages in an eminent domain proceeding to condemn a portion of an abutting lot for a slope in order to raise the grade of a highway will not preclude an action to hold the municipality liable f : damages for injuries caused by the buckling of the surface of the lot and the extension of the slope because the earth proved to be unstable under the weight of the fill. Hinckley v. Seattle, 46: 727, 132 Pac. 855, 74 Wash. 101. 140. A gas and water company cannot hold the city liable for the cost of making the necessary changes in its pipe lines laid in the street under a franchise, upon the raising by the municipality of the street grade to carry it over a railroad crossing. Scranton Gas & Water Co. v. Scranton, 6: 1033, 64 Atl. 84, 214 Pa. 586. Road work. Validity of method of distributing road taxes, see CONSTITUTIONAL LAW, 222. Constitutionality of statute requiring use of private property in road work, see CON- STITUTIONAL LAW, 224. Labor on highways as personal tax, see POLL TAX, 1. 141. Labor is not property in the sense that it can be liable to a property tax. State v. Wheeler, 5: 1139, 53 S. E. 358, 141 N. C. 773. 142. Requiring labor for the working of highways is not taxation. State v. Wheeler, 5: 1139, 53 S. E. 358, 141 N. C. 773. ( Annotated ) 143. Even if requiring labor for the work- ing of highways is taxation, it is not dou- ble taxation upon those required to do the Digest 1-52 L.R.A.(N.S.) work, but merely a higher rate for the maintenance of the roads. State v. Wheel- er, 5: 1139, 53 S. E. 358, 141 N. C. 773. 144. The failure of a road overseer to com- ply with a statute requiring him to file a criminal complaint against any male per- son between twenty-one and fifty years of age who shall, upon notice, wilfully fail or refuse to perform work upon the public roads, as required by statute, within ten days of such failure, which statute is di- rectory merely, does not inure to the benefit of one accused by a complaint filed after the expiration of such period, so as to render him free from liability or punish- ment. State v. Rayburn, 22: 1067, 101 Pac. 1029, 2 Okla. Crim. Rep. 413. 145. A statute requiring certain male persons between twenty-one and fifty years of age to perform four days' work upon the public highways of the state, for the pur- pose of keeping them in repair, with the privilege of providing a substitute or pay- ing $1 per day in lieu thereof, does nut im- pose a poll tax, within the meaning of, and is not repugnant to, a constitutional pro- vision granting the legislature authority to levy and collect a poll tax on all electors of the state under sixty years of age, not exceeding $2 per capita, per annum. State v. Rayburn, 22: 1067, 101 Pac. 1029, 2 Okla. Crim. Rep. 413. ' 146. A statute making a person guilty of a misdemeanor who shall, upon notice, wil- fully fail or refuse to comply with a statute requiring all male persons between twenty- one and fifty years of age to perform cer- tain labor upon the public highways, or furnish a substitute, or pay a stipulated sum in lieu thereof, and making it the duty of the road overseer to file a complaint with the justice against such person within ten days after such failure or refusal, and pro- viding that an overseer who shall fail to file such complaint shall be guilty of a mis- demeanor, is directory merely, and does not limit the time within which a complaint may be filed to such ten days, the purpose of such limitation being to compel vigilance on the part of the overseer, and render him liable for failure to perform such duty. State v. Rayburn, 22: 1067, 101 Pac. 1029, 2 Okla. Crim. Rep. 413. Improvement by abutting owner. 147. A municipal corporation cannot ar- bitrarily prevent an abutting owner from constructing a sidewalk of a reasonable width in a street dedicated for public use. Georgetown v. Hambrick, 13: 1113, 104 S. W. 997, 127 Ky. 43. (Annotated) 148. The owner of land abutting on a public highway has no right of action against the owner of the property on the opposite side because without authority he replaces the natural condition of trees and grass with a curb and walk, and adapts it to public use. Parsons v. Litchfield County Hospital, 16: 1038, 69 Atl. 352, 80 Conn. 525. (Annotated) 1392 HIGHWAYS, IV. a, 1. IV. Defects; liability for injuries to travelers. a. Liability of municipality or county. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Injuries by improving or repairing high- ways, see supra, III. As to sidewalks, see infra, IV. a, 6. As to contributory negligence of person in- jured, see infra, IV. c. Notice as condition precedent to liability, see infra, IV. d. Joinder of municipality and abutting owner in one action, see ACTION OB SUIT, 117. Defense to liability for negligent injury to one coasting in public street, see AC- TION OB SUIT, 36. Effect of failing to show that street on which accident occurred was a public street, see APPEAL AND EBROR, 782. In instructions in action for injury, see APPEAL AND ERBOB, 1341; TBIAL, 1057- 1060. Compelling contribution from party jointly or primarily responsible for injury, see APPEAL AND EBBOB, 1137; CONTRIBU- TION AND INDEMNITY, 8-13, 16. Liability for injury on defective bridge, see BBIDGES, II. Exempting particular municipality from liability for injuries, see CONSTITU- TIONAL LAW, 168. Liability for injury by electric wires in highway, see ELECTRICITY, 40-53. Presumption and burden of proof, see EVI- DENCE, 443, 444, 447. Presumption that automobile injured by defect in, was registered and licensed, see. EVIDENCE, 298. Evidence of other obstructions or accidents, see EVIDENCE, 1853-1857. Evidence as to defective condition at other times, see EVIDENCE, 1869-1871. Admissibility of city charter in action for injury, see EVIDENCE, 2043. Effect of amendment of petition in action for injuries on limitation of actions, see LIMITATION OF ACTIONS, 301. Duty of municipality to keep street free from dangers not within limits thereof, see MUNICIPAL COBPOBATIONS, 320, 321, 347, 348. Damage to abutting property by water per- colating through soil of highway be- cause of defect therein, see MUNICIPAL COBPOBATIONS, 323. Injury to traveler by explosion of peanut roaster, see MUNICIPAL COBPOBATIONS, 328. Failure of municipality to prevent ball playing in street, see MUNICIPAL COR- PORATIONS, 329. Injury by discharge of fireworks in street, see MUNICIPAL COBPOBATIONS, 350. Injury to person on, through negligence in .G operation of quarry nearby, see MU- NICIPAL CORPORATIONS, 389. Digest 1-52 L.R.A.(N.S.) Injury to pedestrian by bursting of hose used in flushing street, see MUNICIPAL COBPOBATIONS, 410, 412. Pleading in action for injury, see PLEAD- ING, 318-320, 333, 334, 349. Proximate cause of injury, see PROXIMATE CAUSE, IV. Defect in, delaying fire apparatus as proxi- mate cause of destruction of property by fire, see PROXIMATE CAUSE, 47 Liability for maintenance of railroad cross- ing at grade, see RAILBOADS, 12C. Strict construction of statute as to, see STATUTES, 272. Liability of town for injuries to employees working on, see TOWNS, 7. Question for jury as to, see TRIAL, II. c, 8, c, (1). 149. Townships in Oklahoma are not lia- ble, in the absence of express statute, for injuries sustained from defects in high- ways. James v. Wellston Twp. 13: 1219, 90 Pac. 100, 18 Okla. 56. (Annotated) 150. The rule requiring city streets to be kept clear of dangerous impediments applies to the nighttime. McKim v. Philadelphia, 19: 506, 66 Atl. 340, 217 Pa. 243. 151. A municipal corporation is liable for the condition of a street which has been platted, improved, and treated as a public street in charge of the street commissioner, although the locality through which it runs is sparsely settled. Neff v. Cameron, 18: 320, 111 S. W. 1139, 213 Mo. 350. 152. The rule that municipal corporations are under legal obligation to exercise rea- sonable care to keep and maintain streets and public places in safe condition for pub- lic use applies to all streets within the bor- ders of the municipality, whether in the set- tled or platted part thereof or in the out- lying districts, with the qualification or limitation that the same diligence and care is not required in respect to streets remote from the settled part of the municipality. Sundell v. Tintah, 38: 1127, 134 X. \V. 639, 117 Minn. 170. (Annotated) 153. A municipal corporation is liable for the wrongful or negligent acts of its agents in performing the duties of making, im- ^roving, repairing, keeping in repair and in safe condition its streets and sidewalks, since in performing such duties the city is acting in its private corporate, rather than in its public or governmental, capacity. Tewksbury v. Lincoln, 23: 282, 121 N. W. 994, 84 Neb. 571. 154. The liability of a municipality to in- dividuals for damages for injuries caused by the negligence of the municipal authori- ties in failing to keep the streets in proper repair arises out of the fact that it has the exclusive control of the streets, and has the power to provide the means for the proper performance of the duty of keeping them in safe condition. Shigley v. Waseca, 19: 689, 118 N. W. 259, 106 Minn. 94. 155. An action against a municipal cor- poration for damages for injuries caused by the negligent failure of the municipal au- thorities to keep the streets in proper re- HIGHWAYS, IV. a, 2. 1393 pair cannot be maintained without showing performance of conditions precedent, im- posed by the legislature in its lawful regula- tion of the created liability. Shigley v. Waseca, 19: 689, 118 N. W. 259, 100 Minn. 94. 156. The condition upon which a munic- ipality shall be liable for damages to indi- viduals caused by the defective condition of a street or sidewalk is a matter which be- longs properly to the government of munic- ipalities, and may be determined and regu- lated in a home-rule charter. Shigley v. Waseca, 19: 689, 118 N. W. 259, 100 Minn. 94. 157. The legislature cannot absolutely exempt a city from liability to respond in damages to those injured by reason of de- fects in its streets which were caused by its /wn negligence. Updike v. Omaha, 30: 589, '127 N. W. 229, 87 Neb. 228. 158. Liability of a municipal corporation for injury occasioned by a latent defect in a street or road such a defect as the in- jured party could not have observed or discovered by the exercise of reasonable care and prudence is absolute, and does not depend upon lack of diligence or care on the part of the corporation. Campbell v. Elkins, 2: 159, 52 S. E. 220, 58 W. Va. 308. ( Annotated ) 159. A space within the bounds of a city street, set apart between the side- walk and the roadway for a grass plot, is a part of the street, for the neglect of the safe condition of which the city may be held liable. Townlev v. Huntington, 34: 1 1 8, 70 S. E. 368, 68 W. Va. 574. 160. A street or sidewalk is not in good repair wiien one without fault rrfay fall from it into a dangerous hole, or an ir- responsible child may venture to an un- guarded pitfall within its bounds or im- mediately at its side. Town ley v. Hunt- ington, 34: 118, 70 S. E. 368, 68 W. Va. 574. Defect as part of original plan. Negligence as question for jury, see TRIAL, 407. 161. It is not negligence per se for a city to maintain a sidewalk without cleats on a grade of 12.9 per cent. Douean v. Seattle, 51: 214, 136 Pac. 1165, 76 Wash. 621. (Annotated) 162. The fact that the grade upon which a sidewalk was constructed varied from the grade of the street, to the extent of in- creasing its slant about 1 inch in 2 feet, can- not be held a contributing cause to an in- jury sustained by a pedestrian who slipped upon a spot of ice covered with snow, since it is pure speculation as to whether the ac- cident would or would not have happened had the sidewalk conformed to the street grade. Beirness v. Missouri Valley, 51: 218, 144 N. W. 628, 162 Iowa, 720. 163. The negligence, if any, of a city in constructing a walk with a surface so smooth as to be dangerous to pedestrians, is immaterial where the accident complained of was not caused by the smoothness of the walk, but from the presence of snow-covered Digest 1-52 L.R.A.(N.S-) ice thereon. Beirness v. Missouri Valley, 51: 218, 144 N. W. 628, 162 Iowa, 720. Concurring causes. Of injury by obstruction or nuisance, see infra, 199-201. 164. A passenger in a private conveyance cannot hold the municipality liable for in- juries from a defect in the street if the neg- ligence of the driver contributed to the in- jury. Lauson v. Fond du Lac, 25: 40, 123 N. W. 629, 141 Wis. 57. 2. For acts or omissions of others. (See also same heading in Digest L.R.A. 1-10.) Recovery over by municipality against per- son primarily responsible for injury, see APPEAL AND ERROR, 1137; CONTRI- BUTION AND INDEMNITY, 8-13, 16; ES- TOPPEL, 43. For negligence of driver of team hired to perform work on public streets, see MASTER AND SERVANT, 43. For negligence of fireman, see MUNICIPAL CORPORATIONS, 403-405, 408, 409. Joining municipality with lessor and lessee of building in action for injury to per- son on sidewalk, see PARTIES, 201. Correctness of instructions as to, see TRIAL, 1057, 1058, 1060. See also infra, 260, 261. 165. The statute imposing absolute duty upon municipal corporations to keep their streets and sidewalks reasonably safe for use by the general public does not make them liable for injuries negligently inflict- ed by persons lawfully using such public ways, upon one another. Post v. Clarks- burg, 52: 773, 8.1 S. E. 562, W. Va. . 166. A county which permits granite blocks, which have been placed by a citizen on the graded part of a highway, but out- side the macadamized part, to remain there for five months, may be held liable for in- jury to a traveler on the highway whose vehicle comes into collision with them in the dark. Blankenship v. King County, 40: 182, 122 Pac. 616, 68 Wash. 84. (Annotated) 167. A city which grants permission to a third party to plow or excavate in a street is bound to exercise diligence for the pro- tection of the traveling public, and to know the condition of the street, while the work is in progress and after it is done, the same as it would in case of work done directly by its own officers or agents. Tepfer v. Wichita, 49: 844, 136 Pac. 317, 90 Kan. 718. 168. A city given control of its streets, and charged with the duty of maintaining them in a safe condition, cannot, by any permission it may give to individuals to plow the streets and to remove earth there- from, avoid liability for injuries resulting to travelers from the negligent manner in which the work is done or the dangerous condition in which the street is left. Tep- fer v. Wichita, 49: 844, 136 Pac. 317, 90 Kan. 718. (Annotated) 88 1394 HIGHWAYS, IV. a, 3. 169. A municipal corporation is liable for injuries caused by the fall of a pile of lumber which it permits to be stored in the street by a dealer, upon a boy who is Claying around it, although the lumber had been in the street only a short time. Dougherty v. St. Louis, 46: 330, 158 b. W. 326, 251 Mo. 514. (Annotated) 170. The fact that the owner of an ob- struction on a sidewalk is liable for an injury resulting therefrom will not make a city liable therefor also, if it is free from negligence. Diamond Rubber Co. v. Harry- man, 15: 775, 92 Pac. 922, 41 Colo. 415. 171. A municipal corporation which per- mits the extension of an area way under a sidewalk is bound, whether it owns the fee of the street or not, to inspect the supports placed under the walk, both for original construction and possible deterioration, to determine whether or not they are safe for travel, and will be liable for injury to a pedestrian resulting from its failure to do so. Sherwin v. Aurora, 43: 1116, 100 N. K. 938. 257 111. 458. (Annotated) 172. A municipal corporation which per- mits the maintenance in a prominent thor- oughfare in constant use by pedestrians of an aperture covered with iron doors of such character that one may be opened without any guard to protect the hole is liable for an injury caused to a pedestrian who fell through an opening left by the raising of one door, although it had no actual knowl- edge of the negligent use being made of the opening at the time of the accident, and the cover had been raised only a few min- utes, so that it was not chargeable with notice. Hayes v. Seattle, 7: 424, 86 Pac. 852, 43 Wash. 500. (Annotated) Officers. See also supra, 153. 173. The duty of a municipal corporation to keep its streets in safe condition extends to the use of the street by its employees en- gaged in the care of the streets, and therefore it is liable for injury to a pedes- trian who is run down by the negligent operation of an automobile driven by its street superintendent while he is engaged in the performance of his duty as such superintendent. Hewitt v. Seattle, 32: 632, 113 Pac. 1084, 62 Wash. 377. 174. A municipal corporation is not liable for injuries caused by frightening a horse through the negligent handling of a steam roller while engaged in repairing its streets. Danville v..Fox, 32: 636, 134 S. W. 883, 142 Ky. 476. 175. Neither the city nor the officers of its board of health are liable for damages sustained by reason of acts committed in the exercise of police power for the benefit of the public health and safety; but, if in the exercise of such powers, such officers place a rope barrier across a public walk or street, which becomes and remains in a defective and dangerous condition, and the city either has actual notice of the defect, or it has existed for such a length of time as that notice will be presumed, the city may, if the facts in the case warrant, be Digest 1-52 L.R.A.(N.S.) held liable for its negligence in leaving the walk in an unsafe and dangerous condition. Sheets v. McCook, 51: 321, 145 N. W. 252, 95 Neb. 13!). Independent contractor. Liability of abutting owner for acts of, see infra, 290. Liability of contractor to indemnify city, see BONDS, 23, 24. Right of municipality paying damages for injury to recover over against con- tractor, see CONTRIBUTION AND IN- DEMNITY, 13. For acts of contractors in leaving inflam- mable material in highway, see MU- NICIPAL CORPORATIONS, 332. See also MASTER AND SERVANT, 991, 1000. 176. A municipal corporation cannot escape liability for injuries caused by ref- use left piled in the street upon the com- pletion of the work of resetting a curb, upon the theory that the work, being done by the abutting owner at its direction, was by an independent contractor for whose acts it was not responsible. Meyers v. Phila- delphia, 10 : 678, 66 Atl. 251, 217 Pa. 159. 3. Who entitled to protection or remedy. (See also same heading in Digest L.R.A. 1-10.) Children at play. Liability of abutting owner, see infra, 288a. Drowning of child in ditch or flume along highway, see MUNICIPAL CORPORA- TIONS, 343, 344. See also supra, 169; NEGLIGENCE, 128, 160, 161. 177, 178. A municipal corporation is under no obligation to keep its sidewalks safe for roller skating. Collins v. Phila- delphia, 27: 909, 75 Atl. 1028, 227 Pa. 121. 179. That a child was engaged in roller skating when injured by catching its foot in a hole in a sidewalk will not prevent its holding the municipality liable for the in- jury, if the hole was of such a size and so located as to render the walk unsafe for pedestrians, and had existed for such a length of time as to charge the municipality with notice of it. Collins v. Philadelphia, 27: 909, 75 Atl. 1028, 227 Pa. 121. 180. A city owes substantially the same duties to children, properly on the streets, although engaged in play, as it does to travelers on business. Townley v. Hunt- ington, 34: 118, 70 S. E. 368, 68 W. Va. 574. (Annotated) 181. The court will not say as matter of law that play by children in a public street, even though they have reached the age of seventeen years, is not a proper use for which the street must be kept safe by the municipality, in the absence of circum- stances making it obviously dangerous to play there. Irvine v. Greenwood. 36: 363, 72 S. E. 228, 89 S. C. 511. Person using bicycle. 182. A municipal corporation does not fulfil its duty in making its highways safe HIGHWAYS, IV. a, 4. 1395 for the use of horse-drawn vehicles if it is not safe for travel including its use of bi- cyclists. Molway v. Chicago, 23: 543, 88 N. E. 485, 239 111. 48tt. (Annotated) 183. Ordinary travel includes the use of a street by one riding a bicycle. Molway v. Chicago, 23: 543, 83 N. E. 485, 239 111. 486. Person driving automobile. Injury due to lack of barrier, see infra, 236. 184. An automobile is not a carriage, within the meaning of a statute requiring towns and cities to keep their highways reasonably safe and convenient for travelers with their horses, teams, and carriages; and a town is not liable for failure to make special provisions required for the safety of automobiles if its ways are reasonably safe and convenient for travel generally. Doher- ty v. Ayer, 14: 816, 83 N. E. 677, 197 Mass. 241. (Annotated) 185. Travelers in an automobile cannot hold a municipal corporation liable for in- juries due to a defect in the highway, if the automobile was not registered as required by statute, although they were ignorant of that fact. Feeley v. Melrose, 27: 1156, 91 N. E. 306, 205 Mass. 329. 186. Failure to comply with a statute requiring, under penalty, the registration of automobiles, which does not make the use of unregistered machines upon the highways unlawful, does not deprive the owner of the right to hold a municipality liable for in- jury to the machine through a defect in a street, which is due to its negligence. Hem- ming v. New Haven, 25: 734, 74 Atl. 892, 82 Conn. 661. (Annotated) 4. Obstruction and nuisances. (See also same heading in Digest LM.A. 1-10.) Liability of other persons, see infra, 271- 276. Due to defective system of electric wiring, see ELECTRICITY, 51. Exclusion of opinion evidence as to char- acter of obstruction, see EVIDENCE, 1149. Evidence of subsequent removal of obstruc- tion, see EVIDENCE, 1821. Evidence that others had stumbled over ob- struction, see EVIDENCE, 1853. Variance in action for obstruction of side- walk, see EVIDENCE, 2490. Correctness of instructions as to nuisance, see TRIAL, 1059. See also supra, 67, 150. r ;il > -t >J>T'i ,", ! .'">'.! 187. The mere existence of obstructions on a sidewalk is not alone sufficient to charge the municipality with liability for an injury to a pedestrian, caused thereby. White v. New Bern, 13: 1166, 59 S. E. 992. 146 N. C. 447. 188. Knowledge of the existence of an ob- struction on a sidewalk will be imputed to a municipality where it has existed for as Digest 1-52 L.R.A.(N.S.) much as thirty years. White v. New Bern, 13: 1166, 59 S. E. 992, 146 N. C. 447. 189. A municipal corporation cannot ab- solve itself from liability for an injury to a pedestrian caused by the steps of an abut- ting house encroaching upon a sidewalk in such a way as to constitute a nuisance, by the fact that they had existed for twenty- five years or more. White v. New Bern, 13: 1166, 59 S. E. 992, 146 N. C. 447. 190. A step 4 inches high and 10$ wide placed on the sidewalk against a building, to facilitate access to it, is not an obstruc- tion to the walk which will render the municipality liable for permitting its pres- ence there in case a pedestrian falls over it, to his injury. Richmond v. Lambert, 28: 380, 68 S. E. 276, 111 Va. 174. 191. A municipal corporation is liable for injury to a pedestrian on a sidewalk by collision, in the night, with a gate which is so constructed that it will stand open across the walk so as to obstruct it, if the municipality had notice of, or, by the exer- cise of ordinary care, could have discovered, the defect in time to remedy it prior to the injury. Campbell v. Chillicothe, 39: 451, 144 S. W. 408, 239 Mo. 455. 192. A municipal corporation is not lia- ble for an injury to a pedestrian caused by a wagon used for removing refuse from the streets, by the fact that to move it from one place to another it was attached to the back of a sprinkling cart, although there might have been a safer or better way of doing the work. Louisville v. Carter, 32: 637, 134 S. W. 468, 142 Ky. 443. 193. The mere fact that a cart owned and used by a municipal corporation for the purpose of sprinkling its streets is not in actual use for that purpose at the time it causes injury to a pedestrian, but is being taken through the streets for another pur- pose, does not render the municipality lia- ble for the injury. Louisville v. Cartel-, 32: 637, 134 S. W. 468, 142 Ky. 443. 194. An elevator for lowering goods from the sidewalk to a basement and lifting them from the basement to the sidewalk, so con- structed as to leave no defect in the walk when lowered and not in operation, not dangerous to persons using the sidewalk as travelers when in operation, and not left in such condition as to be dangerous to them when not in use, is not a public nui- sance, an obstruction of the sidewalk, nor a defect therein. Post v. Clarksburg, 52: 773, 81 S. E. 562, W. Va. . 195. Permitting trees to remain along a street in such a way as to interrupt at places the light from the street lamps, cast- ing shadows in which a traveler cannot see his way, does not constitute a nuisance which will render the municipality liable for injuries to a traveler through an acci- dent while in such shadow, which might have been avoided had he been able to see. Blain v. Montezuma, 32: 542, 129 N. W. 808, 150 Iowa, 141. 196. A municipal corporation is not liable for injury to a traveler by its failure to remove a nuisance consisting of a danger- 1396 HIGHWAYS, IV. .a, 4. ous limb on a tree in the street, since the duty to remove it is a governmental one. Dyer v. Danbury, 39: 405, 81 Atl. 958, 85 Conn. 128. 197. The trees, grass, and flowers grow- ing upon a park strip left between the road- way and the sidewalk, and proper barriers placed around the same to protect them, are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a munic- ipality open, in repair, and free from nui- sance. Barnesville v. Ward, 40: 94, 96 N. E. 937, 85 Ohio St. 1. 198. A city may not maintain, or permit to be maintained, a fence, wire, or other I irrier around park strips maintained be- tween a roadway and sidewalk in a public street, dangerous to the life or safety of any traveler who undertakes to pass over the same, and, if a pedestrian in the exer- cise of due care for his own safety is in- jured by reason of the dangerous condition of such barrier, the municipality is liable in damages for sucli injury, if it knew, or in the exercise of ordinary care ought to have known, the dangerous condition there- of. Barnesville v. Ward, 40: 94, 96 N. E. 937, 85 Ohio St. 1. (Annotated) Concurring causes of injury. Concurring causes generally, see supra, 164. Obstruction in street as proximate cause of injury to driver of frightened horse, see PROXIMATE CAUSE, 114. See also infra, 214. 199. A municipal corporation is not liable for the death of a horse through collision, while running away from a cause for which the municipality is not responsible, with an obstruction left standing near the curb in the highway, if ample space remained in the highway for safe travel, so that the street, with the obstruction in it, was reasonably safe for the uses of ordinary public travel. Harrodsburg v. Abraham, 29: 199, 127 S..W. 758, 138 Ky. 157. (Annotated) 200. A city is liable to the driver of a reasonably safe and gentle horse for injuries sustained by being thrown from his wagon caused by a wheel striking an obstacle on the street on a sudden swerving of the horse in temporary fright at a street car. Rucker v. Huntington, 25: 143, 66 S. E. 91, 66 W. Va. 104. 201. A municipality is liable for the re- sulting injury where a horse, without fauft of the driver, takes fright at something for which the municipality is not responsible, and runs away and comes in contact with a building in the street, which is there by the negligence of the municipality, if the in- jury would not have been sustained except for such negligence. McDowell v. Preston, 18: 190, 116 N. W. 470, 104 Minn. 263. Objects frightening horse. Liability of other persons, see infra, 277, 284. Pleading in action for injury, see PLEAD- ING, 333, 334. See also supra, 174, 199-201; infra, 205. 202. A city cannot be held liable for in- Digest 1-52 L.R.A.(N.S.) juries due to the frightening of a horse by stones which, for the purpose of repairing a highway, it had piled along the curb out of that traveled path, if it has used due care in their location, although they :nay be of such a nature that horses of ordinary gentleness are occasionally frightened by them, though they are permitted to remain longer than is absolutely necessary before the injury occurs. Elam v. Mt. Sterling, 20: 512, 117 S. W. 250, 132 Ky. 657. (Annotated) Dogs running at large. 203. The liability of a municipal corpo- ration for failure to keep its streets in safe condition does not extend to injuries caused by vicious dogs permitted to be at large upon them. Addington v. Little- ton, 34: 1012, 115 Pac. 896, 50 Colo. 623. Discharge of fireworks. See also MUNICIPAL CORPORATIONS, 350. 204. A discharge by municipal authori- ties of fireworks across a highway does not constitute a defect or want of repair in the highway, within the meaning of a statute making the municipality liable for injuries caused by such defects. Kerr v. Brookline, 34: 464, 94 N. E. 257, 208 Mass. 190. Blasting. See also MUNICIPAL CORPORATIONS, 347, 348. 205. The firing of a blast in a quarry near a highway does not, although it causes the. fright of horses being driven on the high- way to the injury of their owners, con- stitute a defect in the way so as to render the municipality whose agents were engaged in the operation of the quarry liable for the injuries. Radford v. Clark, 38: 281, 73 S. E. 571, 113 Va. 199. In.jury from bicycle. 206. A municipal corporation is not lia- ble for failure to prevent the riding of bi- cycles on sidewalks contrary to law. Mil- lett v. Princeton, 10: 785, 79 N. E. 909, 167 Ind. 582. (Annotated) 207. In determining the liability of a mu- nicipality for injuries done by a bicycle while being ridden on a sidewa ] k under the alleged permission of its ordinance, the or- dinance will be interpreted as granting such permission as to walks upon which the rid- ing of bicycles is not prohibited by state statute, where it limits the speed at which bicycles may be ridden on sidewalks, and prohibits riding them on sidewalks within certain prescribed boundaries. Millett v. Princeton, 10: 785, 79 N. E. 909, 167 Ind. 582. Falling billboards or signs. 208. In order that a municipality may be relieved of liability for the injury of a pedestrian through the fall of a sign sus- pended across the sidewalk, in a high wind, it is necessary that the wind be an extraor- dinary and unprecedented one and that the negligence of the municipality in failing to discover the danger does not contribute. Purcell v. Stubblefield, 51: 1077, 139 Pac. 290, 41 Okla. 562. 209. A municipal corporation in Okla- HIGHWAYS, IV. a, 5. 1397 homa which is guilty of negligence not only in permitting the erection of a sign across the sidewalk, but in allowing it to remain for over a year after the admission of the state into the Union, is liable for injuries suffered by a pedestrian from the fall of the sign notwithstanding the municipality was formerly located in Indian Territory where it was not liable for such negligence, and the Constitution of Oklahoma provided that "no existing rights, actions . . . shall be affected by the change in the forms of gov- ernment." Purcell v. Stubblefield, 51: 1077, 339 Pac. 290, 41 Okla. 562. Horse race. See also infra, 286. 210. A horse race upon a street of a city is not a defect or want of repair in the high- way of the city, or a dangerous condition of such highway, for which the city is liable to a traveler upon such street who is struck by one of the horses in the race. Marth v. Kingfisher, 18: 1238, 98 Pac. 436, 22 Okla. 602. 211. A municipal corporation is not lia- ble for failure to exercise a governmental power, as for failure to enact an ordinance against horse racing upon its streets; nor for failure to enforce such ordinance after it is enacted. Marth v. Kingfisher, 18? 1238, 98 Pac. 436, 22 Okla. 602. Pole in street. 212. A municipal corporation permitting the maintenance by an electric railway com- pany of a trolley pole in the street in such a manner as to constitute a dangerous ob- struction to public travel is liable to a trav- eler injured thereby. McKim v. Philadel phia, 19: 506, 66 Atl. 340, 217 Pa. 243. ( Annotated ) 213. The fact that there is ample space for travel between the curb and a trolley pole set in the middle of the street does not ren- der the pole any the less a dangerous ob- struction to travel after dark when no light is maintained near it. McKim v. Philadel- phia, 19: 506, 66 Atl. 340, 217 Pa. 243. Rope or wire in street. See also supra, 175. , 214. Stretching a rope across an extrance to an alley between the street and sidewalk to prevent use of the alley is not an ob- struction to the street which will render the municipality liable in case it is broken by a runaway horse and an end flies against a person passing on the walk to his injury. Lawrenceburg v. Lay, 42: 480, 149 S. W. 862, 149 Ky. 490. (Annotated) 215. A municipal corporation is liable for the death of a person who, in running at night to catch a car, comes in contact with a wire of which he is ignorant which the city has strung on neutral ground along its street a few feet above the pavement for the purpose of keeping back the crowd at a carnival to be held four days in the future, and which it has taken no precautions to guard or light so as to warn the public of its location. Nessen v. New Orleans, 51 : 324, 64 So. 286, 134 La. 455. Digest 1-52 L.R.A.(N.S.) Show; street fair. Contributory negligence of person injured, see infra, 349. Exhibition in, as nuisance, see NUISANCES, 8. 216. A municipal corporation which per- mits an organization of citizens to take charge of a street for the purpose of giving a public show therein becomes in legal effect the creator of the nuisance erected by s-uch organization therein, and ,is liable as sucb [ for the injuries thereby caused to travel- ers. Wheeler v. Ft. Dodge, 9: 146, 108 N. W. 1057, 131 Iowa, 566. (Annotated) 217. A municipal corporation which per- mits the stringing of a wire across a public street for the giving of an acrobatic per- formance is liable to a pedestrian upon the street for injuries caused by being struck by a performer who falls from the wire while engaged in his performance, where the duty is imposed upon the municipality, by statute, of keeping its streets- free from nuisances. Wheeler v. Ft. Dodge, g: 146, 108 N. W. 1057, 131 Iowa, 566. (Annotated) 218. A municipal corporation whiehv without authority, permits a fair to be held in one of its streets, with the attendant structures and shows, is liable for injury to a patron who, in attempting to leave a show, passes over an unsafe platform erect- ed in the street to afford access to such show, and is jostled off by the crowd, to his injury. Van Cleef v. Chicago, 23: 636, 88 N. E. 815, 240 111. 318. (Annotated) Building in street. Right to maintain building in street, see supra, 78. 219. A building erected and maintained in a public street by a citizen for hrs pri- vate use is a nuisance, though sufficient space be left for the passage of vehicles and persons; and the municipality is guilty of negligence if, with notice thereof, it permits the street so to be obstructed. McDowell v. Preston, 18: 190, 116 N. W. 470, 104 Minn, 263. 220. The location, without authority, of a voting booth in a public highway, may constitute a defect therein which will re- quire the municipal corporation to exercise reasonable diligence to protect the public travel. Haberlil v. Boston, 4: 571, 76 N. E. 907, 190 Mass. 358. 5. Other defects* (See also same heading in Digest L.R.A. 1-10.) Injury by electricity, see ELECTRICITY, 40- 53. 221. A municipal corporation is not neg- ligent in permitting a difference of 18 to 24 inches to exist between the level of two wagon tracks only a few feet apart, which had been made by public travel within the city limits, but not improved as a city street, so as to render it liable for injuries caused by the overturning of a wagon in attempting to cross from one to the other.. 1398 HIGHWAYS, IV. a, 5. Nelson v. Spokane, 8: 636, 87 Pac. 1048, 4.") Wash. 31. 222. A municipal corporation is not neg- ligent in permitting a slight rut to exist in j a dirt road, caused by the wheels of a heavy { wagon slipping off the paving adjoining ] street-car tracks laid therein upon a grade 5 or 6 inches higher than the dirt way, so as to render it liable for injury caused to one falling because of such rut, in attempt- ing to alight from a street car. Clifton v. Philadelphia, 9: 1266, 66 Atl. 159, 217 Pa. 102. (Annotated) 223. Statutes making a municipality lia- ble for injuries caused by defective high- ways do not apply to those caused by the fall of limbs from trees in the street. Dyer v. Danbury, 39: 405, 81 Atl. 958, 85 Conn. 128. (Annotated) 224. Charter authority to regulate the planting and removal of trees, and an ordi- nance providing that no person shall remove or plant a tree in the street without a per- mit, do not impose upon the municipality the duty of removing dead limbs from trees, so as to render it liable for injury caused by its failure to do so, if under statutory authority a tree warden has been elected who is given the care and control of the public shade trees in the town. Dyer v Danbury, 39: 405, 81 Atl. 958, 85 Conn. 128. 225. The statutory liability of a town for injury caused by the neglect of its high- way commissioners to keep in repair its highways and bridges does not extend to an injury caused by failure to extend a guard for a culvert embankment outside the traveled part of the highway, so that a traveler whose horse had wandered in the dark out of the beaten path was car- ried over the embankment. Flansburg v. Elbridge, 41 : 546, 98 N. E. 750, 205 N. Y. 423. 226. The failure of a municipal corpora- tion to guard or cover a drainage ditch or gutter at a point where it passed under a 5-foot sidewalk which was in good repair is not such negligence as will render it lia- ble in damages for injuries to a pedestrian caused by stepping from the walk into the ditch, where the ditch had been construct- ed in the ordinary method for the purpose of carrying off surface water and was in per- fect condition, although the height of the sidewalk above the bottom of the ditch was approximately from 18 to 24 inches, since a municipal corporation is only required to guard against such dangers in its sidewalks as can or ought to be anticipated in the ex- ercise of reasonable care, and it cannot be said that a careful or prudent person would have anticipated any danger to pedestrians in using the walk at that point. Braatz v. Fargo, 27: 1169, 125 N. W. 1042, 19 N. D. 538. (Annotated) 227. A municipal corporation is not lia- ble for injury to a pedestrian who, in at- tempting to cross a street, stumbles and falls because of a piece of stone projecting 2 inches above the level of the cross walk, where the walk is constructed of two level \ strips of paving stone, with the intervening Digest 1-52 L.R.A.(N.S.) space filled with loose stones, and covered with dirt. Richmond v. Schonberger, 29: 180, 68 S. E. 284, 111 Va. 168. (Annotated) 228. A municipal corporation which closes, by means of barricades, a street in which a deep sewer is being laid, is not liable for injury to a child which passes the barricade and slips into the trench from a pile of sand deposited by the side of the trench for use in the work, upon which he goes to play, in the absence of anything to charge it with notice of some special danger to chil- dren in the conditions which exist. Johnson v. New York, 46: 462, 101 N. E. 691, 208 N. Y. 77. 229. The duty of a municipal corporation to keep its sidewalks safe does not require it to keep a covering of a stairway leading from the sidewalk to the cellar of an ad- joining building safe as a standing place for persons wishing to look through the windows of the building. Louisville v. Hayden, 46: 1193, 157 S. W. 4, 154 Ky. 258. Lack of railings or barriers. Liability of street railway company, see in- fra, 332. Necessity for barriers for discontinued high way, see infra, 403. Joinder in action for injury, of municipality and abutting owner, see ACTION OB SUIT, 117. Effect of municipality's delay in erecting barriers on right to recover over against persons primarily liable for injury, see CONTRIBUTION AND INDEMNITY, 12. Sufficiency of proof that accident was caused by absence of barriers, see EVIDENCE, 2073, 2074. Pleading in action for injury, see PLEAD- ING, 318. As proximate cause of injury, see PROXI- MATE CAUSE, 116-119. Question for jury as to negligence, see TRIAL, 409. See also infra, 285. 230. In determining whether it is neces- sary, in a particular case, that a barrier should be erected in order to make a high- way safe for travelers thereon, the true test is not the distance from the highway of the dangerous object or place, but wheth- er a traveler in passing along the highway and exercising ordinary care would be sub- jected to such imminent danger that it would require a barrier to make the high- way safe. Mineral City v. Gilbow, 25: 627, 90 N. E. 800, 81 Ohio St. 263. 231. A county is liable to a person who, while traveling on the highway, is precip- itated from a bridge approach and is in- jured because of the absence of a barrier along the side of the approach. Magee v. Jones County, 48: 141, 142 N. W. 957, 161 Iowa, 296. 232. A condition sufficient to hold a coun- ty liable for injury to a traveler on a high- way whose horse went over an embankment upon which it was built is not shown by allegations that the defect was the exist- ence on the side thereof of a steep, precipi- tous, and sheer decline or pitfall of some 8 or 10 feet to the bottom, which defendant HIGHWAYS, IV. a, 5. 1399 negligently permitted to remain without barrier; and that plaintiff's horse fell down and into said declivity and precipice. Leber v. King County, 42: 267, 124 Pac. 397, 09 Wash. 134. 233. A county is not bound to maintain a barrier along the side of a graded roadway 15 feet wide, although it is at the top of an embankment 8 or 10 feet high, where the slope is not precipitous, but gradual. Leber v. King County, 42: 267, 124 Pac. 397, 69 Wash. 134. (Annotated) 234. A town is not bound as matter of law to place a barrier in every case between a highway and a stone lying immediately adjacent thereto, which, if within the limits of the highway, would constitute an ob- struction, falling over which might injure a traveler; and it is immaterial that there is nothing to mark the line of the highway. Shea v. Whitman, 20: 980, 83 N. E. 1096, 197 Mass. 374. (Annotated) 235. A township is not relieved from the duty of maintaining such barriers along the edge of an elevated bridge approach as are necessary to render it safe for travel, by the fact that it is engaged in erecting concrete retaining walls along the sides of the embankment, if the ap- proach is left open for travel. Speck v. Bruce, 35: 203, 132 N. W. 114, 166 Mich. 550. 236. A town is not liable for an accident to an automobile beyond the limits of a highway, on a surface of sand level with the road, although the marks of travel have been obliterated by the alteration of the road ; since the town is not required to keep the adjoining land in repair, and no such dangerous condition exists as requires the erection of a barrier to mark the limits of the way. Doherty v. Ayer, 14: 816, 83 N. E. 677, 197 Mass. 241. 237. A city, by permitting the use of part of a street for the placing of building mate- rials for use in the construction of a build- ing on adjacent property, is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights, unless it has notice, express or im- plied, of such omission, and after such no- tice is guilty of negligence. Columbus v. Penrod, 3: 386, 76 N. E. 826, 73 Ohio St. 209. . (Annotated) 238. Neither the municipality nor the owner of property abutting on a street owes to a traveler thereon the duty of maintaining barriers to prevent him from leaving the street and reaching a place of danger wholly on the abutting property and 6 feet distant from the street line, especial- ly where the conditions have existed for many years without the happening of an accident. Mineral City v. Gilbow, 25: 627, 90 N. E. 800, 81 Ohio St. 263. 239. Where a road or way becomes danger- ous to travel, is abandoned or a new loca- tion established, public authorities in charge of the work must put up barriers or warn- I ings to protect persons traveling thereon, I acting upon the belief, justified by appear- Digest 1-52 L.R.A.(N.S.) ances, that the old way is still open, and it is negligence not to do so. Daniels v. Coun- ty Court, 37: 1158, 72 S. E. 782, 69 W. Va. 676. Absence of light. As evidence of negligence, see EVIDENCE, 1797. See also supra, 213, 237. 240. Even though a municipal corporation has undertaken to light its streets, and has failed to place a light at the ford across a stream, it is not liable for the death of a traveler drowned in the dark because of the swollen condition of the water, if the ford was safe for travel under ordinary cir- cumstances. Gee v. Hopkinsville, 46: 229,. 157 S. W. 30, 154 Ky. 263. (Annotated) 241. A municipal corporation which has undertaken to exercise its charter power to light its streets cannot be held liable on the ground of negligence for an accident to a traveler on the street, because the lighting system is not as efficient as it might have been. Blain v. Montezuma, 32: 542 129 N. W. 808, 150 Iowa, 141. 242. Mere statutory authority to light its streets does not impose upon a municipality the obligation to do so, so as to render it liable for injury to travelers because of the absence of light. White v. New Bern, 13: 1 1 66, 59 S. E. 992, 146 N. C. 447. (Annotated) 243. Neither defective lights, nor the ab- sence of lights, is, of itself, negligence which will render a municipality liable for injuries to a traveler on the highway, if, notwith- standing such defect or absence, the high- way is reasonably safe. White v. New Bern, 13: 1166, 59 S. E. 992, 146 N. C. 447. Ice and snow. Liability of abutting owner for, see infra, 300-305, 312, 313. As to contributory negligence, see infra, 350, 364. Sufficiency of notice of, see infra, 387, 388. Evidence in action for injury, see EVIDENCE,. 2043. Prejudicial error in exclusion of evidence, see APPEAL AND ERROR, 1240. 244. Under a charter duty to remove ob- structions and encroachments from cross- walks, a village is not bound to keep its- cross walks free from accumulations of snow and ice, unless dangerous formations- or obstacles have been created. Dupont v. Port Chester, 39: 1167, 97 N. E. 735, 204 N. Y. 351. (Annotated) 245. A village which is not required to remove the snow from its streets is not negligent in leaving the snow as it falls upon cross walks to facilitate driving in the street, unless there is something in the way in which it falls or the form which it subse- quently takes which creates an encum- brance, obstruction, or special danger, Dupont v. Port Chester, 39: 1167, 97 N. E. 735', 204 N. Y. 351. 246. A city may be held liable in an ac- tion for damages where the evidence of at least srme of the witnesses, which is be- lieved by the jury, shows that a portion of a sidewalk has remained covered with 1400 HIGHWAYS, IV. a, 6. ice and snow during the whole winter, and such ice and snow have been allowed to thaw and freeze and accumulate during such time, so that the place was much more dangerous and obstructed than the other sidewalks in the vicinity, and no effort has been made by the city either to remove it or cause the same to be removed, or to sprinkle it with sand or other substance in order to render it less dangerous, and the evidence also shows that such ice and snow were trampled into ruts, mounds, humps, and hillocks by the pedestrians dur- ing a thaw, and frozen in such condition, and that after a snowstorm, which later fell upon and largely hid the same, plain- tiff slipped and fell thereon. Jackson v. Grand Forks, 45: 75, 140 N. W. 718, 24 N. D. 601. (Annotated) 247. The negligence, if any, of a munici- pal corporation in permitting snow and ice to remain on a walk in rough and uneven surfaces, is immaterial where the undis- puted evidence shows that plaintiff had, be- fore falling, passed over the part of the walk where the ridges and rough surfaces were claimed to have been. Beirness v. Missouri Valley, 51:218, 144 N. W. 628, 162 Iowa, 720. 248. When cold follows a melting of snow, causing a film of ice upon the side- walks which it is practically impossible to remove, the municipality may, without be- ing guilty of negligence, wait for a change of temperature to remedy the condition. Beirness v. Missouri Valley, 51: 218, 144 N. W. 628, 162 Iowa, 720. 249. A city must be allowed due time to remove snow and ice from the sidewalks, or so to deal with the conditions as to ren- der the walks as reasonably safe as can or- dinarily be expected under the circumstan- ces; out, where ice and snow are piled up on a sidewalk so as to render it exceedingly slippery, and such condition has been per- mitted to remain for several weeks without any effort on the part ot the city to remedy it, or to protect pedestrians therefrom, there is sufficient to charge the city with negli- gence rendering it Ha* lo for personal in- juries to a pedestrian, in the absence of a showing of reasonable justification. Bull v. Spokane, 13: 1105, 89 Pac. 555, 46 Wash. 237. (Annotated) 250. A municipal corporation is not liable for failure to abate conditions existing out- side of a highway which caused ice to ac- cumulate on a sidewalk, because it is au- thorized by its charter to enact ordinances to prevent nuisances and summarily to abate them at the expense of the person maintain- ing them; no duty as to the exercise of this power having been imposed by law, express- ly or by clear implication. Udkin v. New Haven, 14: 868, 68 Atl. 253, 80 Conn. 291. 251. A city is not liable for injuries due to a fall upon a sidewalk covered with ice and snow, where the ice. which accumulated from natural causes, was less than an inch in thickness, and the person injured knew when he went upon it that it was smooth and slippery, and he fell because of its Digest 1-52 !L.R.A.(N.S.) smooth and slippery condition, and no other defect is claimed. Evans v. Concordia, 7: 933, 85 Pac. 813, 74 Kan. 70. (Annotated) 252. A city has no inherent power, as a public corporation, to go upon private prop- erty outside of a highway to remove melting snow and stop the discharge of water from a pipe in order to prevent the accumulation of ice on a sidewalk, since the pipe and the accumulated snow do not constitute a nui- sance per se. Udkin v. New Haven, 14: 63, 68 Atl. 253, 80 Conn. 291. 253. The statutory duty of a municipal corporation to keep its streets in repair does not call for or justify entrance upon private property to deal with causes producing ice on a sidewalk, the cause of complaint b:-ing not of itself a direct source of danger, or, if such, not being susceptible of remedial meas- ures which can be reasonably employed in the highway. Udkin v. New Haven, 14: 868, 68 Atl. 253, 80 Conn. 291. 254. A municipal corporation which main- tains, without drainage, a sidewalk along a street crossing a railroad below grade in such a manner that, by reason of its grade and formation, ice accumulates and remains on it in freezing weather so as to be un- safe for pedestrians using it, without any attempt to remove the ice, will be held lia- ble for injuries to a pedestrian who falls thereon, if the jury finds that the conditions existing at the time of the accident are due to the city's negligence. Holbert v. Phila- delphia, 20: 201, 70 Atl. 746, 221 Pa. 266. ( Annotated ) Depression or hole in pavement. 255. A city is not liable for injuries sus- tained by one thrown from his wagon when his horse ran away, where the animal took fright at the flapping of the wagon cur- tains, which became loosened when the wheels ran into a depression in the pavement from 3 to 5 inches deep, since the street was in a reasonably safe condition. Dayton v. Glaser, 12: 916, 81 N. E. 991, 76 Ohio St. 471. 256. That a pedestrian chose a dark alley, instead of a safe and lighted street, to reach his destination, does not relieve the municipal corporation from liability for in- juries received from a hole in the pavement of the alley. Covington v. Lee, 2: 481, 89 S. W. 493, 28 Ky. L. Rep. 492. 6. Defect in sidewalk. (See also same heading in Digest L.R.A. 1-10.) As to ice and snow on sidewalks, see supra, 144-154. Liability of abutting owner, see infra, 297- 299. Contributory negligence in use of sidewalk, see infra, IV. c. Damages for injury to pedestrian on defec- tive sidewalk, se,e DAMAGES, 372, 376. Notice to street commissioners and city council of unsafe condition of, see EVI- DENCE, 1586. HIGHWAYS, IV. b, 1. 1401 Proximate cause of injury, see PROXIMATE CAUSE, 119, 120. Question for jury as to unsafety of walk, see TEIAL, 411. Correctness of instructions as to negligence, see IRIAL, 1957, 1058. See also supra, 172. 257. Under a city charter making it the duty of the owners or occupants of premises to keep the sidewalk in front of their lots in repair, or pay the expenses incurred by the municipality in doing so, and further providing that, in case of an injury to per- son or property by reason of any defect in a sidewalk, for which the city would be liable, arising from or produced by the wrong, de- fault, or negligence of any person other than the city, the guilty person shall be primarily liable therefor, and the city shall not be lia- ble therefor in advance of the exhaustion by the injured person of all legal remedies to enforce the private liability, such liability is not deemed to be of the character of that created by Wis. Rev. Stat. 1898, 1339, re- specting the service of written notice of in- jury, but such as, upon common-law prin- ciples, governs the liability of a city inde- pendently of statute. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 258. The fact that a sidewalk along a freight depot has been driven on and across for many years by teamsters desiring to reach the depot from the roadway does not render the municipality responsible for its safety for such use. Webster v. Vanceburg, 19: 752, 113 S. W. 140, 130 Ky. 320. 259. A municipal corporation is not bound to make the necessary alterations in a sidewalk along a railroad freight depot to permit wagons to be driven from the road- way to the depot. Webster v. Vanceburg, 19: 752, 113 S. W. 140, 130 Ky. 320. 260. That the slippery condition of an iron door covering an excavation under a sidewalk is caused by rain does not absolve the city from liability for injury due to a fall thereon, if the door becomes dangerous whenever it is wet. Smith v. Tacoma, ai: 1018, 98 Pac. 91, 51 Wash. 101. 2G1. A city which permits a smooth iron door to cover an excavation in a sidewalk for a long period of time, during which many persons fall upon it, may be found liable for a personal injury caused by such fall. Smith v. Tacoma, 2i:'ioi8, 98 Pac. 91, 51 Wash. 101. 2G2. A municipal corporation is not liable for injury to a pedestrian, caused by his falling on a sidewalk because of a depres- sion due to the settling of one edge of a concrete square in the walk 1J inches below the level of the adjoining square, although one or two persons had tripped on the unevenness before, and one of the trustees of the municipality had slightly turned his ankle at the spot, and reported the fact to the board of trustees. Terrv v. Perry, 35: 666, 92 N. E. 91, 199 N. Y. 79. 263. A niche in a sidewalk to enable it to pass a standing tree, which, after the tree is removed, is filled with dirt and sodded, Digest 1-52 L.R.A.(N.S.) so as to leave the surface 2 inches below the surface of the walk, is, as matter of law, not a defect which will render the mu- nicipality liable in case a pedestrian slips or stumbles over the unevenness and falls to his injury. Lexington v. Cooper, 43: 1158, 145 S. W. 1127, 148 Ky. 17. (Annotated) Lack of repair. Error in instruction in action for injuries, see APPEAL AND ERROR, 1342. Admissibility, in action by child for in- juries, of admissions by parent, see EVIDENCE, 1235. Imputing negligence of parent to child, see NEGLIGENCE, 275. Question for jury as to negligence, see TRIAL, 410. Evidence of contradictory admissions of next friend of child injured on, see WIT- NESSES, 166. 264. A board in a wooden sidewalk laid on stringers resting upon smooth ground, not dangerous in character, but so unsound as to give way under the weight of a pedes- trian and injure him, is an actionable de- fect under the law of West Virginia. Camp- bell v. Elkins, 2: 159, 52 S. E. 220, 58 W. Va. 308. Z>. Liability of others. 1. In general. (See also same heading in Digest L.R.A. 1-10.) As to contributory negligence of person in- jured, see infra, IV. c. Injury by animal on highway, see ANIMALS, 12, 18-22. Injury by automobile on, see AUTOMOBILES. Injury by electric wires, see ELECTRICITY, 22-39; PROXIMATE CAUSE, 58. Recovery over by municipality against per- son primarily liable for injury, see AP- PEAL AND ERROR, 1137; CONTRIBUTION AND INDEMNITY, 8-13, 16; ESTOPPEL, 43. Federal court following state decision as to liability of one placing building mater- ials in street for resulting injury, see COURTS, 324. Placing or leaving explosives in highway, see EVIDENCE, 1527; EXPLOSIONS AND EXPLOSIVES, 1, 2. Evidence as to condition before and after change alleged to have caused injury, see EVIDENCE, J871. Sufficiency of evidence to show negligence, see EVIDENCE, 2167-2169. Injury resulting from fright caused by neg- ligent collision on highway, see I'KIGHT, 7. Conclusiveness of judgment against one con- structively responsible in subsequent action against one primarily liable, see JUDGMENT, 233. Liability of public utility company for in- jury to pedestrian falling into unguard- ed excavation, see MASTEB AND SERV- ANT, 1001. 1402 HIGHWAYS, IV. b, 1. Liability for injury due to negligent driving, see NEGLIGENCE, I. d. Injury to children by snatch block left in highway, see NEGLIGENCE, 128. Injury to child by push car standing in highway, see NEGLIGENCE, 160, 161. Opening into underground mill race in pub- lic highway, see NEGLIGENCE, 170. Proximate cause of injury, see PROXIMATE CAUSE, 58, 112, 117. Instructions in action for injuries, see TRIAL, 884, 900. 265. One contracting with a county to keep its roads in repair, failure to do which is by statute made a misdemeanor, is lia- ble in tort for injury to a horse driven with due care on the highway, because of a de- fective condition, created and maintained by him, although the county would not have been liable for the injury had it undertaken to maintain the highway itself. Wade v. Gray, 43: 1046, 61 So. 168, 104 Miss. 151. 266. A manufacturing company from whose plant, owing to an accident to the boiler, hot water escaped into the gutter of a near-by street thereby attracting chil- dren, is liable in damages for injury to a -child resulting from falling therein after a watchman who had been stationed there had departed, and the place was negligently left unguarded. Palermo v. Orleans Ice Mfg. Co. 40: 671, 58 So. 589, 130 La. 833. 267. A municipal permit to turn clear water into a sewer will not absolve the li- censee from liability for injuries caused by its turning steam therein. Smith v. Edison Electric Illuminating Co. 15: 957, 84 N. E. 434, 198 Mass. 330. (Annotated) 268. The jury may find the turning by a manufacturer of steam into a sewer in such quantities that it escapes and envel- opes a pedestrian on the sidewalk to be negligence and the proximate cause of an in- jury to the pedestrian through a fall on ac- count of becoming bewildered by the steam, so as to render the manufacturer liable for the injurv. Smith v. Edison Electric Illu- minating" Co. 15: 957, 84 N. E. 434, 198 Mass. 330. Tenants. Liability of landlord, see infra, IV. b, 3, b. See also infra, 316. 269. A tenant in possession of a building abutting on a sidewalk, upon which is in- securely fastened a pipe to carry water, is liable for injury to a person on the walk by the fall of the pipe, where he has obli- gated himself to keep the building in re- pair. Mitchell v. Brady, 13: 751, 99 S. W. 266, 124 Ky. 411. 270. A tenant in possession of a building is not liable for injury to one passing upon an adjoining public way by the mere fact that something is thrown upon him from one of the windows of the building, without anything to show that the tenant, or any of his servants, were in fault. Carl v. Young, 14: 425, 68 Atl. 593, 103 Me. 100. (Annotated) Obstructions. Liability of municipality, see supra, IV. a, 4. Digest' 1-52 L.R.A.(N.S.) Hand car in highway as obstruction, see in- fra, 280. Obstruction by electric wire, see ELECTRIC- ITY, 37. As proximate cause of injury, see PROXI- MATE CAUSE, 112. 271. One piling building material in the street owes a duty to children of such ten- der years as to be incapable of contributory negligence or trespass, who to his knowl- edge are accustomed to play in the vicinity, to use ordinary care to prevent the piles from being in such unstable condition as would be likely to cause injury to such of the children as might come in contact with them. Snare & Triest Co. v. Friedman, 40: 367, 169 Fed. 1, 94 C. C. A. 369. 272. That a horse is running beyond con- trol when he is injured because of an un- lawful and improper structure in the high- way does not prevent recovery against .the party maintaining the obstruction, for the injury to the horse, where the runaway was not attributable to the plaintiff's negli- gence. Opdycke v. Public Service R. Co. (N. J. Err. & App.) 29: 71, 76 Atl. 1032, 78 N. J. L. 576. 273. That one subject to vertigo is seized with an attack while walking on a side- walk, and staggers against an obstruction negligently placed upon the walk, a fall upon which causes his death, will not de- stroy the liability for the accident of the one responsible for the obstruction. Wood- son v. Metropolitan Street R. Co. 30: 931, 123 S. W. 820, 224 Mo. 685. 274. A telephone company may be held liable in damages to persons injured through the obstruction of a highway by its wires. Louisville Home Teleph. Co. v. Gasper, 9: 548, 93 S. W. 1057, 123 Ky. 128. 275. A guy wire of a telephone pole an- chored in an alley 18 inches from the fence, the color of which it so nearly resembles as to be practically indiscernible, may be found to be an obstruction dangerous to in- dividuals and vehicles passing through the alley. Louisville Home Teleph. Co. v. Gas- per, 9: 548, 93 S. W. 1057, 123 Ky. 128. 276. An electric company which, in string- ing wires on its poles, which, in obedience to a municipal ordinance, it has removed in- side the curb line on a p~ " lie street, stretches a rope across the walk to warn pedestrians not to pass under the poles on which its men are at' work, is not liable for the death of a child which, in running along the walk, comes in contact with the rope, and is thrown down and fata'Jy injured. Newport News & O. P. R. & Electric Co. v. Clark, 6: 905, 52 S. E. 1010, 105 Va. 205. (Annotated) Frightening animals. Municipal liability, see supra, 174, 199- 202, 205. Frightening of horse by animal at large in highway, see ANIMALS, 21, 22. Evidence as to fright of horses by steam shovel, see EVIDENCE, 1145, 1864. By electric car, see INTERURBAN RAILWAY, 4. By discharge of steam, see NEGLIGENCE, 19, 238. HIGHWAYS, IV. b, 2. 1403 By smoke from engine outside of highway, see NEGLIGENCE, 20. Pleading in action for injuries, see PLEAD- ING, 335, 336. * Question for jury as to necessity of giving warning, see TRIAL, 406. See also RAILROADS, 168. 277. A railroad company whose section men are engaged in removing decayed ties from the roadbed and throwing them down the embankment upon which the track is laid, into a depression between the track and an adjoining highway, is not liable for injury due to the frightening of a horse passing on the highway, by a tie thrown into the depression in the usual and cus- tomary manner, where the work was not calculated to frighten a horse of ordinary gentleness. Chandler v. Illinois C. R. Co. 43: 113, 100 N. E. 152, 256 111. 259. 278. A telephone company which has the right to maintain its line along a highway is not liable for injury caused by frighten- ing the horse of a traveler by bright new coils of wire temporarily placed between the traveled part of the highway and the fence, to he used in stringing a new line on its poles, although they remain where placed for several days before the accident occurs. East Tennessee Teleph. Co. v. Par- sons, 47: 1021, 151) S. W. 584, 154 Ky. 801. 279. A reel of lead pipe needed for its work, which is placed by a telephone com- pany in line with its poles near the curb of a street in which it is engaged in string ing its wires, under lawful authority from the municipality, is not an unlawful ob- struction to travel, which will render it liable for injuries caused by a traveler's horse becoming frightened at it, although it is of such appearance as would be likely to frighten well-broken horses not accus- tomed to it. Simonds v. Maine Teleph. Teleg. Co. 28: 942, 72 Atl. 175, 104 Me. 440. 280. A hand car removed from the track by railroad employees within the limits of the highway at a crossing, to permit a train to pass, is not an unlawful obstruction of the way, which will render the railroad com- pany liable for injuries due to the frighten- ing of a horse by it. Webster v. Chicago. B. & Q. R. Co. 42: 568, 158 Fed. 769, 86 C. C. A. 125. (Annotated) 281. A rrilroad company which uses a piece of tin roofing, bright side up, to pro- tect some freight in its possession which it has piled near the highway, is not liable for injuries to a traveler on the highway whose horse shies at the light reflected from the tin. in such a way that he is thrown from the vehicle. Davis v. Pennsylvania R. Co. 12: 1152, 67 Atl. 777, 218 Pa. 463. (Annotated) 282. One who, in erecting a structure over a public street, negligently permits a rope to hang across the street so low as to prevent the passage of a buggy with the top up, is responsible for an injury to a traveler whose horse is frightened by the swinging of the rope as it is about to pass under it, whether it is done by one of his servants, or by a stranger; and he cannot defeat li- Digest 1-52 L.R.A.(N.S.) ability if the act was that of a stranger, on the theory that such act is an independent cause for which he is not responsible. Pennsylvania Steel Co. v. Wilkinson, 16: 200, 69 Atl. 412, 107 Md. 574. 283. One placing in a highway a nuisance calculated to frighten horses of ordinary gentleness cannot escape liability for in- juries caused by the frightening of a horse thereon, by the fact that the horse was vi- cious, and that such viciousness might have contributed to the injury. Stedman v. O'Neil, 22: 1229, 72 Atl. 923, 82 Conn. 199. (Annotated ) 284. A road contractor whose machinery for the preparation of materials for hi work is of the usual kind, and located by the side of the road where it may lawfully be, is not liable for injury to one attempt- ing to drive a horse past it, merely be- cause an automatic safety valve upon the engine lets go just as tie is passing, and frightens his horse, so that it shies and brings him in contact with a passing vehicle, throwing him from the carriage. Lane Bros. Co. v. Barnard, 31: 1209, 69 S. E. 969, 111 Va. 680. (Annotated) Excavations. 285. The privilege granted by a municipal corporation to a public utility company, of making excavations in a sidewalk, does not authorize the company to leave the excava- tion so made unguarded, or to dispense with all precautions whereby those wno are right- fully using the sidewalk may be warned of the existence of danger. Rock v. American Constr. Co. 14: 653, 45 So. 741, 120 La. 831. Horse race. Liability of municipality for, see supra, 210. 211. 286. The racing of five or six wild and tin- unbroken horses upon the street of a city where a large crowd is gathered is a dan- gerous and illegal use of such street, for which a commercial club and its officers and agents, at whose instance and under whose supervision such race is conducted, are lia- ble to a traveler upon such street who, with- out fault on his part, is struck and injured by one of the horses in the race. Marth v. Kingfisher, 18: 1238, 98 Pac. 436, 22 Okla. 602. Repairing wagon in street. Presumption of negligence of owner of cart whose driver attempts to repair it in public street, see EVIDENCE, 444. Owner's liability for negligence of stranger called by driver to his assistance, see MASTER AND SERVANT, 24. 287. The owner of a cart who permits it to be out of repair is liable for injury to a person on the street, by the fall of the pole while the driver is attempting to repair it, which would not have happened but for the condition' of the cart. Hollidge v. Duncan, 17: 982, 85 N. E. 186, 199 Mass. 121. 2. Public officials. (See also same heading in Digest L.R.A. 1-10.) 288. Township highway officers who, in 1404 HIGHWAYS, IV. b, 3. the repair of a road within their district, removed a culvert extending across the same, and negligently and carelessly left the resulting excavation open and exposed over night without lights, guards, or warn- ings of any kind, are liable to one who, traveling along the road, unaware of the dangerous condition thereof, ran into the excavation so created, notwithstanding the town of which they are officers is not liable. Tholkes v. Decock, 52: 142, 147 N. W. 648, 125 Minn. 507. (Annotated) 3. Abutting owners. a. In general. (See also same heading in Digest L.R.A. 1-10.) Contributory negligence of person injured, see infra, IV. c. Joinder of municipality and abutting owner , in one action, see ACTION OB SUIT, 117. Recovery over, by city against abutting owner, see CONTRIBUTION AND INDEM- NITY, 10. Negligence of independent contractor per- mitting fall of object on pedestrian, see MASTER AND SERVANT, 1002. See also supra, 238. 288a. That a child is at play in a public street does not absolve the abutting owner from the duty to exercise ordinary care to refrain from injuring him. Compty v. C. H. Starke Dredge & Dock Co. 9: 652, 109 N. W. 650, 129 Wis. 622. 289. An owner of property is not liable for injuries to a pedestrian caused by step- ping on a tomato hidden by straw upon the sidewalk adjoining his premises, under an ordinance of the city in which the accident occurred, which makes it unlawful for any person to throw or leave upon the side- walk any straw, rubbish, or other refuse, where there is no proof that such owner had violated the ordinance, or was in any way responsible for the presence of the tomato upon the sidewalk. Riseman v. Hayden Brothers, 29:707, 126 N. W. 288, 86 "Neb. 610. (Annotated) 290. The abutting property owner is lia- ble for injury to a pedestrian in falling over a covering which constitutes an obstruction to footmen, placed by an independent con- tractor over a repaired sidewalk without signals or guard to protect the public from injurv after dark. Kampmann v. Rothwell, 17: 758, 109 S. W. 1089, 101 Tex. 535. (Annotated) Fall of awning or bracket. 291. One from whose building an awn- ing falls, to the injury of a passer-by on the highway, must, to avoid liability for the injury, prove that all proper and rea- sonable care had been employed in the con- struction and maintenance of the awning. Potter v. Rorabaugh-Wiley Dry Goods Co. 32: 45, 112 Pac. 613, 83 Kan. 712. 292. It is the duty of one who projects or maintains an awning over a street to Digest 1-52 I-.R.A.(N.S.) keep it from becoming dangerous to pedes- trians lawfully upon the street. Potter v. Rorabaugh-Wiley Dry Goods Co. 32: 45,112 Pac. 013, 83 Kan. 712. 293. In the absence of any issue as to nuisance, the liability of the owner of a building for damages sustained by a trav- eler on the highway, due to the fall of an awning attached to the building, is to be determined upon the principles of negli- gence, in accordance with the maxim, Res ipsa loquitur, and not upon the doctrine of insurance of safety. Waller v. Ross, 12: 721, 110 N. W. 252, 100 Minn. 7. (Annotated) 294. One not, acting under legislative au- thority maintains an awning over a pub- lic sidewalk at his peril; and a traveler in- jured thereby who is himself free from blame may hold the owner of the awning liable for the injury, regardless of the ques- tion of negligence in its construction and maintenance. McCrorey v. Garrett, 24: 139, 64 S. E. 978, 109 Va. 645. (Annotated) 295. The mere fall of an ornamental bracket from a building, to the injury of a person on the adjoining sidewalk, is not evidence of negligence on the part of the owner of the building. Joyce v. Black, 27: 863, 75 Atl. 602, 226 Pa. 408. Building materials. Right to place building materials in street, see supra, 77. 296. The lawful placing, under the right of the abutting property owner, of building materials in the street, does not destroy its public character, so as to render persons thereon trespassers, and absolve employees of the abutting owner from the duty of ex- ercising ordinary care towards them. Compty v. C. H. Starke Dredge & Dock Co. 9: 652, 109 N. W. 650, 129 Wis. 622. Defects in sidewalk. Municipal liability, see supra, IV. a, 6. As to coal hole or trap door in, see infra, 307-309, 317-320. 297. Nothing short of language unmistak- ably creating a liability of the owner or oc- cupant of premises in front of which a side- walk is located, for damages to person or property caused by the insufficiency of such walk, and making such liability supersede to any extent that of the city under Wis. Rev. Stat. 1898, 1339, requiring written notice of an injury to be served upon the city within fifteen days, can legitimately be given that effect. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 298. A city-charter provision making it the duty of the owners or occupants of premises in front of which sidewalks are lo- cated to keep such walks in repair or pay the expenses incurred by the municipality in doing so, does not impliedly make such, owners or occupants liable to travelers for injuries occasioned by the walks being out of repair. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. (Annotated) 299. Charter provisions making- it the duty of owners or occupants of premises to keep the sidewalks in front of their premise* . 'f. ;; > . A . H ..> - >" - 1 .t * a* a HIGHWAYS, IV. b, 3. 1405 in repair, or pay the expenses incurred by the city in doing so, and declaring, in case of ^an injury to person or property by reason of a defect in a sidewalk, arising from the wrong, default, or negligence of any person but for which the city would be liable, that the guilty person shall be primarily liable therefor, do not give rise to any liability, either public or private, to one injured by reason of a defective sidewalk ; but responsi- bility for the results to person or property from faulty construction of sidewalks or want of repair rests wholly on Wis. Rev. Stat. 1898, 1339, while responsibility for the results to person or property of active wrong-doing creating a nuisance rests on the common law. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. Ice on sidewalk. Municipal liability as to, see supra, 244-254. Excluding from evidence photograph in ac- tion for injuries on, see APPEAL AND ER- BOR, 516. Presumption of negligence as to, see EVI- DENCE, 322. Injury by ice on private way, see PRIVATE WAY, 2. 300. A property owner who, for a period of two weeks, knowingly permits ice formed from water discharged by a leader from his building, to remain in ridges and lumps upon the adjoining sidewalk, is liable for injury to a pedestrian who falls in attempt- ing to pass over it. Striger v. Deickinan, 51: 309, 164 S. W. 931, 158 Ky. 337. (Annotated) 301. The occupant of property owes no duty to pedestrians to keep the sidewalk in front of it free from ice and snow coming thereon from natural causes, or to guard against the risk of accident by scattering ashes or using other like precautions, wheth- er or not any public duty is imposed upon him bv municipal ordinances. Dahlin v. Walsh/ 6: 615, 77 N. E. 830, 192 Mass. 163. ( Annotated ) 302. One who casts water upon a sidewalk so as to form ice dangerous to pedestrians is liable for injury caused thereby, although water from other sources contributes to the dangerous condition. Hvnes v. Brewer, 9: 598, 80 N. E. 503, 194 Ma"ss. 435. 303. One who continues a condition cre- ated by his grantor, which collects surface water into an artificial channel and turns it across the sidewalk so that it forms ridges of ice, is liable to a pedestrian who, in the exercise of due care, falls thereon to his in- jury; and it is immaterial that the condi- tion has existed for fifty years. Hynes v. Brewer, 9: 598, 80 N. E. 503, 194 Mass. 435. (Annotated) . 304. A property owner who throws water from his roof, by means of a spout, onto his walk in such a manner that by the natural slant it flows to a public walk, where it freezes and renders the walk unsafe, is lia- ble for injuries thereby caused to a pedes- trian who is himself in the exercise of due care. Field v. Gowdy, 19: 236, 85 N. E. 884, 199 Mass. 568. 305. That a town has negligently left a Digest 1-52 L.K.A.(N.S.) depression in a sidewalk will not relieve from liability for injuries to a pedestrian who falls on ice there accumulated, the abut- ting owner who negligently turns water col- lected from his roof onto the walk, and thereby contributes to the injury. Field v. Gowdy, 19: 236, 85 N, E. 884, 199 Mass. 568. "Water dripping from roof. Evidence to show negligence in casting wateV on walk, see EVIDENCE, 1770. 306. A property owner who, in the exer- cise of ordinary prudence, has reasonable notice that water from his roof, in conjunc- tion with any other cause, produces a dan- gerous condition upon a public sidewalk, is responsible for the injury thereby caused. Field v. Gowdy, 19: 236, 85 N. E. 884, 199 Mass. 568. Vault under walk; coal holes; trap doors. Effect of lease, see infra, 317-320. Sufficiency of notice of, see infra, 388a, 389. Recovery over, by property owner against one primarily liable, see CONTRIBUTION AND INDEMNITY, 14, 15. Evidence as to, see EVIDENCE, 1870. Sufficiency of evidence to show knowledge by property owner of dangerous condi- tion of coal hole, see EVIDENCE, 2169. Liability of infant for negligence of servant as to, see INFANTS, 63. See also supra, 172; CONTRIBUTION AND IN- DEMNITY, 10. I . .v 307. A property owner is bound to use reasonable care to keep a covering to a hole under the sidewalk in safe condition, although it is next to the building and out of the regular line of travel. McLaugWin v. Kelly, 50: 305, 79 Atl. 552, 230 Pa. 251. 308. Trustees of a church are not bound to keep the covering of an opening leading from the sidewalk to the cellar of the church safe for persons who attempt to make use of it to look into the church win- dows. Louisville v. Hayden, 46: 1193, 157 S. W. 4, 154 Ky. 258. 309. The owner of a coal hole in a side- walk, and a coal company using it to put coal into the building, each owes the duty to travelers upon the walk to exercise due care to prevent their falling into the hole, of which neither is relieved by the duty of the other. French v. Boston Coal Co. n: 993, 81 N. E. 265, 195 Mass. 334. (Annotated) Acts of independent contractor. Municipal liability, see supra, 223, 224. Liability of contractor, see infra, IV. b, 4. Sufficiency of complaint, see PLEADING, 289. b. Effect of lease. (See also same heading in Digest L.R.A. Liability of tenants, see supra, 269, 270. Necessity of notice, see infra, 384, 385. Joinder of lessor and lessee with munici- pality in action for injury, see PARTIES, 201. 1406 HIGHWAYS, IV. b, 4. 310. A property owner who, when letting the building, retains control of the con- ductor pipe, is liable for injury to a pedes- trian on the adjoining sidewalk by the fall of ice from a defect in the pipe, if he has permitted the defect to exist for a long period of time. Brewer v. Farnam, 50: 312, 94 X. E. 695, 208 Mass. 448. (Annotated) 311. One who lets property with a gate swinging across the sidewalk contrary to the provisions of an ordinance is liable for injury to a pedestrian who comes in con- tact with the gate when attempting to pass the property on a dark night. Knight v. Foster, 50: 286, 79 S. E. 614, 163 N. C. 329. (Annotated) Ice on side-walk. Liability of abutting owner generally, see supra, 300-305. Landlord's liability for ice on private way, see LANDLORD AND TENANT, 129. 312. Although, contrary to statute, a property owner lets the property with a conductor pipe casting the water on the sidewalk, so as to create a nuisance in freez- ing weather, he will not be liable for in- jury to a pedestrian therefrom, if the lease gave the tenant the right to make such alterations and repairs as he deemed ex- pedient, and obligated him to save the land- lord harmless from any claim arising from neglect to remove snow and ice from the walks. Cerchione v. Hunnewell, 50: 300, 102 N. E. 908, 215 Mass. 588. (Annotated) 313. A property owner cannot escape lia- bility for injury to a pedestrian through ice formed on the sidewalk from water cast thereon from a pipe constructed by him, because at the time of the injury the prop- erty was in possession of a tenant. Ma- loney v. Hayes, 28: 200, 91 N. E. 911, 206 Mass. 1. (Annotated) Fall of snow from roof. 314. A landlord, although not equipping his building with such leader pipes and con- ductors as a statute requires, is not liable for an injury caused by snow and ice fall- ing therefrom, where the tenant who al- lowed them to accumulate had complete con- trol over the entire building under a lease requiring him to repair and to hold the landlord harmless from damage claims for failure to remove snow and ice from the roof and sidewalks. Coman v. Alles, 14: 950, 83 N. E. 1097, 198 Mass. 99. Fall of water pipe. 315. The owner of a building abutting on a sidewalk, upon which is insecurely fast- ened a pipe to carry water, is not absolved from liability for injury to a person on the walk by the fall of the pipe, by the fact that the building was in possession of a tenant who had obligated himself to keep the build- ing in repair. Mitchell v. Brady, 13: 751, 99 S. W. 266, 124 Ky. 411. 316. That a person injured on a sidewalk by the fall of a pipe insecurely fastened to a building abutting thereon lived in the building will not prevent his holding the owner and the tenant responsible for the condition of the exterior walls, liable for Digest 1-52 L.R.A.(N.S.) the injury. Mitchell v. Brady, 13: 751, 99 S. W. 260, 124 Ky. 411. Grate; coal holes; trap doors. Liability of abutting owner generally, see supra, 307-309. Necessity of notice, see infra, 384. Evidence of conversation between tenant and one collecting rent, as to repairing de- fective coal hole, see EVIDENCE, 2019. Joinder of parties defendant, see PARTIES, 201. See also supra, 260, 261. 317. A property owner who renews a lease at a time when a grating in the adjoining sidewalk is in a defective condition is liable for subsequent injury to a pedestrian through the giving way of the grating. McLaughlin v. Kelly, 50: 305, 79 Atl. 552 r 230 Pa. 251. 318. A property owner who lets the prop- erty with a defective coal hole in the side- walk is not relieved from liability for in- jury to pedestrians by falling into it by the fact that the lessee covenants to yield up the property in good tenantable repair in all respects, since, if it required him to repair this defect, he need not have done so until just prior to the expiration of the lease. Hill v. Hayes, 18: 375, 85 N. E. 434, 199 Mass. 411. 319. A property owner is liable for injury to a pedestrian on a sidewalk who falls through a defective coal hole therein, where he negligently lets the premises with the hole in such a condition as to be dangerous to persons lawfully using the highway. Hill v. Hayes, 18: 375, 85 N. E. 434, 199 Mass. 411. 320. The owner of a building for the bene- fit of which trapdoors are placed in the side- walk is bound to maintain the doors so that they will be reasonably safe for pedes- trians, where he retains control of the build- ing and its maintenance, although portions of it are let to tenants. Seattle v. Puget Sound Improv. Co. 12: 949, 91 Pac. 255, 47 Wash. 22. 4. Contractors. (See also same heading in Digest L.R.A. 1-10.) Abutting owner's liability for negligence of, see supra, 290. Liability on bond, see BONDS, 23, 24. Presumption of negligence in construction of sidewalk, see EVIDENCE, 443. Evidence of previous cave-in, see EVIDENCE, 1854. Sufficiency of evidence to show negligence, see EVIDENCE, 2167, 2168. Conclusiveness of judgment against contrac- tor, see JUDGMENT, 192. Who are independent contractors, see MAS- TER AND SERVANT, 1036. Sufficiency of complaint, see PLEADING, 289. See also supra, 284. 321. Persons who have contracted to deepen a railway cut across a highway in accordance with legislative authority are HIGHWAYS, IV. b, 5, 6. 1407 bo 'id to act reasonably and with due re- gard for the rights of persona lawfully us- ing the highway. Heinmiller v. Winston, 6: 150, 107 N. W. 1102, 131 Iowa, 32. 322. Where a county is not liable for in- juries caused by defects in its highways, one who contracts with it for tiie construction of a highway is not liable for injuries to a traveler caused by his leaving an open, un- guarded ditch therein during the progress of the work, which made it unsafe for pub- lic travel. Schneider v. Cahill, 27: 1009, 127 S. W. 143, Ky. . (Annotated) 323. An independent contractor for the construction of a public drain, who wrong- fully renders a public highway dangerous for travel by dumping the earth excavated from the drain thereon, is liable in damages to a traveler who, without fault on his part, is injured in consequence of the unlawful obstruction. Solberg v. Schlosser, 30: mi, 127 N. W. 91, 20 N. D. 307. 324. One undertaking to repair a side- walk for a property owner without super- vision, or direction, from him, is liable to him for any sum he is required to pay be- cause of injury to a pedestrian due to fail- ure to place proper signals or barriers to protect the public from injury after dark, whether he is an independent contractor, or a mere employee. Kampmann v. Rothwell, 17: 758, 109 S. W. 1089, 101 Tex. 535. 5. Railroads. (See also same heading in Digest L.R.A. 1-10.) Contributory negligence of person injured, see infra, 354. Recovery over by city held liable for in- jury, against railroad company, see APPEAL AND ERROR, 1137; CONTRIBU- TION AND INDEMNITY, 8, 9, 12. Collusiveness on railroad company respon- sible for accident of judgment against city, see JUDGMENT, 200, 201. Employer's liability for injury at defective crossing put in by independent contrac- tor, see MASTER AND SERVANT, 991. Municipal ordinance requiring railway flag- man at street crossing, see MUNICIPAL CORPORATIONS, 71. Who may maintain action on railroad's agreement to keep street in repair, see PARTIES, 97. Sufficiency of allegations as to, see PLEAD- ING, 321. Injury by trains at crossings, see RAIL- ROADS, II. d, 3. Liability for frightening horse, see RAIL- ROADS, II. d, 5. Liability of railroad company for frighten- ing horse notwithstanding contributory negligence of driver, see NEGLIGENCE, 293. Question for jury as to whether defect in highway crossing caused injury, see TRIAL, 170. Negligence as question for jury, see TRIAL, 434, 435. 325. The assumption by a railroad corn- Digest 1-52 L.R.A.(N.S.) pany of a charter duty to keep highway crossings .in repair creates a liability for failure to do so, and gives a common-law right of action in favor of one damaged thereby. Milton v. Bangor R. & Electric Co. 15: 203, 68 Atl. 826, 103 Me. 218. 326. The common-law liability of a rail- road company for injury caused by a de- fective crossing is not affected by a charter provision exempting it from liability unless it has twenty-four hours previous notice of the defect, and has received notice of injury within fourteen days afterwards; the legis- lature not being empowered to exempt any particular person or corporation from the operation of a general law, statutory or common. Milton v. Bangor R. & Electric Co. 15: 203, 68 Atl. 826, 103 Me. 218. (Annotated) 327. A statute which provides that it shall be the duty of a railroad which crosses a highway to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossings in good order, under a penalty to be recovered by action in the name of the county, has the effect to give an individual injured by its violation a right of action therefor; and such violation is negligence per se. Strait v. Yazoo & M. V. R. Co. 49* 1068, 209 Fed. 157, 126 C. C. A. 105. 6. Street railways. (See also same heading in Digest L.R.A. 1-10.) As to contributory negligence of person in jured, see infra, 340. Presumption of negligence from fall of elec trie wire, see EVIDENCE, 411. Evidence of previous accidents, see EVI- DENCE, 1856, 1857. Liability for injury by street car, see STREET RAILWAYS, III. b. Question for jury as to negligence, see TRIAL, 440. 328. It is the duty of a trolley company which applies a lubricant to its tracks along a public street in order that its cars may pass around a curve more easily, to make the application in such a manner as not to endanger the safety of persons enti- tled to use the street. Slater v. Nortl> Jersey Street R. Co. (N. J. Err. & App.> 15: 840, 69 Atl. 163, 75 N. J. L. 890. (Annotated) 329. Consent granted pursuant to stat- ute for the construction, maintenance, and operation of a street railway along a high- way does not warrant the construction and maintenance within the limits of the high- way as laid out, but outside of the traveled way, of an open trestle trolley bridge that, in design and construction, is dangerous to ordinary travel, and calculated to entrap and kill horses and other animals which may reasonably be expected to attempt to pass over it. Opdycke v. Public Service R. Co. (N. J. Err. & App.) 29: 71, 76 Atl 1032, 78 N. J. L. 576. 1408 HIGHWAYS, IV. c. 330. Negligence cannot be imputed to a street car company merely because the wheel of a carriage passing along the street falls into a cable slot. Miller v. United R. & E. Co. 17: 978, 69 Atl. 636, 108 Md. 84. 331. A municipal ordinance requiring street railways to keep the space covered by their tracks in thorough repair does not make them insurers of the safety of passen- gers using such portion of the street. Miller v. United R. & E. Co. 17: 978, 69 Atl. 636, 108 Md. 84. 332. A street car company, although not bound to remove and replace a barriei which guards an excavation made by a stranger across its tracks, is liable in case it assumes to remove the barrier and neglects to replace it, to a traveler on the highway who falls into the excavation in the dark, and is injured, because of the absence of the barrier. Dix v. Old Colony Street R. Co. 24: 567, 89 N. E. 109, 202 Mass. 518. c. Contributory negligence. (See also same heading in Digest L.R.A 1-10.) Failure to instruct as to effect of negligence of plaintiff's driver, see APPEAL AND ERROR, 1412. Of person injured by automobile, see AUTO- MOBILES, II. b; NEGLIGENCE, 213. On bridge, see BRIDGES, 20-23. Of person injured by electricity, see ELEC- TRICITY, 83, 84. Presumption and burden of proof as to, see EVIDENCE, 488-491. Relevancy of evidence as to, see EVIDENCE, 1797. Effect of carrying explosive from highway before explosion, see EXPLOSION AND EXPLOSIVES, 2. Of person in failing to protect property against danger from inflammable mate- rial deposited in street, see FIRES, 25. Of person injured otherwise than by defects, see NEGLIGENCE, II. c. Of parents in permitting child to be on street, see NEGLIGENCE, 231. Imputing negligence of driver to passenger, see NEGLIGENCE, 264, 270. Allegation of freedom from, see PLEADING, 349. As proximate cause of injury, see PROXI- MATE CAUSE, 164. At railroad crossing, see RAILROADS, II. e, 2. Of person injured by street car, see STREET RAILWAYS, III. c. Question for jury as to, see TRIAL, 170, 217, 423, 424/426-429, 770. Taking case from jury because of, see TRIAL, 680, 681. Instructions as to, see TRIAL, 900. See also supra, 164, 256. 333. To hold a town liable for injuries due to a defect in the highway, the traveler must show affirmatively that he was in the exercise of due care. Tripp v. Wells, 18: 1145, 70 Atl. 533, 104 Me. 29. Digest 1-52 L.R.A.(N.S-) 334. A citizen has the right to assume that the street is in a reasonably safe con- dition for travel, and is not, as a matter of law, guilty of negligence in attempting to run across the street, in the usual manner, in order to catch a car. Nessen v. New Orleans, 51 : 324, 64 So. 286, 134 La. 455. 335. While persons traveling on a public highway in the nighttime are required to exercise such ordinary care and caution as a reasonably prudent man would exercise under the circumstances, and in view of the darkness, they have the right, in the absence of knowledge to the contrary, to act on the assumption that such highway is in a rea- sonably safe condition for travel by night as well as by day, and are not bound to anticipate dangerous defects therein with- out some notice or other precaution taken for their protection. Daniels v. County Court, 37: 1158, 72 S. E. 782, 69 W. Va. 676. 336. A traveler upon a highway who knowingly or carelessly departs from a known safe way and goes heedlessly across the street and beyond its limits and upon the land of an abutting owner and is there injured by falling over a retaining wall, is guilty of contributory negligence barring recovery for such injuries. Mineral City v. Gilbow, 25: 627, 90 N. E. 800, 81 Ohio St. 263. 337. One is not precluded, as matter of law, from recovering for injuries caused by a temporary obstruction in a highway, by the fact that it could have been seen if he had looked, where his attention was diverted from the surface of the street by an attempt to reach a street car. Keith v. Worcester & B. Valley Street R. Co. 14: 648, 82 N. E. 680, 196 Mass. 478. 338. One who leaves a horse attached to a wagon, standing unhitched in a public highway, and without having the lines with- in reach, cannot recover for injuries caused by a collision with an obstruction in the highway, in case the horse runs away. Den- ver v. Utzler, 8: 77, 88 Pac. 143, 38 Colo. 300. (Annotated) 339. One who, in attempting to drive across a culvert after dark, goes over the end of it to his injury, does not show that he was not inattentive and careless so as to prevent his holding the town liable for the injury, where he merely states that he drove into the highway and drove along supposing he was in the middle of the road until he found himself tumbling. Tripp v. Wells, 18: 1145, 70 Atl. 533, 104 Me. 29. 340. One crossing a public street at a point where a pavement crossing has been laid has a right to assume, unless warned to the contrary, that it is a safe place to walk over, and is not guilty of contributory negligence because, in attempting to avoid an approaching car, she inadvertently stepa upon a portion of the crossing covered with oil put there by the street car company as a track lubricant, and is thrown down and injured. Slater v. North Jersey Street R. Co. (N. J. Err. & App.) 15: 840/69 Atl. 163, 75 N, J. L. 890. HIGHWAYS, IV. c. 1409 341. It is not, as between a pedestrian and a municipality which has negligently left the catch-basin at the end of a culvert unguarded, negligence per se to walk upon the left side of the street, nor, for the purpose of avoiding a rapidly approach- ing vehicle, to turn to the left, so as to preclude recovery for the injuries sustained while so doing by falling into such opening. Neidhardt v. Minneapolis, 29: 822, 127 N. W. 484, 112 Minn. 149. 342. A pedestrian, in using a public side- walk, must be observant and careful how he is going, so as to avoid dangers which or- dinary prudence would disclose, although he is not required to keep his eyes fastened on the ground continually to discover points of possible danger, or even exposed pitfalls ly- ing directly in his path. Lerner v. Phila- delphia, 21 : 614, 70 Atl. 755, 221 Pa. 294. 343. A pedestrian cannot hold the munic- ipality liable for injury received in broad daylight through a defect in a sidewalk, if there was nothing outside of himself to pre- vent his seeing the defect, or which will ex- cuse his failure to observe it. Lerner v. Philadelphia, 21:614, 70 Atl. 755, 221 Pa. 294. ( Annotated ) 344. A pedestrian is not bound to make a critical examination of a grating in a side- walk before stepping upon it. McLaughlin v. Kelly, 50: 305, 79 Atl. 552, 230 Pa. 251. 345. A city is not liable for death, by the operation of a properly constructed eleva- tor in the sidewalk, of a boy who, traveling on the sidewalk and seeing the elevator in use and raised, projected his head and shoulders under the upper part of the ele- vator, and was killed by its descent. Post v. Clarksburg, 52: 773, 81 S. E. 562, W. Va. . 346. A person walking upon a public street of a village has a right to presume that anything placed thereon by the village authorities is harmless, unless its appear- ance shows it to be otherwise, or unless he has notice of its dangerous character. Pal- estine v. Siler, 8: 205, 80 N. E. 345, 225 111. 630. 347. A pedestrian who attempts to walk along a gutter by the side of the roadway is bound to exercise ordinary care to avoid the sewer inlets which may lead from the gutter. Mitchel v. Richmond, n: 1114, 57 S. E. 570, 107 Va. 193. 348. A pedestrian who leaves a sidewalk merely because it is wet and muddy, and attempts to walk along the gutter, cannot hold the municipality liable for injuries due to falling into an unprotected sewer open- ing. Mitchel v. Richmond, u: 1114, 57 S. E. 570, 107 Va. 193. (Annotated) 349. One attempting to use a platform in a street for entrance to a show connected with .1 street fair is required to use such degree of care and caution for his safety as reasonably prudent persons would use un- der all the circumstances of the case. Van Cleef v. Chicago, 23: 636, 88 N. E. 815, 240 111. 318. 350. The mere presence of ice on a side- trian that, by the exercise of proper care, he cannot pass over it in safety. Holbert v. Philadelphia, 20: 201, 70 Atl. 746, 221 Pa. 266. 351. A teamster who attempts to use a sidewalk along a freight depot as a drive- way to reach the depot takes the risk of in- jury from its being unsafe for that purpose. Webster v. Vanceburg, 19: 752, 113 S. W. 140, 130 Ky. 320. 352. A pedestrian is negligent in tripping and falling over a billboard which bad been thrown upon the sidewalk in the process of removing it from its location adjoining such walk, so as to prevent his holding the owner of the board liable for his injury, where it was plainly visible, so that the most casual glance would have disclosed its presence and location, although snow was falling and blowing in his face at the time. Ryan v. Foster, 21:969, 115 N. W. 595, 137 Iowa, 737. 353. The driver of a horse approaching an appliance which a telephone company is lawfully using in a highway is bound to foresee that the horse may be frightened at it, and to take measures to avoid or pre- vent the possible consequences. Simonds v. Maine Teleph. & Teleg. Co. 28: 942, 72 Atl. 175, 104 Me. 440. 354. A railroad company is not liable for injury to one who voluntarily turns aside from a crossing over the track, left unsafe by the company, and attempts to make the crossing over the unprotected rails, and is thrown from his wagon by the unevenness of the crossing place. Moore v. Great Northern R. Co. 28: 410, 107 Pac. 852, 58 Wash. 1. Effect of previous knowledge of de- fect. See also supra, 350. 355. That it is not negligence per se to use a highway known to be in bad condi- tion does not imply a right in a traveler to compensation for injuries recklessly in- curred, nor freedom from duty to suffer rea- sonable abatement of strict legal rights in respect to highways and take reasonable measures for his safety, even to the extent of some delay and effort to avoid injury. Shriver v. Marion County Ct. 26": 377, 66 S. E. 1062, 66 W. Va. 685. 356. One who, with full knowledge, un- necessarily attempts to pass over an open and apparent defect in a highway, to his injury, is guilty of contributory negligence as matter of law. Shriver v. Marion Coun- ty Ct. 26: 377, 66 S. E. 1062, 66 W. Va. 685. 357. One who, because of no safe and available way, is justified in assuming the risk incident to an attempt to pass over a known defect in a highway, is required to exercise no more than ordinary care for his safety in so doing. Shriver v. Marion Coun- ty Ct. 26: 377, 66 S. E. 1062, 66 W. Va. 685. 358. Knowledge of the dangerous condi- tion of a highway imposes a duty upon a walk is not sufficient to admonifjh a pedes- traveler to exercise such care as the circum- Digest 1-52 L.R.A.(N.S.) 89 1410 HIGHWAYS, IV. c. stances demand. Solberg v. Schlosser, 30: u 1 1, 127 N. W. 91, 20 N. D. 307. 359. The mere fact that one attempting to drive along a highway on a dark rainy night knew that granite blocks had been left lying adjacent to the macadamized portion of the way, at a certain point, does not establish contributory negligence on his part as matter of law, in coming into col- lision with them. Blankenship v. King County, 40: 182, 122 Pac. 616, 68 Wash. 84. 360. One who has passed along a street four or five times in daylight, and knows that it is in an unfinished and dangerous condition, due to paving operations, is guil- ty of contributory negligence as matter of law, where he attempts to cross the street on a dark, rainy night, and sustains injuries by falling on uneven ground. Slaughter v. Huntington, 16: 459, 61 S. E. 155, 64 W. Va. 237. (Annotated) 361. It is negligence as matter of law for one fully cognizant of the facts to attempt to cross the streets by climbing over an obstruction between the pavement and the curbing of a sidewalk, when a few steps in either direction would have carried him around the obstruction. Woodson v. Metro- politan Street R. Co. 30: 931, 123 S. W. 820, 224 Mo. 685. 362. It is not negligence, as a matter of law, for a person to drive upon a danger- ous or defective highway, knowing it to be such, unless the dangerous or defective condition is such that a person of ordinary prudence would not attempt to drive over it. Solberg v. Schlosser, 30: mi, 127 N. W. 91, 20 N. D. 307. 363. A traveler is not required to forego traveling upon a sidewalk merely because he has knowledge that it is in a somewhat defective condition. He has, as a general rule, a right to assume that it is safe; and, when he is injured as a consequence of a defect of which he had previous knowledge, the mere fact of his previous knowledge does not per se establish contributory neg- ligence. Jackson v. Grand Forks, 45: 75, 140 N. W. 718, 24 N. D. 601. 364. Mere knowledge of the icy condition of a sidewalk leading under a railroad track which is kept open and maintained for trav- el by the municipality will not preclude one from using the walk without assuming the risk of its dangerous condition. Holbert v. Philadelphia, 20: 201, 70 Atl. 746, 221 Pa. 266. 365. One who attempts to use a sidewalk knowing that it is dangerous and can be used without accident only by the use of extreme care, while a perfectly safe road- bed lies beside it, is so negligent that he cannot hold the municipality liable in case he is injured by a defect in the walk. Gib- son v. Denison, 38: 644, 133 N. W. 712, 153 Iowa, 320. 366. One walking on a narrow cinder path at the side of a city street in the dark, knowing that stakes were driven between the path and the roadway to keep vehicles off the path, cannot hold the city liable for injury caused by tripping over a stake, be- Digest 1-52 L.R.A.(N.S.) cause he momentarily forgot its presence, or failed to pay attention to what he wa doing, with nothing to distract his atten- tion from it. Knoxville v. Cain, 48: 628, 159 S. W. 1084, 128 Tenn. 250. ( Annotated ) 367. That a pedestrian knowing of the de- fective and decayed condition of a box drain which runs under the sidewalk at- tempts to pass over it is not incompatible with his being found to have exercised the care which a reasonably prudent person would have exercised in passing along the walk. City Council of Montgomery v. Com- er, 21 : 951, 46 So. 761, 155 Ala. 422. 368. A pedestrian is negligent, as matter of law, who, upon a clear day, with nothing to obstruct her vision, stumbles over a place in the sidewalk where one paving stone is raised 4 inches above the adjoining one, which fact she is well acquainted with. Kennedy v. Philadelphia, 17: 194, 69 Atl. 748, 220 Pa. 273. (Annotated) Effect of drunkenness. 369. Although a municipal corporation is not relieved from liability for injury result- ing from a defective street by the mere fact that the injured person was drunk at the time of the accident, yet he cannot recover for his injury if it was due to the fact that his condition was such that it prevented him from using the care to protect himself from harm that an ordinarily prudent person would have exercised under the same cir- cumstances if sober. Covington v. Lee, 2: 481, 89 S. W. 493, 28 Ky. L. Rep. 492. (Annotated) Defective eyesight. 370. In determining whether or not one injured by an obstruction in a highway was in the exercise of ordinary care, due con- sideration should be given to the fact that his sight was defective, so that common prudence would require more care and keen- er watchfulness in walking about the streets than is required of a person of good sight. Keith v. Worcester & B. Valley Street R. Co. 14: 648, 82 N. E. 680, 196 Mass. 478. (Annotated) 371. A pedestrian whose eyesight is poor and who is walking along a sidewalk carry- ing a basket on his head has a right to as- sume, within reasonable limits, that, if the street has been made unsafe by reason of an excavation, those who made it will warn him of the fact or protect him from danger. Rock v. American Constr. Co. 14: 653, 45 So. 741, 120 La. 831. Fast driving. 372. One who drives his automobile on a dark rainy night over a straight stretch of strange country road, at such speed that he is unable to stop within a distance that he may clearly see an obstacle in the path, is negligent. Lauson v. Fond du Lac, 25: 40, 123 N. W. 629, 141 Wis. 57. 373. It is negligence on the part of a driver of an automobile to attempt to run the machine over a strange road on a dark night, without light sufficient to enable him to see obstacles ahead of him in time to HIGHWAYS, IV. d, 1. 1411 avoid them. Lauson v. Fond du Lac, 25: 40, 123 N. W. 629, 141 Wis. 57. (Annotated) d. Notice. 1. Of defects. (See also same heading MI Digest L.R.A. 1-1 Q.) Effect of notice on contributory negligence, see supra, 355-368. See also supra, 188. 374. Complaint to a city official of the condition of a walk does not charge the city with notice of a condition to which the complaint did not relate. Beirness v. Mis- souri Valley, 51:218, 144 N. W. 628, 162 Iowa, 720. 375. Notice to the town clerk of a defect in a highway is not sufficient to charge the township with liability for an accident be- cause of it, if the responsibility for the condition of the highway is by statute placed upon the highway commissioners. Flansburg v. Elbridge, 41 : 546, 98 N. E. 750, 205 N. Y. 423. Necessity of. Prejudicial error in instruction as to, see APPEAL AND ERROR, 1341. Of defect in electric wiring, see ELECTRICITY, 51. 376. The legislature may make the giving of written notice to the municipal author- ities of the defective condition of the street prior to the happening of an accident a con- dition precedent to holding the municipal- ity liable for injuries caused by such de- fect. MacMullen v. Middletown, n: 391, 79 N. E. 863, 187 N. Y. 37. (Annotated) 377. The legislature may legally provide that ten days' written notice to the city, prior to the accident, of the existence of a defect in a street or sidewalk, shall be a condition precedent to liability for damages caused thereby to individuals. Shigley v. Waseca, 19: 689, 118 N. W. 259, 106 Minn. 94. 378. A statute providing that cities shall be absolutely exempt from liability for in- juries caused by defects in their public ways unless actual notice in writing of the defect shall have been filed with the city clerk at least five days before the occur- rence of the injury complained of does not apply to defects caused by the city itself in negligently constructing a sewer in one of its streets. Updike v. Omaha, 30: 589, 127 N. W. 229, 87 Neb. 228. 379. Where a sidewalk is rendered tem- porarily dangerous by the positive, negli- gent act of a city of the first class, and a person in passing over it, immediately or within less than five days thereafter, and in the absence of contributory negligence, receives a personal injury, a statutory pro- vision requiring five days' notice of the dangerous condition of the walk to be given the city before the accident is inapplicable; and the city is liable for damages sustained Digest 1-52 KR.A.(N.S.) by the person injured. Tewksbury v. Lin- coln, 23: 282, 121 N. W. 994, 84 Neb. 571. (Annotated) 380. Although a municipal corporation has no actual notice of the danger of a sign suspended above the sidewalk, yet if it failed to use ordinary diligence in de- termining this danger, it is liable for in- juries suffered by a pedestrian through the fall of the sign. Purcell v. Stubblefield, 51: 1077, 139 Pac. 290, 41 Okla. 562. ( Annotated ) 381. To hold a municipal corporation lia- ble for injury caused by a pile of lumber stored in the street, it must have had notice of its existence. Dougherty v. St. Louis, 46: 330, 158 S. W. 326, 251 Mo. 514. 382. A city is not liable for injuries to a person on a sidewalk by the fall of a con- ductor pipe from a building abutting OB the walk, where there is nothing to show that it had notice of the dangerous condi- tion of the pipe. Mitchell v. Brady, 13: 751, 99 S. W. 266, 124 Ky. 411. 383. A municipal corporation is not liable for injury to a pedestrian through the col- lapse, under his weight, of a flagstone form- ing part of the covering of a culvert across a street, which is found to have been cracked, if it had no notice of the defect and could not, by the exercise of reasonable care, have known of it in time to remedy it before the injury. Corbin v. Benton, 43: 591, 152 S. W. 241, 151 Ky. 483. 384. An owner of property who visits it monthly for twenty years to collect rent is liable for injury to a pedestrian through 'the giving way of a grating in the side- walk, which had been defective for several years, whether he actually saw the defec- tive condition or not, since it was his duty to know its condition. McLaughlin v. Kelly, 50: 305, 79 Atl. 552, 230 Pa. 251. ( Annotated ) 385. Actual notice to the property owner of a defect in a conductor pipe which causes ice to form and fall onto the sidewalk below is not necessary to render him liable to a passer-by injured by a fall of ice, although the building is in possession of tenants, if he retains control of the property. Brewer v. Farnam, 50: 312, 94 N. E. 695, 208 Mass. 448. Implied. Question whether defect had existed for such a length of time as to charge munici- pality with notice, see TRIAL, 211. 386. The presence for three and a half months of a %-inch iron "goose neck" ex- tending but a few inches above a sidewalk near the curb is not sufficient to charge a city with notice of its existence as a matter of law, the obstruction not being of such a character as necessarily to attract atten- tion. Diamond Rubber Co. v. Harryman, 15: 775, 92 Pac. 922, 41 Colo. 415. 387. The accumulation of ice and snow on a walk during the whole of a winter is sufficient notice to the municipality of the condition. Jackson v. Grand Forks, 45: 75, 140 N. W. 718, 24 N. D. 601. 388. Where, in an action against a mu- 1412 HIGHWAYS, IV. d, 2. nicipality for injuries from a fall on an icy sidewalk on Wednesday morning, it is shown that, on the preceding Sunday and Monday, there had been a fall of snow, and that between Sunday and Tuesday evening there had been a slight thaw, and on Tues- day night an additional snowfall of about one-half inch, there is nothing to warrant a jury in the conclusion that a small spot of ice covered with snow on the walk had existed for such time as would charge the city with notice of it. Beirness v. Missouri Valley, 51:218, 144 N. W. 628, 162 Iowa, 720. 388a. That a grating over a hole in a side- walk has been supported by the same wood- en frame for twenty years, to the knowledge of the owner of the abutting property, is sufficient to charge him with notice "that inspection might show that the support should be replaced. McLaughlin v. Kelly, 50: 305. 79 Atl. 552, 230 Pa. 251. 389. A property owner may be charged with notice of a defective condition of the supports of a grating in the adjoining sidewalk from evidence that they had been in a defective condition for ten or fifteen years. McLaughlin v. Kelly, 50: 305, 79 Atl. 552, 230 Pa. 251. 2. Of injuries. (See also same heading in Digest L.R.A. 1-10.) Of injury on defective bridge, see BRIDGES, -L7 . Constitutionality of statute as to, see CON- STITUTIONAL LAW, 166. See also supra, 257, 297; MUNICIPAL CORPO- RATIONS, 468-470. 390. A charter provision prohibiting the enforcement of a right to compensation for an injury sustained upon a defective side- walk, except by presentation of a claim to the city council, and, in case of adverse ac- tion, an appeal to the circuit court, regulates the remedy, and is permissible under the rule that the legislature may take away the ordinary remedy for the enforcement of a right, so long as it affords another which is adequate. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 391. A charter provision that no action shall be maintained against the city to en- force any tortious liability, unless a notice in writing signed by the person injured or claiming to be injured, of the wrong, and the circumstances thereof, and the amount of damages claimed, shall be presented to the council within ninety days after the occur- rence creating the damages, bears on the remedy, and is a statute of limitations. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 392. A statutory provision requiring no- tice to the municipality before it shall be liable for injuries alleged to have been suf- fered "by reason of any defect in any side- Digest 1-52 L.R.A.(N.S.) walk" applies in case of injury by a walk defective because of an uneven accumulation of snow and ice thereon. Tonn v. Helena, 36: 1136, 111 Pac. 715, 42 Mont. 127. 393. Knowledge by municipal authorities of an unsafe condition of a sidewalk because of which injury occurs to a pedestrian is not sufficient to comply with a statute re- quiring notice of the injury to be given to the authorities, since one object of the no- tice is to give the municipality an oppor- tunity to settle the claim without litiga- tion. Tonn v. Helena, 36: 1136, 111 Pac. 715, 42 Mont. 127. 394. That one injured by a defect in a city street is rendered mentally and physi- cally incompetent by the injury does not excuse his failure to give the notice to the city which the statute makes a prerequisite to the maintenance of an action against it. Touhey v. Decatur, 32: 350, 93 N. E. 540, 175 Ind. 98. (Annotated) 395. Municipal authorities cannot waive the notice required by statute to be given in case of injury on a city street before ac- tion can be brought against the city to hold it liable therefor. Touhey v. Decatur, 32: 350, 93 N. E. 540, 175 Ind. 98. 396. No constitutional right of one in- jured by a defect in a city street is impaired by a statutory requirement that before he can maintain an action against the muni- cipality for the injury, he must have given it notice of the time, place, cause, and na- ture of the injury. Touhey v. Decatur, 32: 350, 93 N. E. 540, 175 Ind. 98. 397. The notice required by Wis. Pvev. Stat. 1898, 1339, to be given the munici- pality in case of injury to a person by rea- son of want of repair of sidewalk, is a re- quisite to the creation of a right to compen- sation for injury. Hay v. Baraboo, 3: 84, 105 N. W. 654, 127 Wis. 1. 398. Damages recoverable from a city are limited to those resulting from the injury specified in claimant's notice, under a stat- ute requiring notice of injury to be given to the city as a condition precedent to recov- ery. Diamond Rubber Co. v. Harryman, 15: 775, 92 Pac. 922, 41 Colo. 415. Sufficiency of. See also EVIDENCE, 2442. 399. A statement in a notice of claim for an injury alleged to have been due to the negligence of a municipal corporation, that it was caused by falling through a defective sidewalk, the location of which is stated, is a sufficient compliance with a requirement that the notice must describe the defect that caused the injury. Hase v. Seattle, 20: 938, 98 Pac. 370, 51 Wash. 174. 400. Notice to city officers of an accident on its streets through reading a newspaper description of it does not comply with a statutory requirement that before action can be brought against the city to hold it liable for the injuries written notice must be given to it of the time, place, cause, and nature of the injury. Touhey v. Decatur, 32: 350, 93 N. E. 540, 175 Ind. 98. HIGHWAYS, V. a, 1, 2. V. Discontinuance; alteration; aban- donment. a. Discontinuance. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Review by court of question of necessity of closing, see COURTS, 107. Inquiry by courts into motives of municipal authority in closing alley, see COURTS, 142. Right to compensation for injury resulting from obstruction of street, see EMINENT DOMAIN, 284-286. Injunction against, see INJUNCTION, 375, 376, 415. Sufficiency of title of ordinance vacating street, see MUNICIPAL CORPORATIONS, 66. Of park or square, see PARKS AND SQUARES, 1, 4. Necessary parties defendant in proceeding to close alley, see PARTIES, 188. Submitting to jury question of necessity of closing, see TRIAL, 94. See also supra, 239. 401. A municipal corporation is not pre- cluded from closing an alley because it was conveyed to and accepted by it under a deed providing that it shall always remain free and open as a public alley. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 402. Requiring tracks of a railroad com- pany which are properly in a public street to be elevated on a solid embankment for public protection and welfare, and vacating the portion of the street covered by the embankment, do not violate the rule that municipal corporations have no authority to vacate or obstruct streets for the benefit of private individuals and corporations, and therefore do not cause a reversion of the street to those who dedicated it to public use or to abutting owners, or entitle them to enjoin the railroad company from trespassing on the land, although the em- bankment will exclude the public from all use of the street. Weage v. Chicago & W. I. R. Co. ii : 589, 81 N. E. 424, 227 111. 421. ( Annotated ) 403. Where a highway containing a plain well-beaten track is discontinued, it is the duty of the public authority responsible therefor, to give such notice or warning, or erect such barrier, as will prevent its use by travelers by night as well as by day; and in the absence of such notice travelers have the right to presume that such highway has not been discontinued or obstructed. Dan- iels v. County Court, 37: 1158, 72 S. E. 782, 69 W. Va. 676. For benefit of private person. 404. That a railroad company will be benefited by the closing of a public alley, and defrays part of the expense incident thereto, will not prevent the municipality Digest 1-52 L.R.A.(N.S.) from closing it if the public will also be benefited thereby. Henderson v. Lexington, 22: 20, 111 S. W. 318, 132 Ky. 390. 405. A street is not destroyed by the con- struction of a wharf thereon by the abut- ting owner. Buffalo v. Delaware, L. & W. R. Co. 16: 506, 82 N. E. 513, 190 N. Y. 84. ( Annotated ) 2. Rights of individuals. (See also same heading in Digest L.R.A. 1-10.) Method of submitting question as to dam- ages to jury, see APPEAL AND ERROR, 647. Validity of statute authorizing closing, see CONSTITUTIONAL LAW, 596. Measure of damages for, see DAMAGES, 509, 562-564, 576. Discontinuance as a taking of property, see EMINENT DOMAIN, 198-201. Right to compensation on, see EMINENT DO- MAIN, 229. Necessity of payment of compensation for damages before vacating, see EMINENT DOMAIN, 255. Injunction to protect, see INJUNCTION, 375, 376, 415. 406. A village and railroad company which, in order to abolish a grade crossing, construct a subway, vacating the surface crossing, thereby diverting travel from the space between the crossing and the en- trance to the subway, and depreciating the value of the abutting business property, are liable for the injuries thereby caused the owner. Schimmelmann v. Lake Shore & M. S. R. Co. 36: 1164, 94 N. E. 840, 83 Ohio St. 356. 407. Owners of property abutting on a highway adjacent to a railroad track are not affected in a manner different from the public by a discontinuance of the street within the railroad right of way, and the erection of a bridge to carry the street over the tracks, so that, in order to cross the tracks, they are obliged to go away from them until they reach the foot of the bridge approach. Hyde v. Fall River, 2: 269, 75 N. E. 953, 189 Mass. 439. (Annotated) 408. An abutting property owner is en- titled to no damages for the construction of an interurban electric railroad along a strip of land which was formerly a street, where the municipality had vacated the street, and granted the fee thereof to the state and a right of way along the strip to the rail- road company. Tomlin v. Cedar Rapids & I. R. & Light Co. 22: 530, 120 N. W. 93, 141 Iowa, 599. (Annotated) Vacating street in front of party complaining. Construction of bridge approach in public street, see EMINENT DOMAIN, 201. 409. The owner of abutting property is entitled to damages for a change in a high- way which results in raising a portion of its width to carry it over a bridge, leaving only a narrow strip terminating at the 1414 HIGHWAYS, V. b HOLIDAYS. water in front of his property, the effect ol which is to cut off travel past his property, and leave access to it only by a cul-de-sac which can be used by vehicles only when they back in one direction. Park City Yacht Club v. Bridgeport, 39: 478, 82 Atl. 1035, 85 Conn. 366. Vacating remote part of highway. 410. All land abutting on that portion of a street which is not vacated, but which is left a cul-de-sac by vacating another por- tion of the street between it and the next adjacent cross street, suffers a special in- jury for which damages may be awarded under a statute requiring a city to pay damages caused by the vacation of any street. Newark v. Hatt (N. J. Err. & App.) 30: 637, 77 Atl. 47, 79 N. J. L. 548. (Annotated) 411. A lot owner sustaining consequen- tial injuries by reason of the vacation, by a city, of a portion of the street en which his property fronts, and lying between the line of his lots and the right of way of a railroad company, may maintain an action against the city to recover damages, but is not entitled to recover against the railroad company, where it is not shown to have taken any steps for the purpose of devot- ing the vacated portion of the street exclu- sively to its use and purposes. Vander- burgh v. Minneapolis, 6: 741, 108 N. W. 480, 98 Minn. 329. &. Alteration. (See also same heading in Digest L.R.A. 1-10.) Right of private citizen to enjoin threat- ened unlawful narrowing of public street, see NUISANCE, 83. c. Abandonment. (See also same heading in Digest L.R.A. 1-10.) Selling lots with respect to plat showing street which has been abandoned, see DEDICATION, 34. By iioiiuser. 412. A statute declaring a county road vacated if it remains unopened for public use for seven years does not apply to a street or alley within the limits of a citv. Wallace v. Cable, 42:587, 127 Pac. 5, 87 Kan, 835. VI. High-way officers. (See also same heading in Digest L.R.A. 1-10.) Relation of judiciary to, see COURTS, 72. Municipal liability for acts of highway offi- cers, see MUNICIPAL CORPORATIONS, 396- 399. Liability of road supervisors for diverting surface water, see WATERS, 262. Digest 1-52 L.R.A. (N.S.) HIRE AND PURCHASE AGREEMENT. Right of persons supplying fixtures under, see FIXTURES, 25, 26. HIRING. Interpretation of contract of hiring, see CONTRACTS, II. d, 4. HISTORICAL MATTERS. Judicial notice as to, see EVIDENCE, L d. HITCHING POSTS. In highway, see HIGHWAYS, 15; LIMITATION or ACTIONS, 67; MUNICIPAL CORPORA- TIONS, 108-110; NUISANCES, 86. As nuisances, see NUISANCES, 86, 126. HOGS. Injury to, during transportation, see CAR- RIERS, 892, 903-907. Permitting summary killing of hogs run- ning at large, see CONSTITUTIONAL LAW, 526. Burden of proving express company's liabil- ity for death of, see EVIDENCE, 389. Municipal regulations as to keeping of, see MUNICIPAL CORPORATIONS, 159-161. In general, see ANIMALS, 25. HOLDING COMPANY. Controlling oil industry, see INJUNCTION, 446. Dissolution of, see JUDGMENT, 35, 88. HOLDING OVER. By tenant, see LANDLORD AND TENANT, II. c. By officer, see OFFICERS, 29-31, 87. HOLIDAYS. Effect on time for filing bill of exceptions, see APPEAL AND ERROR, 257. Sufficiency of objection to holding court on, see APPEAL AND ERROR, 297. Holding of corporate meeting on, see CORPO- RATIONS, 173. Trial on, of one accused of crime, see CRIMI- NAL LAW, 162. HOLOGRAPHIC WILL HOMESTEAD. 1415 Holding judicial sale on following day where date appointed falls on holiday, see JUDICIAL SALE, 4. See also SUNDAY. 1. An election not extending through- out the state, but confined to one or more of its political subdivisions, is not a general election within La. Acts 1904, No. 3, p. 5, enacting that all general election days shall be legal holidays. State v. Duncan, 10: 791, 43 So. 283, 118 La. 702. 2. The trial, on a statutory or legal holiday, of one accused of crime, is not null if it takes place with the consent or acquiescence of the accused, since such holi- days do not possess the sacredness of the Sabbath. State v. Duncan, 10: 791, 43 So. 283, 118 La. 702. (Annotated) 3. A judgment entered on a judicial day will not be declared void because evi- dence was taken and arguments heard with- out objection on a day which had, without knowledge of the court, been proclaimed by the governor to be a holiday. State ex rel, Walter v. Superior Court, 17: 257, 94 Pac. 665, 49 Wash. 1. HOLOGRAPHIC WILL. See WILLS, II. HOME. Homicide in defense of, see HOMICIDE, 78-82. Use of public funds to secure homes for wage earners, see PUBLIC MONEY, 9. HOME ECONOMICS. Instruction in, see SCHOOLS, I. a. HOME FORT. For purposes of taxation, see TAXES, 122. HOME RULE. As to local self-government, see CONSTITU- TIONAL LAW, I. f. HOMESTEAD. 7, The exemption generally, 117. a. In general; who may claim, 1-12. b. In -what property, 12 a 15. c. Establishment, 16, 17. II. Creditors' rights, ISSO. III. Loss; abandonment, 314:1. Digest 1-52 L.R.A.(N.S.) IV. Alienation; encumbrance and transmission of exempt prop- erty, 4253. a. Sale, lease, or mortgage, 42 51. b. Transmission in case of death, 52, 53. V. Allotment and setting apart, 54. Adverse possession of, by former owner after conveyance, see ADVERSE POSSES- SION, 5. Wife's right of action for trespass on, see CASE, 4. Law governing question of title given by patent, see CONFLICT OF LAWS, 105. Curative act as to, see CONSTITUTIONAL LAW, 47. Effect of acceptance of option to purchase given by husband to supersede wife's declaration of homestead, see CON- TRACTS, 60. Jurisdiction of county court to determine title to, see COUKTS, 238. Overflow of lands of, by wrongful obstruc- tion of water way, see DAMAGES, 494; WATERS, 198. Damages for condemnation of, see DAMAGES, 553. Right to dower in, free from purchase money mortgage, see DOWER, 37. Waiver of distributive rights in wife's other property by attempt to assert home- stead rights in certain land, see ELEC- TION. Estoppel to assert homestead right, see ES- TOPPEL, 39, 82. Estoppel to claim dower rights in, see ES- TOPPEL, 260. Estoppel of heirs to attack sale of, by an- cestor, see ESTOPPEL, 261. Increase in value of homestead above limit fixed by statute as assets warranting further administration of decedent's es- tate, see EXECUTORS AND ADMINISTRA- TORS, 85. Estoppel of infant to claim rights in, by act of guardian, see GUARDIAN AND WARD, 28. As community property, see HUSBAND AND WIFE, 73, 74. Effect of dissolution of marriage after ini- tiation, but before consummation, of right under, see HUSBAND AND WIFE, 81. Validity of antenuptial contract cutting ofl honlestead right of intended husband, see HUSBAND AND WIFE, 123. Title to homestead on public lands before final proof is made as "unconditional and sole," see INSURANCE, 209. Insurance by husband as sole owner of homestead title to which is in wife, see INSURANCE, 210. Conclusiveness of ex parte order setting apart to widow homestead interest as against children, see JUDGMENT, 240. Lien of judgment upon, see JUDGMENT, 272. When action to recover interest in, is barred, see LIMITATION OF ACTIONS, 255. 1416 HOMESTEAD, I. a. Oil and gas lease by widow on homestead land, see MINES, 59. Partition of, see PARTITION, 12-15. Necessity of pleading defense of, see PLEAD- ING, 482. On public lands, see PUBLIC LANDS. Right of purchaser at illegal tax sale to compensation for improvements, see TAXES, 239, 240. Succession tax on, see TAXES, 317. Question for jury as to interest of home- stead settler in action for injury to property, see TRIAL, 604. Constructive trust under deed of, to wife, see TRUSTS, 47. Effect, on rights of subsequent entryman, of appropriation of waters during exist- ence of prior homestead entry, see WA- TEBS, 230. Not included in disposal of all testator's "effects," see WILLS, 190. Necessity for electing between homestead and rights under will, see WILLS, 354, 357, 359. I. The exemption generally, a. In general; who may claim. (See also same heading in Digest L.R.A ' 1-10.) Presumptions on appeal as to intent, see APPEAL AND ERROR, 461. As to exemptions, generally, see EXEMP- TIONS. Exemption of homestead purchased with pension money, see EXEMPTIONS, 8. Exemption of, from mechanics' lien, see MECHANICS' LIENS, 52, 111. 1. Organic and statutory provisions re- lating to the homestead and personal prop- erty exemptions should be liberally con- strued in the interest of the family, but the law should not be so applied as to make it an instrument of fraud or imposition upon creditors. Jetton Lumber Co. v. Hall, 51: 1 121, 64 So. 440, 67 Fla. 61. 2. Where the statute creating a home- stead exemption is so liberally construed as not to require present occupancy of the premises in order that they may become the homestead of the owner, the creation or ex- istence of the homestead depends largely upon the intent of the parties. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. 3. The fact that a husband and wife sell their homestead, which would be cov- ered by the lien of a judgment except for being exempt, and receive and use the pur- chase money, does not prevent their after- wards acquiring with other funds another homestead, which shall be exempt from sale to satisfy such judgment. McConnell v. Wolcott, 3: 122, 78 Pac. 848, 70 Kan. 375. 4. An insolvent debtor may successfully assert a claim of exemption as to a home- stead purchased with the proceeds of non- exempt property, where there are no pe- culiar equities in favor of existing creditors, Digest 1-52 L.R.A. (N.S.) even although such purchase is made for the very purpose of acquiring property that should constitute a homestead, and as such be beyond the reach of creditors. McConnell v. Wolcott, 3: 122, 78 Pac. 848, 70 Kan. 375. 5. Where the husband, without cause, abandons his family, who were residing upon the homestead, he may not maintain an action of ejectment to dispossess his wife and family of said homestead or any part thereof. Gooch v. Gooeh, 47: 480, 133 Pac. 242, 38 Okla. 300. 6. The homestead of a family may be taken in property of either the husband or wife, and if their home is owned by them equally as tenants in common, and is of the value of the homestead exemption, neither can claim other real estate exempt. Valpa- raiso State Bank v. Schwartz, 42:1213, 138 N. W. 757, 92 Neb. 575. 7. The childless widow of one who died seised in fee of lands occupied by them as a homestead may, under a statute provid- ing that, "upon the death of either husband or wife, the survivor may continue to pos- sess and occupy the whole homestead until it is otherwise disposed ^f according to law," as against the husband's heirs, oc- cupy and possess the whole thereof as long as she preserves its homestead character by maintaining a home thereon. Holmes v. Holmes, 30: 920, 111 Pac. 220, 27 Okla. 140. (Annotated) 8. No homestead exists in land owned by an alien whose family resides in a for- eign country, so as to render void a mort- gage given by him upon the land without his wife joining, as required by statute for the mortgage of a homestead, although he has declared his intention of bringing his family and residing upon the land, and has tendered final proof of his declaration of intention to become a citizen, but has never taken out final citizenship papers, and has delayed for four years to take any ateps to bring his family, and has not resided upon the land after the required prelimin- ary residence. Tromsdahl v. Nass, 52: 746, 146 N. W. 719, 27 N. D. 441. ( Annotated ) Existence of family. 9. A mother and an adult son, who is incapable of caring for himself and receives support from her, merely doing chores about the house, constitute a family capable of claiming a homestead. Sheehy v. Scott, 4: 365, 104 N. W. 1139, 128 Iowa, 551. (Annotated) Who is head of family. 10. Under the Constitution and laws of North Dakota, the husband, as the head of the family, is entitled to claim the home- stead as exempt from execution sale, al- though the fee of the property is vested in his wife. Bremseth v. Olson, 13: 170, 112 N. W. 1056, 16 N. D. 242. (Annotated) 11. A woman who lives upon a farm with her mature sons, one of whom is mar- ried and carries on the place, cannot be held to be the head of the family, so as to be entitled to claim a homestead therein. HOMESTEAD, I. b II. 1417 Somers v. Somers, 36: 1024, 131 N. W. 1091, 27 S. D. 500. 12. A woman whose husband has desert- ed her and gone into another state, leaving her residing in the state of their former residence, with children depending upon her, is the head of a family so as to entitle her to a homestead exemption in personal prop- erty left by her husband, under a constitu- tional provision giving a homestead exemp- tion in certain property "owned by the head of a family" residing in the state. Jetton Lumber Co. v. Hall, 51: 1121, 64 So. 440, 67 Fla. 61. (Annotated) b. In ivhat property. (See also same heading in Digest L.R.A. 1-10.) 12a. By 1, art. 12, of the Oklahoma Constitution, : nd 3346, Comp. Laws 1909, the homestead of a family may consist of more than one tract of land, and may be owned by either husband or wife, or by both jointly, or one tract may be owned by one and the other tract owned by the other, so long as the aggregate number of acres occupied as a home does not exceed 160 acres. Gooch v. Gooch, 47: 480, 133 Pac. 242, 38 Okla. 300. 13. A homestead exemption does not ex- tend to a second dwelling house erected on homestead property, especially where the statute provides that it must not embrace more than one dwelling house or any other buildings except such as are properly ap- purtenant to the homestead as such. Jen- sen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. 14. A building whose value is within the homestead limits, which is owned by a mar- ried woman and occupied by herself and husband as a home, may, although it is used as a hotel or lodging and boarding house to aid in the maintenance of the home, and the owner does not continuously occupy the same rooms, be claimed by her as a homestead. McKay v. Gesford, 41: 303, 124 Pac. 1016, 163 Cal. 243. (Annotated) Crops. 15. The crops grown on a homestead are exempt from execution wheic the constitu- tional provision for homestead exemptions declares that it shall be liberally construed. Neblett v. Shackleton, 32: 577, 69 S. E. 946, 111 Va. 707. (Annotated) > , >) c. Establishment. (See also same heading in Digest L.R.A. 1-70.) 16. That the north 80 acres of a farm consisting of 157 acres constitutes the home- stead of the owner thereof is shown, as mat- ter of law, by proof that his dwelling house, which he and his family had occupied as their home for eight years, stood upon such 80 acres, that the land occupied by it and the contiguous land constituting the 80 acres was in a compact and convenient form, that Digest 1-52 L,.R.A.(N.S.) any other selection would have resulted in an irregular tract, and that he claimed such portion as his homestead, although it does not appear that any notice of such claim had been tiled. Delisha v. Minneapolis, St. P. R. & D. Electric Traction Co. 27: 963, 120 N. W. 276, 110 Minn. 518. 17. Whether or not a remainderman whose estate has vested can claim a home- stead in such remainder estate, so as to preclude the attaching of a judgment lien thereon, will not be determined upon affida- vits filed in an application for the release of such judgment on account of the dis- charge in bankruptcy of the judgment debt- or, as provided by a state statute. John Leslie Paper Co. v. Wheeler, 42: 292, 137 -N. W. 412, 23 N. D. 477. II. Creditors' rights. (See also same heading in Digest L.R.A. 1-70.) Withdrawing funds from reach of creditors by investing in, see EXECUTION, 13. Exemption of homestead purchased with pension money, see EXEMPTIONS, 8. See also infra, 51. 18. Mechanics' liens upon a new house built upon a lot comprised in a homestead cannot be affected by an abandonment of the old house as a dwelling after the ma- terial has been furnished and the work done upon which such liens are based. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. After death of homesteader. 19. A general direction by a testator in his will to pay all his just debts out of his estate, followed by a devise of the resi- due, is not sufficient to indicate an intention that his homestead should be liable to the payment of his debts. Larson v. Curran, 44: 1177, 140 N. W. 337, 121 Minn. 104. (Annotated) 20. Where a decedent, leaving no sur- viving spouse, child, or issue of deceased child, disposes of his homestead by his last will, the devisee takes it free from claims of creditors of the decedent, unless the tes- tator clearly indicates an intention that the homestead shall be liable to the pay- ment of his debts. Larson v. Curran, 44: 1177, 140 N. W. 337, 121 Minn. 104. 21. That the homestead of a decedent is not, after his death, occupied as a home- stead by a member of his family entitled to occupy it as such, does not affect its character as being exempt from liability for the decedent's debts. Larson v. Cur- ran, 44: 1177, 140 N. W. 337, 121 Minn. 104. 22. A homestead occupied by a wife alone, after the death of her husband, is exempt as against her own creditors, as well as against the creditors of her husband's es- tate, irrespective of the time the indebtedness was incurred, and without regard to which spouse held the legal title to the property during their married life. Weaver v. First 1418 HOMESTEAD, III. Nat. Bank of Chicago, 16: no, 94 Pac. 273, 76 Kan. 540. 23. The heirs do not take the homestead of their ancestor free from his debts con- tracted prior to its acquisition, under a statute providing that the homestead of every pensioner, whether the head of a fam- ily or not, purchased with pension money, shall be exempt, and such exemption shall apply to debts contracted prior to its pur- chase, where, under the statutes, such ex- emption would not apply to homesteads in general. Beatty v. Wardell, 4: 544, 105 N. W. 357, 130 Iowa, 651. (Annotated) Antecedent debts. 24. Under the homestead law of Con- gress, providing that no land acquired un- der it shall be liable to be taken in satis- faction of a debt contracted prior to the issuing of a patent therefor, land is not subject to a judgment upon a note exe- cuted between the making of final proof and the issuance of the receiver's certifi- cate thereon and issuance of the patent. Sprinkle v. West, 34: 404, 114 Pac. 430, 62 Wash. 587. (Annotated) 25. Selection of a new house as a home- stead will not affect mechanics' liens for labor and material contracted for before the selection is made, and furnished without notice of such selection. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. (Annotated) 26. A mechanics' lien on a dwelling erected upon land forming part of a home- stead cannot be defeated by the selection of such dwelling as a homestead, if the homestead claimant led the lienors to be- lieve that it was not intended to become such. Jensen v. Griffin, 50: 1128, 144 N. W. 119, 32 S. D. 613. Debts and liens for purchase money. Priority over homestead rights of claim for money advanced to redeem from fore- closure of purchase money mortgage, see MORTGAGE, 45. 27. Money loaned by a vendor to vendee to improve the land purchased, pursuant to the terms of the sale, is not purchase money within the meaning of the statute which subjects a homestead to execution for the satisfaction of a decree foreclosing a ven- dor's lien. City Sav. Bank v. Thompson, 41: 89, 136 N. W. 992, 91 Neb. 628. (Annotated) 28. Under a statute making a vendor's lien superior to a homestead, the unpaid purchase price on a contract for the pur- chase of real estate by a married woman is a lien superior to a homestead interest sub- sequently acquired by the husband by mov- ing a house owned by him on to the proper- ty, though the husband did not execute and acknowledge the contract of purchase. City Sav. Bank v. Thompson, 41 : 89, 136 N. W. 992, 91 Neb. 628.. Liability for tort. 29. The exemption of lands acquired un- der the homestead laws and the timber-cul- ture laws (act March 4, 1896, chap. 40, 29 Stat. at L. 43, U. S. Comp. Stat. 1901, p. 1537; . if. <--vi shall be exempted from forced sale under any process of law," cannot originate without the existence of a family or household consist- ing of more than one person, yet, when the homestead character has once attached, it may persist for the benefit of a single in- dividual who is the sole surviving member of the family. Weaver v. First Nat. Bank of Chicago, 16: no, 94 Pac. 273, 76 Kan. 540. ( Annotated ) IV. Alienation; encumbrance and trans- mission of exempt property. a. Sale, lease, or mortgage. (See also same heading in Digest L.R.A. 1-10.) Right of alienation as vested right, see CON- STITUTIONAL LAW, 59. Taking away absolute right of alienation in exercise of police power, see CONSTI- TUTIONAL LAW, 644. Estoppel to deny validity of mortgage on, see ESTOPPEL, 37. Estoppel to deny validity of conveyance, see ESTOPPEL, 53, 140. Conveyance of, to avoid a debt, see FRAUDU- LENT CONVEYANCES, 110. See also supra, 35; PABTITION, 13. 42. A conveyance of a perpetual ease- Digest 1-52 L.R.A.(N.S.) ment for a railway right of way over a homestead is an encumbrance thereon and an alienation of an interest therein. De- lisha v. Minneapolis, St. P. R. & D. Electric Traction Co. 27: 963, 126 N. W. 276, 110 Minn. 518. 43. A conveyance by a married man without the joining of his wife, of a perma- nent railroad right of way over land owned and occupied by himself and family as a homestead, is void. Delisha v. Minneapolis, St. P. R. & D. Electric Traction Co. 27: 963, 126 N. W. 276, 110 Minn. 518. ( Annotated ) 44. An owner of lands, by agreeing to convey a permanent railway right of way thereacross, does not thereby elect to select his homestead outside of the limits of the right of way, where the designation of the particular part to be taken is left entirely to the railway company, although there would be sufficient of the tract left after se- lection to constitute a full homestead ex- emption, so as to avoid a statute providing that a contract by a married man to convey such a right of way over his homestead ia void without the signature of his wife. De- lisha v. Minneapolis, St. P. R. & D. Electric Traction Co. 27:963, 126 N. W. 276, 110 Minn. 518. 45. The fact that the wife of a lot owner did not join in any deed or con- veyance is immaterial on the question of the creation of a revocable license in favor of an adjoining owner and his grantee, where the evidence, although tending to show that the lot was occupied as a home- stead at the time of the conveyance from the adjoining owner to his grantee, does not show that it was so occupied as a home- stead at the time of the creation of the license. Johnson v. Bartron, 44: 557, 137 N. W. 1092, 23 N. D. 629. 46. An attempted conveyance by deed, mortgage, or otherwise, of his homestead, by a married man, without his wife's signa- ture, is void, although at the time she may have abandoned him and her home, and may be living an adulterous life. Murphy v. Renner, 8: 565, 109 N. W. 593, 99 Minn. 348. (Annotated) 47. A quitclaim deed by a married wo- man, of her interest in the homestead, ia without effect, under a constitutional pro- vision that alienation of a homestead by a married man shall not be valid without the signature of the wife to the same; nor can it, in connection with the husband's con- tract to convey, be held to constitute a land contract enforceable in equity. Lott v. Lott, 8: 748, 109 N. W. 1126, 146 Mich. 580. ( Annotated ) 48. A lease of a homestead for a period of five years is a conveyance within the meaning of 6203, Cobfoy's Anno. Stat. 1903, and is void unless executed and ac- knowledged by both husband and wife. Kloke v. Wolff, 11:99, 111 N. W. 134, 78 Neb. 504. (Annotated) 49. A contract by a roan conferring the agency for sale of his homestead, which em- powers the agent to get any sum which he 1420 HOMESTEAD, IV. b HOMICIDE. can for his commission, above a stated amount which is to be net to the owner, confers no interest in the property, and is therefore not void because not signed by his wife, and he will be liable for the amount of commission which the agent has succeeded in adding to the net price of the property, in case he refuses to convey to a customer which the agent secures. Haves v. McAra, 35:116, 131 N. W. 535, 166 Mich. 198. (Annotated) 50. That a man has abandoned his home- stead, so as to forfeit his rights in it, does not enable his wife to convey it without his signature, where the statute provides that a conveyance of a homestead shall be of no validity unless the husband and wife concur in and sign the same joint instru- ment. Somers v. Somers, 36: 1024, 131 N. W. 1091, 27 S. D. 500. (Annotated) 51. Upon conversion into money, through foreclosure proceedings, of a mortgage exe- cuted on property upon which a homestead was thereafter declared, the mortgage is not to be regarded as upon the homestead ex- emption so that it is cut off by foreclosure; but both the amount of the mortgage and of the homestead allowance may be taken from the fund before distribution is made to judg- ment creditors of the homesteader. White v. Horton, 18: 490, 97 Pac. 70, 154 Cal. 103. ( Annotated ) 6. Transmission in case of death. (See also same heading in Digest L.R.A. 1-10.) Eights of creditor after death of home- steader, see supra, 19-23. Conflict of laws as to descent of wife's in- terest in, see CONFLICT OF LAWS, 120. Devise of, see WILLS, 202. See also supra, 7. 52. A divorced man whose children are adults and have all deserted him in his old age, and who has perfected his title to a homestead entry, except the making of final proof, as to his readiness to make which he has given notice, may devise the homestead to a stranger, who furnishes him necessary care and protection. Hays v. Wyatt, 34: 397, 115 Pac. 13, 19 Idaho, 544. 53. A homesteader may, under the Fed- eral public land law, either leave his home- stead to his adult heirs, where he has no widow or minor children, without making a will, or, if he prefers to devise the home- stead to some one or other of his heirs, he aiay do so and thereby cut off the other adult children. Hays v. Wyatt, 34: 397, 115 Pac. 13, 19 Idaho, 544. (Annotated) V. Allotment and setting apart. (See also same heading in Digest L.R.A. 1-10.) 54. If a house, and the tract upon which it is located, but which is subdivided into lots, do not exceed in value the amount Digest 1-52 I*R.A.(N.S.) which the owner is entitled to claim as a homestead, he may, upon constructing a new dwelling upon part of the lots, which raises the value of the entire tract above what he is entitled to claim as ex- empt, claim the new building and the lots connected therewith as his homestead, if it is not excessive in value, although the effect is to defeat the lien of those who furnished material for its construction. Volker-Scowcroft Lumber Co. v. Vance, 24: 321, 103 Pac. 970, 36 Utah, 348. HOMICIDE. I. In general, 161. II. What reduces crime to manslaugh- ter, 6271. III. Excusable or justifiable homicide, 72-105. a. In general, 72 9O. ft. Self-defense, 911O5. Record on appeal in homicide case, see AP- PEAL AND EBBOB, 168, 169. Employment of private counsel to assist prosecution, see APPEAL AND ERROR, 362; DISTRICT AND PROSECUTING AT- TORNEYS, 2. Presumptions on appeal, see APPEAL AND ERROR, 468, 477. When new trial granted to one convicted of, see APPEAL AND EBBOB, 560; NEW TBIAL, 18, 44, 55. Discretion as to permitting withdrawal of plea of guilty, and to have jury trial, see APPPAL AND ERROR, 585. Raising objection for first time on appeal, see APPEAL AND ERROR, 771. Indictment for, see APPEAL AND ERROR, 1048; INDICTMENT, etc., 18, 24, 73-76, 110, 111, 117-122. Argument of counsel or prosecuting attor- ney, see APPEAL AND ERROR, 641, 1449, 1451; TRIAL, 66, 73. Misconduct of judge, see APPEAL AND ERROR, 1466, 1467; TRIAL, 90. Permitting jury to take dying declaration to jury room, see APPEAL AND ERROR, 1477. Absence of accused when motion for new trial was ordered, see APPEAL AND EB- BOR, 1481. Error in excluding expert witnesses from court room during testimony, see AP- PEAL AND EBBOB, 1484. Prejudicial error in summoning and select- ing jury, see APPEAL AND EBROR, 1491, 1494. Reversal of conviction for misconduct of jury, see APPEAL AND ERROR, 1507. Reducing punishment on appeal, see APPEAL AND ERROR, 1600-1602. Reversal of conviction on appeal, see APPEAL AND ERROR, 1625. Assault with intent to kill, see ASSAULT AND BATTERY, 22-25. Right to bail of person accused of, see BAIL AND RECOGNIZANCE, 13-15. HOMICIDE. 1421 Finding of indictment pending of certiorari proceedings to review action of com- mitting magistrate, see CERTIORARI, 1. Change in punishment as em post facto, see CONSTITUTIONAL LAW, 39. Statute committing to state hospital one acquitted of murder on ground of in- sanity, see CONSTITUTIONAL LAW, 547. Contempt or misconduct toward, or by, juror, see CONTEMPT, 8, 9. Liability of corporation for, see CORPORA- TIONS, 129, 130. Right of court to order disiriterment of corpse for evidential purposes, see CORPSE, 16, 17. Jurisdiction of court, see COURTS, 26. Attempt to commit, see CRIMINAL LAW, 47. Responsibility for homicide by accomplice, see CRIMINAL LAW, 50-52. Duty of jury to find degree of offense, see CRIMINAL LAW, 68. Self-crimination of one charged with, see CRIMINAL LAW, 119. Waiver of rights by accused, see CRIMINAL LAW, 128, 201, 203, 204; JURY, I. c. Sufficiency of warrant of commitment, see CRIMINAL LAW, 132. Plea of guilty in prosecution for, see CRIM- INAL LAW, 150, 151. Right of accused to order to enable him to secure evidence, see CRIMINAL LAW, 160. Conviction of murder as acquittal of man- slaughter, see CRIMINAL LAW, 188. Former jeopardy, see CRIMINAL LAW, 188, 189, 201, 203, 204. Conviction of assault as bar to prosecution for murder after victim's death, see CRIMINAL LAW, 214. Commitment to prison of persons acquitted on ground of insanity, see CRIMINAL LAW, 232-234, 242, 262. Stay of execution of death sentence, see CRIMINAL LAW, 288. As affecting right to inherit, see DESCENT AND DISTRIBUTION, 8-10 ; HUSBAND AND WIFE, 68, 69. Manslaughter as ground for divorce, see DIVORCE AND SEPARATION, 60. Judicial notice, see EVIDENCE, 16. Presumption and burden of proof, see EVI- DENCE, 96, 107-109, 122, 221-223, 257, 299, 300. Presumption that one acquitted of murder on ground of insanity continued insane, see EVIDENCE, 319. Admissibility of documentary evidence, see EVIDENCE, 778, 779. Evidence of confessions on trial for, see EVIDENCE, VIII. Admissibility of threats, see EVIDENCE, X. i. Admissibility of dying declarations, see EVI- DENCE, X. 1. Opinion evidence in prosecution for. see EVIDENCE, 1092, 1160, 1161, 1164. 1176- 1179, 1185, 1188. Hypothetical question to expert witness, see APPEAL AND ERROR, 1266; EVIDENCE, 1071. Use of finger prints to identify accused, see j EVIDENCE, 1176-1179. Digest 1-52 L.R.A.(N.S.) Admissibility of declarations of co-conspira- tors in prosecution for, see EVIDENCE, 1463, 1464. Evidence as to complaint of suffering by al- leged victim, see EVIDENCE, 1476, Evidence of character and reputation of ac- cused, see EVIDENCE, 1553-1556. Evidence as to character or reputation of person killed, see EVIDENCE, 1560-1567. Evidence of good character of wife in prose- cution of husband for murder of alleged paramour, see EVIDENCE, 1575. Evidence as to motive, see EVIDENCE, 1593, 1653-1657. Evidence as to intent, see EVIDENCE, 1635, 1636. Evidence on question of mental condition of accused, see EVIDENCE, 1604-1606. Evidence in explanation and rebuttal, see EVIDENCE, 1924, 1926-1928. Evidence generally admissible in prosecu- tion for, see EVIDENCE, 806, 882, 1357- 1359, 1397, 1829-1835, 1839, 1914, 1978-1983. Review of discretion as to admission of evi- dence, see APPEAL AND ERROR, 609. Prejudicial error in admission of evidence, see APPEAL AND ERROR, 1122, 1123, 1127, 1128, 1153, 1177. Prejudicial error in exclusion of evidence, see APPEAL AND ERROR, 1246, 1259, 1266, 1268. Sufficiency of evidence to warrant holding one charged with, without bail, see EVIDENCE, 2348. Sufficiency of proof in prosecution for, see EVIDENCE, 2349, 2355, 2359, 2373, 2377- 2384. Variance between indictment and proof, see APPEAL AND ERROR, 766; EVIDENCE, 2504, 2504a. As to order of proof, see APPEAL AND ERROR, 1488; TRIAL, 39. Habeas corpus, see HABEAS CORPUS, 25, 71. Conviction for assault with deadly weapon upon indictment charging murder, see INDICTMENT, INFORMATION AND COM- PLAINT, 122. Of insured, effect on right to recover, see INSURANCE, 698-701; PLEADING, 523. As to jury, see JURY. Proximate cause of, see PROXIMATE CAUSE, 159. Right to reward for arrest of murderer, see REWARD, 3. While hunting, see STATUTES, 218. Permitting reading to jury of evidence tak- en upon issue of sanity of accused, see TRIAL, 24. Submitting to jury question of form of pun- ishment, see TRIAL, 92. Insanity of accused as question for jury, see TRIAL, 238, 241. By convict in resisting illegal corporal pun- ishment by warden, see TRIAL, 293. Question of law or fact in, see TRIAL, 670- 674. Peremptory instruction, see TRIAL, 782. Instructions on trial for, see TRIAL, 880, 888, 913-932, 949, 1069, 1083-1094. Presumption as to harmlessness of instruc- tion, see APPEAL AND ERROR, 468. 1422 HOMICIDE, I. Prejudicial error in instructions, see AP- PEAL AND EBKOB, 1324-1327. Failure or refusal to instruct, see APPEAL AND ERROR, 1423, 1424, 1430. Correctness of verdict, see TRIAL, 1150. Verdict as curing error on prosecution for, see APPEAL AND ERROR, 863, 864. Review of verdict on appeal, see APPEAL AND ERROR, 928, 932. Change of venue in prosecution for, see VENUE, 28. Competency of wife as witness against hus- band in prosecution for, see WITNESSES, 33. Cross-examination of witnesses, see WIT- NESSES, 108. Cross-examination of accused, see WIT- NESSES, 121. Contradicting or discrediting witnesses, see WITNESSES, 150, 151, 173, 174-176. Corroboration of witness, see WITNESSES, 194. I. In general. (See also same heading in Digest L.R.A. 1-10.) 1. The defense of insanity to a charge of murder in the first degree in no event ad- mi '! the grade of the offense charged. State v. Speyer, 14: 836, 106 S. W 505, 207 Mo. 540. Negligent homicide. By neglecting dependent person, see infra, 12-16, 47. Effect of concurring cause, see infra, 52-56. Intent of one setting spring gun, see EVI- DENCE, 1635. Question for jury as to whether killing was natural result of negligence, see TRIAL, 189. Question for jury as to negligence, see TRIAL, 674. Instructions in prosecution for, see TRIAL, 943, 1069, 1086. See also infra, 74; JURY, 76. 2. The mere fact that a pregnant wom- an, so badly frightened by the reckless firing of guns on the highway as to cause her to abort shortly thereafter, languished and died, does not render the one respon- sible for the firing indictable for murder, since the death cannot be said to be the natural or probable result of the fright. Com. v. Couch, 16: 327, 106 S. W. 830, 32 Ky. L. Rep. 638. (Annotated) 3. One who drives an automobile with criminal negligence so that a passenger is thrown out and the resulting shock causes delirium tremens because of his alcoholic condition, which results in death, is guilty of manslaughter, if the illness would not have occurred and caused the death had the wounds from the fall not been received. State v. Block, 49: 913, 89 Atl. 167, 87 Con. 573. 4. One is guilty of homicide who, with reckless disregard for the safety of others, so negligently drives an automobile in a public street as to strike and kill a pedes- Digest 1-52 L.R.A. (N.S.) trian. State v. Goetz, 30: 458, 76 Atl. 1000, 83 Conn. 437. (Annotated) 5. One who drives an automobile reck- lessly, carelessly, and negligently, and at a rate of speed forbidden by the statute, upon the public streets or highways of this state, and thereby causes the death of another, is guilty of criminal homicide. Schultz v. State, 33: 403, 130 N. W. 972, 89 Neb. 34. ( Annotated ) 6. Where a person wilfully, recklessly, carelessly, and negligently, and at an unlaw- ful rate of speed, as defined by the statute, drives his automobile upon the public streets and highways, and thereby kills another, negligence of the driver of another car, in which the deceased was riding when he was killed, cannot be invoked, under ordinary circumstances, to relieve such person of criminal liability. Schultz v. State, 33: 403, 130 N W. 972, 89 Neb. 34. 7. A physician may be charged with manslaughter by causing the death of a sick child by advising a diet which results in its starvation, under a statute which treats all persons concerned in the commission of an offense as principals, although it was the mother of the child who actually withheld the food from it in the absence of the ac- cused. State v. McFadden, 14: 1140, 93 Pac. 414, 48 Wash. 259. 8. One guilty of gross negligence in han- dling a gun, by reason of which he produces the death of another, may be convicted of manslaughter in the second degree. Mc- Daniel v. State, 21:678, 46 So. 988, 156 Ala. 40. 9. One who intentionally points a gun at another, which is by statute made a mis- demeanor, is guilty of manslaughter in the second degree if the gun, while so pointed, is accidentally discharged, producing the death of the one towards whom it is pointed. McDaniel v. State, 21: 678, 46 So. 988, 156 Ala. 40. 10. If one points a loaded gun and dis- charges it in a direction other than at a person who is in fact killed by the bullet reaching his person, glancing from another object, that one is yet guilty of a homi- cidal offense, if he knew, or ought reason- ably to have known, that his conduct was dangerous to human life and yet he acted regardless thereof. Oborn v. State, 31:966, 126 N. W. 737, 143 Wis. 249. 11. One is guilty of manslaughter who killed another with a gun intentionally pointed at him, although it was believed to have been unloaded, where such pointing of a gun is, by statute, made a misdemeanor, and the gun had not been handled for sev- eral weeks, so that accused was culpably negligent. State v. Stitt, 17: 308, 61 S. E. 566, 146 N. C. 643. Neglect; failure to furnish medical care. See also infra, 47. 12. For a parent having special charge of an infant child to neglect it so culpably that death ensues as a consequence of such neglect is manslaughter, although death or HOMICIDE, I. 1423 grievous bodily harm was not intended. Stehr v. State, 45: 559, 139 N. W. 676, 92 Neb. 755. 13. One charged with the support and control of a child of tender years, suffering with frozen feet, who negligently and wil- fully fails or refuses to obtain for it nec- essary medical aid, thereby causing its death, may be guilty of such criminal neg- ligence as to render him guilty of man- slaughter. Stehr v. State, 45: 559, 139 N. W. 676, 92 Neb. 755. (Annotated) 34. A man cannot be convicted of invol- untary manslaughter in failing to furnish medical assistance to his wife during her confinement, if his failure to secure a physi- cian was due to her insisting that she could manage the case without sucli aid, and he, after assisting her all he could, and upon discovering her peril, called upon neighbors for assistance and then secured a physician, whose services did not then prevent death. Westrup v. Com. 6: 685, 93 S. W. 646, 123 Ky. 95. (Annotated) 15. Evidence that defendant's child, an infant between 6 and 7 years of age and a member of his household, was ill with a disease which turned out to be diphtheria from a Thursday to the following Tuesday, when it died of such disease, during part of which time it had Christian Science treat- ment, but not medical aid or assistance in the ordinary sense of the term; that if the child had received the medical treatment usual in such cases its life would have been prolonged and in all probability it would have recovered; together with defendant's admission that he realized the serious condi- tion of the child, and. had he not been a Christian Scientist, that he would have called a doctor, is sufficient to warrant the jury in finding him guilty of manslaughter. Rex v. Lewis, 1 B. R. C. 732, 6 Ont. L. Rep. 132. 16. One who has taken to his rooms for a carousal a woman accustomed to debauch- ery and assignations owes her no such legal duty that he will be guilty of manslaughter if, after the lapse of a couple of days, dur- ing which they have consumed much in- toxicating liquor, when it becomes neces- sary for her to depart, she takes a drug with suicidal intent, and he does nothing to prevent her death, which results in due course. People v. Beardsley, 13: 1020, 113 N. W. 1128, 150 Mich. 206. Deliberation; premeditation; wilful- ness. Necessity of instruction aa to cooling time, see TRIAL, 930. Correctness of instruction which fails to require jury to find premeditation and deliberation, see TRIAL, 1091. See also infra, 41. 17. Deliberation and premeditation are not necessary elements of the crime of mur- der. State v. McGuire, 38: 1045, 80 Atl. 761, 84 Conn. 470. 18. An instruction which tells the jury that before they can find the defendant guilty of murder, they must believe from the evi- dence beyond all reasonable doubt that the Digest 1-52 L.R.A.(N.S.) defendant wilfully, maliciously, deliberate- ly, feloniously, and unlawfully killed the deceased, is erroneous since it is not neces- sary that these elements should coexist in order to find the defendant guilty of mur- der in the second degree State v. Legg, 3: 1152, 53 S. E. 545, 59 W. Va. 315. 19. To bring a homicide within the stat- ute defining murder in the first degree as one committed with deliberately premeditated malice aforethought, all that is necessary is that a resolution to kill must have fol- lowed deliberation and premeditation, and that the killing must have been in pur- suance of the resolution, regardless of the rapidity with which the commission of the crime followed its first suggestion. Com. v. Tucker, 7: 1056, 76 N. E. 127, 189 Mass. 457. (Annotated) 20. A killing which is not deliberate, malicious, or for revenge, but is intentional, is murder in the second degree, or man- slaughter in the fourth degree, under a stat- ute which declares an intentional killing without malice aforethought to be man- slaughter in that degree. State v. Speyer, 14: 836, 106 S. W. 505, 207 Mo. 540. 21. One who prepares himself with a deadly weapon and lies in wait for a tres- passer on his property may be found guilty of murder for killing him, although a statute provides that every person who shall unnecessarily kill another while re- sisting an attempt by such person to do an unlawful act shall be guilty of man- slaughter. Brown v. State, 34: 8n, 54 So. 305, 98 Miss. 786. 22. The killing of a boy by his father is not deliberate, within the rule that a kill- ing must be with premeditation and delib- eration to constitute murder in the first de- gree, when the father, under apprehension of immediate separation from the child, and the fear that it may be disgraced and mis- treated, finding it asleep, is struck with the thought of killing it, which he instantly ex- ecutes, no malignity existing in his heart towards the child at the time, and the deed not being prompted by motives of revenge. State v. Speyer, 14: 836, 106 S. W. 505. 207 Mo. 540. 23. Wilfulness is a necessary ingredient of the crime of manslaughter. Shipp v. Com. 10 : 335, 99 S. W. 945, 124 Ky. 643. Malice; intent, Intent of one setting spring gun, see EVI- DENCE, 1635. Intent as question for jury, see TRIAL, 292. Question for jury as to existence of malice, see TRIAL, 670. See also supra, 18-20; infra, 41, 47. 24. Legal malice is the intent unlawfully to take human life in cases where the law neither mitigates nor justifies the killing. Mann v. State, 4: 934, 53 S. E. 324, 124 Ga. 760. 25. Hatred, ill-will, or malevolence on the part of the accused towards deceased is not a necessary ingredient of the malice necessary to constitute murder in the first degree. Turner v. Stato, 15: 988, 108 S. W. 1139, 119 Tenn. 663. 1424 HOMICIDE, I. 26. To sustain a conviction for murder, it is as essential to show the intent direct- ly or circumstantially as it is to show the killing itself, since intent is a part of the res gestce. Smithson v. State, 36: 397, 137 S. W. 487, 124 Tenn. 218. 27. To sustain a conviction of murder, the jury must find that the killing was done with malice aforethought. Watkins v. Com. 38: 1052, 142 S. W. 1035, 146 Ky. 449. (Annotated) 28. Malice aforethought in the law of homicide relates not merely to the state of mind of the person who unlawfully kills another, but to the moral aspect of the act as indicated by all the conditions and circumstances attending it. State v. Mc- Guire, 38: 1045, 80 Atl. 761, 84 Conn. 470. (Annotated) 29. Although murder perpetrated by means of poison is declared to be murder in the first degree by Idaho Rev. Stat. 1887, 6562, yet it is necessary to prove "malice aforethought," which, under 6560, is an es- sential element of the crime of murder. State v. Phinney, 12: 935, 89 Pac. 634, 13 Idaho, 307. 30. One cannot be convicted of homicide by the use of a baseball bat in the absence of anything to show an intent to kill, since such bat is not per se a deadly weapon. Crow v. State, 21: 497, 116 S. W. 52, 55 Tex. Crim. Rep. 200. (Annotated) 31. Where malice and intent are ele- ments of murder in the second degree, a person is not, as matter of law, guilty of that crime because he sets a spring gun from which a homicide results. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. (Annotated) 32. One who shoots at another, although without intending to kill him, cannot, if the shot proves fatal, be convicted of an of- fense defined by statute as the involuntary killing of another. Johnson v. State, 5: 809, 108 N. W. 55, 129 Wis. 146. Motive. 33. The showing of motive is not neces- sary to sustain a conviction for murder. House v. State, 21: 840, 48 So. 3, 94 Miss. 107. 34. Proof of motive is not indispensable in a prosecution for homicide where the jury is satisfied of the guilt of the accused with- out it. State v. Buck, 42: 854, 127 Pac. 631, 88 Kan. 114. While engaged in unlawful act. Question for jury as to, see TRIAL, 189. See also CRIMINAL LAW, 50-52. 35. Death resulting from the violation of a municipal ordinance is not within the meaning of a statute defining manslaughter as the unintentional killing of another while the slayer is in the commission of some unlawful act. State v. Collingsworth, 28: 770, 92 N. E. 22, 82 Ohio St. 154. (Annotated) 36. One who in making an unlawful as- sault upon another so terrorizes his relative that death ensues from fright, fear, or ner- vous shock, is guilty of involuntary man- slaughter, under a statute defining that of- Digest 1-52 L.R.A.(N.S.) fense to be the unlawful killing of a human being in the commission of an unlawful act not amounting to felony. Ex parte Heigho, 32: 877, 110 Pac. 1029, 18 Idaho, 566. 37. Mere violation of a statute making it a misdemeanor to hunt on another's property without a permit is not such an unlawful act as to render an accidental homicide committed while so doing a crimin- al offense. State v. Horton, i : 991, 51 S. E. 945, 139 N. C. 588. (Annotated) 38. An offense malum in se is one which is naturally evil as adjudged by the sense of a civilized community. State v. Horton, i: 991, 51 S. E. 945, 139 N. C. 588. 39. A burglar who, while attempting to escapa from the building which he had fe- loniously entered, meets, at a short dis- tance therefrom and upon another Jot, a po- lice officer, whom he shoots and k:!ls after the latter had commanded him to halt, is properly found guilty of murder in the first degree, committed while "in thd perpetra- tion of the burglary," within the meaning of Ohio Rev. Stat. 6808. Conn,d v. State, 6: 1154, 78 N. E. 957, 75 Ohio St. 52. 40. One is not guilty of manslaughter for the death of a bystander through the glancing of a bullet, when, being guilty of a misdemeanor in violating statutes against carrying concealed weapons, being drunk in a highway, and shooting in a highway, he fires a pistol into the ground, unless the death is the natural or probable result of his act. Dixon v. State, 45: 219, 61 So. 423, 104 Miss. 410. (Annotated) 41. Homicide committed in the perpe- tration of a robbery is murder in the first degree; in such a case the turpitude of the act supplies the element of deliberate and premeditated malice. Pumphrey v. State, 23: 1023, 122 N. W. 19, 84 Neb. 636. 42. An information alleging the use of a certain instrument to procure the abortion or miscarriage of a woman pregnant with a vitalized embryo, not necessary or medically advised to be necessary to preserve her life, resulting in her death, charges a crime which would be murder at the common law, and which is manslaughter in the first de- gree under 12 of the crimes act (Gen. Stat. 1909, 2500). State v. Harris, 49: 580, 136 Pac. 264, 90 Kan. 807. 43. Although an instrument is used with the assent of the woman for the sole pur- pose of procuring an abortion or miscar- riage, still such use and purpose being im- moral, violative of the law of nature, de- liberate in character, reckless of life, and necessarily attended with danger to the mother and likely seriously to injure her, if her death result the common law will imply malice, and hold the person so using such instrument guilty of her murder, re- gardless of whether she was pregnant with a quick child or with a vitalized embryo. State v. Harris, 49: 580, 136 Pac. 264, 90 Kan. 807. (Annotated) Infliction of fatal wound by third person. Homicide by co-conspirator, see LAW, 50-52. se i* HOMICIDE, I. 1425 44. One is not guilty of murder for the death of a bystander, who is struck by a ball fired at the accused in self-defense, by one on whom he is attempting to commit rob- bery. Com. v. Moore, 2: 719, 88 S. W. 1085, 121 Ky. 97. (Annotated) 45. One who, by interfering in aid of his insane parent, whom officers are attempting to arrest, frees his hands, and enables him to kill one of the officers, is guilty of mur- der. Johnson v. State, 2: 897, 38 So. 182, 142 Ala. 70. (Annotated) 46. The mere presence of a woman when her paramour kills her husband, at a place to which the latter had followed them, does not render her guilty of homicide. State v. Larkin, 46: 13, 157 S. W. 600, 250 Mo. 218. Encouraging or abetting killing by another. 47. Mere presence and participation in the act of killing a human being are not con- clusive evidence of consent and concurrence in the perpetration of the act, by one sought to be held responsible for the homicide as aiding and abetting the actual perpetrator, unless the accused participated in the felonious design of the person killing. Brooks v. State, 12:889, 57 S. E. 483, 128 Ga. 261. (Annotated) 48. The mere attempt to flee from the scene of a homicide before the fatal shot is fired will not absolve from responsibility one who aided, abetted, and encouraged its com- mission to the extent of commanding the one who committed it to shoot deceased. State v. Forsha, 4: 576, 88 S. W. 746, 190 Mo. 296. (Annotated) 49. One who has instructed another to kill a third, and furnished him with shells for that purpose, is not responsible for the killing if, after being diverted from his pur- pose, the person receiving the instructions effects the killing to aid a stranger with whom the intended victim has become in- volved in a quarrel. Owens v. State, 21: 782, 33 So. 718, 82 Miss. 18. Encouraging or urging another to commit suicide. 50. One is not guilty of murder in induc- ing another to take poison which results in the latter's death, if the latter knew the character of the poison, and took it volun- tarily for the purpose of committing sui- cide, under a statute providing that, if any person, with intent to injure, cause another person to inhale or swallow any substance injurious to health, he shall 'be deemed guilty of murder if death results. Sanders v. State, 22: 243, 112 S. W. 68, 54 Tex. Crim. Rep. 101. (Annotated) Mutual combat. 51. Where persons armed with deadly weapons voluntarily and willingly enter in- to a combat, knowing or having reason to believe that such conflict will result in the infliction of serious bodily injury or in the death of one or the other of said parties, and one of said parties is killed in such con- flict, the party doing the killing is guilty of murder, and is not entitled to bail. Ex parte Colby, 45: 646, 124 Pac. 635, 6 Okla. Crim. Rep. 187. (Annotated) Digest 1-52 L.R.A.(N.S-) 90 Concurring causes of death; improper treatment. 52. One who has inflicted a wound upon another not necessarily fatal is not guilty of murder where the injury resulting, co- operating with the intervening act of a re- sponsible agency, resulted in death. State v. Angelina, 51: 877, 80 S. E. 141, 73 W. Va. 146. (Annotated) 53. One who inflicts a mortal wound up- on another is not guilty of murder if an in- tervening responsible agent wrongfully accelerates death by inflicting another in- jury, but such person is guilty of murder if the intervening agent is irresponsible. State v. Angelina, 51:877, 80 S. E. 141, 73 W. Va. 146. 54. One of two persons who cause the death of another by shooting is guilty of homicide if the wound inflicted by him con- tributed to or hastened the death, although alone it might not have been fatal. Ben- nett v. Com. 43: 419, 150 S. W. 806, 150 Ky. 604. (Annotated) 55. One inflicting a wound upon an- other which is not necessarily fatal is not guilty of any degree of culpable homicide, although the victim dies, if the death is caused by the neglect of deceased in caring for himself after receiving the injury, or if his physician so grossly mistreats him as to cause his death. Noble v. State, 22: 841, 113 S. W. 281, 54 Tex. Crim. Rep. 436. (Annotated) 56. Inflicting upon another a wound not calculated to endanger or destroy life, but which, because of improper treatment, does have that effect, does not render one guilty of murder. Tibbs v. Com. 28: 665, 128 S. W. 871, 138 Ky. 558. (Annotated) Miscellaneous. 57. The grade of a homicide as first-de- gree murder is not changed by the fact that it was committed in pursuance of a joint agreement for the simultaneous death of both parties. Turner v. State, 15: 988, 108 S. W. 1139, 119 Tenn. 663. (Annotated) 58. A verdict of manslaughter cannot be justified against one who lies in wait for his victim, seizes him without warning, and ends his life with a deadly weapon. People v. Owen, 21 : 520, 118 N. W. 590, 154 Mich. 571. 59. One hitting a bystander when shoot- ing at another with intent to kill the lat- ter may be convicted therefor, under a statute providing for the punishment of whoever shall shoot any person with a dan- gerous weapon with intent to commit mur- der. State v. Thomas, 37: 172, 53 So. 868. 127 La. 576. 60. The fact that one who has set a spring gun to protect his property warns the one who is killed by it of its existence is no defense to his prosecution for murder, unless the notice is brought home to de- cedent in such a way that his act in inter- fering with the gun is a deliberate attempt to take his own life, although, if accused warned the only person who had a right to be where the gun was, that fact may be ad- missible in evidence as bearing on the ques- 1426 HOMICIDE, II. tion of malice. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. 61. Evidence that one who, after a dis- pute with one not much, if any, his supe- rior in strength, as to who would pay for a round of drinks, upon being called a liar, procured a weapon and returned to securi an apology or revenge, drew the weapon, and, while his adversary was merely seek- ing to prevent its successful use, discharged it four times, sending three bullets into his victim with fatal effect, may be found to evince a depraved mind regardless of human life within the meaning of a statute de- claring a killing perpetrated by an act im- minently dangerous to others, and evincing a depraved mind, regardless of human life, without any premeditated design to effect death, to be murder in the second degree. Johnson v. State, 5: 809, 108 N. W. 55, 129 Wis. 146. II. What reduces crime to man- slaughter. (See also same heading in Digest L.R.A. 1-10.) Effect of intoxication, see APPEAL AND EB- BOR, 863 ; CRIMINAL LAW, 34, 35, 37-42. Instruction as to manslaughter, see TRIAL, 918, 921-923, 1088. See also supra, 7-11, 20, 21. 62. The fact that a wife murdered by her husband was unchaste is not sufficient to reduce the homicide below the grade of murder, where the killing did not occur in a sudden heat of passion resulting from adequate cause. Rogers v. State, 10: 999, 57 S. E. 227, 128 Ga. 67. 63. The killing of a motorman by shoot- ing him will not be reduced to manslaugh- ter by the fact that, being a powerful man, he had just assaulted a smaller man, a friend of the one doing the shooting, because of misunderstanding as to payment of fare, if the assault had ceased, and he was re- tiring from the combat. Com. v. Paese, 17: 795, 69 Atl. 891, 220 Pa. 371. (Annotated) Heat of passion. Reversal for erroneous definition of, see AP- PEAL A D ERROR, 1324. Failure to define, see APPEAL AND ERROR, 1430. Presumption of, see EVIDENCE, 109. Question for jury as to, see TRIAL, 293. Necessity of instruction as to cooling time, see TRIAL, 930. 64. Heat of passion, necessitating the submission to the jury of the question of liability for manslaughter, rather than mur- der, may be found where defendant, whose wife had eloped with another man, and had returned at his solicitation, became con- vinced that she was deceiving him as to the bona fides of the reconciliation, and, seeing her in company with her paramour with what he believed to be signs and conduct of ridicule of himself, he, an hour or two later, equipped himself with a weapon, rushed to the place where he thought he Digest 1-52 L.R.A.(N.S.) might find the paramour, shot the latter'* friend, and then rushed, apparently blindly, to where his wife was and shot her, al- though he himself testified that he acted under delirium and unconsciousness of his acts. Duthey v. State, 10: 1032, 111 N. VV. 222, 131 Wis. 178. 65. The heat of passion which will re- duce what would otherwise be murder to manslaughter in the third degree is such mental disturbance caused by a reasonable and adequate provocation as would ordinari- ly so overcome and dominate, or suspend the exercise of, the judgment of an ordinary man as to render his mind for the time be- ing deaf to the voice of reason, to make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree, and to cause him uncontrollably to act from the impell- ing force of the disturbing cause, rather than from any real wickedness of heart or cruelty and recklessness of disposition. Johnson v. State, 5: 809, 108 N. W. 55, 128 Wis. 146. (Annotated) 66. A homicide is not reduced from mur- der to voluntary manslaughter by the fact that it resulted from sudden passion in- duced by the application to assailant of the epithet "son of a bitch." Freddo v. State, 44: 659, 155 S. W. 170, 127 Tenn. 376. 67. The killing by one convict of an- other who was abetting a warden in in- flicting illegal corporal punishment upon the former amounts to voluntary manslaughter only, where the killing was the result of sudden and irresistible impulse of passion caused by the assault, as the security of person, except as expressly provided by statute, remains the convict's right, and if it be unlawfully invaded he may resist such unlawful invasion as if there had been no conviction, and is therefore entitled to the same immunities as a freeman. Westbrook v. State, 26: 591, 66 S. E. 788, 133 Ga. 578. 68. Absence of design to effect death, necessitating the submission to the jury of the question of liability for manslaughter rather than murder, may be found from the fact that a man who, after having effected a reconciliation with his wife, who had eloped with another, became convinced that she was deceiving him. and, in an apparent blind rage and passion, rushed to a place where she was, threw open the door into a room where there were a number of per- sons, and immediately fired his weapon, showing confusion, excitement, and nonob- servance of things about him, and the sub- sequent manifestation of ignorance of and surprise at the fact of his victim's death. Duthey v. State, 10: 1032, 111 N. W. 222, 131 Wis. 178. 69. Confession by a wife of adultery, and the assertion of intention to see her paramour again, is not sufficient to reduce to manslaughter her husband's killing of her, under a statute providing that, to have that effect, there must be an assault or at- tempt to commit serious injury, "or other equivalent circumstances, to justify the ex- HOMICIDE, III. a. 1427 eitement of passion." Stevens v. State, 38: 99, 73 S. E. 737, 137 Ga. 520. (Annotated) Provocation. Question for jury as to, see TRIAL, 672. 70. Mere words, however abusive and in- sulting, will not justify an assault, nor con- stitute a sufficient provocation to reduce to manslaughter what would otherwise be mur- der. State v. Burlington, 4: 154, 81 Pac. 465, 71 Kan. 804. (Annotated) 71. The application to another of an opprobrious epithet by one in a squatting position, and uis attempt to rise apparently to advance upon the one to whom the epithet is applied, are not sufficient to re- duce his killing by the other to manslaugh- ter, if he was not at the time in. a position to make an assault. Freddo v. State, 44: 659, 155 S. W. 170, 127 Tenn. 376. III. Excusable or justifiable homicide, a. In general. (See also same heading in Digest L.R.A. I-70J Effect of intoxication on liability for, see APPEAL AND EBEOB, 863; CRIMINAL LAW, 34, 35, 37^42. Insanity or irresistible impulse as defense, see CRIMINAL LAW, 29-35. Effect of somnambulism, see CRIMINAL LAW, 31. Reasonableness of belief that person killed was attempting burglary, see TRIAL, 197. Duty to instruct as to, see TRIAL, 926-928. 72. A wife's want of chastity will not justify her husband in killing her. Rogers v. State, 10 : 999, 57 S. E. 227, 128 Ga. 67. 73. One has no right to take human life, directly or indirectly, to prevent a mere trespass upon, or theft of, his property. State v. Marfaudille, 14: 346, 92 Pac. 939, 48 Wash. 117. 74. A homicide resulting from the run- ning of fire apparatus through a crowd in answer to a false alarm turned in by the participants in the run, for the avowed pur- pose of making the run to see the people scatter, is not excusable under a statute providing that homicide shall be excusable when committed by accident, or in doing any other lawful act by lawful means with the usual and ordinary caution, and with- out unlawful intent. State v. Brecount, 28: 187, 107 Pac. 763, 82 Kan. 195. In resisting arrest. See also infra, 94. 75. Resistance to the extent of taking life cannot be made to an unlawful arrest where the arrest is attempted by a known officer and nothing is to be reasonably ap- prehended Beyond a mere temporary deten- tion in jail. State v. Meyers, 33: 143, 110 Pac. 407, 57 Or. 50. (Annotated) In making arrest. As to instructions, see TRIAL, 932. See also infra, 105. 76. A peace officer in arresting one Digest 1-52 L.R.A. (N.S.) charged with a misdemeanor has no right to shoot him, unless he forcibly resists the arrest and the arrest cannot otherwise be made, or it appears to the officer, in the exercise of a reasonable judgment, that it cannot be otherwise made. Com. v. Mar- cum, 24: 1194, 122 S. W. 215, 135 Ky. 1. 77. A watchman not a police officer, who, to effect the arrest of a person who is not shown to have committed any offense, and whom he was therefore not justified in ar- resting, shoots him, cannot avoid liability for murder on the theory that he intended only to wound him to effect the arrest, and not to kill him. Demato v. People, 35: 621, 111 Pac. 703, 49 Colo. 147. (Annotated) Defense of dwelling. Duty to instruct as to, see TRIAL, 925. 78. Where one is assailed in his home or domicil, or the home is attacked, he may use such means as are necessary to repel the assailant from the house, or prevent his forcible entry or material injury to the home, even to the taking of life; but a homicide in such a case would not be justi- fiable unless the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that the killing is necessary to repel the assail- ant or prevent his forcible entry. Young v. State, 2: 66, 104 N. W. 867, 74 Neb. 346. (Annotated) 79. A box stall at a fair ground, pro- vided with inside fastenings to its doors, which is prepared and used by a man as his office and sleeping apartment, the place where he resides, he having no other place of abode, and which contains his clothing, his money, and all of his belongings, is in legal effect his home or domicil. Young v. State, 2: 66, 104 N. W. 867, 74 Neb. 364. 80. A householder who is awakened from sleep at night to find a stranger kicking at the door and threatening to enter the dwelling will be justified, upon the stran- ger's breaking a window to effect an en- trance, in killing him, although the intrud- er is not armed, if the householder be- lieves, or has reasonable ground to believe, that his act is necessary to prevent harm to himself or his family, or the violent entry of his home. State v. Gray, 45: 71, 77 S. E. 833, 162 N. C. 608. (Annotated) 81. A man may kill his brother-in-law to prevent the latter from entering his house in search of the wife of the brother- in-law if he believes, upon reasonable cause, that the brother-in-law feloniously intends to assault or kill inmates of the house, under a statute making justifiable a homi- cide in defense of habitation against one who manifestly intends in a violent man- ner to enter the habitation of another, for the purpose of assaulting or offering person- al violence to any person therein. Bailey v. People, 45: 145, 130 Pac. 832, 54 Colo. 337. (Annotated) 82. A roomer in a house cannot when attacked by its owner, in the building, out of his own room, take life, without re- treating, on the theory that he is in his 1428 HOMICIDE, III. b. own habitation. State v. Dyer, 29: 459, 124 N. W. 629, 147 Iowa, 217. Defense of third person. Prejudicial error in instruction, see APPEAL AND ERROR, 1326, 1327. See alao supra, 81. 83. One who strikes to defend his brother from assault is bound by his brother's fault in bringing on the difficulty, although the assistance is rendered in good faith, in a sudden emergency affording no time to discover who the aggressor was. State v. Cook, 15: 1013, 59 S. E. 862, 78 S. C. 253. (Annotated) 84. The use of more force than is neces- sary, which results in killing the assailant, will not render one guilty of murder, who goes to the defense of his child against an assault which threatens death or serious bodily injury. May hew v. State, 39: 671, 144 S. W. 229, Tex. Grim. Eep. . 85. The culpability of one who kills an assailant in defense of his son is not meas- ured by the rights which the son might have had to defend himself, but upon the appear- ance of conditions when the father appeared upon the scene, unless he knew, or might reasonably have known, the actual rights possessed by the son under the circum- stances of the- conflict. Mayhew v. State, 39: 671, 144 S. W. 229, Tex. Crim. Rep. . ( Annotated ) 86. That one who kills another in de- fense of his son was informed and believed that deceased had made threats of bodily harm or death against the son will justify his acting, although the threats were not in fact made. Mayhew v. State, 39: 671, 144 S. W. 229, Tex. Crim. Rep. . 87. A concert of action between two per- sons assailing another with intent to kill him or do him great bodily harm is not necessary to justify the father of the latter in defending the son against the attacks of both or either, to the extent of taking life, if necessary. Mayhew v. State, 39: 671, 144 S. W. 229, Tex. Crim. Rep. . 88. That one had, because of provocation, threatened to kill another, will not render him guilty of murder if, upon the latter's attacking his son, he goes to the aid of the son and kills the assailant, for the sole purpose of protecting the son from death or great bodily injury. Mayhew v. State, 39: 671, 144 S. W. 229, Tex. Crim. Rep. 89. Under a statute making homicide justifiable when committed by a parent while resisting an attempt to commit fel- only upon a child, when there is a reason- able ground to apprehend the design to com- mit a felony or to do some great personal injury, and imminent danger of such design being accomplished, a father has the light to defend his daughter against an assault with intent to rape, irrespective of her previous reputation, and he may do this immediately and with the most effective means at his command; and, if he kills her assailant, the law will hold him guiltless, even though it may afterwards turn out that he might have prevented the offense l>igest 1-52 L.R.A.(N.S.) by the use of some other means, provided only that the father acts in good faith, and upon reasonable appearances of immi- nent danger to his daughter. Litchfield v. State, 45: 153, 126 Pac. 707. 8 Okla. Crim. Rep. 164. 90. Under a statute making homicide justifiable when committed by a parent in the lawful defense of his child when there is a reasonable ground to apprehend a de- sign to commit a felony, or to do some great personal injury upon such child, and imminent danger of such design being ac- complished, the right therein given may be exercised for prevention alone, and never can justify that which is done for ven- geance only, and after the commission of the felony or bodily injury is complete. Litch- field v. State, 45: 153, 126 Pac. 707, 8 Okla. Crim. Rep. 164. ft. Self-defense. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to, see EVIDENCE, 91, 107, 108. Admissibility of threats by person killed, see EVIDENCE, 1479-1483. Evidence as to character or reputation of person killed, see EVIDENCE, 1560-1567. Question for jury as to, see TRIAL, 671, 674. Duty to instruct as to, see TRIAL, 925. Correctness of instruction as to, see TRIAL, 1090, 1093. See also supra, 67 91. One is not deprived of the right to use a weapon in self-defense by the fact that, at the time, he is carrying it contrary to law. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 92. One is not deprived of the right of self-defense when attacked by another, by the fact that he has enticed the latter's wife from her home for illicit purposes. State v. Larkin, 46: 13, 157 S. W. 600, 250 Mo. 218. (Annotated) 93. One loses his right to shoot again in self-defense after firing a shot which dis- abled his assailant so that there is no 'onger any apparent danger, and if he con- tinues to shoot, thereby producing or has- tening the death of his victim, he may be guilty of manslaughter. Burnaman v. State, 46: 1001, 159 S. W. 244, 70 Tex. Crim. Rep. 361. 94. That an officer attempting to rearrest one who, having been arrested under war- rant for misdemeanor, has escaped from cus- tody, dangerously menaces his life, does not authorize him to kill the officer in self-de- fense, especially where the statute makes one guilty of misdemeanor who obstructs an officer in the discharge of his duty. State v. Durham, 5: 1016, 53 S. E. 720, 141 N. C. 741. (Annotated) Provoking difficulty. 95. Voluntarily entering into a diffi- culty which results in a homicide does HOROSCOPE; HORSE RACE. 1429 not deprive one of the right to rely on self- defense as a justification, unless it is done for some unlawful purpose. State v. Feeley, 3: 351, 92 S. W. 663, 194 Mo. 300. 96. One is not deprived of the right of self-defense by the fact that he seeks an- other to straighten out a misunderstanding, and, during the interview, applies to him op- probrious epithets which provoke an as- sault. State v. Doris, 16: 660, 94 Pac. 44, 51 Or. 136. 97. That one who seeks an interview with another, who he is justified in be- lieving has insulted his wife, uses toward him, during the interview, words of abuse and vilification, does not deprive him of the right of self-defense, if his adversary is thereby provoked to make an attack on him. Gray v. State, 22: 513, 114 S. W. 635, 55 Tex. Crim. Rep. 90. Duty to retreat. Instructions as to, see APPEAL AND ERROR, 1327; TRIAL, 924. See also supra, 82. 98. The duty to retreat before killing in self-defense does not arise in case of one who, knowing of .repeated threats to kill him, made by the person killed, went, at the latter's request, to his place, taking his rifle with him, in accordance with the cus- tom of the country, to settle a dispute over a crop of hay, and shot and killed the de- ceased while he was attempting to get his gun, which was near at hand, as an attempt to escape would have been futile. State v. Gardner, 2: 49, 104 N. W. 971, 96 Minn. 318. (Annotated) 99. The application of the doctrine of "retreat to the wall," originating, as it did, before the general introduction o; firearms, has due reference to the difference in danger between a hand to hand encounter with fists, clubs, or even knives, and an en- counter in an open space, involving the use of repeating rifles by men experienced in handling them. State v. Gardner, 2: 49, 104 N. W. 971, 96 Minn. 318. (Annotated) 100. In case of affray, where retreat is necessary before taking the adversary's life in self-defense, that retreat must be in good faith, not as a cover to execute a fixed design to kill. State v. Hood, 15: 448, 59 S. E. 971, 63 W. Va. 182. 101. One assaulted by a trespasser with a deadly weapon when within a few feet of his doorstep is not bound to retreat, but may meet force with force, even though the result is the death of his adversary. State v. Brooks, 17: 483, 60 S. E. 518, 79 S. C. 144. Apprehension of danger; necessity of act. Evidence to rebut necessity of, see EVIDENCE, 1924. Question for jury as to, see TRIAL, 673. 102. One cannot excuse the taking, of life, on the ground of self-defense, unless it was, or reasonably appeared to be, the only means of saving his own life, or pre- venting great bodily injury. State v. Dyer, 29: 459, 124 N. W. 629, 147 Iowa, 217. 103. That one accused of murder believed Digest 1-52 L,.R.A.(N.S.) that it was necessary to take the life of his adversary to protect himself will not absolve him from liability, unless lie had reasonable cause to apprehend danger, which fact must appear from the evidence. State v. Beckner, 3: 535, 91 S. W. 892, 194 Mo. 281. (Annotated) 104. That the besotted condition of mind, produced by voluntary intoxication, induced a misapprehension as to hostile intentions of another, does not relieve the intoxicated person from criminal liability for killing the other on the theory that he acted in self-defense. Atkins v. State, 13: 1031, 105 S. W. 353, 119 Tenn. 458. 105. A watchman who, in attempting to take into custody a person who has not committed any crime, causes the latter to discharge a gun towards him, cannot justify shooting him after he has turned and fled, on the theory that there is an affray be- tween the parties. Demate v. People, 35: 621, 111 Pac. 703, 49 Colo. 147. HOROSCOPE. Forbidding casting or reading of, see CON- STITUTIONAL LAW, 762. HORSE RACE. Liability for injury to participant in, see ACTION OR SUIT, 39; AMUSEMENTS, 16; ANIMALS, 30, 31; APPEAL AND ERROR, 1241; PLEADING, 149-153, 279. Ticket of admission to race track as revoca- ble license, see AMUSEMENTS, 1. Betting on, see BETTING; GAMING, 22-26. Sale of pools on, as breach of peace, see BREACH OF PEACE, 4. Delegation to commissioner of power to li- cense, see CONSTITUTIONAL LAW, 101. Class legislation as to, see CONSTITUTIONAL LAW, 246. Regulation of, in exercise of police power, see CONSTITUTIONAL LAW, 682. Right of one obtaining license for business of book making and pool selling in vio- lation of statute, see CONTRACTS, 583. Liability for injury by, on street, see HIGH- WAYS, 210, 211, 286. Larceny by fraudulent race, see LARCENY, 28. Revoking license of racing association, see LICENSE, 30. Right of commission empowered to regulate horse races to forbid book making, see LICENSE, 42. Nuisance in connection with, see NUI- SANCES, 56, 59, 60. Injury to spectator. 1. A patron of a fair on the grounds of which is maintained a track for horse racing is not, in attempting to drive from one side to the other of the track, when assured of the safety of so doing by the 1430 HORSES; HORSE TRADE. attendant at the opening, hound to main- tain a constant lookout for horses which may be approaching on the track. Higgins v. Franklin County Agri. Soc. 3: 1132, 62 Atl. 708, 100 Me. 565. 2. A fair association which maintains on its grounds a track for horse racing is bound to use reasonable care to keep the track free from danger to patrons at times when they are invited or permitted to cross, and while they are thus crossing. Higgins v. Franklin County Agri. Soc. 3: 1132, 62 Atl. 708, 100 Me. 565. (Annotated) HORSES. Fostering breeding of thoroughbred horses, see ANIMADS, 1. Fright of, see ANIMALS, 21, 22; AUTOMO- BILES, 38-51; EVIDENCE, 324, 490, 1145; HIGHWAYS, 174, 199-202, 205, 277-284, 338, 353; INTERUBBAN RAILWAY, 4; LIMITATION OF ACTIONS, 184; MUNICI- PAL COKPOEATIONS, 333, 334, 347, 359; NEGLIGENCE, 19, 20, 194, 213, 238, 293; PLEADING, 23, 329, 333-338, 400; PBOX- IMATE CAUSE, 114, 163, 164; RAILROADS, II. d, 5, 233-235, 240-242; STREET RAIL- WAYS, 47, 53, 54, 69, 101; TRIAL, 413, 417, 425, 439, 806, 1128. Malice as ingredient of offense of maiming, see ANIMALS, 45. Negligence of rider or driver of, in approach- ing automobile, see AUTOMOBILES, 67- 70. Injury to, while in hands of bailee, see BAIL- MENT, 13-17; EVIDENCE, 449. Loss of team falling from defective bridge, see BRIDGES, 11. Transportation of, see CARRIERS, III. f. Mortgage on, see CHATTEL MORTGAGE, 8. Right of state to forbid importation and use of docked tailed horses, see COMMERCE, 38. Sufficiency of consideration for transfer by city of sick horse, see CONTRACTS, 65. Warranty on sale of, see DAMAGES, 188, 189, 704; SALE, 89, 98, 123, 175-179. Fraud in horse trade, see DAMAGES, 330; EVIDENCE, 1627, 2415a; FALSE PRETEN- SES, 18. Burden of showing proximate cause of in- jury by, see EVIDENCE, 324. Presumption of negligence from running away of, see EVIDENCE, 459-461. Presumption as to ownership of runaway horse, see EVIDENCE, 612. Presumption of negligence of driver, see EVIDENCE, 490. Proof of negligence where horse is killed by electric shock from street car rail, see EVIDENCE, 2166. Exemption of, see EXEMPTIONS, 15. Secret advantage given by vendor to one of several joint purchasers of horses, see FRAUD AND DECEIT, 28. Injury by runaway horse, see HIGHWAYS, 214; NEGLIGENCE, 188-194. Digest 1-52 KR.A.(N.S.) Liability for injury to, on defective highway, see HIGHWAYS, 265. Liability for injury to, during runaway, see HIGHWAYS, 272. Negligence in leaving unhitched or unat- tended in highway, see HIGHWAYS. 338; STREET RAILWAYS, 101; TRIAL, 414. As to horse races, see HORSE RACES. Insurance on, see INSURANCE, 181, 680. Insurance against liability for injuries by, see INSURANCE, 633. Injury by hired horse, see JUDGMENT, 47. Liability of lessee placing diseased horse in barn, see LANDLORD AND TENANT, 104. Horse stealing, see LAKCENY, 4. Stables for, see LIVERY STABLES; NUI- SANCES, 43-47; STABLES. Injury to one hiring horse from liveryman, see LIVERY STABLES, 2-5. Liability of owner for injury by horse in hands, see MASTER AND SERVANT, 906- 909, 911, 912, 919, 982, 987. Duty to warn servants as to %iciousness of, see MASTER AND SERVANT, 236, 237. Lien for services of, see MECHANICS' LIENS, 37. Hitching of, in streets, see MUNICIPAL COR- PORATIONS, 107-110. Forbidding exhibition of stallion on street, see MUNICIPAL CORPORATIONS, 146. Liability of city for injury to employee by vicious horse, see MUNICIPAL CORPORA- TIONS, 408. Negligent driving of, generally, see NEGLI- GENCE, I. b. Negligence in driving vicious horse, see NEGLIGENCE, 240. New trial in action for killing of, on rail- road track, see NEW TRIAL, 30. Liability of purchaser of property on which nuisance exists for loss of horses re- sulting from, see NUISANCES, 115. Negligence in entrusting minor son with unruly horse, see PARENT AND CHILD, 21. Authority of agent to trade, see PRINCIPAL AND AGENT, 34-36. Permitting to run at large, see PROXIMATE CAUSE, 39. Proximate cause of injury to driver of, see PROXIMATE CAUSE, 114. Proximate cause of injury to, see PROXI- MATE CAUSE, 117. Injury to, by railroad train, see RAILROADS, II. d, 6. Repudiation of purchase of, because of fraud, see SALE, 112. Effect of death of horses sold with retention of title in seller until payment of pur- chase price, see SALE, 146. Injury at railroad crossing in attempting to stop runaway horse, see TRIAL, 1044. Free water supply for drinking fountains, see WATERS, 360-362. HORSE TRADE. Measure of damages for fraud in, see DAM- AGES, 330. HOSE; HOSPITAL. 1431 Evidence as to damages for fraud in, see EVIDENCE, 1627. Sufficiency of proof of fraud in, see EVI- DENCE, 2415a. False pretenses in effecting, see FALSE PRE- TENSES, 18. Agent's authority as to, see PRINCIPAL AND AGENT, 34-36. HOSE. Cutting off fire hose by railroad train, see EVIDENCE, 2157. Injury by bursting of, see MUNICIPAL COB- PORATIONS, 410, 412. HOSPITAL. As charity, see CHARITIES, 9-11. Charitable gift for, see CHARITIES, 51. Boycott against by employers, see CONSPIR- ACY, 20. Provision for bipartisan commission to have charge of, see CONSTITUTIONAL LAW, 174. Support of incompetent person in, see CON- STITUTIONAL LAW, 194. For treatment of inebriates, see CONSTITU- TIONAL LAW, 356; TAXES, 120. As nuisance, see COURTS, 156; MUNICIPAL CORPORATIONS, 152; NUISANCES, 40-42, 71, 72, 157. Right to show by parol that hospital is a charitable organization, see EVIDENCE, 1042. Support of incompetent person in, general- ly, see INCOMPETENT PERSONS, IV. Sale of liquor near building maintained by, as training school for nurses, see IN- TOXICATING LIQUORS, 183. Running of limitations against, see LIMITA- TION OF ACTIONS, 100. Servant's right to medical attention at, see MASTER AND SERVANT, 16, 17. Application to municipal hospital of statute regulating hours of labor, see MASTER AND SERVANT, 92. Making acquiescence in hospital regulations condition to continuance in employ- ment, see MASTER AND SERVANT, 112. Requiring permit for location of, within city limits, see MUNICIPAL CORPORATIONS, 215. Power of city to maintain, see MUNICIPAL CORPORATIONS, 308, 309. Violation by municipality of statute limit- ing hours of labor, see MUNICIPAL COR- PORATIONS, 499. Nurse in, as servant, see NOTICE, 24. Action in name of treasurer of, to recover compensation for care furnished by, see PARTIES, 137. Arbitrary termination of partnership to operate, see PARTNERSHIP, 51. Creation of state hospitals by special act, see STATUTES, 154. Exemption of, from taxation, see TAXES, 334. Digest 1-52 L,.R.A.(N.S.) Remedy for location of, in neighborhood, see NUISANCES, 71, 72. For contagions diseases. Liability of health officers as to, see HEALTH, 14-17. 1. A city cannot remove a person af- flicted with a communicable disease danger- ous to public health into an adjoining town without the consent of the latter's health of- ficer, under charter authority to provide hos- pitals either within or without its limits, to which persons having contagious diseases may be removed when the public safety may so require, and to quarantine persons so af- fected within or beyond the city limits, where the general health laws permit townships to obtain quarantine ground without their lim- its with the assent of the township within whose limits it may be established, and pro- vide that no person affected with a com- municable disease dangerous to public health shall be brought into any township without a permit from its health officer, and that these provisions shall apply to all cities ex- cept in cases where their charters contain provisions inconsistent herewith. Summit Twp. v. Jackson, 18: 260, 117 N. W. 545, 154 Mich. 37. (Annotated) Liability for negligence. Damages for injury to patient, see DAMAGES, 14, 423. Evidence in action for negligence, see NEG- LIGENCE, 814, 1817. Sufficiency of evidence to show negligence, see EVIDENCE, 2115. Negligence in driving of ambulance, see MASTER AND SERVANT, 35; NEGLIGENCE, 181, 199. Failure to warn nurse of dangerous charac- ter of disease, see MASTER AND SERV- ANT, 223; TRIAL, 470, 471. Liability of municipal corporations for neg- ligence of agent in conducting, see MUNICIPAL CORPORATIONS, 425, 426. See also CHARITIES, 76-93. 2. It is the duty of the proprietor of a sanitarium to compel the nurses employed by him to give proper care to patients placed in their charge, and he is liable to a patient sustaining personal injuries from the negligent administration to him by a nurse of medicine other than that pre- scribed. Stanley v. Schumpert, 6: 306, 41 So. 565, 117 La. 255. (Annotated) 3. A day patient in a sanitarium, who has sustained personal injury from the neg- ligent act of a nurse, who administered to him medicine other than that prescribed, cannot maintain an action therefor against a physician who, before the injury com- plained of, but while the patient was an in- mate of the sanitarium, transferred hia lease to another, and severed his connec- tion with the institution. Stanley v. Schumpert, 6: 306, 41 So. 565, 117 La. 255. 4 A physician, not the owner or lessee of a sanitarium, or in charge of a patient's case, is not liable to the latter fcr a per- sonal injury due to the negligent adminis- tration of medicine by a nurse. Stanley v. Schumpert, 6: 306, 41 So. 565, 117 La. 255. 1432 HOT ASHES HOUSE OF REPRESENTATIVES. 5. That a hospital receives a patient who is a county charge, under contract with the county for less remuneration than the serv- ice is worth, does not preclude him from holding it liable to him for injuries caused by the negligence or incompetence of nurses. Gitzhoffen v. Holy Cross Hosp. Asso. 8: 1161, 88 Pac. 691, 32 Utah, 46. 6. The mere employment of competent attendants does not exempt a hospital main- tained by a railroad company for the bene- fit of its employees, to which they are com- pelled to contribute, from liability for in- juries caused by the negligence of such at- tendants. Phillips v. St. Louis & S. F. R. Co. 17: 1167, 111 S. W. 109, 211 Mo. 419. (Annotated) 7. A corporation organized by the of- ficers of a railroad company to operate a hospital for the benefit of employees of the road, to which they are compelled to con- tribute, is not a separate institution, for the acts of which the railroad company is not responsible, where it is organized for the benefit of the road, and the beneficiaries are determined by its officers, and the surgeons of the hospital and the road are the same. Phillips v. St. Louis & S. F. R. Co. 17: 1167, 111 S. W. 109, 211 Mo. 419. 8. A hospital which has assumed to treat a person who is discovered to be in- sane is liable for his death in case it per- mits him to leave the hospital unattended and without notice to his friends, if he is killed because of inability to care for him- self. Phillips v. St. Louis & S. F. R. Co. 17: 1167, 111 S. W. 109, 211 Mo. 419. HOT ASHES. Burning of child by, see NEGLIGENCE, 142. HOTCHPOT. See ADVANCEMENTS, 4-6; EXECUTOBS AND ADMINISTRATORS, 123, 124. HOTEL KEEPER. Insurable interest in life of one whom he agrees to furnish with a home for life, see INSURANCE, 70. HOTELS. Discrimination in ordinance as to right to maintain billiard or pool room, see AC- TION OR SUIT, 52. Constitutionality of regulations as to keep- ing of billiard or pool tables, see CON- STITUTIONAL LAW, 243, 692. Statute limiting hours of labor in, see CON- STITUTIONAL LAW, 308; EVIDENCE, 30; MASTER AND SERVANT, 93. Digest 1-52 L.R.A.(N.S.) Monopolistic contract between proprietors of, see CONTRACTS, 544. Railroad company's power to guarantee divi- dends on bond for construction of, see CORPORATIONS, 61. Damages for breach of covenant to renew lease of property used for, see DAM- AGES, 148, 689. Serving unfit food to guests, see DAMAGES, 356, 407; FOOD, 20. Escheat of land of railroad on which hotel is erected, see ESCHEAT, 8. Homestead in property used for, see HOME- STEAD, 14. Lease by proprietor of hotel of room for restaurant purposes, see LANDLORD AND TENANT, 42. Liability of lessor of hotel to guest injured on premises, see LANDLORD AND TENANT, 173. Distribution by chance of lots purchased in consideration of agreement of owner to erect hotel, see LOTTERY, 8. Lien on, see MECHANICS' LIENS, 54. Liability of partnership conducting, see PARTNERSHIP, 14, 15. In general, see INNKEEPERS. HOURS OF LABOR. See MASTER AND SERVANT, I. d. HOUSE BREAKING. Indictment for, see INDICTMENT, ETC., 127. HOUSEHOLD GOODS. As baggage, see CARRIERS, 701. __ HOUSEKEEPERS. Validity of agreement to will property to, see CONTRACTS, 435. HOUSE OF ILL FAME. See DISORDERLY HOUSES. HOUSE OF PROSTITUTION. See DISORDERLY HOUSES. HOUSE OF REPRESENTATIVES. See LEGISLATURE. HOWLING HUSBAND AND WIFE. 1433 HOWLING. Of dogs as nuisance, see NUISANCES, 27. HUCKSTERS. See PEDDLERS. HUMAN ANATOMY. Exhibition of, see CONSTITUTIONAL LAW, 417; COURTS, 158; MUNICIPAL CORPORA- TIONS, 145. HUMANE SOCIETY. Giving officer of, lien for care of neglected animals, see CONSTITUTIONAL LAW, 611. HUNTING. Validity of statute regulating, see CONSTI- TUTIONAL LAW, 198. Jurisdiction of equity to prevent interfer- ence with hunting privilege, see EQUITY, 34. Negligence of hunter, see EVIDENCE, 1541; NEGLIGENCE, 42, 43. Right to hunt over private waters, see FISHERIES, 10-12. Of wild game, see GAME. Homicide while engaged in, see HOMICIDE, 37; STATUTES, 218. Injunction to protect right to hunt, see IN- JUNCTION, 48-50. Trespass by, see TRESPASS, 4. Contributory negligence of hunter killed hy companion, see TRIAL, 544. HUNTING BLIND. Injunction against erection of, see NUI- SANCE, 75. HUSBAND AND WIFE. I. Rights, liabilities, and disabilities generally, 151. a. Of Husband, 123. 1. Rights, 1, 2. 2. Liabilities, 323. b. Of ivife, 24-43. 1. In general, 2429. 2. Power to contract, 3O43. a. In general, 3O4O. b. As surety, 4143. c. Agency of husband. c. Joint liabilities, 4451. Digest 1-52 L.R.A.(N.S.) II. Property rights; transactions be- tiveen, 52151. a. In general, 5258. b. Estate by entireties, 5969. c. Community property, JO 85. d. Wife's separate estate or busi- ness, 8698. e. Contracts with or conveyances to each other, 991O6. f. Conveyances or mortgages to third persons, 107113. 1. In general, 1D711O. 2. Wife's separate property, 111-113. g. Trusts, 114-12O. h. Partnership. i. Antenuptial contract, 121 136. j. Fraud on marital rights, 137 144. 1. On husband's rights, 137. 2. On wife's rights, 138 144. Te. Rights of husband's creditors, 145-151. III. Actions, 152-2O7. a. By husband, 152163. b. By wife, 164-194. c. By both husband and wife, 195. d. Between husband and wife, 196-207. IV. Abandonment of wife, 208214=. Revival of action against husband and wife in name of wife's heirs after her death, see ABATEMENT AND REVIVAL, 34. Release of claim growing out of contract for support upon separation, see ACCORD AND SATISFACTION, 22. As to adultery, see ADULTERY. Adverse possession against married woman, see ADVERSE POSSESSION, 11, 12, 34. Right of alien wife of alien to naturaliza- tion, see ALIENS, 1. Objecting for first time on appeal to fail- ure to join wife in action against hus- band, see APPEAL AND ERROR, 735. Confidential communications between, see APPEAL AND ERROR, 1143, 1172. Arson by burning of wife's property by husband, see ARSON, 5, 6. Assault to prevent adultery with wife, see ASSAULT AND BATTERY, 47. Unauthorized deposit of h,usband's funds by wife, see BANKS, 61. As to bigamy, see BIGAMY. As to breach of promise, see BREACH OS PROMISE. Conflict of laws as to, see CONFLICT OF LAWS, I. b, 6; I. c. Requiring wife's consent to assignment of wages, see CONSTITUTIONAL LAW, 458. Requiring assignment of salary to be ac- knowledged by husband or wife of as- signor, see CONSTITUTIONAL LAW, 519. Perjury in accusing wife of malformation in action for divorce, see CONTINUANCE AND ADJOUBNMENT, 6. 1434 HUSBAND AND WIFE, I. a, 1. Public policy as to contract to induce wife living separate from husband to return to him, see CONTRACTS, 431. Injunction by court of one state in which suit by alleged widow has been insti- tuted to restrain proceedings in an- other, see COURTS, 289. Restraint upon alienation upon grant of fee in trust for married woman, see COVENANTS AND CONDITIONS, 34. Measure of damages for injuries to mar- ried women, see DAMAGES, III. i, 2. Mental anguish of husband as element of damages for breach of contract by phy- sician to attend sick wife, see DAM- AGES, 626. Mental anguish for delay in delivering tele- gram announcing death of wife, see DAMAGES, 654, 656. Effect of attempt to seduce wife of owner on damages for trespass on property, see DAMAGES, 728. Defense to action for causing death of mar- ried woman, see DEATH, 40. As to divorce or separation, see DIVORCE AND SEPARATION. Wife's change of domicil by removing to other state for benefit of husband's health, see DOMICIL, 9. Embezzlement by husband of wife's funds, see EMBEZZLEMENT, 7, 8. Presumption as to husband's insurable in- terest in wife's life, see EVIDENCE, 544. Presumption that note executed by man and wife was for husband's debt, see EVIDENCE, 581. Evidence, in prosecution of husband, of con- versation between his wife and her brother in his absence, see EVIDENCE, 1398. Admissibility of declarations of wife in prosecution against husband, see EVI- DENCE, 1398, 3403. Evidence of good character of wife in prosecution of husband for murder of alleged paramour, see EVIDENCE, 1575. Right of one on trial for murder to testify that wife confessed criminal intimacy with deceased, see EVIDENCE, 1653, 1654. Effect of presence of woman when her para- mour kills her husband, see HOMICIDE, 46. Enticing wife of another from home for illicit purpose as depriving of right of self-defense, see HOMICIDE, 92. Murder of wife, see HOMICIDE, 62, 69, 72. Admissibility of letters by wife to husband upon his trial for killing her, see EVI- DENCE, 806. Allegation regarding ownership of property of wife, in indictment for larceny, see INDICTMENT, ETC., 91. Injunction against business competition by wife, see INJUNCTION, 10. Insurable interest of woman who married insured with knowledge that he had a wife living, see INSURANCE, 71. Insurance on life of married woman, see INSURANCE, 321, 343-348, 593, 594. Estoppel of wife of insured, see INSURANCE, 481. Digest 1-52 L.R.A.(N.S-) Waiver by insurer of condition after re- ceipt of knowledge of facts from wife of insured, see INSURANCE, 497. Effect of killing by husband of wife's para- mour on right to collect insurance on latter's life, see INSURANCE, 700, 701. Collusiveness as to other spouse of judg- ment against husband or wife, see JUDGMENT, II. e, 5. Theft by husband or wife of goods of the other, see LARCENY, 21. Laches of married woman, see LIMITATION OF ACTIONS, 29, 47.. As to marriage, see MARRIAGE. Intervention by wife in action to foreclose mortgage given by husband, see MORT- GAGE, 16. Imputing to wife knowledge of husband acting as her agent, see NOTICE, 46. Husband as party defendant, see PARTIES, 184. Joinder of husband and wife in action for board and lodging furnished the lat- ter, see PARTIES, ]93. Wife as party defendant in suit against husband, see PARTIES, 183, 185-187. Unauthorized operation on wife, see PHY- SICIANS AND SURGEONS, 37, 38. Demurrer to declaration against husband and wife for slander, see PLEADING, 592. Conviction of married woman of crime of being prostitute, see PROSTITUTION. Subrogation of one advancing purchase money to vendor's lien as against pur- chaser's wife, see SUBROGATION, 39. Right of husband to enter another's house under protest, for purpose of inducing wife to leave house, see TRESPASS, 7. Comment by prosecuting attorney on trial of husband on latter's failure to call wife as witness, see TRIAL, 73. Joint and mutual will by, see WILLS, 41. Devise to "widow," see WILLS, 160. Right of widow to allow sums given by husband's will for her maintenance to accumulate and to pass them to her dev- isee or personal representative, see WILLS, 225. Competency of, as witnesses, see WITNESSES, I. b. Admissibility of statements of husband since deceased to wife, see WITNESSES, 46. Suing married woman by her maiden name, see WRIT AND PROCESS, 12, 13. Place for substituted service on married man, see WRIT AND PROCESS, 24, 25. I. Rights, liabilities, and disabilities generally. a. Of husband. 1. Rights. (See also same heading in Digest L.R.A. 1-tO.) Property rights, see infra, II. 1. A minor validly married is entitled HUSBAND AND WIFE, I. a, 2. 1435 to his earnings as against his father, so far as necessary for the support of his family. Cochran v. Cochran, 24: 160, 89 N. E. 470, 196 N. Y. 86. (Annotated) 2. A husband who renders to his wife only those services which every husband is under legal and moral obligation to perform cannot be allowed the value of such services in an action brought by her administrator to enjoin him from disposing of the wife's property, where it was not contemplated by either husband or wife that the relation of debtor and creditor should exist between them. Murchison v. Green, u: 702, 57 S. E. 709, 128 Ga. 339. " ; . 2. Liabilities. (See also same heading in Digest L.R.A.. 1-10.) Criminal liability of husband for desertion and nonsupport of wife, see infra, IV. On contracts by, or for support of, or necessaries furnished to, wife. 3. A husband is not individually liable on a contract by his wife to pay attorneys' fees in a proceeding for divorce against him, which is intended to be her individual ob- ligation. Zent v. Sullivan, 13: 244, 91 Pac. 1088, 47 Wash. 315. (Annotated) 4. A woman has no implied authority to pledge her husband's credit for attorneys' fees in a proceeding against him for di- vorce, where the statute authorizes the court to make such orders relative to the expenses of such actions as will insure to the wife an efficient preparation of her case, and, in its discretion, to require the husband to pay all reasonable expenses of the wife. Zent v. Sullivan, 13: 244, 91 Pac. 1088, 47 Wash. 315. 5. That a debt for board and lodging furnished a wife was contracted by her and the credit extended on the faith of her promise to pay does not relieve the husband of the liability imposed on him by operation of law, independent of the wife's contractual liability to pay. Edminston v. Smith, 14: 871, 92 Pac. 842, 13 Idaho, 645. 6. The primary duty rests on the hus- band, by reason of his marital contract and operation of law, to furnish the wife with the necessaries of life, which include board and lodging; and a creditor who furnishes the wife with such necessaries may main- tain his action against the husband, al- though the latter never contracted the debt, nor promised to pay the bill. Edminston v. Smith, 14: 871, 92 Pac. 842, 13 Idaho, 645. 7. -Every wife is entitled to a home cor- responding with the circumstances and con- dition of her husband, over which she shall be permitted to preside as mistress; and she does not forfeit her right to mainte- nance by refusing to live in the home with and under the control of the husband's mother. Brewer v. Brewer, 13: 222, 113 N. W. 161, 79 Neb. 726. (Annotated) 8. A tradesman approached by a wife to furnish family necessaries on credit for Digest 1-52 L.R.A.(N.S-) the first time cannot assume that she has authority to pledge her husband's credit therefar. James McCreery & Co. v. Mar- tin (N. J. Err. & App.) 47: 279, 87 Atl. 433, 84 N. J. L. 626. 9. A man who furnishes his wife, with whom he is living, an allowance sufficient to purchase the necessaries for the family, is not liable for goods of the general de- scription of necessaries furnished to her on credit which he has forbidden her to pledge. James McCreery & Co. v. Martin (N. J. Err. & App.) 47: 279, 87 Atl. 433, 84 N. J. L. 626. (Annotated) 10. A decree of divorce from bed and board, without alimony, dissolves the re- lation of husband and wife so far as the duty of the former to maintain the latter is concerned. Chapman v. Parsons, 24: 1015, 66 S. E. 461, 66 W. Va. 307. 11. To render a man liable on his prom- ise to pay for goods not necessaries ordered by his wife, she must have purported to act as his agent in making the purchase, so that his promise is a ratification of her act. Shuman v. Steinel, 7: 1048, 109 N. W. 74, 129 Wis. 422. (Annotated) 12. A set of Stoddard's Lectures is not a necessary, which a woman may purchase on the credit of her husband. Shuman v. Steinel, 7: 1048, 109 N. W. 74, 129 Wis. 422. 13. Artificial teeth are necessaries which a man must furnish to his wife. Clark v. Tenneson, 33: 426, 130 N. W. 895, 146 Wis. 65. 14. A man is not entitled to be reim-' bursed out of his wife's estate the amount which he paid for her physician's and nurse's bills and funeral expenses. Ket- terer y. Nelson, 37 : 754, 141 S. W. 409, 146 Ky. 7. Liability for wife's torts. 15. A man riding with his wife in her automobile, which she is driving, is an- swerable for injuries negligently inflicted by her upon pedestrians. Minor v. Mapes, 39: 214, 144 S. W. 219, 102 Ark. 351. 16. The common law which makes a hus- band liable for the tort of his wife, com- mitted during coverture out of his presence, and in which he in no manner participates, is repealed by implication by statutes which give a married woman absolute control and dominion over her property and person, since the reasons for that rule arising ^rom the common-law status and dependence of the wife no longer exist. Schuler v. Henry, 14: 1009, 94 Pac. 360, 42 Colo. 367. 17. The husband is not relieved from lia- ability for the torts of the wife by the mar- ried women's laws of West Virginia. Kel- lar v. James, 14: 1003, 59 S. E. 939, 63 W. Va. 139. (Annotated) 18. A man is responsible for slander uttered by his wife, even though he was not present, and in no way participated in it, notwithstanding the statutes governing the rights and liabilities of married women. Jackson v. Williams, 25: 840, 123 S. W. 751, 92 Ark. 486. (Annotated) Agency of wife. 19. The rule that, if a wife contracts, as- 1436 HUSBAND AND WIFE, I. b, 1, 2. suming to act for her husband, so that the benefit comes to his hands, and he does not disavow within a reasonable time, he is bound as having authorized the contract, does not apply to acts of the wife where the benefit comes to her; but in such case ratification by some affirmative act is nec- essary to bind the husband. Evans v. Craw- ford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 20. A wife, whose husband absents him- self, keeping his whereabouts unknown, and leaving his property wholly under the care of his wife, is his agent, by implication of law, to do those things which are customari- ly delegated to wives having such charge of property; but her authority does not extend to selling and conveying his real es- tate, regardless of whether her act be ju- dicious or not from a business standpoint. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 21. If a wife is left in charge of insured property, and a loss occurs, and the hus- band, from the circumstances of his situa- tion, cannot be reached so as to enable him to make the proofs of loss, the wife may do so by implied appointment. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 22. A husband who seeks to enforce a claim under an insurance policy, according to proofs of loss fraudulently made by the wife as his agent ex necessitate in his ab- sence, does not thereby participate in the fraud of the agent by ratification, where he acts in good faith. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. (Annotated) 23. Fraud committed by a wife in mak- ing out proofs of loss under an insurance policy on the property of her husband, in whose absence she acted as his agent ex ne- cessitate, does not become that of the hus- band unless he ratifies her act with knowl- edge of the facts. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. (Annotated) 6. Of wife. 1. In general. (See also same heading in Digest L.R.A. 1-10.) Joint liability with husband, see infra, I. c. Rights of husband's creditors to his earn- ings, see infra, 146, 151. Husband's consent to wife's execution of will, see CONTRACTS, 52, 405. Action against wife for maintenance of hus- band, see DIVORCE AND SEPARATION, 89. Estoppel of married woman, see ESTOPPEL, III. b. Running of limitations against married woman, see LIMITATION OF ACTIONS, II. m. Necessity of husband's consent to adoption of child by his wife, see PARENT AND CHILD, 37. Digest 1-52 L.R.A.(N.S.) 24. A wife is liable for necessaries fur- nished her upon her special contract and on her personal responsibility to pay therefor; and to that end she may be sued as a feme sole, since the debt is incurred for her use and benefit. Edminston v. Smith, 14: 871, 92 Pac. 842, 13 Idaho, 645. 25. A married woman is not personally liable for artificial teeth purchased by her for her own use, although she has always attended to the dental affairs of herself and her children, and paid the bills, and the dentist who made the teeth has never had any dealings with the husband, if there is nothing to show that she made the pay- ment out of her separate estate. Clark v. Tenneson, 33: 426, 130 N. W. 895, 146 Wis. 65. (Annotated) 26. A nurse called by a physician to at- tend a sick householder cannot hold the latter's wife liable for injuries caused by a defective condition of the premises. Mc- Leod v. Rawson, 46: 547, 102 N. E. 429, 215 Mass. 257. Liability for torts. 27. A woman who promises a nurse at- tending her sick husband, that a light will be kept burning during the night, may be liable in damages in case of injury to the nurse through the absence of the light. Mc- Leod v. Rawson, 46: 547, 102 N. E. 429, 215 Mass. 257. 28. A married woman, the owner of stat- utory separate real estate upon which is located a swimming pool and bath houses conducted by herself and husband as a pub- lic resort, who is sued jointly with her hus- band, is not liable for damages in tort to a party injured while lawfully using the premises, by his feet slipping and falling upon the projecting points of planks alleged to have been negligently left uneven. Gra- ham v. Tucker, 19: 531, 47 So. 563. 56 Fla. 307. (Annotated) Liability for acts of husband. See also infra, 44. 29. The responsibility of a wife for the tortious acts of her husband cannot be pre- sumed from the fact that they were done in her presence. Multer v. Knibbs, 9: 322, 79 N. E. 762, 193 Mass. 556. 2. Power to contract. a. In general. (See also same heading in Digest L.R.A. 1-10.) Husband's liability on contracts by, or necessaries furnished to, wife, see supra, 3-14. Void deed of married woman as color of title, see ADVERSE POSSESSION, 91. Conflict of laws as to, see CONFLICT OF LAWS, I. b, 6, b. Moral obligation as consideration for wife's contract, see CONTRACTS, 105. Deed by married woman executed because of threat to prosecute husband, see DURESS, 12, 13. Estoppel of wife, see ESTOPPEL, III. b. HUSBAND AND WIFE, I. b, 2. 1437 Power of abandoned wife to make deed to homestead, see ESTOPPEL, 53. Retroactive effect of married women's acts, see STATUTES, 306. See also infra, 95, 99, 106. 30. In Kansas, coverture affords no ground for declaring invalid a married woman's contract, even although she pos- sesses no separate estate or separate trade or business. Harrington v. Lowe, 4: 547, 84 Pac. 570, 73 Kan. 1. (Annotated) 31. The statutory power of a married woman to contract with reference to her separate property is not an absolute and unlimited right of contract on all matters, but is confined to those contracts that have reference to her separate estate. Bank of Commerce v. Bowers, 17: 676, 93 Pac. 504, 14 Idaho, 75. 32. A feme covert cannot convey her ex- pectant interest as heir of her father. Tay- lor v. Swafford, 25: 442, 123 S. W. 350, 122 Tenn. 303. 33. Insurance effected by a husband and wife under a policy whereby, in considera- tion of a premium of which each paid part, a sum of money was made payable upon the death of whichever of them should die first to the survivor, may be regarded as a valid insurance by the wife of her own life, expressed to be for the benefit of the hus- band contingently on his surviving her, un- der a statute enabling a married woman to effect a policy upon her own life for her separate use and providing that a policy of assurance effected by any woman on her own life and expressed to be for the bene- fit of her husband shall create a trust in his favor. Per Farwell and Kennedy, L. JJ., in Griffiths v. Fleming, 2 B. R. C 391 [1909] 1 K. B. 805. Also Reported in 78 L. J. K. B, N. S. 567, 100 L. T. N. S. 765, 25 Times L. R. 377, 53 Sol. Jo. 340. As to notes. Consideration for note to husband's cred- itors, see BILLS AND NOTES, 22. Conflict of laws as to, see CONFLICT OF LAWS, 59, 60. See also infra, 40, 42. 34. The execution, by a woman, of a note to take up one of her deceased husband, is without consideration if she received noth- ing from his estate. Gilbert v. Brown 7- 1053, 97 S. W. 40, 123 Ky. 703. 35. A woman cannot, after discoverture, ratify a note which was executed by her during coverture, and was void because not for a debt for the payment of which she could contract. Gilbert v. Frown, 7- 1053 97 S. W. 40, 123 Ky. 703. (Annotated)' 36. A married woman indorsing, in a state where her contract was of no effect, a note dated and payable in another state, where the indorsement would be valid, and where the note is negotiated, is liable there- on to a bona fide purchaser for value with- out notice, being estopped to show the true facts. Chemical Nat. Bank v. Kellogg, 2: 299, 75 N. E. 1103, 183 N. Y. 92. (Annotated) Digest 1-52 L.R.A.(N.S.) As to employment of another. 37. A married woman who has no sep- arate estate may employ an attorney to be- gin and prosecute or defend an action for divorce, and make a valid contract to com- pensate the attorney for his service in such action. Tyler v. Winder, 34: 1080, 131 N. W. 592, 89 Neb. 409. (Annotated) 38. A married woman cannot contract for the services of an architect to prepare plans and specifications for a building to be erected by her. Stephens v. Hicks, 36: 354, 72 S. E. 313, 156 N. C. 239. To pay debt of other person. 39. A married woman, although author- ized by Idaho Laws 1903, p. 346, 2, to con- tract with reference to her separate prop- erty to the same extent and with like effect as a married man, cannot bind herself per- sonally, in view of the other provisions of the Code, for the payment of a debt that is not contracted for her own use and benefit, or for the use and benefit of her separate es- tate, or in connection with its control and management, or in carrying on or conduct- ing business therewith, unless the contract and obligation is made so as to create a lien or encumbrance on her separate estate, or some portion of it, as security for the payment of the debt. Bank of Commerce v. Bowers, 17: 676, 93 Pac. 504, 14 Idaho, 75. 40. A note by a married woman, given, with the knowledge of the payee, to secure money to take up her solvent husband's note to him, for the payment of which she sets apart no property, but for which he pledges his property as collateral security, cannot be enforced, even after the husband has be- come insolvent, under a statute providing that no part of a married woman's estate shall be subjected to the payment or satis- faction of any liability upon a contract to answer for her husband's debt, unless such estate shall have been set apart for that purpose by deed of mortgage or other con- veyance. Third Nat. Bank v. Tierney, 18: "81, 110 S. W. 293, 128 Ky. 836. (Annotated) b. As surety. (See also same heading in Digest L.R.A. 1-10.) Duress in inducing wife to become surety on husband's note, see DURESS, 2. Eight of wife as against husband's heirs to protection against loss as surety of hus- band, see PRINCIPAL AND SURETY, 67. Release of wife as surety for husband, see PRINCIPAL AND SURETY, 28, 31. 41. The right to control and dispose of her separate property, conferred by Idaho Laws 1903, p. 346, upon a married woman, together with all the rights and privileges necessary to its complete enjoyment or the power of disposing of it, does not authorize her to become a surety or guarantor for the debts of others, but her power is limited to contracts necessary or essential to the complete enjoyment of her separate estate. 1438 HUSBAND AND WIFE, I. c, II. a. Bank of Commerce v. Bowers, 17: 676, 93 Pac. 504, 14 Idaho, 75. (Annotated) As to notes. Conflict of laws as to, see CONFLICT OF LAWS, 60. 42. A note given by a woman as secu- rity for an existing debt of her husband is not founded on a valuable consideration. Widger v. Baxter, 3: 436, 76 N. E. 509, 190 Mass. 130. (Annotated) Pledge of property as collateral se- curity. 43. A married woman pledging her gen- eral estate, with the consent of her husband, as collateral for the debt of another, cannot defeat the lien on the ground of her cover- ture. Daviess County Bank & T. Co. v. Wright, 17: 1 122, 110 S. W. 361, 129 Ky. 21. c. Agency of husband. (See also same heading in Digest L.R.A. 1-10.) Evidence to establish husband's authority to sign checks for wife, see EVIDENCE, 1520. Sufficiency of evidence to show that hus- band was acting for wife as undisclosed principal, see EVIDENCE, 2248. Wife's ratification of husband's acts in re- lation to her property, see PRINCIPAL AND AGENT, 91. See also PBINCIPAL AND AGENT, 2. c. Joint liabilities. (See also same heading in Digest L.R.A. 1-70.) Husband's liability for support of or nec- essaries furnished to wife, see supra, 3-14. Statute of other state making wife liable with husband for family expenses, see CONFLICT OF LAWS, 133. 44. A wife is not jointly liable with her husband for a slander or other tort perpe- trated by him, in which she did not actually participate; nor can she be made liable by her mere prior or subsequent consent to or approval of a tortious act of the husband, or by her command or direction for its com- mission. Kellar v. James, 14: 1003, 59 S. E. 939, 63 W. Va. 139. 45. The wife is not liable as for a family expense for beer furnished upon her husband's order, although it is used at the family table. O'Neil v. Cardina, 44: 1175, 140 N. W. 196, 159 Iowa, 78. 46. A wife is not made personally liable for her husband's board by a statute making the family expenses a charge upon her prop- erty. Vose v. Myott, 21: 277, 120 N. W. 58, 141 Iowa, 506. (Annotated) 47. The husband's giving a note in set- tlement of an account for family expenses is not, under a statute making husband and wife jointly liable for such expenses, con- clusive on the wife, either as to the exist- ence of the debt, or as to the amount Digest 1-52 L.R.A.(N.S.) thereof. McCartney & Sons Co. v. Carter, 3: 145, 105 N. W. 339, 129 Iowa, 20. (Annotated) 48. A buggy purchased by a man for the use of his family is within a statute making the husband and wife liable for family ex- penses, although upon one occasion he re- fused to permit her to use it, and they separated a short time after its purchase. Houck v. La Junta Hardware Co. 32: 939, 114 Pac. 645, 50 Colo. 228. (Annotated) 49. A man is not entitled to charge his wife with a share of the cost of up-keep of property owned by them in common, and occupied as a home, which was incurred by him without any hope or promise of re- imbursement. Hoag v. Hoag, 36: 329, 96 N. E. 49, 210 Mass. 94. 50. The liability of a widow for medical services rendered her husband in his last sickness, under a statute binding the prop- erty of both equally for sucli family ex- penses, is not discharged by failure to pre- sent a claim therefor against the estate of the husband in time to hold it, since hus- band and wife are made liable as principals by the statute. Vest v. Kramer, 14: 1032, 114 N. W. 886, Iowa, . (Annotated) 51. The community is liable for personal injuries inflicted by the negligent driving, by the husband, of an automobile which is operated for hire for the benefit of the com- munity. Milne v. Kane, 36: 88, 116 Pac. 659, 64 Wash. 254. (Annotated) II. Property rights; transactions between. a. In general. (See also same heading in Digest L.R.A. 1-10.) Widow's allowance, see APPEAL AND ERROR, 45; EQUITABLE CONVERSION, 5. Sale of bankrupt's property free from claims of wife, see BANKRUPTCY, 2. Law governing right to assign insurance policy in favor of wife, see CONFLICT OF LAWS, 45. Husband's vested right to convey homestead, see CONSTITUTIONAL LAW, 59. Fraud as ground for cancelation of hus- band's deed of interest in wife's prop- erty, see CONTRACTS, 744. Husband's estate by curtesy, see CURTESY. Construction of grant to husband and wife, see DEEDS, 74, 80. Right to inherit, see DESCENT AND DISTRI- BUTION, J. e. Right of husband murdering wife to inherit from her, see DESCENT AND DISTRIBU- TION, 9a-10. Effect of Married Women's Property Act upon right of mother to participate with father in distribution of person- alty of intestate child, see DESCENT AND DISTRIBUTION, 5. Alimony, see DIVORCE AND SEPARATION, V. Effect of divorce on property rights gener- ally, see DIVORCE AND SEPARATION, VI. Wife's right of dower, see DOWER. HUSBAND AND WIFE, II. a. 1439 Election of husband to waive distributive rights in wife's property, see ELECTION. Effect of wife's claiming only distributive share in husband's property, on her rights under deed thereto from her hus- band, which he destroyed, see ELECTION OF REMEDIES, 26. Jurisdiction of equity of suit by alleged widow to partition lands owned by hus- band at his death, see EQUITY, 36. Estoppel of wife as to, see ESTOPPEL, III. b, 147, 265. Estoppel of stranger to assert title to property as against wife, see ESTOPPEL, 138. Presumption and burden of proof as to, see EVIDENCE, 599, 608-611. Evidence as to whether personal property belonged to husband or wife, see EVI- DENCE, 1993. Evidence as to intent in placing title to real estate in wife's name, see EVI- DENCE, 976, 1921. Gift to wife, see EVIDENCE, 599; GIFT, 4, 10, 21, 22. Exemption of homestead purchased with pension money and conveyed to wife, from liability for claim against her, see EXEMPTIONS, 8. Injunction against alienation or encum- brances of property in suit for mainte- nance, see INJUNCTION, 94. Right in homestead, see HOMESTEAD. Insurable interest of husband in wife's prop- erty, see INSURANCE, 55. Insurance by husband as sole owner of homestead title to which is in wife, see INSURANCE, 210. Wife's rights in insurance on husband's life, see INSURANCE, VI. d, 2, b. Interest on annuity from husband to wife, see INTEREST, 30. Right of husband as tenant at will of wife's property to maintain trespass against one entering and removing crop under wife's authority, see LANDLORD AND TENANT, 214. Conclusiveness of decree as to amount to which widow is entitled under hus- band's will, see JUDGMENT, 184. Husband's right to set aside as fraudulent deed of his interest in wife's property, see LIMITATION OF ACTIONS, 30. Effect of invalid marriage on property rights, see MARRIAGE, 9. Right to partition of homestead, see PAK- TTTION, 13, 14. Action by administrator of wife to enjoin husband from disposing of wife's prop- erty, see PLEADING, 21. Subjecting wife's interests to complainant's demands in suit to rescind purchase of land, see PLEADING, 72. Duty of husband or wife to pay taxes on property of other spouse, see TAXES, 243, 255. Estoppel of wife taking conveyance from spendthrift husband to set up usury in debt secured by mortgage executed by him, see USURY, 34. Digest 1-52 L.R.A.(N.S.) Failure of husband of grantor of land who signs deed to attempt therein to con- vey his interest, see VENDOR AND PUR- CHASER, 43. Revocation of will by settlement of property rights in anticipation of divorce, see WILLS, 58. Rights of husband under wife's will, see WILLS, 206. Widow's election between dower and rights under will, see WILLS, III. i. Competency as witnesses of husband claim- ing property as successor 'of deceased wife, see WITNESSES, 27. 52. A man who contracted marriage in good faith and lived with the woman as his lawful wife until her death, after which the marriage was declared void, cannot be treat- ed as a purchaser for value of the land be- longing to her, in an action brought by her administrator; nor is he entitled to the value of improvements made thereon during her lifetime, when nothing else was con- templated between the parties than that each should have the rights that would flow from the relation of husband and wife. Murchison v. Green, n: 702, 57 S. E. 709, 128 Ga. 339. 53. The common-law rule that suitable ornaments and wearing apparel purchased for a married woman by her husband remain his personal property, which he may dis- pose of during his life, was not abrogated in New Jersey by the married woman's act (N. J. Gen. Stat. p. 2012) or by any other statutory provision, and remains in force. Farrow v. Farrow (N. J. Err. & App.) ii : 389, 65 Atl. 1009, 72 N. J. Eq. 421. 54. Title to real estate purchased by a man and by his direction deeded to his wife passes to her by delivery of the deed to, and its retention by, him, where the statute pro- vides that, when a grant for a valuable con- sideration has been made to one person and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment has been made. Wipfler v. Wipfler, 16: 941, 116 N. W. 544, 153 Mich. 18. 55. A woman may, in case her prop erty covered by insurance is destroyed by fire and a check for the insurance is deliv- ered to her husband payable to the order of both, affirm her husband's receipt of the check so as to vest title thereto in herself and enable her to avail herself of the benefit of it. Kaufman v. State Sav. Bank, 18: 630, 114 N. W. 863, 151 Mich. 65. 56. A man is not entitled to reim- bursement from his wife's estate of money expended by him in the improvement of her real estate. Ketterer v. Nelson, 37: 754, 141 S. W. 409, 146 Ky. 7. Transactions before marriage. 57. A man who conveys his property to a woman in consideration of her marrying him, which she subsequently does, cannot reclaim the property upon a subsequent es- trangement of the parties, although he claims that a part of the consideration was her promise to be a kind and dutiful wife, 1440 HUSBAND AND WIFE, II. b, c. and use the property for their joint benefit, and support him in his old age. Jackson v. Jackson, 6: 785, 78 N. E. 19, 222 111. 46. ( Annotated ) 58. Notes made by a man to his intended wife as security for a loan may be enforced against his estate, notwithstanding their continued validity is not recognized by pay- ment of interest after the marriage. Mac- Keown v. Lacey, 21: 683, 86 N. E. 799, 200 Mass. 437. (Annotated) ft. Estate by entireties. (See also same heading in Digest L.R.A. 1-1/OJ Adverse possession by one tenant by entire- ty, see ADVEBSE POSSESSION, 27. Estate by, as assets of bankrupt husband, see BANKRUPTCY, 40. Quitclaim deed by wife of land held by en- tireties, see CLOUD ON TITLE, 29. Effect of divorce on, see DIVORCE AND SEPA- RATION, 137. As joint tenants, see COTENANCY, 1, 16. Estoppel of woman giving quitclaim deed of land held by entireties to claim title after husband's death, see ESTOPPEL, 32. Lien of judgment upon, see JUDGMENT, 270, 271. Right of wife holding land by entireties to partition of trees cut by husband, see PARTITION, 16. See also infra, 107. 59. The right of possession of husband and wife existing by virtue of an estate by the entireties, as modified by the married woman's act, amounts in its essential fea- tures to a tenancy in common for the joint lives, with remainder to the survivor. Schulz v. Ziegler (N. J. Err. & App.) 42: 98, 83 Atl. 968, 80 N. J. Eq. 199. 60. An estate by entireties is not de- stroyed by implication, by a statute giving married women the same power to acquire, own, and dispose of property as is possessed by unmarried persons. Re Meyer, 36: 205, 81 Atl. 145, 232 Pa. 89. 61. A woman holding an interest in real property as tenant by entireties cannot ac- quire title to the whole property by pur- chasing at a sale for the foreclosure of a municipal lien. Alles T. Lyon, 10: 463, 60 Atl. 81, 216 Pa. 604. 62. The foreclosure of a municipal lien upon a wife's interest in an estate held by entireties, without notice to the husband, confers no title to his interest. Alles v. Lyon, 10: 463, 66 Atl. 81, 216 Pa. 604. 63. A quitclaim deed by a woman of land held by herself and her husband by entire- ties creates no lien on the property in favor of the grantee. Ernst v. Ernst, 51 : 317, 144 N. W. 513, 178 Mich. 100. 64. A man cannot convey to his wife a half interest in his estate so as to create a tenancy by entireties in the whole estate, and cause his remaining half to pass to her Digest 1-52 rather than to his heirs, upon his death. Pegg v. Pegg, 33: 166, 130 N. W. 617, 165 Mich. 228. (Annotated) 65. A rule upon a tenant by entireties, to bring ejectment against his cotenant for the property, is without effect. Alles v. Lyon, 10 : 463, 66 Atl. 81, 216 Pa. 604. How created in laud. 66. An estate by entireties is not created by a grant to husband and wife, for pur- poses of partition, of an interest in real estate which had descended to the wife by inheritance. Sprinkle v. Spainhour, 25: 167, 62 S. E. 910, 149 N. C. 223. (Annotated) 67. A conveyance to a man and wife jointly of real estate purchased by him with funds partly his own and partly belonging to his wife's separate estate, without her written authority to do so, does not create an estate by entireties, but equity will pro- tect her interest in favor of her heirs. Don- ovan v. Griffith, 20: 825, 114 S. W. 621, 215 Mo. 149. Murder of wife by husband. 68. A man holding an estate by entireties with his wife does not, upon her death, in- herit it from her, within the meaning of a statute which provides that anyone who shall feloniously kill anyone from whom he would inherit property shall forfeit all right thereto. Beddingfield v. Estill, 9: 640, 100 S. W. 108, 118 Tenn. 39. 69. The murder by a man of his wife, with whom he holds an estate by entireties, has no effect upon his rights to the estate. Beddingfield v. Estill, 9: 640, 100 S. W. 108, 118 Tenn. 39. c. Community property. (See also same heading in Digest L.R.A. 1-10.) Joint liability for improvements on, see supra, 49. Conveyance of, see infra, 109, 110. Review by Federal supreme court of local law as to, see APPEAL AND ERROR, 62, 63. Conflict of laws as to, see CONFLICT OF LAWS, 109, 110. Vested rights in, see CONSTITUTIONAL LAW, 56. Effect of divorce on, see DIVORCE AND SEPA- RATION, 136. Presumption and burden of proof as to, see EVIDENCE, 608, 609. Burden of proving that purchaser from husband had notice of wife's equity, see EVIDENCE, 194. Sufficiency of evidence of community na- ture of property, see EVIDENCE, 2180. As to homestead, see HOMESTEAD. Effect of judgment annulling marriage on rights in, see JUDGMENT, 175; MAR- RIAGE, 31. Notice to purchaser of property from one representing himself to be a single man, of wife's interest therein, see NOTICE, 5. 70. Separate property is not impressed with a trust in favor of the community by HUSBAND AND WIFE, II. c. 1441 a, statutory provision that all the rents, profits, interest, or proceeds of separate property, accruing during marriage, shall be common property, where the statute also provides that the spouse having separate property, shall have sole control of it, and shall be liable for his or her debts, whether contracted before or after marriage. Guye v. Guye, 37: 186, 115 Pac. 731, 63 Wash. 340. 71. The existence at the time of mar- riage of a statute providing that the rents, profits, interest, or proceeds of separate property, accruing during marriage, shall be common property, does not prevent the legislature from restoring all increments of separate property accruing after the passage of the repealing statute, to separate use. Guye v. Guye, 37: 186, 115 Pac. 731, 63 Wash. 340. "What is. Error in excluding evidence on question as to, see APPEAL AND ERROR, 1226. Estoppel of woman suing for partition of land belonging to her divorced husband to set up admissions by him that it was community property, see ESTOPPEL, 106. Presumptions and burden of proof as to, see EVIDENCE, 608, 609. Opinion evidence as to character of property, see EVIDENCE, 1194. Evidence of admissions against interest by wife, see EVIDENCE, 1232. Inconsistency of evidence as to, see EVI- DENCE, 2181. 72. Coal and mining claims acquired from the government during marriage are separate, and not community property. Guye v. Guye, 37: 186, 115 Pac. 731, 63 Wash. 340. 73. Government land secured by home- stead entry by a man who was unmarried when his entry was made is separate prop- erty, although he married before making final proof and securing his patent. Teynor v. Heible, 46: 1033, 133 Pac. 1, 74 Wash. 222. (Annotated) 74. A homestead donation entered by a man and wife, the title to which is finally secured by his performance of the legal re- quirements, is the community estate of such persons, although before expiration of the time required for perfecting the title the wife dies and the man remarries. Creamer v. Briscoe, 17: 154, 109 S. W. 911, 101 Tex. 490. (Annotated) 75. That a deed for real estate is not ex- ecuted to a man until after his marriage does not make the land community property if he had contracted for, taken possession of, improved, and paid a portion of the pur- chase money for it prior to the marriage. Guye v. Guye, 37: 186, 115 Pac. 731, 63 Wash. 340. 76. The fact that the title to the land owned by a man at the time of his mar- riage was not perfected by a conveyance from the source of paramount title until after that event does not destroy its charac- ter as separate estate. Re Pepper, 31: 1092, 112 Pac. 62, 158 Cal. 619. 77. The profits secured by a man in con- Digest 1-52 :L.R.A.y plaintiff's reply. Seaton Mountain E. i. H. & P. Co. v. Idaho Springs Invest. Co. 33: 1078, 111 Pac. 834. 49 Colo.' 122. 425. Where the rights of the public are nvolved in a suit to enjoin the abstraction if subterranean waters for use at a dis- ance, and the court can arrive in terms of noney at the loss which local landowners ave sustained, - i absolute injunction will lot be granted, but the proceeding will bo egarded as one to secure compensation to he local owners for their injury. Newport . Temescal Water Co. &: 1098, 87 Pac. 372, 149 Cal. 531. (Annotated) 426. The question of the proper perform- ance of a street improvement contract so as to justify a special assessment therefor can- not be raised by a proceeding to enjoin pay- 1524 INJUNCTION, III, ment for the work, since it does not go to the town's jurisdiction in the matter, but is open only in proceedings to confirm the assessments. O'Neill v. Auburn, 50: 1140, 135 Pac. 1000, 76 Wash. 207. Parties. Right of taxpayer to bring injunction suit, see supra, I. j. Who may enjoin nuisance, see NUISANCES, II. a. Unincorporated labor union as party de- fendant, see ASSOCIATIONS, 5, 6. Injunction suit by attorney general, see ATTORNEY GENERAL, 5, 9. To restrain monopoly, see CASE, 8. Right of one whose only title is under tax deed to one whose heir he is, to enjoin one holding under government title, see CLOUD ON TITLE, 22. Against ultra vires act of corporation, see CORPORATIONS, 269. Who may enjoin violation of building re- striction, see COVENANTS AI*D CONDI- TIONS, 98. Joinder of parties plaintiff, see PARTIES, 153, 154. Parties plaintiff, see PARTIES, 34-36, 38, 41, 104, 112-114, 117, 125-136. Parties defendant, see PARTIES, 160-162, 167, 187, 191, 195. Right of state to bring injunction suit, ste STATE, 15. See also supra, 13, 102, 218, 334, 335. 427. Defect of parties plaintiff will not deprive a court of jurisdiction to hear an application for injunction, or justify defend- ant in ignoring an injunction which is granted. Franklin Union No. 4 v. People, 4: i ooi, 77 N. E. 176, 220 111. 355. Afr davits. 429. Under a statute permitting a motion to dissolve an injunction before answer, affi- davits in support of such motion are to be accorded the same effect in ruling upon the motion as would be given to the same ma f - ter if pleaded in a formal answer; and the absence of ans\\er will, therefore, not amount to a confession of the equities al- leged in the bill. H. W. Costard Co. v. Crosby, 6: 1115, 109 N. W. 483, 132 Iowa, 155. 1 rocess or notice. Sufficiency of service of process, see WBIT AND PROCESS, 18. Bond. When right of action on bond accrues, see ACTION OR SUIT, 22. Suit on, for attorneys' fees, see APPEAL AND ERROR, 699. Effect of discharge in bankruptcy of prin- cipal on liability of surety on injunc- tion bond, see BANKRUPTCY, 156, 157. Measure of damages, see DAMAGES, III, m. Liability of municipality for damages, see MUNICIPAL CORPORATIONS, 432, 433. Liability of surety on, see PRINCIPAL AND SURETY, 7, 8. See also supra, 417. 430. The requirement of a rule of court, that an injunction bond must be acknowl- Digest 1-52 1,.R.A.(N.S.) edged by the sureties to entitle it to be re- ceived and filed, cannot be waived or dis- pensed with by the obligee, since it is for the benefit of botli parties. Hendry v. Cart- wright, 8: 1056, 89 Pac. 309, 14 N. M. 72. 431. A bond in an injunction suit to re- strain a prosecuting attorney from proceed- ing with a criminal prosecution may proper- ly run to him individually, and he may maintain an action thereon as an individual. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. 432. That a court has no jurisdiction to issue an injunction does not make unneces- sary the employment of counsel to secure its dissolution, so as to prevent recovery on the injunction bond for the value of their services. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. 433. That attorneys' fees necessary to se- cure the dissolution of an injunction have not actually been paid does not preclude holding the injunction bond liable for the amount. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. 434. That a municipal corporation em- ploys regular counsel on salary does not prevent its employing special counsel to as- sist in the defense of an injunction suit against it so as to relieve the bond condi- tioned to satisfy all costs and damages wrongfully resulting from the suing out of the injunction from liability for the com- pensation of such counsel if the injunction suit is dismissed. Vicksburg Waterworks Co. v. Vicksburg, 33: 844, 54 So. 852, 99 Miss. 132. (Annotated) 435. That a court has no jurisdiction to enjoin a prosecution for crime does not nullify a bond given in a proceeding for that purpose. Littleton v. Burgess, 16: 49, 91 Pac. 832, 16 Wyo. 58. 436. A bond to support an interlocutory injunction to restrain the removal of wood from land claimed by plaintiff is not lia- ble for the loss of the wood through its removal from the property by a stranger, since the injunction does not change the right to possession of the wood. Gobbi v. Dileo, 34: 951, 111 Pac. 49, 113 Pac. 57, 58 Or. 14. (Annotated) 437. A bond to support a temporary in- junction against the removal of wood from land claimed by plaintiff is not liable for the rental value of a vessel which had been hired to remove the wood, if there is no proof that the writ was ever served. Gobbi v. Dileo, 34: 951, 111 Pac. 49, 113 Pac. 57, 58 Or. 14. 438. No recovery can be had on the in- junction bond upon dismissal of the suit be- fore trial, by one who, having no right to move a house along a street, is enjoined from tearing down the overhead wires of an electric railway company operating cars in the street, and from obstructing the com- pany's track for that purpose, unless he shows that he has not threatened to tear down the wires or obstruct the track. Ft. Madison Street R. Co. v. Hughes, 14: 448, 114 N. W. 10, 137 Iowa, 122. 439. One wrongfully enjoined from erect- INK; INNKEEPER. 1525 ing a dwelling is not precluded from recov- ering damages therefor because he fails to move to discharge the injunction, where the whole controversy is over the right to erect the building because defendant is of negro blood, and the injunction is not merely ancillary to or in aid of the main issue. Stone v. Hunter Tract Improv. Co. 39: 180, 122 Pac. 370, 68 Wash. 28. 440. Where no bond or undertaking is required on the issuance of an injunction there can be no liability for damages sus- tained on account of the injunction, unless the injunction was obtained maliciously, and without probable cause. Doyle v. Sand- point, 32: 34, 112 Pac. 204, 18 Idaho, 654. Dismissal. Dissolution of preliminary or interlocutory injunction, see supra, 418-422. Dismissal of suit to enjoin construction of line fence as bar to action to establish boundary line, see JUDGMENT, 115-117. Decree. Inconvenience as ground for refusing, see supra, 39-24. Right to appeal from decree, see APPEAL AND ERROR, 40, 41. Supersedeas pending appeal from, see AP- PEAL AND ERROR, 107-110. Right to complain that decree is too favor- able, see APPEAL AND ERROR, 518. Review of, see APPEAL AND ERROR, 696. Decision on former appeal as law of case, see APPEAL AND ERROR, 1664. As to costs, see COSTS AND FEES, 15. Judicial notice of decree granting, see EVI- DENCE, 0. Admissibility of judgment enjoining liquor nuisance, see EVIDENCE, 772. Dismissal without prejudice, see JUDGMENT, 40. Effect of judgment of dismissal, see JUDG- MENT, 115-117. Effect and conclusiveness of decree, see JUDG- MENT, 153, 198, 199, 243. Who bound by decree, see JUDGMENT, 198, 199, 230. '231, 232, 243. Sufficiency of findings to support judgment, see JUDGMENT, 41. Revival of decree, see JUDGMENT, 321. Prohibition to restrain enforcement of void injunction order, see PROHIBITION, 16. Contempt in disobeying, see APPEAL AND ERROR, 109; CONTEMPT, 13, 41-59, 65, 66, 71, 72, 76, 88-91, 99, 104, 106-109; JUDGMENT, 275. Scope of inquiry on appeal from conviction for violating, see APPEAL AND ERROR, 493. Question whether fine imposed for violation of, can be paid to complainant in satis- faction of damages and expenses, see APPEAL AND ERROR, 556. Right to fine corporation for violation of, see CORPORATIONS, 116. Prohibition to restrain proceedings for vio- lation of, see PROHIBITION, 18, 19. 441. A judsrment enjoining the perform- ance of a contract which has already been performed is irregular. Farnsworth v. Wil- bur, 19: 320, 95 Pac. 642, 49 Wash. 416. 442. Upon a petition to enjoin a town Digest 1-52 KR.A.(N.S.) from carrying out an illegal contract con- sisting of the satisfaction without consider- ation of a judgment recovered by it, which has in fact been done, a court of equity may set aside the satisfaction and restrain the parties from carrying out the agreement. Farnsworth v. Wilbur, 19: 320, 95 Pac. 642, 49 Wash. 416. 443. An injunction against a boycott should be limited to acts of commission. American Federation of Labor v. Buck's Stove & Range Co. 32: 748, 33 App. D. C. 83. 444. An insurance company whose trade- name and trade device are being unlawfully used by another insurance company should not be confined to an injunction restraining such use "in its present form," but is enti- tled to the relief without limitation. Atlas Assur. Co. v. Atlas Ins. Co. 15: 625. 112 N. W. 232, 138 Iowa, 228. 445. An injunction prohibiting one who has sold the good will of a dental business from re-engaging in that business within the limits of the city sufficiently projects the rights of the purchaser, although his patients have been secured from towns out- side the city. Foss v. lloby, 10: 1200, 81 N. E. 199, 195 Mass. 292. 446. The possible serious injury to the public from an absolute cessation of inter- state commerce in petroleum and its prod- ucts by the agencies embraced in a holding company controlling the oil industry, in violation of the anti-trust act of July 2, 1890, requires that upon dissolving 'the holding company, the subsidiary corpora- tions should not be enjoined from carrying on interstate commerce until the dissolu- tion of the combination should be effected, in accordance with the decree, by the trans- fer back to the stockholders of the sub- sidiary corporations of the stock which had been turned over to the holding company in exchange for its own stock. Standard Oil Co. v. United States, 34: 834, 31 Sup. Ct. Rep. 502, 221 U. S. 1, 55 L. ed. 619. INK. Injury to clothing of customer by ink run- ningr from counter, see NEGLIGENCE, 77. INNKEEPERS. I. Jn general, 13. II. Who are guests, 41O. III. Rights of and liability to guests, 11-31. a. In general, 1115. b. For loss of property, 1627. c. For injuries to person or in- dignities to guests, 2831. IV. Rights of persons other than guests, 32. V. Lien, 33. Discrimination in ordinance as to right to 1526 INNKEEPERS, I., II. maintain billiard or pool room, see AC- TION or, SUIT, 52. Constitutionality of regulations as to keep- ing billiard or pool tables, see CONSTI- TUTIONAL LAW, 243, 692. Making departure of guest without paying prima facie evidence of intent to de- fraud, see CONSTITUTIONAL LAW, 622. forbidding soliciting of business for hotel at railroad stations, see CONSTITUTION- AL LAW, 688. Monopolistic contract between, see CON- TRACTS, 544. Liability of one engaging accommodations for third person where they refuse to accept them, see CONTRACTS, 630. Damages for breach of covenant to renew lease of property used for hotel, see DAMAGES, 148, 689. Furnishing of intoxicating liquor to guests on Sunday as part of meals, see IN- TOXICATING LIQUORS, 161. Limiting hours of labor of women in hotels, ' see CONSTITUTIONAL LAW, 308 ; MAS- TER AND SERVANT, 93. Saloonkeeper as, see SALOONKEEPER. I. In general. (See also same heading in Digest L.R.A. 1-70.) 1. The existence of hotels in a city a mile away does not establish the non-ne- cessity of a tavern at a river landing where one has existed for thirty years, and the re- ceipts from it, exclusive of the bar. amount to from $16 to $20 per week, and a number of reputable citizens testify to its necessity, although there is testimony to the contrary. Schneider v. Com. 20: 107, 111 S. W. 303, 33 Ky. L. Rep. 770. 2. One is not shown not to be a bona fide tavern keeper by the fact that the re- ceipts from his bar are in excess of those from the tavern proper. Schneider v. Com. 20: 107, 111 S. W. 303, 33 Ky. L. Rep. 770. (Annotated) 3. The change by a hotel keeper who has paid a hotel-license fee from the American to the European plan does not subject him to the payment of an additional fee as a restaurant keeper, although he may serve meals to persons not rooming in the hotel, and the ordinance defines a restaurant as a place where food is prepared for casual cus- tomers, and sold for consumption therein. New Gait House Co. v. Louisville, 17: 566, 111 S. W. 351, 129 Ky. 341. (Annotated) II. Who are guests. (See also same heading in Digest L.R.A. 1-10.) Evidence of reputation as guest, see EVI- DENCE, 1545. 4. That an innkeeper also conducts a bath house at the seashore, where the general public, as well as guests at his inn, may ob- tain the use of bath rooms and accessories to the bath, is not sufficient to consti- Digest 1-52 L.R.A.(N.S.) tute the relation of innkeeper and guest be- tween him and persons using such bath house. Walpert v. Bohan, 6: 828, 55 S. E. 181, 126 Ga. 532. 5. Where a traveler is provided with ac- commodation and refreshment in an inn, the fact that the expenses thereof are, by agree- ment with the innkeeper and another per- son, to be paid for by that other person, does not prevent the relation of innkeeper and guest from arising; and the innkeeper therefore incurs the customary liability for the safe custody of the traveler's goods in the inn. Wright v. Anderton, 4 B. R. C. 425, [1909] 1 K. B. 209. Also Reported in 78 L. J. K. B. N. S. 105, 100 L. T. N. S. J23, 25 Times L. R. 156, 53 Sol. Jo. 135. ( Annotated ) 6. One who, upon going to a place for the benefit of his health, engages a room and board at a hotel for an indefinite time, is a guest, for the safety of whose prop- erty the keeper is liable, although he con- tracts for the weekly rate for his entertain- ment. Pettit v. Thomas, 42: 122, 148 S. W. 501, 103 Ark. 593. (Annotated) 7. A traveler who is met at the door of an inn by a servant of the establishment, and delivers to him his baggage, which is placed with that of other guests, and who repairs to the dining room, where he is served with food for which he pays the customary price, is a guest, for the safety of whose .baggage the innkeeper is responsi- ble, although he does not register or notify the clerk or other officer of his intention to become a guest, or give any directions as to the care of his baggage. Memphis Hotel Co. v. Hill, 34: 420, 136 S. W. 997, 124 Tenn. 385. (Annotated) 8. The relationship of innkeeper and guest is not established so as to render the innkeeper liable for injury to the mule of one who claims to have been a guest at the time, where the owner of the mule left it in a stable pointed out by a boy in charge thereof, in which guests were permitted to keep their horses without charge, except for feed if furnished by tne innkeeper, and then left the premises without entering the inn or arranging that the innkeeper should furnish any feed for the mule, or doing anything towards becoming a guest, although he stated to the boy that he would return and himself feed the mule at dinner time, and he testified that he intended to take dinner at the inn with another person who accompa- nied him, but did not do so because before dinner time he learned of the injury to the mule, and at such time was ministering to its sufferings. Brewer v. Caswell, 23: 1107, 64 S. E. 674, 132 Ga. 563. (Annotated) 9. A stranger who goes to a hotel which is run as a summer resort, for a short stay, without any prearrangement as to terms or time, has a right to hold the proprietor to the liability of an innkeeper for property stolen from his room, although he pays board by the week at a reduced rate. Hoi- stein v. Phillips, 14: 475, 59 S. E. 1037, 146 N. C. 366. (Annotated) 10. One who goes into a hotel merely to INNKEEPERS, III. a, b. 1527 pass the time and write letters, without registering or purchasing any accommoda- tions, is not a guest so as to render the keeper responsible for the safe-keeping of his baggage. Baker v. Bailey, 39: 1085, 145 S. W. 532, 103 Ark. 12. III. Rights of and liability to guests. a. In general. (See also same heading in Digest L.R.A. 1-10.) Liability of members of partnership con- ducting hotel, see PARTNERSHIP, 14, 15. 11. An innkeeper is not required to entertain a guest who has refused to pay a lawful charge. Morningstar v. Lafayette Hotel Co. 52: 740, 105 N. E. 656, 211 N. Y. 465. (Annotated) 12. If all the bedrooms of an inn are full, the innkeeper is under no obligation at common law to provide a traveler with shelter and accommodation for the night, although the coffee-room is unoccupied and the traveler demands to be allowed to pass the night there. Browne v. Brandt, 2 B. R. C. 680, [1902.] 1 K. B. 696. Also Reported in 71 L. J. K. B. N. S. 367, 50 Week. Rep. 654, 86 L. T. N. S. 625, 18 Times L. R. 399. (Annotated.) 13. Innkeeper's liability attaches to one who, although keeping a hotel whose prin- cipal patrons are families, takes all tran- sients possible, receiving any proper per- son. Pettit v. Thomas, 42: 122, 148 S. W. 501, 103 Ark. 593. ^ 14. An innkeeper is not liable for de- priving a guest of the room to which he was assigned if he offers him proper accommo- dation in lieu thereof. Hervey v. Hart, 9: 213, 42 So. 1013, 149 Ala. 604. (Annotated) 15. A hotel keeper is responsible to a guest for the acts of his servants in cnarge of a hotel, whether the particular acts were expressly authorized or not, providing the servant was acting in behalf of the pro- prietor at the time, and within the general scope of his employment. Lehnen v. Hines, 42: 830, 127 Pac. 612, 88 Kan. 58. ft. For loss of property. (See also same heading in Digest L.R.A. 1-70.) Who are guests for whose property innkeep- er, is liable, see supra, II. Liability of proprietor of bathing house for loss of patron's property, see BAILMENT, 12. Question for jury as to, see TRIAL, 591, 627, 628. 16. It is the duty of a boarding house keeper to take reasonable care for the safety of property brought by a guest into his house. Scarborough v. Cosgrove, 3 B. R. C. 305, [1905] 2 K. B. 805. Also Reported in 75 L. J. K. B. N. S. 892, 54 Week. Rep. 100, 93 L. T. N. S. 530, 21 Times L. R. 754. (Annotated) Digest 1-52 L.R.A.(N.S.) 17. A house in which furnished rooms are let for a single night or longer time, and which is open at all hours for the re- ception of guests, who, upon registering their names, are provided with lodging, is a public hotel although the guests are not supplied with food; and the proprietor is liable to a guest, in the absence of negli- gence by either party, for money stolen in the nighttime from him while he is in his room. Nelson v. Johnson, 17: 1250, 116 N. W. 828, 104 Minn. 440. ' (Annotated) 18. An innkeeper is liable for the loss of property of a guest through the destruc- tion of the building by fire. Pettit v. Thomas, 42: 122, 148 S. W. 501, 103 Ark. 593. 19. Where property is brought to a hotel for the purpose of sale or show, such as the goods of commercial travelers, the law does not hold an innkeeper to his strict liability, but only to the exercise of ordinary care, and answerable for negli- gence. Williams v. Norvell Shapleigh Hard- ware Co. 35: 350, 116 Pac. 786, 29 Okla. 331. (Annotated) 20. A hotel clerk has no implied author- ity to agree with a departing guest to take care of his personal baggage in the office until it shall be called for, so as to render the innkeeper liable in case the property is lost through delivery to a stranger. Booth v. Litchfield, 35: 710, 94 N. E. 1078, 201 N. Y. 466. 21. The delivery by a guest at a summer boarding house, who is paying for his ac- commodations at a weekly rate, of valuables to the landlord for safe-keeping, does not constitute a naked deposit without reward, so as to render the landlord liable for loss only in case of gross negligence on his part. Coe v. Ricker, 45:30, 101 N. E. 76, 214 Mass. 212. (Annotated) 22. The renting of a room in an inn to a hockey team, for the use of members of the local and of visiting teams in changing clothes and taking refreshment, does not in law so take it out of the control of the innkeeper as to prevent his being responsible for goods left in it. Wright v. Anderton, 4 B. R. C. 425, [1909] 1 K. B. 209. Also Reported in 78 L. J. K. B. N. S. 165, 100 L. T. N. S. 123, 25 Times L. R. 156, 53 Sol. Jo. 135. 23. An innkeeper is not relieved from liability for the value of jewels forming part of the contents of a hand bag of a guest, which is lost while in the actual possession of his servant, by a statute requiring him to keep a safe, and post notices that he will not be liable for valuables not delivered for deposit therein, and upon compliance there- with he shall not be liable for loss unless it shall occur by a servant employed by him in the inn. Rockhil! v. Congress Hotel Co. 22: 576, 86 N. E. 740, 237 111. 98. (Annotated) Negligence of guest. 24. Provisions of a statute requiring ho- tel guests to deposit valuables in the safe do not apply after the guest has begun his departure from the inn, and given his bag- gage in charge of a porter sent to receive it. 1528 INNKEEPERS, III. cV. Rockhill v. Congress Hotel Co. 22: 576, 86 N. E. 740, 237 111. 98. 25. An innkeeper who has complied with the requirements of a statute relieving him from responsibility for valuable articles belonging to his guests if he provides an iron safe or other place of deposit for such articles, and posts a notice in accordance with the statute, is not liable for the loss by theft of articles from the room of a guest who failed to comply with such notice and deposit her valuables as required by statute, although the articles were stolen in consequence of the negligence of the innkeeper either in failing to provide a suitable lock on the door of the room occupied by the guest, or in placing a fire escape in such a manner as to afford easy access to the room from the street below. Jones v. Savannah Hotel Co. 51: 1168, 81 S. E. 874, 141 Ga. 530. 26. Five diamond rings, one watch bracelet, a topaz chain and watch, worn by a female guest at an inn as articles of per- sonal adornment, are within the meaning of a statute relieving an innkeeper who has provided himself with an iron safe or other place of deposit, and posted notice thereof, of liability "for valuable articles," so that the guest cannot recover of an innkeeper who has complied with the provisions of the statute, fur loss of the above articles from her room during the night by theft. Jones v. Savannah Hotel Co. 51: 1168, 81 S. E. 874, 141 Ga. 530. 27. A guest departing from a hotel acts at his own risk in leaving money with the clerk, to be deposited in the safe until he calls for it, and cannot hold the hotel keeper responsible in case it cannot be found when he returns for it. Oxford Hotel Co. v. Lind, 28: 495, 107 Pac. 222, 47 Colo. 57. (Annotated) c. For injuries to person or indignities to guests. (See also same heading in Digest L.R.A. 1-10.) Injury to passenger on elevator, see ELEVA- TOBS, 7. Presumption of negligence from injury to guest, see EVIDENCE, 454. Liability of lessor of hotel to guest injured on premises, see LANDLORD AND TENANT, 173. Contributory negligence of guest, see NEGLI- GENCE, 248. 28. Where a person is received in a hotel as a guest, the law implies a contract between the proprietor and the guest that the proprietor, by himself and his servants and agents, will exercise reasonable care for the safety, convenience, and comfort of the guest; and that the guest, on his part, will observe the recognized proprieties of life and refrain from any boisterous or other conduct offensive to other guests, or Digest 1-52 L.R.A.(N.S.) which would bring the hotel into disrepute. Lehnen v. Hines, 42: 830, 127 Pac. 612, 88 Kan. 58. By servants of innkeeper. Measure of damages for arrest of guest, see DAMAGES, 339. 29. An innkeeper is liable in compensa- tory damages to a woman guest in case his servant forcibly enters her room against her protest when she is in scant attire and, in the presence of a stranger, accuses her of immoral conduct, and orders her and her brother, who is at the time in the room, to depart from the inn. De Wolf v. Ford, 21: 860, 86 N. E. 527, 193 N. Y. 397. 30. A night clerk left in charge of a hotel, with authority to receive guests, as- sign them to rooms, preserve order, and generally look after the hotel during the night, has the implied authority to eject guests from their rooms in order to pre- serve peace and order; and if the clerk undertakes to eject a guest from her room, and uses force and violent language, and summons the police, and directs the police to make an arrest and place the guest in jail, such action on the part of the night clerk will be held in law to be the act of the employer of such clerk, or the proprie- tor of the hotel, and for the- right or wrong of which the hotel proprietor must be held responsible. Lehnen v. Hines, 42: 830, 127 Pac. 612, 88 Kan. 58. (Annotated) Contributory negligence of guest. 31. A guest in a hotel does not assume the risk of injury in attempting to reach the ground floor, when the elevator is out gf commission, by the use of a dark stair- way provided for the use of guests. Ritter v. Norman, 43: 657, 129 Pac. 103, 71 Wash. 563. (Annotated) IV. Rights of persons other than guests. (See also same heading in Digest L.R.A. 1-10.) 32. The acceptance by a hotel porter of baggage from one who intends to become a guest at the hotel, but does not do so, es- tablishes merely a gratuitous bailment, and the innkeeper is bound to use only slight care in protecting it. Baker v. Bailey, 39: 1085, 145 S. W. 532, 103 Ark. 12. (Annotated) V. Lien. (See also same heading in Digest L.R.A. 1-10.) Giving innkeeper lien upon baggage brought by guest, though owned by third person, see CONSTITUTIONAL LAW, 556. 33. The vendor in a conditional sale of personal property is not affected by a con- tract to which he is not a party, between the purchaser and the proprietor of a hotel in which the purchaser is a guest, purport- ing to subject all property brought into the hotel by her to a lien in favor of the hotel proprietor. Horace Waters & Co. v. Gerard, 24: 958, 82 N. E. 143, 189 N. Y. 302. INNOCENCE INSOLVENCY, I. INSANE PERSONS. 1529 INNOCENCE. Presumption of, see EVIDENCE, 122, 297-301, 1390. INNUENDO. Actionability of, see LIBEL AND SLANDER, II. In complaint for libel or slander, see PLEADING, 136, 362, 364; TRIAL, 333. IN PERSONAM. Judgment in personam, see ATTACHMENT, 30, 31; JUDGMENT, 18, 27, 66, 84; ME- CHANICS' LIENS, 108-111; MORTGAGES, 109. INQUEST. Of coroner as evidence, see EVIDENCE, 759, 760. Evidence of defendant's statement at, see EVIDENCE, 1220, 1221. INQUIRY. Duty of purchaser of negotiable paper to make, see BILLS AND NOTES, 159. INQUISITION. As evidence, see EVIDENCE, 773, 774. As to competency, see INCOMPETENT PER- SONS, 4. INSANE ASYLUM. As nuisance, see COURTS, 156; MUNICIPAX CORPORATIONS, 152. Admissibility of order committing person to insane asylum, see EVIDENCE, 736. Requiring permit for location of, within city limits, see MUNICIPAL CORPORATIONS, 215. Right to inspect records of public insane asylum, see RECORDS AND RECORDING LAWS, 7. Support in, see INCOMPETENT PERSONS, IV. Digest 1-52 L.R.A.(N.S.) See INCOMPETENT PERSONS. INSANITY. See INCOMPETENT PERSONS. INSECTS. Validity of statute providing for commis- sion for study and extermination of in- sect and plant disease, see CONSTITU- TIONAL LAW, 98, 383, 588, 614, 651. Expense of treating insect diseases assessed against owner of property, see TAXES, 6. -OKU,K! as* .iio>"nj iadvloaiii y,J iiua \<> INSOLVENCY. I. In general. II. Unlawful preferences, 1, 2. III. What passes to assignee or trus- tee. IV. Claims against and distribution of estate, 3. V. Discharge. I. In general. (See also same heading in Digest L.R.A. 1-10.) Of bank, see BANKS, IV. b, 2 ; V. Of drawee of check forwarded for collection, see BANKS, 181. Of building and loan association, see BUILD- ING AND LOAN ASSOCIATIONS, VII. Of social club, see APPEAL AND ERROR, 43; CLUBS, 3. Of corporation generally, see CORPORATIONS, VI. f. Of foreign corporation, see CORPORATIONS, VII. d. Of factor to whom payment has been made by purchaser, see FACTORS, 4. Of insurance company, see INSURANCE, I. c. Of independent contractors, effect on mas- ter's liability, see MASTER AND SERV- ANT, 992. Of partnership, see PARTNERSHIP, 35-38. Of purchaser as ground for rescission, see SALE, 205. Of trustee, see TRUSTS, 118, 150. Bank director's liability for loss to cred- itors by, see BANKS, 51-53. Payment of check by bank in ignorance of customer's insolvency, see BANKS, 87. Effect of insolvency of parties to draft on duty to give indorsers notice of dis- honor, see BILLS AND NOTES, 102. Conflict of laws as to, see CONFLICT OF LAWS, I. f. Assumption of debta of insolvent partner- ship, see CONTRACTS, 73. 1530 INSOLVENCY, II. INSPECTION. Rescission of subscription to stock after in- solvency of corporation, see CORPORA- TIONS, 208, 209. Effect of omission of insolvent defendants, see CORPORATIONS, 358. Right to consider insolvency of defendant in awarding damages, see DAMAGES, 349. Presumption as to, see EVIDENCE, 129. Evidence to show, see EVIDENCE, 1546, 1955, 1956. Effect of, on set-off, see GARNISHMENT, 46. Effect of, on necessity of demand on guaran- tor, see GUARANTY, 3. Injunction against tortious acts by insol- vent person, see INJUNCTION, 122. Effect of insolvency of labor organization on right to injunction against it, see INJUNCTION, 156. Effect of insolvency of conditional vendee on rights of one making repairs on property as against vendor, see INJUNC- TION, 247. Injunction against institution in other state of suit by insolvent person, see INJUNC- TION, 257. Effect of insolvency of reinsured on liability of reinsurer, see INSURANCE, 904. Marshaling assets of insolvent corporation, see MARSHALING ASSETS, 1. Effect of, on right to rescind subscription to stock for fraud, see PLEADING, 199, 409, 410. Sale of note by insolvent, see SALE, 1. As affecting set-off, see SET-OFF AND COUN- TERCLAIM, I. f. Effect of repeal of statute authorizing liqui- dation of insolvent bank, see STATUTES, 360, 361. Following trust property, see TRUSTS, V. As to assignment for creditors, see ASSIGN- MENTS FOR CREDITORS. As to bankruptcy, see BANKRUPTCY. As to receivers, see RECEIVERS. //. Unlawful preferences. (See a/so same heading in Digest L.R.A. 1-10.) By bank, see BANKS, 228-231. By corporation, see CORPORATIONS, VI. f, 2. Sufficiency of evidence to establish, see EVI- DENCE, 2199-2201. Fraudulent conveyances by insolvent, see FRAUDULENT CONVEYANCES. See also FRAUDULENT CONVEYANCES, III. 1. A creditor receiving payments made by a concern which is in fact insolvent, but without thought of injuring other creditors, and in the belief that it will be able to pay them all, cannot be said to have had rea- sonable cause to believe that it was intend- ed by the payments to give him a prefer- ence, so as to enable the trustee to set aside the payments. Tumlin v. Bryan, 21: 960, 165 Fed. 166, 91 C. C. A. 200. 2. While a failing or insolvent debtor may prefer one or more of his creditors, yet, if the arrangement by which he does so stipulates or provides a" benefit for him- self, it is fraudulent on his part; and, if Digest 1-52 L.R.A. (N.S.) I the preferred creditors know of the exist- j ence of other debts due by the debtor, they are chargeable with participation in the fraud. Hoppe Hardware Co. v. Bain, 17: 310, 95 Pac. 705, 21 Okla. 177. (Annotated) ///. What passes to assignee or trustee. (See same heading in Digest L.R.A. 1-70.) IV. Claims against and distribution of estate. (See also same heading in Digest L.R.A. 1-10.) As to counterclaim in case of insolvency, see SET-OFF AND COUNTERCLAIM, I. f. Priorities. Between individual and firm creditors, see PARTNERSHIP, 39-42. Priority of claims against receivers, see RECEIVERS, III. To beneficiary where trustee is insolvent, see TRUSTS, 147-151. As to trust in assets of insolvent, see TRUSTS, 49. Priority of United States as creditor, see UNITED STATES, V. 3. One creditor cannot obtain priority over another by wrongfully taking posses- sion of the debtor's property. Jones v. North Pacific Fish & Oil Co. 6: 940, 84 Pac. 1122, 42 Wash. 332. V. Discharge. (See also same heading in Digest L.R.A, 1-10.) Discharge in bankruptcy, see BANKRUPTCY, V. INSPECTION. Duty of carrier to inspect cars received from other line, see CARRIERS, 758. Right of carrier to demand, see CARRIERS, 786, 787. Duty of shipper to inspect car, see CAR- RIERS, 809, 809a. Of electric wires and appliances, see ELEC- TRICITY, 15, 36, 48. Of electrical works, see MUNICIPAL COR- PORATIONS, 175. Of spark arrester on threshing engine, see FIRES, 16. Master's duty as to, see MASTER AND SERV- ANT, II. a, 4, e. Servant's duty as to, see MASTER AND SERV- ANT, 512, 518, 575, 631, 632. Failure to inspect engine as proximate cause of injury, see PROXIMATE CAUSE, 145. Sufficiency of evidence as to negligence in, see TRIAL, 143. Negligence as to, as question for jury, see TRIAL, 440, 574, 578, 579, 582, 602. Error in admitting proof of custom as to right of, see APPEAL AND ERROR, 1132, INSPECTOR INSTRUCTIONS. 1531 Inspection law, as interference with inter- state commerce, see COMMERCE, 16-20. Construction of contract as to right of, see CONTRACTS, 349. Of books and records of corporation, see CORPORATIONS, V. e, 3; MANDAMUS, 65-69, 108. Of mine by stockholder in company, see CORPORATIONS, 254. Presumption as to right of stockholders to inspect mine, see EVIDENCE, 81. Of mines, mandamus to enforce right of, see MANDAMUS, 10, 69. Criminal liability for violation of statute as to inspection of oil to be sold, see CRIMINAL LAW, 5. By accused of paper used by prosecuting attorney in examining witnesses, see CRIMINAL LAW, 72, 73. Right of accused to inspection of minutes of evidence before grand jury, see CRIM- INAL LAW, 73, 74. In general, see DISCOVERY AND INSPECTION. Burden of showing, see EVIDENCE. Determination of age of person by inspec- tion in court, see EVIDENCE, 880. Evidence of custom as to, see EVIDENCE, 1533. Of milk, see CONSTITUTIONAL LAW, 733; LICENSE, 66; MUNICIPAL CORPORA- TIONS, 194. Placing cost of inspection of electrical work upon contractor, see LICENSE, 50; MUNICIPAL CORPORATIONS, 175. Of books of municipality, see MUNICIPAL CORPORATIONS, II. i. Of dairies and cows, see MUNICIPAL COR- PORATIONS, 162. Of books by member of partnership, see PARTNERSHIP, 57, 58. Of agent's accounts, see PRINCIPAL AND AGENT, 17. Right to inspect records, see RECORDS AND RECORDING LAWS, 5-9. Of books, as unlawful search, see SEARCH AND SEIZURE, 3. Imposing inspection fee on meat imported from other state, see TAXES, 20. Of property shipped in sealed cars as a conversion, see TROVER, 29. Effect of purchaser's inspection of prop- erty on right to recover damages for broker's fraudulent representations as to value, see BROKERS, 11. Parol evidence as to purchaser's right to inspect before passing title, see EVI- DENCE, 1022. Right to reasonable time for, upon pur- chase of articles, see SALE, 27. Effect of, on warranty, see SALE, II. d. Injury to servant through negligence of car inspector, see MASTER AND SERV- ANT, 867. Buyer's inspector of motors as volunteer in attempting to adjust mechanism, see MASTER AND SERVANT, 468. As fellow servant of testor employed by motor manufacturer, see MASTER AND SERVANT, 803. Liability of street railway company for negligent act of inspector, see MASTER AND SERVANT, 902. Liability of car inspector for injury to serv- ant resulting from his negligence, see MASTER AND SERVANT, 1055. Building inspectors, see MUNICIPAL COR- PORATIONS, 32, 33. Exercise of city police power through, see MUNICIPAL CORPORATIONS, 43. Injury to agent of insurance company sent to inspect premises, see NEGLIGENCE, 92. INSTALLATION. Of machinery sold, see SALE, 107. INSTALMENTS. When action for instalment accrues, see ACTION OR SUIT, 8. Waiver of breach in failing to pay, see CONTRACTS, 702. Debt payable in, as exceeding debt limit, see COUNTIES, 27, 28; MUNICIPAL COR- PORATIONS, 274-279. Damages for breach of instalment contract, see DAMAGES, 177. Agreement for payment of price in instal- ments during construction as evincing intention to pass title, see SALES, 8. Sale of books on instalment plan, see SALE, 129. Right of purchaser of goods deliverable in instalments to rescind contract for breach as to quality, see SALE, 195, 196, 201. As INSTIGATION. affecting criminal responsibility, see CRIMINAL LAW, I. f. INSPECTOR. Admissibility of reports of car inspectors, as to defective condition of coupler, see EVIDENCE, 826. Of milk, see FOOD, 10. Mandamus to building inspector, see MAN- DAMUS, 135. Digest 1-52 I*R.A.(N.S.) INSTRUCTION. As a necessary for infant, see INFANTS, 68. Ratification by infant of contract for, see INFANTS, "77. In schools, see SCHOOLS, V. INSTRUCTIONS. For instructions generally and cross refer- ences to same, see TRIAL, III. To appraisers in eminent domain proceed- 1532 INSULATION INSURANCE. ings, see EMINENT DOMAIN, 122. Duty to give to servant, see MASXEB AND SERVANT, II. a, 3. INSULATION. Of electric wire, see ELECTRICITY, 18-28, 36, 78; MASTER AND SERVANT, 300, 442. Defect in, as proximate cause of injury, see PROXIMATE CAUSE, 57. INSULT. To passenger, see CARRIERS, II. d. Measure of damages for, see DAMAGES, 346. INSULTING LANGUAGE. As provocation for killing, see HOMICIDE, 70, 71. . INSUBABLE INTEREST. See INSURANCE, II. INSUBANCE. I. Companies, officers, and agents, 1-51. a. Right and manner of doing business, 112. b. Foreign corporations, 13 21. c. Dissolution; forfeiture; in- solvency; rights of mem- bers of mutual companies, 22-3Oa. d. Officers and agents, 3151. II. Insurable interest, 52 SO. a. In property, 5257. b. In life, 58 SO. III. The policy or contract, 81446. a. In general, SI 138. b. Reformation; rescission, 139-144. c. Cancelation; surrender; paid-up policy, 145174. d. Construction, 175191. 1. In general; policies on property, 175184. 2. Of policies on persons, 185-191. e. Warranties; representa- tions; conditions; de- scription, 192372. 1. In policies on property, 19S3O1. a. Generally, 192 2OO. b. Title and encum- brances, 2O123O. c. Use and care of property, 24O275. Digest 1-52 L.B.A.(N.S.) ///. e, 1 continued. d. Books; inventory; iron safe clause, 276286. e. Other insurance, 287-295. f. Severability, 296 3O1. g. Marine insurance. 2. In life or accident poli- cies, 3O2372. a. In general, 3O2 324. b. Health and habits, 325352. c. Occupation, 353 355. d. Other insurance; previous applica- tions, 356361. e. Family history, 362. t. Incontes lability, 363372. /. Forfeiture, 373 4O6. 1. In general, 373376. 2. For nonpayment of premiums or assess- ments, 377 4O 6. g. Reinstatement; revival, 407-414. h. Premiums and assessments, 415446. IV. Transfer of policy or of interest therein, 447 478. a. Assignment generally, 447 467. b. Change of beneficiary, 468 478. V. Waiver; estoppel, 479622. a. Of insured or beneficiary, 479-483. b. Of insurer, 484622. 1. In general, 484495. 2. Knowledge or notice, 496 52O. 3. Estoppel or waiver as affected by power of agent, 521543. 4. Mistake, negligence, or fraud of agent, 544 549. 6. Acts constituting waiver or estoppel, 55O . 622. a. In general, 55O 557. b. Misleading conduct, 558-563. c. Issuing and deliver- ing policy, 564 572. d. Receipt, demand, acceptance, and retention of, or ac- tion for, premium or assessment, 573-601. e. Failure to assert for- feiture, 6O2-6O6. t. Denial of liability, 607-616. g. Requiring, accept- ing, or retaining INSURANCE. 1533 V. b, 5 continued. notice or proofs of loss, 617-62O. h. Participation in ad- justment, 621, 622. VI. The loss; remedies of the as- sured, 623-9O3. a. Notice; proofs; arbitration, 623-67O. b. Risks and causes of loss, in- jury, or death, 671 778. 1. Under policies covering property, 671695. 2. Under life policies, 696 714. a. In general, 696 704. b. Risk of occupation or employment. c. Suicide, 7O5714. 3. Under accident ov health policies, 715-778. a. Accidental injuries generally, 715 730. b. Intentional injuries, 731733. C. External, violent, and accidental means, 734 75O. d. External or visible mark, 751-753. e. Things taken, ad- ministered, ab- sorbed, or inhaled, 754. ee. Blood poisoning, 755-763. f. Increased hazard; volttntary expo- sure, 764777. (1) In general; over exer- tion, 7C4- 771. (2) Risks of oc- cupation or employ- ment, 772. (3) Intoxication. (4) Risks of travel, 773776. (5) Violating law, 777. (6) Fighting. g. Suicide. h. Insanity. i. Injury as result of examination after accident. j. Insurance against loss from illness, 778. o. Extent of injury or loss; of recovery, 779816. 1. Insurance on property, 779-799. 2. Insurance on persons, 800-816. Digest 1-52 I,.R.A.(N.S.) VI. con t inu ed. d. Interest in proceeds, 817 851. 1. Of property insurance, 817824. 2. Of insurance on persons, 825-851. a. Jn general, 825. b. Widow, children, or heirs, 826834. c. Trust fund. d. Rights of assignees or creditors, 835. e. Mutual benefit in- surance, 836851. e. Defenses; release, 852 873a. f. Subrogation; rights of car- rier, 874 89O. g. Apportionment or contribu- tion, 891, 892. h. Actions; enforcing payment, 893-903. 1. In general, 893, 894. 2. Against assessment com- panies, 895, 896. 3. Contractural limitation of time, 897903. VII. Reinsurance, 9O4, 9O5. VIII. Guaranty policies, 9O6945. IX. Burglary insurance. Recovery of amount paid on policy on per- son who has disappeared where he sub- sequently reappears, see ASSUMPSIT, 40. Liability of administrator collecting insur- ance on life of absentee, upon latter's reappearance, see EXECUTORS AND AD- MIN ISTRA TOES, 62. Life insurance as asset of bankrupt, see BANKRUPTCY, 32-38. Matters as to benevolent societies other than insurance, see BENEVOLENT SO- CIETIES. Giving fire protective associations right of way in public streets, see CONSTITU- TIONAL LAW, 160. Interference with constitutional right to contract, see CONSTITUTIONAL LAW, 464, 465. Police power as to, see CONSTITUTIONAL LAW, 697-699. Impairing obligation of contract as to, see CONSTITUTIONAL LAW, 797-800. Power of directors to confer upon policy holders right to vote for directors to exclusion of stockholders, see CORPORA- TIONS, 132. Trust for voting stock of, see CORPORA- TIONS, 380. Jurisdiction to enforce policy on property in other state, see COURTS, 38 Original jurisdiction of appellate court in action for mandamus to state insur- ance commissioner, see COURTS, 229, 230. Individual action against administrator of insured person to whom donee of life policy delivers it for collection, see EXECUTORS AND ADMINISTRATORS, 63. Fire insurance patrol, see CHARITIES, 15; FIRE INSURANCE PATROL. Agreement in antenuptial contract to keep 1534 INSURANCE, I. a. up insurance for wife's benefit, see HUSBAND AND WIFE, 130. Injury to insurance solicitor on property by permission, see NEGLIGENCE, 101, 102. De facto commissioner of insurance, see OFFICERS, 116. Railroad relief department as an insurance business, see CORPORATIONS, 50. Contract with railroad relief association, see RAILROAD RELIEF ASSOCIATIONS. Effect of stipulation in contract for pur- chase of a product to be prepared by vendor, that vendor shall pay cost of insurance, see SALE, 21. Power of court to compel attorney to dis- close whether insurance company is interested in action for personal in- juries, see TKIAX, 4. Questions for jury as to insurance matters, see TRIAL, 645-656. Duty of water company to insure property of individual, see WATEBS, 358. /. Companies, officers, and agents, a. Right and manner of doing business. (See also same heading in Digest L.R.A. 1-70.) Police power as to, see CONSTITUTIONAL LAW, 698, 699. Requiring companies to pay portion of earnings to firemen's relief association, see CONSTITUTIONAL LAW, 699; TAXES, 16, 39. Duty of directorate to declare dividends of surplus, see CORPORATIONS, 292. Assessment upon insurance companies to pension firemen, see FIRE DEPARTMENT, 1. Imposing penalty on company for failure to pay claim within certain time, see CONSTITUTIONAL LAW, 800. Amendment of charter of insurance com- pany, see CORPORATIONS, 39-41. Mandamus to compel issuance of permit to do business within state, see COURTS, 229, 230. Admissibility of evidence in action for pen- alty for rebating, see EVIDENCE, 2037. Injunction against illegal contract between insurance companies, see INJUNCTION, 16. Illegal combination of companies, see MO- NOPOLY AND COMBINATIONS, II. e. Right to share in penalty for rebating, see PENALTIES, 5. Repeal of anti-trust laws relating to insur- ance companies, see STATUTES, 139, 331. Taxation of securities deposited by insur- ance company with state treasurer for benefit of policy holders, see TAXES, 73. Infringement of insurance company's use of tradename, see TRADENAME, 18. 1. A claim against an insurance com- pany for penalty for making a discrimina- tion between applicants in rates need not al- lege that it was unjust, if all the facts are stated, and the statute fixes the character Digest 1-52 L.R.A.(N.S.) of discrimination prohibited and character- izes such discrimination as unjust. People v. Hartford L. Ins. Co. 37: 778, 96 N. E. 1049, 252 111. 398. 2. A rule of an insurance company for- bidding rebating of premiums cannot effect a reduction of statutory penalty for grant- ing rebates, if the rule was violated by a manager having charge of an agency. Peo- ple v. Hartford L. Ins. Co. 37: 778, 96 N. E. 1049, 252 111. 398. "What constitutes insurance. 3. A voluntary association issuing benefit certificates is not entitled to the benefit of a statute providing that societies founded under it shall be corporations, and if intended to benefit widows and orphans of members shall not be deemed insurance companies. Head Camp Pacific Jurisdic- tion v. Sloss, 31: 831, 112 Pac. 49, 49 Colo. 177. 4. A benefit certificate in which the beneficiary may be anyone, even a stranger, dependent upon the holder, is not within a statute providing that societies intended to benefit widows, orphans, heirs, and dev- isees of members shall not be deemed in- surance companies. Head Camp Pacific Ju- risdiction v. Sloss, 31: 831, 112 Pac. 49, 49 Colo. 177. 5. A contract issued by an association to furnish the holder with burial at death, at a specified cost, the money to be raised by assessments upon members of the asso- ciation, who are secured by solicitation from the general public, is one of life insurance, within the meaning of a statute regulating such business. State v. Willett, 23: 197, 86 N. E. 68, 171 Ind. 296. (Annotated) 6. Undertaking to meet the expense of defending suits against physicians for civil malpractice, to the total expenditure of a specified amount, for compensation, is in- surance within the meaning of a statute requiring the filing of a bond and securing authority, to be entitled to do business in the state. Physicians' Defense Co. v. Coop- er, 47: 290, 199 Fed. 576, 118 C. C. A. 50. (Annotated) Assessment companies. Punishment of agent giving special rates, see CRIMINAL LAW, 245. 7. One taking an assessment policy from a company having the right to issue life insurance under both the assessment and the reserve plans cannot, in the absence of express contract, require the company to continue the issuance of assessment poli- cies. Green v. Hartford L. Ins. Co. i: 623, 51 S. E. 887, 139 N. C. 309. (Annotated) Mutual companies. Impairing obligations of contract as to, see CONSTITUTIONAL LAW, 797-799. Reorganization of mutual insurance com- pany, see CORPORATIONS, 20. Duty to declare dividends of surplus, see CORPORATIONS, 292. Jurisdiction of equity of action to enforce liability of members of assessment com- pany, see EQUITY, 98, 99. Bar of suit to recover assessments against INSURANCE, I. b. 1535 members of mutual company, see LIMI- TATION OF ACTIONS, 250. 8. The "surplus" of a mutual life insur- ance company belongs equitably to the pol- icy holders who contributed to it, in the proportion in which they contributed to it. United States L. Ins. Co. v. Spinks, 13: 1053, 96 S. W. 889, 126 Ky. 405. 9. In case of a distribution of the surplus of a mutual insurance company or of its other assets, there being no charter provision to the contrary existing policy holders, and such only, are the legitimate distributees. In the aggregate, they are entitled to the whole. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wic. 412. (Annotated) 10. It is competent for a mutual insur- ance corporation, there being no limitation in its charter to the contrary, to make rates for insurance with a view of probably creating a surplus and of subsequently dis- tributing the same to members so far as experience shall show that the same is not needed in the business. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 11. The Endowment Rank of the Knights of Pythias is a fraternal benefit association, and not an insurance company, within the meaning of a statute providH"- for extended insurance in case of forfeiture of insurance policies for nonpayment of premiums, al- though benefit certificates are not is ued to every member of the order, and the benefit fund is raised by the payment of fixed dues, payable at certain periods, and not by as- sessments to meet losses, and the Endow- ment Rank does not itself maintain a ritual- istic form of work or representative form of government, it being merely a branch of the general order, which is organized and carried on for the sole benefit of its mem- bers and their beneficiaries, and not for profit. Westerman v. Supreme Lodge, K. of P. 5: 1114, 94 S. W. 470, 196 Mo. 670. Consolidation. 12. A fraternal insurance company whose attempted consolidation with an- other company fails because ultra vires cannot avoid liability upon the certificates of the members of the latter, if upon its invitation they accept membership in it, pay their dues, and meet their other obli- gations, although they do not follow the procedure prescribed by its rules for the reception of members. Timberlake v. Su- preme Commandery, U. O. G. C. of W. 36: 597, 94 N. E. 685, 208 Mass. 411. (Annotated) T). Foreign corporations. (See also same heading in Digest L.R.A. 1-10.) Estoppel of, see infra, 491. Service of process on agent of, see EVI- DENCE, 2251. Garnishment of, see GARNISHMENT, 7. Injunction against other company's use of trade name or trade device, see IN- JUNCTION, 390, 444. Digest 1-52 L.R.A.(N.S.) Illegal combinations by, see MONOPOLY AND COMBINATIONS, 82. What are assets within state authorizing appointment of receiver for, see RE- CEIVERS, 16. Situs of loans made by, for purpose of taxation, see TAXES, 146. Estoppel to require second payment of tax paid to wrong officer, see TAXES, 260. 13. A statute directing the revocation of the license of a foreign insurance company to do business within the state for refusing to perfrrm its agreement not to remove suits against it to the Federal courts is not in conflict with the Federal Constitution. Prewitt v. Security Mut. L. Ins. Co. i: 1019, 83 S. W. 611, 119 Ky. 321. (Annotated) Right to do business. Appeal in action by foreign company re- fused license, see APPEAL AND ERROR, 697. 14. The mere fact that, at the time a foreign fraternal insurance company re- newed the certificate of a member for the purpose of increasing his benefit, no law ex- isted authorizing it to do business in the state, does not render the contract ame- nable to the laws governing regular policies of insurance issued by old-line companies. Westerman v. Supreme Lodge, K. of P. 5: 1114, 94 S. W. 470, 196 Mo. 670. 15. A resident of a state requiring in- surance companies to comply with certain statutory requirements before transacting business may safely deal with any insurance company holding itself out as qualified' to do business with him, in the absence of knowledge, actual or constructive, to the contrary, although the company has not in fact complied with the statute. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. 16. The right of a resident of a state which requires insurance companies to com- ply with certain statutory requirements be- fore transacting business to presume that a company offering to do business with him is qualified to transact it is not impaired by the fact that the company uses the United States mail as a medium of communication in negotiating its contract of insurance with him. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505'. 17. A statute requiring a paid-up, unim- Dairod cash capital of a certain amount to nable an insurance company to do busi- ness in the state, is not complied with by ihe realization of the prescribed amount by ;he sale of stock at a premium, but the en- are amount of stock appraised at par must subscribed and paid for. Union P. L. Ins. Co. v. Fer?uson, 43: 958, 129 Pac. 529, 130 Pac. 978, 64 Or. 395. What is doing business. 18. Merely recognizing existing insur- ance policies and receiving the premiums on them at its office in another s^-ife and adjusting claims which accrue does not constitute doing business within a state by an insurance company after its assert- ed withdrawal therefrom, so as to continue 1530 1MKUKANCE, I. c-. in force its designation of the insurance commissioner as its agent to receive serv- ice of process. Huntc>r v. Mutual Reserve L. Ins. Co. 30: 677, 76 N. E. 1072, 184 N. Y. 130. 19. The receipt by a foreign insurance j company at its home office of premiums up- on policies theretofore issued, together with four isolated acts extending over a period of three years, consisting in rewrit- ing an existing policy, sending a check in payment of a policy, to be delivered upon receipt of certain unpaid assessments, and two adjustments within the state of claims which have accrued, do not constitute do- ing business within the state after the com- pany's asserted withdrawal therefrom in good faith, so as to preclude it from revok- ing its designation of the state insurance commissioner as its agent to receive serv- ice of process. Hunter v. Mutual Reserve L. Ins. Co. 30: 636, 31 Sup. Ct. Rep. 127, 218 U. S. 573, 54 L. ed. 1155. Unauthorized contracts. Judgment against resident mutual insur- ance company on policy insuring prop- erty in other state, where it is invalid, see JUDGMENT, 282. 20. A policy issued by an insurance com- pany of one .state upon property in another state in which the company is unauthorized to transact business, is not, in the absence of an express statute, void as to the insured. Strampe v. Minnesota Farmers' Mut. Jns. Co. 26: 999, 123 N. W. 1083, 109 Minn. 364. (Annotated) 21. No action on behalf of a foreign in- surance company which has, without com- plying with the local laws, effected insur- ance on property within the state by a con- tract executed at its domicil upon applica- tions forwarded from still another state, can be maintained in the courts of the state where the property is located, to collect as- sessments provided for by the contract, where the statute provides that, when any forbidden act shall have been done by a for- eign corporation, it shall not be authorized to maintain any action founded upon such act, or upon an obligation arising out of it. Swing v. Cameron, 9: 417, 108 N. W. 506, 145 Mich. 175. (Annotated) c. Dissolution; forfeiture; insolvency; rights of members of mutual com- pa nies. {See also same heading in Digest L.Jt.A. 1-70.) Jurisdiction of action to enforce liability of members of mutual company, see COURTS, 16. Appointment of receiver for, see RECEIVER, 16. 22. The holders of a majority of the stock of a life insurance company may, upon change of management and the ad- vent of conditions which will result in de- clining profits and decreased assets which may lead to insolvency, sell the business Digest 1-52 L.R.A.(N.S.) while it is in a condition to command the i.ighcst possible price. Beidenkopf v. Des Moines L. Ins. Co. 46:290, 142 N. W. 434, 160 Iowa, G29. 23. The state has no preference over other creditors for payment of losses and unearned premiums out of the assets in the hands of a receiver of an insolvent in- surance company with which it has insured state property. State v. Williams, i : 254, 61 Atl. 297, 101 Md. 529. (Annotated) Who are members. 24. If the charter of a mutual insurance company contains no provision on the sub- ject, membership commences only with the taking out of a policy, and lasts only for the policy period. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 25. Under the charter of a mutual insur- ance company providing in eii'ect that ono can become a member only by taking out a policy of insurance, and that the member- ship can survive only to the end of the policy period upon which it is based, no one can rightly be treated as a member for any pur- pose, at any time, unless he then holds au unexpired policy of insurance. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. Rights of members generally. Impairing obligation of contract as to, see CONSTITUTIONAL LAW, 797-799. Member's right of action against company, see CORPORATIONS, 272. 26. As regards rights and remedies, the policy holders in a mutual insurance com- pany are stockholders therein the same as owners of stock in a stock corporation, there being no charter provision to the con- trary. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 27. For all except corporate purposes, the property of a mutual insurance com- pany, the same as that of any other corpo- ration, belongs to its members whether they are stockholders in the technical sense or in the broader one which includes policy holders in such a company. Huber v. Mar- tin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 28. The title to the property of a mu- tual insurance corporation is in the com- pany, but the equitable interests therein are vested in the members, the same as in case of a stock corporation. While the corporation owns the property, the mem- bers own the corporation. Huber v. Mar- tin, 3: 653, 105 N. W. 1031, 127 Wis. 412. 29. The interest of policy holders in a mutual insurance company are twofold, they are both insurers and insured. In re- spect to the former, they are entitled to .share in the losses and profits of the busi- ness on the basis of a partnership, except so far as the charter or policy contract provides otherwise. Huber v. Martin, 3: 653, 105 N. W. 1031, 127 Wis. 412. Distribution of assets. 30. Funds deposited by a surety com- pany with the state treasurer to secure its contracts, under a statute providing that they shall be held in trust by the treasurer INSURANCE, I. d. 1537 for contract holders, subject to sale by him and application of the proceeds only on the order of a court of competent jurisdiction, will not be required to be turned over to a receiver appointed to liquidate the affairs of the company, which remains solvent. Vandiver v. Poe, 46:187, 87 Atl. 410, 119 Md. 348. (Annotated) Insolvency. 30a. A bonus allowed by an insurance company to an officer of another company, who is also its agent, to reinsure its out- standing risks, out of the unearned premi- ums due on the contracts, in order to se- cure the agent's services in holding the re- newal business, may be recovered by a re- ceiver of the reinsured company, from either the agent or the company making the .re- insurance. Johns v. Arizona F. Ins. Co. 49: 101, 136 Pac. 120, 76 Wash. 349. (Annotated) d. Officers and agents. (See also same heading in Digest L.R.A. 1-70.) Effect of agent's mistake, negligence, or fraud, see infra, V. b, 4. Imputing agent's knowledge to company, see infra, V. b, 2. Note accepted by agent as payment of pre- mium, see infra, 426. Restrictions on right to engage in insurance brokerage business, see CONSTITUTIONAL LAW, 256. Requiring directors also to be stockholders, see CORPORATIONS, 40. Transferring power of electing directors from stockholders to policy holders, see CORPORATIONS, 41. Right of courts to control discretion of offi- cer, see COURTS, 169, 170. Damages for negligence of agent failing to forward application for insurance, see DAMAGES, 304. Presumption of agency, see EVIDENCE, 132. Admissibility of evidence in action for pen- alty for rebating, see EVIDENCE, 2037. Exemption of automobile used by general agent in his business, see EXEMPTIONS, 17. Effect of fraudulent representations by in- surance agent to insured, see FRAUD AND DECEIT, 31. Liability of company for libel of agent, see DAMAGES, 341. Libel of insurance agent, see LIBEL AND SLANDER, 61, 117. Grounds for discharging agent, see PRINCI- PAL AND AGENT, 16-18. Compelling payment of unpaid portion of premium where insurance wrongfully grants rebate, see CONTRACTS, 580. Imputing to company superintendent's knowledge that agent called on to ac- count has turned balance over to him, see NOTICE, 54. Sufficiency of evidence to show that person served with process is agent of com- pany, see EVIDENCE, 2251. Digest 1-52 L.R.A.(N.S.) 97 Action to recover from agent premiums col- lected by him, see PARTIES, 62; TROVER, 9. Pleading and proving defense in action on bond of agent, see EVIDENCE, 542. Evidence of admissions by agent as against his surety in action on his bond, see EVIDENCE, 1259. Release of surety on bond of insurance agent, see PRINCIPAL AND SURETY, 41. Right of trustee in bankruptcy of agent, to commissions on renewals, see BANK- RUPTCY, 39. Right of state to reduce compensation of insurance agent, see CONSTITUTIONAL LAW, 697, 783; CORPORATIONS, 17. Evidence in action against agent to re- cover secret commissions, see EVIDENCE, 1465. Garnishment of renewal commissions due general insurance agent, see GARNISH- MENT, 13. Succession tax on decedent's right to com- missions as insurance agent, see TAXES, 322, 323. 31. A statute limiting the amounts which insurance companies may expend for secur- ing new business does not apply to an exist- ing long-term contract with a general agent, so as to reduce the amounts to be paid him under his contract. Boswell v. Security Mut. L. Ins. Co. 19: 946, 86 N. E. 532, 193 N. Y. 465. (Annotated) 32. A provision in a contract by a gener- al agent of an insurance company placed in charge of the business in another state, that the contract is subject to the condition that the company continue to be legally author- ized to transact business in said district, does not make the provisions of the contract as to compensation subject to future legis- lation of the state where the company is incorporated. Boswell v. Security Mut. L. Ins. Co. 19: 946, 86 N. E. 532, 193 N. Y. 465. 33. Changes in premium rates or clauses in present forms of life-insurance policies are not to be construed as new forms, with- in the meaning of a provision in an agent's contract that the commissions specified in the contract shall not apply to any new forms of policies hereafter adopted. Bos- well v. Security Mut. L. Ins. Co. 19: 946, 86 N. E. 532, 193 N. Y. 465. 34. An insurance company is chargeable with the negligence of its agent in failing for an unreasonable time to forward an application and medical report for ac- ceptance or rejection* Duffy v. Bankers' L. Asso. 46: 25, 139 N. W. 1087, 160 Iowa, 19. 35. Where the agent of an insurance company, who has taken an application for insurance of corn against destruction by hail, at a season when such destruction is imminent, and accepted a note of the ap- plicant in payment of the premium, un- reasonably delays sending in the applica- tion while attempting to discount the note, and finally sends both the application and the note to the company, which accepts them and issues a policy, but, owing to the 1538 INSURANCE, I. d. delay, not until after the corn is destroyed by hail, such insurance company is liable in an action for damages for the negligence of ita agent in thus delaying the applica- tion. Boyer v. State Farmers' Mut. Hail Ins. Co. 40: 164, 86 Kan. 442, 121 Pac. 329. ( Annotated ) "Which party deemed the principal. Federal courts following state decision as to, see COUKTS, 323. See also infra, 512. 36. An insurance broker to whom a prop- erty owner makes a request for insurance, and who, acting as broker, procures a part of such insurance through agents of other companies not represented by him, is, as to such insurance, the agent of the insured, where he had charge of the selection of the company and of the insurance of the prop- erty, with power to revive the policies upon their expiration, the supervision and control of which remained in the insured. Morris McGraw Woodenware Co. v. German F. Ins. Co. 38: 614, 52 So. 183, 126 La. 32. 37. An insurance broker who is employed by a property owner as agent does not be- come the agent of an insurance company with which, through its agent, he has placed a portion of the insurance, merely because the agent of such company shares his com- missions on such insurance with the broker, so as to render the giving of notice by the insured to the broker to cancel such insur- ance notice to the insurer so as to effect a cancelation thereof. Morris McGraw Wood- enware Co. v. German F. Ins. Co. 38: 614, 52 So. 183, 126 La. 32. (Annotated) 38. In the absence of waiver or estoppel, if the cashier of a bank, who is also agent for an insurance company, after issuing a policy on the bank property containing a provision against additional insurance, se- cures additional insurance in another com- pany, the policy becomes void. First Nat. Bank v. German American Ins. Co. 38: 213, 134 N. W. 873, 23 N. D. 139. 39. An insurance agent who, after receiv- ing a person's consent to take, a policy, pre- sents it to a company other than his own, stating that he personally solicits and rec- ommends the risk, does not act as the agent of the insurer so as to bind it with his knowledge of the falsity of statements made in the application, although the insurer de- livers the policy to him to be delivered to the applicant. Travelers Ins. Co. v. Thome, 38: 626, 180 Fed. 82, 103 C. C. A. 436. (Annotated) Powers and duties. Estoppel or waiver as affected by powers of, see infra, V. b, 3. Insurance on property in which agent is interested, see infra, 115. Power to bind company by oral agreement as to rates, see infra, 415-417. Review on appeal of finding as to author- ity of insurance agent, see APPEAL AND ERROR, 992. See also infra, 412. Digest 1-52 L.R.A.(N.S.) 40. An insurance company is bound by the acts and statements of an agent to whom is intrusted the delivery of drafts in settlement of a claim, which are part of the negotiations leading to its settlement. New York L. Ins. Co. v. Chittenden, n: 233, 112 N. W. 96, 134 Iowa, 613. 41. One dealing with a local insurance agent is required to take notice that by the terms of his employment his authority does not include power orally to change the clause of a policy relating to vacancy of in- sured buildings. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. 42. An agent for a fire insurance com- pany, whose powers are strictly defined and limited by the express terms of the contract of insurance, cannot act so as to bind his company beyond the scope of his authority. Deming Invest. Co. v. Shawnee F. Ins. Co. 4: 607, 83 Pac. 918, 16 Okla. 1. 43. An insurance agent having no power expressly to waive the provisions of a policy rendering it void in case the premises be- come vacant cannot surrender the contract- ual right of his employer by issuing a policy on vacant property. Harris v. North Amer- ican Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. 44. An insurance company is bound by the act of its medical examiner in report- ing an applicant to be a fit subject for in- surance, unless he was purposely misled by the applicant, and inveigled into recom- mending him as a fit subject for insurance when but for such deception he would not have done so. Roe v. National L. Ins. Asso. 17: 1144, 115 N. W. 500, 137 Iowa, 696. 45. An insurance agent cannot issue a policy on his own property in favor of a mortgagee who has knowledge of the facts, which will be binding on his principal, if it never receives notice of the transaction, or any premium for the risk. Salene v. Queen City F. Ins. Co. 35: 438, 116 Pac. 1114, 59 Or. 297. 46. An insurance agent with power to issue policies has no authority, upon direc- tion by his company to cancel the policy paid for and delivered, to transfer the risk en behalf of the applicant to another com- pany represented by him. Waterloo Lum- ber Co. v. Des Moines Ins. Co. 51: 539, 138 N. W. 504, 158 Iowa, 563. (Annotated) 47. An insurer is responsible for repre- sentations made by its agent to one who proposed to let an existing policy lapse, to the effect that after the payment of pre- miums for a certain period the assured would be entitled to a paid-up policy, though the employment of the agent was only to procure proposals for insurance. Kettlewell v. Refuge Assur. Co. 3 B. R. C. 844, [1908] 1 K. B. 545. Also Reported in 77 L. J. K. B. N. S. 421, 97 L. T. N. S. 896, 24 Times L. R. 217, 52 Sol. Jo. 158. Personal liability. Agent's liability for failure to comply with instructions to reduce policy to speci- fied amount, see DAMAGES, 305. SS-l INSURANCE, II. a, b. 48. Qffim-3 of a Mutual fire insurance company are not liable to a member for the amount due him for -a loss because they organized the members of the branch which was liable for the loss into a new company, leaving the branch in a state of suspended animation. Perry v. Farmers' Mut. F. Ins. Asso. 2: 165, 51 S. E. 1025, 139 N. C. 374. 49. A member of a mutual fire insurance company, whose loss is to be paid by as- sessments upon the other members, cannot hold the officers of the association person- ally liable for his loss because they diverted funds of the association to other purposes, if they did not arise from an assessment made for his benefit, so that he had no lien on them. Perry v. Farmers' Mut. F. Ins. Asso. 2: 165, 51 S. E. 1025, 139 N. C. 374. (Annotated) 50. Written instructions to a fire insur- ance agent who lias power to cancel policies, that his company cannot carry a certain policy on a grain elevator building because it calls for an amount above the maximum line, and the insurance law prohibits the carrying of the reinsurance held, thereby necessitating its cancelation, and directing that he relieve the company of liability thereon at the earliest possible moment, are not reasonably susceptible of the construc- tion by the agent that he should relieve the insurer of its liability only at such time as he could place such insurance with an- other company, so as to relieve him from lia- bility to the insurer for the loss sustained by it because of his failure promptly to comply therewith, by reason of having acted in accordance with such construction. Queen City F. Ins. Co. v. First Nat. Bank, 22: 509, 120 N. W. 545, 18 N. D. 603. 51. An agent of a fire insurance company who fails to comply promptly with his com- pany's clear and specific written instructions to cancel a certain policy at the earliest possible moment is liable to the company for loss sustained because of such failure. Queen City F. Ins. Co. v. First Nat. Bank, 22: 509, 120 N. W. 545, 18 N. D. 603. (Annotated) //. Insurable interest, a. In property. (See also same heading in Digest L.R.A. 1-10.) As to ownership of insured property, see infra, III. e, 1, b. Assignment to one having no insurable in- terest, see infra, 451-458. 52. An equitable title to real estate gives an insurable interest to warrant a policy in the name of its owner, insuring it against loss by fire. Scott v. Dixie F. Ins. Co. 40: 152, 74 S. E. 659, 70 W. Va. 533. 53. Real estate acquired for a partner- ship with partnership means, and used in its business, gives the partnership an "in- surable interest" to warrant a policy in- suring it against loss by fire. Scott v. Dixie Digest 1-52 L.R.A.(N.S.) F. Ins. Co. 40: 152, 74 S. E. 659, 70 W. Va. 533. 54. The interest of one who has a parol lease of a building for the life of its owner at one half the rental value, and who has made improvements at his own ex- pense, is insurable. Getchell v. Mercan- tile & Manufacturers' Mut. F. Ins. Co.- 42: 135, 83 All. 801, 109 Me. 274. ( Annotated > , 55. A man has an insurable interest fri a house, the title to which is in his wife, but which, with her consent, he occupies as a dwelling for himself and family. Kindt v. German Mut. F. Ins. Co. 45: 1131, 140 N. W. 321, 152 Wis. 637. (Annotated) 56. After the owner of real estate which is subject to a deed of trust executed there- on to secure a debt by his vendor sells and conveys the property, reserving his vendor's lien thereon for the purchase money, such conveyance being subject to the deed of trust, he has no interest in the real estate except as to his vendor's lien, and no other insurable interest therein. Baker v. Monu- mental Sav. & L. Asso. 3: 79, 52 S. E. 403, 58 W. Va. 408. 57. By the execution of a contract to sell and convey insured premises in fee, and the transfer of possession thereunder, a com- plete transition of the equitable and benefi- cial ownership from the vendors to the ven- dee is effected, subject only to the claim of the vendors for unpaid purchase money, al- though the vendors still retain the legal ti- tle to the land, since they hold it as trustees for the vendee, who becomes the owner in eq- uity and possessed of an insurable interest in the property. Grunauer v. Westchester F. Ins. Co. (N. J. Err. & App.) 3: 107, 62 Atl. 418, 72 N. J. L. 289. (Annotated) 6. In life. (See also same heading in Digest L.R. 4. 1-10.) Provisions of by-laws as to, see infra, 103, 102. Effect of incontestable clause, see infra, 364. Assignment to one having no insurable in- terest, see infra, 451458. Right of manufacturing company to insure officer's life, see CORPORATIONS, 89. Enforcement in equity of promise of bene- ficiary to pay proceeds of policy to third person having no insurabln in- terest, see EQUITY, 73. Presumption as to husband's insurable in- terest in life of wife, see EVIDKNCE, 544. Retrospective operation of statute as to insurable interest of beneficiary, see STATUTES, 313. Trust where beneficiary agrees to pay pro- ceeds of policy to person not having insurable interest, see TRUSTS, 18. See also infra, 101, 102, 590, 830, 835. 58. One may insure his own life for the- benefit of another having no insurable in- 1540 INSURANCE, II. b. terest therein, where he makes the contract and pays the premiums himself. Rupp v. Western Life Indemnity Co. 29: 675, 127 S. W. 490, 138 Ky. 18. 59. The insurance of one's life for the benefit of another having no insurable inter- est therein is not contrary to public policy. Dolan v. Supreme Council C. M. B. A. 16: 555, 116 N. W- 383, 152 Mich. 266, reversing on rehearing 13: 424, 113 N. W. 10, Mich. . (Annotated) 60. The naming of an ineligible person aa beneficiary in an application for a mutual benefit certificate does not render the certificate .void. Cunat v. Supreme Tribe of Ben Hur, 34: 1192, 94 N. E. 925, 249 111. 448. (Annotated) 61. It is against public policy and con- trary to law to permit anyone to obtain insurance upon the life of a human being by assignment or otherwise, where such person has no insurable interest in the life of the insured. Metropolitan L. Ins. Co. v. Elison, 3: 934, 83 Pac. 410, 72 Kan. 199. ( Annotated ) 62. A woman who takes a girl from an orphan asylum and gives her a home, under circumstances calculated to raise reasona- ble expectation of help and care from her during the declining years of the benefac- tress, has an insurable interest in her life, although she is not formally appointed her guardian. Thomas v. National Ben. Asso. (N. J. Err. & App.) 46: 779, 86 Atl. 375, 84 N. J. L. 281. (Annotated) 63. A life insurance policy taken out by a man in favor of his paramour, with whom he is illegally living as his wife, may be collected by her. Mutual L. Ins. Co. v. Cummings, 47: 252, 126 Pac. 982, 133 Pac. 1169, 66 Or. 272. (Annotated) 64. An undertaker designated by a burial association to bury its members for a speci- fied sum each has no insurable interest in such lives, within the meaning of a statute forbidding the taking of an application of insurance in favor of any person who has not a bona fide interest in the life of the insured. State v. Willett, 23: 197, 86 N. E. 68, 171 Ind. 296. Relative or dependent. Effect of false statement in application as to relationship, see infra, 319. See also infra, 89, 839, 848. 65. A member of a fraternal or benefit organization who insures his life and pays the premiums cannot designate as bene- ficiaries blood relatives who have no insur- able interest in his life, although permitted to do so by the charter of the order, where it is contrary to statute for these associa- tions to issue certificates unless the bene- ficiaries have a legal insurable interest in the life of the insured. Morgan v. Seeen- rfelter, 14: 1172, 105 S. W. 476, 127 Ky. 348. 66. To entitle the beneficiary, who bears the relation of dependent, to recover on a certificate, the law does not undertake to prescribe just what degree of dependence is necessary. The test in each case should be good faith, purity of purpose, material dependence, and material support. Sov- Digest 1-52 L.R.A.(N.S.) ereign Camp W. of W. v. Noel, 41:648, 126 Pac. 787, 34 Okla. 596. 67. Where the constitution and by-laws of a fraternal benefit association and the statutes under which its charter is ob- tained, each authorize the issuance of bene- ficiary insurance certificates to members of the family, heirs, blood relation, or per- sons dependent upon the member, the term "dependent," as therein used, may include an affianced wife. Sovereign Camp W. of W. v. Noel, 41: 648, 126 Pac. 787, 34 Okla. 596. 68. An acquaintance who, at the advice of a member of a benefit society and under his promise to take care of her while he lives, has married a man capable of sup- porting her, and to whose support such member has contributed, is not dependent upon him, within the meaning of that phrase in the by-laws of the order defining those to whom certificates may be made payable. Caldwellirv. Grand Lodge A. O. U. W. 2: 653, 82 Pac. 781, 148 Cal. 195. (Annotated) 69. Where a woman, who is without means, in good faith leaves her own home and work, and assumes and for years faith- fully performs the duties of a housekeeper for a member of a fraternal beneficiary as- sociation, not related to her by consanguin- ity, under an agreement that in consider- ation for such services he will support her, and at his death leave her his estate, and no evidence is offered showing any improper relations between them, she thereby be- comes a dependent upon such member, and as such is eligible as a beneficiary in a certificate of membership issued to him by the association of which he is a member. Goff v. Supreme Lodge Royal Achates, 37: 1191, 134 N. W. 239, 90 Neb. 578. Affianced wife. Interests of, in benefit certificates, see in- fra, 849. See also supra, 67. 70. A hotel-keeper who agrees to fur- nish a home for life to a member of a bene- fit insurance society who is not related to him, in consideration that his name should be placed in the benefit certificate as bene- ficiary, which is done, he being designated as a "dependent," is not a dependent with- in the meaning of a law providing that pay- ments of death benefits shall only be paid to blood relatives, etc., or "to persons de- pendent upon the member," and has no val- id claim against the order as a beneficiary although he has fully performed his part of the agreement. Modern Woodmen of America v. Comeaux, 25: 814, 101 Pac. 1, 79 Kan. 493. (Annotated) 71. A benefit society which issues a cer- tificate in favor of a woman who married assured with knowledge that he had a wife living, under the belief that she was his lawful wife, cannot, as against the claim of the lawful wife, justify payment of the benefit to her upon his death, on the theory that she was dependent on him for support, since, although he had supported her, he was not obliged to do so, either legally or INSURANCE, 111. a. 1541 morally. Duenser v. Supreme Council of R. A. 51: 726, 104 N. E. 801, 262 111. 475. (Annotated) 72. -Under the by-laws of a fraternal benefit association and a statute governing such associations, limiting beneficiaries anc payments of death benefits to those depend- ent upon the insured, a woman who has obtained a divorce from her former hus- band and a judgment for alimony is noi entitled to be regarded as a dependent upon him so that after his death she can collect an insurance policy issued by such an asso- ciation while she was still his wife and naming her as beneficiary, although the judgment for alimony is still uncollected, upon the mere showing that such judgment is uncollected without showing that there was no way in which the judgment can be satisfied. Johnson v. Grand Lodge A. O. U. W. 50: 461, 137 Pac. 1190, 91 Kan. 314. 73. One not a relative or member of the family of a member of a mutual benefit society is not dependent upon him within the meaning of a statute permitting bene- fit certificates to be issued in favor of de- pendents, merely because the member has been in the habit, of gratuitously furnish- ing a portion of the support of such person. League v. Shields, 36: 208, 96 N. E. 45, 251 111. 250. (Annotated) 74. An adult son has an insurable inter- est in the life of his- mother although he is not dependent upon her for support and has no direct pecuniary interest in her life. Woods v. Riner, 19: 233, 113 S. W. 79, 130 Ky. 162. (Annotated) 75. An uncle of one whose life is in- sured has no insurable interest in the life of the insured by reason of kinship. Met- ropolitan L. Ins. Co. v. Elison, 3: 934, 83 Pac. 410, 72 Kan. 199. 76. An uncle has not, merely because of his relationship, an insurable interest in the life of his nephew. McRae v. War- mack, 33: 949, 135 S. W. 807, 98 Ark. 52. 77. A woman has an insurable interest in the life of her brother, although she is married, and not dependent on him for sup- port. Re Phillips, 45: 982, 86 Atl. 289, 238 Pa. 423. (Annotated) 78. First cousins of the insured, who are not his creditors or dependent upon him, have not an insurable interest in his life, within the meaning of statutes forbidding the issuance of certificates or policies in favor of beneficiaries who have not such an interest. Morgan v. Segenfelter, 14: 1172, 105 S. W. 476, 127 Ky. 348. (Annotated) 79. A stepfather, not a member of one's household, nor maintaining the usual fam- ily relations toward him, is not a member of his family, within the meaning of that term in a statute permitting payment of a mutual benefit fund to the family of the holder of the certificate. Supreme Lodge 0.' of M. P. v. Nevins, 3: 334, 106 N. W. 140, 142 Mich. 666. (Annotated) 80. Under a statute providing that the holder of a benefit certificate must desig- nate a relative, fiance, or dependent person Digest 1-52 L.R.A.(N.S-) as beneficiary his attempt to make the cer- tificate payable to his estate is void, and does not deprive a prior properly designated beneficiary of the fund. Sturges v. Sturges, 12: 1014, 102 S. W. 884, 126 Ky. 80. ///. The policy or contract, a. In general. (See also same heading in Digest L.R.A. 1-70J Estoppel of company by issuing and deliver- ing, see infra, V. b, 5, c. Instruction as to burden of proof as to execution of contract, see APPEAL AND ERROR, 1385. Right of trustee in bankruptcy to set aside future annuity contracts, see BANK- RUPTCY, 67. Compromise of claim on policy, see COM- PROMISE AND SETTLEMENT, 8. Copflict of laws as to insurance contracts, see CONFLICT OF LAWS, I. b, 3. Effect of death of insured between mailing of acceptance of option and its receipt by company, see CONTRACTS, 187. Right of insured to inspection of books and papers of company to enable him to exercise options under policy, see DISCOVERY AND INSPECTION, 24. Judicial notice of custom to require prop- erly signed and executed application and medical examination, see EVIDENCE, 54. Presumption and burden of proof as to execution of contract, see EVIDENCE, 550, 551. Presumption that marginal entries on ap- plication were made after it was signed, see EVIDENCE, 602. Parol evidence of fraud in procuring, see EVIDENCE, 1017. Parol evidence to vary contract, see EVI- DENCE, 916, 918, 921. Transfer tax on policy issued by local cor- poration upon life of nonresident, see TAXES, 348. Question of existence of contract as one for jury, see TRIAL, 645. See also supra, 24, 25. 81. A property owner may, after loss and before the insurer has withdrawn from the contract, ratify the unauthorized act of his agent in securing insurance upon his property. Marqusee v. Hartford F. Ins*. ^o. 42: 1025, 198 Fed. 475, 1023, 119 C. C. A. 251. (Annotated) 82. There is no contract of insurance unless the minds of the parties have met in agreement as to (a) the subject-matter, (b) ;he risk insured against, (c) the period of risk, (d) the amount of insurance, and e) the premium. Dorman v. Connecticut F. Ins. Co. 51: 873, 139 Pac. 262, 41 Okla 509. 83. The fixing of a time for its com- mencement is necessary to the completion of a contract of insurance. Whitman v. 1542 INSURANCE, III. a. Milwaukee F. Ins. Co. 5: 407, 107 N. W. 291, 128 Wis. 124. 84. A benefit certificate cannot become effective until applicant has been initiated into the order, where such initiation is, by the laws of the order, made a condition precedent to the execution of a contract of insurance. Sovereign Camp, W. W. v. Hall, 41: 517, 148 S. W. 526, '104 Ark. 338. Validity generally. Validity as affected by insurable interest, see supra, II. Unauthorized contracts by foreign company, see supra, 20, 21. On furniture used in keeping house of pros- titution, see CONTRACTS, 444. Burden of proving validity, see EVIDENCE, 547. Joint policy by husband and wife, payable upon death of either to survivor, see HUSBAND AND WIFE, 33. 85. A policy of insurance issued in the adopted name of the applicant, rather than in that given him by his parents, is valid. Smith v. United States Casualty Co. ,26: 1167, 90 N. E. 947, 197 N. Y. 420. 86. An insurance policy may be made in favor of one by an adopted name. Mutual L. Ins. Co. v. Cummings, 47: 252, 133 Pac. 1169, 66 Or. 272. 87. A provision in a mutual benefit cer- tificate making conclusive the decision of the association upon the question whether or not a member is entitled to the benefit provided is void as against public policy. Supreme Council C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 88. A mutual benefit certificate, not countersigned as required by its provisions, is not valid in the hands of the beneficiary, in the absence of anything to show a waiver on the part of the association of the defect- ive execution. Caywood v. Supreme Lodge K. & L. of H. 23: 304, 86 N. E. 482, 171 Ind. 410. 89. That a son, in taking insurance on the life of his mother, contracts with a cous- in to pay a portion of the premiums and share in the proceeds of the policy, does not invalidate the policy so far as the rights of the son are concerned. Woods v. Riner, 19: 233, 113 S. W. 79, 130 Ky. 162. 90. A contract by which an insurance company undertakes for a present cash pre- mium to pay to the insured annuities be- ginning at a designated future time, and continuing during his life, is not invalid as against public policy. Mutual L. Ins. Co. v. Smith, 33: 439, 184 Fed. 1, 106 C. C. A. 593. 91. A contract of insurance of whisky stored in Iowa is not void because it tends to assist the insured to violate the public policy and laws of Iowa against the posses- sion and sale of intoxicating liquors there- in. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590, 105 C. C. A. 128. (Annotated) 92. The placing by a dealer of a musical instrument in a house of ill fame, with a hope of selling it to the proprietor, is not so far against public policy as to avoid Digest 1-52 I*R.A..A.H.a ^~-'~ i INSURANCE, III. a. 1545 126. A receipt by an insurance agent to an applicant for payment of premium, which states that, if the application is ap- proved, the insurance will be in force from the date of the medical examination, refers to the examination the result of which is forwarded to the company, and not to one which is withheld by the examiner because not satisfactory. Northwestern Mut. L. Ins. to. v. Neafus, 36: 1211, 140 S. W. 1026, 145 Ky. 563. 127. No contract of insurance exists ren- dering the company liable for a loss oc- curring pending a reasonable investigation before the policy is issued, but after- an agent of the company who had no authority to make a contract insuring property, to the knowledge of the applicant, had taken a written application for insurance, and accepted a part of the premium in cash and a note for the balance, and given a receipt for the same, in which it was stated that all these were to be returned if the policy was not issued. Shawnee Mut. F. Ins. Co. v. McClure, 49: 1054, 135 Pac. 1150, 39 Okla. 535. Delivery and acceptance of policy. Evidence as to, see EVIDENCE, 2328. See also infra, 203. 128. No proposal for absolute indemnity is contained in an application for insurance which does not allude to the method of rais- ing the fund, so as to render necessary an acceptance of the policy, where it provides for the levying of an assessment to meet the obligation. Tuttle v. Iowa State Travel- ing Men's Asso. 7: 223, 104 N. W. 1131, 132 Iowa, 652. 129. Where an applicant for life insur- ance agreed that the policy should not take effect until issued and delivered, the ap- proval of the application and execution of the policy by the insurer creates no lia- bility, in default of its actual delivery. Bowen v. Prudential Ins. Co. 51: 587, 144 N. W. 543, 178 Mich. 63. 130. The transmission of a policy of life insurance to a general agent of the insurer for delivery to the applicant, with instruc- tions not to deliver it to the applicant un- less in good health, is not such constructive delivery thereof as will put the policy in force, where the applicant has agreed that the policy shall not become operative until it shall be issued and delivered, and the first premium paid thereon in full, while the applicant's health is in the same con- dition as described in the application. Bow- en v. Prudential Ins. Co. 51 : 587, 144 N. W. 543, 178 Mich. 63. 131. The receipt of a life insurance policy by a special agent, through whom the nego- tiations for insurance had been conducted, two days after the death of the insured, is not a constructive delivery to the insured which will satisfy a stipulation in the ap- plication that the policy shall not take effect until issued and delivered while the health of the insured is in the same condi- tion as described in the application. Bowen Digest 1-52 L.R.A.(N.S.) v. Prudential Ins. Co. 51: 587, 144 N. W. 543, 178 Mich. 63. 132. The sending of a policy bearing a current date upon which the premium is paid, to the agent for delivery, is a delivery to the applicant and will therefore bind the insurer, although it is not in fact placed in his hands while he remains in good health as required by its terms, where by statute, the insurer is estopped to question the health of the applicant at the time of the issuance of the delivery of the policy. Unterharnscheidt v. Missouri State -L. Ins. Co. 45: 743, 138 N. W. 459, 160 Iowa, 223. 133. Notification to the applicant of the arrival of a life-insurance policy, by the local agent who receives the application and to whom the policy is forwarded for deliv- ery, completes the contract, which the in- surer cannot deny after loss, although the insurer in fact issues a different form of policy from that applied for. and notifies the agent to secure an amendment to the application requesting the policy issued, which he fails to do. Kimbro v. New York L. Ins. Co. 12: 421, 108 N W. 1025, 134 Iowa, 84. (Annotated) 134. A present contract of insurance is not effected by signing an application, fol- lowed by the statement of the agent that he would "see to it, take care of it so it would be all right," would "get a policy." Whitman v. Milwaukee F. Ins. Co. 5: 407, 107 N. W. 291, 128 Wis. 124. (Annotated) 135. The issuance of a policy of life in- surance for $5,000 upon an application for $10,000 is a rejection of the proposition of the applicant, and not binding upon the in- surer until assented to by the applicant. New York L. Ins. Co. v. Levy, 5: 739, 92 S. W. 325, 122 Ky. 457. (Annotated) 136T The enumeration in the application for insurance in a mutual benefit associa- tion of certain exceptions from liability does not, by exclusion, prevent the operation of an exception of suicide contained in the in- surer's by-laws, so as to render acceptance necessary to make binding a policy contain- ing such exception, where the application makes the by-laws a basis of membership in the association. Tuttle v. Iowa State Traveling Men's Asso. 7: 223, 104 N. W. 1131, 132 Iowa, 652. 137. One who signs an application for life insurance without reading it, upon the assurance of the soliciting agent that it conforms to representations orally made, and that such signing is customary but not necessary, may refuse to accept a policy tendered him, on the ground that it does not meet such representations, notwith- standing the application contains a pro- vision that nc statement made by the solicitor would affect the rights of the com- pany unless embodied in the written appli- cation. Evans v. Central L. Ins. Co. 41: 1130, 125 Pac. 86, 87 Kan. 641. Breach of contract to issue policy. 138. To recover damages for breach of a contract to issue an insurance policy, com- pliance with conditions of a policy of the 1546 INSURANCE, III. b, c. character of that which the applicant would have received had the contract been com- plied with, such as giving proofs of loss and time of bringing suit, is not necessary, since the breach of contract is a waiver of such conditions. Chenier v. Insurance Co. of N. A. 48: 319, 129 Pac. 905, 72 Wash. 27. (Annotated) b. Reformation; rescission. (See also same heading in Digest L.R.A, Reformation of contracts, generally, see REFORMATION OF INSTRUMENTS. 139. The doctrine of reformation for mis- take, and not estoppel, applies in case an insurance agen*, in preparing the policy, lo- cates the property in the wrong building with knowledge of its true location. yEtna Ins. Co. v. Brannon, 2: 548, 89 S. W. 1057, 99 Tex. 391. 140. Where an agreement is made for the insurance of property located in a certain building, and, without the knowledge of the applicant, a policy is issued locating it in another building, a recovery may be had in case the property is destroyed in the build- ing to which the contract was to attach, without the necessity of applying for and securing a reformation of the policy, by proving the contract and mistake. ^Etna Ins. Co. v. Brannon, 2:548, 89 S. W. 1057, 99 Tex. 391. (Annotated) 141. An insured is not entitled to a ref- ormation of a policy delivered to aiul ac- cepted by him, and to a recovery on the policy as reformed, on the theory that it did not contain a provision for which he stipulated, where .there is nothing to- show that the insurer did not deliver the policy which it intended to deliver, although the agent who secured the application under- stood 'that the policy shoijld contain such provision, if he was a mere soliciting agent without power to issue policies. Floars v. Minn L. Ins. Co. n: 357, 56 S. E. 915, 144 N. C. 232. (Annotated) 142. The holder cannot maintain an ac- tion against a reinsurer for reformation of an insurance policy, where the reinsurer merely agrees with the insurer to reinsure from a certain time all its risks now covered by policies and contracts according to their terms and conditions, and pay losses, ex- penses, and return premiums. Vial v. Nor- wich Union F. Ins. Co. 44: 317, 100 N. E. 929, 257 111. 355. (Annotated) 142a. An insured need not procure a refor- mation of his policy in equity so as to show a waiver of a forfeiture before bringing suit on the policy, but may plead waiver or es- toppel in avoidance of the defense of forfei- ture. German American Ins. Co. v. Hy- man, 16: 77, 94 Pac. 27, 42 Colo. 156. Rescission. 143. Breach by an insurance company of its contract to lend money on a policy does not justify the insured in treating the con- tract as rescinded, and suing for a return Digest 1-52 L.B A.(N.S.) of the premiums paid. Lewis v. New York L. Ins. Co. 30: 1202, 181 Fed. 433. 104 C. C. A. 181. (Annotated) 144. The holder of an insurance policy which contains a provision for loans upon the policy does not make a case for rescis- sion of the contract for failure to grant a loan, where he does not allow time between the making of his demand and the bring- ing of the suit for the application to reach the home office and the reply to be returned, and he does not execute the loan agree- ment which the policy makes a condition precedent to the granting of a loan. Lewis v. New York L. Ins. Co. 30: 1202, 181 Fed. 433, 104 C. C. A. 181. c. Cancelation; surrender; paid-up policy. (See also same heading in Digest L.R.A. 1-70.) Recovery of premiums or assessments in case of cancelation or surrender, see infra, 434-444. Return of unearned premium in case of cancelation or surrender, see infra, 445, 446. Cancelation for nonpayment of assessment as defense, see infra, 861. Right of assignor for creditors to exercise option of surrendering policy for cash value, see ASSIGNMENT FOR CREDITORS, 13. Right of trustee to surrender insurance on life of bankrupt, see BANKRUPTCY, 38. Measure of damages for wrongful cancel- ation, see DAMAGES, 114, 115. Negligence in transmitting telegram from insurer canceling policy, see DAMAGES, 242; PROXIMATE CAUSE, 41; TELE- GRAPHS, 71. Agent's liability for failure to comply with instruction to reduce policy to specified amount, see DAMAGES, 305. Cancelation in equity, see EQUITY, 86. Power of guardian to permit cancelation of policy for benefit of ward, see GUARD- IAN AND WARD, 9-11, 29. Right of mortgagee to cancel policy taken by mortgagor and take one in his own name, see MORTGAGE, 23. See also infra, 423, 482. 145. One who voluntarily ceases to pay his insurance premiums and abandons his policy cannot maintain an action for dam- ages for its cancelation. Green v. Hart- ford L. Ins. Co. i : 623, 51 S. E. 887, 139 N. C. 309. 146. That a policy of life insurance is re- turned by applicant because it does not cor- respond with his application, and is in pos- session of the company at the time of his death, does not show a cancelation of the contract, where the company has insisted that it was all right, but offered to take the I matter up with applicant and make it right, I without any offer to return the premium notes. Waters v. Security Life & Annuity Co. 13:805, 57 S. E. 437, 144 N. C. 663. (Annotated) (.8.VI>.A.H^I ; . - INSURANCE, III. c. 1547 147. One who has insured his life for the benefit of his children with the option of surrendering the policy for its cash value within thirty days of the termination of the term, or of the five-year periods thereafter, can exercise the option only within one of the several periods of thirty days specified. McCutchen v. Townsend, 16: 316, 105 S. W. 937, 127 Ky. 230. 148. An attempted cancelation because of false answers in the application of an in- surance policy, by agreement with the ap- plicant before it has become incontestable, without the knowledge or consent of the beneficiary named therein, is not binding on him, although the policy provides that the beneficiary may be changed by written notice to the company and indorsement of the change upon the policy. Indiana Nat. L. Ins. Co. v. McGinnis, 45: 192, 101 N. E. 289, 180 Ind. 9. 149. A statutory provision that no mis- representation made in securing a life in- surance policy shall render it void, unless the matter misrepresented shall have ac- tually contributed to the contingency or event on which the policy is to become pay- able, has no application to a suit to cancel a- policy for misrepresentation prior to the loss. Pacific Mut. L. Ins. Co. v. Glaser, 45: 222, 150 S. W. 549, 245 Mo. 377. 150. Equity may cancel a life insurance policy before loss, for mistake of fact, in case the policy is based on the application, the statements in which are made war- ranties, and the applicant erroneously states that he had never been rejected by any other company. Pacific Mut. L. Ins. Co. v. Glaser, 45: 222, 150 S. W. 549, 245 Mo. 377. (Annotated) 151. A beneficiary in a life insurance policy who secures its issuance by means of false representations as to the age of insured and as to his rejection by other companies cannot avoid a cancelation of the policy on the ground that the company took premiums after having the means of know- ing the falsity of the statements, if the means of knowledge came from informa- tion furnished by one not the agent of the company, but who was aiding the benefi- ciary in securing the insurance. Metropoli- tan L. Ins. Co. v. Freedman, 32: 298, 123 N. W. 547, 159 Mich. 114. 152. That an ignorant applicant for life insurance did not actually know of false statements in the application as to his age and rejected by other companies will not prevent a cancelation of the policy for fraud, if the application is made a part of the contract and the statements therein are warranted, while the policy goes into his possession and is retained by him, since it is his duty to know that the representa- tions in the application are true. Metro- politan L. Ins. Co. v. Freedman, 32: 298, 123 N. W. 547, 159 Mich. 114. 153. A known false denial of rejection by other companies in an application for life insurance is ground for cancelation of the policy before loss, if the contract provides that it is based on the application, the an- Digest 1-52 L.R.A.(N.S.) swers in which are warranted to be true. Pacific Mut. L. Ins. Co. v. Glaser, 45:222, 150 S. W. 549, 245 Mo. 377. 154. Under the cancelation clause in a standard policy of fire insurance providing for the cancelation of the policy by the com- pany upon giving five days' notice, and stip- ulating that the unearned portion of the premium shall be returned on the surrender of the policy, the company is not required to pay or tender the unearned premium in or- der to bring about a cancelation of the pol- icy. Davidson v. German Ins. Co. (N. J. Err. & App.) 13: 884, 65 Atl. 996, 74 N. J. L. 487. (Annotated) 155. The exchanging by one who has suf- fered a fire loss, of a policy which had been duly issued and paid for, for one in another company, upon receiving notice that the former was to be canceled, is not a ratifi- cation of the attempted change of insurers, so as to release the one which issued the surrendered policy, since after the loss the agent could not bind the substituted com- pany. Waterloo Lumber Co. v. Des Moines Ins. Co. 51: 539, 138 N. W. 504, 158 Iowa, 563. 156. One taking a paid-up policy upon his life for the benefit of a named beneficiary cannot, in the absence of reservation oi power to revoke, modify, or surrender the contract, effect a surrender which will de- feat the 'rights of the beneficiary. Ferguson v. Phoenix Mut. L. Ins. Co. 35: 844, 79 Atl. 997, 84 Vt. 350. (Annotated) 157. That a life insurance policy is made payable to the children of the insured equally, without naming them, or their executors, administrators, or 'assigns, does not render their interest so contingent and uncertain that he has power to surrender the policy so as to cut off their interest. Ferguson v. Phoanix Mut. L. Ins. Co. 35: 844, 79 Atl. 997, 84 Vt. 350. Notice. Waiver by guardian of notice before cancel- ation of policy payable to ward,, see GUARDIAN AND WARD, 9. See also supra, 37, 120. 158. In order to bring about the cancela- tion of a fire insurance policy, the notice to be given by the company need not be in any particular form, and may be oral, so long as it positively and unequivocally indicates- to the insured that it is the intention of the company that the policy shall cease to be binding as such upon the expiration of five days from the time when its intention is made known to the insured. Davidson v. German Ins. Co. (N. J. Err. & App.) 13: 884, 65 Atl. 996, 74 N. J. L. 487. 159. A notice of cancelation given by an insurance company to the insured, which states that the company, through its agent, "herewith gives five days' formal notice of its intention to cancel" the policy, which it describes, and follows this with an asser- tion that liability will cease at noon of a certain date, is sufficient in form to comply with a provision in the policy that the policy "shall be canceled at any time at the request of the insured or by the company 1548 INSURANCE, III. c. by giving fivo days' notice of such cancela- tion." Fritz v. Pennsylvania F. Ins. Co. (N. J. Err. & App.) 50: 35, 88 Atl. 1065, 85 N. J. L. 171. (Annotated) 160. Notice of the cancelation of an in- surance policy inclosed in a postpaid reg- istered envelop, addressed to the insured, and received but unopened by him, bearing upon its face the card of an insurance com- pany other than the one in which the insured held a policy, although having upon it the name of the same agents as those of the company in which he was insured, is not, in and of itself, notice of cancela- tion. Fritz v. Pennsylvania F. Ins. Co. (N. J. Err. & App.) 50: 35, 88 Atl. 1065, 85 N. J. L. 171. 361. The mailing of a notice of an inten- tion to cancel an insurance policy five days later, which is not received until two days after the mailing, is not, in case no notice of cancelation is given, sufficient to render valid the cancelation on the day named, un- der a provision in the policy permitting cancelation upon giving five days' notice thereof. German Union F. Ins. Co. v. Fred G. Clarke Co. 39: 829, 82 Atl. 974, 116 Md. 622. (Annotated) 162. To cancel an insurance policy pay- able to a mortgagee as his interest may ap- pear, notice must be given to the mortgagee, where the policy provides that it .may be canceled by giving five days' notice" of can- celation. Rawl v. American C. Ins. Co. 45: 463, 77 S. E. 1013, 94 S. C. 299. (Annotated) 163. A misstatement by an applicant of fire insurance as to the nature of his title is a delinquency within the meaning of a mort- gagee clause attached to the policy, which provides that notice of delinquency on the part of insured will be given the mortgagee before any suspension or cancelation is made affecting his interest. People's Sav. Bank v. Retail Merchants' Mut. F. Ins. Asso. 31: 455, 123 N. W. 198, 146 Iowa, 536. Paid-up policy. Right of divorced wife as to, see infra, 831. Public policy as to conditions imposed on right to, see CONTRACTS, 443. Limitation of right of action to compel is- suance of paid-up policy, see LIMITA- TION OF ACTIONS, 133. See also infra, 170, 171. 164. Under a provision in an insurance policy that in case of lapse for nonpayment of premium, the insured may within six months surrender the policy and take paid- up insurance for the cash surrender value, surrender of the policy within the specified time is necessary to preserve the right to the option, and in the absence of such sur- render all rights under the policy will cease. Blume v. Pittsburg Life & T. Co. 51: 1044, 104 N. E. 1031, 263 111. 160. (Annotated) 165. The surrender of the policy within the six months is not of the essence of a con- tract of insurance providing that if, after a specified number of payments, the policy is forfeited for nonpayment of premiums, upon the surrender of the policy "within Digest 1-52 L.R.A.(N.S.) six months," a paid-up policy will be issued for such an amount as the reserve on the policy will purchase, so that the paid up policy may be demanded upon surrender of the old one within a reasonable time after the expiration of the six months. Lenon v. Mutual L. Ins. Co. 8: 193, 98 S. W 117 80 Ark. 563. 166. Lapse of the limitation period after demanding the issuance of a paid-up policy in accordance with the contract after for- feiting a life-insurance policy for nonpay- ment of premiums, without taking steps to compel an issuance of the policy, will not bar an action to enforce the amount due under it upon the death of the insured. Lenon v. Mutual L. Ins. Co. 8: 193, 98 S. W. 117, 80 Ark. 563. (Annotated) Extended insurance. Impairment of contract right to, see CON- STITUTIONAL LAW, 799. See also supra, 11. 167. A statutory provision that every con- tract of life insurance shall contain a provi- sion for the application of the reserve to the purchase of extended insurance in case of forfeiture for nonpayment of premiums, un- der penalty of having the license of in- surer withdrawn, does not become part of ail insurance policy which does not contain the provision. Equitable Life Assur Soc. v. Babbitt, 13: 1046, 89 Pac. 531, 11 Ariz. 116. (Annotated) 168. Under a statute giving an insured person whose policy has lapsed for non- payment of a premium the option to sur- render the policy within six months and have the net accumulated reserve on the policy applied as a single premium in ex- tending the policy for such term as the re- serve will purchase, the beneficiary of the policy may make such surrender and de- mand, after the death of the insured, with- in the period named. New York L. Ins. Co. v. Noble, 45: 391, 124 Pac. 612, 34 Okla. 103. (Annotated) 169. Where the statute controlling a life insurance policy which has lapsed for non- payment of a premium when due, gives the insured the option to surrender the policy within six months, and have the net ac- cumulated reserve applied as a single premium in extending the policy for such term as the reserve will purchase, but pro- vides that such extended insurance shall not participate in the profits of the company, and the holder of a tontine policy contract which on its face covenanted that, in the event that it became a death claim within the tontine period, all payments of premiums should be paid to the beneficiary, together with the amount named in the policy, exercised such option within the time allowed, and the insurance was extend- ed, and the insured died within the tontine period and before such extension expired, the beneficiary had the right to recover, in addition to the amount named in the policy, the premiums that had been paid, as the agreement to pay such in the face of the policy did not involve any question of INSURANCE, III. d, 1. 1549 profits of the company or a participation therein. New York L. Ins. Co. v. Noble, 45: 391, 124 Pac. 612, 34 Okla. 103. 170. A statute providing for extended in- surance, to be secured by application of the net val-" of the policy, or for a paid-up pol- icy, upon forfeiture of policies of insurance by nonpayment of premiums, has no appli- cation to certificates issued by mutual bene- fit societies which operate on .he monthly assessment plan, and the amount of whose assessments are not unalterably fixed by the contract, or the liability incurred definitely fixed and unchangeable. Westerman v. Su- preme Lodge, K. of P. 5: 1114, 94 S. W. 470, 196 Mo. 670. 171. The share of a life insurance policy lapsed for nonpayment of premium after having been in force three years must be applied, under N. Y. Laws 1892, p. 1969, chap. 690, 88, to the purchase of extended insurance, unless the policy holder has elect- ed to take paid-up insurance therefor. United States L. Ins. Co. v. Spinks, 13: 1053, 96 S. W. 889, 126 Ky. 405. 172. The words "dividend additions," as used in N. Y. Laws 1892, p. 1969, chap. 690, 88, providing for the application thereof to lapsed policies, refer to that part of the premiums charged which was "loaded" onto the premium in excess of its share of ex- penses and losses sustained; and such ad- ditions and the earnings thereon, which con- stitute the "surplus," must be valued and applied in buying extended insurance for lapsed policies in force three years or longer, in the same way that the "reserve" of the policy is required to be valued and applied in purchasing such extended insurance. United States L. Ins. Co. v. Spinks. 13: 1053, 96 S. W. 889, 126 Ky. 405. 373. Insurance companies must keep ac- curate accounts with their policy holders as classes, failing which, no presumption will be indulged in the company's favor when it comes to valuing and applying "surplus" or "dividend additions" to lapsing policies. United States L. Ins. Co. v. Spinks, 13: 1053, 96 S. W. 889, 126 Ky. 405. 174. An insurance company will not, in computing the amount of cash surrender value or the sum applicable to the purchase of extended insurance after default in pay- ment of premiums, be permitted to discrimi- nate against policy holders who have bor- rowed on their policies, by exacting more than the loan with legal interest, and there- fore a method of settlement by which the amount to be deducted from the reserve applicable to the purchase of extended in- surance is ascertained by finding the sum which bears the same relation to such re- serve as the amount borrowed bears to the cash surrender value, and thereby arbitrari- ly shortening the time of extended insur- ance, is invalid. Emig v. Mutual Ben. L. Ins. Co. 23: 828, 106 S. W. 230, 127 Ky. 588. (Annotated) Digest 1-52 L.R.A.(N.S.) d. Construction. 1. In general; policies on property. (See also same heading in Digest L.R.A 1-10.) Construction of receipt for premium, see supra, 123, 126. Construction of warranties, representations and conditions, see infra, III. e. As to risks and causes of loss, see infra, VI. b, 1. As to extent of injury, see infra, VI. c, 1. See also infra, 254. 175. Where a policy of insurance is sus- ceptible of two meanings, that construction is to be adopted which is most favorable to the insured. Harris v. American Casual- ty Co. (N. J. Err. & App.) 44: 70, 85 Atl. 194, 83 N. J. L. 641. 176. If a policy of insurance is suscep- tible of two constructions, that one is to be adopted which is more favorable to the assured. Standard Acci. Ins. Co. v. Hite, 46: 986, 132 Pac. 333 37 Okla. 305. 177. Language in the second clause of an insurance policy, the first clause of which insures a building, which covers machinery and all appurtenances and appliances nec- essary and used in the owner's business, does not imply that the building is a manu- facturing establishment. Home Ins. Co. v. North Little Rock Ice & E. Co. 23: 1201,. Ill S. W. 994, 86 Ark. 538. 178. That construction of an insurance contract should be adopted which will pre- vent a forfeiture, where it is susceptible of two constructions, one of which will work a, forfeiture and the other will not. Hilmer v. Western Travelers Acci. Asso. 27: 319,, 125 N. W. 535, 86 Neb. 285. 179. An indorsement on an insurance policy, designating its kind, is no part of it, and insured cannot be held to have relied on it rather than on the terms of the instru- ment. Hill v. Travelers' Ins. Co. 28: 742, 124 N. W. 898, 146 Iowa, 133. 180. Where all property covered by an in- surance policy was injured by either fire, water, or smoke, insured need take no steps to segregate his property, under a policy which provides that damaged and undam- aged property shall be separated and cared for in such manner as to protect the un- damaged portion from further deteriora- tion. Winchester v. North British & Mer- cantile Ins. Co. 35: 404, 116 Pac. 63, 160 Cal. 1. Property covered. 181. A fire insurance policy covering a, farm barn and the live stock therein, "on the farm and from lightning at large," cov- ers a horse while, according to custom, it is temporarily off the farm, as while it is on another farm, for the purpose of being broken. Lathers v. Mutual Fire Ins. Co. 22: 848, 116 N. W. 1, 135 Wis. 431. (Annotated) 182. A policy written by a state agent upon a brick building "and its additions adjoining and communicating," after notice 1550 INSURANCE, III. d, 2, e, 1. from the owner that he wanted the policy to cover not only the brick building, but a wooden one which had been moved back to make way for it, and, although separated from it by a few feet, was connected by passageway and used with it, will cover the wooden structure. Shepard v. Ger- mania F. Ins. Co. 33: 156, 130 X. W. 626, 165 Mich. 172. (Annotated) Duration of risk. 183. The word "noon" used to denote the beginning and termination of the risk under an insurance policy will be interpreted ly standard, and not by sun, time, where the use of the former system of reckoning time has been the prevailing custom in the com- munity for a long period. Rochester Ger- man Ins. Co. v. Peaslee-Gaulbert Co. i : 364, 87 S. W. 1115, 120 Ky. 752. (Annotated) 184. The beginning of a fire in a building which contains insured property, before tlie policy expires, will if it continues to burn until it destroys the property, render the insurer liable for the loss, although the property is not actually destroyed before such expiration; but the same rule does not apply in case the property is merely im- periled at the time of the expiration of the policy, by a fire in an adjoining building, although it eventually reaches and destroys the property. Rochester German Ins. Co. v. Peaslee-Gaulbert Co. x: 364, 87 S. W. 1115, 120 Ky. 752. 2. Of policies on persons. (See also same heading in Digest L.R.A. 1-70.) Constitution, rules and by-laws as part of contract, see supra, 93-114. As to risks and causes of loss or injury, see infra, VI. b, 2, VI. b, 3. As to extent of injury, see infra, VI. c, 2. Construction of application as question for court, see TBIAL, 328. 185. A contract of life insurance is not a contract of assurance for a single year with a privilege of renewal from year to year by paying the annual premiums, but is an en- tire contract of insurance for life, subject only, when so stipulated, to forfeiture for nonpayment of any instalments of premium, which instalments are not consideration for the respective years in which they are to be paid, but are part consideration of the en- tire insurance for life. Haas v. Mutual L. Ins. Co. 26: 747, 121 N. W. 996, 84 Neb. 682. 386. A recovery will not be denied upon a mutual benefit certificate unless required by the language of the contract naturally construed. Brackett v. Modern Brother- hood of America, 45: 1144* I 5 ? S. W. 690, 154 Ky. 340. 187. The interpretation which the officers of a mutual benefit association have been accustomed to give to words in the cer- tificates entitling members to advance pay- ment under certain conditions, which has never been promulgated as a rule of the as- sociation, is immaterial in an action by A member to secure such payment, as well Digest 1-52 I*R.A.(N.S.) 1 as the fact that rates had, without notice to the members, been based upon this cus- tom. Supreme Council C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 188. The word "may" in a mutual benefit certificate providing a certain sum to be paid upon the death of a member, and de- claring that one half the sum may be paid the member in case he reaches a specified age and becomes permanently disabled, ,is compulsory, so that the association has no option to refuse payment in case the con- ditions are complied with. Supreme Coun- cil C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 189. A man who, because of old age and weakness, is unable to perform labor, and who is without property of any kind or children, is destitute of means of support, within the meaning of a mutual benefit certificate entitling him to a portion of its face value in case he is destitute of the means of support, although his wife has some property which produces a small in- come, and he receives a gratuitous pension from a former employer, a large part of which he uses to pay the dues in the bene- fit as.vociation, where by statute the wife's property is not subject to payment of his debts. Supreme Council C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 190. Paralysis of a hand is within % policy insuring against paralysis of either extremities. Brotherhood of Locomotive Firemen & Engirremen v. Aday, 34: 126, 134 S. W. 928, 97 Ark, 425. 191. A life insurance policy renewable quarterly at a stated rising premium at the actual cost of the hazard between each re- newal, the excess over cost of premium paid being returned in dividends, which provides for an exchange for a policy at a level rate after insured reaches sixty years of age, and states the rate to be paid if the- ex- change is effected any year when the age is j from sixty to sixty-five, does not, by fol- lowing the figures so given by the words 1 "etc.," without stating the rates above that age, effect the exchange to the level rate automatically when the age of sixty-five is reached. Jones v. Provident Sav. L. Assur. Soc. 25: 803, 61 S. E. 388, 147 N. C. 540. (Annotated) e. Warranties; representations; con- ditions; description. 1. In policies on property. a. Generally. (See also same heading in Digest L.R.A. 1-10.) Waiver respecting, see infra, V. b. As to risks and causes of loss, see infra, VI. b, 1. Necessity of alleging and proving compli- ance with conditions, see PLEADING, 250. Sufficiency of pleading to raise question of breach of warranty as to value, see PLEADING, 521. INSURANCE, III. e, 1. 1551 Truth or falsity of warranties as question for jury, see TRIAL, 646, 647. See also supra, 122. 192. The insured, by accepting a fire in- surance policy, is charged with notice of its contents, and is bound by its conditions. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 193. The materiality of representations made in an application for fire insurance be- comes unimportant where, by the express terms of the application, it is made a part of the contract of insurance, and the repre- sentations contained therein are warranted by the applicant, and it is provided that tne policy shall be void if any of the represen- tations are not true, for, under such stipu- lations, in a suit to recover loss occasioned by the destruction by fire of the property insured, the insurance company is relieved from showing, and the insured is estopped from denying, that they were material to the contract. Deming Invest. Co. v. Shaw- nee F. Ins. Co. 4: 607, 83 Pac. 918, 16 Ok la. 1. 194. In an application for fire insurance, made for the purpose of informing the in- surance company of the Ir.cts with reference to the property sought to be msured, and to furnish it information upon which it is to act in accepting or refusing the risk, and wherein the applicant warrants his answers to be true, a stipulation in an application and policy that, if any of the statements made in the application by the applicant are untrue, the policy shall be void, is a reason- able stipulation. Deming Invest. Co. v. Shawnee F. Ins. Co. 4: 607, 83 Pac. 918, 16 Okla. 1. 195. A statement regarding the dimen- sions of a building, in an application for in- surance, is not warranted correct by a warranty that the description and state- ment of the condition, situation, value, oc- cupancy, and title of the property are true. Duncan v. National Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 106. A statement of the dimensions of the building in an application for insurance is not within a provision of the policy that it shall be void for misrepresentation of any material fact, if it does not appear that the insured was influenced in issuing the policy because of the statement regarding the di- mensions of the building. Duncan v. Na- tional Mut. F. Ins. Co. .20: 340, 98 Pac. 634, 44 Colo. 472. (Annotated) Statements as to value. 197. A substantially true statement of the value of a building, in an application of in- surance, is a compliance with the warranty of the statement of value. Duncan v. Na- tional Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 198. Statements in an application for in- surance that the value of the property is estimated by applicant does not prevent a gross overvaluation from avoiding the pol- icy, where the statement of value is war- ranted. Duncan v. National Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. Digest 1-52 L.B.A.(N.S-) 199. The valuation at $1,500, in an ap- plication for insurance of a building which is worth only $200, cannot be regarded as so approximately correct as to comply with a warranty of the statement of value. Dun- can v. National Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. Concealment. 200. Concealment by the applicant for insurance on a stock of goods of the exis- tence of an outstanding unfiled chattel mort- gage thereon by answering in the negative the question whether the property was mortgaged or encumbered, constitutes con- cealment of a fact material to the risk, within the meaning of a policy providing that it shall be void if the insured has con- cealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof, and avoids the policy. Madsen v. Farmers' & M. Ins. Co. 29: 97, 126 N. W. 1086, 87 Neb. 107. b. Title and encumbrances. (See also same heading in Digest L.R.A. 1-10.) Waiver or estoppel as to, see infra, 529, 544. See also supra, 99, 200; infra, 277, 296. 201. It is incumbent upon an applicant for fire insurance to disclose the nature of his title. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 202. If the insured truthfully and cor- rectly states the nature and condition of his title in making his application for in- surance, he will not be precluded from re- covering, in case of loss, on account of a contrary statement as to title, inserted in the policy by the underwriter. Allen v. Phoenix Assur. Co. 8: 903, 88 Pac. 245, 12 Idaho, 653. 203. Acceptance, without reading it, of a fire insurance policy issued upon parol ap- plication, without any representation as to title, which contains a provision that, ex- cept in case of an agreement indorsed on or added to the policy it shall be void if the subject of insurance be a building on ground not owned by the insured, is bind- ing upon the applicant; and he cannot re- cover for a loss if the building is on leased property, which fact was not known to the insurer or its agent. Wyandotte Brewing Co. v. Hartford F. Ins. Co. 6: 852, 108 N. W. 393, 144 Mich. 440. 204. A provision in a fire insurance policy that it shall be void if the interest of the assured is other than unconditional and sole ownership means "voidable;" and to avoid the policy the insurer must, upon learning of the defect of title, with reasonable promptness notify the assured of its inten- tion to do so, and tender the unearned pre- mium which it has received. Glens Falls Ins. Co. v. Michael, 8: 708, 74 N. E. 964, 167 Ind. 659. 205. A provision in an insurance policy that the entire policy, unless' otherwise pro- vided by agreement indorsed thereon or add- 1552 INSURANCE, III. e, 1. ed thereto, shall be void if the interest of the insured is other than unconditional and sole ownership, is material, valid, and bind- ing on the parties. Insurance Co. of N. A. v. Erickson, 2: 512, 39 So. 495, 50 Fla. 419. 206. A provision in a fire insurance policy that it shall be void if the subject of in- surance be a building standing on ground not owned by the insured in fee simple ap- plies to the .conditions existing at the date of the policy, and not to future changes in title. Re Millers' & M. Ins. Co. 4: 231, 100 N. W. 485, 97 Minn. 98. 207. A warranty of title in an application for insurance on a building belonging to the applicant is not broken by the fact that it stands on land in which he has only an undi- vided half interest. Nance v. Oklahoma F. Ins. Co. 38: 426, 120 Pac. 948, 31 Okla. 208. (Annotated) 208. The fact that the legal title to a building owned by a partnership composed of several members and thet administrator of a deceased member, and used in the firm business, is in such members and the heir of the deceased member, is no violation of a clause in an insurance policy taken out by such partnership, without making any statement as to title, that "if the interests of the assured in the property be not truly stated therein ... or if the interests of the assured be other than unconditional and sole ownership," the policy shall be void. Scott v. Dixie F. Ins. Co. 40: 152, 74 S. E. 659, 70 W. Va. 533. (Annotated) 209. There is no such failure of title as to defeat the right to recover on an insurance policy providing that it shall be void "if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple," where the property insured is situated upon a government homestead owned and claimed by the insured, in which the legal title re- mains in the United States government, and on which final proof is not made until after the loss by fire, since in case of loss the entire loss falls upon the homesteader, and the government has no interest in the property destroyed. Allen v. Phoenix As- sur. Co. 8: 903, 88 Pac. 245, 12 Idaho, 653. ( Annotated ) 210. A husband cannot insure as sole and unconditional owner of the homestead, title to which is in his wife, and when loss oc- curs abandon the contract and recover on the theory that he had an insurable inter- est in the property. Bacot v. Phenix Ins. Co. 25: 1226, 50 So. 729, 96 Miss. 223. 211. A statute avoiding a transfer of land from wife to husband, as against third per- sons, unless it is recorded, does not render the husband's title void, so as to entitle one insuring the property at his request to avoid the policy because he asserted that the title was in himself, the insurance company not being a third person within the meaning of the statute. Groce v. Phenix Ins. Co. 22: 732, 48 So. 298, 94 Miss. 201. (Annotated) 212. The easement of support which an j owner of one half of a party wall has in Digest 1-52 L.R.A.(N.S.) the other half is covered by a policy of in- surance covering his building supported by such wall, together with its foundations and his half interest in the wall, and the insurer is therefore liable for injury to such easement of support by fire in the ad- joining building, although the policy pro- vides that it shall be void if the interest of the insured is other than unconditional and sole ownership or if the subject of in- surance be a building on ground not owned by the insured in fee simple. Nelson v. Continental Ins. Co. 31: 598, 182 Fed. 783, 105 C. C. A. 215. 213. An insurance policy providing that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void if the interest of the insured is other than unconditional and sole ownership, is void in the absence of such an agreement, where the insured has given a bond for title to a third person, unqualified- ly binding himself, his heirs, executors, and administrators to convey the property in- sured to a third person on payment of a specified amount which the other bound him- self to pay. Insurance Co. of N. A. v. Erick- son, 2: 512, 39 So. 495, 50 Fla. 419. (Annotated) 214. One who has contracted to sell real estate to another, who makes a payment under the contract and is let into posses- sion, is not the unconditional and sole owner of the property within the meaning of an insurance policy, although the con- tract is not recorded and the record title is still in his name. Sharman v. Continen- tal Ins. Co. 52: 670, 138 Pac. 708, 167 Cal. 117. (Annotated) 215. A vendee of land, occupying the same under an executory contract of purchase, on which he has paid a portion of the purchase price, is an "unconditional and sole owner" in fee simple of the equitable title, within the condition of the insurance policy provid- ing that it shall be void if the interest of the insured is other than unconditional and sole ownership of the fee-simple title. Arkan- sas Ins. Co. v. Cox, 20: 775, 98 Pac. 552, 21 Okla. 873. (Annotated) 216. One in possession of premises under a land contract, and who is not in default, and who has made valuable improvements on the land, has a sufficient interest there- in to satisfy the requirements of a fire insur- ance policy that the interest of the insured be the entire, unconditional, and sole owner- ship. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 217. The interest of a purchaser of prop- erty, which he has unqualifiedly agreed to buy, and which the former owner has absolutely contracted to sell to him upon definite terms, is the sole and unconditional ownership, within the true meaning of the ordinary clause upon that subject in insur- ance policies, because the vendor may com- pel the vendee to pay for the property, and to suffer any loss that occurs. Insurance Co. of N. A. v. Erickson, 2: 512, 39 So. 495, 50 Fla. 419. (.B.VD.A.H.J i'r- I INSURANCE, III. e, 1. 1553 21S. One holding real estate under a con- vej'anee in fee is sole and unconditional owner, within the meaning of a fire-insur- ance policy, notwithstanding he owes a por- tion of the purchase price, for which the statute gives a vendor's lien. Insurance Co. of N. A. v. Pitts, 7: 627, 41 So. 5, 88 Miss. 587. (Annotated) Change of title or interest. Estoppel as to, see infra, 503-505. See also supra, 57, 206. 219. The word "interest," in a forfeiture clause of an insurance policy, which provides that the policy shall become void "if any change shall take place in the interest, title, or possession of the subject of insurance," has application only where the insured owns and insures an interest less than title, and has application only where the insured owns the title. Garner v. Milwaukee Mechanics' Ins. Co. 4: 654, 84 Pac. 717, 73 Kan. 127. 220. No change has taken place in the in- terest, title, or possession of the holder of a fire insurance policy where, at the time of the loss, the insured owns the title of the subject of the insurance, although he has made an executory contract to convey the property, and the consideration has been fully paid, when no transfer, either of the title or possession, has been actually made. Garner v. Milwaukee Mechanics' Ins. Co. 4: 654, 84 Pac. 717, 73 Kan. 127. 221. Where a vendor who has placed his deed in escrow awaiting performance of con- ditions precedent to the delivery, and has let the vendee into possession, has a fire insurance policy on a house situated on the premises, and the house is destroyed by fire while so occupied, and before the conditions of the escrow are performed, the hazard from fire not being increased, the right to recover on the contract of insurance is not forfeited. Pomeroy v. ^Etna Ins. Co. 38: 142, 120 Pac. 344, 86 Kan. 214. 222. A written agreement to sell and con- vey in fee insured premises to a tenant in possession, upon payment of the stipulated price, a portion of which is paid, causes a change in the interest, title, and possession of the subject of the insurance, sufficient to avoid the policy under a condition that, "if any change, other than by the death of an insured, takes place in the interest, title, or possession of the subject of insurance (ex- cept change of occupants without increase of hazard), whether by legal process, or judgment, or by voluntary act of the in- sured, or otherwise, the entire policy shall be void." Grunauer v. Westchester F. Ins. Co. (N. J. Err. & App.) 3: 107, 62 Atl. 418, 72 N. J. L. 289. (Annotated) 223. The owner of land on which there is a building insured against loss by fire is not deprived of the right to recover on the policy by the fact that, before loss, he agreed to transfer the premises, which agreement was consummated subsequent to the destruc- tion of the building; since the doctrine of relation will not operate to carry the trans- fer of real property back to the agreement to which it is referable, for the benefit of Digest 1-52 L.R.A.(N.S.) I strangers to the transaction. Evans v. I Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 224. The appointment of a receiver and the taking of actual possession by him in a suit to take possession and control of certain personal property prewnts recovery of loss sustained under a fire insurance policy on the property, which provides that, if any change take place in the interest, title, or possession of the property, "whether by legal process of judgment, or otherwise," the policy shall be wholly void. Bronson v. New York F. Ins. Co. 19: 643, 63 S. E. 283, 64 VV. Va. 494. (Annotated) 225. No change in the interest, title, or possession of insured property is effected within the meaning of a provision on the policy avoiding it in case of such change, by the appointment of a receiver in bank- ruptcy proceedings, who, without dispos- sessing the owner, places a watchman upon the property, effects insurance thereon, and advertises the personal property for sale. Marcello use of South Side Trust Co. v. Concordia F. Ins. Co. 39: 366, 82 Atl. 1090, 234 Pa. 31. 226. Filing a petition in voluntary bank- ruptcy, on which the petitioner was adjudged a bankrupt, did not work such a change in his interest, title, or possession as renders void a policy of fire insurance on his stock of merchandise, which was destroyed on the day following the filing of the petition, but before either a receiver or a trustee was ap- pointed, where, in view of the loss of the merchandise, the creditors deemed it 10 their interest to make a composition with the bankrupt, and depend upon his personal obligation to them, and did so. Gordon v. Mechanics' & T. Ins. Co. 15: 827, 45 So. 384, 120 La. 441. (Annotated) 227. The mere rendition of a judgment against a property owner does not change his interest in the property within the meaning of an insurance policy which is to become void if any change takes place in the interest, title, or possession of the subject of insurance, although the judgment is entered in a foreclosure proceeding. Kelley use of Chisholm v. People's Nat. F. Ins. Co. 50: 1164, 104 N. E. 188, 262 111. 158. (Annotated) 228. The mere levying of an attachment on land, without change of possession, does not effect such a change of interest or title as to avoid a policy of insurance on the buildings located thereon. O'Toole v. Ohio German F. Ins. Co. 24: 802, 123 N. W. 795, 159 Mich. 187. (Annotated) 229. A confirmed administrator's sale of insured property is within a provision of the policy making it void if any change takes place in the interest, title, or posses- sion of the subject of insurance by legal process, voluntary act of the insured, or otherwise, although no deed has been de- livered or money paid, since the equitable title passed when the sale was confirmed, where the statute provides that when cer- tain facts are shown to the court it shall 98 1554 INSURANCE, III. e, 1. make an order confirming the sale and di- recting conveyances to be executed, and such sale from that time shall be confirmed and valid. Moller v. Niagara F. Ins. Co. 24: 807, 103 Pac. 449, 54 Wash. 439. 230. A provision in an insurance policy to which is attached a slip, making the loss payable to a mortgagee, that the conditions against alienation and change of possession shall apply "in manner expressed in such provisions and conditions of insurance re- lating to such interest as shall be written upon, attached or appended hereto," does not prevent such provisions being applica- ble to the mortgagee, although the manner in which they are to be applied is not ex- pressly stated in some writing indorsed upon or attached to the policy, since, in the absence of special agreement indorsed on the policy, all its provisions apply as against a mere appointee of the right of the insurer to the proceeds. Brecht v. Law Union & Crown Ins. Co. 18: 197, 160 Fed. 399,, 87 C. C. A. 351. (Annotated) 231. The assignment of property and the insurance thereon as security for a debt renders the policy void under a provision in the policy making it void if the interest of insured is other than unconditional own- ership or if any change takes place in his interest, title, or possession; and it is im- material that the insurer consents to as- signment of the property to the trustee for the creditor, if the consent is based upon ownership by the assignee, and not upon the fact that he is trustee for a creditor. Smith v. Retail Merchants' F. Ins. Co. 42: 173, 137 N. W. 47, 29 S. D. 332. (Annotated) 232. The fact that property is insured in the tradename under which the business is conducted by one procuring the insurance does not prevent a change in the personnel of the members of the concern from effect- ing a change in title or ownership of the property, within the meaning of a clause of the policy avoiding it in case of such change, although the tradename is continued by the new owners of the business. American Steam Laundry Co. v. Hamburg Bremen F. Ins. Co. 21:442, 113 S. W. 394, 121 Tenn. 13. (Annotated) Mortgages; foreclosure. Acts of mortgagor as affecting mortgagee, see infra, 866-871. See also supra, 200, 230. 233.' An outstanding unfiled chattel mort- gage on a stock of goods, given as security for a guaranty of a debt of the mortgagor, although containing a clause that it shall not be valid and binding until filed, consti- tutes an encumbrance within the meaning of a policy insuring such goods against fire, which provides that the policy shall be void if the subject of the insurance be or be- come encumbered by a chattel mortgage. Madsen v. Farmers' & M. Ins. Co. 29: 97, 126 N. W. 1086, 87 Neb. 107. 234. The indorsement upon an insurance policy of a clause, "subject to all the con- ditions of the policy, loss payable to" a Digest 1-52 L.R.A.(N.S.) certain person named "as his interest may appear," is not sufficient, although the per- son named is the mortgagee, to show con- sent to a chattel mortgage, where, by the terms of the policy, it is to become void if the property becomes encumbered by such mortgage, and no provision of the policy can be waived unless such waiver shall be writ- ten upon the policy, while the person named has an interest as mortgagee of the real es- tate sufficient to support the indorsement. Atlas Reduction Co. v. New Zealand Ins. Co. 9: 433, 138 Fed. 497, 71 C. C. A. 21. 235. A policy of fire insurance procured upon articles of personal property by the owner, and made payable to purchase-money creditors, who had retained title to the separate articles sold by them, to secure payment of the purchase price, is forfeited under a clause providing therefor if the property became encumbered by chattel mortgage, where the owner executes to one of the creditors a chattel mortgage upon his interest in the property purchased from another. Hartford F. Ins. Co. v. Liddell Co. 14: 168, 60 S. E. 104, 130 Ga. 8. 236. There is not such joint ownership of insured property as to take a chattel mortgage executed thereon by the insured, out of the operation of a covenant in the policy against encumbrances, where the mortgage was given to a creditor from whom part of the insured property was purchased, upon the insured's interest in the rest of the property. Hartford F. Ins. Co. v. Lid- dell Co. 14: 168, 60 S. E. 104, 130 Ga. 8. 237. A mortgage clause that the loss, if any, shall be payable to the mortgagee as his interest may appear, "subject to the terms and conditions of the policy," doea not relieve the insurer from liability upon a policy containing a condition that it shall be avoided by proceedings to foreclose any mortgage on the property, although the mortgagee foreclosed and caused the prop- erty to be sold and was holding a certificate of purchase, the period of redemption hav- ing expired since the fire, the insuring of a mortgage lien being sufficient indication that the company must have contemplated a possible or probable foreclosure. Citizens' State Bank v. Shawnee F. Ins. Co. 49: 972, 137 Pac. 78, 91 Kan. 18. 238. A sale of mortgaged property for breach of condition, under a power contained in the mortgage, to the mortgagee, is with- in the terms of a clause in an insurance policy avoiding it if the property shall be sold without th3 consent of the insurer, although the policy is made payable to the mortgagee, as his interest may appear. Boston Co-Operative Bank v. American C. Ins. Co. 23: 1147, 87 N. E. 594, 201 Mass. 350. (Annotated) Encumbrances generally. Waiver of provision as to, see infra, 571. Failure to allege that property at time of fire was occupied as dwelling house, see APPEAL AND ERROR, 822, 823. Collusiveness on appeal of verdict as to increase of hazard, see APPEAL AND EB- BOR, 907. INSURANCE, III. e, 1. Waiver or estoppel as to, see infra, 506-508. 239. A clause in a fire insurance policy, directing payment to a certain person "as his interest may appear," does not amount to an assent by the insurer to a subse- quent encumbrance given by the insured to the same person. Hartford F. Ins. Co. v. Liddell Co. 14: 168, 60 S. E. 104, 130 Ga. 8. c. Use and care of property. {See also same heading in Digest L.R.A. 1-10.) Increase of risk as question for jury, see TRIAL, 649. 240. An insurer cannot be held liable for the value of property destroyed by a fire, if the owner exerted no proper diligence to save it, although there was ample time and opportunity to do so, and the policy con- tained a stipulation that the insurer should not be liable for loss caused directly or in- directly by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighbor- ing premises. First Nat. Bank v. German American Ins. Co. 38: 213, 134 N. W. 873, 23 N. D. 139. 241. A temporary increase of hazard, which ceases before loss, will not prevent recovery on a fire-insurance policy which provides that it shall be void if the hazard is increased. Sumter Tobacco Warehouse Co. v. Phoenix Ins. Co. 10: 736, 56 S. E. 654, 76 S. C. 76. (Annotated) 242. A mere possibility that an unsuc- cessful attempt by an unknown person to burn an insured building may be repeated, coupled with failure to take any adequate measures to prevent it or to notify the insurer, is not an increase of hazard which will avoid the policy, under a provision that it shall be void if the hazard is increased by any means within the control or knowl- edge of the insured. Williamsburg City F. Ins. Co. v. Weeks Drug Co. 31:603, 132 S. W. 121, 103 Tex. 608. (Annotated) 243. A warranty in an insurance policy that insured will use due diligence that the automatic sprinkler system shall at all times be maintained in good working order is not broken by the temporary discon- nection of the system for the purpose of making extensions to it, where the work of making the alterations is prosecuted with due diligence. Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. 28: 593, 106 Pac. 194, 56 Wash. 681, 110 Pac. 36, 59 Wash. 501. (Annotated) 244. Temporary breach by an insured of his warranty that due diligence will be used that the automatic sprinkler system shall at all times be maintained in good working order will not prevent his recovering on the policy, if, at the time of the loss, it was in good working order, and the breach had nothing to do with the loss, at least, where there is no express provision in the policy for its becoming void for such breach, while Digest 1-52 L.R.A.(N.S.) such provisions are found in connection with other conditions and warranties. Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. 28: 593, 106 Pac. 194, 56 Wash. 681. Alterations; repairs. 245. The making of repairs necessary for the proper care and preservation of the property is not within the operation of a provision in an insurance policy making the working of mechanics in altering or repairing the premises avoid the policy. Lebanon County v. Franklin F. Ins. Co. 44: 148, 85 Atl. 419, 237 Pa. 360. ' (Annotated) Vacancy; occupancy; change of use. Agent's power with respect to vacancy, see supra? 41, 43. Revival of policy on reoccupancy, see infra, 414. Waiver or estoppel as to, see infra, 506, 507, 552-554. Raising question of effect of vacancy for first time on appeal, see APPEAL AND ERROR, 746. Parol evidence to explain policy, see EVI- DENCE, 919. 246. An independent clause in a standard fire insurance policy, providing that the policy shall be void if the property becomes vacant without the consent of the insurer, is not affected by another clause providing that the policy shall be void if the situation or circumstances affecting the risk shall be so altered as to cavse increase in the risk, and such increase ne: 1 not, therefore, be shown, to avoid the policy under the former clause. Knovvlton v. Patrons' Androscoggin Mut. F. Ins. Co. 2: 517, 62 Atl. 289, 100 Me. 481. 247. A provision in a fire insurance policy avoiding it in case the property becomes vacant is not affected by another clause giv- ing the insurer an option to repair in case of injury to the property, so as to preserve the insurance in force in case the property is vacated after injury by fire, and permit recovery for a second loss which occurs be- fore the option is exercised. Kupfersmith v. Delaware Ins. Co. (N. J. Err. & App.) 45: 847, 86 Atl. 399, 84 N. J. L. 271. 248. A provision in an insurance policy which is to become void if the building be- comes and remains vacant for five days, unless continued by consent of the insurer, that it shall be the duty of the owner to report a vacancy within five days of such occurrence and as often as every ten days thereafter, applies only when no permit for vacancy has been issued. Duncan v. Na- tional Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 249. No recovery can be had under a fire insurance policy stipulating that the policy shall be void if the property insured shall become vacant, unoccupied, or uninhabited without the consent of the insurer, where the loss by fire occurred while the building was vacant without the knowledge or consent of the insurer. Germania F. Ins. Co. v. Wer- ner, 12: 456, 81 N. E. 980, 76 Ohio St. 543. 250. The provisions of Ohio Rev. Stat. 1906, 3643, requiring payment of loss in- 1556 INSURANCE, 111. o, 1. flicted by fire upon insured property, "in the absence of any change increasing the risk without the consent of the insurers," refer only to a change in the insured build- ing or structure itself, and are not applica- ble to anything distinct from, or accidental- ly related to, the corpus of the insured building or structure, such as temporary va- cancy of the insured premises. Germania F. Ins. Co. v. Werner, 12: 456, 81 N. E. 980, 76 Ohio St. 543. (Annotated) 251. Reoccupation, before the fire occurs of an insured building after a vacancy, suf- ficient to avqid the policy under a condition against vacancy, revives the policy, so as to permit a recovery in case the fire occurs during the occupancy. Insurance Co. of N. A. v. Pitts, 7: 627, 41 So. 5, 88 Miss. 587. 252. An insurance company without knowledge of the breach of a condition against vacancy until after a fire has oc- curred may, if it does not waive the for- feiture, insist upon the same. Schmidt v. \Yilliamsburgh City F. Ins. Co. 51:261, 144 N. W. 1044, 95 "Neb 43. 253. One applying for insurance on a "dwelling house" which he states is in proc- ess of erection complies with his underrak- ing if. when occupied, the building is used for that purpose. Harris v. North Amer- ican Ins. Co. 4: 1137, 77 N E. 493, 190 Mass. 361 254 A building in process of construction is not within the meaning of an instruction by an insurance company to its agent not to insure unoccupied buildings. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. (Annotated) 255. A provision in an insurance policy rendering it void in case the premises be- come vacant by the removal of the owner or occupant has no application to a policy is- sued on a building in process of erection, which, because not fully fitted for occu- pancy, is never occupied prior to the fire. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. (Annotated) 256. The removal from a building in proc- ess of construction of mechanics who have been in possession under a permit from the insurance company does not create a forfei- ture under a clause of the policy making it void in case the premises become vacant by the removal of the owner or occupant, since the permit for their presence refers to the clause relating to increase of risk, and is not a waiver of the provision against va- cancy. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. 257. The terms of an insurance policy ren- dering it void in case of vacancy of a build- ing cannot be changed by implied waiver in the issuance of a policy on a building known to be unoccupied, since the provision refers to a possible future, and not a present, use of the property. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. 258. Buildings are vacant, or personally unoccupied, within the meaning of a clause in an insurance policy making it void in case they become so, where, because of sick- ness, the occupant moves his family to a Digest 1-52 L.R.A.(N.S.) nearby village for medical attention, with the intention of returning when the sick re- cover, although he himself is at the house- nearly every day in carrying on the work about the place. Knowlton v. Patrons' Androscoggin Mut. F. Ins. Co. 2: 517, 62 Atl. 289, 100 Me. 481. (Annotated) 259. The general and usual condition against vacancy in insurance policies on property occupied by the owner, which is inserted in a policy on a building occupied by a tenant, will not operate to avoid the policy immediately upon the removal of the tenant, of which the owner ha no notice or reasonable opportunity to obtain it. Ohio- Farmers' Ins. Co. v. Vogel, 3: 966, 76 N. E. 977, 166 Ind. 239. (Annotated) 260. A building leased to a woman for a boarding house does not become vacant and unoccupied within the meaning of a clause in an insurance policy rendering it void under such circumstances, if, after the ten- ant has removed the most of her furniture to another building, her husband and his man continue to occupy the building nights, looking after his stock, which remains on the premises. Seubert v. Fidelity-Phenix Ins. Co. 40: 58, 136 N. W. 103, 29 S. D. 261. (Annotated) 261. Conditions in fire insurance policies that they shall be void if the use of the insured building be changed or if it become vacant or unoccupied are broken and no re- covery can be had in an action on the policies where, at the time of the loss, the building was used for the temporary stor- age of the library and a portion of the household effects of a teacher formerly liv- ing therein, but its use for school purposes had been suspended for an indefinite period, although a lease contemplating the estab- lishment of a new school of the same char- acter had been negotiated, but the tenant had not arrived or taken possession. Con- necticut F. Ins. Co. v. Buchanan, 4: 758, 141 Fed. 877, 73 C. C. A. 111. 262. Fire insurance policies contemplate the use and occupancy of the insured prop- erty as a normal school and dwelling and make the same a condition to-the accept- ance and continuance of the risk, where one of the policies insures the premises as a "normal school and dwelling" and the other ir.sures it "occupied, and only while occu- pied, as a normal school and dwelling," both policies further providing that they shall be void in case of change of use or occupants except change of occupants without increase of hazard, or if the building become vacant or unoccupied. Connecticut F. Ins. Co. v. Buchanan, 4: 758, 141 Fed. 877, 73 C. C. A. 111. 263. A policy of insurance on a woolen mill, which provides that it shall be void if the hazard is increased by any means with- in the control or knowledge of the insurer, becomes void when the mill is devoted to the manufacture of cotton bats. Progress Spinning & Knitting Mills Co. v. Southern Nat. Ins. Co. 45: 122, 130 Pac. 63, 42 Utah, 263. (Annotated) " " INSURANCE, III. e, 1. 1557 Suspension of business. Secondary evidence as to whether report of agent issuing policy contained anything as to idleness of plant insured, see EVI- DENCE, 712. 264. Insurance of a building which is not in operation as a manufactory at the time, as "occupied as an ice factory," does not require its operation as such, to make the policy valid, under a provision that the policy, shall be void if on a manufacturing establishment which shall cease to be oper- ated for ten consecutive days. Home Ins. Co. v. North Little Rock Ice & E. Co. 23: 1201, 111 S. W. 994, 86 Ark. 538. Watchman. 265. The insurer of a vessel is relieved from liability for its loss by fire if the fire occurs during the absence of the watchman whom the insured has warranted to have at all times on board, although he left with- out the owner's knowledge, merely to get a change of clothing. VVhealton Packing Co. v. ^Etna Ins. Co. 34: 563, 185 Fed. 108, 107 C. C. A. 113. (Annotated) Change of location. 266. A policy of insurance on chattels, giving permission to move them from their location to a specified building, the policy to cover the property during removal in propor- tion as the value in each location shall bear to the whole value, will not cover the prop- erty while temporarily in another building, although in process of removal. Palatine Ins. Co. v. Kehoe, 15:1007, 83 N. E. 866, 197 Mass. 354. Prohibited articles. Waiver or estoppel as to, see infra, 509, 534, 575. 267. Recovery on a fire insurance policy is not prevented by the fact that prohibited articles were kept upon the premises dur- ing the life of the policy, if such practice was discontinued prior to the loss and did not contribute thereto, while premiums were paid and renewal receipts issued after the discontinuance. McClure v. Mutual F. Ins. Co. 48: 1221, 88 Atl. 921, 242 Pa. 59. (Annotated) 268. An insurance policy will not be avoided by keeping on the premises articles pro- hibited by the printed portion of the pol- icy if they were part of a general stock of merchandise which the written part of the policy permitted to be kept thereon. McClure v. Mutual F. Ins. Co. 48: 1221, 88 Atl. 921, 242 Pa. 59. 269. The presence on the insured premises of a small quantity of gasolene in a gasolene stove used for cooking, from which the fire originated, is not a storing or keeping with- in a condition of the policy that the in- surer shall not be liable "for loss or damage occuring while gasolene is stored or kept in the building insured." Thompson v. Equity Fire Ins. Co. 3 B. R. C. 1, [1910] A. C. 592. Also Reported in 80 L. J. P. C. N. S. 13, 103 L. T. N. S. 153, 26 Times L. R. 616. (Annotated) 270. The keeping upon injured premises of a very small quantity of gasolene for use in an engine used to operate the ma- Digest 1-52 L,.R.A.(N.S.) chinery necessary for the business does not nullify insurance upon the property, al- though the keeping of gasolene is prohib- ited by the policy, if premiums were paid. McClure v. Mutual F. Ins. Co. 48: 1221, 88 Atl. 921, 242 Pa. 59. 271. The use of a gasolene torch in re- moving paint from an insured building is not, as matter of law, within a clause of the policy avoiding it if insured shall keep or use gasolene on the premises, or permit it to be so kept or used. Lebanon County v. Franklin F. Ins. Co. 44: 148, 85 Atl. 419, 237 Pa. 360. 272. A fire insurance policy in the stand- ard form is not made void by the use of a gasolene torch by a painter for the pur- pose of burning off paint from the building insured, where the work has continued for less than the fifteen days allowed by the policy for repairs. Garrebrant v. Continen- tal Ins. Co. (N. J. Err. & App.) 12: 443, 67 Atl. 90, 75 N. J. L. 577. 273. The taking of a pint of gasolene in a bottle securely corked, into an insured dwelling, for cleaning purposes, is not with- in a clause of the policy avoiding it if there be kept, used, or allowed on the premises "any gasolene." Arnold v. American Ins. Co. 25: 6, 84 Pac. 182, 148 Cal. 660. 274. A clause in an insurance policy making it void if gasolene is kept or al- lowed on the premises is not violated by the delivery in the building of a five-gal- lon can, ordered for use elsewhere by one of the insured, who was absent wiien it ar- rived, where it was set outside upon hia return, a few moments afterwards, and taken away by him within an hour. Clute v. Clintonville Mut. F. Ins. Co. 32: 240, 129 N. W. 661, 144 Wis. 638. (Annotated) 275. Violation of a provision in a fire in- surance policy prohibiting the storing of seed cotton or loose lint cotton in the in- sured building renders the policy void, al- though the cotton was stored in the build- ing, without the knowledge of the insured, by one to whom he had leased the premises, and who was in control of them. Edward* v. Farmers' Mut. Ins. Asso. 12: 484, 57 S. E. 707, 128 Ga. 353. (Annotated) d. Books; inventory; iron-safe clause. (See also same heading in Digest L.R.A. 1-10.) Waiver as to, see infra, 574, 620 ; TRIAL, 653. Nonwaiver agreement as to, between insur- ance company and bankrupt and re- ceiver of latter's property, see BANK- RUPTCY, 31. Conflict of laws as to,, see CONFLICT OF LAWS, 47. Question for jury as to violation of provi- sion for keeping books, see TRIAL, 329. See also infra, 300. 276. A stipulation in a fire insurance pol- icy, that the insured shall make and keep in- ventories and books, which shall be kept in 1558 INSURANCE, III. e, 1. a fireproof safe, and, in case of loss, shall | produce such books and inventories for the j inspection of the insurer, and, in the event [ of failure to do so, that the entire policy shall be null and void, is a reasonable and competent provision to insert in and attach to the policy. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, 16 Okla. 59. 277. Keeping a merchandise account shov- ing goods purchased from time to time, some of the entries in which show the character of the goods and their price, while many others merely state the name of the person or firm from whom they were purchased and the amount, is not a sufficient compliance with a requirement in a policy of fire in- surance covering a stock of goods, that the insured shall keep a set of books snowing all purchases, sales, and shipments. JEtna Ins. Co. v. Johnson, 9: 667, 56 S. E. 643, 127 Ga. 491. 278. A clause in a policy of fire insurance requiring the insured to "keep a set of books which shall clearly and plainly present a complete record of business transacted, In- cluding all purchases, sales, and shipments both for cash and credit," is a promissory warranty which must be complied with; but, in determining what it requires, a fair and liberal construction should be placed upon it so as to effectuate the contract of in- demnity, rather than defeat it. ytna Ins. Co. v. Johnson, 9: 667, 56 S. E. 643, 127 Ga. 491. 279. The fact that a stock of merchandise has not been removed from the storehouse, and that it is covered by the original in- voices, does not make inapplicable a pro- vision in a fire insurance policy requiring an inventory. Day v. Home Ins. Co. 40: 652, 58 So. 549, 177 Ala. 600. 280. The books of a merchant, together with the original invoices of his stock, can- not supply the requirements of a policy of insurance on the property requiring an in- ventory, where the policy requires both in- ventory and books. Day v. Home Ins. Co. 40: 652, 58 So. 549, 177 Ala. 600. 281. For the purpose of determining whether or not an inventory is taken in time, the taking effect of an insurance con- tract is not postponed until a clerical error in the policy as to the amount of the insur- ance has been rectified, nor until the pay- ment of the premium, there being no pro- vision in the policy that it shall not be binding until the premium is actually paid. Reynolds v. German American Ins. Co. 15: 345, 68 Atl. 262, 107 Md. 110. 282. The iron-safe clause in an insurance policy is not complied with, either literally or substantially, by the taking of an inven- tory fourteen days after the time limit for doing so has expired ; and the policy, having become void for that reason, is not revived thereby. Reynolds v. German American Ins. Co. 15: 345, 68 Atl. 262, 107 Md. 110. 283. The fact that balances from a set of books containing an itemized statement of business transacted by the insured during a portion of the term covered by the policy were carried forward into a new set of Digest 1-52 L.R.A.(N.S.) books which were kept in a fireproof safe, tohe old books being exposed to fire, and lost, will not satisfy the "iron-safe clause'' re- quiring the preservation of complete rec- ords of assured's business during the life of the policy. A^tna. Ins. Co. v. Mount, 15: 471, 44 So. 162, 45 So. 835, 90 Miss. 642. (Annotated) 284. Leaving account books in an ex- posed position in the store when locking and leaving it for luncheon, with the intention of being absent a half hour, violates a pro- vision in a policy of insurance on stock and fixtures requiring the books to be kept in an iron safe or in some place not exposed to a fire which would destroy the property insured, when the building is not actually open for business. Joffe v. Niagara F. Ins. Co. 51: 1047, 81 Atl. 281, 116 Md. 155. 285. Substantial compliance with the pro- visions of an iron-safe clause in an insur- ance policy which requires an inventory cannot be found where nothing is shown ex- cept some unitemized bills, so that the in- sured himself states that he does not know how much of the various classes of goods carried he had. Coggins v. JEtna. Ins. Co. 8: 839, 56 S. E. 506, 144 N. C. 7. 286. The loss of an inventory by theft from an unlocked safe while the building in which such safe was located was open for business, and the consequent failure to produce the same, does not invalidate a fire insurance policy containing an iron- safe clause, where the insured used such care on the occasion of the theft as prudent men acting in good faith would have used, notwithstanding a provision that a failure to produce an inventory shall render the policy null and void, as such provision does not require production of the inventory when it has been lost through no fault, neglect, or design of the insured. German Alliance Ins. Co. v. Newbern, 28: 337, 106 Pac. 826, 25 Okla. 489. (Annotated) e. Other insurance. (See also same heading in Digest L.R.A. 1-70.) Other insurance on life, see infra, III. e, 2, d. Waiver of provision as to, see infra, 510, 511, 530-532, 576, 603. See also supra, 38. 287. Where the original policy of fire in- surance was void for nondisclosure of prior insurance, a renewal thereof is likewise a nullity, although the prior insurance has ceased to exist in the interval. Liverpool & London & Globe Ins. Co. v. Agricultural Savings & Loan Co. 1 B. R. C. 593, 33 Can. S. C. 94. (Annotated) 288. Whether, where parties to an al- leged contract of insurance agree in treat- ing it as void, it may be considered as violat- ing a condition in another policy against additional undisclosed insurance, quaere. Equitable Fire & Acci. Office Ltd. v. Ching Wo Hong, 1 B. R. C. 34, [1907] A. C. 96. '.:*.. >!.)./>. y I ''" -' t. INSURANCE, III. e, 2. 1559 Also Reported in 70 L. J. C. P. N. S. 31, 96 L. T. N. S. 1, 23 Times L. R. 200. 289. A policy of fire insurance contain- ing a stipulation making it null and void if the insured omits to give notice of any additional insurance on the property cov- ered, is not avoided' by omission to give notice of an additional insurance which never became effective. Equitable Fire & Acci. Office Ltd. v. Ching Wo Hong, 1 B. R. C. 34, [1907] A. C. 96. Also Reported in 76 L. J. C. P. N. S. 31, 96 L. T. N. 8. 1, 23 Times L. R. 200. ' (Annotated) 290. A representation in an application for insurance as to the existence of other insurance on the property must be true when the application is accepted, to comply with a requirement that all facts stated in the application must be true under penalty of avoiding the contract, and if untrue at that time, its truthfulness when made is immaterial. Carleton v. Patrons' Andros- coggin Mut. F. Ins. Co. 39: 951, 82 Atl. 649, 109 Me. 70. (Annotated) 291. Existing' additional insurance upon property unknown to the one issuing a policy thereon avoids the latter policy, which provides that if assured now has or shall hereafter make any other insurance on the property without assent of the in- surer, the policy shall be void. Carleton v. Patrons' Androscoggin Mut. F. Ins. Co. 39: 951, 82 Atl. 649, 109 Me. 70. 292. The insertion by an insurance agent who has failed to secure all the insurance to be placed on a building, of a clause in the policy issued by him making it void if additional insurance is taken, will not pre- vent recovery on the policy in case of loss, although the intended amount was placed with other companies. Norfolk F. Ins. Corp. v. Wood, 39: 1020, 74 S. E. 186, 113 Va. 310. 293. An application for additional insur- ance will not avoid a policy under a provi- sion therein that it shall be void if assured shall procure any other contract of insur- ance, whether valid or not, on the property, if both the owner and the company to which the application for additional insurance is made understand that no risk is assumed under it. Duncan v. National Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 294. Insurance taken out by a mortgagee under authority of the mortgage to do so if the mortgagor fails to insure, after the mortgagor had secured a policy, and which the mortgagee promised to cancel upon learning the facts, does not avoid the policy of the mortgagor under a provision therein making it void if insured shall make or procure any other contract of insurance. Kelley use of Chisholm v. People's Nat. F. Ins. Co. 50: 1164, 104 N. E. 188, 262 111. 158. 295. A clause in a fire insurance policy permitting concurrent insurance will cover policies written by marine insurance com- panies upon the property although they render the insurer liable only in case of total loss, and the method of adjustment is different from that of fire policies, if they are concurrent in time and as to property Digest 1-52 L.R.A.(N.S.) covered. Globe & Rutgers F. Ins. Co. v. Alaska-Portland Packers' Asso. 49: 374, 205 "Jb'ed. 32, 123 C. C. A. 340. (Annotated) f. Severability. (See also same heading in Digest L.R.A. 1-10.) 296. A contract of fire insurance is en- tire, and the increase of moral hazard due to the fact that the insured does not own the land upon which the insured building stands affects not only the building, but the entire property, in case of its destruction by fire. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 297. An insurance policy covering differ- ent classes of property, each class being sep- arated from the others, and insured for a specific amount, is separable, and recovery may be had for one or more classes without regard to the other items, where there is a breach of a condition of the contract as to one class of property insured, provided the contract is not affected by any question of fraud, act condemned by public policy, or any increase in the risk of the property in- sured. Arkansas Ins. Co. v. Cox, 20: 775, 98 Pac. 552, 21 Okla. 873. 298. Breach of warranty of title in an in- surance policy with respect to the building will avoid the insurance on the contents, although building and contents were in- sured for separate amounts for an entire premium, where the risk upon both items is the same. Goorberg v. \Vestern Assur. Co. 10 : 876, 89 Pac. 130, 150 Cal. 510. 299. A policy of insurance upon a build- ing and contents, which is void as to build- ing because of the existence of additional insurance contrary to its provisions, is void also as to the contents. Carleton v. Pa- trons' Androscoggin Mut. F. Ins. Co. 39: 951, 82 Atl. 649, 109 Me. 70. 300. That the amounts of insurance on a building and its contents are separately stated will not permit a recovery for loss on the building, in case of breach of the iron-safe clause as to its contents, where the premium is entire and the risk on build- ing and contents is identical. Coggins v. ^Etna Ins. Co. 8: 839, 56 S. E. 506, 144 N. C. 7. 301. A policy of insurance on stock and fixtures is indivisible, so that if it is ren- dered void as to the stock by the failure to keep the books in a place not exposed to fire which might destroy the stock, it is void as to the fixtures afso. Joffe v. Niag- ara F. Ins. Co. 51: 1047, 81 Atl. 281, 116 Md. 155. (Annotated) g. Marine insurance. See supra, 265, 295. 2. In life or accident policies. a. In general. (See also same heading in Digest L.R.A. 1-10.) 1560 INSURANCE, III. e, 2. Waiver of provisions as to, see infra, V. b. As to risks and causes of loss or injury, see infra, VI.' b, 2; VI. b, 3. Burden of pleading and proving falsity of answers in application, see EVIDENCE, 555, 55G. Question for jury as to meaning of check mark in application, see TRIAL, 280. Materiality of statement of age by appli cant, see TRIAL, 648. See also supra, 44, 149-153. 302. The language of a question in an application for insurance is to be read .in its plain, ordinary and natural signification, and if there is any ambiguity, such ambi- guity is to be resolved against the insurer who framed the question and in favor of the applicant. Metropolitan L. Ins. Co. v. Montreal Coal & Towing Co. 1 B. R. C. 298, 35 Can. S. C. 266. Also Reported in 25 Canadian Law Times Occ. N. 4. 303. A statutory provision requiring ap- plicants for life insurance to pass a satis- factory medical examination by a physician applies to applicants for burial insurance. State v. Willett, 23: 197, 86 N. E. 68, 171 Ind. 296. 304. In construing a contract of insur- ance in a fraternal beneficiary association, for the purpose of determining whether the statements made in the written application therefor were intended to be representa- tions or warranties, the court will take in- to consideration the situation of the parties, the subject-matter, and the language em- ployed, and will construe a statement made therein to be a warranty only when it clearly appears that such was the intention of the contracting parties, and that the mind of each party consciously intended and consented that such should be the in- terpretation of his statements. Goff v. Supreme Lodge Royal Achates, 37: 1191, 134 N. W. 239, 90 Neb. 578. 305. Courts will never construe a state- ment by an applicant for insurance as a war- ranty unless the language of the policy is so clear as to preclude any other construction. Spence v. Central Acci. Ins. Co. 19: 88, 86 N. E. 104. 236 111. 444. 306. To constitute a warranty, a represen- tation by an applicant for insurance must .appear in the contract itself. Spence v. Cen- tral Acci. Ins. Co. 19: 88, 86 N. E. 104, 236 111. 444. 307. A provision in a life insurance policy, that statements are warranted to be full, complete, and true, "without suppression of any fact or circumstance which would tend to influence the company in issuing a pol- icy," makes the statements and agreements amount to representations only. Reppond v. National L. Ins. Co. 11:981, 101 S. W. 786, 100 Tex. 519. (Annotated) 308. An insurance company is not preclud- ed from relying on breach by the insured of conditions and warranties inserted in the policy by failure to attach to it a copy of the application, which is not referred to in the policy, although they are similar to Digest 1-52 L.R.A.(N.S.) those contained in the application, under a statute providing that omission to at- tach a copy of the application to the policy will preclude the company from alleging or proving any such application or represen- tations, or falsity thereof or any parts there- of, in an action on the policy, but permits the insured to plead or prove the applica- tion or representation at his pleasure. Kirk- patrick v. London Guarantee & Acci. Co. 19: 102, 115 N. W. 1107, 139 Iowa, 370. (Annotated) 309. A statutory requirement of attach- ment of an application for insurance to the policy is satisfied if the subdivision of a document designated, as a whole, "proposal for insurance." which is entitled "applica- tion," is so attached, where all material rortions of the contract are incorporated in such application; and the fact that the name of the beneficiary appears only in the proposal, and is not attached to the policy, is immaterial, since it in no way affects an essential element of the con- tract upon which the right of the insurer to avoid it depends. Langdeau v. John Han- cock Mut. L. Ins. Co. 18: 1190, 80 N. E. 452, 194 Mass. 56. (Annotated) 310. Omission to mention the name of one of the attending physicians during a period of illness will not avoid a policy of life in- surance, unless the omission is material, where the applicant warrants his state- ments to be full, complete, and true, "with- out suppression of any fact or circumstance which would tend to influence the company in issuing a policy." Reppond v. National L. Ins. Co. ii : 981, 101 S. W. 786, 100 Tex. 519. False answers or concealment. As to occupation, see infra, III. e, 2, c. As to health or habits, see infra, III. e, 2, b. As to other insurance or previous applica- tions see infra, III. e, 2, d. As to family history, see infra, III. e, 2, e. Effect of incontestable clause, see infra, III. e, 2, f. Waiver or estoppel to set up, see infra, V. b. Necessity of returning assessment before canceling benefit certificates for false answers, see infra, 434-444. Presumption and burden of proof as to falsity of answers, see EVIDENCE, 555. Evidence as to manner in which application for life insurance was prepared to estop company, see EVIDENCE, 1944-1946. 311. An incorrect or untrue answer in an application for life insurance in refer- ence to matters of opinion or judgment will not avoid the policy if made in good faith and without intention to deceive; but an untrue answer in regard to matters which are shown to be within the actual knowl- edge of the applicant and are material to the risk will avoid the policy. Bryant v. Modern Woodmen of America, 27: 326, 125 N. W. 621, 86 Neb. 372. 312. The beneficiary of a life insurance policy based upon a warranty as to the truthfulness of the applicant's answer to questions cannot disaffirm the warranty on the ground that the applicant was a minor, f.^./;,/..^.j i'".~: ; INSURANCE, III. e, 2. 1561 and still enforce the policy. Metropolitan L. Ins. Co. v. Brubaker, 18: 362, 1)0 Pac. 62, 77 Kan. 599. 313. Untruth of answers which are war- ranted 'to be true in an application for life insurance constitutes a breach of the war- ranty, whether the insured knew of their untruth or not. National Annuity Asso. v. McCall, 48: 418, 146 S. W. 125, 103 Ark. 201. 314. Material false representations in an application for insurance vitiate the bind- ing slip as well as the policy. Gardner v. North State L. Ins. Co. 48:" 714, 79 S. E. 806, 163 N. C. 367. 315. An applicant for insurance who, after producing, at the request of the agent, a policy written previously, from which an- swers to the questions are copied, and, upon being told that the application is prepared according to the rules and regulations of the association, signs it, cannot be charged with bad faith merely because some of the answers are untrue at the time of the sig- nature. Roe v. National L. Ins. Asso. 17: 1144, 115 N. VV. 500, 137 Iowa, 696. 316. If an applicant for a life insurance policy warrants in his application that his answers to the medical examiner, on the reverse side of the application, are "true and accurate," and that they constitute the basis for the covenant, such answers become warranties, where the policy recites that it is executed in consideration of the warran- ties made in the application, and that the application shall be a part of the covenant; and a false statement made therein by the applicant renders the policy void. Eminent Household of C. W. v. Prater, 23: 917, 103 Pac. 558, 24 Okla. 214. 317. False statements in an application for life insurance will not defeat liability on the policy on the theory that they mis- led the medical examiner, where he testifies that he made his report on his own examina- tion, and paid no attention to such answers. Roc v. National L. Ins. Asso. 17: 1144, 115 N, W. 500, 137 Iowa, 696. 318. Denial in an application for life in- surance of intimate association with anyone suffering from any transmissible disease within a year avoids the policy if the ap- plicant had within that time nursed mem- bers of his family ill with typhoid fever. Gardner v. North State L. Ins. Co. 48: 714, 79 S. E. 806, 163 N. C. 367. (Annotated) 319. A statement of relationship in a nomination of beneficiary of a mutual bene- fit certificate is not a warranty which will avoid the certificate in case the relationship proves to be untrue. Cunat v. Supreme Tribe of Ben Hur, 34: 1192, 94 N. E. 925, 249 111. 448. 320. A misrepresentation as to relation- ship of the beneficiary in an application for a mutual benefit certificate will not avoid the contract if the beneficiary was eligible in his true relationship. Goff v. Supreme Lodge Royal Achates, 37: 1191, 134 N. W. 239, 90 Neb. 578. 321. An untrue answer written by the medical examiner that an applicant for in- I surance was not at the time pregnant, al- 1-52 :L.R.A.(N.S.) though his deduction from her answers and believed by her to be true, will avoid the policy where applicant, in the application, warrants the answers to be true, and de- clares that the answers as written by the examiner are as given by her. Supreme Lodge* K. L. of H. v. Payne, 15: 1277, 108 S. W. 1160, 101 Tex. 449. (Annotated) as to age. Effect of incontestable clause, see infra, 37], 372. Waiver or estoppel as to, see infra, 536, 546. 322. A misstatement of his age by an ap- plicant for insurance in a benefit society is material as a matter of law, and renders the beneficiary certificate issued to him void ub initio, where at the time of the application he was beyond the age at which the laws of the society permitted members to be re- ceived, but stated that he wac younger. Taylor v. Grand Lodge A. 0. U. W. 3: 114, 105 N. W. 408, 96 Minn. 441. ' 323. A statement in an accident insurance policy that, in consideration of the warran- ties and agreements in the application, the applicant is insured, does not make the ap- plication a part of the contract, so as to render a statement in it as to the age of the applicant a warranty. Spence v. Central Acci. Ins. Co. 19: 88, 86 N. E. 104, 236 111. 444. (Annotated) 324. Forfeiture for untrue statements ac- cording to the terms of the contract occurs where the age of the applicant for member- ship in a mutual benefit society was, with- out the knowledge of the applicant, falsely stated in the certificate after he had stated his true age, where he knew that, to secure admission, the age must be stated falsely, or some other fraud perpetrated on the so- ciety. Elliott v. Knights of Modern Macca- bees, 13: 856, 89 Pac. 929, 46 Wash. 320. b. Health and habits. (See also same heading in Digest L.R.A. 1-10.) Effect of incontestable clause, see infra, 365. Review of finding of trial court that hemor- rhage did not constitute a serious ill- ness, see APPEAL AND ERROR, 994. Evidence on question of false representa- tions, see EVIDENCE, 1667, 1668. Sufficiency of pleading to admit evidence, see EVIDENCE, 2428. Evidence as to what weight might have been given by physicians generally to an- swers in application, see EVIDENCE, 1945. Evidence of examining physician as to ef- fect of knowledge that insured's physi- cian thought he had heart disease, see EVIDENCE, 1946. Imputing agent's knowledge of .falsity oi representations to insured, see NOTICE, 46. Sufficiency of plea to raise question of breach of warranty by applicant as to health, see PLEADING, 520. Question for jury as to breach of warranty, see TRIAL, 237. 1502 INSURANC Question for jury as to truthfulness of statements, see TBIAL, 647. See also supra, 318. INSURANCE, III. e, 2. 325. Warranties as to sound health and medical attention in an accident insurance policy which has been renewed from* time to time for a period of years without the presentation of a new application referred to the date of the original application, and not to that of the last renewal. Fidelity & C. Co. v. Meyer, 44: 493, 152 S. W. 995, 106 Ark. 91. 326. The falsity of statements made in a health certificate which an applicant for an increase of benefit insurance was re- quired to furnish is available to defeat recovery of the insurance, especially where the applicant agreed in the health certifi- cate that it and his application, together with the laws of the order, should constitute the contract. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043, 156 Ky. 270. 327. It is not necessary in order to de- feat recovery on a benefit certificate by rea- son of the falsity of the applicant's state- ments material to the risk, that he was in good health, and not diseased, that the ap- plicant should have known that he was in fact diseased. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043, 156 Ky. 270. 328. Where the applicant for life insur- ance certifies that his health is good accord- ing to the best of his knowledge and belief, a recovery may be had, on the death of the assured, if it appear that he had reason to believe, and did believe, that at the time he was in good health, although it subsequent- ly develops that this was not in fact his condition, for his statement was not un- qualified, but only to the extent of his knowledge and belief. Smith v. Prudential Ins. Co. (N. J. Err. & App.) 43: 431, 85 Atl. 190, 83 N. J. L. 719. (Annotated) 329. A warranty of freedom from bodily infirmity, in an application for accident in- surance, includes only an ailment or dis- order of a somewhat established or settled character, and not merely a temporary dis- order arising from a sudden and unexpected derangement of the system. French v. Fi- delity & C. Co. 17: ion, 115 N. W. 869, 135 Wis. 259. 330. The term "serious illness," as used in an application for a life insurance policy, means such an illness as permanently or materially impairs, or is likely permanently or materially to impair, the health of the applicant. Eminent Household of C. W. v. Prater, 23: 917, 103 Pac. 558, 24 Okla. 214. 331. The seriousness of an illness is a question of fact, and where, upon an ap- plication for insurance, 1 the correctness of the answers in which is affirmed to be true to the best of the applicant's knowledge and belief, the applicant in good faith states that he has had no serious illness or dis- ease, when in fact he has had three attacks of pneumonia, of one of which he informs the medical examiner for the insurance corn- Digest 1-52 I*R.A.(N.S.) pany at the time of his examination, there is no ground for a forfeiture of the policy. Smith v. Prudential Ins. Co. (N. J. Err. & App.) 43: 431, 85 Atl. 190, 83 N. J. L. 719. 332. That an applicant for life insur- ance is not asked as to a particular disease with which she is afflicted or as to the physician who attended her, will not per- mit enforcement of the policy, notwithstand- ing she died of such disease, where she af- firmed in the application that she was in sound health, and had never been seriously ill, and the policy and application both pro- vide that no liability shall be incurred by the company unless the policy is delivered while assured is in good health. Haapa v. Metropolitan L. Ins. Co. 16: 1165, 114 N. W. 380, 150 Mich. 467. 333. A local affection is not a local dis- ease within the meaning of a warranty in a policy of insurance, unless such affection has sufficiently developed to have some bear- ing on the general health. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 334. The phrase "spitting or coughing of blood," as used in a question propounded by a medical examiner to an applicant for a life insurance policy, as to whether she ever had "spitting or coughing of blood," means the disorder so called, whether the blood comes from the lungs or from the stomach. Eminent Household of C. W. v. Prater, 23: 917, 103 Pac. 558, 24 Okla. 214. (Annotated) 335. That a post mortem examination of an insured who died suddenly eight days after the issuance of the policy showed a blood clot in the heart and evidence of pleurisy does not show breach of a warranty that applicant was to the best of his knowl- edge and belief in sound health and physi- cal condition, that his answers to questions were literally true, that an untrue state- ment or concealment of facts intentional or otherwise would avoid the policy, and that he had never had pleurisy, pneumonia, or disease of the heart, in the absence of anything to show that applicant knew of such conditions. Lakka v. Modern Brother- hood, 49: 902, 143 N. W. 513, 163 Iowa, 159. 336. A negative answer to a question in an application for insurance the answers in which are made warranties, as to having had la grippe, will avoid the policy where it appears that the applicant had had such disease, although it was a very light attack and may have had nothing to do with his death. Beard v. Royal Neighbors of Ameri- ca, 19: 798, 99 Pac. 83, 53 Or. 102. 337. A warranty that an applicant for ac- cident insurance has never had bronchitis does not refer to a temporary acute attack of the disease, followed by complete recov- ery. French v. Fidelity & C. Co. 17:1011, 115 N. W. 869, 135 Wis. 259. 338. Consultation by an applicant for in- surance with a physician, within the mean- ing of a question in the application, is shown by the fact that her husband notified the physician that she was indisposed and asked him to attend her, and that, upon his arrival at the house, she advised him of INSURANCE, III. e, 2. 1563 her symptoms and received aid from him. Beard v. Royal Neighbors of America, 19: 798, 99 Pac. 83, 53 Or. 102. 339. A question in an application for life insurance, "How long since you were at- tended by a physician, or professionally consulted one?" means not when a physi- cian was first consulted, but when he was last consulted. Crosse v. Supreme Lodge, K. & L. of H. 45: 162, 98 N. E. 261, 254 111. SO. ( Annotated ) 340. Questions in an application for in- surance as to time since a physician was consulted, the disease, the name of the physician, and the present state of health, are material, so that, if the answers are warranted to be true, their falsity will pre- vent recovery on the policy. Crosse v. Supreme Lodge, K. & L. of H. 45: 162, 93 N. E. 261, 254 111. 80. 341. If an applicant for life insurance warrants the truthfulness of his answer to the question, "Have you consulted any other physician?" and agrees that the poli- cy issued in consideration of the warranty shall be void if the answer be false, the liability of the insurer depends upon the truthfulness of the answer. Metropolitan L. Ins. Co. v. Brubaker, 18: 362, 96 Pac. 62, 77 Kan. 599. 342. An applicant for life insurance who, for motives of his own, has sought and ob- tained a professional interview with a phy- sician regarding the state of his health, can- not truthfully answer the question, "Have you consulted any ('her physician?" in the negative, merely because the interview con- cerned some temporary ailment or indis- position, slight in character, and not seri- ously affecting health. Metropolitan L. Ins. Co. v. Brubaker, 18: 362, 96 Pac. 62, 77 Kan. 599. (Annotated) Policy on life of married woman. Waiver of representation as to pregnancy, see infra, 593, 594. See also supra, 321. 343. An agreement or stipulation in a con- tract of fraternal insurance with a married woman, that the policy shall not take ef- fect unless delivered to her "while in sound health," is not violated by reason of the applicant being pregnant at the time of the delivery of the policy. Rasicot v. Royal Neighbors of America, 29: 433, 108 Pac. 1048, 18 Idaho, 85. 344. Confinement in childbirth is not a "personal ailment," within the meaning of a fraternal benefit certificate, so as to avoid it because of a negative answer, which was made a warranty, as to whether the appli- cant had, within seven years, consulted a physician in regard to personal ailment, where in fact the applicant had been attend- ed once by a physician during confinement, some three years prior thereto. Rasicot v. Royal Neighbors of America, 29: 433, 108 Pac. 1048, 18 Idaho, 85. 345. A negative answer to a question in an application for insurance, the answers in which are made warranties, as to wheth- er the applicant was then pregnant, will Digest 1-52 L.R.A.(N.S.) not avoid the policy, where it appears that the applicant did not know of her pregnancy at the time, that her answer was in good faith and honestly made, and that her preg- nancy at the time of the issuance of the policy in no way contributed to the ultimate cause of death, nor increased the risk. Rasicot v. Royal Neighbors of America, 29: 433, 108 Pac. 1048, 18 Idaho, 85. 346. A married woman applying for life insurance in a fraternal benefit society that issues policies on the lives of married wom- en is not required to inform the society of evidence of pregnancy discovered subse- quently to her application and physical ex- amination. Merriman v. Grand Lodge D. of H. 8: 983, 110 N. W. 302, 77 Neb. 544. ( Annotated ) 347. That a married woman holding a policy of life insurance signs a certificate when she is pregnant, stating that she is in sound bodily health, is not such a false representation as will invalidate the pol- icy, if the certificate is otherwise true. Mer- riman v. Grand Lodge D. of H. 8: 983, 110 N. W. 302, 77 Neb. 544. 348. A man who procures his wife to in- sure her life for his benefit cannot take ad- vantage of her ignorance of a physical con- dition making her uninsurable, of which he knows, to justify answers in the application which, if made by her with knowledge of her true condition, would have rendered the policy void. Gamble v. Metropolitan L. Ins. Co. 41: 1199, 75 S. E. 788, 92 S. C. 451. (Annotated) Habits. Opinion evidence as to intemperance of in- sured, see EVIDENCE, 1095. Evidence of plea of guilty to charge of drunkenness, to show misrepresentation as to habits, see EVIDENCE, 1543. Evidence of reputation as to habits, see EVIDENCE, 1559. Permitting large number of witnesses to tes- tify as to temperance of insured, see TRIAL, 30. 349. A condition in a fraternal benefit certificate, that all payments made and all rights accrued thereunder shall be forfeited, and that the certificate shall be void if the member becomes so intemperate in the use of drugs or alcoholic liquors as permanently to impair his health or to produce delirium tremens, is self-executing. Modern Wood- men of America v. Breckenridge, 10: 136, 89 Pac. 661, 75 Kan. 373. 350. The expression "intemperate use of intoxicating liquors," in a contract of in- surance, means such an indulgence in in- toxicants as tends to impair the health of the insured, or render the insurance risk more hazardous. O'Connor v. Modern Wood- men of America, 25: 1244, 124 N. W. 454, 110 Minn. 18. 351. A benefit certificate is not vitiated, in the absence of fraud or intentional con- cealment, by the answer "When I come to town, beer" to the question, "If you use intoxicants at all, state kind and quantity consumed," where question and answer were by the certificate made a part thereof and 1564 INSURANCE, III. e, 2. it was provided that, if such information was not literally true in every respect, the benefit certificate would be void, although the applicant was in the habit of drinking both beer and whiskyy as the answer was truthful so far as responsive and was suf- ficient to inform the society that the ap- plicant to some extent was in the habit of drinking intoxicants. O'Connor v. Modern Woodmen of America, 25: 1244, 124 N. W. 454, 110 Minn. 18. 352. Evidence that insured used whisky to some extent does not show a breach of warranty in answering a question in an application for insurance: "Do you use either malt or spirituous liquors daily or nearly every day?" that he used a glass of beer occasionally; and a question: "If BO, what is used and the approximate amounts?" Answer explicitly, by answer- ing, "beer." Lakka v. Modern Brotherhood, 49: 902, 143 N. W. 513, 163 Iowa, 159. c. Occupation. (See also same heading in Digest L.R.A. 1-70.) Provision in by-law as to engaging in manu- facture or sale of liquor, see supra, 106. 353. An administrator of the keeper of a saloon who renews the license in his own name, and continues the business through employees for the benefit of the estate, is an agent within the meaning of a provision in a benefit certificate denying the right to benefits to every person engaged in the sale of liquors either as proprietor or agent. National Council J. O. U. A. M. v. Thomp- son, 45: 1148, 156 S. W. 132, 153 Ky. 636. 354. That during the first year of the life of an insurance policy insured engaged in a business which he is prohibited from en- gaging in for a year does not prevent re- covery on the policy for loss resulting after the expiration of the year, if engaging in that business during the prohibited time did not contribute to the loss. Edmonds v. Mutual L. Ins. Co. 50: 592, 144 X. W. 718, 33 S. D. 55. (Annotated) 355. A provision of an accident policy, that if insured change his business or vo- cation, he must immediately notify the sec- retary of the company thereof, and that unless the board of directors consent to the change the policy shall terminate upon the tenth day thereafter, does not require no- tice of a casual or incidental resort to other activities for thirty days, when the vocation described in the policy is not abandoned, and the insured expects within a few days to continue his usual vocation, as the phange referred to means the substi- tution of one business or vocation for an- other as the usual business or vocation of the insured. Taylor v. Illinois Commercial Men's Asso. 24: 1174, 122 N. W. 41, 84 Neb. 799. (Annotated) Digest 1-52 L.R.A.(N.S.) d. Other insurance; previous applications. (See also same heading in Digest L.R.A.. 1-70.) Other insurance. Other insurance, on property, see supra, III. e, 1, e. Waiver of provision as to other insurance, see infra, 583. 356. Failure to disclose policies insuring against death or injury or from accident, in response to questions in an application for life insurance as to the amount of insurance carried by the applicant on his life, and whether he had any other insurance in force on his life, does not constitute a breach of warranty of the truth of the statements made in such application. Metropolitan L. Ins. Co. v. Montreal Coal & Towing Co. 1 B. R. C. 298, 35 Can. S. 0. 266. Also Re- ported in 25 Canadian Law Times Occ. N. 4. ( Annotated. ) Previous applications. As ground for cancelation of policy, see supra, 153. Question for jury as to intent of applicant in making statement as to, see TRIAL, 308. 357. Where a person in good faith ap- plies to an insurance company for insur- ance, and in the application states that there is no application for insurance pend- ing in another company, and subsequent to the application and prior to the issuance of the policy thereon, application for in- surance is made to another company without informing the first company, the policy sub- sequently issued by the first company is not avoided thereby, where it contains no re- quirement that the condition that no appli- cation to another company is pending should continue until the policy is issued. Smith v. Prudential Ins. Co. (N. J. Err. & App.) 43: 431, 85 Atl. 190, 83 N. J. L. 719. 358. A printed statement in an applica- tion for accident insurance making the ap- plicant assert that no application made by him for insurance had been declined, and no accident, disease, or health policy had been canceled or renewal refused, does not include life policies, where the word "pol- icy" is uniformly used elsewhere in the ap- plication as referring to accident or health policies. Mays v. New Amsterdam Casual- ty Co. 46:1108, 40 App. D. C. 24.). 359. False denial by an applicant for life insurance, of rejection by other com- panies, avoids the policy as matter of law, if it would not have been issued had the insurer known of such rejection, although the statute provides that no misrepresenta- tion shall prevent a recovery on the policy unless material and fraudulent. Masonic L. Asso. v. Robinson, 41: 505, 147 S. W. 882, 149 Ky. 80. 360. A beneficial association issuing death benefit certificates is not within the mean- ing of a question in an insurance application as to whether or not applicant has ever been INSURANCE, III. f, 1. 1565 rejected by any company. Lyon v. United Moderns, 4: 247, 83 Pac* 804," 148 Cal. 470. (Annotated) 361. Rejection by a life insurance com- pany is not within the scope of a question in an application for a health and accident policy, as to whether or not any company, society, or association ever rejected appli- cant's application, canceled his policy, or declined to renew the same, or refused com- pensation for disability, and therefore a false statement with reference thereto will not avoid accident policy. Wright v. Fra- ternities Health & Acci. Asso. 32: 461, 78 Atl. 475, 107 Me. 418. (Annotated) e. Family history. (See also same heading in Digest L.R.A. 1-10.) 362. An inquiry made of an applicant for insurance, as to the cause of his father's death, calls, not for a definite statement of fact, but for the bona fide belief and opin- ion of the applicant. Gilroy v. Supreme Court I. O. O. F. (N. J. Err. & App.) 14: 632, 67 Atl. 1037, 75 N. J. L. 584. f. Incontestability. (See also same heading in Digest L.R.A. 1-10.) f 363. A provision in a life insurance policy, that it shall be incontestable from its date, is void as against public policy, so far as it includes fraud in procuring the policy. Reagan v. Union Mut. L. Tns. Co. 2: 821, 76 N. E. 217, 189 Mass. 555. (Annotated) 364. An incontestable clause in an insur- ance policy does not prevent the insurer from resisting payment on the ground that it was issued to one having no insurable interest, and is therefore void as against public policy. Bromley v. Washington L. Ins. Co. 5: 747, 92 S. W. 17, 122 Ky. 402. (Annotated) 365. A provision in an insurance policy that, if the policy shall have been in con- tinuous force for three years, it shall there- after be incontestable, cannot be held to be inapplicable to a policy delivered when the insured was not in good health, on the theory that because the policy provided that it should not take effect until delivered while the insured was in good health, it never was in force. Mutual Reserve Fund L. Asso. v. Austin, 6: 1064, 142 Fed. 398, 73 C. C. A. 498. (Annotated) 366. A provision that, after payment of a certain number of premiums, an insurance policy shall become incontestable, does not *pply to contests for failure to pay pre- miums. Thompson v. Fidelity Attit. L. Ina Co. 6: 1039, 92 S. W. 1098, 116 Tenn. 557. ( Annotated ) 367. A provision in a life insurance pol- icy that it shall be incontestable after one year applies to proceedings taken to secure reinstatement after default in payment of Digest 1-52 L.R.A. (N.S.) premiums, so that after the lapse of a year from reinstatement the policy cannot be avoided for fraud in securing it, although insured agrees in his application for re- instatement that the policy shall be void if any statement is untrue. Great West- ern. L. Ins. Co. v. Snavely, 46:1056, 206 Fed. 20, 124 C. C. A. 154. ' (Annotated) 368. False answers in an application for insurance which are warranted to be true will not avoid the policy after it has by its terms become incontestable. Indiana Nat. L. Ins. Co. v. McGinnis, 45: 192, 101 N. E, 289, 180 Ind. 9. 369. A statute prescribing a period in which relief can be obtained from contracts secured by fraud has no effect upon an in- contestable clause in a life insurance pol- icy, although such 'Clause makes the policy incontestable in a much shorter time than the statute allows for obtaining relief from a fraudulent contract. Citizens' L. Ins. Co. v. McClure, 27: 1026, 127 S. W. 749, 138 Ky. 138. 370. Retention of a life insurance policy issued without application, which contains provisions that it shall be void if, at the date of its delivery, insured is not in good health, or if he has been rejected by other insurers, has been attended by a physician, or has had certain diseases, by one within the operation of such provisions, is not such fraud as will prevent the operation of a clause in the policy making it incon- testable from date except for fraud. Inde- pendent L. Ins. Co. v. Rider, 42: 560, 150 S. W. 649, 150 Ky. 505. Statements as to age. 371. Misrepresentation by the beneficiary in making proof of death as to the age of the insured will not defeat his rights under a policy that is incontestable by reason of the fact that the prescriptive period hag elapsed. Mutual Life Ins. Co. v. New, 27! 431, 51 So. 61, 125 La. 41. 372. A clause making a life insurance policy incontestable after two years if the premiums have been paid does not avoid a clause providing for an equitable readjust- ment of the benefit in case of a misstate- rnent of the age of the insured, as both clauses are general, the former being mere- ly an agreed term of prescription between the insurer and the insured. Mutual Life Ins. Co. v. New, 27: 431, 51 So. 61, 125 La. 41. /. Forfeiture. 1. In general. (See also same heading in Di^st L.R.A. 1-10.) . Provisions of by-laws as to, see supra, 103. Forfeiture for breach of warranty, see supra, HI. e. Reinstatement, see infra, III. g. Waiver respecting, see infra, V. b. By voluntary exposure or increased hazard, see infra, VI. b, 3, f. By obtaining divorce, see infra, 829-831. 1566 INSURANCE, III. f, 2. Raising question of nonforfeiture for first time on appeal, see APPEAL AND ERROR, 745. Expulsion from benevolent societies general- ly, see BENEVOLENT SOCIETIES, IV. Contract imposing conditions on right to paid-up policy in case of forfeiture, .see CONTRACTS, 443. Evidence to rebut proof of breach of con- dition, see EVIDENCE, 1923. 373. Failure for more than two years to make an attempt to secure relief from what is alleged to be an irregular forfeiture of a mutual benefit certificate, or to tender dues and assessments thereon, will be regarded as an acquiescence in the forfeiture. Sheridan v. Modern Woodmen, 7: 973, 87 Pac. 127, 44 Wash. 230. 374. Insurance policies should not be con- struer 1 to work a forfeiture of either party's rights unless it plainly appears that such was the intention of both contracting par- ties. Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. 28: 593, 106 Pac. 194, 56 Wash. 681, 110 Pac. 36, 59 Wash. 501. 375. The "padding" of an inventory of merchandise by false entries of articles not on hand will work a forfeiture of a fire insurance policy, when such entries can- not be explained on any reasonable theory of honest mistake. Alfred Hiller Co. v. Insurance Co. of N. A. 32: 453, 52 So. 104, 125 La. 938. (Annotated) 376. The act of an agent to whom an in- sured has delegated the duty of doing every- thing required to make complete proof of loss, without question or supervision, in presenting false- and fraudulent vouchers to the company pursuant to a demand made by the company, is imputable to the insured, and the policy is thereby vitiated, where it contains a provision that it should be- come void in case of any fraud or false swearing by the insured touching any mat- ter relating to the insurance or the subject thereof, whether before or after a loss. Mick v. Corporation of Royal Exch. Assur. (N. J. Err. & App.) 52: 1074, 91 Atl. 102, N. J. . (Annotated) 2, For nonpayment of premiums or assessments, (See also same heading in Digest L.R.A. 1-70.) Right to paid-up policy or extended insur- ance after forfeiture, see supra, 164- 174. Effect of incontestable clause, see supra, 366. Waiver as^o, see infra, 487, 495. Cancelation of policy for nonpayment as a defense, see infra, 861. Computation of days of grace allowed for payment of premium, see TIME, 12. See also supra, 11, 185. 377. The courts will enforce an agreement that failure to pay an insurance premium when due will work a forfeiture of the pol- icy whether the condition be regarded as Digest 1-52 L.R.A. (N.S.) precedent or subsequent. Thompson v. Fi- delity Mut. L. Ins. Co. 6: 1039, 92 S. W. 1098, 116 Tenn. 557. 378. Under a provision in a fire insurance policy that all assessments must be paid within thirty days after notice or the policy will be null, the expiration of thirty days without payment annuls the policy without action on the part of the insurer. Mutual Fire Co. v. Maple, 38: 726, 119 Pac. 484, 60 Or. 359. 379. The failure to pay any except the first annual instalment of premium due on a life insurance policy which contains no provision for a forfeiture thereof for non- payment of premium does not work a forfei- ture of the policy, and all that the insurer can demand for such failure is the right to- set off against the indemnity it has bound it- self to pay, the amount of the premiums so- unpaid, with interest thereon. Haas v. Mu- tual L. Ins. Co. 26: 747, 121 N. W. 996, 84 Neb. 682. (Annotated) 380. A policy of life insurance for the term of one year, at a premium payable quarterly, which is subject to a condition that it shall "be null and void and of no effect if at the time of the death of the person upon whose life this policy is granted any of the above mentioned pre- miums, as well half yearly or quarterly as annually, shall be more than 30 days in arrears," is prevented from lapsing 'by a payment of the premium within the days of grace, although after the death of the as- sured. Stuart v. Freeman, 2 B. R. C. 183, [1903] 1 K. B. 47. Also Reported in 72 L. J. K. B. N. S. -1, 51 Week. Rep. 211, 87 L. T. N. S. 516, 19 Times L. R. 24. ( Annotated ) Premium note. Waiver as to, see infra, 489, 582, 585, 587, 588, 601, 606. 381. A provision in premium notes given on a policy of fine insurance that "if the notes are not paid at maturity, the policy shall be null and void," is a valid provision, but may be waived by the company. Shaw- nee Mut. F. Ins. Co. v. Cannedy, 44: 376^ 129 Pac. 865, 36 Okla. 733. 382. A fire insurance policy is not invali- dated by nonpayment of premium notes at maturity, where no reference is made to them in the policy, and' its validity is in no way made contingent upon their payment. Arkansas Ins. Co. v. Cox, 20: 775, 98 Pac. 552, 21 Okla. 873. 383. A provision in a life insurance policy making it void in case of failure to pay a premium note does not apply to a note taken by the agent for his share of the first premium, the share belonging to the com- pany being paid by the applicant in cash, although the note is afterwards turned over to the company for collection. Reppond v. National L. Ins. Co. n: 981, 101 S. W. 786, 100 Tex. 519. 384. Under a clause in a note given for an insurance premium, that "for any loss oc- curring by death after this note is due and remains unpaid then said company shall not be liable," the policy is not forfeited by fail- INSURANCE, III. f, 2. 1567 ure to make prompt payment, but the lia- bility of the insurer is merely suspended during the default, permitting the insured by payment to restore the liability. Kav- anaugh v. Security Trust & L. Ins. Co. 7: 253, 96 S. W. 499, 117 Tenn. 33. 385. A policy of life insurance delivered to the insured upon his executing notes for the initial premium, and which, together with the notes, provides that, if any obliga- tion given for premiums shall not be paid when due. the policy shall be void until duly reinstated during the lifetime and good health of the insured, becomes void upon the failure of the insured to pay one of the notes, and, if he is not reinstated before his death, no right of recovery upon it exists. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 386. The mere insertion, by an agent of a life insurance company, of a pencil memoran- dum of the number of the policy, in a blank left for that purpose in notes given in lieu of the prepayment of the cash premium, after they were signed, will not, in the ab- sence of any question as to the identity of the notes, or of any fraudulent purpose, prevent the forfeiture of the policy for non- payment in accordance with a stipulation contained in the notes. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 387. That the brother of one who had given a note for a life insurance premium, but who was absent from home when it fell due, voluntarily, and not as agent of the in- sured, went to the bank and to the office of the local agent of the insurance company, with the intention of paying the note, but found both places closed, will not prevent a forfeiture of the policy for nonpayment. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 388. That one insured was sick and un- able to attend to business at the time when a premium note fell due, and so remained until he died, will not prevent a forfeiture of the policy for nonpayment, in accordance with the express terms contained in it and in the premium note. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. (Annotated) 389. An option provided for in a life in- surance policy stipulating that, upon satis- factory proof to the company of the inca- pacity or disability of the insured, the pre- miums payable for the remaining years shall cease or be remitted during the continuance of the incapacity, and that the insurance shall be paid as an endowment at the age of eighty, or at death if before that age, was not rendered operative by the fact that the insured was sick with typhoid fever when one of the premium notes fell due, and that he so remained until his death some weeks thereafter. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 390. A provision in a rider attached to a life insurance policy, that, upon acceptance by the company of satisfactory proof of the total and permanent incapacity or disability of the insured, either by accident or bodily Digest 1-52 L.R.A.CN.S.) or mental disorder, he should be entitled, in lieu of other benefits and advantages under the policy, to either one of two options, will not prevent a forfeiture of the policy for nonpayment of a premium note falling due during the last illness of the insured, where it does not appear that the stipulated proof had been received or accepted by the company, or that either of the options had been exercised. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 391. One who has given his note in settle- ment of a life insurance premium, which note, although not on its face payable or to be negotiated at a bank, is in fact sent through a bank for. collection, is entitled to the entire day of maturity in which to make payment, without a forfeiture resulting from default in payment, and his right to pay is not terminated at the close of bank- ing hours. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 392. Presentation of a note given for a life insurance premium and made payable in a certain city, at the address which the maker appended to his signature, is suffi- cient, in the absence of any change of ad- dress and notice thereof to the payee, al- though the maker was on that day absent from the city. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. Notice. Estoppel by customary giving of, see infra, 562. Conflict of laws as to, see CONFLICT OF LAWS, 46. See also supra, 93; infra, 405. 393. Although a contract for accident in- surance, the premiums on which are to be paid monthly, expressly provides that they must be paid on the first day of each month, without notice, yet, if for ten months the in- sured is sent notice of the maturity of the premium, with a request that it be sent in a self-addressed envelop, the insurer can- not suddenly, without warning, cease to send the notice, and forfeit the policy for nonpayment, which occurs because the as- sured has, in good faith, waited for the usu- al notice; especially where the payments were to be entered in a book which must al- ways be presented with the payment, so that assured might well assume that the only safe way of preserving the book was in send- ing it as directed by the insurer, to a post- office address designated by it. Knoebel v. North American Acci. Ins. Co. 20: 1037, 115 N. W. 1094, 135 Wis. 424. (Annotated) 394. The mere mailing of a notice prop- erly addressed and stamped is not, in the absence of a statute or contract provision, a compliance with a custom to give notice of I the maturing of a note given for an insur- ance premium, where the letter never reach- es its destination, although the custom has been to give notice by mail. Kavanaugh v. Security Trust & L. Ins. Co. 7: 253, 96 S. W. 499, 117 Tenn. 33. (Annotated) 395. Where for eight years an insurance company has permitted an assignee of a policy to pay the annual premium by notes falling due quarterly, and has always noti- 1568 INSURANCE, III. g. fied him when a note was falling due, the policy cannot be forfeited for nonpayment of a note, unless the customary notice reached him. Kavanaugh v. Security Trust & L. Ins. Co. 7: 253, 96 S. W. 499, 117 Tenn. 33. 396. The duty of an insured promptly to pay his premiums is complied with in case, through miscarriage of the mail, a cus- tomary notice of the maturity of a premium does not reach him, if, upon subsequently receiving notice, he promptly pays the pre- mium due. Kavanaugh v. Security Trust & L. Ins. Co. 7: 253, 96 S. W. 499, 117 Tenn. 33. (Annotated) Mutual benefit assessment. Effect of demanding, accepting and retain- ing assessment, see infra, V. b, 5, d'. Right to reinstatement on payment of, see infra, 407, 411-413. Mutual benefit assessments generally, see infra, 427-433. 397. A single act of the clerk of a local camp of a mutual benefit society in at- tempting to contract notwithstanding a pro- vision of the laws of the order that no act on his part shall have the effect of creating a liability on the part of the society, or of waiving any right belonging to it; which act consists of promising the representatives of an insane member to notify them of as- sessments, will not bind the society so as to prevent its claiming a forfeiture of the certificate for nonpayment of dues, notice of which is regularly mailed to the member, although no notice is given to the repre- sentatives according to the promise. Sheri- dan v. Modern Woodmen of America, 7: 973, 87 Pac. 127, 44 Wash. 230. 398. A member of a mutual benefit society cannot be declared in default for nonpay- ment of assessments, if he has paid in enough money to meet the assessments, but it had been wrongfully diverted to other purposes in excess of the authority of the society. Clark v. Iowa State Traveling Men's Asso. 42:631, 135 N. W. 1114, 156 Iowa, 201. 399. Failure to pay dues ipso facto for- feits a mutual benefit certificate, where the constitution and by-laws of the society pro- vide that upon such failure the benefit cer- tificate shall become absolutely void, and all liability of the society thereon shall thereupon end. Kennedy v. Grand Frater- nity, 25: 78, 92 Pac. 971, 36 Mont. 325. 400. No declaration of forfeiture is nec- essary to terminate the rights of a member of a mutual benefit society for nonpayment of dues where the by-laws provide that any member shall ipso facto forfeit his member- ship who fails to pay his assessment for thirty days after notice. Knights of Co- lumbus v. Burroughs, 17: 246, 60 S. E. 40, 107 Va. 671. (Annotated) 401. Forfeiture of the rights of a member of a mutual benefit society for the nonpay- ment of dues is not prevented by the fact that they were paid by the local branch of the order to which he belonged, where the local branch forwarded the money without complying with the provisions of a by-law Digest 1-52 L.R.A.(N.S.) that no money shall be paid from the treas- ury unless by a two-thirds vote of the mem- bers at a regular meeting held subsequently to a regular meeting at which notice of in- tention to pay and the purpose and amount are given and read. Knights of Columbus v. Burroughs, 17: 246, 60 S. E. 40, 107 Va. 671. 402. The mere fact that a mutual benefit association owes a member for services an amount in excess of an assessment against him for premium on his certificate does not require an application of it upon the .assess- ment, so as to prevent a forfeiture of the certificate for nonpayment of dues. Cay- wood v. Supreme Lodge K. & L. of H. 23: 304, 86 N. E. 482, 171 Ind. 410. (Annotated) 403. Insanity of a member of a mutual benefit society is no excuse for noncompli- ance with his contract as to payment of dues. Sheridan v. Modern Woodmen of America, 7 : 973, 87 Pac. 127, 44 Wash. 230. 404. That a member of a mutual benefit society is insane does not relieve him of the consequences of neglect to pay dues if there is no provision to that effect in the rules of the order. McCann v. Supreme Conclave, I. 0. H. 46:537, 87 Atl. ^83, 119 Md. 655. (Annotated) 405. Publishing notice of assessments in an official paper, without anything to show that it was sent to a certificate holder, is not a sufficient compliance with a rule of a mutual benefit society that printed no- tices of assessment shall be made and sent in such manner as the grand legion shall provide, to put the member in default for nonpayment of the assessment. Grand Le- gion of 111. S. K. of A. v. Beaty, 8: 1124. 79 N. E. 565, 224 111. 346. 406. A local branch of a mutual benefit insurance company which has provided for sick benefits for which the general order has assumed no responsibility has no au- thority to apply an amount due a member for such benefits in payment of an assess- ment against him, so as to prevent his cer- tificate from lapsing for nonpayment of dues, where the rules of the order require his dues to be apportioned between the death benefit fund and the general fund of the order. McCann v. Supreme Con- clave, I. O. H. 46:537, 87 Atl. 383, 119 Md. 655. g. Reinstatement; revival. (See also same heading in Digest L.R.A 1-70. ) Effect of incontestable clause, see supra, 367. ' Effect of demanding, accepting and retain- ing premium or assessment, see infra, V. b, 5, d. Judicial review of discretion of insurance company as to reinstatement, see COURTS, 169, 170. Burden of proof as to reinstatement, see EVIDENCE, 545. .*.A.n..v ~;".-. r INSURANCE, III. h. 1569 407. The beneficiary in a mutual benefit certificate has no right to reinstate the mem- ber against his will by paying assessments which he has passed. Proctor v. United Order of G. S. 25: 370, 89 N. E. 1042, 203 Mass. 587. 403. A provision in a mutual benefit cer- tificate that a member who has forfeited his certificate may be reinstated by present- ing an application which shall be approved by the secretary refers to the secretary of the grand lodge. Kennedy v. Grand Fra- ternity, 25: 78, 92 Pac. 971, 36 Mont. 325. 409. The secretary of a mutual benefit society, to whom evidence of good health is submitted with an application for reinstate- ment by a member who has forfeited hia rights, does not, by failure to call for ad- ditional evidence, tacitly admit that the evidence submitted is sufficient, so as to re- quire him to approve the application where he has a discretion whether to approve or not. Kennedy v. Grand Fraternity, 25: 78, 92 Pac. 971, 36 Mont. 325. 410. The refusal to approve a certificate of health by an applicant for reinstatement to a mutual benefit society cannot be said to be erroneous where the applicant shows that he has recently had pneumonia, al- though he further states that he feels better "at the present time" than he has for years, where serious after effects are shown some- times to follow pneumonia. Kennedy v. Grand Fraternity, 25: 78, 92 Pac. 971, 36 Mont. 325. 41L Payment of arrears alone is not sufficient to reinstate a member of a mutual benefit society who has forfeited his certifi- cate by nonpayment of dues, under a pro- vision of the constitution that one who has forfeited his certificate by nonpayment of dues may, if in good health, be reinstated by presenting an application accompanied by the arrears, and, in every such applica- tion, applicant shall furnish satisfactory proof that he is in good health, but ap- proval by the proper officer of the evidence of health is also necessary. Kennedy v. Grand Fraternity, 25:78, 92 Pac. 971, 36 Mont. 325. 412. Payment by a member of a mutual benefit society of arrears of dues, for non- payment of which he has been suspended, to the clerk of the local camp at a time when he is not in good health, will not, although it is received and forwarded by the clerk, effect a reinstatement, where, by the laws of the order, the clerk had no authority to receive such payment unless the suspended member was in good health, as such member was bound to take notice of the rule, and therefore knew that his payment was in- effectual. Bixler v. Modern Woodmen of America, 38: 571, 72 S. E. 704, 112 Va. 678. (Annotated) 413. A voluntary inquiry by the brother of one insured, made at the bank several days after the maturity of a premium note given by the insured, and after it has been dishonored and returned to the company, and an offer to then pay the local agent, are not sufficient to reinstate the policy or Digest 1-52 L.R.A.(N.S.) to prevent a forfeiture. Hipp v. Fidelity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 414. A standard insurance policy which by its terms, becomes void by vacancy of the premises, is not revived by reoccupancy of the property before loss. Dolliver v. Granite State F. Ins. Co. 50: 1106, 89 Atl. 8, 111 Me. 275. h. Premiums and assessments. (See also same heading in Digest L.R.A. 1-10.) Forfeiture for nonpayment, see supra, III. f, 2. Reinstatement on payment of overdue premi- ums and assessments, see supra, III. g. Demand, acceptance, and retention of, as waiver, see infra, V. b, 5, d. Effect of recital of receipt of premium, see infra, 565. Raising question of failure to pay for first time on appeal, see APPEAL AND ERROR, 747. Rendition of judgment on appeal in action to recover premium, see APPEAL AND ERROR, 1572. Error in admitting evidence of foreign stat- ute as to notice of maturity of premi- ums, see APPEAL AND ERROR, 840. Right to recover back, see ASSUMPSIT, 32. Secretary of local branch of fraternal society as agent of grand lodge for collection of, see BENEVOLENT SOCIETIES, 4. Compelling payment of unpaid portion of premium where insurance wrongfully grants rebate, see CONTRACTS, 580. Right of one violating contract to give support for life in return for proceeds of benefit certificate to recover assess- ments paid by him, see CONTRACTS, 696. Conclusiveness of acknowledgment of receipt of premium, see EVIDENCE, 916, 918. Evidence as to time of payment of premium, see EVIDENCE, 2330. Covenant of tenant to pay insurance premi- um, see LANDLORD AND TENANT, '34. Right to rely on invalidity of policy under general issue in action to enforce assess- ment thereon, see PLEADING, 483. Question for jury as to payment, see TRIAL, 663. Effect of provision after bequest of policy that legatee pay premiums, see WILLS, 417. Corroboration of witness as to payment of premiums, see WITNESSES, 20i. See also supra, 191; infra, 487, 495. Discrimination in rates, see supra, 1, 2. Constitutionality of statute requiring com- panies to maintain uniform rates, see CONSTITUTIONAL LAW, 698. Punishment of agent giving special rates, see CRIMINAL LAW, 245. Admissibility of evidence in action for pen- alty for rebating, see EVIDENCE, 2037. Right to share in penalty for rebating, see 99 PENALTIES, 5. 1570 INSURANCE, III. h. 415. A parol agreement as to rates differ- ent from those named in the policy, made by an insurance agent to secure business which had been carried by a rival company, is not binding on the insurer, where the policy provides that no provision or condi- tion of the policy shall be varied or al- tered by anyone unless by written consent of the president or secretary of the com- pany. Fidelity & Casualty Co. v. Fresno Flume & Irrig. Co. 37: 322, 119 Pac. 646, 161 Cal. 466. 416. That an applicant for insurance does not sign the policy does not absolve him from its provisions as to rates of premium and limitation of agent's authority, so as to enable him to enforce an oral agreement that the rates shall be different from those named in the policy. Fidelity & Casualty Co. v. Fresno Flume Irrig. Co. 37: 322, 119 Pac. 646, 161 Cal. 466. 417. An insurance company does not, by attempting to enforce by action the pay- ment of premiums on a policy of insurance written by an agent, ratify his unauthor- ized oral agreement as to rates, made to secure the business. Fidelity & Casualty Co. v. Fresno Flume & Irrig. Co. 37: 322, 119 Pac. 646, 161 Cal. 466. 418. The granting of a rebate on the pre- mium of a life-insurance policy, contrary to the provisions of a statute which merely for- bids such act under penalty of forfeiture of license to do business within the state, does not render the policy void, so as to permit the insured to recover back premiums paid thereon. Laun v. Pacific Mut. L. Ins. Co. 9: I2C4, 111 N. W. 660, 131 Wis. 555. 419. The return to an applicant for life insurance by the agent of a part of his commission is not within the operation of a statute forbidding life insurance companies to make discrimination in favor of particu- lar persons in rates charged for insurance and further providing that no company or agent shall pay or allow, as an inducement to insurance, any rebate of premium pay- able on the policy, or any valuable consid- eration or inducement whatever not specified in the policy. Interstate L. Assur. Co. v. Dalton, 23: 722, 165 Fed. 176, 91 C. C. A. 210. (Annotated) 420. An innocent partner in an insurance business cannot, after dissolution of the partnership, compel policy holders who se- cure a discount in premiums contrary to provisions of the statute from his copart- ner, to pay the unpaid portion of the premium, where the only remedy provided by the statute for its violation is the im- position of a penalty upon the insurer and a reduction on the face of the policy to the amount which could have been purchased by the premium paid. Way v. Pacific Lum- ber & Timber Co. 49: 147, 133 Pac. 595, 74 Wash. 332. (Annotated) 421 . The payment of the first premium on an insurance policy at the time of the ap- plication is not conclusively negatived by the answer "No" to the question in the ap- plication whether or not the premium was paid in advance, if the word is immediately .Digest 1-52 L.R.A.(N.S.) followed by a statement of cash and note* equal to the amount of the premium. Unterharnscheidt v. Missouri State L. Ins. Co. 45: 743, 138 N. W. 459, 160 Iowa, 223. 422. The payment of the first premium re- quired by an application for insurance, to be made before the policy will become bind- j ing, is not eil'ected by the release to the I applicant of the agent's commission and payment by the applicant of the balance, where the commission is not due until the premium has been paid in cash and the pol- icy issued, and all moneys received by the agent are to be held in trust for the com- pany, while the binding slip requires a re- turn of the money acknowledged to have been received, upon rejection of the policy. Union C. L. Ins. Co. v. Robinson, 8: 883, 14S Fed. 358, 78 C. C. A. 268. (Annotated) 423. The first premium on a policy of in- surance will, as between insurer and in- sured, be deemed to have been paid at the time the general agents of the insurer ex- tended credit therefor to the insured, where such premium was charged to the agents in their account with the insurer pursuant to the general course of dealings between them, which disregarded any arrangements the agents might make with insured as to credit, notwithstanding that a note covering the premium in question, given by the insured to the agents did not mature until after an attempt had been made to cancel the policy, nor until after the destruction of the prop- erty, and that, upon maturity, it was taken up by the agents from the bank by which it had been discounted, and was still held by them at the time of the action on the policy, they having been credited in the meantime in their account with the company with the amount of premium unearned at the time of the attempted cancelation. Buckley v. Citizens' Ins. Co. 13: 889, 81 N. E. 165, 188 N. Y. 399. Premium notes. Forfeiture of policy for nonpayment of, see supra, 381-392. Waiver as to, see infra, 582, 585, 587, 588, 601, 606. Defense in action on premium note, see BILLS AND NOTES, 204, 209. Admissibility of premium note in evidence, see EVIDENCE, 833. Taxation of, see TAXES, 67. See also supra, 423; infra, 479, 480. 424. One applying for a particular kind of life insurance has a right to rely upon the agent's agreement to furnish such kind of policy, and his failure to do so will pre- vent enforcement of the premium notes. Summers v. Alexander, 38: 787, 120 Pac. 601, 30 Okla. 198. 425. Where notes given for the premium on a policy of fire insurance provide that if they are not paid at maturity, "the whole amount of the premium should be con- sidered earned, and all notes given in set- tlement of such policy be due, and the policy be null and void, and so remain until the same shall be fully paid and the policy be reinstated by the company," are not paid at maturity, but are retained by ..,Vl;.-A. INSURANCE, III. h. 1571' the company, which continues to try to col- lect them, bringing suit upon one of them and obtaining judgment, and having the judgment docketed in the district court, the provision that, if the notes are not paid at maturity, the whole amount should be con- sidered earned, is a mere penalty which cannot be enforced. Shawnee Mut. F. Ins. Co. v. Cannedy, 44: 376, 129 Pac. 865, 36 Okla. 733. 426. Although agents are forbidden by a life insurance company to take notes for first premiums, the taking of a note will constitute a payment of the premium, where the custom is for the agent to take the note in his own name and charge it to himself in his account with the company, being re- sponsible for its collection. Kimbro v. New York L. Ins. Co. 12: 421, 108 N. W. 1025, 134 Iowa, 84. Mutual benefit assessments. Forfeiture for nonpayment of, see supra, 397-406. Failure to apply money due member for services upon assessment of dues, see PLEADING, 251, 642. See also supra, 100. 427. A mutual benefit society cannot deny, as against a member whose assessment rate it has undertaken to raise, the adop- tion of a constitutional provision fixing the assessment rate according to the age ol members when admitted, when thousands of pamphlets showing such provision as part of the constitution had been sent to mem- bers. Dowdall v. Supreme Council, C. M. B. A. 31: 417, 89 N. E. 1075, 196 N. Y. 405. 428. The amount of each assessment stip- ulated in a mutual benefit insurance con- tract cannot be - aised by the association without the consent of the member, al- though he has agreed to comply with all the laws, rules, and requirements of the order. Dowdall v. Supreme Council C. M. B. A. 31: 417, 89 N. E. 1075, 196 N. Y. 405. ( Annotated) 429. A member of a mutual insurance as- sociation cannot, in the absence of any ex- press contract obligation, be required to pay assessments for losses which occurred prior to his membership. Clark v. Iowa State Traveling Men's Asso. 42:631, 135 N. W. 1114, 156 Iowa, 201. 430. A by-law of a mutual insurance com- pany authorizing the directors to order an assessment to raise funds for the purpose of carrying out the aims and objects of the association does not justify the assessment of a member for losses occurring before his membership. Clark v. Iowa State Travel- ing Men's Asso. 42: 631, 135 N. W. 1114, 156 Iowa, 201. 431. A mutual insurance company whose constitution and by-laws do not provide for an emergency fund cannot justify as- sessments for the creation of such fund, without amending the constitution and by- laws in the manner pointed out in those instruments. Clark v. Iowa State Traveling Men's Asso. 42: 631, 135 N. W. 1114, 156 Iowa, 201. 432. Payment by a member of a mutual Digest 1-52 L.R.A.CN.S.) benefit society, of assessments which are being diverted to the formation of an emer- gency fund, does not show acquiescence on his part in the creation of such fund, if he had no knowledge of the fact, and, un- der the constitution and by-laws there was- no authority to create such fund. Clark v. Iowa State Traveling Men's Asso. 42: 631, 135 N. W. 11] 4, 156 Iowa, 201. 433. Consent by a member of a mutual benefit society, to be bound by all present and future rules of the order, does not em- power the society to make an increase in the rate of his assessment date from the inception of his policy, and deduct the amount owing by him under such arrange- ment from the face of his policy. Jaeger v. Grand Lodge of Order of Hermann's Sons, 39: 494, 135 N. W. 869, 149 Wis. 354. Refunding or recovery of premiums or assessments. Effect of offer to return premium receipt of which waived breach of condition, see infra, 495. See also infra, 466. 434. An applicant for life insurance who has been compelled to pay to an innocent holder a negotiable premium note given at the time of such application may re- cover from the company the amount so paid, where he has refused the policy be- cause it does not comply with the oral representations of the agent. Evans v. Central L. Ins. Co. 41: 1130, 125 Pac. 86, 87 Kan. 641. 435. One voluntarily paying insurance pre- miums with knowledge of the facts cannot recover them on the theory that they were not in accord with his contract. Jones v. Provident Sav. L. Assur. Soc. 25: 803, 61 S. E. 388, 147 N. C. 540. 436. In an action to recover back pre- miums paid on a policy of insurance which never attached, because the building insured was on leased ground the insurer is not obliged to return, or offer to return, pre- miums paid voluntarily before notice of the fact that the policy was not in force, as a condition precedent to availing itself of such fact as a defense. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 437. A benefit society from which a beneficiary certificate has been obtained by fraudulent understatement of the age of tne applicant is under no legal obligation to return what has been paid as assessments before it can claim that the contract is not in force. Tavlor v. Grand Lodge A. 0. U. W. 3: 114, 105 N. W. 408, 96 Mum. 441. . (Annotated) 438. One who secures, by fraudulent state- ments concerning his age, a mutual benefit certificate which provides for forfeiture of assessments in case of false statements on that subject, cannot demand a return of assessments paid when his fraud is dis- covered and the certificate declared for- feited. Elliott v. Knights of Modern Macca- bees, 13: 856, 89. Pac. 929, 46 Wash. 320. 439. One who has secured a mutual benefit certificate by fraud cannot, after the assess-- 1572 INSURANCE, JV. a. ments paid by him have been disbursed to pay claims against the association, demand a return of the amounts paid when his cer- tificate is forfeited for the fraud, since the parties cannot be placed in statu quo. Elli- ott v. Knights of Modern Maccabees, 13: 856, 89 Pac. 929, 46 VVash. 320. 440. To entitle an insurance company to cancelation of a policy because of fraudu- lent statements in the application, it must return the premiums paid, although the contract provides that in case of such state- ment all payments shall be forfeited. Met- ropolitan L. Ins. Co. v. Freedman, 32: 298, 123 N. W. 547, 159 Mich. 114. ( Annotated ) 441. An insurer need not return or tender the premiums received, as a condition of setting up as a defense the death of the insured from an excepted cause, since the insurance contracted for has been given. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. 442. Beneficiaries of a life-insurance con- tract have, upon the repudiation of the pol- icy by the company, no such interest in it that enables them to recover the premiums paid, that right being vested in the insured; nor are they entitled to damages where the law recognizes the right of the insured to dispose of the policy by assignment, will, or gift, without their consent. Slocum v. Northwestern Nat. L. Ins. Co. 14: 1110, 115 N. W. 796, 135 Wis. 288. (Annotated) 443. The right of an assured, who has been induced to "continue to pay premiums on a policy of insurance by the false repre- sentations of the insurer's agent, to rescind the policy and recover the premiums in an action for money had and received, is not affected by the fact that while the policy was in force the insurer was under a con- tingent liability; since a mere risk of that kind, which has not produced any benefit in fact to the assured, is not a part per- formance so as to bar the assured from the exercise of an option to avoid it. Kettle- well v. Refuge Assur. Co. 3 B. R. C. 844, [1908] 1 K. B. 545. Also Reported in 77 L. J. K. B. N. S. 421, 97 L. T. N. S. 896, 24 Times L. R. 217, 52 Sol. Jo. 158. ( Annotated ) 444. One who, in reliance upon the repre- sentation of the agent of an insurer that an insurance effected by him upon the life of another person would be a valid insur- ance, has taken out such an insurance, is not, assuming such insurance to be illegal and void for want of an insurable interest, entitled to a return of the premiums paid, where the agent made the representation in good faith, believing it to be true; the parties being in such case in pari delicto. Harse v. Pearl L. Assur. Co. 3 B. R. C. 832, [1904] 1 K. B. 558. Also Reported in 73 L. J. K. B. N. S. 373, 52 Week. Rep. 457, 90 L. T. N. S. 245, 20 Times L. R. 264. (Annotated) Return of unearned premium. Return of unearned premium in case of Digest 1-52 L.R.A.(N.S.) cancelation or surrender, see supra, 154. Failure to offer to return, as waiver, see infra, 577. Judgment directing return of premiums with interest where liability on policy is defeated, see JUDGMENT, 33. Necessity that insurer contesting liability on policy should tender premiums re- ceived, see TENDER, 6. See also infra, 482. 445. A tender or return of the unearned premium is necessary to effect the cancela- tion of an insurance policy, under a provi- sion in a policy providing that when the policy is canceled by the company it shall retain only the pro rata premium. German Union F. Ins. Co. v. Fred G. Clarke Co. 39: 829, 82 Atl. 974, 116 Md. 622. 446. Under a policy providing that it "shall be void if the building herein de- scribed, whether intended for occupancy b;,- owner or tenant, be or become vacant or un- occupied and so remain for ten days," and also that "if this policy shall . . . be- come void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this pol- icy or last renewal, this company retain- ing the customary short rate," the company is not bound to return any unearned pre- mium, unless the policy is surrendered. Schmidt v. Williamsburgh City F. Ins. Co. 51: 261, 144 N. W. 1044, 95 Neb. 43. IV. Transfer of policy or of interest therein. a. Assignment generally. (See also same heading in Digest L.R.A. 1-70.) Interest of assignees in proceeds of policy, see infra, VI. d, 2, d. Abatement of action on assigned policy, see ABATEMENT AND REVIVAL, 30. Effect of assignment to exclude policies from operation of bankruptcy act, see BANKRUPTCY, 34. Transfer of proceeds of policy as preference under provisions of bankruptcy act, see BANKRUPTCY, 60. Evidence as to capacity of one making as- signment', see EVIDENCE, 1102. Sufficiency of proof of gift of insurance policy, see EVIDENCE, 2282. Running of limitations against liability for wrongfully assigning policy, see LIMI- TATION OF ACTIONS, 134. Competency of witness in action to recover proceeds of policy by one claiming pa- rol gift thereof, see WITNESSES, 43. See also infra, 670. 447. An assignment of an insurance pol- icy to trustees to be named in the will of the assignor, for the benefit of his wife, does not vest the title in her, under a stat- ute providing that every policy of life in- surance assigned to any person in trust for a married woman shall inure to her sepa- INSURANCE, IV. a. 1573 rate use and benefit. Frost v. Frost, 27: 184, 88 N. E. 446, 202 Mass. 100. 448. Assignment or hypothecation of a policy of fire insurance of the face value of $2,000 to a creditor, as collateral security for an extension of time on a debt of $300, does not constitute or amount to an assign- ment of the policy, in violation of the stipu- lation contained therein, to the effect that the policy shall be void if "assigned before loss." Allen v. Phoenix Assur. Co. 8: 903, 88 Pac. 245, 12 Idaho, 653. 449. The constitutional rights of the cred- itors of a bankrupt are not impaired by a statute which permits him to assign insur- ance on his life to his wife free from their claims except as to premiums paid in fraud of their rights. Bailey v. Wood, 25: 722, 89 N. E. 147, 202 Mass. 549. 450. A paid-up endowment policy is with- in the operation of the statute permitting a man to assign insurance on his life to his wife so that it shall inure to her separate use and benefit and that of her children, ex- cept that premiums paid in fraud of cred- itors shall inure to their benefit from the proceeds of the policy. Bailey v. Wood, 25: 722, 89 N. E. 147, 202 Mass. 549. ( Annotated ) Validity generally. Conflict of laws as to, see CONFLICT OF LAWS, 45. 451. One who has insured his life for the benefit of his children with the option of surrendering the policy for its cash value at certain specified times cannot assign the right of exercising the option to a creditor. McCutchen v. Townsend, 16: 316, 105 S. W. 937, 127 Ky. 230. (Annotated) 452. An assignment of an insurance policy by one who, by a long-existing habit of using intoxicating liquor to excess, has permanently impaired his mental faculties to such an extent that he could not act ra- tionally, is invalid, although, at the time of making the assignment, he is not in- toxicated and does not manifest any aber- ration. Searles v. Northwestern Mut. L. Ins. Co. 29: 405, 126 N. W. 801, 148 Iowa, 65. 453. An agreement by which an uncle un- dertakes to pay the premiums on policies of insurance to be taken out by his nephew in his own name, and assigned to the uncle with the privilege of redeeming one of them, but the uncle to have one policy absolutely, and in case the nephew does not pay the premiums to have the proceeds of both upon the nephew's death, is void, and the uncle cannot compel the nephew's administrator to account for the proceeds of the policy after he has collected them. McRae v. War- mack, 33: 949, 135 S. W. 807, 98 Ark. 52. (Annotated) 454. An agreement, by which one half of the insurance provided for in a life insurance policy was assigned and trans- ferred by the insured and the beneficiary to one having no insurable interest in the life of the insured, upon consideration that the assignee was to pay the premiums as they accrued, contravenes public policy, and neither the assignee nor the beneficiary Digest 1-52 L.R.A.(N.S.) who participated in the tainted transaction can recover upon the policy. Metropolitan L. Ins. Co. v. Elison, 3: 934, 83 Pac. 410, 72 Kan. 199. (Annotated) 455. A life insurance policy procured on the understanding that the insured is to secure it, and for a consideration, assign it to one having no insurable interest in his life, who is to pay the premiums on it, and which is assigned and delivered to the latter without reaching the possession of th_ insured, is void, although it is paya- able to the estate of the insured. Bromley v. Washington L. Ins. Co. 5: 747, 92 S. W. 17, 122 Ky. 402. 456. An assignee of a life-insurance pol- icy taken out under an agreement that the insurance should be secured and the policy assigned to one having no insurable inter- est, but who should pay the premiums on the policy, who collects the proceeds there- on, may be compelled to turn them over to the estate of the insured less what the policies have cost him. Bendet v. Ellis, 18: 114, 111 S. W. 795, 120 Tenn. 277. 457. One has the right to procure insur- ance on his own life and assign the policy to another who has no insurao'te interest in the life insured, provided it be not done by way of cover for a wager policy. Ry- lander- v. Allen, 6: 128, 53 S. E. 1032, 125 Ga. 206. (Annotated) 458. The holder of a valid policy of in- surance upon his own life may, as a mat- ter of financial necessity, make a valid as- signment of the policy to a person having no insurable interest in the life of the in- sured, in consideration of a small sum of money and an undertaking to pay the pre- miums due and to become due, and the as- signee takes the entire interest in the pol- icy, as against the personal representatives of the insured. Grigsby v. Russell, 36: 642, 32 Sup. Ct. Rep. 58, 222 U. S. 149, 56 L. ed. 133. Of wife; interest. Right to change beneficiary of certificate payable to wife, see infra, 469-472, 475-477. Of benefit certificate. 459. The transfer of the beneficial interest in a mutual-life benefit certificate may be enforced in equity although the certificate is not assignable at law. Ptacek v. Pisa, 14: 537, 83 N. E. 221, 231 111. 522. 460. A beneficiary in a mutual benefit certificate may be designated by will where, by statute, the benefit may be made pay- able to a legatee, and there is no provision of statute or articles of incorporation or by-laws of the association which prevents it, and the beneficiary designated in the application according to the provisions of the by-laws is dead. Brinsmaid v. Iowa State Traveling Men's Asso. 42: 1161, 132 N. W. 34, 152 Iowa, 134. (Annotated) 461. A will is not an attested order with- in the meaning of a provision in a mutual benefit certificate making the fund payable to certain designated persons, or attested order, where the statute provides that a benefit shall not be assignable except to the 1574 INSURANCE, IV. b. beneficiary's name, and then only by consent of the association, "attested by its seal and the signature of its supreme secretary and its supreme executive officer." Mineola Tribe No. 114, I. O. R. M. v. Lizer, 42: 1170, 83 Atl. 149, 117 Md. 136. Requisites of assignment. 462. A life insurance policy payable to the legal representatives of the insured may be transferred by mere delivery without written assignment. Gledhill v. McCoombs, 45: 26, 86 Atl. 247, 110 Me. 341. 463. A written assignment of an insur- ance policy to trustees to be named in the will of the assignor for the benefit of a certain person named, which is not wit- nessed as required by statute to make it a valid will, is not effectual to transfer title, where no delivery is made to anyone to hold for the trustees, and the assignor does not manifest an intention to hold for him himself, although the assignment is assent- ed to by the beneficiary. Frost v. Frost, 27: 184, 88 N. E. 446, 202 Mass. 100. (Annotated) Rights of assignee. See also supra, 456, 458. 464. A clause in a policy of life insurance that any claim against the company arising under any assignment of the policy shall be subject to proof of interest does not diminish the rights of an assignee with no insurable interest, as against the personal representatives of the insured, if there is no rule of law to that effect, and the com- pany sees fit to pay. Grigsby v. Russell, 36: 642, 32 Sup. Ct. Rep. 58, 222 U. S. 149, 56 L. ed. 133. 465. A policy of life insurance taken by a man upon his own life for the benefit of his sister and assigned to her absolutely may be enforced bv her whether she has an in- surable interest in his life or not. Re Phillips, 45: 982, 86 Atl. 289, 238 Pa. 423. 466. One who has paid the premiums of an insurance policy upon another's life, under an agreement for an assignment of the policy, may, in case the assignment is annulled as contrary to public policy, re- cover the premiums paid. McRae v. War- mack, 33: 949, 135 S. W. 807, 98 Ark. 52. 467. The marriage of one insured in a fraternal benefit order does not render null and void the designation of his father as beneficiary, and substitute his wife, where the designation is still a legal one at the time of the death of the insured. Vanasek v. Western Bohemian Fraternal Asso. 49: 141, 142 N. W. 333, 122 Minn. 273. ft. Change of beneficiary. (See also same heading in Digest L.R.A. 1-70.) Who may be designated as beneficiary, see supra, II. d. \Yaiver or estoppel as to, see infra, 551. Vested right to dispose of, and control pol- icy, see CONSTITUTIONAL LAW, 62. Digest 1-52 L.R.A.(N.S.) i Statute permitting change of beneficiary in case of divorce, see CONSTITUTIONAL LAW, 63. Breach of agreement by beneficiary as jus- tifying change, see CONTRACTS, 762. Power of equity to give effect to attempted change of beneficiary, see EQUITY, 30. Who may enforce promise of beneficiary made in consideration of insured's for- bearance to change beneficiary, see PAR- TIES, 78. Who may enforce agreement not to change beneficiary, see PABTIES, 79. 468. The act of one insured in a fraternal benefit society in delivering the certificate to his wife, together with his expression at some time and to some persons of his desire to make her the beneficiary, does not operate as a matter of law to substitute her as his beneficiary in place of the father, who had been designated as beneficiary prior to the marriage, where the by-laws of the order require an application for a change of beneficiary and a return of the certificate, and the payment of a fee of 50 cents in order to effect such change, and no attempt is made by the insured to comply with these conditions. Vanasek v. Wester Bohemian Fraternal Asso. 49: 141, 142 N. W. 333, 122 Minn. 273. (Annotated) 469. Where, in the part performance of an antenuptial contract, a husband procures a change in a certi.'cate of insurance in which his children were the sole beneficia- ries, so as to make his wife an eqaal bene- ficiary with the children, and where she has fully executed the antenuptial contract on her part, she thereby obtains an equi- table interest in the certificate, and he can- not thereafter, without her consent, sur- render the certificate and obtain the issu- ance of a new one in which a third party is named as the sole beneficiary, and thus devest her of her interest in the certificate, which was procured pursuant to such con- tract. Supreme Lodge K. of P. v. Ferrell, 33= 777f H2 Pac. 155, 83 Kan. 491. 470. Where a husband agrees that, if his wife will help to pay the assessments upon a certificate in a mutual benefit as- sociation in her favor, he will not change the beneficiary, and in consequence of such agreement she makes a part of the pay- ments thereon, using for the purpose what are in fact the proceeds of her own labor outside of her ordinary household duties, she cannot be displaced as such beneficiary without her consent, notwithstanding she commingles her earnings with those of her husband as soon as received, keeping no separate account thereof, and then takes the money for the assessments from the common fund. Savage v. Modern Woodmen of America, 33: 773, 113 Pac. 802. 84 Kan. 63. 471. Where the designation of the bene- ficiary in a certificate issued by a mutual benefit association is made in pursuance of an agreement founded upon a sufficient INSURANCE, V. a. 1575 consideration, the person so designated ac- quires a vested interest, and unless by rea- son of countervailing equities cannot be dis- placed, although the rules of the order per- mit the member to change the beneficiary at will. Savage v. Modern Woodmen of America, 33:773, 113 Pac. 802, 84 Kan. til5. (Annotated) 472. The rule* that one who insures his own life for the benefit of another and pays the premiums himself may at any time dis- pose of the property without the consent of the beneficiary is changed so far as the right of a husband to change the beneficiary of a policy payable to his wife is concerned, by a statute providing that a policy as- signed to or made payable to a married woman, or to a trustee for her benefit, shall be her sole and separate property, free from the control, disposition, or claims of her husband. Boehmer v. Kalk, 49: 487, 144 N. W. 182, 155 Wis. 156. 473. A member of a mutual-benefit asso- ciation who procured a certificate designat ing a certain persbn as a beneficiary pursu- ant to an agreement with her and upon a consideration moving from her was pre- cluded, as against her, from exercising the privilege ordinarily possessed by members of such association, of changing beneficiaries as often as desired, notwithstanding that the member, leing unable to procure the surrender of the certificate by the beneficiary to whom it had been delivered, had, pursu- ant to a by-law of the association, made ap- plication for the issuance of a new certifi- cate without the surrender of the old, and had been informed that his application would doubtless be passed upon favorably if he would forward an indemnity bond, he having died before complying with such re- quirement. Stronge v. Supreme Lodge, K. of P. 12: 1206, 82 N. E. 433, 189 N. Y. 346. (Annotated) 474. The rights of a beneficiary named in a certificate of insurance in no wise de- pend upon the possession thereof by the beneficiary. Supreme Lodge K. of *P v. Ferrell, 33: 777, 112 Pac. 155, 83 Kan. 491. 475. A statute providing for a change of beneficiary in case of a life insurance policy in favor of a married woman upon her hus- band's life in the event of 'jhe divorcement of the wife before the husband's death does not apply where the policy is for the benefit, not only of the wife, but 'of the children of the parties. Blum v. New York L. Ins. Co. 8: 923, 95 S. W. 317, 197 Mo. 513. 476. That the children of the marriage are given an interest in a policy of insurance on the husband's life, in which the wife is named as beneficiary, only in the event of the death of the wife before the husband, does not take them out of the rule that a statute providing for change of beneficiary in a policy on a man's life in favor of his wife, in case of her divorcement, has no ap- plication where th3 policy is also for the benefit of other parties. Blum v. New York L. Ins. Co. 8: 923, 95 S. W. 317, 197 Mo. 513. 477. The granting of a divorce does not Digest 1-52 L.R.A.(N.S.) bring an existing insurance policy in favor of the wife upon the life of the husband within the rule requiring insurable interest to support a life insurance policy, so as to destroy the vested right of the wife, and render the policy subject to a subsequently- enacted statute permitting change of bene- ficiary in cases of policies in favor of a wife when a divorce is granted. Blum v. New York L. Ins. Co. 8: 923, 95 S. W. 317, 197 Mo. 513. 478. Death within the lifetime of the in- sured terminates the interest of the bene- ficiary of life insurance policies, and leaves the insured free to make other disposition of the policy. ( Smith v. Metropolitan L. Ins. Co. 20: 928, 71 Atl. 11, 222 Pa. 226. V. Waiver; estoppel. M. Of insured or beneficiary. (See also same heading in Digest L.R.A.. . 1-10.) See also infra, 556, 647. 479. Retention of a fire insurance policy, the notes executed for the premium of which are void because executed on Sun- day, constitutes a ratification, which will preclude taking advantage of the illegality. Planters' F. Ins. Co. v. Ford, 44: 289, 153 S. W. 810, 106 Ark. 568. (Annotated) 480. Failure of an illiterate man to dis- cover for five months that an insurance agent has not complied with his agreement to furnish a particular kind of policy is not such laches as will prevent his repudiat- ing the premium notes when suit is brought to enforce them. Summers v. Alexander, 38: 787, 120 Pac. 601, 30 Okla. 198. (Annotated) 481. The wife of a member of a mutual benefit society who has been absent and un- heard from for more than seven years is not estopped by the fact that she instituted a suit for divorce against him on the ground of desertion, for the purpose of securing a marketable title to property standing in his name, from claiming in a suit upon the cer- tificate, that he died before the institution of the divorce proceedings, at least where the society is not sho.wn to have been injured by her conduct. Butler v. Supreme Court, I. 0. F. 26: 293, 101 Pac. 481, 53 Wash. 118. 482. The right of insured, after receiving notice from the insurer of cancelation of the policy, to treat the same as in full force and effect until the company has paid or ten- dered to him the unearned premium, under the clause of the New York standard policy of fire insurance providing that the policy may be canceled by the company by giving five days' notice of cancelation, but that the unearned portion of the premium shall be returned upon surrender of the policy, is waived by his voluntary and unconditional surrender of the policy upon receiving the notice of cancelation. Buckley v. Citizens' Ins. Co. 13: 889, 81 N. E. 165, 188 N. Y. 399. (Annotated) 1576 INSURANCE, V. b, 1. By proofs of loss. 483. The beneficiary claiming to recover on a mutual benefit certificate is not de- prived of the benefit of testimony that the member was not addicted to the use of narcotics, by the fact that in the proof of loss she stated that she thought he was, where she explains this by saying that at one time she found a powder in his room which a druggist said was morphine. Snyder v. Supreme Ruler, F. M. C. 45: 209, 122 S. W. 981, 122 Tenn. 248. b. Of insurer. 1. In general. (See also same heading in Digest L.R.A, 1-70.) Waiver of arbitration, see infra, 653-655, 663. Estoppel to dispute face of policy, see infra, 788. Waiver of time for bringing suit on em- ployers' liability policy, see infra, 933. Parol evidence to show estoppel, see EVI- DENCE, 917, 1379. Admission of evidence on question of, see EVIDENCE, 869, 1623, 1923, 1944. Sufficiency of evidence to establish waiver, see EVIDENCE, 2332. Necessity of pleading waiver or estoppel, see PLEADING, 200, 503. Sufficiency of pleading of waiver, see PLEAD- ING, 445. Question for jury as to, see TRIAL, 652, 653. See also supra, 132, ]42, 381, 393. 484. Where in an action on a policy of life insurance the insurer denies liability on the ground of miastatements in the proposal for insurance, the mere fact that the plaintiff, instead of confining his evi- dence to the disproof of the proposal al- leged by che insurer to have been made, proves that lie signed or authorized the signing of no proposal at all, does not pre- vent him from taking advantage of the estoppel of the insurer, by its recital in the policy that there was a proposal, and by its acceptance of the premiums, to contend that in consequence of the want of a pro- posal there was no contract. Pearl Life Assur. Co. v. Johnson, 4 B. R. C. 460, [1909] 2 K. B. 288. Also Reported in 78 L. J. K. B. N. S. 777, 100 L. T. N. S. 483, 73 J. P. 216. 485. A mutual insurance company doing business on the assessment plan is estopped to deny the validity of the policy because of a matter affecting the substance of the contract, by the assurance of the agent receiving the application that such matter would make no difference. McCarty v. Piedmont Mut. Ins. Co. 18: 729, 62 S. E. 1, 81 S. C. 152. 486. It is always open for the insured to show a waiver of the conditions contained in a policy of fire insurance, or a course of conduct on the part of the insurer which Digest 1-52 L,.R.A.(N.S.) gave him just and reasonable ground to In fer that a forfeiture would not be exacted, Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, 1C Okla. 59. 487. A condition in a policy of life in- surance that it shall be void if premiums are not paid when due means only that it shall be voidable at the option of the com- pany, and a breach of the cyndition may be waived. Grigsby v. Russejl, 36: 642, 32 Sup. Ct. Rep. 58, 222 U. S. 149, 56 L. ed. 133. 488. An insurance company is estopped to repudiate the announcement of its agent that an application has been accepted, if the applicant while relying thereon, dies or, by reason of intervening sickness, has be- come incapable of securing other insurance. Kimbro v. New York L. Ins. Co. 12: 421, 108 N. W. 1025, 134 Iowa, 84. 489. That a letter from an insurer waiving a forfeiture for nonpayment of a premium note is not received or read by the insured before his death does not destroy its effect as a waiver. New England Mut. L. Ins. Co. v. Springgate, 19: 227, 112 S. W. 681, 129 Ky. 627. , 490. A form of policy of fire insurance, although prescribed by law, is, when is- sued by the insurance company, none the less a contract, and is to be construed as such; and while the fact that it is a stand- ard form may affect a question of pure waiver, it does not abrogate the doctrint, of estoppel, especially where it is provided by statute that policies in the standard form shall be subject to the same rules of construction as to their effect, or the waiv- er of any of their provisions, as if the form thereof had not been presc-ibed. Leisen v. St. Paul F. & M. Ins. Co. 30: 539, 127 N. W. 837, 20 N. D. 316. 491. A foreign insurance company which makes a contract of insurance with a resi- dent of the state of Wisconsin without hav- ing complied with Wis. Stat. 1898, 1978, so as to make it competent to do business within the state, is estopped from setting up that its contract with the insured was made in violation of the statute, in order to avoid liability on the policy, where the in- sured participated 'in the transaction with- out knowledge, actual or constructive, of the fact that the company had not complied with the law. Corbett v. Physicians' Casualty Asso. 16: 177, 115 N. W. 365, 135 Wis. 505. 492. The principle of waiver and estoppel applies in case of fraternal or lodge insur- ance. Trotter v. Grand Lodge, I. L. of H. 7: 569, 109 N. W. 1099, 132 Iowa, 513. 493. The doctrines of waiver and estoppel apply to mutual insurance companies doing business on the assessment plan. McCarty v. Piedmont Mut. Ins. Co. 18: 729, 62 S. E. 1, 81 S. C. 152. 494. A provision that the conditions of an insurance policy shall not be waived except by writing, attached to the policy, may it- self be waived so as to render a verbal waiv- er of the conditions binding. Phenix Ins. Co. v. Grove, 25: i, 74 N. E. 141, 215 111. 299. INSURANCE, V. b, 2. 1577 495. Tender to the beneficiary, after the death of the insured, of the amount of premiums received on a policy issued in vio- lation of a condition therein the receipt of which waived the breach of condition, does not relieve the insurer from the effect of its waiver, so as to absolve it from liability on the policy. Monahan v. Mutual L. Ins. Co. 5: 759, 63 Atl. 21i; 103 Md. 145. 2. Knowledge or notice. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to agent's knowledge, see Evidence, 199. See also supra, 39; infra, V. b, 5, c, 548, 552, 575, 603. 490. Mere knowledge, by an insurance company, of facts constituting a forfeiture of a policy, does not amount to a waiver thereof, although a demand for overdue pre- miums is made on the insured, if he does not comply with the demand. Foreman v. Ger- man Alliance Ins. Co. 3: 444, 52 S. E. 337, 104 Va. 694. 497. A waiver by an insurer of a condi- tion after the receipt, from the wife of the insured, of knowledge of the facts upon which its conduct is based, is as binding as though the information had been given by the insured. Rundell v. Anchor F. Ins. Co. 25: 20, 105 N. W. 112, 128 Iowa, 575. 498. The rule that want of knowledge on the part of a property owner of a violation by his tenant of the provisions of a pol- icy of insurance on the property will not prevent a forfeiture of the policy has no application where the act was with the knowledge and consent of the agents of the insurer. German American Ins. Co. v. Hy- man, 16: 77, 94 Pac. 27, 42 Colo. 156. 49!). A transfer of an insurance policy to cover the goods at a place other than that where they were located when it was orig- inally written, with knowledge that an in- ventory has not been taken, waives a pro- vision in the policy requiring 'such in- ventory. Day v. Home Ins. Co. 40: 652, 58 So. 549, 177 Ala. 600. 500. An insurance company cannot ta'ke advantage of a condition in its policy to avoid payment of a loss when the facts which, by its terms, invalidate the policy, were known to it or its agent when it is- sued the policy; but this rule has no appli- cation when the facts were not known, since what is not known cannot be waived. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 501. A policy issued upon an application stating the title to the land on which the building is situated to be a lease is not avoided by a provision in the policy that it shall be void if the land is not owned by the insured in fee simple. Duncan v. Na- tional Mut. F. Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 502. Breach of warranty of a statement ted on the written answers and warranties, and that no statements, promises, or informa- tion, made or given by or to the person soliciting or taking the application, should be binding on the company, or in any man- ner affect its rights, unless reduced to writ- ing and presented to the officers of the com- pany at the home office; nor is the company chargeable with such knowledge because the soliciting agent communicated it to his im- mediate superior, also a soliciting agent, who did not communicate the fact to the general agent, or any other agent or officer of the company. Iverson v. Metropolitan L. Ins. Co. 13: 866, 91 Pac. 609, 151 Cal. 746. (Annotated) 517. Knowledge of local insurance agents as to the condition of a risk upon which they issue policies, the property belonging to a corporation of which they are directors and large stockholders, which fact was not known to the insurer or its general agent, is not chargeable to the insurer. Home Ins. Co. v. North Little Rock Ice & E. Co. 23: 1201, 111 S. W. 994, 86 Ark. 538. 518. An insurance company whose agent is cashier of a bank, on the property of which he has issued a policy containing a provision against additional insurance, is not charged with his knowledge in case he violates such provision by securing addi- tional insurance on the bank property. First Nat. Bank v. German American Ins. Co. 38: 213, 134 N. W. 873, 23 N. D. 139. 519. An insurance company is not charged with notice that payment of the first pre- mium on a policy was effected in part by a release of the agent's commission to the applicant. Union C. L. Ins. Co. v. Robin- son, 8: 883, 148 Fed. 358, 78 C. C. A. 268. 520. A man who, knowing that his wife has heart disease which is likely to cause her sudden death, procures insurance on her life for his own benefit, cannot urge an estoppel on the part of the insurer to assert ignorance of such fact because of knowledge on the part of its agent. Haapa v. Metro- politan L. Ins. Co. 16: 1165, 114 N. W. 380, 150 Mich. 467. 3. Estoppel or ivaiver as affected by power of agent. (See also same heading in Digest L.R.A. 1-10.) As to powers of agents generally, see supra, 40-47. Admissibility of evidence of agent's knowl- edge to show waiver, see EVIDENCE, 921. See also supra, 412; infra, 548, 585. 521. In an action on a fire insurance poli- cy, where the insured relies upon a waiver of the conditions in the policj', he must show INSURANCE, V. b, 3. 1579 that the insurer, with knowledge of the facts that occasioned the forfeiture, dis- pensed with the observance of the condi- tions; and where the waiver relied on is the act of an agent, he must show, either that the agent had express authority from the insurer to make the waiver, or that the in- surer subsequently, with knowledge of the facts, ratified the action of the agent. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, 16 Okla. 59. 522. If a waiver of the stipulations and conditions contained in a policy of fire in- surance relied upon is the act and conduct of an agent of the insurance company, it must be shown that the agent had express authority from the company to make Jie waiver, or that the company subsequently, with the knowledge of the facts, ratified the unauthorized action of the agent. Deming Invest. Co. v. Shawnee F. Ins. Co. 4: 607, 83. Pac. 918, 16 Okla. 1. 523. A stipulation in a fire insurance poli- cy, that no officer, agent, or other repre- sentative of the company shall have the power to waive any condition or provision of the policy, unless such waiver shall be written upon or attached thereto, is valid and constitutes the measure of their power. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 809, 16 Okla. 59. (Annotated) 524. The agent of an insurance company cannot, by oral contract with the assured, waive the express terms of the policy, and extend the time for a premium, where the policy provides that none of its terms can be varied cr modified or any forfeiture waived, or premiums in arrears received, ex- cept by agreement in writing, signed by the president, vice president, secretary, or as- sistant secretary, whose authority for that purpose cannot be delegated. McElroy v. Metropolitan L. Ins. Co. 23: 968, 122 N. W. 27, 84 Neb. 866. 525. Restrictions in a policy of fire insur- ance limiting the power of agents to waive conditions except in a certain manner do not apply to those conditions which relate to the inception of the contract, where the agent, with full knowledge of the facts, is- sues the policy and collects the premium, and the insured has acted in good faith. Leisen v. St. Paul F. & M. Ins. Co. 30: 539, 127 N. W. 837, 20 N. D. 316. 526. An insurance company is estopped from disputing the truth of answers in an application prepared by its agent after ex- amination of the property, which he in- formed the property owner was all right, and which the latter signed without reading, notwithstanding clauses in the application or policy to the effect that the company would not be bound by such representations of its agent. People's F. Ins. Asso. v. Goyne, 16: 1180, 96 S. W. 365, 79 Ark. 315. 527. Knowledge and representations of an insurance broker who places risks with an insurer, on commission, with respect to the condition of the title to property upon which he procures a policy, do not bind the insurer or waive a condition that the title of insured must be sole and uncondi- Digest 1-52 I*R.A.(N.S.) tional ownership, where, the policy provides that no agent of the insurer shall have power or be deemed to have waived provi- sions or conditions of the policy unless such waiver shall be written upon or attached to the policy. Sharman v. Continental Ins. Co. 52: 670, 138 Pac. 708, 167 Cal. 117. 528. An insurance company whose agent was expressly informed, at the time of the execution of a fire policy, of the true inter- est of the insured in the property, and who carelessly and negligently, without the con- nivance of the assured, stated in the policy that the insured was the owner in fee simple, which was not true, and collected and retained the premium, is estopped to deny liability in an action on the policy, although it provided that the entire policy should be void if the interest of the insured was not truly stated therein, or if his in- terest was other than sole and uncondition- al ownership, unless otherwise provided by agreement indorsed on the policy, and also that no officer or agent should have pow- er to waive any of the provisions or condi- tion of the policy, and that no officer or agent should be deemed to have waived any such provisions or conditions unless such waiver was written upon or attached to the policy. Leisen v. St. Paul F. & M. Ins. Co. 30: 539, 127 N. W. 837, 20 N. D. 316. 529. That an application for insurance was written out by the agent of the insur- ance company will not relieve the insured from liability for misrepresentations and concealment as to the title of the insured property, where the policy provides that it shall be void in case of concealment or mis- representation and the application is ex- pressly made a part of the contract of in- surance, and the insurance agent whose powers were strictly defined by the insur- ance contract had no authority to waive such provisions. Deming Invest. Co. v. Shawnee F. Ins. Co. 4: 607, 83 Pac. 918, 16 Okla. 1. (Annotated) 530. When a local agent of a fire insur- ance company, who has the power to accept a risk and deliver the policy of insurance, at and prior to the time of the delivery of the policy, is advised and has full knowl- edge of the fact that other insurance upon the property is in force, and with that knowledge accepts the premium and de- livers the policy without any indorsement thereon, such policy is binding upon the company, notwithstanding the fact that it contains a provision prohibiting the exist- ence of concurrent insurance without writ- ten consent thereto indorsed on the policy, and notwithstanding it contains a pro- vision that none of the company's officers or agents can waive any of its provisions, except in writing indorsed on the policy. Western Nat. Ins. Co. v. Marsh, 42: 991, 125 Pac. 1094, 34 Okla. 414. 531. A local agent of an insurance com- pany, whose only power is to solicit appli- cations for insurance and forward them to the company for approval, when, if ap- 1580 INSURANCE, V. b, 3. proved, the company issues the policy and causes it to be delivered to the insured, has no power to waive any of the provisions of the policy so delivered, and notice to such agent of "additional insurance" taken out by the insured after the delivery of the policy is not notice to the company. Mer- chants' & Planters' Ins. Co. v. Marsh, 42: 996, 125 Pac. 1100, 34 Okla. 453. 532. A provision in a standard insurance policy, the form of which is prescribed by statute, that no agent shall have power to waive any condition unless the waiver is in- dorsed on or added to the policy, cannot be waived by parol, and an attempted consent to additional insurance which is not so in- dorsed as required by the policy is without effect. Black v. Atlanta Home Ins. Co. 21: 578, 61 S. E. 672, 148 N. C. 169. 533. An insurer whose general agent, with power to waive in writing a provision in the policy against the installation on the premises of a gas generating plant, a few weeks after issuing policies containing such clause to the owner of a building, waives the provisions in favor of his tenant, who in- stalls such plant without the knowledge of the landlord, will be held to have waived the provision in favor of the landlord also, unless it notifies him of the installation and either requests him to apply for a waiver or cancels his policy; and it is immaterial that the policy provides that no agent shall have power to waive any of the restrictive clauses unless waiver is expressly authorized, and that any waiver must be written upon or attached to the policy. German American Ins. Co. v. Hyman, 16:77, 94 Pac - 2 ?, 42 Colo. 156. 534. Failure of the agent and adjuster of an insurance company to make objection when notified at the time of adjusting a small loss, of the presence, at the time of the loss, of a small quantity of gasolene on the property, which was prohibited by the policy, and the adjustment of the loss and retention of the unearned premium, will waive the forfeiture, notwithstanding a stipulation in the policy that no repre- sentative of the company shall have power to waive, or be deemed to have waived, con- ditions of the policy, unless such waiver shall be written or attached thereto. Ar- nold v. American Ins. Co. 25: 6, 84 Pac. 182, 148 Cal. 660. (Annotated) 535. Consent of the managing agent of an insurance company to the killing of a horse afflicted with glanders does not impose a liability on the company for the loss, where, under the statute, the civil authorities would have killed the animal on notice, and the policy relieves the insurer from lia- bility for loss due to "order of any civil authority," and provides that no agreement of any agent contrary to the provisions of the policy shall be binding on the insurer unless authorized by the home office. Jop- lin v. National Live Stock Ins. Asso. 44: 569, 122 Pac. 897, 61 Or. 544. 536. The officers of a mutual benefit socie- Digest 1-52 L.R.A.(N.S.) ty cannot waive a by-law 'so as to admit persons of prohibited age. Elliott v. Knighta of Modern Maccabees, 13: 856, 89 Pac 929, 46 Wash. 320. 537. Officers of subordinate lodges of benevolent societies have no authority, by reason merely of such office, to waive any of the provisions of the rules and regulations of the order which enter into and form a part of the contract of membership. Royal Highlanders v. Scovill, 4: 421, 92 N. W. 206, 66 Neb. 213. (Annotated) 538. Under by-laws of the benefit society requiring payment of an assessment be- fore liability on the policy begins, and dis- qualifying local camps from waiving laws of the order, no liability will be inaugu- rated by acceptance of the assessment by the local camp after the death of the ap- plicant. Sovereign Camp, W. W. v. Hall, 41: 517. 148 S. "W. 526, 104 Ark. 338. 539. A benefit society is estopped to deny recovery to an injured member according to the terms of his certificate, where, after sus- pension, he applied for reinstatement and was informed by the local lodge that he had been reinstated, and thereafter regularly paid his dues, although the supreme body had refused to grant the reinstatement and placed the dues to the general credit of the local lodge. Richardson v. Brotherhood of Locomotive Firemen & Enginemen, 41: 320, 126 Pac. 82, 70 Wash. 76. 540. A mutual benefit certificate is not avoided by the fact that the medical exam- iner omits to insert in the application infor- mation material to the risk, which is given him in good faith by the applicant. Lyon v. United Moderns, 4: 247, 83 Pac. 804, 14S Cal. 470. 541. Knowledge by the examining physi- cian of a mutual benefit society, of the falsity of the answer of an applicant as to his occupation, is not binding on the com- pany, since he is the insurer's agent only with respect to matters pertaining to the medical examination. Sovereign Camp, W. W. v. Hall, 41: 517, 148 S. W. 526, 104 Ark. 338. 542. An insurance company is estopped to deny the effect of a demand by its general state agent for payment of a past-due pre- mium note as a waiver of the forfeiture caused by such nonpayment although the policy provides that no waiver of conditions shall be valid unless in writing, signed by an officer of the company. New England Mut. L. Ins. Co. v. Springgate, 19: 227, 112 S. W. 681, 129 Ky. 627. 543. An insurance company's superin- tendent of agencies, with power to adjust and settle claims, has authority to waive a forfeiture for nonpayment of premiums, although the policy provides that waivers can be effected only "in writing, signed by the president, vice president, or secretary." Industrial Mut. Indemnity Co. v. Thomp- son, 10: 1064, 104 S. W. 200, 83 Ark. 575. , (Annotated) INSURANCE, V. b, 4, 5. 4:. Mistake, negligence, or fraud of agent. (See also same heading in Digest L.R.A. 1-10.) See also supra, 292, 488, 514, 516, 528. 544. An insured who truthfully and cor- rectly stated the nature and condition of his title in making an application for insur- ance is not precluded from recovery aftei loss by a different title being stated in the policy. Arkansas Ins. Co. v. Cox, 20: 775, 98 Pac. 552, 21 Okla. 873. 545. An insurance company whose agent prepares an application by securing his in- formation from other applications which had been signed by the applicant, is es- topped from setting up the falsity of the answers in defense to its liability on the policy, where the applicant, without know- ing what the answers are, signs the appli- cation at the request of the agent upon be- ing assured that it is prepared according to the rules and regulations of the insurer. Roe v. National L. Ins. Asso. 17: 1144, 115 N. W. 500, 137 Iowa, 696. 546. An insurer cannot claim a forfeiture for misstatement of the age of the insured where it was inadvertently inserted in the policy by its own agent. Fidelity & C. Co. v. Meyer, 44: 493, 152 S. W. 995, 106 Ark. 91. 547. An insurance company is not es- topped, by the knowledge of its agents who negotiated the policy, from setting up falsi- ty of answers in the application, if the in- sured was a party to the deception. Mudge v. Supreme Court I. O. O. F. 14: 279, 112 N. W. 1130, 149 Mich. 467. (Annotated) 548. Waiver of misrepresentation by an applicant for insurance that he had not been in contact with transmissible disease, or of the fact that he had typhoid fever when the policy was delivered, is not ef- fected by delivery by an agent of the policy with knowledge that the applicant had been in contact with the disease and had himself contracted it, if there was a fraudulent or collusive agreement between the agent and the insured as to such delivery, or the in- sured had knowledge that the agent was de- livering the policy without authority or con- trary to instructions. Gardner v. North State L. Ins. Co. 48: 714, 79 S. E. 806, 163 N. C. 367. 549. An insurance company is not es- topped to insist on a provision of its policy suspending the contract when a premium becomes overdue, by a statement of the at- torney to whom the claim was sent for col- lection, who obtained judgment therefor, that a stay of the judgment would rein- state the policy, followed by the procuring of the stay, even though the attorney has general authority to collect premiums in his locality. Davis v. Home Ins. Co. 44: 626, 155 S. W. 131, 127 Tenn. 330. Digest 1-52 L.R.A.(N.S.) 5. Acts constituting -waiver or estoppel. a. In general. (See also same heading in Digest L.R.A. 1-10.) By delay in passing on application presented by uninsurable risk, see EVIDENCE, 551. 550. Payment of the amount due under a fire-insurance policy does not waive fraud- ulent misrepresentations as to the location of the property at the time of loss, the prop- erty having in fact been moved so as to release the liability of the insurer. Pala- tine Ins. Co. v. Kehoe, 15: 1007, 83 N. E. 866, 197 Mass. 354. 551. An insurance company which fur- nishes blanks for change of beneficiary, and accepts and recognizes a designated change for a period of years, is estopped to claim that the change was not made in strict ac- cordance with its by-laws. Smith v. Met- ropolitan L. Ins. Co. 20: 928, 71 Atl. 11, 222 Pa. 226. 552. Issuance by an insurer of a vacancy permit with knowledge that the building, has been vacant waives a forfeiture because of such vacancy. Duncan v. National Mut, F. Ins. Co. ao : 340, 98 Pac. 634, 44 Colo. 472. 553. The granting of a vacancy permit by an insurance company is a complete waiver of any forfeiture of the policy by reason of previous vacancy of the insured building, and gives the policy the same binding force which it originally possessed, so that the insurance company is liable for a loss occurring while the building is still vacant and subsequent to the expiration of the vacancy permit, but within the period limited for vacancy without such permit, estimating that period from the expiration of the vacancy permit. Caledonian Ins. Co. v. Smith, 47: 619, 62 So. 595, 65 Fla. 429. (Annotated) 554. Under an insurance policy con- taining a clause providing for a forfeiture in case of vacancy, where the insurer has no notice or knowledge of a breach of this- condition in the policy and did not learn until after the premises were totally de- stroyed that the building had been so dam- aged by previous fires as to be uninhabit- able, and had so remained for several weeks before the loss occurred, the fact that the adjuster for the company, while declaring that the policy was void and that the in- surer was not liable, offered a larger sum than the unearned premium for a surrender of the policy, does not of itself constitute a waiver of the forfeiture. Schmidt v. Williamsburgh City F. Ins. Co. 51: 261, 144 N. W. 1044, 95 Neb. 43. (Annotated) 555. Giving a specified term of credit to an applicant for life insurance for payment of the first premium waives a provision in the policy to the effect that it shall not take effect until the first premium is paid, while the applicant is in the same condition of health as described in the application. Con- 1582 INSURANCE, V. b, 5. necticut General L. Ins. Co. v. Mullen, 43: 725, 197 Fed. 299, 118 C. C. A. 345. (Annotated) 556. The beneficiary of a mutual benefit certificate cannot insist upon an estoppel against the order because of refusal to ac- cept the dues of a member who is ill, if, upon the representative of the lodge stating that he had information that the member is not fit to be such atd should be expelled, and that unless he is permitted to lapse out by nonpayment of dues he will take the matter before the order and secure the ex- pulsion, he acquiesces in the suggestion without further attempt to pay dues. Mc- Cann v. Supreme Conclave, I. O. H. 46: 537, 87 Atl. 383, 119 Md. 655. 557. A requirement of a mutual benefit society that suit cannot be brought until a certain time after proofs of death are fur- nished is waived by refusal of the proper officer to furnish blanks for such proof, be- cause the notice given him was of absence for more than seven years, rather than of death. Miller v. Sovereign Camp Woodmen of the World, 28: 178, 122 N. W. 1126, 140 Wis. 505. b. Misleading conduct. (See also same heading in Digest L.R.A. 1-10.) 558. An insurance company which re- fuses to accept a check tendered for a premium, on the ground that the policy had been canceled, cannot deny liability on the policy because the premium had not been paid. Indiana Nat. L. Ins. Co. v. Mc- Ginnis, 45: 192, 101 N. E. 289, 180 Ind. 9. 559. Where the secretary of the local lodge of a mutual benefit society is fre- quently away from home on the last day prescribed for payment of assessments on certificates, and for a long time has been in the habit of accepting payments any time prior to the date of transmitting the assessments to the supreme body, a rule of the order that failure to pay assessments on or before the last specified day shall of its own force suspend the certificate will be regarded as waived. Trotter v. Grand Lodge, I. L. of H. 7: 569, 109 N. W. 1099, 132 Iowa, 513. 560. A course of dealing which will jus- tify an insured in believing :.hat the in- surer will accept a premium twenty days overdue is not shown by the receipt of a few when they were only a few days over- due, and of two others upon presentation of health certificates and a promise to pay future premiums promptly. Thompson v. Fidelity Mnt. L. Ins. Co. 6: 1039, 92 S. W. 1098, 116 Tenn. 557. 561. The rule permitting a course of deal- ing to estop an insurer from insisting upon prompt payment of premiums does not ap- ply unless the tender is made durinsr the life of the 'insured. Thompson v. Fidelity Mut. L. Ins. Co. 6: 1039, 92 S. W. 1098, 116 Tenn. 557. 562. A mutual benefit society which for Digest 1-52 I*R.A.(N.S.) years has given members notice of the times when regular assessments are pay- able waives the right to forfeit a certificate for nonpayment of an assessment by fail- ing to give such notice. Supreme Council C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 563. That a mutual-benefit society dis- tributes among its subordinate lodges what purports to be a copy of its constitution and by-laws, which contains no exemption from liability in case of suicide, and in reliance upon which a member who subsequently committed suicide acted in joining the or- der, does not estop it from taking advantage of a provision in its laws containing such exemption in avoidance of liability on hia certificate; since the members are conclu- sively presumed to know what the provisions of the laws are, they being a part of the contract of insurance. Benes v. Supreme Lodge K. & L. of H. 14: 540, 83 N. E. 127, 231 111. 134. (Annotated) C. Issuing and delivering policy. (See also same heading in Digest L.li.A. 1-10.) 564. A condition in a policy that the in- surance will not be in force until, nor will the company be liable in respect of any loss or damage happening before, the premium, or a deposit on account thereof, is actually paid, and that no such payment or deposit shall be good unless a duly executed receipt shall have been given to the insured, cannot be considered as waived by a delivery of the policy to the insured. Equitable Fire & Acci. Office, Ltd. v. Ching Wo Hong, 1 B. R. C. 34, [1907] A. C. 96. Also Reported in 76 L. J. C. P. N. S. 31, 96 L. T. N. S. 1, 23 Times L. R. 200. 565. A policy of insurance containing the following condition "This insurance will not be in force until, nor will the company be liable in respect of any loss or damage hap- pening before, the premium or a deposit on account thereof is actually paid, and no such payment or deposit and no payment in respect of renewal of this policy shall be good unless a printed form of receipt for it, issued from the office of the company and signed by one of the company's authorized officers or agents, shall have been given to the insured" does not become effective upon delivery, notwithstanding a recital of the receipt of the premium contained in the bodv of the policy. Equitable Fire & Acci. Office, Ltd. v. Ching Wo Hong, 1 B. R. C. 34, [1907] A. C. 96. Also Reported in 76 L. J. C. P. N. S. 31, 96 L. T. N. S. 1, 23 Times L. R. 200. 566. An insurer which has issued a life insurance policy and received the premiums thereon is estopped from contending, in an action on the policy, that in consequence of the want of a proposal signed by the person taking out the insurance, and expressed by the policy to be the basis of the contract, there was no contract. Pearl Life Assur. Co. v. Johnson, 4 B. R. C. 460, [1909] 2 INSURANCE, V. b, 5. 1583 K. B. 288. Also Reported in 78 L. J. K. B. N. S. 777, 100 L. T. N. S. 483, 73 J. P. 216. (Annotated) 567. A condition in a life insurance pol- icy, that the contract shall not be operative or binding until the actual payment of the initial premium and the delivery of the pol- icy, is waived and the policy takes effect, where the insurance company delivers the policy, accepts notes for the initial premium, and gives a receipt stating that the pre- mium is settled by the notes. Hipp v. Fi- delity Mut. L. Ins. Co. 12: 319, 57 S. E. 892, 128 Ga. 491. 568. An insurance company, by issuing a fire insurance policy without inquiry, does not waive its conditions as to title and ownership. Re Millers' & M. Ins. Co. 4: 231, 106 N. W. 485, 97 Minn. 98. 569. The issuance without written applica- tion to a life tenant of a fire insurance pol- icy without inquiry as to the state of title, no representations being made by assured upon that question, and the assured paying the premium and accepting the policy with- out notice of a provision in the policy that it shall be void if the interest of the assured is other than unconditional and sole owner- ship, waives such provision. Glens Falls Ins. Co. v. Michael, 8: 708, 74 N. E. 964, 167 Ind. 659. 570. Knowingly issuing an insurance pol- icy upon a building in possession of a ten- ant waives a provision of the policy that it shall be void if the building shall be in such possession. Ohio Farmers' Ins. Co. v. Vogel, 3: 966, 76 N. E. 977, 166 Ind. 239. 571. Delivery of an insurance policy with knowledge of intention subsequently to place an encumbrance on the property does not waive a provision of the policy requir- ing notice of an encumbrance to be prompt- ly given to the insurer; nor does the agent's assurance that such encumbrance will make no difference estop the insurer from insisting on the forfeiture for failure to give the notice. McCarty v. Piedmont Mut. Ins. Co. 18: 729, 62 S. E. 1, 81 S. C. 52. 572. A mutual benefit association having issued a certificate disclosing that the ben- eficiary was a sister-in-law of the member, and having received payments of dues there- under, cannot assert, as a defense to an ac- tion by the beneficiary upon such certifi- cate, that she was not a proper person to be designated as beneficiary. Stronge v. Su- preme Lodge, K. of P. 12: 1206, 82 N. E. 433, 189 N. Y. 346. d. Receipt, demand, acceptance, and retention of, or action for, premium or assessment. (See also same heading in Digest L.R.A. 1-10.) See also supra, 412, 484, 495, 496, 534, 538, 539, 555, 558, 562, 566, 567, 572. 573. Mere delay in returning the pre- mium upon a policy of fire insurance void Digest 1-52 L.R.A.(N.S.) because of breach of warranty of title to the property does not forfeit the right to defend against an action on the policy for such breach. Goorberg v. Western Assur. Co. 10:876, 89 Pac. 130, 150 Cal. 510. 574. A lire insurance company which, witli i full knowledge of the facts attending a loss, and of the failure of the insured to keep their books and inventories in a fireproof safe, as required by the policy, and which was made a ground of forfeiture, accepts and retains the stipulated premium, and re- quires the insured to procure duplicate bills and invoices, will not thereafter be permit- ted to take advantage of the forfeiture. Gish v. Insurance Co. of N. A. 13: 826, 87 Pac. 869, 16 Okla. 59. 575. Notice to an insurance company that the insured premises had been leased to a tenant, and its receipt of premiums or as- sessments from the owner thereafter, do not waive a provision of the policy forbidding the storing of seed cotton in the insured building. Edwards v. Farmers' Mut. Ins. Asso. 12: 484, 57 S. E. 707, 128 Ga. 353. 576. A notice at the time of procuring fire insurance of intention to procure additional insurance in the future is not a notice of existing conditions, so as to make the re- ception of the premium with such notice work an estoppel against the insurer. Black v. Atlanta Home Ins. Co. 21: 578, 61 S. E. 672, 148 N. C. 169. 577. The mere failure to offer to return the unearned premium on an insurance pol- icy, as required by its terms, upon the dis- covery, after loss, of a breach thereof, will not constitute a waiver of the forfeiture where the premium is not received by the company after knowledge of the breach, and no demand is made for the unearned pre- miums, and no offer is made to surrender the policy, a tender accompanying a plea of forfeiture in an action to recover on the policy being sufficient in such a case. /Etna Ins. Co. v. Mount, 15: 471, 44 So. 162, 90 Miss. 642. 578. An insurer which, after receiving knowledge of the falsity of answers in the application upon which the policy was is- sued, continues to collect premiums on th policy, is estopped to deny liability thereon because of such falsity. Masonic L. Asso. v. Robinson, 41 : 505, 147 S. W. 882, 149 Ky. 80. 579. An insurance company which re- ceived and appropriated money paid by a policy holder, knowing that it was intended as a payment of a premium, cannot avoid liability on the policy on the ground that he had not received a receipt in the form prescribed by the terms of the policy. Matthews v. Metropolitan L. Ins. Co. 18: 1219, 61 S. E. 192, 147 N. C. 339. (Annotated) 580. An insurance company which per- mits payments of overdue premiums with- out insisting on proof of good health on the part of insured, as provided by the contract, does not waive its right to re- quire such proof before permitting rein- 1584 INSURANCE, V. b, 5. statement after a subsequent forfeiture; at least, where the first default was condoned by a subordinate officer who had no author- ity to bind the company without bringing it to the attention of the officers in whom was vested the power to enforce or waive the forfeiture. Conway v. Minnesota Mut. L. Ins. Co. 40: 148, 112 Pac. 1106, 62 Wash. 49. 581. Bringing suit for the assessment after the policy has become void by its terms does not reinstate an insurance policy which provides that failure to pay an assessment within a certain time shall render the pol- icy void. Mutual Fire Co. v. Maple, 38: 726, 119 Pac. 484, 60 Or. 359. 582. Placing a premium note in the hands of an attorney for collection after the pol- icy has become void according to its terms for failure to pay the note will not revive the policy if the collection is not effected, especially where the policy provides that no waiver shall be valid unless in writing, lies v. Mutual Reserve L. Ins. Co. 18:902, 06 Pac. 522, 50 Wash. 49. (Annotated) 583. A provision in an insurance policy that it shall be void if the insurer has other policies in force on the same life, un- less consent to the additional insurance is indorsed thereon, is waived by a receipt of premiums on the new policy the beneficiary in which is ignorant of the former insurance, although, by reason of faulty bookkeeping the attention of the insurer was not in fact called to the breach of the condition. Mona- han v. Mutual L. Ins. Co. 5: 759, 63 Atl. 211, 103 Md. 145. (Annotated) 584. The receipt by a mutual benefit so- ciety of overdue assessments without notice that they were not made with the consent of the member does not estop it from con- testing its liability on the certificate on that ground, if they were not so made. Proctor v. United Order of G. S. 25: 370, 89 N. E. 1042, 203 Mass. 587. (Annotated) 585. Liability on a premium note to se- cure assessments on a mutual fire insurance policy is not terminated by refusal to pay a loss upon the property insured; and, therefore, the men enforcement of an assessment made after denial of liability for the loss does not waive a forfeiture for breach of condition of the policy. Knowlton v. Patrons' Androscoggin Mut. F. Ins. Co. 2: 517, 62 Atl. 289, 100 Me. 481. 586. A benefit assurance association which, after notice, or after such a length of time that knowledge would be presumed, of a change of employment, continues to accept dues from an insured without the filing of a written waiver, as required by a by-law prohibiting the acceptance of members en- gaged in certain hazardous employments, and providing that, if a certificate" holder enter any such employment after becoming a member, he may, by filing a written waiver of liability because of such in- creased hazard, continue his certificate, ex- cept as to death or injury directly trace- able to the prohibited occupation, waives such provision, and recovery may be had for a death directly resulting from the en- Digest 1-52 L.R.A.(N.S.) gaging by the insured in the prohibited em- ployment. Johnson v. Modern Brotherhood of America, 27: 446, 123 N. W. 819, 109 Minn. 288. (Annotated) 587. An insurance company by retaining premium notes containing a provision that if they are not paid at maturity, the pol- icy shall be null and void, and endeavoring to collect the notes in full, waives the pro- vision that the policy should be void if the notes are not paid at maturity. Shaw- nee Mut. F. Ins. Co. v. Cannedy, 44: 376, 129 Pac. 865, 36 Okla. 733. 588. An inadvertent assessment against the premium note of a mutual insurance policy will not waive an objection to the validity of the policy on the ground that other insurance existed upon the property contrary to its terms, nor amount to a ratification of the contract. Carleton v. Patrons' Androscoggin Mut. F. Ins. Co. 39: 951, 82 Atl. 649, 109 Me. 70. 589. Acceptance by a benefit society of an overdue assessment and the expense of providing proof of death, with knowledge that the holder of the certificate was killed while switching cars, does not waive a pro- vision in the policy that it shall not be lia- ble for injuries to switchmen in railroud yards, where there is nothing to show that it knew he \vas so employed at the time of his death. Norton v. Catholic Order of Foresters, 24: 1030, 114 N. W. 893, 138 Iowa,. 464. 590. A person who, while not belonging to the class which, by the rules of a benefit insurance society and the statute regulat- ing such associations, is entitled to become a beneficiary, has his name inserted in a benefit certificate, has no right to receive any part of the benefit fund, and the ac- ceptance of assessments paid, after his name has been so inserted, even if with full knowl- edge of the existing relations, does not con- fer such rights, as a clerk of the order can- not waive the provisions of a statute which expressly prohibits the payment of benefit funds to any person who is not within the class designated as "beneficiaries." Modern Woodmen of America v. Comeaux, 25: 814, 101 Pac. 1, 79 Kan. 493. 591. A fraternal society organized to pro- vide benefits for the families and widows of members will be estopped from disputing its liability to pay a certificate to the divorced wife of a member, where she was made the beneficiary before the divorce was secured, and the supreme ruler of the society in- duced her to continue payment of the dues after the divorce under the belief that, on the death of the assured, the benefit would be paid to her, and the society received and used the payments so made for a series of years; and it is immaterial that a by-law had been adopted withholding the right to the fund from a divorced wife. Snyder v. Supreme Ruler, F. M. C. 45:209, 122 S. W. 981, 122 Tenn. 248. 592. A mutual life insurance association which, after passing a by-law by the terms of which the indemnity payable under an existing certificate issued to a husband and INSURANCE, V. b, 5. 1585 wife and payable to the survivor would be reduced three fourths of the amount, but of which the insured were not informed, continues to receive monthly assessments at the rate required at the time the certifi- cate was issued, waives the enforcement of the by-law, and is estopped from enfor- cing it against the surviving beneficiary. Boman v. Bankers' Union of the World, n: 1048, 91 Pac. 49, 76 Kan. 198. 593. A fraternal benefit society which issues a certificate to an applicant, and thereafter continuously collects dues from her for nearly five years, cannot, after her death, repudiate the contract on the ground that the certificate never went into effect, because the applicant had warranted that she was not pregnant at the time of her application, when in fact she was, although such fact was not known to her, and in no- wise contributed to the cause of death, nor increased the risk, where such condition would not have avoided the policy or been a breach of the contract had it occurred after the contract became effective. Rasicot v. Royal Neighbors of America, 29:433, 108 Pac. 1048, 18 Idaho, 85. 594. A subordinate camp of a fraternal benefit society, which has supervision and right of expulsion of members, which col- lects dues and premiums for nearly five years succeeding the confinement in child- birth of a member who, in good faith, war- ranted in her application that she was not then pregnant, when in fact she was, during which time she was in good health, waives the right of the society to insist on a breach of the contract for the falsity of the answer. Rasicot v. Royal Neighbors of America, 29:. 433, 108 Pac. 1048, 18 Idaho, 85. 595. Acceptance by a local lodge of dues and assessments from a member, with full knowledge that he is engaged in the liquor business, does not estop the order from con- testing the right to benefits on that ground, where, by the by-laws, no person engaged in that business is eligible to membership; and engaging in such business ipso facto forfeits the rights of a member regardless of payment of dues or assessments, since the member is charged with notice that the lo- cal lodge is exceeding its authority. Na- tional Council, J. 0. U. A. M. v. Thompson 45: 1148, 156 S. W. 132, 153 Ky. 636. 596. Where a member of a mutual benefit society has, by the terms of the contract, forfeited his rights, and ceased to be a mem- ber by nonpayment of dues, neither waiver of the forfeiture nor an estoppel to rely upon it is effected by a receipt by the col- lector of the local lodge of current dues, pending an application for reinstatement, which must be approved by the secretary of the grand lodge, and the statement of the collector that the member is in good stand- ing until the next payment becomes due, where neither the applicant nor the bene- ficiary was in any way misled thereby, es- pecially where the collector had been given ratified. Kennedy v. Grand Fraternity, 25: 78, 92 Pac. 971, 36 Mont. 325. (Annotated) 597. The receipt of dues for reinstate- ment by the secretary of a subordinate lodge of a benevolent society while the suspended member for whom the dues were paid was in a dying condition does not waive a require- ment of one of the rules of the society that, after suspension for nonpayment of dues, a member can only be reinstated while in good health. Royal Highlanders v. Scovill, 4: 421, 92 N. W. 206, 66 Neb. 213. 598. A subordinate lodge of a mutual benefit association, which has the power to discipline and expel a member for vio- lating the by-laws of the association, and which possesses knowledge that a member has forfeited his benefit certificate by habits of intemperance, waives the right of the as- sociation to insist upon the forfeiture, by continuing to receive his dues and in all other respects treating him as a member until his death. Modern Woodmen of Amer- ica v. Breckenridge, 10: 136, 89 Pac. 661, 75 Kan. 373. ( Annotated ) 599. A provision in the by-laws of a mutual benefit association, that no sub- ordinate lodge shall have power to waive by-laws, applies only to contractual waiv- ers, and does not preclude waiver of the forfeiture of a benefit certificate by ac- ceptance of dues with knowledge of the forfeiture. Modern Woodmen of America v. Breckenridge, 10: 136, 89 Pac. 661, 75 Kan. 373. 600. The receipt by the supreme body of a mutual benefit society of money from a local lodge to pay the dues of a delinquent mem- ber, without knowledge that it is not his money, but an advancement by the lodge, does not estop it from contesting liability on his certificate because of his nonpayment of dues. Knights of Columbus v. Burroughs, 17: 246, 60 S. E. 40, 107 Va. 671. Premium note. See also supra, 582, 585, 587, 588; infra, 606. 601. The unconditional demand by an in- surance company of payment of an overdue premium note is a waiver of the default so that the insured may recover on the policy if he immediately complies with the demand by mailing a check for the amount, although the insured property is burning when the demand is received and the policy provides that the company will not be lia- ble for any loss which might occur while any premium note remains due and unpaid. Limerick v. Home Ins. Co. 44: 371, 150 S. W. 978, 150 Ky. 827. (Annotated) no express or implied authority to bind the order in that respect and his act was not of Digest 1-52 L.R.A.(N.S.) 100 e. Failure to assert forfeiture. (See also same heading in Digest L.R.A 1-10.) See also supra, 598. 602. Mere neglect by insurer to declare its intention to insist on a forfeiture for breach of condition is not sufficient to constitute a 1586 INSURANCE, V. b, 5. waiver. Rundell v. Anchor F. Ins. Co. 25: 20, 105 N. W. 112, 128 Iowa, 575. 603. The discovery without objection, by an insurance adjuster, after a fire, of the fact that there was other insurance upon the property, contrary to the provisions of the policy, does not waive the forfeiture thereby effected. First Nat. Bank v. German Amer- ican Ins. Co. 38: 213, 134 N. W. 873, 23 X. D. 139. 004. Noncompliance with a condition in an insurance policy as to arbitration is waived by the insurer by failure to raise the question in an action on the policy, so that refusal to direct a verdict in its favor is not error, although the provision had not been waived or complied with prior to the trial. Harris v. North American Ins. Co. 4: 1137, 77 N. E. 493, 190 Mass. 361. C05. Failure to cancel an insurance pol- icy upon notice to the agent of the com- mencement of foreclosure proceedings against the property waives a provision in the policy making it void in case such pro- ceedings are commenced. Kelley use of Chisholm v. People's Nat. F. Ins. Co. 50: 1164, 104 N. E. 188, 262 111. 158. 606. Notification of a policy holder by an insurer after his premium note is overdue that, unless the note is paid at once, it will be compelled to return the note, which will cancel the policy, is a waiver of the forfeiture for nonpayment of the note when due; and the insurer cannot thereafter in- sist upon the forfeiture upon learning that the insured was in a dying condition when the notification was mailed. New England Mut. L. Ins. Co. v. Springgate, 19: 227, 112 S. W 681, 129 Ky. 627. f. Denial of liability. (See also same heading in Digest L.R.A, 1-10.) In case of guaranty insurance, see infra, 907. 607. Denial by an insurance company, of liability on other grounds, within the time allowed for furnishing preliminary proofs of loss, is, in law, a waiver of the condi- tions of the policy requiring such proof. Scott v. Dixie F. Ins. Co. 40: 152, 74 S. E. 659, 70 W. Va. 533. 608. Denial of any liability on an acci- dent-insurance policy waives a provision that suit cannot be brought on the policy until the lapse of a certain time after proof of loss. French v. Fidelity & C. Co. 17: ion, 115 N. W. 869, 135 Wis. 259. 609. Waiver of a provision in an insur- ance policy that suit shall not be brought until a certain time after receipt of proofs of loss is effected by absolute denial of lia- bility under the policy. Jennings v. Broth- erhood Acci. Co. 18: 109, 96 Pac. 982, 44 Colo. 68. (Annotated) 610. Denial by the adjuster sent to in- vestigate a loss on an insurance policy, of all liability thereon, constitutes a waiver Digest 1-52 L.R.A.(N.S.) of proofs of loss. Ohio Farmers' Ins. Co. v. Vogel, 3: 966, 76 N. E. 977, 166 Ind. 239. OIL Failure' to give notice of loss within a reasonable time, as required by the terms of the policy, is not waived by subsequent denial of all liability on the ground that the loss is not covered by the policy, ^tna L. Ins. Co. v. Fitzgerald, i : 422, 75 N. E. 262, 165 Ind. 317. 612. A fraternal benefit society which re- fuses to pay a claim on the ground that the member was addicted to the excessive use of narcotics cannot subsequently set up the defense that the claim is on behalf of the divorced wife of the member, contrary to its by-laws, which fact it knew at the time it refused payment. Snvder v. Supreme Ruler, F. M. C. 45 = 209, 122 S. W. 981, 122 Tenn. 248. 613. Refusal of a mutual benefit society to pay a claim on the ground that the mem- ber was addicted to the excessive use of narcotics, which, under the by-laws, avoided the policy, waives the defense that the con- clusion of the medical director against tha claim was conclusive on claimant, and that no appeal had been taken within the order as required by the by-laws. Snvder v. Su- preme Ruler, F. M. C. 45: 209/122 S. W. 981, 122 Tenn. 248. 614. The duty of a member of a mutual benefit society under its by-laws to have his claims adjusted by the tribunals of the as- sociation, is not waived by a refusal to supply blanks for proof of claim because of alleged termination of membership be- fore the claim matured. -Monger v. New Era Asso. 24: 1027, 121 N. W. 823, 156 Mich. 645. 615. A mutual benefit society waives an offer of tender of the old certiiicate, in case it denies a claim for an immediate pay- ment of disability benefits on the ground that claimant had not become destitute of means of support as required by the certifi- cate. Supreme Council C. B. L. v. Grove, 36: 913, 96 N. E. 159, 176 Ind. 356. 616. Denial by an insurer of liability on the ground of falsity of answers as to health, in ignorance of the fact that the policy had never been put in force, will not estop it from denying liability on the lat- ter ground, if the beneficiary was not, by the ground of the refusal, led to take or refrain from taking any action which oper- ated to his injury. Sovereign Camp, W. W. v. Hall, 41:517, 148 S. W. 526, 104 Ark. 338. g. Requiring, accepting, or retaining notice or proofs of loss. (See also same heading in Digest L.R.A. 1-10.) 617. Failure of an insurer to demand full proof of death waives his right to ob- ject to the proof given, where the insured undertakes to incorporate the notice and proof in the same communication, and the proof of the cause of death with the at- tending facts meets all the requirements of the policy, except that it is not as full INSURANCE, VI. a. 1587 and explicit as it might be. Da Rin v. Casualty Co. 27: 1164, 108 Pac. 649, 41 Mont. 175. 618. Failure to notify an insured within a reasonable time after the filing of proofa of loss, which are defective, in that the no- tary public before whom the same was sworn to did not designate his official title nor attach his seal, of the defect therein, es- tops the insurer from afterward objecting thereto. Arkansas Ins. Co. v. Cox, 20: 775, 98 Pac 552, 21 Okla. 873. 619. Waiver of the defense of suicide by an insurer is not effected by mailing blanks for proofs of loss with knowledge of the facts, under the express statement that they are for the convenience of the attorneys of the beneficiary, and with the distinct under- standing that no rights are waived. Tuttle v. Iowa State Traveling Men's Asso. 7: 223, 104 N. W. 1131, 132 Iowa, 652. (520. Breach of the iron-safe clause of a fire insurance policy is waived by directing the insured, with full knowledge of such breach, to send in his proofs of loss, which results in the sending in of the proofs and the incurring of expense and trouble in re- liance on the direction. Rundell v. Anchor F. Ins. Co. 25: 20, 105 N. W. 112, 128 Iowa, 575. ( Annotated > h. Participation in adjustment. (See also same heading in Digest L.R.A. 1-10.) Question for jury as to waiver, see TBIAL. 653. See also supra, 574. 621. A benefit insurance order is not es- topped to claim that a beneficiary certificate obtained from it by understatement of the age of the applicant is void, by its request that the beneficiary name someone with whom it can negotiate with reference to the claim. Taylor v. Grand Lodge A. 0. U. W- 3: 114, 105 N. W. 408, 06 Minn. 441. 622. Negotiations for settlement of a claim under an insurance policy made under advice of claimant's attorney, which finally culminate in claimant's being referred to de fendant's attorneys, who inform him that suit is up to him, will not, in case ample time remains for beginning suit before ex- piration of the limitation period, amount to a waiver of a provision in the policy that suit must be begun within twelve months after the fire. Dahrooge v. Rochester-Ger- man Ins. Co. 48: 906, 143 N. W. 608, 177 Mich. 442. VI. TJie loss; remedies of the assured, a. Notice; proofs; arbitration. (See also same heading in Digest L.R.A. 1-70.) Penalty for failure promptly to settle claim, see PENALTIES, 3. Digest 1-52 L.R.A.(N.S.) Notice. Waiver of, see supra, 611. Notice of injury to employee, see infra, 929-932. Notice of automobile accident, see infra, 943. Notice of accident, to servant of corporation insured against liability for injuries, as notice to company, see NOTICE. Question for jury as to, see TRIAL, 655, 656. 623. The provision of Wis. Laws 1901, chap. 235, p. 313, prohibiting any accident or casualty company from limiting the time for an insured person to serve notice of any injury for which he is entitled to make a claim to less than twenty days, and provid- ing that a memorandum in respect to thu matter shall be clearly and conspicuously placed on the face of the policy, and further providing that a specified manner of service shall be sufficient, does not t relate to the claim of a beneficiary after the death of the insured person. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 624. A memorandum placed in a policy issued by an accident or casualty company in an attempt to comply with the terms of Wis. Laws 1901, chap. 235, p. 313, prohibit- ing any such company from limiting the time for an insured person to serve notice of any injury for which he is entitled to make a claim, to less than twenty days, and providing that any memorandum in respect to the matter shall be clearly and conspicu- ously placed on the face of the policy does not apply to the claim of a beneficiary after the death of the insured person, unless the language of the memorandum is unmis- takable. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 625. A provision of a policy of insurance against loss of time from sickness, requir- ing notice to be given the insurer within ten days from the beginning of the sick- ness, cannot be set aside for unreasonable- ness, since it would interfere with the con- stitutional right to freedom of contract Craig v. United States Health & Acci. Ir :. Co. 18: 106, 61 S. E. 423, 80 S. C. 151. (Annotated) 626. A provision in a policy insuring against loss of time from sickness, requiring notice of the sickness to be given to the in- surer within ten days of its beginning, is reasonable. Craig v. United States Health & Acci. Ins. Co. 18: 106, 61 S. E. 423, 80 S. C. 151. 627. A provision in an accident-insurance policy requiring written notice to be given to the insurer within ten days of the, acci- dent is not unreasonable. Hatch v. United States Casualty Co. 14: 503, 83 N. E. 398, 197 Mass. 101. 628. A provision of a policy insuring against loss of time from sickness, requiring notice to be given to the insurer at its home office within a certain time after the be- ginning of the sickness, is complied with if the notice is mailed, although it does not reach the insurer, within that time. Craig :588 INSURANCE, VI. a. v. United States Health & Acci. Ins. Co. 18: 106, 61 S. E. 423, 80 S. C. 151. 629. An insurance company which acts upon notice given by a third person of an accident to a policy holder incapacitated from himself giving notice thereof, as re- quired by the insurance contract, because of resulting unconsciousness, receives no- tice of the accident within the meaning of the terms of the policy. Hilmer v. Western Travelers Acci. Asso. 27: 319, 125 N. W- 535, 86 Neb. 285. 630. One who is accidentally injured so as to render him unconscious and there- after cloud his mind so that he cannot, within the time limited in an accident in- surance policy, intelligently give notice. to the insurer of such accident, is thereby excused from compliance with the condi- tions of the policy in that regard while so disabled. Hilmer v. Western Travelers Acci. Asso. 2j: 319, 125 N. W. 535, 88 Neb. 285. (Annotated) 631. An assured is not relieved from the obligation imposed upon him by the terms of his policy to give notice, by himself or his representative, within a certain time, of illness or injury, by the fact that his ill- ness is such as to render him delirious and unable to remember that he has the policy. Whiteside v. North American Acci. Ins. Co. 35: 696, 93 N. E. 948, 200 N. Y. 320. 632. A provision in an. accident-insurance policy that written notice of the injury must be given within ten days of the event causing such injury refers to the accident, and not to the time when the effect is dis- covered although the discovery of the injuri- ous effect is not made until more than ten days after the accident. Hatch v. United States Casualty Co. 14: 503, 83 N. E. 398, 197 Mass. 101. (Annotated) 633. A beneficiary named in an accident- insurance policy can secure no benefit there- from if the insured failed to take the neces- sary steps to bind the company by giving timely notice of the accident as required by the contract. Hat"li v. United States Cas- ualty Co. 14: 503, 83 N. E. 398, 197 Mass. 101. 634. Service of notice of claim by a bene- ficiary in an accident-insurance policy, made as soon as practicable after obtaining knowl- edge of the existence of the policy, is suffi- cient. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 635. The word "immediate," in an insur- ance policy, in respect to giving notice of any accident or injury for which a claim is to be made, by settled judicial construc- tion antedating the policy and so a part thereof, means as soon as practicable under the circumstances of the case, in the absence of some unmistakable limitation to the con- trary. Cady v. 'Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 636. The time for giving notice of inca- pacity under a policy insuring against sick- ness, which requires notice within ten days of total disability, does not commence to run until insured realizes that his illness is sufiiciently serious to prevent him from Digest 1-52 L.R.A.(N.S.) following his usual occupation; and, there- fore, in case he discovers the serious nature of his illness on the twentieth day of the month, and gives immediate notice, it is ill time, although he laid off under the doc- tor's advice on the first, owing to what was then supposed to be a slight indisposition, and the notice fixes the beginning of the disability at that time. Jennings v. Broth- erhood Acci. Co. 18: 109, 96 Pac. 982, 44 Colo. 68. 637. The time for giving notice of a" sick- ness, under a policy insuring against loss of time therefrom and requiring notice to be given within ten days from the "beginning of the illness," does not begin to run until the calling of a physician, whore the policy also provides that payment shall be made at a certain rate for the time after the first week that assured is continuously con- fined within the house and regularly visited by a physician by reason of the illness. Craig v. United States Health & Acci. Ins. Co. 18: 106, 61 S. E. 423, 80 S. C. 151. 638. Failure of the general officers of a corporation insured against liability for in- juries done by its horses and vehicles, or of its agents charged with the duty of ad- justing claims against the insurer, to re- ceive notice of an accident, will not excuse noncompliance with a provision of the pol- icy that assured, upon occurrence of an ac- cident, shall give immediate notice thereof to the insurer; but insured is charged with the knowledge of its agents, whose duty is, either by express regulation, or by super- vision over the servants by whom the ac- cident is caused, to transmit this knowledge to their superiors, or to the corporation. Woolverton v. Fidelity & C. Co. 16: 400, 82 N. E. 745, 190 N. Y. 41. 639. A mortgagee for whose benefit insur- ance is taken by the mortgagor cannot re- cover on the policy if the notice in writing of the particulars of the loss is not given as required by the terms of the policy, although the policy places the duty of giving the no- tice upon the mortgagor, and provides that the mortgagee's right to recover shall not be affected by any. default of any person other than himself or his agents, since the liabil- ity upon the policy arises only when the no- tice is given; but it is sufficient if the no- tice on behalf of the_ mortgagee is given within a reasonable time, and contains prop- er information, in regard to the loss, of such matters as a mortgagee reasonably may be expected to know. Union Inst. for Sav. v. Phoenix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. (Annotated) Proofs of loss. Waiver by demanding, see supra, V. b, 5, g- Effect of padding inventory in, see supra, 375. Imputing to insured false statements in, by agent, see supra, 376. Estoppel by, see supra, 483. Waiver as to, see supra, 557, 607, 610. Necessity that proofs of death be copied into bill of exceptions on appeal, see APPEAL AND ERROR, 244. INSURANCE, VI. a. 1589 Prejudicial error in excluding from evi- dence, see APPEAL AND ERROR, 1256. Error in instructions as to, see APPEAL AND ERROR, 1381. Refusal of instruction as to effect of, see APPEAL AND ERROR, 1434. Public policy as to requiring establishment jf accidental nature of injury before liability attaches, see CONTRACTS, 442. Fraud in .proofs of loss as basis of equity jurisdiction, see EQUITY, 64. Admissibility of proofs of death in evidence, see EVIDENCE, 873, 872. Weight of pro^f of death as evidence, see EVIDENCE, 2331. Wife as husband's agent in making, see HUSBAND AND WIFE, 21-23. Defect in, as defense to penalty for failure promptly to settle claims, see PENAL- TIES, 3. Sufficiency of pleading of waiver of, see PLEADING, 445. Question for jury as to sufficiency of proofs of death, see TRIAL, 650, 651. Question for jury as to waiver of, see TRIAL, 652. See also supra, 371; infra, 668. 640. A provision in an insurance policy that no action shall be brought until proof of loss has been rendered is binding, and no action can be maintained until such require- ment is complied with. Nance v. Okla- , homa F. Ins. Co. 38: 426, 120 Pac. 948, 31 Okla. 208. 641. The terms of an insurance policy pro- viding that false swearing of the assured in making the proofs of loss shall avoid the policy do not apply to an agent ex neces- sitate to make such proofs, unless the prin- cipal, with knowledge of the facts, ratines the agent's act. Evans v. Crawford County Farmers' Mut. F. Ins. Co. 9: 485, 109 N. W. 952, 130 Wis. 189. 642. An insurance policy requirement that proof of loss shall be made by insured under oath requires such proof to be sworn to personally by the insured, although in general substantial compliance with the re- quirements as to proof of loss is sufficient. St. Paul F. & M. Ins. Co. v. Mittendori, 28: 651, 104 Pac. 354, 24 Okla. 651. (Annotated) 643. Affirmative proof of loss under an ac- cident-insurance policy is given where the insurer is notified of the death of the in- sured, and its surgeon takes part in a post mortem examination, although formal blanks are not filled out until afterwards. French v. Fidelity & C. Co. 17: ion, 115 N. W. 869, 135 Wis. 259. 644. The question of the sufficiency of proofs of loss under a life insurance policy must be determined as of a time not later than the institution of the suit upon the policy. Security Bank v. Equitable L. Assur. Soc. 35: 159, 71 S. E. 647, 112 Va. 462. 645. A requirement of an accident insur- ance policy that claimant must give af- firmative proof in writing of the death, and of its being the proximate result of external and accidental means, is satisfied if the Digest 1-52 L.R.A.(N.S.) beneficiary makes a prima facie showing that the death had occurred, and had re- sulted from the causes stated. Jenkins v. Hawkeye Commercial Men's Asso. 30: 1181, 124 N. W. 199, 147 Iowa, 113. 646. That a despondent person of dissi- pated habits, who had lost his property, dis- appeared from home without warning to his family, was traced to a hotel in a city, where he was drinking heavily, and then disappeared, and had not been heard of since, and could not be traced by the detectives or police bureaus of the country, is not sat- isfactory proof of his death prior to the time of the lapsing of the insurance policies on his life thirteen months later, to render the insurer liable on policies providing for a liability upon receipt of satisfactory proofs of death. Security Bank v. Equitable L. Assur. Soc. 35: 159, 71 S. E. 647, 112 Va. 462. 647. The beneficiary of a certificate of one who disappears and is not again heard from does not surrender the right to produce proofs of death within a reasonable time after the expiration of the statutory period necessary for a presumption of death to arise, when the presumption is necessary in order to establish death, by assuming that the insured died within one year of his dis- appearance, and thereafter stopping pay- ment of assessments on that account. Behl- mer v. Grand Lodge, A. 0. U. W. 26: 305, 123 N. W. 1071, 109 Minn. 305. (Annotated) 648. The beneficiary of a benefit certificate of one who disappears and is not again heard from has a reasonable time after the expira- tion of the statutory period necessary for a presumption of death to arise in which to file proofs of death, where the certificate re- quires proof of death as a prerequisite to the bringing of an action, but fixes no particu- lar time within which proofs must be filed, at least where death can be established only by aid of the presumption arising from the expiration of such period; and therefore such proofs need not necessarily be furnished within the statutory limitation from the time of death, as no cause of action accrues until proof of death can be made. Behlmer v. Grand Lodge, A. 0. U. W. 26: 305, 123 N. W. 1071, 109 Minn. 305. 649. A delay of more than two years be- fore making proofs of loss under a life insurance policy which merely requires such proofs to be furnished, without specifying the time, is excused where none of the rela- tives of the insured were present at the time of the death of insured, who was buried by a fraternal organization, and they did not learn of the existence of the policy until a few days before the proofs were furnished. Metropolitan L. Ins. Co. v. People's Trust Co. 41: 285, 98 N. E. 513, 177 Ind. 578. (Annotated) Arbitration; appraisal. Arbitration as waiver, see supra, V. b, 5, h. Waiver of provision as to, see supra, 604. Review by courts of award of arbitrators, see COURTS, 172. 1590 INSURANCE, VI. a. Extent of equity jurisdiction in suit to set aside award, see EQUITY, 134. Burden of proving condition as to, see EVI- DENCE, 549. Admissibility of evidence of attempt to arbitrate, sec EVIDENCE, 2429. See also infra, 669, 670. 050. A provision near the end of an acci- dent-insurance policy which has prescribed certain benefits on certain conditions, to the effect that, in case of disagreement between the parties as to the liability of the insurer, such liability shall be determined by arbi- tration, is an attempt to oust the courts of their jurisdiction, and is void. Lewis v. Brotherhood Acci. Co. 17: 714, 79 N. E. 802, 194 Mass. 1. 651. A provision for arbitration in a standard insurance policy the form of which has been approved by the legislature can- not be declared void as against public pol- icy. Orady v. Home F. & M. Ins. Co. 4: 288, 63 Atl. 173, 27 R. I. 435. 652. A policy of fire insurance providing that, in the event of a disagreement between the insurer and the insured as to the amount of loss, the same shall be ascer- tained by appraisers, and that the loss shall not become payable until sixty days after the notice, ascertainment, and satisfactory proof of loss required by the policy have been received by the insurer, "including an award by appraisers when appraisal is re- quired," imposes no obligation on the in- surer to demand an appraisal. Graham v. German American Ins. Co. 15: 1055, 79 N. E. 930, 75 Ohio St. 374. 653. Failure of an insurer to demand ap- praisers to adjust the loss, before the time stipulated in the policy for payment of the loss, waives the right to them, where the policy provides that the loss shall not be- come payable until sixty days after notice, ascertainment, estimate, and satisfactory proof of the loss have been received by the company, including an award by appraisers when appraisal has been required. Win- chester v. North British & Mercantile Ins. Co. 35: 404, 116 Pac. 63, 160 Cal. 1. 654. Waiver of arbitration as provided for in an insurance policy cannot be inferred by the jury in the absence of proof of some conduct on the part of the insurer tending to support it. Union Inst. for Sav. v. Phoe- nix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. 655. An insurance company, by asserting the validity of an award of appraisers, waives its right to have the loss again ap- praised when the first award is set aside for invalidity. Mtna, Ins. Co. v. Jester, 47: 1191, 132 Pac. 130, 37 Okla. 413. 656. Stipulations in a policy of fire in- surance, that, in the event of a disagree- ment between the insurer and the insured as to the amount of loss, the same shall be ascertained by appraisers, and that the amount thus determined shall not become payable until sixty days after notice, ascer- tainment, and satisfactory proof of loss, and that no action shall be maintainable therefor until after a full compliance with Digest 1-52 !L.R.A.(N.S.) such requirements, constitute a condition precedent which imposes an obligation on the insured, in the event of disagreement as to the amount of the loss, to procure, an award or ascertainment of the loss by ap- praisers, or to show a legal excuse therefor, before he can maintain a suit on the pol- icy, except as such condition is modified by the provisions of Ohio Rev. Stat. 1906. 3G43, as to total losses. Graham v. (Jer- man American Ins. Co. 15: 1055* 79 N. E. 030, 75 Ohio St. 374. (Annotated) 657. Arbitration as to the amount of the loss is a condition precedent to an action on an insurance policy, where the policy expressly provides that no action shall be sustainable until after full compliance with all conditions, one of which is that in case of dispute the amount of loss shall be fixed by arbitration. Grady v. Home F. & M. Ins. Co. 4: 288, 63 Atl. 173, 27 R. I. 435. 658. Under a statute requiring an in- surance company to pay the full amount of the policy in case of a total loss, and in case of a partial loss the amount of loss so sustained, and another statutory pro- vision that, if there is no valuation in the policy, the measure of indemnity in an insurance against fire is the full amount stated in the policy, although a policy cov- ering a private car stipulates that, "in case of a loss and disagreement in regard there- to, an appraisal shall be had to determine the loss, no appraisal is necessary to en- title the owner of the car, which was destroyed by fire so that there was noth- ing left but the iron and steel work, and this was so injured as to be incapable of use in another car, to recover the full amount of the policy. Springfield F. & M. Ins. Co. v. Home wood, 39: n32, 122 Pac. 196, 32 Okla. 521. 659. Upon an appraisal as required by the terms of a fire insurance policy in the event of a loss, and a disagreement as to the amount of such loss, the insured has the right, if he demands it, to introduce evidence before the appraisers as to the ex- tent of his loss, and where he is refused permission upon demand to introduce evi- dence, the award is not binding upon him. .'Etna Ins. Co. v. Jester, 47: 1191, 132 Pac. 130, 37 Okla. 413. (Annotated) 660. The rules applicable to common-law arbitrations apply in proceedings to ap- praise losses taken under the act of 1913 (Minn. Laws 1913, c. 421 [Gen. St. 1913, 3318] ) , in determining the right of the parties to be heard and to present evidence, and the competency of the appraisers. American C. Ins. Co. v. District Court, 52: 496, 147 N. W. 242, 125 Minn. 374. 661. The mere fact that an appraiser appointed under the terms of an insurance policy by one of the parties thereto, to appraise a loss, is not an expert in the line of business in which the loss occurred, is not alone sufficient to render him incom- petent within the meaning of & provision that such loss shall be determined by "com- petent, disinterested, and impartial ap- INSURANCE, VI. b, 1. 1501 praisers." American C. Ins. Co. v. Dis- trict Court, 52: 496, 147 N. W. 242, 125 Minn. 374. (Annotated) 662. No question as to the title of the in- sured can be considered by referees appoint ed in accordance with a clause in a standard insurance policy which provides that, upon failure of the parties to agree as to the amount of loss, it should be referred to ar- bitrators, the award of a majority of whom should be conclusive as to the amount oi loss and damage. Dunton v. Westchester F. Ins. Co. 20: 1058, 71 Atl. 1037, 104 Me. 372. 663. The unwillingness or inability of the arbitrator chosen by insured from the list furnished by the insurer, to serve, from a cause arising after he is chosen, will con- stitute a waiver on the part of the insurer of its right to arbitrate the amount of loss, where the statute provides that if the company shall not, within ten days after re- quest, name three men each of whom shall be willing to act as a referee, it shall be deemed to have waived its right to arbi- tration. Mowry & Payson v. Hanover F. Ins. Co. 29: 498, 76 Atl. 875, 106 Me. 308. 664. One chosen to appraise the loss in- flicted by fire upon insured property, who, after learning the opinion of another ap- praiser as to the amount of the loss, and, considering the sum desigifcated as insuffi- cient, confers with the umpire with a view to agreement with him, is not entitled there- after to withdraw from the appraisal; and an award made by the umpire and the other appraiser is binding. Garrebrant v. Conti- nental Ins. Co. (N. J. Err. & App.) 12: 443, 67 Atl. 90, 75 N. J. L. 577. 665. A provision of an insurance policy that, in event of disagreement as to amount of loss, each party shall appoint an ap- praiser, and the two appraisers shall se- lect an umpire and appraise the loss, and that no action shall be maintained on the policy until such appraisement, when ap- praisal has been required, is satisfied as to the insured when he, acting in good faith, appoints an appraiser; and it is not in- cumbent on him, when the appraisement fails without his fault, to appoint or pro- pose the appointment of a second apprais- er, as a condition precedent to suit on the policy. German-American Ins. Co. v. Jer- rils, 28: 104, 108 Pac. 114, 82 Kan. 320. (Annotated) 666. An award made upon an agreement for appraisal under a standard fire-insur- ance policy is not open to attack, in an ac- tion at law, for misconduct on the part of the umpire. Garrebrant v. Continental Ins. Co. (N. J. Err. & App.) 12: 443, 67 Atl. 90, 75 N. J. L. 577. 667. Failure of arbitration through no fault of the insurance company does not abrogate a provision in the policy that no action shall be brought until the amount of the loss has been settled by arbitrators, and there is nothing to show that arbitra- tion has become impossible. Grady v. Home F. & M. Ins. Co. 4: 288, 63 Atl. 173, 27 R. I. 435. (Annotated) Digest 1-52 L.R.A.(N.S.) Sights of mortgagee. 668. Unless the mortgagee clause attached I to a fire insurance policy makes it obliga- ' tory on the mortgagee to furnish proofs of loss and an appraisement, it is not a con- dition precedent to his right of action that he furnish them. Reed v. Firemen's Ins. Co. (N. J. Err. & App.) 35: 343, 80 Atl. 462, 81 N. J. L. 523. 669. A mortgagee for whose benefit insur> ance is taken cannot enforce the policy un- less the amount of loss, in the absence of agreement as to its amount on waiver of ar- bitration, is ascertained by arbitration as provided by the terms of the policy, although the policy places the duties with respect to arbitration upon the mortgagor, and pro- vides that no default of any person other than the mortgagee or his agents shall affect his right to recover in case of loss. Union Inst. for Sav. v. Phoenix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. 670. A "mortgage clause" attached to a fire insurance policy at the time of execu- tion, which makes the loss, if any, under the policy, payable to the mortgagee as his interest may appear, is not an assignment of the policy to the mortgagee, and, in the ab- sence of fraud or collusion, he is bound by the award of appraisers provided for and required by the terms of the policy in the event of a disagreement between the insured and the insurance company as to the amount of the loss, although the mortgagee was not a party to, and had no notice of, the ap- praisement and award. Erie Brewing Co. v. Ohio Farmers' Ins. Co. 25: 740, 89 N. E. 1065, 81 Ohio St. 1. (Annotated) 6. RisJcs and causes of loss, injury, or death. 1. Under policies covering property. (See also same heading in Digest L.R.A. 1-70.) Burden of proof as to, see EVIDENCE, 553, 554. Opinion as to cause of fall of building, see EVIDENCE, 1075. Sufficiency of proof of cause of loss, see EVIDENCE, 2061. 671. A statute providing that when a peril is specially excepted in a contract of insur- ance, a loss which would not have occurred aut for such peril is thereby excepted, al- though the immediate cause of the loss was a peril which was not excepted, does not op- rate to give the insurer an exemption wid- er than that which he has expressly stipu- ated for. Williamsburgh City F. Ins. Co. v. Willard, 21: 103, 164 Fed. 404, 90 C. C. A. 392. 672. Damages resulting from efforts made !n good faith to save property from a fire, )y breakage, removal, water, or from loss by ;heft consequent thereto, are within the loss lovered by a policy against damage by fire, unless expressly excepted therefrom by stip- 1592 INSURANCE, VI. b, 1. ulation. Farmers' & M. Ins. Co. v. Cuff, 35: 892, 1115 Pac. 435, 29 Okla. 106. (Annotated) 673. A clause in a fire insurance policy exempting the insurer from loss by lire from or occasioned by locomotive engines does riot exempt from loss from fire com- municated by buildings burning on the rail- road right of way which were ignited by the sparks from a locomotive engine. Mont- gomery v. Southern Mut. Ins. Co. 51:518, 88 Atl. 924, 242 Pa. 86. (Annotated) 674. Insurance against all direct loss and damage by fire includes loss by smoke, soot, and excessive heat due to a fire kindled with unusually inflammable materials in the furnace designed to heat the building, although the fire does not escape from the furnace, and is not communicated to the property injured. O'Connor v. Queen Ins. Co. 25: 501, 122 N. W. 1038, 1122, 140 Wis. 388. 675. A provision in a policy of insurance against all immediate loss or damage caused by the accidental discharge or leak- age of water from an .automatic sprinkler system, that it does not cover loss or dam- age resulting from freezing, will not exempt the insurer from liability for damage caused by leakage from a pipe burst by frost. Canadian C. & Boiler Ins. Co. v. Boulter-Davies & Co. 2 B. K. C. 622, 39 Can. S. C. 558. (Annotated) Automobile insurance. 67.6. A fire burning an automobile origi- nates within the vehicle, within the mean- ing of an exception of fires so originating in a policy of insurance on it, where, in conse- quence of the machine's running into a ditch, gasolene leaks from the tank, and the vapor penetrates the lamp forming the headlight and explodes, causing the fire. Preston v. yEtna Ins. Co. 19: 133, 85 N. E. 1006, 193 N. Y. 142. 677. A provision in an insurance policy that damages to an automobile resulting from collision due wholly or in part to up- sets shall be excluded does not operate to defeat recovery where an automobile ran off a highway bridge, was precipitated in the water below, and landed at the bottom of the stream upside down, the collision not being due to the . upset ; the upset be- ing rather the result of the collision. Har- ris v. American Casualty Co. (N. J. Err. & App.) 44: 70, 85 Atl. 194, 83 N. J. L. 641. 678. Where an automobile has passed through the guard rail of a bridge and been precipitated into the stream below, there is a "collision" with the water and bed of the stream, within the meaning of a policy insuring the automobile against accidents resulting from collision. Harris v. American Casualty Co. (N. J. Err. & App.) 44: 70, 85 Atl. 194, 83 N. J. L. 641. (Annotated) Loss caused by order of civil author- ity. 679. The word "indirectly" limits the words "order of any civil authority," as well as the other words in the clause in an insurance policy exempting the insurer Digest 1-52 !L.R.A.(N.S.) from liability for loss "caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion, or military or usurped power, or by order of any civil authority." Hocking v. British America Assur. Co. 36: 1155, 113 Pac. 259, 02 Wash. 73. 680. An insurer is not liable for the death of a horse killed under advice of a veteri- nary because afflicted with glanders, for which the civil authorities would have killed it on notice under the statute, under a policy insuring against loss by death from disease, but withholding liability for loss caused by "order of any civil authority." Joplin v. National Live Stock Ins. As"so. 44: 569, 122 Pac. 897, 61 Or. 544. (Annotated) Earthquakes. 681. An insurer is liable for destruction of property by fire following an earthquake, under a policy by which it insures against direct loss or damages by fire except loss caused by invasion and certain other named causes, or (unless fire ensues, and, in that event, for the damage by fire only) by ex- plosion, bursting of a boiler, earthquake, hurricane, or lightning. McEvoy v. Secur- ity F. Ins. Co. 22: 964, 73 Atl. 157, 110 Md. 275. 682. Destruction of a building by fire spread from another building which is set on fire by an earthquake is not within the ex- ception in an insurance policy against all di- rect loss or damage by fire, that the com- pany shall not be liable for loss occasioned by or through any earthquake, where the clause of the exception follows another which excepted from liability for loss caused directly or indirectly by certain specified causes. Williamsburgh City F. Ins. Co. v. Willard, 21: 103, 164 Fed. 404, 90 C. C. A. 392. (Annotated) 683. An insurer is liable for the entire loss caused by the burning of goods in a buiding, the walls of which fell from an earthquake shock, where they began to burn before the walls fell, although after the shock had begun, and the walls fell before the fire had done any material damage, under a policy providing that if a building or any part thereof fall except as the result of fire, the insurance on the building or its contents shall immediately cease. Davis v. Connecticut F. Ins. Co. 32: 604, 112 Pac. 549, 158 Cal. 766. (Annotated) Cyclones, tornadoes, etc. 684. A provision contained in a "light- ning clause" attached as a rider to a fire insurance policy, that the policy shall not cover loss or damage by cyclone, tornado, or wind storm, is limited to the rider, and does not apply to or vary the contract as contained in the policy. Russell v. Ger- man F. Ins. Co. 10: 326, 111 N. W. 400, 100 Minn. 528. 685. An exception in a policy insuring against loss caused by the accidental dis- charge of an automatic fire extinguisher, of injury from leakage resulting from earth- quakes or cyclones, or from blasting or ex- plosions, will include loss from leakage INSURANCE, VI. b, 2. 1593 caused by a wind storm resembling more technically a tornado than a cyclone, and causing the injury by its high velocity rath- er than its circular motion. Maryland Cas- ualty Co. v. Finch, 8: 308, 147 Fed. 388, 77 C. C. A. 566. (Annotated) Explosion. Review of finding that fire preceded explo- sion, see APPEAL AND EBKOK, 993. Burden of proof in case of, see EVIDENCE, 553, 554. Sufficiency of evidence to show that fire preceded explosion, see EVIDENCE, 2334. See also supra, 685. 686. The accidental ignition of gas by lighting a match, gas jet, or lamp so as to cause an explosion does not render the re- sulting explosion of the gas the result of fire, which will take the loss out of the pro- vision of an insurance policy that the in- surers shall not be liable for loss by explo- sion unless fire ensues, and in that event for the damage by fire only. German Ameri- can Ins. Co. v. Hyman, 16: 77, 94 Pac. 27, 42 Colo. 156. 687. That an explosion is caused by a fire in a building does not relieve the insurer from liability for the loss, under a policy in- suring against loss by fire except loss caused directly or indirectly by explosion of any kind, unless fire ensues, and in that event for the damage bv fire only. Wheeler v. Phenix Ins. Co. 38: 474, 96 N. E. 452, 203 N. Y. 283. (Annotated) Lightning. Sufficiency of evidence as to attachment of lightning clause to policy, see TBIAL, 100. See also supra, 684. 688. Insurance against direct loss or dam- age by lightning includes injuries to the property by being precipitated into water and debris by the throwing down of the walls of the building by a lightning stroke. Cummings v. Pennsylvania F. Ins. Co. 37: 1160. 134 N. W. 79, 153 Iowa, 579. 689. Recovery for loss of a barn by being ktaocked down by lightning, but not burned, cannot be had under a policy in a mutual company insuring against loss by fire, al- though the custom has been to pay such losses and to levy assessments therefor on the policy holders, since such payments were merely misappropriations of funds by the company. Sleet v. Farmers' Mut. F. Ins. Co. 19: 421, 113 S. W. 515, Ky. . (Annotated) 690. Liability for injuries to insured goods by the throwing down of the build- ing by lightning is not taken away by a provision of the policy insuring it against fire and lightning, that if the building or any part thereof fall, except as the result of fire, all insurance shall cease. Cum- mings v. Pennsylvania F. Ins. Co. 37: 1169, 134 N. W. 79, 153 Iowa, 579. Riot; mob. 691. The unauthorized burning of a build- ing Dy a deputy United States marshal, to effect the arrest of persons who had taken refuge therein and were holding the au- thorities at bay with firearms, does not Digest 1-52 L.B.A.(N.S.) come within a provision of a policy of in- surance upon the building, exempting the insurer from liability for loss caused di- rectly or indirectly by riot or by order of any civil authority, for although the fugi- tives were guilty of a riot, their acts were not the cause of the loss, which was due to the unlawful acts of the marshal. American Central Ins. Co. v. Stearns Lum- ber Co. 36: 566, 140 S. W. 148, 145 Ky. 255^ 692. One who has insured property against all direct loss or damage by fire, ex- cept as hereafter provided, among which ex- ceptions is loss caused directly or indirect- ly by riot, is not liable for property burned by an armed and masked body of men who overawe and terrorize the civil authorities and inhabitants of a town, and proceed to burn the property, because they think it is intended to be put to a use detrimental to their interests. Spring Garden Ins. Co. v. Imperial Tobacco Co. 20: 277, 116 S. W. 234, 132 Ky. 7. (Annotated) Negligent or wilful act. 693. A marine underwriter is not liable for a loss occurring through the deliberate act of the master of the vessel, who repre- sents the insured, in pushing through dan- gerous ice for the purpose of reaching his destination quickly, and thus realizing the object of his principal's undertaking. Stand- ard Marine Ins. Co. v. Nome Beach Light- erage & Transp. Co. i: 1095, 133 Fed. 636, 67 C. C. A. 602. (Annotated) 694. Fire resulting from the negligence of the health officer in attempting to fumi- gate a house under order of the board of health is within a clause in a policy of insurance thereon exempting the insurer from liability for fire caused directly or indirectly by order of any civil authority. Hocking v. British America Assur. Co. 36: 1155, 113 Pac. 259, 62 Wash. 73. (Annotated) Destruction by insured while insane. 695. The burning of property by the in- sured while insane will not absolve the in- surer from liability in the absence of any provision to that effect in the policy. Bin- dell v. Kenton County A. F. Ins. Co. 17: 189, 108 S. W. 325, 128 Ky. 389. (Annotated) Mai'lne insurance. See supra, 693. 2. Under life policies. a. In general. (See also same heading in Digest L.R.A. 1-70.) Burden of proof as to, see EVIDENCE, 113, 114. Evidence on question of, see EVIDENCE, 1334, 1558. Sufficiency of evidence as to cause of death, see EVIDENCE, 2077-2080. 696. A certificate or policy of insurance may provide that there shall be no liability on the part of the insurer if the insured die 1594 INSURANCE, VI. b, 2. within a year from some cause or disease exccptod from the general provisions of the contract of insurance. Red Men's Fraternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. 697. The question of forfeiture is not in- volved in a defense to an action upon an insurance policy which sets up that the insured died within the time specified of a disease excepted for a given time from the operation of the policy. Red Men's Fra- ternal Acci. Asso. v. Rippey, 50: 1006, 103 N. E. 345, 104 N. E. 641, 181 Ind. 454. Murder of insured. Sufficiency of allegations as to, see PLEAD- ING, 523. 698. The beneficiary in a life insurance policy, whose intentional and felonious act causes the death of the assured, cannot recover upon the policy. Filmore v. Met- ropolitan L. Ins. Co. 28: 675, 92 N. E. 26. 82 Ohio St. 208. 699. One is the offending party in a diffi- culty, within the meaning of a by-law of a benefit association that no benefits shall be paid on the death of or disability of any member who has been killed or injured in any quarrel, controversy, or fight in which such member is the offending party, if he brought on the difficulty by advancing on the other party thereto in a threatening man- ner, unless he in good faith believed, and had reasonable ground to believe, that he was then and there in danger of losing his life or suffering great bodily harm at the hands of such other party, and it was nec- essary, or appeared to him to be necessary, that he should act in the manner he did to protect himself from threatened assault. Knights of Maccabees v. Shields, 49: 853, 160 S. W. 1043, 156 Ky. 270. 700. The killing by a husband of the para- mour of his wife, although under such cir- cumstances that the law would class the act as justifiable homicide, is not at the "hands of justice," within the meaningjjf a stipula- tion in a life insurance policy exempting the insurer from full liability if the death of the insured is caused at the hands of justice. Supreme Lodge K. of P. v. Crenshaw, 13: 258, 58 S. E. '628, 129 Ga. 195. 701. The death of a wife's paramour, killed by a wronged husband while attempt- ing to commit, or immediately after the commission of, an act of adultery, is not caused in the violation of, or an attempt to violate, any criminal law, within the meaning of a stipulation in a policy of life insurance exempting the insurer in that event from full liability under the policy. Supremo Loclce K. of P. v. Crenshaw, 13: 258. 58 S. E. 628, 129 Ga. 195. (Annotated) Execution for crime. Conflict of laws as to right to recover, see CONFLICT OF LAWS, 10. 702. Death by a legal execution for crime is not covered by a policy of life insurance, though the policy contains no provision excepting such manner of death from the risks covered by it. Northwestern Mut. L. Ins. Co. v. McCue, 38: 57, 32 Sup. Ct. Rep. 220, 223 U. S. 234, 56 L. ed. 419. Digest 1-52 L.K.A.(N.S.) 703. Provisions in the charter of a foreign life insurance company making a person who insures therein a member of the com- pany, and fixing his interest at the amount of his insurance, give no right of recovery for death by legal execution for crime, where, under the laws of the place of con- tract, the policy, by which alone the rights of the insured and the beneficiaries must be measured, does not cover a death so caused. Northwestern Mut. L. Ins. Co. v. Mcl'uo, 38: 57, 32 Sup. Ct. Rep. 220, 223 U. S. 234, 56 L. ed. 419. 704. The personal representative of an in sured is not precluded from enforcing pay ment of his policy by the fact that insurer! was executed for crime, where the Consti- tution declares that no conviction shall work a corruption of blood or forfeiture of estate, and the statutes make no exception in such case in the rules of descent and distribu- tion. Collins v. Metropolitan L. Ins. Co. 14: 356, 83 N. E. 542, 232 111. 37. (Annotated) b. Risk of occupation or employment. (See also same heading in Digest L.R.A. 1-70.) Waiver as to, see supra, 586. c. Suicide. (See also same heading in Digest L.R.A. 1-10.) Provisions of constitution or by-laws as to, see supra, 107-111. Estoppel as to, see supra, 563. Waiver of defense of, see supra, 619. Who may question validity of statute de- priving company of defense of suicide as against citizen of state, see ACTION OB SUIT, 47. Review of finding by jury that death of insured was accidental, see APPEAL ANJ> EBKOR, 908. ' Forbidding contract for exemption from lia- bility in case of, see CONSTITUTIONAL LAW, 464. Presumption and burden of proof as to, see EVIDENCE, 157-165. Admissibility of evidence on question of, see EVIDENCE, 1810. 705. Suicide will not defeat a recovery upon a mutual benefit certificate not pro- cured by the insured with the intention of committing suicide, unless the contract so provided in express terms. Lange v. Royal Highlanders, 10: 666, 106 N. W. 224, 110 K W. HID, 75 Neb. 188. 706. Suicide of a member of a mutual benefit society will not defeat a recovery on his benefit certificate, issued in favor of his wife, in the absence of express provision in the contract to that effect, although the bene- ficiary had not a vested interest which could not be defeated by the member. Grand Legion of 111. S. K. of A. v. Beaty, 8: 1124, 79 N. E. 565, 224 111. 346. (Annotated) INSURANCE, VI. b, C. 1595 707. A beneficiary in a mutual benefit cer- tificate, who, under the terms of the con- tract, can be changed at any time by the insured, cannot recover on the certificate in case the insured takes his own life while sane, although there is no provision in the certificate against suicide. Davis v. Su- preme. Council, R. A. 10: 722, 81 N: E. 294, 195 Mass. 402. 708. The defense of suicide, contrary to a by-law enacted after the issuance of a mu- tual benefit certificate which bound the member to comply with subsequently en- acted rules and regulations, is not suffi- cient, but intentional suicide while sane should be alleged. Supreme Conclave, I. O. H. v. Eehan, 46:308, 85 Atl. 1035, 119 Md. 92. 709. The term "death by suicide, sane or insane," does not include death by the act of the assured without any mental purpose of seif-destruction. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 907, 134 Wis. 322. (Annotated) 710. The distinction between suicide by a sane person and suicide by an insane per- son, within the meaning of a policy clause, ''death by suicide, sane or insane," lies in the mental capability, in the one case, and the absence of it, in the other, to appre- ciate the moral nature and quality of the purpose. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 711. If one in a fit of delirium or other condition of irresponsibility, without inten- tion to take his own life, does some act from which his death ensues, such death is by accident, not by suicide. Cady v. Fidelity & C. Co. 17: 260, 113 N. W. 967, 134 Wis. 322. 712. Under a statute providing that sui- cide shall be no defense to an action upon a life insurance policy if the policy had been in force for one year at the time of the death, if insured commits suicide while sane, after the expiration of one year from the date of the policy, the company is liable for the amount of the policy, even though it appears that the act of the suicide was premeditated before the expiration of one year from the date of the policy. Harring- ton v. Mutual L. Ins. Co. 34: 373, 131 N. W. 246, 21 N. D. 447. 713. Under a statute providing that sui- cide shall be no defense to an action upon a life insurance policy if the policy had been in force for one year at the time of the death, the company cannot rely on such de- fense if, at the time of the death, a year had expired from the date of the policy, al- though it had been dated back, if by stat- ute the company is prevented from disput- ing the date written in the policy. Har- rington v. Mutual L. Ins. Co. 34: 373, 131 N. W. 246, 21 N. D. 447. 714. A mutual benefit certificate is a life insurance policy within the meaning of a statute withdrawing from life insurance companies the defense of suicide of policy holders in suits upon such policies. Head Camp Pacific Jurisdiction v. Sloss, 31: 831, 112 Pac. 49, 49 Colo. 177. Digest 1-52 L.R.A.(N.S.) 3. Under accident or health policies. a. Accidental injuries generally. (See also same heading in Digest L.R.A. 1-10.) Review on appeal of findings as to cause of death, see APPEAL AND ERROR, 911. Public policy as to requiring establishment of accidental nature of injury before liability attaches, see CONTRACTS, 442. Burden of proving cause of death, see EVI- DENCE, 114. Evidence of habits and temperament of in- sured in action on accident policy, see EVIDENCE, 1518. Sufficiency of evidence as to, see EVIDENCE, 2077-2080, 2333. Question for jury as to cause of injury, see TRIAL, 166-169, 172, 176. Direction by court that one insured against accident was intoxicated at time of injury, see TRIAL, 772. 715. The word "operation," in a clause of an accident insurance policy making insurer liable for injuries from septic wounds caused by accident while performing an op- eration pertaining to the business of the insured, a physician, means treatment per- taining to his business, and is not limited to surgical operations. Central Acci. Ins. Co. v. Rembe, 5: 933, 77 N. E. 123, 220 111. 151. 716. The infection of an eye with gono- cocci by splashing water from a tub while washing clothes therein, to its destruction, is within the operation of a policy provid- ing indemnity in case of the permanent loss of the sight of an eye by accident. Sulli- van v. Modern Brotherhood, 42: 140, 133 N. W. 486, 167 Mich. 524. (Annotated) 717. The word "building" in a provision of an accident insurance policy imposing a liability for injuries sustained in conse- quence of the burning of a building in which insured shall be at the commencement of the fire, includes the contents of the build- ing, so that recovery may be had for inju- ries caused by the burning of such contents, although the building itself is not on fire. Wilkinson v. ^Etna L. Ins. Co. 25: 1256, 88 N. E. 550, 240 111. 205. 718. Insurance against injuries by the burning of a building while insured is there- in does not cover injuries caused by the burning of clothing and other articles in a room of the building, which merely scorches the wood work without destroying the build- ing or any portion of it. Houlihan v. Pre- ferred Acci. Ins. Co. 25: 1261, 89 N. E. 927, 196 N. Y. 337. 719. A platform at a railway depot, used by the public for the purpose of going to and from trains, and which is used by the public without objection for the purpose of traveling from one street to another, and to other parts of the depot grounds, is a "public highway," within the meaning of an accident insurance policy which con- tained the provision: "While walking on 151) 6 INSURANCE. VI. b, 3. a public highway, by being injured by actual contact with a bicycle or any moving conveyance or vehicle propelled by steam, electricity, cable, horse power, gasolene, or compressed air." Rudd v. Great Eastern Casualty & Indemnity Co. 34: 1205, 131 N. \V. 633, 114 Minn. 512. 720. The space between the tracks of a double-track railroad, which are so close to- gether that the distance between trains passing thereon would be only 4 feet, is road- bed within the meaning of that term in an accident insurance policy restricting the lia- bility of the insurer in case of accidents while assured is on the roadbed of a rail- road. McCIure v. Great Western Acci. Asso. 8: 970, 110 N. W. 466, 133 Iowa, 224. (Annotated) 721. A provision in an accident insurance policy that it does not cover being on any railroad right of way means on the track. Starr v. .Etna L. Ins. Co. 4: 636, 83 Pac. 113, 41 Wash. 199. 722. A caboose attached to a through freight used exclusively for the transpor- tation of live stock to market cannot while en route be said to be used for passenger service, where no one but the train employ- ees and the shippers in charge under live stock contracts, together with railroad employees, are permitted to be aboard, so as to relieve an insurance company of lia- bility under a clause in a policy held by a drover in such caboose, exempting the insurance company from liability in case of accident while on a "caboose used for passenger service." Standard Acci. Ins. Co. v. Kite, 46: 986, 132 Pac. 333, 37 Okla. 305. 723. A provision of an accident insurance policy relieving the insurer from liability for injuries caused by discharge of firearms, unless the accidental character of the dis- charge shall be established by at least one person other than the insured, who was an eyewitness of the event, requires the witness to have seen the shooting. Roeh v. Busi- ness Men's Protective Asso. 51: 221, 145 N. W. 479, 164 Iowa, 199. (Annotated) 724. An accident insurance company can- not defeat liability for death by drowning, on the ground that decedent entered a swim- ming pool where the death occurred, volun- tarily, and therefore the accident was not the cause of the death independently of all other causes, within the provisions of the policy. Clark v. Iowa State Traveling Men's Asso. 42: 631, 135 N. W. 1114, 156 Iowa, 201. (Annotated) Disease or bodily infirmity as concur- ring cause. 725. The excitation by an accident of a dormant growth or formation "within the body so that it rapidly results in death, which, but for the accident, would have been deferred until a later period of life, is within the operation of a policy insuring against bodily injury sustained through ac- cidental means resulting directly, independ- ently, and exclusively of all other causes in death. Fidelity & C. Co. v. Meyer, 44: 493, 152 S. W. 995, 106 Ark. 91. Digest 1-52 L.R.A.(N.S.) 726. A shock and fainting spell produced by entering into a swimming pool, which results in drowning, do not relieve an acci- dent insurance company from liability on its policy for the death, on the theory that the death resulted partially or indirectly from "disease or bodily infirmity" within the meaning of an exemption clause in the policy. Clark v. Iowa State Traveling Men's Asso. 42: 631, 135 N. W. 1114, 156 Iowa, 201. 727. The fact that a person fifty or fifty-five years of age would be likely to have a normal hardening of the arteries in parts of the body, which might tend to bring about a rupture of the heart in case of a violent accident through a fall, is not sufficient to show that the accident was not the proximate cause of the death of the person, within the provisions of an accident insurance policy held by him. Moon v. Order of United Commercial Travelers, 52: 1203, 146 N. W. 1037, 96 Neb. 65. ( Annotated ) 728. Semble, that an insurer would be protected from liability for death of the insured, in consequence of physical exertion, from dilatation of the heart, which had been in a weak and unhealthy condition, by a condition providing that the policy should not extend to cover death "arising from any natural disease or weakness or exhaustion consequent upon any disease ... al- though accelerated by accident." Re Scarr, 2 B. R. C. 358, [1905] 1 K. B. 387. Also Reported in 74 L. J. K. B. N. S. 237, 92 L. T. N. S. 128, 21 Times L. R. 173. Sunstroke. As external, violent and accidental cause, see infra, 750. 729. The word "sunstroke," when used in an insurance policy in describing one of the risks covered, should not be interpreted as applying only to an effect produced by the heat of the sun, unless the context or other special considerations require it, since the term, unexplained, denotes a condition pro- duced by any heat, solar or artificial. Con- tinental Casualty Co. v. Johnson, 6: 609, 85 Pac. 545, 74 Kan. 129. (Annotated) 730. The fact that one overcome by heat emanating from a furnace had previously overexerted, thereby rendering himself more subject to such an attack, does not affect the liability of an accident insurance company to him, under a policy including sunstroke in the accidental injuries in- sured against, since in such cases the mere negligence of the insured is not a defense. Continental Casualty Co. v. Johnson, 6: 609, 85 Pac. 545, 74 Kan. 129. b. Intentional injuries. (See also same heading in Digest L.R.A. 1-10.) Presumption and burden of proof as to cause of injury, see EVIDENCE, 228, 552. Cause of injury as question for jury, see TBIAL, 290. 731. An injury received by making an in- INSUKANCE, VI. b, 3. 15S)7 centional assault on another by striking him in the face with the fist is not by accidental means, within the meanin to of a policy insur- ing against injuries received through such means. Fidelity & C. Co. v. Carroll, 5: 657, 143 Fed. 271, 74 C. C. A. 409. (Annotated) 732. An insurance against loss of business time resulting from bodily injuries effected through external, violent, and accidental means covers loss of time by disease, if it was proximately caused by a bodily injury through the stipulated means. J&tna, L. Ins. Co. v. Fitzgerald, i : 422, 75 N. E. 262, 105 Ind. 317. 733. A provision in the rules of an acci- dent insurance company relieving the in- surer from liability for injury intentionally inflicted by any person upon insured does not apply to fatal injuries inflicted in an "attempt to rob him, where the constitution provides that any injury received by a mem- ber in an attempt to rob him shall be con- sidered an accident, although weekly in- demnity only is provided for such accident by the constitution, and the section so pro- viding deals with disability only, and does not qualify the provision for death benefits. Allen v. Travelers' Protective Asso. 48: 600, 143 N. W. 574, 163 Iowa, 217. c. External, violent, and accidental means. (See also same heading in Digest L.R.A. 1-10.) 734. Periostitis of the metacarpal bones, caused by placing the hand, during sleep, between the head and the edge of the bed rail, and using it as a headrest until it be- comes numb and bruised, is covered by an insurance against injuries effected through external, violent, and accidental means. ./Etna L. Ins. Co. v. Fitzgerald, i: 422, 75 IS. E. 262, 165 Ind. 317. (Annotated) 735. Death from suicide which springs from an insane impulse of a disordered or insane mind is through external, violent, and accidental means, within the meaning of an accident insurance policy. Tuttle v. Iowa State Traveling Men's Asso. 7: 223, 104 N. W. 1131, 132 Iowa, 652. (Annotated) 736. A felon caused by an accidental bruise upon the finger of the holder of an accident insurance policy is within the clause of the policy providing compensation for accidental injury resulting from some violent, external, and involuntary cause, leaving external and visible marks of a wound. Robinson v. Masonic Protective Asso. 47: 924, 88 Atl. 531, 87 Vt. 138. (Annotated) 737. Under a policy insuring against loss of time from bodily injuries effected through external, violent, and accidental means, which shall disable the insured from en- gaging in any productive occupation, no re- covery can be had for hernia resulting from accident where there is no external injury, disability, or loss of time. Ji]tna L. Ins. Co. v. Lasseter, 15: 252, 45 So. 166, 153 Ala. 630. 738. Merely hastening through an acci- dental fall the destruction of sight, which Digest 1-52 L.R.A.(N.S.) was inevitable, through cataract, is not, where both causes contribute to the result, within the operation of a policy insuring against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means. Penn v. Standard L. & Acci. Ins. Co. 42: 593, 73 S. E. 99, 76 S. E. 262, 158 N. C. 29. 739. Appendicitis due to the irregular working of the muscles of the side because of their strain in bowling is not within a policy providing indemnity for loss of time resulting from disability due to external, violent, and accidental means. Lehman v. Great Western Acci. Asso. 42: 562, 133 N. W. 752, 155 Iowa, 737. (Annotated) 740. Death from appendicitis following a strain which would not have caused such disease but for an abnormal condition of the appendix, due to a former attack, is not within a policy insuring against death from injury effected directly and independently of all other causes through external, violent, and accidental means. Stanton v. Travel- ers' Ins. Co. 34: 445, 78 Atl. 317, 83 Conn. 708. (Annotated) 741. Rupture of the heart, which is in a state of fatty degeneration, by assisting in carrying a door weighing 86 pounds, or by filling the lungs with air by drawing a long breath after putting it down, causing death, is not within the provisions of a policy in- suring against death from bodily injuries sustained through external, violent, and ac- cidental means. Shanberg v. Fidelity & C. Co. 19: 1206, 158 Fed. 1, 85 C. C. A. 343. (Annotated) 742. The death of one insured in a fra- ternal accident association, proximately re- sulting from a rupture of the heart caused by his accidentally slipping and falling and striking his body externally near the region of the heart upon a large stone with such force as to cause the rupture, from which he immediately died, is a death caused by external bodily injury within the meaning of the indemnity clause in the policy. Moon v. Order of United Com- mercial Travelers, 52: 1203, 146 N. W. 1037, 96 Neb. 65. 743. Dilatation of the heart, the weak and unhealthy condition of which was un- known to the assured, in consequence of intentional physical exertion incident to an attempt to eject a drunken man, who offered only passive resistance, although an' unfore- seen effect, is not caused by accidental means within the meaning of a. policy of insurance against "any bodily injury caused by violent, accidental, external, and visible means." Re Scarr, 2 B. R. C. 358, [1905] 1 K. B. 387. Also Reported in 74 L. J. K. B. N. S. 237, 92 L. T. N. S. 128, 21 Times L. R. 173. (Annotated) 744. The administration of an anti-teta- nus serum by a reputable member of the medical profession in case of an injury cov- ered by a policy insuring against death caused by "external, violent, and accidental means," where such treatment is regular, or- dinary, and in accordance with the teachings of his profession, is one of the possibilities 1598 INSURANCE, VI. b, 3. within the contemplation of the parties to the policy, and where the death results sole- ly from such injury and the injection of the serum recovery can be had. Gardner v. United Surety Co. 26: 1004, 125 N. W. 264, 110 Minn. 291. (Annotated) 745. That a person is delirious from fever when he falls from a window to his death does not prevent the death from be- ing effected directly and independently of all other causes, through external, violent, and accidental means, within the meaning of a policy insuring against death so caused. Bohaker v. Travelers' Ins. Co. 46: 543, 102 N. E. 342, 215 Mass. 32. (Annotated) Blood poisoning. As to blood poisoning generally, see infra, 755-763. 746. Death from blood poisoning due to perforation of the rectum by a bone, pre- sumably swallowed with food, is caused by external, violent, and accidental means, within the meaning of those terms in an insurance policy. Jenkins v. Hawkeye Com- mercial Men's Asso. 30: 1181, 124 N. W. 199, 147 Iowa, 113. (Annotated) 747. Death from blood poisoning following a slight accidental abrasure of the skin is within an accident-insurance policy against bodily injuries sustained through external, violent, and accidental means independently of all other causes. French v. Fidelity & C. Co. 17: ion, 115 N. W. 869, 135 Wis. 259. 748. Death from blood poisoning follow- ing an accidental cut in the finger of the holder of an accident policy is within the terms of the policy providing compensation in case of death by external violence and accidental means. Central Acci. Ins. Co. v. Rembe. 5: 933, 77 N. E. 123, 220 111. 151. 749. Bodily injury by external, violent, and accidental means need not be shown to recover for death from septicemia under an accident insurance policy which, after in- suring against bodily injuries from such means, allows a recovery for one half the amount of the policy for loss of life only, resulting wholly or in part from sunstroke, freezing, septicemia, hydrophobia, or the involuntary or unconscious inhalation of gas or other poisonous vapor. Schumacher v. Great Eastern Casualty & I. Co. 27: 480, 90 N. E. 353, 197 N. Y. 58. (Annotated) Sunstroke. See also supra, 729-731. 750. In, an action upon an accident insur- ance policy containing a provision that loss of time due to sunstroke should be deemed to be due to external, violent, and purely accidental causes, and should entitle the insured/ to full benefits according to the terms of the policy, the plaintiff is not pre- cluded from recovery upon a loss which he alleges is due to sunstroke, by the fact that his disability was occasioned by exposure to the heat of a furnace instead of that of the sun. Continental Casualty Co. v. John- son, 6: 609, 85 Pac. 545, 74 Kan. 129. (Annotated) Digest 1-52 L.R.A.(N.S.) d. External or visible mark. (See also same heading in Digest L.R.A* 1-10.) Question for jury as to whether injury was an "invisible injury," see TRIAL, 650. 751. Drowning, although not accompanied by external marks, is covered by a policy insuring against personal injury leaving upon the body external marks, where drown- ing appears in the list of accidents insured against, and a separate provision limits the liability, in case of drowning, to a certain percentage of the face of the policy in the absence of an eyewitness. Lewis v. 15rother- hood Acci. Co. 17: 714, 79 N. E. 802, 194 Mass. 1. 752. Recovery cannot be had for mentaf derangement on an accident policy in an association, a by-law of which precludes recovery for an invisible injury unless cer- tified to in a certain way, upon a mere showing that the injury resulted from ex- ternal force, in the absence of a compli- ance with the conditions of the by-law. Peterson v. Locomotive Engineers' Mut. L. & Acci. Ins. Asso. 49: 1022, 144 N. W. 160, 123 Minn. 505. 753. Mental derangement of a locomotive engineer resulting from an accident to his engine, and unfitting him for duty, is not an "invisible -injury" within the meaning of an accident policy precluding recovery for "an invisible injury unless certified to by a medical expert designated by the as- sociation," if the condition can be ascer- tained by observation or examination. Pet- erson v. Locomotive Engineers' Mut. L. & Acci. Ins. Asso. 49: 1022, 144 N. W. 160, 123 Minn. 505. (Annotated) e. Things taken, administered, ab- sorbed, or inhaled. (See also same heading in Digest L.R.A. 1-70.) 754. Death by asphyxiation from the acci- dental inhalation of gas while asleep is not within the provisions of an accident insur- ance policy exempting the insurer from lia- bility for death resulting directly or indi- rectly from any gas or vapor. Travelers' Tns. Co. v. Ayers, 2: 168, 75 N. E. 506, 217 111. 390. (Annotated) ec. Blood poisoning. As external, violent, or accidental means, see supra, 746-749. 755. No recovery can be had under an accident insurance policy covering bodily injuries effected solely through accidental means, that, independently of all other causes, result in death, for death resulting from gangrene following the breaking of a bone, because of a diabetic condition of the INSURANCE, VI. b, 3. 3599 person injured. Maryland Casualty Co. v. Morrow, 52: 1213, 213 Fed. 599, 130 C. C. A. 179. 756. A beneficiary named in an accident insurance policy issued to one who there- after died from blood poisoning resulting from an accidental cut or scratch on his hand is entitled to recover in an action on the policy, although it excepts cases in which death results wholly or partly, di- rectly or indirectly, from bodily infirmity or disease in any form, proximate or con- tributory, as a primary, secondary, or final cause of accident, injury, or death. Rhein- heimer v. /Etna L. Ins. Co. 15: 245, 83 N. E. 491, 77 Ohio St. 360. 757. Septicemia induced by bacterial in- fection of an accidental abrasion of the skin is not within the provision of an insurance policy exempting the i?isurer from liability for death resulting directly or indirectly, wholly or in part, from bodily infirmity or disease. Gary v. Preferred Acci. Ins. Co. 5: 926, 106 N. W. 1055, 127 Wis. 67. (Annotated) 758. A provision in a health insurance policy for indemnity for blood poisoning cannot be destroyed by the condition that the policy shall not apply to any disease resulting from an 'njury or another disease. Jones v. Pennsylvania Casualty Co. 5: 932, 52 S. E. 578, 140 N. C. 262. 759. A clause in an accident insurance policy exempting the insurer from liability for death resulting from contact with poi- sonous substances does not apply in case of death from blood poisoning caused by germs infecting an accidental wound. x Central Acci. Ins. Co. v. Rembe, 5: 933, 77 N. E. 123, 220 111. 151. 760. A provision in an insurance policy exempting the insurer from liability for death resulting from poison or infec- tion does not apply where an accidental abrasion of the skin is followed by bacte- rial infection, blood poisoning, and death, since the infection is not the proximate cause of the death. Gary v. Preferred Acci. Ins. Co. 5: 926, 106 N. W. 1055, 127 Wis. 67. (Annotated) 761. An abrasion of the skin by a fall may be found to be the proximate cause of the death of the injured person where bac- teria infected the wound causing blood poi- soning which resulted in death. Gary v. Preferred Acci. Ins. Co. 5: 926, 106 N. W. 1055, 127 Wis. 67. 762. An injury to a physician by the breaking of a bottle from which he is at- tempting to secure medicine for a patient is within the terms of a clause of an acci- dent insurance policy making the insurer liable for septic wounds caused by accident while performing an operation pertaining to the business of the insured. Central Acci. Ins. Co. v. Rembe, 5: 933, 77 N. E. 123, 220 111. 151. 763. Blood poisoning from septic matter thrown by a cough against the membrane of the eye, without abrading, breaking, or rup- turing the surface, is not within the meaning of a provision in an accident insurance pol- Digest 1-52 KR.A.CN.S.) icy, insuring against blood poisoning from septic matter introduced into the system through wounds. Fidelity & C. Co. v. Thompson, n: 1069, 154 Fed. 484, 83 C. C. A. 324. f. Increased hazard; voluntary exposure. (1) In general; overexeriian. (See also same heading in Digest L.R.A. 1-10.) Sufficiency of evidence to justify submission to jury of defense of voluntary expos- ure to danger, see TRIAL, 101. Refusal of instructions where defense of voluntary exposure to danger is set up, see TRIAL, 852. 764. Either reckless or deliberate encoun- tering of known danger, or danger so ob- vious that a reasonably prudent man would have observed and avoided it, if the circum- stances were not such as necessitated the encountering thereof, is a "voluntary ex- posure" within the meaning of a clause in an accident insurance policy limiting the liability of the insurer in case of an injury resulting from "voluntary exposure to un- necessary danger or obvious risk of injury." Diddle v. Continental Casualty Co. 22: 779, 63 S. E. 962, 65 W. Va. 170. 765. Unconsciousness of the danger at the moment of injury does not excuse the insured, within the meaning of a clause in .an accident insurance policy lim- iting the liability of the insurer in case of an injury resulting from voluntary ex- posure to unnecessary danger or obvious risk of injury, except in those instances in which the insured was ignorant of the dan- ger, and under no duty from the obvious- ness thereof, to know its existence. Diddle v. Continental Casualty Co. 22: 779, 63 S. E. 962, 65 W. Va. 170. 766. If the danger is obvious, and there is nothing in the situation of the insured or the circumstances surrounding him that, in any way, precludes deliberation, freedom of action, or choice of conduct, such as a sud- den peril, which he had no reason to expect, or the like, and he encounters it, and is in- jured, the exposure is "voluntary" within the meaning of a clause in an accident in- surance policy limiting the liability of the insurer in case of an injury resulting from voluntary exposure to unnecessary danger or obvious risk of injury. Diddle v. Con- tinental Casualty Co. 22: 779, 63 S. E. 962, 65 W. Va. 170. (Annotated) 767. Voluntary exposure to obvious risk within the meaning of an insurance policy is made, as a matter of law, by climbing on the side of an engine which is approaching a standpipe erected in close proximity to the track at a speed of 8 or 10 miles an hour, . where the insured had passed the standpipe frequently, and had done so just before the accident. Diddle v. Continental Casualty Co. 22: 779, 63 S. E. 962, 65 W. Va. 170. 1600 INSURANCE, VI. b, 3. 768. An obvious danger within the mean- ing of an accident policy is one that is plain and apparent to a reasonably observ- ant person; and the fact that the insured may not have observed it and been con- scious of it at the time of the accident is not material, since he owed to the insurer as well as to himself the duty to be reason- ably careful when in the presence of an obvious danger, and his failure to use rea- sonable care does not excuse him. Combs v. Colonial Casualty Co. 50: 1218, 80 S. E. 779, 73 W. Va. 473. 769. A person who attempts to cross a railroad track immediately in front of a rapidly approaching train, and is run over and killed, exposes himself to an "obvious risk of injury or obvious danger," within the meaning of a- condition in an accident insurance policy, limiting the liability of the insurer. Combs v. Colonial Casualty Co. 50: 1218, 80 S. E. 779, 73 W. Va. 473. ( Annotated ) 770. One running to a base while playing indoor baseball does not voluntarily expose himself to unnecessary danger, within the meaning of an accident-insurance policy, by merely overrunning his base and relying on the wall of the building to stop him when he places his hands and feet against it. Hunt v. United States Acci. Asso. 7: 938, 109 N. W. 1042, 146 Mich. 521. 771. One who, while on a pleasure trip in a canoe, continues on his journey on a lake in a high wind when persons familiar with the location warn him of the danger, and no other canoes are out, voluntarily ex- poses himself to unnecessary danger, and is negligent, so that in case he is drowned by the overturning of the canoe, no recov- ery can be had on an accident insurance policy which exempts the insurer from lia- bility in case of death from such exposure. Morse v. Commercial Travelers' Eastern Acci. Asso. 40: 135, 98 N. E. 599. 212 Mass. 140. (Annotated) (2) RisJcs of occupation or employ- ment. (See also same heading in Digest L.R.A. 1-70.) 772. A miner does not expose himself to unnecessary danger, as matter of law, with- in the meaning of a clause in the insurance policy on his life, so as to prevent recovery thereon, if, when called to the assistance of a coemployee who has been overcome with gas, he finds him within 5 feet of the shaft, and, although he knows of the presence of the gas, calculates that he can safely go that distance and effect the rescue, in at- tempting which he is himself overcome and killed. Da Rin v. Casualty Co. 27: 1164, 108 Pac. 649, 41 Mont. 175. (Annotated) (3) Intoxication. (See same heading in Digest L.R.A. 170.) (4) Risks of travel. (See also same heading in Digest L.R.A. 1-70.) Digest 1-52 I,.R.A.(N.S.) Entering or leaving public convey- ance. 773. That commercial travelers were ac- customed to run hazardous risks in board- ing trains at the time an accident insurance company accepted one as a member does not warrant the inference that it agreed to in- demnify him for injury resulting from such conduct, contrary to the terms of the contract. Garcelon v. Commercial Travel- ers' Eastern Acci. Asso. 10: 961, 81 N. E. 201, 195 Mass. 531. 774. For a man sixty-six years old, weigh- ing 184 pounds and carrying an umbrella under his arm, to attempt to board a train running 6 or 8 miles an hour, is so obvi- ously dangerous as to come within the clause of an accident-insurance policy which states that the policy does not cover in- surance from voluntary exposure to un- necessary danger. Rebman v. General Acci. Ins. Co. 10: 957, 66 Atl. 859, 217 Pr. 518. (Annotated) 775. A passenger on a freight train, who, having left the car at a stopping place, at- tempts to board it after it has started, by means of a ladder on the side of a freight car, and is thrown therefrom by the jerking of the train, and injured, contributes to his injury by his own negligence, within the meaning of an accident-insurance policy ex- empting the insurer from liability for such injuries. Garcelon v. Commercial Travel- ers' Eastern Acci. Asso. 10: 961, 81 N. E. 201, 195 Mass. 531. 776. A recovery on an accident insurance policy by one thrown by a sudden move- ment, just as he was stepping to the ground, of a train which he was attempting to cross while it was standing on a street crossing, is not prevented by a provision in Jie policy that it shall not apply to accidents to persons attempting to leave moving trains, or persons in or on any place on a train not provided for the use of passengers during transit. Kirkpatrick v. JKtna, L. Ins. Co. 22: 1255, 117 N. W. 1111, 141 Iowa, 74. (Annotated) (5) Violating law. (See also same heading in Digest L.R.A. 1-70.) 111. To relieve a life insurance company from liability for the death of an insured who came to his death while violating the statute prohibiting the carrying of concealed weapons, it must be shown that the offense was being committed, and that it brought about the death of the deceased. Interstate L. Assur. Co. v. Dalton, 23: 722, 165 Fed. 176, 91 C. C. A. 210. (6) Fighting. (See same heading in Digest L.R.A. 1-70.) g. Suicide. (See also same heading in Digest L.R.A. 1-70.) Under life insurance policy, see supra, VI. b, 2, c. INSURANCE, VI. c, 1. As external, violent and accidental means, see supra, 735. Who may question validity of statute de- priving company of defense of suicide, see ACTION OR SUIT, 47. Forbidding company to contract for exemp- tion from liability in case of suicide, see CONSTITUTIONAL LAW, 464. Evidence of habits and temperament of in- sured on question of suicide, see EVI- DENCE, 34. Presumption and burden of proof as to, see EVIDENCE, 157-105. Sufficiency of evidence as to, see EVIDENCE, 2078. Order of offering evidence as to mental condition of insured, see TRIAL, 34. Suicide as question for jury, see TKIAL, 166-169. See also EVIDENCE, 1810. h. Insanity. (See also same heading in Digest L.R.A 1-10.) Question for jury as to whether mental derangement resulted from accident, see TRIAL, 17-6. i. Injury as result of examination after accident. (See same heading in Digest L.R.A. 1-70.) j. Insurance against loss from illness. Necessity of notice of sickness, see supra, 625, 626, 628, 631, 636, 637. Release of liability, see infra, 873a. As to total disability of one insured against illness, see infra, 810-812. Release of liability, see CONTRACTS, 56. 778. Inability to name the illness does not prevent recovery under a policy insur- ing against loss of time from sickness, which provides that no disability shall con- stitute a claim on account of any sickness the nature of which is unknown, or incap- able of direct and positive proof, if a phys- ical condition is shown, as a result of ill- ness, which incapacitates the insured for labor. Jennings v. Brotherhood Acci. Co. 18: 109, 96 Pac. 982, 44 Colo. 68. c. Extent of injury or loss; of recovery. 1. Insurance on property. (See also same heading in Digest L.R.A. 1-70.) Review of finding as to extent of loss, see APPEAL AND ERROR, 940. Interest on amount recovered on insurance policy, see INTEREST, 10. Correctness of instruction as to amount of recovery in case of total loss, see TRIAL, 1021. Question for jury as to sufficiency of effort to minimize loss, see TRIAL, 654. Digest 1-52 !L.R.A.(N.S.) 779. Nominal damages only can be re- covered under an insurance policy, for a sec- ond fire, if the first one destroyed the build- ' ing so that it was not able to be occupied. Kupfersmith v. Delaware Ins. Co. (N. J. Err. & App.) 45: 847, 86 Atl. 399, 84 N. J. L. 271. (Annotated) 780. The owner of a building supported by a party 'wall which is injured by the burn- ing of the adjoining building may recover, under the insurance policy on his building, diminution in its value because of the in- juries to ths party wall, which may include the full value of the wall. Citizens' F. Ins. Co. v. Lochriage, 20: 226, 116 S. W. 303, 132 Ky. 1. (Annotated) 781. Where an insurance policy covers property described as a frame building and an undivided interest in a brick wall, and no separate valuation is placed upon the building and the wall, and subsequently the building is destroyed by fire without injury to the wall, and the insurance company is prevented from restoring the building by the lire ordinances of the city in which the prop- erty is located, in which event it is provided in the policy that the company shall be liable for the amount that it will cost to make such repairs, the insurance company is liable for the amount it would thus cost to restore the premises, or the actual loss to the insured, without deduction for the value of the wall. Kinzer v. National Mut. Ins. Asso. 43: 121, 127 Pac. 762, 88 Kan. 93. 782. The amount to be awarded to one who has leased a building for the owner's life, under an insurance of his interest therein, upon its destruction by fire, is the present worth of the difference between the rental value of the property and what he has agreed to pay for it for the probable duration of the owner's life. Getchell v. Mercantile & Manufacturers' Mut. F. Ins. Co. 42: 135, 83 Atl. 801, 109 Me. 274. 783. The value of cotton destroyed by fire after the stock exchange is opened on a certain day may be determined from the actual sales made during that day on the market. Liverpool, L. & G. Ins. Co. v. Mc- Fadden, 27: 1095, 170 Fed. 179, 95 C. C. A. 429. 784. The liability of an insurer to a manufacturer of whisky under a clause in the policy limiting liability to cost of re- placement is not the cost of raw material and labor, where the manufacture occupies considerable time, and the value of the product increases with age, but the cost of replacing the article lost with a like product in the most inexpensive way, by purchase or otherwise. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590, 105 C. C. A. 128. 785. A man who insures, in his own name, his dwelling house, the title to which is in his wife, may recover the face value of the policy, upon destruction of the property, in case such value does not exceed the loss. Kludt v. German Mut. F. Ins. Co. 45: 1131, 140 N. W. 321, 152 Wis. 637. Time whan value is to be estimated. 786. The time the property is actually 101 1602 INSURANCE, VI. c, 1. destroyed, and not that at which the fire starts, governs in determining the extent of the insurer's liability under a policy fix- ing such liability at the actual cash value of the property insured at the time the loss occurs, although the fire is a continuing one and the property is a marketable commodi- ty, the value of which enhances as portions of the visible supply are destroyed. Liver- pool, L. & G. Ins. Co. v. McFadden, 27: 1095, 170 Fed. 179, 95 C. C. A. 429. 787. Where the product insured has changed in value between the time of its manufacture and that of its destruction, and its manufacture occupies considerable time, the manufacturer is not limited to the cost of making the article, but may re cover its actual cash value at the time of the fire, whether a profit or a loss results to him from the use of that measure of recovery. Mechanics Ins. Co. v. C. A. Hoover Distilling Co. 31: 873, 182 Fed. 590. 105 C. C. A. 128. Total loss generally. See also supra, 658. 788. The face of the policy is the amount to be recovered for a total loss, under a statute providing for the fixing of the value of the property before issuance of the pol- icy, which, after the expiration of sixty days, the insurer shall be estopped to dis- pute, except for fraud, where the sixty days have expired and fraud is disproved. McCarty v. Piedmont Mut. Ins. Co. 18: 729, 62 S. E. 1, 81 S. C. 152. 789. Property is to be regarded as hav- ing been "wholly destroyed" or a "total loss" within the meaning of an insurance contract, no matter how great a portion thereof may remain unconsumod, if it is so injured that it must be torn down, or that which remains cannot be utilized in recon- structing the building, without incurring a greater expense than if it were not so utilized. Kinzer v. National Mut. Ins. Asso. 43: 121, 127 Pac. 762, 88 Kan. 93. 790. When all combustible material in an insured railroad car is destroyed by fire, leaving only the trucks and steel used in its construction, and that is so injured as not to be of use in rebuilding the car, there is a total loss, although the trucks and steel may be worth a small per cent of the original value of the car as old iron or scraps. Springfield F. & M. Ins. Co. v. Homewood, 39: 1182, 122 Pac. 196, 32 Okla. 521. (Annotated) Marine insurance, generally. Defense to action on policy, see infra, 853, 854. 791. The "sum at risk," in a marine in- surance policy, is the valuation placed upon the property by the policy itself. Standard Marine Ins. Co. v. Nome Beach Lighterage & Transp. Co. i: 1095, 133 Fed. 636, 67 C. C. A. 602. 792. To recover under a marine policy covering partial loss if it amounts to 50 per cent of the property covered, such loss must be shown to have resulted from a peril of the sea, and cannot be created by a forced sale. Standard Marine Ins. Co. Digest 1-52 L.R.A.(N.S.) v. Nome Beach Lighterage & Transp. Co. i: 1095, 133 Fed. 636, 67 C. C. A. 602. 793. The cost of getting boats which are part of a vessel's cargo from the point where she is wrecked to a place of safety may be recovered under a marine insurance policy upon them, although they are not injured by the disaster, where the policy requires insured to labor to secure the property in- sured, and binds the insurer to contribute to the expense thereof in proportion as the sum insured is to the whole sum at risk, while the policy covers the whole value of the property. Standard Marine Ins. Co. v. Nome Beach Lighterage & Transp. Co. i: 1095, 133 Fed. 630, 67 C. C. A. 602. 794. An insurer of the cargo of a vessel, which agrees to have it removed from the vessel to avoid a threatened peril after be- ing notified of the cost, cannot escape pay- ment of the cost by claiming that the ex- penditure was disproportionate to the inter- ests of the case. St. Paul F. & M. Ins. Co. v. Pacific Cold Storage Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. 795. The owner of a vessel carrying his own cargo is not, after the vessel has be- come stranded in a river, bound to forward the cargo to destination to save his freight, so as to relieve the insurer of the cargo from liability for the cost of moving it overland, which is done with its knowledge and ap- proval. St. Paul F. & M. Ins. Co. v. Pa- cific Cold Storage Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. 796. One adjusting the liability of an un- derwriter for expense of moving a cargo overland to avoid a threatened peril may properly consider the expense vouchers, the question whether or not the goods have been exposed to a peril covered by the sue and labor clause of the policy, and whether in- sured properly incurred expenses in avert- ing the loss, and, if so, what. St. Paul F. & M. Ins. Co. v. Pacific Cold Storage Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. (Annotated) 797. Insurers of the cargo of a vessel against loss by a collision with ice, under a policy containing a sue and labor clause, are liable for the cost of moving the cargo overland, when, the vessel having been de- layed by low water in ascending a river to its destination until formation of ice com- pelled laying it up for the winter, it was moved with the consent of the underwriter to avoid the effect of the ice upon its break- ing up in the spring, and the goods, being perishable, could not have been otherwise preserved. St. Paul F. & M. Ins. Co. v. Pa- cific Cold Storage Co. 14: 1161, 157 Fed. 625 87 C. C. A. 14. Tot^l loss of vessel or cargo. 798. Rightful consumption of property covered by a marine insurance policy in salvage claims constitutes a total loss for which the insurer is liable. Standard Ma- rine Ins. Co. v. Nome Beach Lighterage & Transp. Co. i: 1095, 133 Fed. 636, 67 C. C. A. 602. 799. The owner of property covered by a INSURANCE, VI. c, 2. 1603 marine insurance policy cannot claim a re covery as for a constructive total loss, al though the property was in a situatior where it might have been lawfully aban doned to th? underwriter, if no attempt was made to abandon it, but it was sold as the property of the insured. Standard Marine Ins. Co. v. Nome Beach Lighterage & Transp Co. i: 1095, 133 Fed. 636, 67 C. C. A. 602 2. Insurance on persons. (See also same heading in Digest L.R.A.. 1-10.) See also supra, 372. 800. A provision in a life insurance pol- icy which provides for cash loans on it, au- thorizing the insurer to deduct indebted- ness from the face of the policy in making settlement of the amount due thereunder, does not cover debts growing out of trans- actions extraneous to the contract, such as indebtedness incurred by the insured while acting as agent for the insurer. Anson v. New York L. Ins. Co. 37: 555, 96 N. E. 846, 252 111. 369. 801. A provision in a quarterly-premium insurance policy that, if the premiums are paid when due, the insurer will, upon the death of the insured, pay the face value of the policy less "the balance of dues for the current year of the death of the insured," does not give the insured a right to insur- ance for the whole year in case of nonpay- ment of a quarterly premium. Thompson v. Fidelity Mut. L. Ins. Co. 6: 1039, 92 S. W. 1098, 116 Tenn. 557. 802. A separate allowance may be made for each operation necessitated by an acci- dent, which is mentioned on the schedule of an accident insurance policy which pro- vides that, in case an operation is neces- sitated by any accident, a sum shall be paid in addition to the indemnity provided for by the policy, of the sum indicated for such operation in the schedule, "provided always that not more than one amount shall be payable for one or more opera- tion? performed as the result of one acci- dent." Anderson v. JKtna, L. Ins. Co. 28: 730, 74 Atl. 1051, 75 N. H. 375. 803. A provision in an accident insurance policy, for double indemnity in case of in- juries received while riding as a passenger in a public conveyance provided for passen- ger service and propelled by gasolene, ap- plies to injuries received while a passenger in a taxicab hired from one engaged in the business of letting automobiles to the pub- lic generally for hire, whose chauffeur drove and controlled the vehicle. Prim- rose v. Casualty Co. 37: 618, 81 Atl. 212, 232 Pa. 210. 804. A provision in an accident insurance policy that, in case of loss of life, limb, sight, or time from hernia, one tenth of the benefits otherwise provided will be paid, applies to loss of time from hernia caused by the accident upon which the claim is founded, and is not limited to cases where the loss of time is caused by an existing her- Dlgest 1-52 L.R.A.(N.S.) nia. Kelsey v. Continental Casualty Co. 8: 1014, 108 N. W. 221, 131 Iowa, 207. (Annotated) Effect of intoxication. 805. One is "under the influence" of an intoxicant, within the meaning of an acci- dent-insurance policy limiting liability of the company in such cases, when he- has re- covered from intoxication only so far as to be fairly able to take care of himself. Grin- nell v. General Acci. Ins. Co. 15: 206, 68 Atl. 655, 80 yt. 526. (Annotated) 806. Intoxication to such an extent as to impair the ability of insured to care for himself, and thus increase the probability of his suffering accidental injury is meant by a clause in an accident insurance policy lessening the liability of insurer in case in- sured is injured while "insane, delirious, or under the influence of any intoxicant or nar- cotic." Bakalars v. Continental Casualty Co. 25: 1241, 122 N. W. 721, 141 Wis. 43. ( Annotated ) Specified injuries. 807. Under an accident insurance policy limiting the liability to one fifth of the amount otherwise payable where the injury causing the loss results wholly or in part from the intentional act of the insured or of any other person, the liability is limited to one fifth of the amount otherwise pay- able where the uncontradicted evidence shows that the assured was intentionally struck in the face by another person with- out any intention to kill him, and that the assured fell backwards, striking his head on the pavement, fatally fracturing hia skull, the injury to his face by the initial blow not being serious. Ryan v. Continental Casualty Co. 48: 524, 142 N. W. 288. 94 Neb. 35. (Annotated) Total disability. 808. No liability for death arises upon a policy insuring against permanent disabil- ity. Hill v. Travelers' Ins. Co. 28: 742, 124 N. W. 898, 146 Iowa, 133. (Annotated) 809. Total disability ensuing within twen- ty-four hours after an accident, although not within the calendar day upon which it occurs, is within the operation of a pro- vision of an accident insurance policy for indemnity for an injury which totally dis- ables insured from "the date of the acci- dent." Robinson v. Masonic Protective Asso. 47: 924, 88 Atl. 531, 87 Vt. 138. 810. That as a portion of his treatment, an insured, under direction of his physician, sits out of doors a portion of the time, does not destroy his rights under a sick benefit policy insuring him against sickness while iie is wholly disabled and under the care of a physician for a period during which "he shall be continuously and necessarily con- fined to the house." Metropolitan Plate Glass & C. Ins. Co. v. Hawes, 42: 700, 149 S. W. 1110, 150 Ky. 52. (Annotated) 811. Taking exercise and exposing one's self to outside air will not prevent a recov- ry ' n the policy insuring against sickness if insured is entirely incapacitated for work or business because of illness, although the policy provides that a disability to con- 1604 INSURANCE, VI. d, 1. stitute a claim shall oe continuous, com- plete, and total, requiring absolute, neces- sary confinement to the house. Jennings v. Brotherhood Acci. Co. 18: 109, 96 Pac. 982, 44 Colo. 68. 812. An insured who, at all times during an illness characterized by recurring periods of severity, has been unable to resume the ordinary duties or pleasures of life, cannot be said not to have been confined "constant- ly to the house," within the meaning of an insurance contract for sick benefits because at intervals he has occasionally stepped into the yard, or has made visits to his physi- cian, and otner short and unusual trips. Breil v. Glaus Groth Plattsdutschen Vereen, 23: 359. 120 N. W. 905, 84 Neb. 155. (Annotated) 813. An accident insurance company can- not escape liability on its contract for week- ly indemnity during a certain period, for total disability caused by an accident which, among other things, results in loss of a limb, because provision for such indem- nity is made subject to subsequent pro- visions, one of which is that, if injury re- sults in loss of such limb, a specified sum less than the claim for total disability shall be paid, whereupon the policy shall be sur- rendered; and another of which provides that in no event will claim for weekly in- demnity be valid, if a valid claim for any of the amounts provided for special injuries can be based upon the same accident and resulting injury, at least where, among the provisions for special allowances, is one to the effect that, if the injuries result in total disability, the indemnity shall be the sum per week named on the face of the policy for a certain period, provided the dis- ability continue so long. Anderson v. JEtna L. Ins. Co. 28: 730, 74 Atl. 1051, 75 N. H. 375. (Annotated) 814. An injury which wholly incapaci- tates a manual laborer from performing any and every kind of business which he is able to do or capable of engaging in is with- in the terms of a policy providing an indem- nity for an injury which shall wholly dis- able and prevent him from prosecution of any and every kind of business, although the injury would not prevent his doing mental work if he was fitted to do it. In- dustrial Mut. Indemnity Co. v. Hawkins, 29: 635, 127 S. W. 457, 94 Ark. 417. 815. An assured is entitled to recover on a policy insuring him against permanent disability for performing manual labor on account of permanent paralysis of either extremities, where one hand is paralyzed so that it compels him to abandon his call- ing, and there is no way of restoring it to usefulness except by an operation which he has no means to secure. Brotherhood of Locomotive Firemen & Enginemen v. Aday, 34: 126, 134 S. W. 928, 97 Ark. 425. 816. Paralysis of the hand of a railroad fireman which compels him to retire from railroad service is within the meaning of an insurance policy against injuries which Digest 1-52 L.R.A.(N.S.) totally and permanently disable him from the performance of all manual labor. Brotherhood of Locomotive Firemen & Enginemen v. Aday, 34: 126, 134 S. W. 928, 97 Ark. 425. d. Interest in proceeds. 1. Of property insurance. (See also same heading in Digest L.R.A.. 1-10.) Raising question of falsity of answers in application in contest over right to proceeds of policy, see ACTION OE SUIT, 43. Rights in proceeds of insurance of cargo for account of whom it may concern, see CARRIERS, 767. Widow's dower interest in policy, see DOWER, 10. Right of vendor to recover on policy, on theory that title has not passed to vendee, see ELECTION OF REMEDIES, 31. Parol evidence as to, see EVIDENCE, 920. Effect on wife's rights of paying to husband insurance on her property, see HUS- BAND AND WIFE, 55. Sufficiency of complaint in action by cargo owner to recover insurance proceeds from carrier, see PLEADING, 414. Collection of insurance on building by trus- tee, see TRUSTS, 87. 817. Insurance procured in his own name by an agent upon goods in his possession, and for which he has contracted to become absolutely and unconditionally liable to his principal, to the extent of their value, for their loss or damage by fire, does not con- stitute a trust fund for the benefit of the principal, but inures exclusively to the bene- fit and advantage of the agent, and is lia- ble for his debts in case of his insolvency. Bradley v. Brown, 13: 152, 112 N. W. 331, 78 Neb. 836. (Annotated) Mortgagor. 818. The trustee in a deed of trust, who, pending the redemption period after fore- closure sale, collects insurance money on the property, cannot refuse to turn it over to the mortgagor i the theory that his in- terest in the property has ceased. Rawson v. Bethesda Baptist Church, 6: 448 77 N. E. 560,221111.216. (Annotated) Mortgagee. Effect of mortgage on validity of policy, see supra, 200, 233-238. Necessity for notice of loss, see supra, 639. Effect of provision as to arbitration or appraisal, see supra, 668-670. Mortgagor's acts as affecting mortgagee, see infra, 866-871. Right to insurance as between mortgagee and trustee in bankruptcy of insured, see BANKRUPTCY, 63. Parol evidence as to meaning of mortgage clause, see EVIDENCE, 983. INSURANCE, VI. d, 2. 1605 Right of insured to maintain action on policy containing mortgage clause, see PARTIES, 46. Mortgagee's right of action on policy, see PARTIES, 77. Duty of mortgagee receiving proceeds of policy to apply it upon indebtedness, see PAYMENT, 27. See also supra, 230. 819. A mortgage clause written on a sep- arate piece of paper but of even date with, and attached to, a fire insurance policy at the time of its execution, which makes the loss, if any, payable to the mortgagee as his interest may appear, does not constitute a new and separate contract between the insurance company and the mortgagee, but merely designates the payee of the amount of loss according to the interest in, not the Eroperty insured, but the insurance which e may make appear. Erie Brewing Co. v. Ohio Farmers' Ins. Co. 25: 740, 89 N. E. 1065, 81 Ohio St. 1. 820. The standard mortgagee clause cre- ates an independent contract of insurance for the separate benefit of the mortgagee, in- grafted upon the main contract of insurance contained in the policy itself, and to be rendered certain and understood by reference to the policy. Reed v. Firemen's Ins. Co. (N. J. Err. & App.) 35: 343, 80 Atl. 462, 81 N. J. L. 523. 821. Assignment of the equity of redemp- tion is within the provisions of an insur- ance policy that, in case of insurance pay- able to a mortgagee, no act or default of any person other than the mortgagee or his agents shall affect his right to recover in case of loss. Union Inst. for Sav. v. Phoe- nix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. 822. That a mortgagee has no knowledge of insurance which has been secured in ac- | cordance with the provisions of the mort- gage, for his benefit, by the mortgagor, who retained possession of the policy, will not prevent his enforcing the policy in case of loss. Union Inst. for Sav. v. Phoenix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. 823. An insurer cannot defeat a suit by a mortgagee on an insurance policy taken by the mortgagor for the benefit of his inter- est as it may appear, by offering, several months after suit is brought, to pay the amount of the mortgage if the mortgagee will assign it to the insurer, without any offer to pay interest or costs of suit. Union Inst. for Sav. v. Phoenix Ins. Co. 14: 459, 81 N. E. 994, 196 Mass. 230. Conditional vendor. 824. A vendor of real estate, who retains the title to secure payment of the purchase money, but unconditionally assigns the in- surance on the buildings to the vendee, is not, in case the buildings are destroyed by fire, entitled to resort to a court of equity to reach the proceeds of the policies, al- though the vendee is insolvent, if the debt is not due. Zenor v. Hayes, 13: 909, 81 N. E. 1144, 228 111. 626. (Annotated) Digest 1-52 L.R.A.(N.S.) 2. Of insurance on persons. a. In general. (See also same heading in Digest L.R.A. 1-10.) Payment to wrong person, see infra, 859. Sufficiency of evidence of intention respect- ing beneficiary in life insurance policy, see EVIDENCE, 2229. Right of third person to maintain action upon promise of beneficiary to pay part of proceeds of policy to such third person, see PARTIES, 78. Trust in proceeds, see TRUSTS, 25, 78. Effect of election to take under will on right to proceeds of policy, see WILLS, 348. Implied bequest of proceeds of life insur- ance policy, see WILLS, 151. Ademption of bequest of insurance policy, see WILLS, 404. Effect of provision after bequest of policy that legatee pay premiums, see WILLS, 417. 825. The beneficiary of a burial insurance contract which provides that, at the death of the insured, a certain sura shall be paid to a certain named undertaker, his heirs or assigns, for burial of the insured, is the un- dertaker. State v. Willett, 23: 197, 86 N. E. 68, 171 Ind. 296. b. Widow, children, or heirs. (See also same heading in Digest L.R.A. 1-10.) Subjecting life insurance to year's support of widow, see EXECUTORS AND ADMIN- ISTRATORS, 117. Insurance on husband's life as separate estate of wife, see HUSBAND AND WIFE, 88-90. 826. Under a mutual benefit certificate made payable to the wife of the holder, or, in case of her death, to his legal repre- sentatives, his administrator, and not his children, is entitled to the proceeds of the noliey in case of the wife's death before that of the member. Hunt v. Remsberg, 32: 246, 112 Pac. 590, 83 Kan. 665. (Annotated) 827. Children of a child who dies during the lifetime of the beneficiary have no in- terest in an insurance policy the proceeds of which are payable to children of the beneficiary in case of her death prior to insured. Davis v. New York L. Ins. Co. 41: 250, 98 N. E. 1043, 212 Mass. 310. ( Annotated ) Effect of divorce. Statute authorizing designation of new beneficiary in case of divorce, see CON- STITUTIONAL LAW, 63. Estoppel of divorced husband to assert title to proceeds of insurance by leaving policy in possession of wife, see ESTOP- PEL, 91. See also infra, 849. 828. Children who are entitled to the pro- 1606 INSURANCE, VI. d, 2. ceeda of a policy of insurance on their father's life in case of the death of his wife, the prior beneficiary, in his lifetime, cannot claim the proceeds in case the father dies before his wife, although she has been deprived of the right to the money by di- vorce proceedings. Sea v. Conrad, 47: 1074, 159 S. W. 622, 155 Ky. 51. 829. A wife to whom a twenty-year en- dowment policy is payable in the event of the death of the husband within twenty years and during her lifetime acquires a vested interest in the policy, which is not de- vested by a decree of divorce in her favor, nor by an agreement on her part, in case the divorce is granted, to accept certain speci- fied property as alimony and relinquish to the husband all claim arising out of the marital relation to any of his property. Wallace v. Mutual Ben. L. Ins. Co. 3: 478, 106 N. W. 84, 97 Minn. 27. (Annotated) 830. A woman who divorces her husband, who has named her as beneficiary in a mu- tual benefit certificate, forfeits her rights thereunder where the statute provides that payment of such certificate shall be only to families, heirs, blood relatives, affianced husband, or affianced wife, or to persons dependent on the member. Green v. Green, 39: 370, 144 S. W. 1073, 147 Ky. 608. (Annotated) 831. A paid-up life insurance policy tak- en by a man for the benefit of his wife is within a statute providing that upon di- vorce the court shall restore any property which either party may have obtained di- rectly or indirectly from or through the other during marriage and in consideration or by reason thereof. Sea v. Conrad, 47: 1074, 159 S. W. 622, 155 Ky. 51. Heirs. See also infra, 851, 865. 832. The "legal heirs'" of a member of a benefit society, to whom the rules of the order require his benefit to be paid, are the persons designated as distributees by the statutes for the distribution of the per- sonal property of intestates. Thomas v. Su- preme Lodge, K. of H. 3: 904, 105 N. W. 922, 126 Wis. 593. (Annotated) 833. The retention of a mutual benefit certificate payable to the "legal represent- atives" of the member, which, because of lack of authority in the society to provide otherwise, must b: construed as heirs, after the amendment of the charter so as to per- mit a payment to assigns, without any at- tempt to change the beneficiary according to the rules of the order and the execution of a will in favor ot an assign, will not de- prive the heirs of the ight to the fund on the theory that the amendment restored to the words "legal representatives" their pri- mary meaning. Re Harton, 4: 939, 62 Atl. 1058, 213 Pa. 499. (Annotated) 834. A contract by a mutual benefit society, having Charter power to pay sums to the family and heirs of deceased mem- bers, to pay to his "legal representatives," will be construed to mean his "heirs." Re Harton, 4: 939, 62 Atl. 1058, 213 Pa. 499. Digest 1-52 L.R.A.(N.S.) c. Trust fund. (See same heading in Digest L.R.A. 1-70.) d. Rights of assignees or creditors. (See also same heading in Digest L.R.A. 1-10.) As to assignment of policy generally, see supra, IV. Creditors' bill to reach surrender value of debtor's life policies, see CREDITORS' BILL, 15. Exemption of life insurance, see EXEMP- TIONS, 9, 10. Garnishment of, see GARNISHMENT, 21-23, 47. 835. The attempt by the administratrix of an insured to maintain the truth of rep- resentations made by him in securing the policy, which she knows to be false, will not prevent her from recovering the proceeds of the policy from an assignee claiming under a wagering contract. Bendet v. Ellis, 18: 114, 111 S. W. 795, 120 Tenn. 277. e. Mutual benefit insurance. (See also same heading in Dige-st L.R.A. 1-70.) Effect of divorce, see also supra, 830. Review of verdict finding that beneficiary is a "dependent," see APPEAL AND EB- BOB, 909. Proceeds from benefit certificate as wife's separate estate, see HUSBAND AND WIFE, 90. Effect of will to convey benefit due on benefit certificate, see WILLS, 193. See also supra, 73, 80, 96. 836. The imposition, as a condition of membership in a benefit society, of a stip- ulation that the benefit shall go as directed by the laws of the order, and shall not be controlled by will, is not at variance with law or public policy. Thomas v. Supreme Lodge, K. of H. 3: 904, 105 N. W. 922, 126 Wis. 593. 837. The terms of the charter of a mutual benefit society, and not those of the statute under which it was incorporated, and which might have been adopted, will control in determining who may become beneficiaries. Murphy v. Nowak, 7: 393, 79 N. E. 112, 223 111. 301. 838. Proof that a benefit society had adopted a statute limiting the class of its beneficiaries is not necessary in a contest over a fund, if facts showing the applicabil- ity of the statute are admitted by the pleadings. Murphy v. Nowak, 7: 393, 79 N. E. 112, 223 111. 301. 839. The right of one made beneficiary in a mutual benefit certificate as a dependent of assured to receive the proceeds of the cer- tificate ceases upon her marrying and secur- ing means of support other than the as- sured prior to his death, where by the lawi INSURANCE, VI. e. 1607 of the order the fund can be paid only to dependents of deceased members. Murphy v. Nowak, 7: 393, 79 N. E. 112 ; 223 111. 301. (Annotated) 840. A sufficient designation of benefici- ary is effected where assured, in his applica- tion, directs the certificate to be issued in favor of his wife, subject to such future dis- posal as applicant may direct, and upon the back indorses an unsigned direction to make the certificate payable to the wife in trust for a person named, and accepts and recog- nizes as valid a certificate following such direction. Murphy v. Nowak. 7: 393, 79 N. E. 112, 223 111. 301. 841. A member of a mutual benefit so- ciety has no interest in the certificate which can be disposed of by will, nor will his testamentary designation of a new beneficiary be held effectual where the rules and by-laws of the order and the contract of insurance provide a method by which a change of beneficiary may be made by the member, since in that case such method must be followed. Modern Wood- men v. Puckett, 17: 1083, 94 Pac. 132, 77 Kan. 284. 842. A member of a mutual benefit so- ciety who holds a certificate of insurance therein has no interest in the fund; and neither the certificate nor its proceeds be- comes a part of the estate of the member, but he possesses simply the power of ap- pointing a beneficiary, which, if not exer- cised, becomes inoperative. Modern Wood- men v. Puckett, 17: 1083, 94 Pac. 132, 77 Kan. 284. 843. One not within the class of persons authorized by the rules of a mutual bene- fit society to become beneficiaries is not entitled to share in the proceeds of a cer- tificate issued by the society. Modern Woodmen v. Puckett, 17: 1083, 94 Pac. 132, 77 Kan. 284. 844. The interest of a beneficiary in a benefit certificate does not, where the mem ber has the right to change the beneficiary at will, vest until the member's death. Lit- tleton v. Sain, 41: 1118, 150 S. W. 423, 126 Tenn. 561. 845. The only interest of a beneficiary named in a benefit certificate issued by a mutual benefit society is an expectancy, which ceases at her death; and where she dies before the insured member, her heirs cannot take the fund by inheritance. Mod- ern Woodmen v. Puckett, 17: 1083, 94 Pac. 132, 77 Kan. 284. 846. The proceeds of a mutual benefit certificate pass to the heirs of the holder in the event of his death subsequent to the death of the beneficiary and without having designated a new beneficiary, where the rules and by-laws of the society, which are a part of the contract of insurance, so provide. Modern Woodmen v. Puckett, 17: 1083, 94 Pac. 132, 77 Kan. 284. (Annotated) 847. Failure to apportion the proceeds of a benefit certificate between the beneficiaries entitles one to the entire sum upon the other proving ineligible. Cunat v. Supreme Digest 1-52 L.R.A.(N.S.) Tribe of Ben Hur, 34: 1192, 94 N. E. 25, 249 111. 448. 848. Brothers and sisters and nephewa and nieces not living with or supported by assured are not legal dependents within the meaning of a provision making the proceeds of a benefit insurance policy pay able to such persons, and the proceeds are therefore assets in the hands of the ad- ministrator. Caldwell v. Little, 39: 450, 74 S. E. 10, 158 N. C. 351. 849. Designation of a divorced wife who has promised to remarry a holder of a mutual benefit certificate, as beneficiary, is necessary to give her the right to the proceeds as an affianced wife, where the designation in her favor as wife was an- nulled by the divorce. Green v. Green, 39: 370, 144 S. W 7 . 1073, 147 Ky. 608. 850. That the association admits its lia- bility to the designated beneficiary in a mutual benefit certificate does not preclude the husband of the deceased member from contesting his right, where the certificate provides that the rights of beneficiaries shall be determined by the laws of the order, and that, if the designation proves invalid, the benefit shall be paid to the member's husband. Supreme Lodge 0. of M. P. v. Nevins, 3: 334, 106 N. W. 140, 142 Mich. 666. 851. The personal representative of a member of a benefit society who dies leav- ing no family or dependent relative is not precluded from maintaining an action to recover sick benefits due and unpaid at the time of the member's death, by a provision of the constitution of the society that bene- fits are rights personal to the member, his family, and dependent relatives, and are not payable to the legal representatives of a member's estate. Kelly v. Trimont Lodge, 52: 823, 69 S. E. 764, 154 N. C. 97. e. Defenses ; release. (See also same heading in Digest L.R.A . 1-10.) Causes of loss, injury, or death as defense, see supra, V. b. Murder of Insured as defense, see supra, 698-701. Statute depriving company of defense of suicide, see ACTION OR SUIT, 47. Admissibility of telephone conversations to show cause for burning of property, see EVIDENCE, 1811. Necessity of pleading defense, see PLEAD- ING, 467, 470, 484. Sufficiency of allocations as to, see PLEAD- ING, 522, 523." See also supra, 436, 437. 852. To entitle an insurance company to defeat liability on a policy because of fraud, it is not required to tender back the prem- ium received. Duncan v. National Mut. Fi Ins. Co. 20: 340, 98 Pac. 634, 44 Colo. 472. 853. Liability of insurer of the cargo of a I steamer is not destroyed by the fact that, 'to reach its destination on the course of a 1608 INSURANCE, VI. e. river, the cargo is transferred and divided between a smaller steamer and a barge. St. Paul F. & M. Ins. Co. v. Pacific Cold Stor- age Co. 14: 1161, 157 Fed. 625, 87 C. C. A. 14. 854. A vessel is not shown to be unsea- worthy at the time of commencing her voy- age, so as to avoid insurance on her cargo, by the fact that hor boilers begin to leak soon after the voyage begins, after she has gone aground, where they stood a standard test before the voyage began, and the vessel Colo. 159. (Annotated) 2. The seizure and detention of insur- rectionists by the militia when acting, un- der orders from the governor, to suppress an insurrection, does not violate the constitu- tional provision that the militia shall al- ways be in strict subordination to the civil power, since the act of the governor is in his civil capacity. Re Moyer, 12: 979, 86 Pac. 190, 36 Colo. 159. UCSB LIBRARY 553 183